Himachal Pradesh High Court
Smt. Vimla Devi vs State Of Himachal Pradesh And Ors. on 24 March, 1999
Equivalent citations: AIR1999HP38
Author: Lokeshwar Singh Panta
Bench: D. Raju, Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. Petitioner, a candidate for the office of Pradhan, Gram Panchayat Nanj, Tehsil Karsog, District Mandi has filed this writ petition challenging the validity and correctness of the order dated 5-8-1998 of Deputy Commissioner, Mandi-cum-Appellate Authority in appeal file No. 15/97 by which, order of the S.D.O(C)-cum-Authorised Officer, Ghumarwin was set aside and petitioner's election petition challenging the election of respondent No. 4 was dismissed.
2. The petitioner and respondent No. 4 contested for the office of Pradhan, Gram Panchayat Nanj in the year 1995. The votes had to be counted on 18-12-1995. Respondent No. 4 secured 350 valid votes whereas the petitioner secured 349 valid votes and respondent No. 4 was declared as elected for the office of the Pradhan by the returning Officer. This declaration of respondent No. 4 as Pradhan was challenged by means of election petition under Section 161 of the Himachal Pradesh Panchayati Raj Act, 1994 read with Rule 94 of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (for brevity, hereinafter referred to as the 'Act' and 'Election Rules' respectively).
3. The S.D.O (C)-cum-Authorised Officer framed as many as 6 following issues :
1. Whether the respondent was not eligible to contest election? OPP.
2. Whether petitioner applied for re-counting the votes? OPP.
3. Whether invalid votes were counted in favour of respondent and its effect? OPP.
4. Whether the result was influenced?
5. Whether the respondent has been materially affected by the improper reception of any vote? OPP.
6. Relief.
4. The S.D.O(C)-cum-Authorised Officer returned findings on issues Nos. 1 to 4 in favour of respondent No. 4 and issue No. 5 was decided in favour of the petitioner concluding that one proxy votes of Shri Basakhu Ram cast by somebody else against serial No. 171 was counted in favour of respondent No. 4, therefore, the result of the elected person has been materially affected by improper reception of vote as provided under Section 175(1)(d)(i) of the Act. It was further held that in the event where the number of votes was equal in favour of the contesting candidates, the result should have been decided by toss on the basis of principles of natural justice. Consequently, the election of the office of the Pradhan of Gram Panchayat, Nanj was set aside and respondent No. 4 has been held to have seized the office of the Pradhan.
5. Against the order of S.D.O(C)-cum-Authorised Officer respondent No. 4 filed election appeal under Section 181 of the Act read with Rule 94 of the Election Rules before the Appellate Authority, who in turn set aside the order of the Authorised Officer and consequently dismissed the election petition of the petitioner. Now the petitioner has challenged the impugned order of Appellate Authority in this writ petition.
6. A joint reply on behalf of respondents 1 to 3 came to be filed by Shri B.M. Nanta, Addl. Secretary (Rural Development and Panchayati Raj) to the Government of Himachal Pradesh and separate reply was filed by respondent No. 4, the elected Pradhan. In their written statements respondents 1 to 3 have stated that the order passed by the Authorised Officer in election petition of the petitioner was based merely on speculation that the proxy vote was cast in favour of the winning candidate (respondent No. 4). It is stated that a proxy vote was cast against serial No. 171 of the Voter List, but the same was not challenged by the agents of the petitioner at the time of polling under the provisions of Rule 58 of Election Rules and as such the vote so cast could not be ignored at the time of counting as per the provisions of Sub-rule (v) of Rule 75 of the Election Rules and these provisions of law have not been discussed by the Authorised Officer, therefore, the order was rightly set aside by the Appellate Authority (respondent No. 2). It is again reiterated that the proxy vote has to be counted if the same has not been challenged and thus cannot be treated as improper reception of vote, when the particular voter viz. Shri Basakhu Ram appeared and wanted to cast his vote. When it appeared to the Presiding Officer on Poll duty that somebody else had already cast proxy vote against the name of Shri Basakhhu Ram, the Presiding Office has rightly issued tender ballot paper to him under the provisions of Sub-rule (1) of Rule 63 of the Election Rules and as per the provisions of Sub-rule (2) of Rule 63 the tender vote is required to be sealed in a separate packet and the same is not be counted at the time of counting of votes. This legal position has been rightly considered by the Appellate Authority, therefore, order of the Appellate Authority is sustainable on this legal ground. The respondents have also admitted that in total 713 votes were polled whereas 711 votes were found in the ballot box at the time of counting and shortfall of two votes by mistake had been put in the Ballot Box meant for the election of Zila Parishad. It is also submitted that the voter has to cast 5 votes at a time for electing members, Up Pradhan and Pradhan, members of Panchayat Samiti and Zila Parishad. The counting of votes in case of members, Up Pradhan and Pradhan was done at the headquarters of Gram Panchayat, whereas the counting of votes in case of Members of Panchayat, Zila Parishad was done at the block headquarters and as such the result of election of Pradhan of Gram Panchayat had been rightly declared on the basis of the Ballot Papers found in the Ballot Box meant for the election of Pradhan. It is further submitted that there is no provision under the Act or Election Rules for rejecting a ballot paper which is found torn and one ballot paper was not found torn in two pieces. 7. Respondent No. 4 in her written statement has taken preliminary objection challenging the maintainability of the writ petition and stated that before approaching this Court, the petitioner has not exhausted the remedy as provided under the Act. It is also averred that the petitioner besides challenging the orders dated 5-4-1998 passed by the Appellate Authority (respondent No. 2) has also challenged the findings of issues Nos. 2 and 3 decided against her by the Authorized Officer and she is estopped from challenging the findings as at no point of time the petitioner has challenged these findings by filing an appeal before the Appellate Authority. On merits, it is specifically admitted that the petitioner had secured 349 valid votes whereas the answering respondent secured 350 valid votes. She has alleged that prior to recounting of votes on the oral request of the petitioner, the respondent was winning by a margin of 3 votes from the petitioner but the respondent accepted the decision of the Returning Officer of recounting of votes and after recount the respondent had won by margin of 1 vote. The respondent has vehemently denied that the alleged proxy vote of Basakhu Rum was cast in her favour rather it was cast in favour of the petitioner. It is submitted that the result of the election has in no way affected materially as alleged by the petitioner. The respondent has sought to support the order of the Appellate Authority passed in her favour and seeks for dismissal of the writ petition.
8. We have head Mr. B. B. Vaid, learned counsel for the petitioner, Mr. Sanjay Karol, learned Advocate General for respondents 1 to 3 and Mr. Bimal Gupta, learned counsel for respondent No. 4. Before we deal with the respective submissions of the learned counsel, we think it proper to refer the various relevant provisions of the Act and the Election Rules.
9. Chapter-II of the Act deals with the Declaration of Gram Sabha. Under Chapter-Ill Gram Panchayats have to be constituted. Under Section 8 prescribes that there shall be a Gram Sabha and every Gram Sabha shall, in the prescribed manner eject from amongst its members a Pradhan and Up-Pradhan of the Sabha who shall also be called as Pradhan and Up-Pradhan of the Gram Panchayat and shall also elect from amongst its members an Executive Committee called the Gram Panchayal consisting of such number of persons not being less than seven and more than fifteen, including Pradhan and Up-Pradhan as the Government may by notification determine. Functions of Gram Panchayat have also been incorporated under this Chapter. Chapter-XI deals with disputes relating to election. Section 162 of the Act provides that all elections shall be called in question by an election petition presented under Section 163(1) on one or more of the grounds specified in Sub-section (1) of Section 175 which reads as under :--
"175. (1) If the authorised, officer is of the opinion--
(a) that on the date of his election the elected person was not qualified, or was disqualified to be elected under this Act; or
(b) that any corrupt practice has been committed by the elected person or his agent or by any oilier person with the consent of the elected person or his agent; or
(c) that any nomination has been improperly rejected, or
(d) that the result of the election, in so far as it concerns the elected person, has been materially affected--
(i) by improper acceptance of any nomination, or
(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iii) by any non-compliance with the provisions of this Act or of any rule made under this Act, the authorised officer shall set aside the election of the elected person.
(2) when an election has been set aside under Sub-section (i), a fresh election shall be held."
10. Chapter-I V of the Election Rules provides for Poll and Voting for election. Rule 51 deals with Ballot Box whereas Rule 52 talks about Ballot Papers which shall be of such design/ colour as the State Election Commission may specify. Rule 55 deals with admission of voters to polling station. Rule 57 imposes duty on the Presiding Officer or the Polling Officer authorised by him in this behalf about the identification of voter and Sub-rule (2) prescribes that the Presiding Officer or Polling Officer shall check the voters name and other particulars who enter the Polling Station with the relevant entry in the electoral roll and then call out the serial number, name and other particulars of the voter. Rule 58 authorised the Presiding Officer to hold summary inquiry into the challenge made to the identity of the person claiming to be a particular voter if any candidate or election agent or polling agent has challenged the identity of such particular voter. Rule 59 provides for issue of Ballot papers. Sub-rule (4) of Rule 59 prescribes that in a polling station where polling for more than one office bearers is to be taken, such voter be provided with ballot papers meant for such different offices simultaneously. Sub-rule (5) reads that at the time of issuing a ballot paper to a voter, the polling officer shall underline the entry relating to a voter in the copy of the electoral roll set pan for the purpose to indicate that he has been issued a ballot paper and incase of women voter he will also tick on the left hand side against her name and he shall not record the serial number thereof on the electoral roll. Sub-rule (6) debars any person in the Polling Station noting down the serial number of the ballot paper issued to a particular voter.
11. Rule 63 deals with tendered votes and reads as under :--
"63. Tendered votes.-- (1) If a person representing himself to be a particular voter named in the electoral roll applies for a ballot paper after another person has already voted as such voter the applicant shall, after duly answering such questions as the Presiding Officer may ask be entitled to receive a ballot paper hereinafter referred to as a tendered ballot paper in the same manner as any other voter.
(2) A tendered ballot paper shall instead of being put in the ballot box, be handed over by such person to the Presiding Officer. The Presiding Officer shall then place the ballot paper in a separate packet set apart for the purpose. At the end of the poll the packet containing all such tendered ballot papers shall be sealed. Such votes shall not be counted at the time of counting of votes.
(3) The name of the village, the number of the constituency, the name of the voter, his serial number in the electoral roll and the number of the polling station to which the electoral roll relates shall be entered in a list in Form-31 which shall bear the heading "List of tendered vote". The person tendering such ballot paper shall sign his name or affix his thumb impression against entry relating to him in that list.
(4) Form-31 shall be prepared separately concerning the election of member, Pradhan, Up-Pradhan and member of Panchayat Samiti and member of Zila Parishad."
Rule 75 prescribes procedure for counting of votes. The relevant provisions of this rule read as under :--
"75. Procedure for counting of votes-- The Returning Officer or any officer authorised by him, on the date, time and place fixed under Rule 32, shall start the counting of votes in the following manner, namely :--
(i) the counting of votes for the office/seats of Gram Panchayat shall take place at the headquarters of Gram Panchayat and for the members of Panchayat Samiti and Zila Parishad at the Block headquarters as per election programme;
(ii) to (iv) .....
(v) the ballot papers taken out of each box shall be mixed up with other ballot papers taken out of other ballot boxes concerning the same office and after that shall be sorted out separately for each seat/office- The ballot paper for the members of Gram Panchayat shall be retained on the same tables and ballot papers for the office of Pradhan and Up-Pradhan shall be passed on without counting them to the Returning Officer for their counting at later stage. After the counting the result of members of Gram Panchayal shall be declared on Form 33 after preparing the result sheet on Form 32 after the declaration of result of all the members of Gram Panchayat. The counting for the offices of Up-Pradhan/Pradhan shall be taken and result declared on Form 35 after preparing result-sheet on Form 34. (vi).....
12. After noticing the above relevant provisions of the Act and Election Rules, we propose to deal with the submissions of the learned counsel for the petitioner.
13. First contention of the learned counsel was that there were total 713 polled votes for the office of the Pradhan whereas only 711 votes were put to counting at the time of counting of votes and the remaining 2 votes were found in the box meant for Zila Parishad and thus there was loss of two votes for the office of Pradhan. This mistake was noticed by the S.D.O(C)-cum-Authorised Officer due to the fault of the Presiding Officer CW-2 Shri Durga Singh. If the mistake has been committed by the Presiding Officer Shri Durga Singh, it cannot be presumed that those two votes were cast in favour of the petitioner and ought to have been counted in her favour. Out of 711 votes polled in the ballot box of electing Pradhan of Gram Panchayat, Nanj, 12 votes were found invalid. There is no provision under the Act or Election Rules that the torn vote not in two pieces should not be counted for. Scrutiny and rejection of ballot papers find mention in Rule 76 and we find no such prohibition of counting of torn vote which was not in two pieces. The Authorised Officer has found from the record that no invalid note was counted in favour of respondent No. 4 therefore, the findings of the Authorised Officer are legal and valid on issue No. 3. The petitioner could not prove on record that the result of the election was influenced by anyone as alleged by her in her election petition and she could not establish her allegation on issue No. 2 which has been rightly decided by the Authorised Officer and has attained finality. The next submission of the learned counsel was that recounting of the polled votes was not allowed by the Returning Officer is not sustainable for the reason that it has been proved on record by respondent No. 4, Assistant Returning Officer and Presiding Officer that on oral request of the petitioner recounting was done twice. The petitioner herself has admitted in her cross-examination before the Authorised Officer that while counting at the first time there was a difference of three votes and on counting the second time there was a difference of one vote between her and respondent No. 4. The Authorised Officer has decided issue No. 2 in favour of respondent No. 4 based on the appreciation of evidence and we are not inclined to reappreciate the evidence in the writ petition while exercising the jurisdiction under Article 226 of the Constitution more particularly when the petitioner has not challenged the findings of the Authorised Officer on issue No. 2 by way of election appeal provided under the provisions of the Act.
14. The main contention of the learned counsel for the petitioner was that counting of proxy vote cast by someone else against serial No. 171 in the name of Shri Basakhu Ram and counted in favour of respondent No. 4 by the Returning Officer has materially affected on the result of the election and by such improper reception of such vote the election of respondent No. 4 to the office of Pradhan, Gram Panchayat, Nanj has rightly been set aside by the Authorised Officer and that the reasoning of the Appellate Authority setting aside the said order is not proper and valid. We have given our thoughtful consideration to the contention of the learned counsel and in our considered view the contention deserves to be rejected. From the order of the Authorised officer it is manifestly clear that the Authorised Officer has misdirected himself holding that the proxy vote cast by someone in the name of Shri Basakhu Ram was counted by the Returning Officer in favour of respondent No. 4 and thereby she won by a margin of one vote which has resulted the election of respondent No. 1 materially affected by improper reception of one vote. It is the basic principle of the election law that secrecy of the ballot papers has to be maintained by the persons authorised under law to hold the elections. There is not an iota of evidence on record to prove that one proxy vote cast against the name of Shri Basakhu Ram was in favour of or counted the name against petitioner. The Authorised Officer has merely perused the marked copy of voter list wherefrom it could not be ascertained that the proxy vote was cast in favour of the petitioner and thereby the result of the elected person was materially affected by improper reception of vote. The petitioner or her election agent or polling agent at no point of time has challenged the identity of the person claiming to be a particular voter under Rule 58 of the Election Rules at the time when such person entered the polling station and cast the vote, if the proxy vote was cast and not challenged, such vote has to be counted and cannot be treated as improper reception of vote. On the appearance of Shri Basakhu Ram the Presiding Officer has rightly issued a ballot paper to him under the provisions of Sub-rule (1) of Rule 63 of the Election Rules and as per provision of Sub-rule (2) of the said rules the tender vote is required to be sealed in a separate packet and the same has not to be counted at the time of counting of votes and therefore, the procedure adopted by the Returning Officer in the present case is absolutely in accordance with law.
15. The identity of vote cast by a voter in favour of a particular candidate is not established after counting and recounting of voles. There is no material on record to prove that the proxy vote cast on behalf of Shri Basakhu Ram had any specific mark and was found having been cast in favour of elected candidate (respondent No. 4). The only evidence brought on record was that Shri Basakhu Ram's name has appeared at serial No. 171 in the voter list and someone else had cast vote on his behalf. It is the settled proposition under the election law that the person who has challenged the election of the elected candidate, has to prove the allegations made in the election petition by cogent and convincing evidence and unless the heavy burden is discharged by the person concerned, the election petition cannot be accepted and the elected person in whose favour the electors have reposed their confidence by democratic franchise of votes the election will be invalid if the reception of votes cast by impersonation has materially affected the result. The Authorised Officer has not compared the ballot papers, the serial number in the electoral rolls of the proxy vote with the serial No. of the counter-foil retained by the Returning Officer and while deciding the question whether the proxy vote was cast by the initial voter in the name of Shri Basakhu Ram in favour of the returned candidate (respondent No. 4). The Authorised Officer has first to decide based upon the evidence led by the parties whether certain ballot paper of Shri Basakhu Ram was improperly received and the vote was cast in favour of returned candidate (respondent No. 4), thereby materially affecting the result of the election. Without deciding the moot question whether the vote was cast in favour of the returned candidate (respondent No. 4), it cannot be concluded that the returned candidate (respondent No. 4) has won by a margin of one vote which was cast as proxy vote in her favour. The order of the Authorised Officer concluding that there had been improper reception of proxy vote in favour of returned candidate (respondent No. 4) which has materially affected the result of the election was passed without positive and clinching evidence and the Appellate Authority was right in setting aside the same. We have considered the submissions of the learned counsel for the petitioner in the light of the factual and the provisions of the Act and Election Rules referred to above and come to the conclusion that the order of the Appellate Authority impugned in this writ petition is sustainable and does not suffer from any infirmity or illegality.
16. No other point has been urged by the learned counsel for the parties.
17. In the result, for the foregoing discussion, the writ petition fails and is accordingly dismissed. The panics are left to bear their respective costs.