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Bombay High Court
PATEL,GOKHALE
Madhavrao Talyasaheb Ghatge - Appellant
Versus
Collector, District Kolhapur - Respondent
Decided On : 08/10/1964
ELECTION - Validity - Breach of mandatory rules - Effect - Onus of proof - Maharashtra Zilla Parishads and Panchayat Samitis Act, 1962 (Mah. Act 5 of 1962), Secs. 14, 27(1), (5), (6), (7), 32 - Maharashtra Zilla Parishads Election Rules, 1962, Rr. 11, 37, 38, 41, 43.
Fact of the Case:
Election for the Panchayat Samiti of the Sidhanerli Electorate Group from Sangav Gat was held on 31st July 1962. The petitioner and respondent No. 5 were the contesting candidates. The election was held from 11 a.m. to 5 p.m. as per the notification issued by the Collector. The votes were counted on 3rd of August 1962, and it was found that the petitioner and respondent No. 5 had polled an equal number of votes. The Returning Officer drew lots and declared respondent No. 5 elected. The petitioner challenged the election by filing an application before the Assistant Judge, Kolhapur, under Sec. 27(1) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1962 (hereinafter referred to as "the Act"). The petitioner alleged that the election started three hours before the time fixed by the Collector and that the polling agents of the petitioner could not be present during the time between 8 a.m. and 11 a.m. The Assistant Judge dismissed the petition. The petitioner challenged the order of the Assistant Judge in the High Court.
Finding of the Court:
The High Court held that the rule requiring the election to commence at the time specified in the notification was a mandatory rule and a breach of that rule by itself was enough to render the election illegal and invalid. The Court further held that the breach of the rules in question was substantial and that the petitioner had established that the result of the election was materially affected by such breach. The Court also held that the onus of proving that the result of the election was materially affected was on the candidate who wanted to support the result of such an election.
Issues: 1. Whether the rule requiring the election to commence at the time specified in the notification was a mandatory rule? 2. Whether the breach of the rules in question was substantial? 3. Whether the petitioner had established that the result of the election was materially affected by such breach? 4. Whether the onus of proving that the result of the election was materially affected was on the candidate who wanted to support the result of such an election?
Ratio Decidendi: 1. The Court held that the rule requiring the election to commence at the time specified in the notification was a mandatory rule. The Court observed that the rule was intended to preserve the purity of the election and any substantial departure from that rule must be considered to be sufficient to render the election invalid. 2. The Court held that the breach of the rules in question was substantial. The Court observed that the election had commenced three hours before the time notified by the Collector and that the petitioner and his polling agents were not present at the time when polling commenced. 3. The Court held that the petitioner had established that the result of the election was materially affected by such breach. The Court observed that both the petitioner and respondent No. 5 had secured an equal number of votes and that respondent No. 5 was declared elected only because of a lot drawn in his favour. 4. The Court held that the onus of proving that the result of the election was materially affected was on the candidate who wanted to support the result of such an election. The Court observed that if it is shown that there was a breach of the rules in the conduct of the election, the candidate, who wants to support the result of such an election, must establish that the result of the election was not materially affected by such a breach of the rules.
Final Decision: The High Court set aside the order of the Assistant Judge and declared the election of respondent No. 5 as a member of the Panchayat Samiti for Sidhanerli Electorate Group out of Sangav Gat to be invalid.
GOKHALE, J. : This petition under Article 226 of the Constitution challenges the order-made by the Assistant Judge, Kolhapur, by which he dismissed the petition filed by the petitioner seeking to have the election of respondent No. 5 set aside on various grounds.
2. The election in question was of the Panchayat Samiti of the Sidhanerli Electorate Group from Sangav Gat. The petitioner as well as respondents Nos. 5 to 9 were the contesting candidates at the said election. The election was held on 31st July 1962. The date of the election was fixed by the notification issued by the Collector of Kolhapur as required by S. 14 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1962 (hereinafter referred to as "the Act''). The time for the election as notified in the notification issued by the Collector was from 11 a.m. to 5 p.m. The votes were counted on 3rd of August 1962 and it was found that the petitioner and respondent No. 5 had polled an equal number of votes, viz. 17 votes each. The Returning Officer of the Panchayat Samiti, who is respondent No. 2 to this petition, drew lots as required by Section 26 of the Act and declared that respondent No. 5 was elected in the said election. The result of the election so declared by respondent No. 2 was challenged by the petitioner by filing an application before the learned Assistant Judge at Kolhapur, under Sec. 27(1) of the Act. Several contentions were raised in the petition. It was alleged that respondents Nos. 2, 3 and 4 who were the officers concerned with the conduct of the election, had acted in collusion with respondent No. 5 and had, in fact, commenced the election at 8 a.m. on the day of the election without informing either the petitioner or his agents. According to the allegation, the election having commenced three hours before the time fixed by the Collector for the commencement of the election, the votes which were cast during this period were illegal votes and this illegality had materially affected the result of the election. There were allegations in the petition that respondent No. 5 had resorted to corrupt practices at the time of the election. Similarly, it was alleged that during the period from 8 a.m. to 11 a.m. such voters as came and exercised their right of voting were influenced by respondent No. 5. It is unnecessary to refer to the various other allegations which were made in the petition. The two material allegations with which we are concerned in the present petition are (1) that the election started three hours before the time fixed by the Collector for the commencement of the election, and (2) that the polling agents of the petitioner could not be present during the time between 8 a.m. and 11 a.m. and the respondents Nos. 1 to 3 in collaboration with respondent No. 5 had deliberately refrained from informing the petitioner or his polling agent that the election would commence at 8 a.m.
3. It appears that at an earlier stage in the conduct of the election petition, a preliminary objection was raised as to the maintainability in the application. The objection was that the election petition was not legally or validly presented as required by the Act and that preliminary objection. It appears, found favour with the learned Assistant Judge. The view taken at that stage, by the learned Assistant Judge, however, was set aside by this Court and therefore we are now concerned with the order made by the learned Assistant Judge after the matter was sent back to him for disposal in accordance with law.
4. The learned Assistant Judge framed as many as 15 issues. He found that the allegation of collusion between respondents Nos. 1 to 3 and respondent No. 5 was not proved. He also found that the commencement of the election at 8 a.m. was in breach of the rules but he did not accept the contention that such votes as were cast between 8 a.m. and 11 a.m. were illegal votes. Holding that the breach of the rules did not materially affect the result of the ele
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