IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 1229 of 2007 RAM NARAIN V/S GOVERDHAN SINGH & ANR. Mr. MC BHOOT, for the appellant / petitioner Mr. SAJJAN SINGH, for the respondent Date of Order : 2nd May, 2007 HON'BLE SHRI N P GUPTA,J. REPORTABLE ORDER ----- The petitioner in this petition is a returned candidate, whose election has been set aside by the impugned order Ex.-9, dt. 27.1.2007. The case of the petitioner, as pleaded in the writ petition is, that for the election of Sarpanch and Panch of the Gram Panchayat Palana, election programme was declared, and according to programme, 3.2.2005 was fixed for filing nomination form, scrutiny, and time for withdrawal of the nomination paper, and election was to be held on 4.2.2005. According to the petitioner, in all 10 nomination papers were filed for the office of Sarpanch, and out of them only 9 were found to be valid, and a list thereof was published on the notice board, and four of them presented withdrawal, which included the respondent no. 1, hereafter referred to as the “election petitioner”. The elections took place between five persons only, and the petitioner was duly elected. It is alleged, that election petitioner filed an election petition, on the ground, that he did not submit any notice for withdrawal, and signatures on the withdrawal notice are forged one, and as such the election has been materially affected. A copy of the election petition has been filed as Ex.1. The petitioner contested the election petition, contending that election petitioner himself submitted notice for withdrawal, and he has himself filed notice for withdrawal, and copy of the notice is filed as Ex.-2. Then, it is pleaded that the election petition filed by the election petitioner is not maintainable. During trial the election petitioner examined himself as A.W.1, and also examined Jai Narain A.W.2, then the petitioner examined himself as N.A.W.1, and also examined Sukhdev N.A.W.2, Kishna Ram as N.A.W.3, and Ram Chandra as N.A.W.4. Then, the case of the petitioner is, that issues framed by the learned trial court are not in accordance with law, and election petition was liable to be rejected under O. 7 Rule 11. However, the same has been accepted vide Ex.-9. It is pleaded that election has been set aside against the provisions of Article 243-O(b) of the constitution, without any authority of law. With these pleadings the impugned order has been challenged, interalia on the ground, that the election has been set aside without looking into the provisions of Rule 80 of the Rajasthan Panchayati Raj 2 (Election) Rules, 1994, hereafter referred to as the Rules, and without framing any issue in terms of Rule 80. The other ground taken is, that the learned trial court has not considered and referred the provisions of Rule 80 and Rule 28, and decided the matter as if it is a civil suit. Then, it is contended that the election petition does not disclose any cause of action, and in the alternative it is pleaded, that while deciding issue no. 1 the learned trial court failed to appreciate, that there is no provision where-under the Returning Officer was required to make any endorsement on the withdrawal notice, and there is no particular form of notice prescribed for withdrawal notice. All that is required is, that the person withdrawing shall give a notice to the effect, that the petitioner has proved that the notice of withdrawal Ex.-10 has been produced by the election petitioner. Then, another ground raised is that the second part of the issue no. 1, regarding material effect on the election, is, on its face, illegal, as the issue has been framed without even looking to the provisions of Rule 80, and relevant provisions of the rules. It is also contended that no material facts have been pleaded in the election petition, about material affect on the election, nor there is an iota of evidence on that point, nor is there any consideration to that effect in the judgment. Interalia with these averments the impugned order Ex. 9 is prayed to be quashed. 3 Election petitioner appeared as caveator, who submitted his reply on 14.3.2007, contesting the writ petition. In the reply certain preliminary objections have been raised. One of the preliminary objection raised is, that the petitioner has not tried to assail the finding of the learned Tribunal, and has mainly relied upon Rule 28 and 80 of the Rules, contending, that there is no non- compliance thereof, and in view of the fact, that the findings of the learned Tribunal have not been challenged in appropriate manner, the petitioner is not entitled to any relief. Various other preliminary objections have been raised, but they are, in substance, pleading on merits, therefore, I need not dilate much on that. Then, giving parawise reply, it was contended that it is wrong to contend that four persons had withdrawn their nominations including election petitioner, rather the election petitioner had never withdrawn the nomination paper in any manner, and that the petitioner has been illegally and unconstitutionally elected for the post of Sarpanch. It is also alleged, that since the election petitioner came to know of the episode, he immediately filed an application to the District Election Officer on 4.2.2005 itself, copy whereof has been produced as Ex.7 on the record of the learned Tribunal, and as Annexure R 1/6 in this petition. Then, it is contended that the election petitioner has proved his pleading, as well as four documents, while the petitioner has failed to prove that the petitioner had 4 withdrawn his candidature, rather there is apparent contradiction in the statement of petitioner, and evidence has been rightly appreciated by the learned trial court. It was denied that the election petition does not disclose any cause of action, or that it does not disclose any of the grounds specified in Rule 80, rather the issue has rightly been framed, and rightly decided. It is contended that both the parties were alive to the controversy, existing between the parties, and had gone to trial with full consciousness, and at no point of time any grievance was raised by the petitioner with regard to framing of the issue, or with regard to the election petition to be liable to be dismissed under O. 7 Rule 11. It was also alleged that from Ex.11 and 12, available on the record of the trial court, and produced collectively as Annexure R 1/7, it is clear that there has been patent non compliance of Rule 28. Then, it is pleaded that it is incorrectly alleged, that endorsement of presentation is not required on the notice of withdrawal, rather delivery thereof is very material aspect under Rule 28, and that the election petitioner has clearly proved, by proving on record of the learned trial court, the documents Ex. 11, 12, 5 and 10, and that the petitioner had never withdrawn, and that the Returning Officer proceeded in wholly illegal manner, to deprive the petitioner from availing the statutory right of contesting the election. It was denied that the election petition is lacking in any material particular, or that there is no 5 evidence, rather the judgment of the learned trial court is based on proper appreciation of evidence, and does not require any interference. Interalia with these pleadings, it was prayed that the writ petition be dismissed. When the matter came up on 15.3.2007, the record of the learned trial court was ordered to be requisitioned, and the same has also been received. Thereafter the matter was heard for quite a long time. Arguing the writ petition, the election petition was read, and it was argued, that according to election petition, the election petitioner did not withdraw, and somebody-else forged the signature, and produced it, and that, even in para-5 and 6 of the election petition, it is not pleaded that this document was not produced by the election petitioner. Then, issue no. 1 was read, and the provision of Rule 80(d) was read, and it was sought to be contended, that the learned trial court should find violation, or non-compliance of any particular rule, which is not the finding. Then, the finding of the learned trial court, regarding withdrawal notice having been published on the notice board, is sought to be assailed on the ground, that the learned trial court erred in expecting the petitioner to examine the Returning Officer, rather it is within the jurisdiction of the learned trial court itself, and rather the learned trial court is expected, to examine 6 the Returning Officer, by itself. Then argument in this regard was, that the learned trial court was in error in concluding non-publication of the withdrawal notice, as in that event there should have been six candidates, instead of five. Then, reading paras 18, 16 and 19 of the learned trial court it was contended, that there is no finding about the election of the petitioner having been materially affected by the alleged non compliance of any rules, as it was submitted, that if the withdrawal notice has been given, and even if there are some deficiencies here or there, it does not matter at all, rather what is required to be seen is, as to whether withdrawal notice was given or not. Then, statement of Sukhdev and Ramchander were pressed into service, by contending, that they are the eye-witness of the election petitioner personally delivering the withdrawal notice to the Returning Officer, and that, it is not relevant, as to whether the Returning Officer's signature are there or not, on the withdrawal notice. Learned counsel for the petitioner relied upon the judgment of Allahabad High Court, in Sri Ram Autar Vs. Kr. Satyabir reported in AIR 1978 Allahabad-201, and of Punjab & Haryana High Court, in Santokh Singh Vs. Mohan Singh reported in AIR 1994 P & H -258. On the other hand, learned counsel for the election petitioner read the provisions of Rule 80, and para 6, 7 and 8 of the election petition, and pressed into 7 service the provisions of Rule 80(c) and (d)(iv), and contended, that it amounts to improper rejection of the election petitioner's nomination, and that, there has been patent non compliance of the provisions of Rule 28 of the Rules, and that a wholly forged document was prepared, purported to be withdrawal notice, and that was notice by somebody other than the election petitioner. This amounts to rejecting the election petitioner's nomination in the garb of withdrawal, and that withdrawal was not published on the notice board. Then, it is contended that the alleged eye witness also did not depose about election petitioner having himself produced, or presented personally, the alleged withdrawal notice. Then, regarding absence of pleading about election having been materially affected, it was pleaded, that no such objection has been raised in the reply to the election petition, nor has it been the plea that the grounds of challenge to election, as pleaded in the election petition, are not available to the election petitioner, inasmuch as the original Ex.11 and 12 are both available in the file, as were produced by obtaining certified copy, before the learned trial court. Learned counsel for the respondent placed reliance on the three judgments of Hon'ble the Supreme Court, as relied by the learned trial court in para-19 of its judgment, being that in Somnath Rath Vs. Arukh reported in AIR 1999 SC-3417, Ms. Krishna Mohini Vs. Mohinder Nath reported AIR 2000 SC-317, and Pradyut Bordoloi Vs. Swapan Roy reported in AIR 2001 8 SC-296. I have considered the submissions and have gone through the record and have also gone through the judgments cited at the bar. Before proceeding further I may gainfully reproduce the provisions of Rule 28 and Rule 80 of the Rules which reads as under:- “Rule 28. Withdrawal from candidature.-(1) Any candidate [may] withdraw his candidature by notice in writing in duplicate signed by him or bearing his thumb impression and delivered in person to the Returning officer on the date and by the hour appointed under sub-clause (c) of Clause (ii) of Sub-rule (1) of Rule 23. (2) No notice of withdrawal shall be entertained after the day and hour referred to in sub-rule (1). (3) A candidate who has withdrawn his candidature shall not be allowed to cancel the notice of withdrawal. (4) The Returning Officer shall, on receiving a notice of withdrawal under Sub-rule (1), cause, as soon as may be, one copy thereof to be exhibited at some conspicuous place at the office of the Panchayat or in any conspicuous place at the headquarters of the Panchayat where no Panchayat office is established.” “Rule 80. Manner of challenging an election under the Act.-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- 9 (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)by the improper acceptance of any nomination, or (ii)by any corrupt practice committed in the interest of the candidate by a person other than that candidate or by a person acting with the consent or connivance of such candidate, or (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 of some other candidate received a majority of the valid votes, or (f) that but for votes obtained by the returned candidate by corrupt practices, the petitioner or some other candidate would have obtained a majority of the valid votes.” Thus a look at the above provisions of the rules does show, that according to Rule 28(1), what is significant is, that the withdrawal notice is to be in writing, in duplicate, which is to be signed by the candidate or should bear his thumb impression, and delivered in person, to the Returning Officer on the date 10 and by the hour appointed under sub-clause (c) of Clause (ii) of Sub-rule (1) of Rule 23, and that, according to sub-rule (4) one copy thereof is to be exhibited at some conspicuous place at the office of the Panchayat, or in any conspicuous place at the headquarters of the Panchayat where no Panchayat Office is established. While according to Rule 80, for the present purpose, the election has been set aside on the ground mentioned in clause (c), being that any nomination was improperly rejected, so also, the clause (d)(iv), being that non-compliance with the provisions of the Act or of the rules, the result of election, in so far as it concerned the returned candidate, was materially affected. With this I may come to the pleading of the parties. According to the pleadings of the election petition, the election petitioner never withdrew his name, nor he was to withdraw it, rather after the time of withdrawal was over he was to be allotted election symbol, by which time his physical presence was not necessary, and therefore, he left for campaigning. Then, in para-6 it is alleged, that after the time for withdrawal was over the Returning Officer published a list of contesting candidates, which did not include the name of election petitioner, despite his name having not been withdrawn, nor his having presented any withdrawal notice to the Returning Officer, nor the alleged withdrawal notice bears the 11 signature of the election petitioner, nor does it bear the signatures of Returning Officer. Rather all this has been alleged to have been done by the contesting candidates, or by the associates of the contesting candidates, with the conspiracy, and connivance of the Returning Officer, by forging a document, purporting to be withdrawal notice, which has been shown to be presented to the Returning Officer. It was also pleaded that the alleged withdrawal notice is, for withdrawal of the candidature from the office of Panch, and in the body thereof it has been added as withdrawing from the office of Sarpanch. Then, in para-7 it is pleaded, that on coming to know of his being illegally excluded from contesting the election, the petitioner contacted the Returning Officer, with no good. Then, on 4.2.2005 itself he submitted a complaint to the Collector, Chief Election Commissioner, Panchayati Raj Minister and Human Rights Commission, but no action was taken, and the election was got conducted, which is required to be set aside. Then, in para-8 it is pleaded, that by this fraudulent action, and conspiracy, and collusion of the candidates with the Returning Officer, the election has been materially affected, and is therefore liable to be set aside. In the reply, while denying the pleading it was pleaded, that the notice of withdrawal submitted by the petitioner is available on the record of the Returning 12 Officer, and therefore, the Returning Officer did not include his name in the list of candidates. It was pleaded that the petitioner has deliberately chosen to acquire colours. It was pleaded that no candidate can go for campaigning without getting allotted the election symbol. Thus, the pleadings are ex-facie unreliable. Then, it is pleaded that the name of the election petitioner was not rightly included in the list of candidates. While replying para-6 it was pleaded, that the election petitioner himself delivered withdrawal notice, bearing his own signatures, to the Returning Officer, which is available on record, and thus, he had withdrawn from the candidature. Then, replying para-7, denying the election petitioner's pleading, it was pleaded that the pleadings have been taken to give colours to the election petition, and allegation about sending complaints on 4.2.2005, was denied for want of knowledge. Then, the pleadings contained in para-8 were also denied. Then, in additional pleas it was maintained, that the election petitioner had withdrawn his candidature, the withdrawal form is available on record, and that he did not appoint any election agent, and that all the contesting candidates have not been impleaded as party, therefore, the election petition is bad for non-joinder of parties. Thus, the main controversy joined issue between the parties was, as to whether the election petitioner had withdrawn his candidature or not, and in this regard, as to 13 whether the withdrawal form is forged one, and as to whether it was presented by the election petitioner himself or not. The learned trial court in this regard framed three issues. The first issue was as to whether as pleaded in para 5 and 6 of the election petition, the election petitioner did not withdraw his candidature nor did he deliver the withdrawal notice to the Returning Officer, and that the alleged withdrawal notice presented on behalf of election petitioner bears his forged signatures, and that the entire action has been taken fraudulently, and in collusion, and thus has materially affected the election. It appears that subsequently an additional issue was also framed on 27.7.2006, as issue no. 2-A, being, as to whether since the petitioner was not in the contesting candidates, the election has not been materially affected, and if so what is its effect on election petition. The learned trial court deciding issue no. 1 has considered the material on record, and the evidence of the parties in a great detail, and also exercised powers under Section 73 of the Evidence Act, and it has compared the purported signatures of the election petitioner on the withdrawal form with signatures available on nomination form, which was also available on record as Ex.-1, the election petition, its affidavit etc., and found, that the 14 signatures appearing on the withdrawal notice are not of the election petitioner, and also found, that the withdrawal notice was not published on the notice board, as required by Rule 28(4). Likewise it was found, that the election petitioner had presented the withdrawal notice himself. Interalia with these findings the impugned judgment has been passed. I find on record that on 21.2.2006 the election petitioner filed an application under O. 7 Rule 14 C.P.C. seeking to produce both the copies of the withdrawal notice, being certified copies. Then, I also find that on 24.7.2006 the petitioner filed an application under O. 14 Rule 5, praying for framing of additional issue, and that application was allowed as noticed above. Then, after framing of the additional issue on 27.7.2006, the petitioner sought opportunity to produce evidence to prove additional issue, which was declined by the learned trial court, against which a writ petition was filed before this Court, being Civil Writ No. 4404/2006, therein on 18.10.2006 an order was passed, directing the learned trial court to take evidence on that issue only, only of those witnesses who have already been examined. With these observations the writ petition was disposed. Purportedly making use of this order, the petitioner re-examined his witnesses N.A.W.2 Sukhdev on 14.12.2006, who has deposed about the election petitioner withdrawing candidature by 15 himself presenting the withdrawal notice to the Returning Officer, and to have signed it at four places in his presence. However, in cross-examination he has admitted, that he did not see the withdrawal notice fixed on the board, and that, on the notice board a list of withdrawal forms etc. were not noticed. In other words this witness has not deposed anything about the additionally framed issue being issue no. 2A, and since this Court had expressly directed the learned trial court to take evidence on newly framed issue only, and that also of only those witnesses who had already been examined. In that view of the matter, to say the least, the subsequent statement of Sukhdev, N.A.W.2, recorded on 14.12.2006, is simply required to be excluded from consideration. Before proceeding further I feel constrained to observe, that as appears from the record, including pleading, evidence, and the statements made before the learned trial court, that the parties had gone to trial ad idem to the effect, that the election is challenged on the ground that the election petitioner did not withdraw from the candidature, the purported withdrawal forms were forged, and were not produced by the election petitioner, while on the other hand, the election was sought to be defended on the ground, that the election petitioner himself had presented the withdrawal notice. And thus the only controversy was as to whether the election petitioner 16 had not withdrawn his candidature or had withdrawn it. All other grounds, and aspects, have been raised only before this Court. Be that as it may. Now before proceeding further to discuss the evidence of the parties, and material on record, I may better discuss and consider the judgments cited at the Bar. Sri Ram Autar's case was cited for the purpose of contending, that in order to succeed in election petition, the election petitioner is required to establish, as a fact, that election of the returned candidate was materially affected by non-compliance with the provisions of Act, and burden to prove this is on the election petitioner. As an abstract legal proposition there is no dispute. However, on facts a look at the judgment shows, that in that case two candidates filed their nomination, purporting to be the candidates of Janata Party, and one candidate could not seek authorisation from the party, while the other could. Accordingly the person who could seek authorisation in time was allotted the party symbol of Haldhar in circle,