HIGH COURT OF CI-H-IATTISGARH AT BILASPUR S.B. HON’BLE SHRI DHIRENDRA MISHRA, J. WRIT PETITION {g NO. 589[2008 WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Narayan Prasad Kumbhkar, aged about 34 years, son of Ganesh Ram Kumbhkar, residnt of Vijlage Panthora, Via Hardi Bazar, Distt. anjgir—Cha (CG) PETITIONER 1. State of Chhattisgarh, through th Secretary Dpartment of Agiculture, Dau Kalyan Singh Bawan, Raipur (CG 2. The Chief Secretary, Department of Agriculture, Dau Kalyan Singh Bhawan, Raipur() 3. Collector and District Election Offlccr, Distt. Janjgir:Champa (CG) 4. The Sub Divisional omcer (Rem) and Returning omcer, Nalla Distt. Janjgir— Cha(CG)' 5. Secretary, Mandi Samiti—Najla, Distt. Janjgir—Ca (CG) 6. Bishun al Kashya, son of Late Shri kedar ath Kashyap, resden of village Pendri, *Tahsil Janjgir, Distt. Janjgir- Champa (CG) Present: Mr. Ashok Soni, counsel for the petitioner. Mr. Satish Gupta, Dy GA for the State. Mr. Yashwant Singh Thakr, counsel for respondent No.5. Mr. Raja Sanna, counsel for respondent No.6. ORDER (Passed on W July, 2008) Dhirendra Mishra, J The petitioner and the respondent No. 6 are members of Krishi Upaj Mandi Samiti, Naila, Distt. Janjgir—Champa (hereinafter referred to as Samiti). On 2.3.2006 first meeting of ’ g H ~xii v I l It 1 e Jamp Versus RESPONDENTS e e h ) CG amp hamp L p N it u h a: M V QF the Samiti was held and, in the said‘ meeting, el6ction of Vice President was also held. The petitioner and the respondent No. 6 contested the election and each of them secured six votes. To declare the result, the Returning Ohicer opted for lot system, in which the petitioner was declaled elected Vice President by draw of lot. 2. The respondent No. 6 moved an application before the Collector and the District Election Odicer/respondent No.3 and the Collector treating the above application as election petition, allowed the same and set aside the election of the petitioner vide order dated 20th March, 2006. 3. The petitioner filed a writ petition No. 1529/2006, which was allowed by this Court Vide order dated 4.4.2006 and the order dated 20th March, 2006 passed by the respondent No. 3 was quashed Vide Annexure P/3. Review petition of the respondent No. 6 i.e. M.C.C. No. 196/06 was also dismissed. The respondent No.6, thereafter, filed election petition on 1.7.2006 Vide Annexure P/4, which was allowed by the Prescribed Authority, State Govt/respondent No.1, Vide order dated 14. 1.2008 and election of the petitioner was set aside and respondent No.6 was declared \ elected as Vice President of the Samiti. 4. Learned counsel for the petitioner submitted that sub-rule (7), of Rule 84 of the CG Krishi Upaj Mandi (Mandi Samiti Ka Nirvachan), Niyam, 1997 (for brevity ‘the Rules, 1997’) casts a duty upon the President to put mark on the ballot paper as per instruction of such voter, who is not able to vote. In the instant l hi l l i v M. case, the votervin question is illiterate: an‘d unable to vote. He put his thumb impression on the ballot paper as per instructions of . the President in favour of the petitioner and therefore, the President rightly did not declare the vote of that voter invalid. In the instant case, the petitioner was declared elected Vice President on 2.3.2006 whereas the petition was filed on 1.7.2006 and thus, the election petition was barred by limitation. 5. On the other hand, leamed counsel for the State/respondents argued that sub—rule (9) of Rule 84 of the Rules, 1997 envisages that any ballot which contains the signature, shall be invalid. In theinstant case, one out of six voters, who voted in favour of the petitioner, had put his thumb (1) of Section 66A of the Krishi Upaj Mandi Adhiniyam, 1972 was amended and State Government was substituted in place of Commissioner of Division. Since the Rules, 1997 did not provide for election petition, by virtue of Rule 90 of the Rules, 1997, filing of the election petition would be governed by Rule 43 of the CG Krishi Upaj Mandi (Adhisuchna Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan} Niyam, 1974 (in short, Rules, 1974’). As per subwuie (2) of Rule 43 of the Ruies, 1974 the petition is to be filed within 14 days before the Collector from the date of notiiication of the election, and sub—rule (3} of Rule 43 prescribes security deposit of Rs.250/— with the election petition. '. In‘ the instant case, the election of the petitioner was notified on ,4/\\ {’L/ y, :/ / \\\ » 23.6.2006 after writ petition of the petitioner was allowed by the High Court, the election petition was filed before the State Govt. on lst July, 2007 well within limitation. Thus, there is no illegality or infirmity in the order impugned. 6. I have heard learned counsel for the parties and perused the material available on record as also the impugned order. 7. The only ground on which the election petition was filed by respondent No. 6 was that out of six voters, who voted in favour of the petitioner, one voter namely Mukund Da had put his thumb impression on the ballot paper instead of cross-mark in violation of sub-rule (9) of Rule 84 of the Rules, 1997. However, instead of rejecting the vote of Mukund Da, it was counted in favour of the petitioner. Before the election tribunal, the petitioner and the respondent No. 6 examined themselves and their witnesses, the ballot papers used in the election were also requisitioned and the same were opened in the presence of the parties after Mukund Da was examined as a witness of respondent No.6. From perusal of the ballot paper it was found that counterfoil of ballot No.10 issued to Mukund Da contained his thumb impression. The SDM Shri R. Ekka, who was Presiding Officer in the meeting held for the election of Vice President, was also examined and his statement was recorded, in which he has admitted that one voter had put his’thumb impression over the ballotpaper, hdwever, that vote was not declared invalid. Even the voter, whose ballot paper bore his thumb impression, has stated that the petitioner had objected to the validity of that vote, however, his objections were 7 ignored bythe election officer and on the basis of above evidence, the tribunal has held that one invalid vote in favour of the petitioner was counted as valid vote despite objections. Even from perusal of the record and pleadings of the respective parties, it is manifestly clear that notification of election of the petitioner was published on 23.6.2006 Whereas the election petition was filed on 1st July, 2007 i.e. well within limitation, one out of the six votes cast in favour of the petitioner, was invalid as the voter had put 4w his thumb impression on the ballot paper instead of marking cross and the same was wrongly counted as valid vote in favour of the petitioner. The tribunal, for the aforesaid reasons, reached the conclusion that after election, the petitioner secured five valid votes whereas the respondent No. 6 secured six valid votes and therefore, there was no cecasion for resorting to declaration of a result by lot as the respondent No. 6 was a clear winner. 8. In these circumstances, in the considered opinion ofthis Court, the finding recorded by the election tribunal is based on evidence, adduced by the respective parties, on record and the same is in accordance with law. There is no illegality, infirmity or jurisdictional error committed by the election tribunal warranting interference in exercise of jurisdiction under Article 227 of the a Constitution of India. Accordingly, the instant petition being without substance deserves to be dismissed and is hereby dismissed. sw— Dhirendra Mishrai‘: ,JI , ,d, r' um. ‘ Judge