Allahabad High Court
Hari Om S/O Sri Upendra Nath Tripathi vs Hakim Singh S/O Late Sri Jugraj Singh on 24 September, 2007
Equivalent citations: 2007(4)AWC4185, AIR 2008 (NOC) 455 (ALL.), 2008 (1) ALJ 158
Author: Pankaj Mithal
Bench: Pankaj Mithal
JUDGMENT Pankaj Mithal, J.
1. This is an appeal under Rule 49(1) of the U.P. Kshettra Samities (Election of Prakukhs and Up-Prarnukhs and Settlement of Election Disputes) Rules, 1962 (for short, the Rules) framed under the U.P. Kshettra Samities Zila Parishads Adhiniyam, 1961 (for short, the Act)
2. The election to the post of Pramukh of Kshettra Panchayat, Rajpur, Tehsil Sikndra, District Kanpur Dehat were notified and were held in the month of February 2006.
3. In the said elections, only three nominations for the post of Pramukh were received. One of the candidates withdrew his nomination. Therefore, the appellant Hari Om and the respondent Hakim Singh alone remained in the frey.
4. The polling took place on 27.2.2006. There were only 55 voters and all of them voted.
5. The counting also took place on the same evening. Of the 55 votes cast, one ballot paper was rejected as invalid by the returning officer. Therefore, only 54 ballot papers remained for counting. Out of the 54 valid votes both the candidates polled 27 votes each and as such there was a tie. On account of tie lottery was drawn in accordance with clause of schedule II of the Rules. On the basis of the lottery the returning officer declared Hari Om, appellant as the successful candidate.
6. On the declaration of the result respondent Hakim Singh who lost despite having polled equal number of votes, filed an election petition No. 2 of 2006 under Rule 35 of the Rules challenging the election of the appellant on the ground that four more ballot papers were invalid and were liable to be rejected. The non rejection of the said four invalid ballot papers has materially affected the result of the election.
7. The election petition was duly contested by the appellant by filing a written statement and it was contended that the alleged four ballot papers were not invalid and have rightly not been rejected by the returning officer under the rules. Thus, there is no illegality in the declaration of the result.
8. The court below vide judgment and order dated 25.5.200. allowed the election petition. It held that the alleged four ballot papers were invalid and were wrongly counted. On exclusion of the alleged four ball A papers the valid votes polled by the respondent would be 26 and that polled by the appellant would come to 24 votes. Therefore, the election of the appellant as Pramukh was set aside and the respondent was declared elected in his place.
9. Thus, aggrieved by the judgment and order of the court below setting aside the election of the appellant and declaring the respondent as duly elected, the appellant has approached this Court by means of this appeal.
10. The appeal was not allotted a regular number on account of the fact that the appellant had not filed the certified copy of the decree. Under the amended provisions of Order 41 Rule 1 C.P.C., the memorandum of the appeal is only required to be accompanied by a certified copy of the judgment appealed against and there is no requirement for filing the certified copy of the decree.
11. Sri Navin Sinha Senior Advocate assisted by Sri K.R. Singh learned Counsel for the appellant submitted that in such cases no decree is actually drawn by the Court below and therefore, the report about the defect in presenting the appeal is incorrect. The said preposition is not disputed by the learned Counsel for the respondent. Accordingly the appeal is treated as properly presented and the office is directed to allot a regular number to it.
12. Learned Counsel for the both the parties agreed for the final disposal of the appeal at this stage only. Accordingly, I have heard Sri Navin Sinha Senior Advocate assisted by Sri K.R. Singh, learned Counsel for the appellant and Sri S.P. Singh, Senior Advocate assisted by Sri P.P. Chaudhari and R.B. Yadav, learned Counsel appearing for the respondents.
13. The only point for determination in the present appeal it as to whether the alleged four ballot papers were liable to be rejected as invalid or not as has been held by the court below.
14. To appreciate the above point for determination it would be proper to first consider the provisions of Rule 25 and 26 of the Rules. The said rules read as under:
25. Maintenance of secrecy of voting by election within polling station and voting procedure.- (1) ...
(2) Every member shall have as many preference as there are candidates but no ballot paper shall be considered invalid solely on the ground that all such preferences are not marked.
(3) The member on receiving the ballot paper shall forthwith-
(a) proceed to a polling compartment provided at the place of polling and screened from observations;
(b) place on the ballot paper the No. 1 in the space opposite the name of the candidate whom he chooses for his first preference;
(c) make as many subsequent preferences as he wishes by placing on the ballot paper the Nos. 2, 3, 4 and so on, in the space opposite the names of other candidates in order of preferences;
(d) fold the ballot paper so as to conceal his vote;
(e) insert the folded ballot paper into the ballot-box through the slit provided for the purpose; and
(f) then quit the place of polling.
(4) Every member shall vote without undue delay.
(5) ...
(6) ...
(7) ...
(8) ...
(9) ...
(10) ...
(11) ...
26. Procedure at the counting. (1) ...
(2) ...
(a) ...
(b) ...
(c) ...
(3) A ballot paper shall be rejected as invalid on which-
(a) the number 1 is not marked; or
(b) the number 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or
(c) the number 1 and some other numbers are marked opposite the name of the same candidate; or
(d) any mark is made by which the voter may afterwards be identified.
15. The plain reading of the provisions of the Rules indicate that a voter to the election of the post of Pramukh is entitled to cast his vote in order of preference. The preference has to be exercised by marking No. 1 in the space, opposite the name of the candidate whom he chooses for his first preference and by marking No. 2, 3 and 4 in the space, opposite the name of other candidates in order of his preference. The Rules place no restriction in marking preference even where the number of candidates are only two in number. The Rules further provides or the grounds on which the ballot paper can be rejected.
16. The Apex Court in the case of Jyoti Basu and Ors. v. Debi Ghosal and Ors. has held that a right to elect is fundamental to democracy but is a pure and simple statutory right. Therefore, an election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. The Single Judge of this Court in 1984 UPLBEC 211- Jagat Singh v. Dharam Pal Singh and Ors. following the above decision reiterated that an election petition is a purely statutory proceeding and is not an action or a suit in equity or common law. Therefore, the conclusion is inevitable that for rejecting the ballot papers as invalid only the grounds specified under the relevant previsions have to be considered and taken into account and no other, meaning thereby that a ballot paper can not be rejected for any other reason except for the reasons mentioned in the aforesaid Rules.
17. Sri Navin Sinha has contended that none of the four ballot papers which have been declared to be invalid by the court below could have been rejected on any of the grounds mentioned in the Rule 26 read with Rule 25 of the Rules.
18. I have perused the original ballot papers which were ordered to be produced before the Court. A perusal of the ballot papers reveals that out of the alleged four ballot papers in three of them the voters in addition to placing the mark T against the candidate of their first preference have also placed the mark 'II' against the name of other candidate for the purposes recording their second preference.
19. As discussed above Rule 25(2) provides and entitles the voter to vote in order of preference. Therefore, marking of the first and second preference on the ballot paper is perfectly justified. Rule 26(3) contains the grounds on which a ballot paper can be rejected as invalid. The said reasons are:
(i) No. 1 is not marked; or
(ii) No. 1 is marked opposite the name of more than one candidate or is marked so as to make it doubtful as to whom he has voted; or
(iii) No. 1 and some other numbers are marked opposite the name of the same candidate; or
(iv) any mark is made by which the voter may be identified.
20. Undisputedly, the aforesaid three ballot papers contain the mark 'I' against the name of only one candidate. The said mark of T has lot been placed before the name of any other candidate. There is no other number or mark against the name of the said candidate. The said marking of No. 'I' does not make it doubtful as to whom the said voter has voted or has given his first preference. The ballot paper does not even contain any other mark by which the voter can be identified. Therefore, these three ballot papers do not attract any of the grounds enumerated above for the rejection of the ballot paper. Accordingly, the aforesaid three ballot papers cannot be rejected on any of the grounds in terms of the Sub-rule) (3) of the said Rule 26.
21. Sri S.P. Singh on behalf of the respondents has urged that as in the aforesaid three ballot papers the voter has also placed the mark 'I f for his second preference instead of placing No. "2". The said marking of No. 'lI' being contrary to Rule 26 (3) was enough to reject the said three ballot papers. I am unable to accept the above submission. Rule 26(3) of the Rules does not provide for rejecting the ballot papers on he ground of placing a different mark of 'II' instead of numerical '2' while casting the second preference vote. The marking of figure 'II' while casting a second preference vote in place of numerical No. '2' is not a ground for rejecting the ballot paper under the Rules.
22. On behalf of the respondents reliance has been placed upon Era Sezhiyan v. T.R. Balu and Ors., for the preposition that if a different procedure is followed in casting f vote other than provided under the rules, ballot paper is liable to be rejected. In the above case, the voter had used pen with green ink for casting the vote while the polling officer had provided a pen with blue ink for putting the mark on the ballot paper. The ballot paper was rejected as invalid on the ground of use of green ink, The rejection was held to be valid by the Supreme Court as the evidence proved that the polling officers had provided bail pen with blue ink in all the compartments for the purposes of polling and have specifically instructed the voters to use blue ink pen but even then a pen with green ink was used and as such it was held that use of green ink was to disclose the identity of the voter. However, the facts and circumstances of the present case are different as there is no evidence to indicate that the voters were told to mark their preference on the ballot papers by numerical No. 1, 2 and 3. There is no finding that the placement of mark 'I I' was with the intention to disclose the identity of the voter or that the voter had been identified on its basis. The use of mark 'II' by the voter therefore, did not render the ballot paper as invalid. Therefore, the court below manifestly erred in law in hold, ig that since the aforesaid three ballot papers bear the mark 'IT instead of numerical '2' the said ballot papers are invalid. Accordingly, the finding to this effect returned by the court below is against law, and is set aside.
23. Now coming to the 4th ballot paper it is alleged that he said ballot paper bears a thumb impression in between the name of two contesting candidates and the said mark of thumb is sufficient to identify the voter and as such was liable to be rejected on this ground.
24. I have scrutinized this 4th ballot paper also along with all other valid ballot papers. No doubt on this ballot paper between the names of two contesting candidates there is a faint thumb like impression but similar kind of impressions are also to be seen on few other ballot papers though very dim. There is no complaint against the other ballot papers. It may be noted that in the aforesaid election the voters were not provided with any ink pad to put a thumb impression. They were only required to mark 1, 2 and so on by ink pen while casting their vote of preference. Apparently the ink pad was used by the polling officer for the purpose of issuing ballot papers. Therefore, a ballot paper getting a thumb impression of this kind during the course of issuance or handling of the ballot papers by the polling officer cannot be ruled out. It cannot be said with any certainty that the alleged thumb impression on the aforesaid ballot paper is that of the voter only.
25. A perusal of the pleadings of the election petition reveals that a very bald and vague averments have been made with regard to this 4lh ballot paper which is alleged to be invalid. The pleadings only states that the voter in addition to putting the mark '1' while casting his first preference vote has also put a thumb impression as a mark of his identity. There are no pleadings that on the basis of the said thumb impression the voter was identifiable or was actually identified and/or in what manner he could be identified on its basis. The Apex Court had dealt with a similar controversy in the case of Km. Shradha Devi v. Krishna Chandra Pant and Ors. which has been relied upon by Sri Navin Sinha, learned Counsel for the appellant In the said case the Supreme Court was dealing with an election petition under the Representation of People Act, 1951 and the Conduct of Election Rules, 1961. Rule 73 (2) (d) of the aforesaid rules is paramateria with Rule 26(3)(d) of the present Rules under consideration. In that case the Supreme Court relied upon a passage from the Halsbury's Laws of England 4th Edn., Vol 15, para 634, which is extracted below:
634. Ballot Papers rejected for marks of identification -Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. The writing or mark must be such that the voter can be, and not merely might possibly be identified.
26. In view of the above, the Supreme Court held that the mark or writing which would invalidate the ballot paper must be SUCM as to unerringly point in the direction of identity of the voter, in the absence of such mark or writing the ballot paper cannot be rejected merely because there is some mark or writing on the basis of which the voter may possibly be identified. Thus, every mark or writing on the ballot paper would not result in invalidating the ballot paper. The mark or identification should be such as to unerringly reveal the identity of the voter and there must be evidence of prior arrangement in placing the mark with the intention of identification. In the aforesaid case the Supreme Court quoting from Woodward v. Sarsons (1874-75) LR 10 CP 733 further observed as under:
As a corollary it is provided that if there is any mark or writing on the ballot paper which enables the elector to be identified the ballot paper would be rejected as invalid. But the mark or writing must be such as would unerringly lead to the identity of the voter. Any mark of writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive nark or writing as to reveal the identity of the voter. In Wood-ward v. Sarsons (1874-75) LR 10 CP 733 interpreting an identical provision it was observed as under:
It is not every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the voter can be identified.
It would imply that there must be some casual connection between the mark and the identity of the voter that looking at one the other becomes revealed. Therefore, the mark or a writing itself must reasonably give indication of the voter's identity.
27. The legal position that emerges from above is that though free and fair election are the fountain source of democracy attempt should not be made by the returning officer or the Court to reject the ballot papers as easy course out on the slightest pretext without making a serious attempt to ascertain the intention of the voter to reveal his identity with sufficient clarity.
28. In the instant case there is neither any pleading or evidence to suggest that above mark of identification was placed with any prior arrangement with the intention to reveal the identity of the voter and at the same time there is no evidence or finding that the said impression of thumb on the ballot paper was actually that of the voter. There are no pleadings even to the effect that the voter had been identified or is identifiable on the basis of the above mark. In the absence of such a finding the court below certainly exceeded its jurisdiction in Holding the aforesaid four ballot papers as invalid.
29. In view of the above discussion, the appeal succeeds and the judgment and order of the Court below dated 25.5.2007 allowing the election petition No. 2 of 2006 (Hakim Singh v. Hari Om) and declaring the respondent as a successful candidate is set a side.
30. Appeal allowed. Parties to bear their own costs.