Jammu & Kashmir High Court
Puran Chand vs Distt.Election Offficer And Ors. on 9 April, 2015
HIGH COURT OF JAMMU & KASHMIR AT JAMMU
OWP No. 938/2011
Date of decision: 09.04.2015
Puran Chand v. District Election Officer & ors.
Coram :
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
For Petitioner(s) : Mr. Abhinav Sharma, Advocate.
For Respondent(s): Mr. H.A.Siddiqui, AAG.
Mr. B.S.Salathia, Sr. Advocate with Ms. Meenakshi Salathia, Advocate.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Petitioner, Puran Chand and respondent No. 5, Piyare Lal, were the two candidates in fray for election to the post of Sarpanch, Panchayat Halqa 9-Dhrubeel in Inderwal block of District, Kishtwar. Election was held on 21.05.2011 and on the same day the votes were counted. After counting of the votes, the Returning Officer/Respondent No. 2 issued 'statement of counting of votes' and the certificate certifying that the petitioner has been elected as the Sarpanch. As per the statement of counting of votes, petitioner secured 608 votes and respondent No.5 secured 604. Petitioner, thus, won the election by four votes. I reproduce the 'statement of counting of votes' as it has relevance for according consideration hereafter:
" FORM PEL-17 STATEMENT OF COUNTING OF VOTES FOR SARPANCH Name of the Panchayat Halqa 9-Drubeel Name of Number candidate of Votes S.No. Polled Round 1 Round 2 Round 3 Round 4 Round 5 Total
1. Puran Chand 176 114 147 138 33 608
2. Piyare Lal 121 165 141 153 24 604 Invalid Votes 36 Signed Sd/-
Date 21.05.2011 Counting Supervisor Verified & Signed Sd/-
Date 21.05.2011 Returning Officer Panchayat 9-Drubeel Block Inderwal"
2. Feeling aggrieved by the result, respondent No. 5 filed appeal under section 43 of the Jammu and Kashmir Panchayati Raj Act, 1989 (for short, the Act) before the Appellate Authority, the Additional District Development Commissioner, Kishtwar, respondent No.1 herein. He sought mainly cancellation of the certificate issued in favour of the petitioner.
3. Respondent No.5 challenged the result of the election primarily on the grounds that some votes were wrongly rejected at the time of counting and that there was no proper arrangement at the time of counting of the votes inasmuch as appellant was not given proper timing for verification of the rejected votes and that the Returning Officer completed the whole process in hot haste. He also alleged that bogus/proxy voting was allowed in the election. Petitioner in para 7 of the writ-petition has rightly tabulated the grounds taken in memorandum of appeal as under:
"(i) That "besides the corrupt practice and undue influence prevailing over the process of elections some votes (belt papers) has been wrongly rejected at the time of counting of votes without any genuine/reasonable grounds of rejection and without tendering any reasonable explanation.."
(ii) That amongst the votes cast in the elections, two votes of dead persons were also cast.
(iii) That votes of ten such voters as were not present in their respective homes and were outside the locality either in connection with Govt. job or in connection with their private affairs were alleged to have been cast votes in favour of the petitioner.
(iv) That there was no proper arrangement at the time of counting and no proper "timing" was given to respondent No.5 for verification of rejected votes and the whole process of counting was completed in hot haste by respondent No.2."
4. The Appellate Authority allowed the appeal vide his order dated 04.07.2011 and declared the certificate of election issued in favour of the petitioner as null and void. This order on its plain reading would show that out of the four grounds taken by the appellant (respondent No. 5 herein) the Appellate Authority dealt with two only, relating to bogus/proxy voting and rejection of the 36 ballet papers by the Returning Officer.
5. Petitioner in the memorandum of appeal had named Khushi Ram and Bidya Lal as the two dead persons whose votes were cast in the election. The Appellate Authority after scrutinizing the record found that proxy vote in the name of Bidya Lal was cast whereas no counterfoil was available on record as to casting of the vote of Khushi Ram. The Appellate Authority, however, with the consensus of learned counsel for both the sides refrained from ascertaining as in whose favour the vote of Bidya Lal was cast to maintain the secrecy of votes.
6. The Appellate Authority examined all the 36 rejected ballet papers one by one. Noticing that the Returning Officer had not assigned reasons for rejecting these ballet papers, the Appellate Authority sketched a table of all the rejected ballet papers and accorded consideration to their rejection having regard to the "Hand Book for Returning Officers as per Chapter XV 'counting of votes' para 15.17" and drew another table showing that 29 ballet papers were 'rejected genuinely' and the remaining 7 which had been polled in favour of respondent-Piyare Lal were valid as per the Hand Book.
7. The Appellate Authority, therefore, held that 7 number of votes polled in favour of Sh. Piyare Lal be reckoned in his favour and directed the Returning Officer to revise the 'Statement of counting of votes' and the certificate of election accordingly and held as null and void the certificate issued in favour of the petitioner.
8. Petitioner by the medium of this writ petition assails order dated 04.07.2011 passed by the learned Appellate Authority and seeks its quashing by issue of writ of certiorari and to declare the petitioner as winning candidate. Petitioner also seeks writ of mandamus commanding and directing the Returning Officer/respondent No.2 not to issue any revised counting certificate in favour of respondent No.5 as also a mandamus commanding and directing the respondents to restore the petitioner to his original position as winning candidate as per the 'statement of counting of votes for Sarpanch' issued by the Returning Officer on 21.05.2011.
9. The impugned order is assailed by the petitioner primarily and mainly on the ground that no ground for appeal as required under Section 43 of the Act was made out in the appeal filed by respondent No. 5. It is contended that under Section 43, appeal lies on two grounds only, namely, that the election had not been free election by reason that the corrupt practice of bribery or undue influence had extensively prevailed at the election and secondly, that the result of the election had been materially affected by the improper acceptance or rejection of any nomination or by gross failure to comply with the provisions of the Act or the rules framed thereunder. It is contended also that election was conducted in fair manner and peaceful atmosphere and no objection of corrupt practice or undue influence was raised by any candidate or his agent. Respondent No.5, however, had raised objection after counting was complete and had asked for recounting of the votes. The recounting was done on spot in presence of the District Election Officer/ respondent No.1, the observer for the election/ACR, Kishtwar and Assistant Commissioner Development. 36 votes were rejected for various reasons whereas the petitioner having polled 608 votes as against 604 polled by respondent No.5, was declared as winning candidate by four votes.
10. It is alleged by the petitioner that there had been a nexus between the losing candidate/ respondent no.5, the Congress MLA/respondent No.4 and the Appellate Authority/respondent No.3. It is stated in this regard that candidature of respondent No.5 was sponsored by respondent No.4, appeal was filed by respondent No.5 on 03.05.2011, on 20.06.2011 son of respondent No.4 was married with the daughter of respondent No.3 (Appellate Authority) and the impugned order was passed on 04.07.2011. The impugned order is also assailed on the ground that under Rule 36(4) of the Jammu and Kashmir Panchayati Raj Rules, 1996 (for short, the Rules) decision of the Returning Officer as to the validity or otherwise of a ballot paper shall be final and therefore, respondent No.3 had no power or authority in appeal to reopen the question of decision taken by the Returning Officer in rejecting the 36 ballot papers.
11. Respondents have opposed the writ petition. Respondent No.5 in his objections, which have been adopted by respondent Nos. 1 to 3, has contended that votes in the names of dead persons were cast, supporters of the petitioner had cast their votes twice and staunch supporters of respondent No.5 were not allowed to cast their votes. Corrupt practice was adopted in counting of the votes inasmuch as respondent No.5 was not allowed to raise objection to unfair/illegal counting by the counting staff and there was no proper arrangement of space, light and furniture in the counting hall. Respondents have supported the impugned order and it is contended in this behalf that the Appellate Authority had scrutinized the rejected votes with reference to the Hand Book.
12. Referring to section 43 of the Act and the memorandum of appeal filed by respondent No. 5, Mr. Abhinav Sharma, learned counsel for the petitioner, submitted that no allegation of corrupt practice of bribery or undue influence was leveled by respondent No.5 though in order to bring the appeal within the purview of Section 43, respondent No.5 had used the 'term corrupt practice' and 'undue influence' in para 7 of the memorandum of appeal without referring to any such corrupt practice having taken place. Mr. Sharma submitted that the grievance of the petitioner had been against rejection of the votes by the Returning Officer but this question could not have been reopened by the Appellate Authority as the decision of the Returning Officer in this regard is final as per Rule 36(4) of the Rules. Mr. Sharma also questioned the review made by the Returning Officer in regard to the 7 votes holding them as the votes polled in favour of respondent No.5.
13. Per contra, Mr. B.S.Salathia, learned Senior Advocate, appearing for respondent No.5 supported by Mr. H. A. Siddiqui, learned AAG submitted that proxy voting in the name of dead persons and persons who did not attend the polling station cannot be excluded from the scope of corrupt practice as contemplated under section 43 of the Act. Mr. Salathia also submitted that unfair counting and unlawful rejection of the 7 ballot papers had materially affected the result of the election so there was sufficient ground for challenging the election in appeal and the Appellate Authority examining the rejected ballot papers.
14. It needs to be restated, though at the cost of repetition, that the Appellate Authority/ respondent No.3 in passing the impugned order dated 04.07.2011 has accorded consideration on two scores, firstly, the voting on behalf of the two dead persons and secondly, the rejection of 36 ballot papers by the Returning Officer. The Appellate Authority, however, did not return any finding in regard to the affect of voting on behalf of the dead persons as vote on behalf of one of them, namely, Khushi Ram was not found to have been cast whereas to maintain secrecy it was not ascertained as in whose favour vote on behalf of the other had been cast. The Appellate Authority, however, re-examined all the 36 ballot papers which were rejected by the Returning Officer and found 29 of them having been genuinely rejected and remaining 7 having been cast in favour of the appellant (herein respondent No.5) and therefore, held null and void the 'certificate of election' issued in favour of the petitioner who had won by four votes only.
15. The primary question thus arising for determination would be, whether the Appellate Authority appointed under section 43 of the Act has the jurisdiction to reopen the question of rejection of ballot papers by the Returning Officer and appeal on that score is maintainable? Ancillary question would be, whether the Appellate Authority was right in holding the seven votes as having been cast in favour of respondent No. 5.
16. Section 40 of the Act read with Section 36 provide for election of the Sarpanch of a Halqa Panchayat. Section 43 provides for appeal in case of disputes regarding elections. Procedure for conducting the election including counting of votes and rejection of ballot papers is provided in Chapter II (Rules 3 to 47) of the Rules.
17. Rule 36 of the Rules deals with rejection of ballot papers. It reads:
"Rule 36: Rejection of ballot papers:-
(1) A ballot paper shall be liable to rejection.-
(i) If no vote is recorded thereon; or
(ii) If the ballot paper or the vote recorded thereon is void for uncertainty; or
(iii)If it is otherwise not in confor- mity with rules.
(2) No ballot paper shall be rejected otherwise than on any of the grounds enumerated in sub-rule (1). (3) The Returning Officer shall record on every ballot paper which he rejects a brief statement of reasons for such rejection.
(4) The decision of the Returning Officer as to the validity or otherwise of the ballot paper shall be final."
(Underlining by me)
18. The Hand Book for Returning Officers issued by the Election Authority under the Act (the Chief Electoral Officer, Jammu and Kashmir) in its clause 15.17 (iii) contains instructions to the Returning Officers/Assistant Returning Officers to reject ballot papers only :
"(a) Where there is no mark at all on the front, or the mark is made otherwise than with the instrument supplied for the purpose; or
(b) When the mark is in blank area, that is to say, at the back or entirely in the shaded area; or
(c) Where there are marks against two or more candidates; or
(d) When there is any writing or mark by which the voter can be identified; or
(e) When the ballot paper is mutilated beyond recognition; or
(f) When the ballot paper is not genuine or it is spurious."
These instructions are in conformity with Rule 36 and clarify as to when and in what conditions no vote can be said to have not been recorded (marked) or to be void, uncertain or not in conformity with the Rules.
19. Section 43 of the Act which provides for appeal in disputes regarding elections reads:-
"43: Disputes regarding elections:
(1) The election of a person as Sarpanch, Panch of a Halqa Panchayat or as a Chairman of the Block Development Council shall not be called in question except by in application presented to such authority within such time and in such manner as may be prescribed on the grounds that :-
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election;
(b) that the result of the election has been materially affected -
(i) by the improper acceptance or rejection of any nomination; or
(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder."
(Underlining by me)
20. On its plain reading, section 43(1) would show that appeal lies only on two grounds provided in its clauses (a) and (b). Clause (a) provides for the disputes relating to conduct of the election and clause (b) provides for the disputes relating to result of the election. Question taken up by the Appellate Authority and now arising for determination in this writ petition relates to result of the election because the Appellate Authority has declared null and void the 'Certificate of Election' issued by the Returning Officer in favour of the petitioner after reopening the question of rejection of 36 ballot papers by the Returning Officer at the time of the counting of the votes. But for the brief reference to the question of two bogus votes, there is nothing in regard to the conduct of election or counting of the ballet papers in the impugned order. Appeal under clause (b) (i) of Section 43(1) would lie if result of election has been 'materially affected' by improper acceptance or rejection of any nomination and would lie under clause (b) (ii) if result of the election has been 'materially affected' by 'gross failure' to comply with the provisions of the Act or the Rules framed thereunder.
21. What would be the position if the Returning Officer rejects a ballot paper not in accordance with Rule 36 of the Rules as amplified in clause 15.17 (iii) of the Hand Book or, to say otherwise, if a ballot paper is rejected even if it did not satisfy any of the grounds of rejection provided in Rule 36? In that case the Returning Officer would be said to have failed to comply with the provisions of Rule 36 and case would be covered under clause (b) (ii) of section 43 (1) and appeal would lie even if under sub-rule (4) of Rule 36, the decision of the Returning Officer as to validity or otherwise of a ballot paper is final.
22. Two conditions, however, should co-exist in order to file appeal against rejection of a ballot paper or ballot papers by the Returning Officer. Firstly, that the rejection of a ballet paper or ballet papers should have 'materially affected' the result of the election and secondly, that the failure to comply with Rule 36 while rejecting a ballot paper or ballot papers should not be a simple failure only but a 'gross failure' on the part of the Returning Officer. Refusing right of appeal if both these conditions are satisfied would render the aggrieved person without any remedy against wrong committed by the Returning Officer and may encourage arbitrariness and impropriety by the Returning Officer.
23. In this case the rejection of above mentioned 7 ballot papers by the Returning Officer certainly had materially affected the result of the election because the losing/winning margin was of 4 votes only. Petitioner has won by 4 votes only, whereas if the 7 ballot papers rejected by the Returning Officer are said to have been cast in favour of respondent No. 5 (appellant), the result of the election would have been otherwise. In this view, appeal on this score was maintainable. Having said so, the next important question would be, was it a case of 'gross failure' on the part of the Returning Officer in complying with Rule 36 while rejecting the said 7 ballot papers.
24. 'Gross failure' on the part of a person is distinct from simple failure. Not only that the Returning Officer should have failed in proper application of the grounds provided under Rule 36 in rejecting a ballot paper but it must appear that he had failed to exercise even the slightest amount of care in applying those grounds or had deliberately disregarded those grounds and rejected a ballot paper or ballot papers in arbitrary manner actuated by an intention to help a particular candidate. It would thus be decided on the basis of facts of a case and would differ from case to case whether there was 'gross failure' on the part of the Returning Officer in rejecting a ballot paper or ballot papers. If no case of 'gross failure' is evident or made out, the view taken by the Returning Officer shall be final and prevail as per Rule 36 (4) of the Rules and would not be subject to reopening by the Appellate Authority. But, if there is gross failure, appeal must lie.
25. Manner of casting the vote is provided under Rule 26 of the Rules. A voter after entering the polling compartment has to mark his ballot paper by affixing a seal provided to him by the Presiding Officer of the Polling Station opposite the name (or on the symbol) of the candidate in whose favour he desires to cast his vote. Under Rule 36, a ballot paper is liable to be rejected if no mark is recorded thereon or the mark recorded thereon is void for uncertainty or if it is otherwise not in conformity with the Rules. Which ballot paper should be rejected by the Presiding Officer is provided under clause 15.17 (iii) of the Hand Book (supra).
26. All the seven ballot papers (Nos. 0019, 0042, 0376, 1212, 1205, 1241 and 1490) which the Returning Officer had rejected and the Appellate Authority found to have been cast in favour of respondent No.5, were examined and scrutinized in the course of arguments in the case with the assistance of counsel for both the sides having regard to Rules 26 and 36 of the Rules and clause 15.17 (iii) of the Hand Book. There may be some good reason in the Appellate Authority's taking the view in favour of respondent No.5 in regard to two of them i.e. serial Nos. 0019 and 1212 but I am afraid the Appellate Authority was not justified in disagreeing with the view taken by the Returning Officer in regard to remaining 5 and decision of the Returning Officer should have prevailed.
27. Given the manner in which the 7 ballot papers have been marked (or not marked) by the voters, the Returning Officer cannot be said to have failed much less 'grossly failed' in complying with the Rule 36 of the Rules or clause 15. 17 (iii) of the Hand Book while rejecting them. The decision of the Returning Officer, therefore, must prevail. The Appellate Authority was not justified in reopening the question and should not have substituted his view for the view taken by the Returning Officer in utter disregard of sub rule (4) of Rule 36. The Appellate Authority has exceeded its jurisdiction and can be said to have acted unfairly and arbitrarily and the order passed by him cannot sustain.
28. For all what is said and discussed above, this writ petition succeeds as it has merit and in the result the impugned order dated 04.07.2011 passed by the Appellate Authority is quashed by issue of a writ of certiorari and by issue of a writ of mandamus the status of the petitioner as Sarpanch of Halqa Panchayat 9-Dhrubeel, Block Inderwal, District Kishtwar stands restored as per the 'Statement of Counting of Votes' dated 21.05.2011 and 'certificate of the election' of the even date issued by the Returning Officer forthwith.
29. Record be returned to Mr. H.A.Siddiqui, learned Additional Advocate General.
(Janak Raj Kotwal) Judge Jammu :
09.04.2015 Pawan Chopra