[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1256 of 1997 DISTT.ELECTION OFFICER, P.S. BANSWARA V/S H.C. LOHAR & ORS Mr. K.L. Thakur, A.A.G., for the appellant / petitioner Nobody appears on behalf of respondents. Date of Order : 18.7.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed against the judgment of learned Single Judge dated 06.11.1997, dismissing the writ petition, and also directing, that the Chief Secretary shall examine, as to in what circumstances, the State Government had given sanction for filing writ petition, and the entire expenses incurred by the State Government shall be realized from the petitioner, and deducted from his salary, along with the cost already awarded. The order impugned, before the learned Single Judge, was that of the Civil Judge (Jr.Div.), Ghatol dated 08.08.1997, whereby the learned Civil Judge made strong observations and passed remarks against the appellant, and also imposed exemplary cost of Rs.25,000/-, to be paid personally, by him. [2] The controversy lies in a very narrow compass, inasmuch as, the elections for the post of Sarpanch of Panchayat Samiti, Ghatol were held in January 1995. The elections were challenged by way of Election Petition, by one of the defeated candidates from Ward No.20, and in that election petition, vide order dated 30.05.1997, the learned trial Court, allowed inspection of the ballot papers, and recounting of the votes, and the Election officer was directed to produce all the relevant and material documents, including the voter-list, ballot papers, and votes before the Court, within a fortnight from that date positively, failing compliance with the order, cost has been imposed in the preliminary decree, and a final decree to that effect was ordered to be drawn. Then, the Election Officer, appeared and informed that the ballot papers etc. have been destroyed in accordance with Rule 53 of the Rajasthan Panchayati Raj (Election) Rules 1994, and as a consequence thereof, the impugned order has been passed. A bare reading of the impugned order of the learned trial Court shows, that the learned trial Court did not consider the matter, objectively and dispassionately, rather it appears, that the learned officer has tried to identify himself with the litigation, and also appears to have taken proceedings, as a prestige point, even at the cost of ignoring clear provisions of law, which has culminated into passing of the impugned order. We may gainfully quote the provisions of Sec.53, which reads as under: [3] 53. Custody, production, inspection and destruction of election papers.- (1) all papers relating to elections shall remain in the custody of the District Election Officer (Panchayat). (2)The packet of used ballot papers whether valid, tendered or rejected, and the marked copies of the voters' lists shall not be opened and their contents shall not be inspected or produced except, under the orders of a Court of competent jurisdiction. (3)Subject to any direction to the contrary given by the Commission or by a competent court:- (a) packets of used ballot papers shall be retained for a period of six months and shall thereafter be destroyed in such manner as the Commission may direct; (b) the other packets or papers referred to in sub-rule (2) shall be retained for a period of one year and shall thereafter be destroyed: Provided that the packets containing the counterfoils of used ballot papers shall not be destroyed except with the previous approval of the Commission; (c) all other papers relating to the election shall be retained for such period as the Commission may direct. The relevant part of Rule 53 is comprised in sub- rule (3), which clearly provides, that subject to any directions, to the contrary, given by the Commission, or by the competent Court, the ballot papers are required to be retained for a period of six months, and are required to be destroyed thereafter, in the prescribed manner. As appears from the impugned order itself, that it was on 15.09.1995 only, that the election petitioner presented an application, requesting for the production of the election papers before the Court, copy of which application was [4] delivered to the present appellant's counsel, and it was casually agreed by the petitioner to retain and preserve the ballot papers, in the custody of the present appellant, under written orders of the Court. Accordingly, direction was given, vide order dated 20.09.1995, to retain and preserve the election papers, under custody of the appellant until further orders. Suffice it to say, that even by 15.09.1995, more than 6 months had already expired, and it neither appears nor has it been shown, that the order was passed mindful of the provisions of Rule 53. Obviously, if the papers had already been destroyed, in accordance with law, before passing of the order, such futile order, even if obtained by the learned counsel, or conveniently passed by learned trial Court, cannot have the effect of undoing the action, which had lawfully been taken, as mandatorily required by Rule 53. In that view of the matter, it was too much on the part of the learned trial Court, to assume, that the present appellant was required to remain in custody of the documents, simply because the election petition was sub- judice. Rule 53 does not contemplate provision, analogous to Sec.15 of the Hindu Marriage Act, which prohibits the spouses from contracting fresh marriage, till expiry of the period of limitation, or till decision of the appeal, if appeal is filed. Here, Rule 53 contemplates express order to the contrary, for preservation of the documents, and it is nobody's case, that any order to preserve the documents [5] was passed, before expiry of the six months, as provided in Rule 53. A bare reading of the order dated 08.08.1997 reveals, that simply the documents were required to be preserved, and since they were not preserved in compliance of the order dated 20.09.1995, it antagonized the learned Officer, and the order has been passed. To say the least, even without showering benevolence in favour of the appellant, we are constrained to set it aside. Resultantly, the appeal is allowed, and the impugned order 06.11.1997, so also the order dated 08.08.1997, passed by learned trial court, imposing cost, are quashed. (KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. jpa/