Allahabad High Court
Naresh Shankar Srivastava vs U.P. Co-Operative Tribunal And Ors. on 25 July, 1997
Equivalent citations: (1997)3UPLBEC1641
JUDGMENT S.R. Singh, J.
1. Dispute in the instant petition is circumscribed to the validity of election from Lucknow Revenue Division Constituency, to the Committee of Management of the U.P. Co-operative Processing and Cold Storages Federation, Ltd., Lucknow (for short 'PACSFED')-an Apex Co-operative Society registered as such under the provisions of the U.P. Co-operative Societies Act, 1965. The petitioner and two others namely, Sri Radhey Shyam Gupta, Opposite Party No. 3 and one Sri M.M. Gupta were the contesting candidates from the said constituency. One of them had to romp home. Admittedly, 31 delegates elected from different Primary Co-operative Societies falling within the territorial jurisdiction of Lucknow Revenue Division Constituency constituted an electoral collegiate for the purposes of electing one Director from amongst themselves to the Committee of Management of the said Apex Society. The petitioner having secured 16 votes as against 15 votes polled in favour of the Opposite Party No. 6 namely, Sri Radhey Shyam Gupta, was declared elected as Director from Lucknow Revenue Division Constituency by the Election officer on 30-12-94.
2. The vanquished candidate Sri R. S. Gupta, preferred an election petition which was referred for adjudication to an Arbitrator under the provisions of the U.P. Co-operative Societies Act read with Rules framed thereunder. The Additional Registrar (Krishi Nivesh), Co-operative Societies. U.P. acting as the Arbitrator, allowed the etection petition, set aside the election of the petitioner and declared the 6th respondent as duly elected member to the Committee of Management of 'PACSFED', vide order dated 19-4-1996. It was held by the Arbitrator, on the basis of inspection of Ballot papers made by him on 17-4-1996 that ballot paper Nos. 003167 and 003172 bearing more than one cross-mark against the name of the petitioner were invalid and liable to be rejected and it was on this finding that the Arbitrator found that the petitioner had secured only 14 valid votes as against 15 valid votes polled in favour of Sri R. S. Gupta arrayed herein as party respondent No. 6. Aggrieved by the order dated 19-4-1996, the petitioner preferred an appeal before the U.P. Co-operative Tribunal Lucknow. The appeal having ended up in dismissal vide judgment and order dated 10-6-1996, the petitioner has come up by means of the instant petition for the relief of quashing the impugned orders.
3. The learned counsel for the petitioner canvassed that the arguments before the Arbitrator stood closed on 10-4-1996 and the Arbitrator reserved the judgment in the case but lateron, he retreated to summoning and inspecting ballot papers on 17-4-1996 in a secretive and clandestine manner behind the back of the petitioner and illegally rejected two valid votes polled in favour of the petitioner. The learned Counsel submitted that the inspection of ballot papers was illegally taken up behind the back of the petitioner and without any valid foundation being laid for the purpose. The learned counsel appearing for the respondents tried to whittle down the submissions by urging that the Arbitrator by his order dated 1-8 1995 had directed the 'PACSFED' arrayed as party-defendant No. 2 before the Arbitrator, to produce election-related papers on the date of argument so that if necessary, the same may be traversed upon.
4. Having bestowed my anxious considerations to the submissions advanced at the bar, I am of the considered view that the inspection of ballot papers is contra-indicated unless necessary foundation for the same had been laid and a case for inspection and scrutiny of ballot papers is shown to be made out on the exidence adduced in the case. I am further of the view that the inspection' of ballot papers behind the back of the parties is discountenanced in law, being antithesis of the rules of natural justice The Arbitrator was not justified in inspecting the ballot papers shorn of recording categorical finding in vindication of inspection of ballot papers behind the back of the petitioner. Scrutiny and inspection in the instant case was made disregarding the law laid down by the Full Bench of this Court in Ram Adhar Singh v. District Judge and Ors., 1985 (1) UPLBEC 317. The decision rendered by the Arbitrator suffers from the blemish of serious error in the decision making process and it is, therefore, liable to be quashed under Article 226 of the Constitution of India.
5. That apart, the rejection of two ballot papers namely, 003167 and 003172 on the ground of putting more than one cross-marks against the name of the petitioner stemmed from mis-construction of the related provisions contained in Rules 443 and 444 of the U.P. Co-operative Societies Rules 1968.
6. The expression "It (ballot paper) shall also contain a blank column for the voter to inscribe a mark (x) against the name or names of persons for whom he wants to vote" occurring in Sub-rule (3) of Rule 443 of the Rules cannot be interpreted to signify, as erroneously held by the Arbitrator and the Appellate Tribunal, that if a voter has inscribed a mark (x) more than once against the name of a candidate, the vote cast by him would be rendered unavailing/void. The expression 'a mark (x)' occurring in Sub-rules (3) and (5) of Rule 443 of the Rules is only a pointer to the fact that the voter has to affix a mark which would be a mark (x) against the name or names of persons for whom he wants to vote. It connotes that the voter has to cast his vote by affixing a cross mark and no other mark. It is beyond the pale of dispute that the mark (x) is inscribed by a seal or a pen which is made available to the voter by the Election Officer/Polling Officer.
7. The grounds of rejection of ballet papers are delineated in Rule 444 (2) of the Rules. According to Sub-rule (2) of Rule 444, a ballot paper shall be rejected if (i) it bears any signature to identify the voter; (ii) it does not bear the seal of the Society and initials of the Election Officer/Polling Officer of the polling station concerned ; (iii) it contains no marks indicating a vote ; and/or (iv) it contains more marks than the number of seat/seats to be filled. None of these grounds exists to lend strength to the instant case beyond its intrinsic merit. Ground No. (iv) cannot be called in aid merely because there were more cross marks than one in the blank column against the name of the petitioner.
8. The learned counsel appearing for the respondents laboured the point that ground No. (iv) enumerated in Sub-rule (2) of Rule 444 read with Sub-rules (3) and (5) of Rule 443 would give prop to the view taken by the Arbitrator and the appellate Tribunal. In my opinion, the submission advanced by the counsel for the respondents has no cutting edge and is wide off the mark and cannot be countenanced. As stated supra, the expressions 'inscribe a mark (x)' or 'put a mark (x)' do not bolster up the conclusion that if a voter has put a mark (x) twice or thrice over against the same very candidate, the ballot paper used by the voter, would degenerate into invalidity and would be liable to be rejected. The argument that putting a cross-mark twice over in the blank space against the name of the same very candidate, would impinge upon secrecy of the ballot papers, too does not commend for acceptance. The ground No (i) enumerated in Sub-rule (2) of Rule 444 clearly mentions that if a ballot paper bears any signature to identify a voter, it would be rejected Mere putting or inscribing the (x) twice or thrice over in the blank space against the name of a candidate, cannot be formed the basis for rejecting a ballot paper on the premises that it was aimed 8t identifying the voter. The view taken by the Arbitrator or the appellate Tribunal Is tarred with patent illegality and stems from misconstruction of related provisions of law. The view that I am pursuaded to take, is buttressed by a Division Bench decision in K. Nandan v. Ravaneshwar, AIR 1964 Patna (Sic), wherein it was held that a ballot paper should not be rejected as void merely because there are two cross-marks in respect of a particular candidates, if the marks are placed in such a position in the ballot paper as to leave no doubt for whom the voter intended to vote.
9. In the conspectus of the above discussion, I am of the view that the impugned orders cannot be sustained, firstly for the reason that the inspection and scrutiny of the ballot papers were embarked upon behind the back of the petitioner in breach of the principles of the natural justice and secondly, for the reasons that two valid votes polled in his favour, have been illegally fished out as invalid and rejected by the Arbitrator and the appellate Tribunal upon misconstructions of the related provisions of the Rules.
10. In the result, the petition succeeds and is allowed. The impugned orders are quashed. Parties to bear their respective costs.