LawyerServices Judgment - Shaik Burhan Saheb v/s Election Officer (V.Nageswara Rao, Z.P.H.S.Dendukur, Madhira Tq.), Yerrupalem Gram Panchayat

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Court Case No Date of Judgment
High Court of Andhra Pradesh W.P Appeal No. 634 of 1962 10-09-1982
Judge(s)
THE HONOURABLE JUSTICE P.A. CHOUDHARY
Parties
Shaik Burhan Saheb v/s Election Officer (V.Nageswara Rao, Z.P.H.S.Dendukur, Madhira Tq.), Yerrupalem Gram Panchayat
Advocate(s)
For the Appearing Parties: B. Prakash Rao, V.V.S. Rao, Advocates.
Equivalent Citation(s)
1983 (1) Andhwr 85
1982 (2) ALT 422
Judgment Full Text

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Munish Kumar Versus State of Haryana Srisailam Devasthanam Versus Bhavani Prameelamma Srisailam Devasthanam Versus Bhavani Prameelamma

judgement - (1) 1. This writ petition is filed challenging the order of the District Munsif madhira sitting as an Election Court and dispoosing of O. P. No. 2 of 1981. The present petitioner who contested and lost the election to the Sarpanch of Verrupalem has filed the aforesaid O. P. No. 2 of 1981 challenging the declaration made by the election Authority declaring the 3rd respondent J. V. Krishna Rao as having been duly elected as the Sarpanch of yerrupalem Gram Panchayat in the elections conducted on 29th May 1981. That election petition filed by the present petitioner was dismissed by the election Court the District Musif Madhira. (2) NOMINATIONS for contesting the office of Sarpanch yerrupalem were filed on 15th May 1981. The last date for scrutiny was fixed as 16th May 1981 and the date of with drawl as 19th May 1981. It was alleged in the election petition that the Election Authority had illegally allowed the 3rd respondent J. V. Krishna rao to contest the elections although he had withdrawn his nomination and also withdraw the deposit amount of Rs. 90 made by him. The question really is whether the third respondent withdraw his nomination. Although the election petitioner did not specifically mention the fact in his election petition that the above mentioned third respondent has filed two nomination papers it is admit ted that the third respondent did in fact file two nominations and paid two fepa. rate deposits and had subsequently withdrawn one of those two nominations keeping another nomination in fect. On the above facts the election Court has framedthenecessary issues and considered the documents marked by consent of the parties and dismissed the election petition in a rather summary and unsatisfactory way. It is against that judgment that the present writ petition has been filed.(3) TWO points have been urged by sri Sivarama Sastry learned Counsel for the Writ petitioner. The first argument of Sri Sivarama Sastry is that the third respondent viz the successful candidate krishnarao has filed two sets of nomination papers contrary to the rule 4 (3) of the Andhra Pradesh Gram Panchayats (Conduct of Elections) Rules 1978 hereinafter referred to as the election rules promulgated by the Governer in g. Q. Ms. No. 130 P. R. (Samithi) dated 2nd February1978 and that therefore the presentation of the nomination papers by the third respondent itself is invalid. The second argument of sri Sivirama Sastry is that the third respendent having presented two sets of nomination papers had withdrawn on 19th May 1981 from the contest and that as rule 10 (1) of the Election Rules permits only the withdrawal of the Candida ture of a contesting candidate as different from withdrawal of nomination the third respondent ought not to have been permitted to contest the election and that therefore the Election Tribunal had acted illegally in not setting aside the election of the third respondent. (4) UNDER the Election Rules made under the Gram Panchayat Act rule 4 deals with the nomination of a candidate. Rule 4 (3) says the candidate may file as many nomination papers as there are vacancies to be filled in the Gram Panchayat but not more. Each candidate shall be nominated by a separate nomination paper. basing upon this rule Sri Sivarama Sastry argues that the nomination of the third respondent to one post of Sarpanch of yerrupalem village through more than one set of nomination papers is invalid there are two answers which can be legitimately given in rejection of this argument. Even if one agrees with the contention of Sri Sivarama Sastry that this rule permits the filling of only one set of nomination papers for the post of Sarpanch it would still not be possible to say for the petitioner that all the nominations of the third respondent should be invalidated. The first set of nomination papers which had been filed by the third respondent would bs valid and would still be available for the third respondent to contest. Those nomination papers would enable the third respondent to contest the elections. This argument therefore cannot be of much use to the petitioner. In fact the assumption of this argument is not correct. Although sub-rule (3)of rule 4 read in isolation appears to say that not more than one nomination paper can bs filed for contesting one seat. Sub-rule (5) of rule 4 clearly expressly shows the possibility for filing more than one set of nomination papers for contesting one seat. Rule 4 (5) reads thus: the rejection of a nomination paper of any candidate on the ground of any irregularity in respect there of shan not affect the validity of the nomination of the candidate if the candidate has been duly nominated by means Of another nomination paper in respect of which no irregularity has been commit ted. The language of sub-rule (5) of rule 4 clearly shows that the above mentioned conduct of Election Rules contemplate the filing of more than one set of nomination papers. Out of this plurality some may be declared and others invalid. If sub-rule (3) is given its apparent meaning it would amount to attributing to the rule-maker a virtually contradictory intention of forbidding the filing of more than one nomination paper under sub-rule (3) and permitting the filing of more than one nomination paper under sub-rule (5). As such an incongrous reading cannot be made of a statute it must be held that sub. rule (3) intended to be subordinated to sub-rule (5) and filing of more than one nomination paper is a permissible thing to do. It therefore follows that there is no illegality or irregularity in the third respondent filing more than one set of nomination papers. In fact the filing of more than one set of nomina. tion papers is wholly desirable in an area of law baset with pitfalls of too many technicalities. But Sri Sivarama Sastry says that under rule 6 the third respondent a should not have made more than one deposit. In support of his contention he relies upon the languages of rule 6 (1) of the election rules which reads thus:-at or before the time of presentation of his nomination paper or papers each candidate wishing to stand for election to a gram panchayat shall deposit or cause to be deposited with the election officer in cash a sum ofrupees ten for the office of member and rupees thirty for the office of Sarpanch. . . . . . A separate deposit shall be required in respect of each ward for which the candidate wishes to stand. I do not find that this rule really supports the contention of Sri Sivarama Sastry. It only enables a candidate to pay the one deposit provided that the presentation of all the nomination papers synchronises in one point of time. The language at or before the time of presentation of his nomination paper or papers appears to be rather significant. This language says that a candidate who presents more than one set of nomination papers at one point of time need make only one deposit while a candidate who presents more than one set of nomination papers on different dates he has to make separate deposits. Under that interpretation I do not find anything wrong with the third respondent making two deposits with respect to his two nominations. But even otherwise the deposit which has been made by the third respondent a second time would have no vitiating effect on the first deposit accompanying the first nomination. At the worst it can only be a superfluous act on the part of t. he third respondent yet incapable of making the first nomination and the deposit invalid. For this reason the first point urged by Sri Sivarama Sastry should be rejected.(5) THE next and more important point urged by Sri Sivarama Sastry is that on 19th May 1981 the third respondent has been shown by the election officer to have withdrawn from the contest and thereafter he should not have been allowed to contest in the elections for the office of Sarpanch. Sri Sivarama Sastry relied upon the list of withdrawals of nominations published by the election officer in Telugu. It shows the name of the third respondent at serial NO. 8 as having with drawn this nomination on 19th May 1981. On the same day the election officer has shown the third respondents name at serial NO. 3 among the list of valid nominations. The argument of Sri Sivarama Sastry is that a contesting candidate can only withdraw from election contest and not his nomination and that when once the third respondent has withdrawn his nomination he should have been taken to have withdrawn from the contest. Exhibit R. 8 marked by consent shows that the third respondent had withdrawn his nomination. The Election authority had shown this withdrawal in Exhibit R. 8. But on the same day he had shown the third respondent again in the list of valid nominations marked by conset as Exhibit R. 9. This sri Sastry says it wrong. For support of this argument. Sri Sivarama Sastry relies upon the language of rule 10 (1) which runs as follows : on the expiry of two days from the scrutiny of nominations or if any appeal or appeals have been preferred under sub-rule (2) of rule 9 on the expiry of five days from such scrutiny the election officer shall in the lelugu language prepare a list in Form IV of persons whose nominations have not been rejected and who have not withdrawn their candidature and publish it on the notice board of the office of the gram panchay at and if it has no office in any conspicuous place in the gram panchayat at least three days before the date fixed for the election. the argument of the learned counsel is that under rule 10 (1) what can be with drawn is only the candidature and therefore what has been withdrawn by the third respondent under rule 8 should be construed as withdrawnal of his candi dature only. A reading of the election petition particularly para. 4 where this question has been dealt with does not show me that the election petitioner has alleged at all that the third respondent had with drawn his candidature. All that has been said in para 4 of the election petition is. Subsequently on 19th May 1981 the date fixed for withdrawal several sons withdrew their nominations by that date and the third respondent namely Ja malapuram Venkata Rishnarao also withdrew his nomination and also withdrew the deposit amount of Rs. 50 made by him. the above does not amount to saying that the third respondent had withdrawn his candidature. I therefore hold that there isnofactual basis laid in the election petition for the contention of Sri Sivarama sastry that on 19th May 1981 the third respondent had withdrew his Candida ture. Secondly what the third respondent actually done on that day was only to withdraw one of his twonominations and not his candidature. I assume that the rules do not contemplate with drawals of nomination and that they only envisage withdrawal of candidature. But i still thin kit would not be possible to sustain the argument of Sti Sivaramasastry that the third respondent had withdrawn his candidature on 19th May 1981. It is true as Sri Sivarama Sastry has said that the abovementioned election rules do not contemplate the withdrawal of nomination after scrutiny of nominations was over and thereafter a candidate can only withdraw his candidature. Although that legal position is unassailable the third respondent who has in fact withdrawn only one of his two nominations cannot beheld to have with drawnhiscandidature. Here is an instance where law is not a fact But an idea andthe act of withdrawal does not conform to the legal idea. Such an act can only commit suicide not murder. Therefore from those circumstances alone it cannot be inferred that the third respondent has withdrawn from the contest itself. A mans right to contest an election cannot be denied by reading such implication intoanact neither authorised nor contemplated by law. This argument should also be rejected. (6) IN Jagan Nath v. Jaswant Singh mahajan J. has said it is a sound principle of natural justice that the success of a candidate has won at an election should not be lightly interfered with. . . . . . In this case there are no reasons what soever for setting aside the election of the third respondent as the Sarpanch of yerrupalem Gram Panchayat. The writ petition is accordingly dismissed with costs. Advocates fee Rs. 200. 00. (7) I mention that the judgment under review written by the District munsif is wholly unsatisfactory. This order may be kept in his file. Writ petition dismissed.