Instructions issued by the Government to allow candidates' agents to sit with the Presiding Officer during voting violated the secrecy of ballot required by Rule 16 of the Orissa Grama Panchayats Rules, 1949, rendering the election held in pursuance of the instructions null and void.

JUDGMENT :

Narasimham, J. - This is an application under Article 226 of the Constitution by an unsuccessful candidate in an election to the Grama Panchayat of Bhanjanagar held on 25-4-51 in accordance with the Orissa Grama Panchayats Rules, 1949 made under the provisions of the Orissa Grama Panchayats Act, 1949 (Orissa Act XV of 1948).

2. The material facts are as follows:

The Petitioner and two other candidates named Srinibas Das and K. Satyanarayan Patra contested the election to the Grama Panchayat in ward No. 4 of Bhanjanagar Grama Sabha and the date for the pole was fixed on 25-4-54 at 7.30 a.m. Two hours before the time fixed for the pole a telegram was received by the Presiding Officer from the, Government of Orissa to the following effect:

State Express.

Government desire permitting candidates or one of their agents duly authorised in writing to sill with the Presiding Officer inside the Polling Compartment while Recording the votes in Panchayat's Election. They are not allowed taking notes.

In pursuance of this telegram the agents of the candidates were allowed to sit by the side of the Presiding Officer at the time of following. The Petitioner contended that by the allowing the agents of the candidates to sit by the side of the Presiding Officer, secrecy of ballot required by Rule 16 of the Orissa Grama Panchayats Rules was violated and undue advantage was taken of the same by the rival candidates. He urged that the instructions issued by the Government to the Presiding Officer were ultra vires and that consequently the election held in pursuance of the said instructions was also not and void.

3. Section 114(2)(ii) of the Orissa Grama Panchayats Act confers power on the State Government to make rules for the purpose of conducting election to Grama Panchayats. In the Orissa Grama Panchayats Rules, detailed provisions have been made for the preparation of voters list, scrutiny of the nomination and the holding of elections to the Grama Panchayats Rule 16 which is material for our discussion is as follows:

The Presiding Officer shall then proceed to take a poll secretly for each candidate, recording the number of votes given for each candidate with his own hand.

Under Rule 22, after the completion of the poll the Presiding Officer is required to declare a candidate to be duly elected who has polled the largest number of votes. Rule 24 confers power on a Sub-Divisional Magistrate to decide disputes arising out of proceedings for an election and it further says that his decision shall be final and shall not be called in question in any proceeding whatsoever. Rule 25 also says that except as provided in Rule 23, (presumably a mistake for Rule 24) no election shall be invalidated on any ground whatever. Rule 29, however, confers general powers of supervision and control on the State Government in the following terms:

Notwithstanding anything contained in these rules, in case of any irregularity in the conduct of election or in the preparation or finalisation of the register of population under these rules, the Provisional Government may make such order consistent with the Act, as may appear to them to be just and proper.

4. On the 17th April, 1954 the Government of Orissa issued a General Circular No. 2948 (13)-Gen/LV-53-53 giving, instructions for the conduct of Grama Panchayat Election. The first two paragraphs of that Circular deal with subjects which are not material for our present discussion. The last paragraph, however, may be quoted.

In this connection, I am to invite your attention to Rule 16 of the Grama Panchayats Rules which says that the Presiding Officer should take a poll secretly for each candidate Recording the number of votes given for each candidate with his own hand. It appears that hitherto Presiding Officers have, in their anxiety to preserve the secrecy of the poll, interpreted this rule very rigidly and have not allowed anybody to be present by their Elide while Recording the number of votes. This has naturally