Fateh Chand vs Ajit Ram Darshi and Another

D.K. Mahajan, J.—This is a petition under Article 226 of the Constitution of India and is directed against the order of the Presiding Officer Ajit Ram Darshi, Magistrate, 1st Class, Kulu, who refused to set aside the election of Moti Ram, Sarpanch, in an election petition filed by Fateh Chand.

The election of Gram Sabha Barshaini, Tehsil and District Kulu was to be held on 8th of January 1964. Fateh Chand and Moti Ram contested the election. Moti Ram was declared elected Sarpanch with a margin of two votes. An election petition was filed by Fateh Chand under the provision of the Gram Panchayat Act 1952 as amended by Gram Panchayat (Amendment) Act 26 of 1962 challenging the election of Moti Ram as Sarpanch. The principal ground raised in the election petition was that the copies of the electoral rolls did not contain the names of the voters from serial Nos. 702 to 770 and at No. 1686, in all 70 persons, and that when these persons went to cast their votes on the day of election they were not allowed to do so by the Presiding Officer. The second attack was that the voters were made to wait till 4 P. M. and were not allowed to cast their votes by the Presiding Officer.

The Tribunal has considered both these allegations and has come to the conclusion that none of the voters at serial Nos. 702 to 770 came to vote at the election or that their votes were illegally rejected. According to the Presiding Officer, only those persons could be permitted to vote whose names figured in the voters'' list With regard to the other matter, i.e., that the voters were kept on waiting fill 4 P. M. and were not allowed to cast their votes the Presiding Officer has stated that the polling started at 8 A.M. and continued up-till 4 P.M. The Tribunal has found that no persons who were entered in the voters'' list were prevented from voting. It has also been found as a fact that the voters at serial Nos. 702 to 770 were not present at the polling station and out or these only voters at serial Nos. 702, 709, 731, 744, 745, 751, 755 760 and 761 are recorded in the correction slip. The other voters from serial Nos. 702 to 770 do not find mention in the voters'' list There is no evidence on the record that any person whose name has been entered in the voters'' list was stopped from voting.

Mr. Sarin, the learned counsel for the petitioner contends that the voters'' lists are illegal because the names of these voters at serial Nos. 702 to 770 were not recorded in the said list, and therefore, they were prevented from voting and in support of his contention the learned counsel relies on Vinod Kumar and Another Vs. Suresh Pal, and Tirlok Chander Sharma v. State of Punjab ILR (1965) P &h 174. Both these cases relate to illegal and invalid preparation of the list. In the first case the list was held to be illegal because its preparation offended the provisions of Section 18 of the Representation of People Act. In the second case the list was held to be illegal because the delimitation of the wards had not been legally made. Not a single case has been cited where a person who was entitled to vote was not entered in the voters'' list and on that account the voters'' list was held to be illegal.

It is well known that in all voters'' list often persons who are entitled to vote are omitted but never has such an omission been held to be a ground for holding the voters'' list to be illegal. In this view of the matter no case has been made out for interference under Article 226 of the Constitution of India. Their Lordships of the Supreme Court in Syed Yakoob Vs. K.S. Radhakrishnan and Others, have held that the High Court while dealing with a matter under Article 226 of the Constitution does not exercise an appellate jurisdiction. It merely corrects errors of law apparent on the face of the record. It cannot correct an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal a writ of certiorari can only be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari.

It will be apparent from the aforesaid observations that the only ground upon which a High Court can interfere with finding of fact is where the finding of fact has been arrived at without evidence or on illegal admission or Illegal rejection of evidence On no other ground can the High Court interfere with a finding of fact. In the present case there is a clear finding of fact given by the Tribunal that, voters at serial Nos. 702 to 770 were not present at the polling station and the evidence led to prove that these voters were present and were not permitted to vote has been disbelieved. This was the only matter that has been agitated before me. The argument purely rests on this that on the evidence on the record the finding is not justified. As already pointed out, that is a matter which rests purely within the jurisdiction of the Subordinate Tribunal and the findings by subordinate Tribunal on questions of fact even though erroneous are binding on me as much as a correct finding.

For the reasons recorded above, I see no force in this petition. The same fails and is dismissed. There will be no order as to costs.