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Ramjilal Yadav v/s State

    Civil Writ Petition No. 760 of 2000

    Decided On, 29 February 2000

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE R.R. YADAV

    For the Petitioner: Rajendra Soni, Advocate. For the Respondent: -------------



Judgment Text

1. The petitioner has filed the present writ petition, questioning the vires of the provisions, contained under Rules 49, 51, 52 and 59(14) of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter called, "the Election Rules of 1994").

2. It is true that the petitioner has an effective alternative remedy by way of filing an election petition, as provided under Section 43 of Rajasthan Panchayati Raj Act read with Chapter XIII of the Election Rules of 1994. The basic question involved in the present writ petition, is that if the aforesaid rules are held to be ultra vires, then, of course, instead of invoking statutory provisions, contained under Section 43 of Rajasthan Panchayati Raj Act read with Chapter XIII of the Election Rules of 1994, by way of filing an election petition challenging the declaration of result before the Election Tribunal, the petitioner is entitled to file the present

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writ petition, whereas, if it is found that the aforesaid rules, are intra vires, then, the petitioner is not entitled to file the present writ petition but to seek his appropriate remedy by filing an election petition as envisaged under Section 43 of Rajasthan Panchayati Raj Act read with Chapter-XIII of the Election Rules of 1994.

3. The main thrust of the argument of learned counsel for the petitioner, Sri Rajendra Soni while challenging the vires of Rules 49, 51, 52 and 59(14), before me, is that since there is no provision for counting of "tendered ballot paper", therefore, the Election Rules of 1994, mentioned hereinabove, are to be held to be ultra vires. It is submitted by the learned counsel for the petitioner that in the present case, since there is no provision for counting of "tendered ballot paper", hence the Returning Officer refused to count three tendered votes and declared the result on equality of votes by drawing of lot which has materially affected the result of returned candidate. According to Sri Soni, if three tendered votes would have been counted, the result would have been otherwise.

4. The aforesaid argument raised by learned counsel for the petitioner, is not acceptable to me for the reason that under sub-rule (8) of Rule 49 of the Election Rules of 1994, it is clearly provided that every ballot paper which is not rejected under Rule 50 of the said Election Rules of 1994, shall be deemed to be valid and shall be counted as one valid vote. It is conceded by learned counsel for the petitioner that under Rule 50 of the Election Rules of 1994, there is no provision either for refusing to count the tendered vote(s) or reject such tendered vote(s) marked by a voter under Rule 44 of the said Rules. It is clearly provided under Rule 44(3) of Election Rules of 1994 that a tendered ballot paper shall be the same as the other ballot paper, used on the polling booth. Thus, the value of vote marked on a tendered ballot paper by a voter is the same as marked on other ballot paper, used at a polling booth.

5. It is easily deducible from perusal of Rules 44, 49 and 50 that a voter, who is allowed to mark his vote under Rule 44 of the said Rules, on a tendered ballot paper, is not liable to be rejected under Rule 50 and as such is to be counted under Rule 49(8) of the said Rules. In the present case, Returning Officer has no option except to count the tendered vote or votes marked by a voter or voters, as the case may be, on tendered ballot paper(s) under Rule 44 of the Election Rules of 1994.

6. A close scrutiny of Annexure-4 to the writ petition, reveals that the petitioner obtained 640 valid votes, and returned candidate, Ram Singh, respondent No. 9, also secured 640 valid votes. Since there was equality of valid votes between the petitioner and respondent No. 9, therefore, the election result was declared by drawing of lots, as contemplated under Rule-51 of Election Rules of 1994, which provides that in case of equality of votes, the result shall be declared by drawing of lot in the manner which the Returning Officer may think proper.

7. It is pertinent to observe here that three tendered votes are shown in Annexure-4 to the writ petition, in the column of rejected votes along with other 29 rejected votes, can be appropriately decided in an election petition along with propriety of declaration of result by drawing lot. Refusal of counting of tendered votes by Returning Officer and declaration of result by him by drawing lot both can be gone into in an election petition.

8. It is contended by learned counsel for the petitioner that if three tendered votes would have been counted after opening the sealed envelope, containing the tendered ballot papers, then, the result would have been declared in favour of petitioner. There is substance in the argument of the learned counsel for the petitioner which deserves to be investigated and tried in an election petition not in a writ petition, as the learned counsel for petitioner fails to demonstrate that Rules 49, 51, 52 and 59 (14) of the Election Rules of 1994 are ultra vires either to the Rajasthan Panchayati Raj Act or to the constitutional philosophy enshrined under Article 243 of the Constitution of India.

9. It is to be imbibed that Rule 80 of the Election Rules of 1994 clearly provides that an election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds :-

"(a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election, or

(b) that any corrupt practice was committed by a candidate or by any other person with the consent or connivance of the candidate, or

(c) that any nomination was improperly rejected, or

(d) that the result of the election in so far as it concerns the returned candidate was materially affected :-

(i) and (ii) . . . . . . . . . . . . . . . . .

(iii) by improper reception, refusal or rejection of any vote or the reception of any vote which was void, or

(iv) by any non-compliance with the provisions of the Act or of these rules, or

(e) that in fact the petitioner or some other candidate received a majority of the valid votes, or

(f) . . . . . . . . . . . . . . ."

10. The main grievances of the petitioner put forth in the present writ petition are that three tendered votes were not counted by the Returning Officer and he has illegally drawn the lots, treating the votes of both the petitioner and respondent No. 9 equal within the meaning of Rule 51 of the Election Rules of 1994, even without opening the sealed envelope, containing the "tendered ballot papers". It is submitted by the learned counsel for petitioner that if three tendered votes would have been counted by Returning Officer then petitioner would have received majority of valid votes and would have been declared elected and question of declaration of result on equality of votes between him and respondent No. 9, would have not arisen under Rules 51 read with Rule 59(14) of Election Rules 1994.

11. In my humble opinion, the averments made in the writ petition and submissions made by the learned counsel for petitioner before this Court fall within the ambit of the grounds enumerated under Rule 80 of Election Rules 1994 and these question can be raised by the petitioner by presenting an election petition before the District Judge having jurisdiction within thirty days from the date on which the result of his election was declared.

12. It is well to remember that Rules 49, 51, 52 and 59 (14) of the Election Rules, 1994 are framed by State Government in exercise of its powers conferred under Section 17(5) read with Section 102 of the Rajasthan Panchayati Raj Act, 1994. Nothing is brought to my notice which may lead to the conclusion that Election Rules, 1994 are beyond the rule-making power of the State Government. On the basis of averments made in the writ petition and submissions made by the learned counsel for petitioner Sri Soni, it is not possible to declare these Rules ultra vires. It is to be imbibed that there is presumption about the fact that these rules are intra vires unless it is shown to be beyond the rule-making power of the State Government. I have no hesitation to hold that Rules 49, 51, 52 and 59(4) of the Election Rules, 1994 are intra vires and an argument contrary to it with a prayer to declare these rules to be ultra vires are without substance and as such hereby repelled.

As a result of the aforementioned discussion, the instant writ petition is dismissed on ground of statutory alternative remedy available to the petitioner. In case, an election petition is filed by the petitioner, the Election Tribunal is directed to decide the same, expeditiously, on priority basis. It is made clear that the Election Tribunal, while deciding the election petition, will not be influenced with any of the observations made in the order passed today.

Petition Dismissed.
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