Punjab-Haryana High Court
Ravinder Kumar Rawal vs V.K. Sood And Others on 8 January, 2010
Author: K. Kannan
Bench: K. Kannan
C.W.P. No.9227 of 2009 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.W.P. No.9227 of 2009
Date of Decision: 08.01.2010
Ravinder Kumar Rawal .....Petitioner
Versus
V.K. Sood and others ....Respondents
Present: Mr. Arun Palli, Sr. Advocate with Mr. Akshay Bhan, Advocate, Mr. Jai Bhagwan, Advocate Mr. K.V.S. Kang, Advocate Mr. Sushil Garg, Advocate Mr. Tushar Sharma, Advocate Mr. Amit Jhanjhi, Advocate for the petitioner.
Mr. Satya Pal Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for respondent No.1.
Mr. B.S. Rana, Addl. A.G., Haryana for respondent Nos.2 and 3.
2. C.W.P. No.9452 of 2009 D.C. Panchkula and another .....Petitioners Versus V.K. Sood and others ....Respondents Present: Mr. B.S. Rana, Addl. A.G., Haryana for the petitioners.
Mr. Satya Pal Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate for respondent No.1.
Mr. Arun Palli, Sr. Advocate with Mr. Akshay Bhan, Advocate Mr. Jai Bhagwan Advocate Mr. K.V.S. Kang, Advocate Mr. Sushil Garg, Advocate Mr. Tushar Sharma, Advocate Mr. Amit Jhanjhi, Advocate for respondent No.2.
C.W.P. No.9227 of 2009 -2-CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest?Yes
-.-
K. KANNAN J.
I. The success in the election petition and the principal grounds of challenge
1. By two consecutive orders dated 04.05.2009 passed by the Election Tribunal, Panchkula and 08.06.2009 passed by the District Judge, Panchkula setting aside the election to the post of the President of the Panchkula, Municipal Council, the elected candidate Sh. Ravinder Kumar Rawal and the Deputy Commissioner, Panchkula and the Sub Divisional Officer (Civil), Panchkula have felt themselves aggrieved and they have assailed the decisions through the writ petitions filed in C.W.P.No.9227 of 2009 and 9452 of 2009 respectively.
2. The writ petition of the official respondents in the election petition has come about on account of the observations of the Election Tribunal and the Appellate Court that the election had not been held as per the procedure prescribed under law. To such procedure, we have to turn to the Haryana Municipal Act, 1973 (hereinafter called as 'Act') and the relevant Municipal Election Rules of 1978 (hereinafter called as the 'Rules'). The election to the post of members of the Municipality is by a process of direct election from the territorial constituencies in the municipal area as laid down under Section 9 of the Act, while the election to the post C.W.P. No.9227 of 2009 -3- as President and Vice President shall be from an electoral college of such elected members. The election of the members had been held on 30.03.2008 and the results were notified on 31.03.2008.
3. The Sub Divisional Officer (Civil) had been appointed as a convener for conducting the election of the President and the Vice President on 15.04.2008. He had called the first meeting to take place on 25.04.2008 when out of 31 members, 17 had been present and the meeting was adjourned to 14.05.2008 when on votes cast on ballot papers sent by the State Election Commissioner, the petitioner had held the largest number of votes to be declared a winner. The challenge to the election is brought at the instance of one of the members, Sh. V.K. Sood, on the grounds that there was no secrecy in the electoral process in that a register maintained by the Election Officer noted down the serial numbers, wards and the signatures of the members to whom the ballot papers had been given and hence the entire election was vitiated. According to the petitioner, the ballot paper itself was not in the form prescribed by the relevant rules and the directives issued by the Government with reference to the conduct of the President's election had not been strictly followed. The other ground was that the candidates had been advised to tick mark the person that they were to choose as President, while the prescribed rules allowed even for marking of a negative vote by giving the option to mark 'Yes' or 'No' against the names of the contesting candidates. The form of ballot papers given and the particulars entered in the separate register had been C.W.P. No.9227 of 2009 -4- found by the Election Tribunal to vitiate the decision, even while it held that the mode of marking for expressing preference did not cause any prejudice. The Appellate Court signalled aye to the Election Tribunal's verdict. The writ petitions have, therefore, been filed by the candidate declared as elected and the official respondents whose mode of conduct of election had been faulted. II. Contentions by the petitioner assailing the decisions
(a) Keeping a register containing serial nos. and names and sealing it protected secrecy
4. Sh. Arun Palli, learned Senior Counsel appearing for the petitioner argued that the ground for declaring the election as set out under Rule 85 of the Election Rules pointed out to the fact that the ground that was invoked was Rule 85(d) that the result of the election in so far as it concerned a returned candidate had been materially affected by a material irregularity in the procedure for the election, as set out in sub clause (iv) of clause (d). To him the material irregularity in the procedure of the election must be shown to be such that it had the effect of altering or affecting the election result materially. The material irregularity, which is explained as including improper acceptance or refusal of any nomination or improper reception or refusal of vote or reception of any vote, which is void for non-compliance with the provisions of the Act or the Rules or any mistake in the use of any form if it did not materially affect the result of the election, then even such material irregularity cannot be the basis for setting aside the election. In this C.W.P. No.9227 of 2009 -5- case, according to the learned Senior Counsel, the mistake attributed to the process was that the names of the candidates containing the details of the serial numbers had been entered in a separate register which serial number corresponded to the serial numbers given in the ballot papers and the register had been sealed and kept aside and not opened till the Election Tribunal broke the seal after a litigation had commenced and, therefore, by merely counting the votes that had been polled, it was not possible to identify the person that had voted for or against a particular candidate. All the members had gone through the process without any form of objection and the contention raised by the petitioner in the election petition that the members had apprehension that their identify could be revealed by matching the serial numbers and the ward numbers noted against their names in the register along with serial number found in the ballot papers was not established in any sense, for it was nobody's case that the sealed cover in which the register had been kept had been opened and the identity revealed at any point of time. Even the contention that the voters had been advised to give a tick-mark had no ramification to the ultimate result, since all the members had been briefed homogeneously about the method of marking so that there was no confusion in the mind of any of the members as to the mode of casting the votes.
(b) Ballot paper used, same as for election of members; if there was no objection to such election, none could exist for election of president also
5. Learned Senior Counsel, Sh. Arun Palli would also C.W.P. No.9227 of 2009 -6- submit by way of a general objection to the judgment that after all the ballot papers that had been given to the members were on similar lines to how the General Election to the Assembly and the Parliament were being held and the maintenance of register itself was a substitute for retention of a counterfoil that would have contained the serial numbers of the respective ballot papers containing the same serial numbers. If the election of the members themselves by issuance of such ballot papers was not challenged, there cannot be any objection to the same ballot papers submitted for the election of the President. Referring to Rule 36 of the Election Rules, the learned Senior Counsel would submit that if instead of a counterfoil, a separate register can be maintained, no exception could be taken to such a ballot paper, for either the counterfoil or a register containing the serial number matching with the ballot papers supplied to voter was only to ensure that the paper was not substituted or to consider any objection that may be raised that a voter had not been given the chance to vote at all. It was a method to ensure the actual presence of a voter to whom the ballot paper had been authentically given containing the seal of the Election Officer. To all these objections, learned Senior Counsel, Sh. Satpal Jain appearing for the complainant before the Election Tribunal submitted that the election to the post of the President is on non-party lines and, therefore, the secrecy that is required to be maintained that would allow for party candidates among members voting without party considerations was at a higher level and even a C.W.P. No.9227 of 2009 -7- possibility of the voters' identity being revealed was good enough to vitiate the entire election process. If it was denied even by the petitioner that by matching the entries in the register sealed by the Election Officer with the serial numbers found in the ballot papers that contained the person to whom the vote had been cast, it was possible to identify the particular person the secrecy was already compromised and it was irrelevant that such a comparison had not been made by opening the seal. According to the procedure prescribed for election of candidates to Parliament or Assemblies with a large electoral college running to thousands and lacs could hardly be a comparison to election of a President from amongst of a motley collection of persons, who were but 31 in numbers and when the rules and the directives of the Election Commission prescribed the form of the ballot papers with no reference to serial numbers, it was not merely accidental but it was deliberate. The form of ballot papers prescribed under Rule 36 was meant only for election of member themselves and was not applicable to the election of the President or the Vice President. The Election Officer had perforce to follow the other procedure prescribed under the Act and the relevant Rules and any deviance per se constituted a material irregularity which in turn contributed to affecting the election results. The apprehension expressed by the petitioner that a free voting was impaired in the minds of the voters by a possibility of revelation of the voters' identity was real and the election could not be said to be fair and open. Even as regards the C.W.P. No.9227 of 2009 -8- mode of casting the preference by tick-marking against the candidate to be selected, a vote cast in a manner that the Rules did not envisage was an invalid vote and the entire election was, therefore, vitiated.
(c) Decision relied on by the petitioner before the Election Tribunal to accept the election petition was not applicable
6. Both the counsel had made elaborate references also to several decision of this Court and the Hon'ble Supreme Court to fortify the respective contentions. The learned Senior Counsel appearing for the petitioner, Sh. Arun Palli assailed the judgment of the Election Tribunal and of the Appellate Authority, who by making their references to a judgment rendered by Division Bench of this Hon'ble Court in C.W.P. No.6534 of 2005 reported in Smt. Seema Chaudhary Vs. The State of Haryana CL (2008-2) PLR 156, as though it applied on all fours to a case, which on a fact situation was not congruent in any way, had committed a serious error of reasoning. The above writ petition in C.W.P. No.6534 of 2005 dealt with the case of election of President of the Municipal Council, Panchkula in the year 2003 when a No Confidence Motion against the President, Smt. Seema Chaudhary was challenged on the ground that there had been violation of secrecy of votes and when the Court found on perusing records that the envelope containing the records of the proceedings had been torn and the seals removed. On the asking of the Court, it was disclosed that the envelopes had been unsealed and opened by the C.W.P. No.9227 of 2009 -9- Deputy Commissioner to verify the contents, which explanation was not found acceptable and hence the Court held that the secrecy of the ballot papers had been breached. The very same person, Smt. Seema Chaudhary had filed C.W.P. No.6755 of 2008 praying that the election scheduled to be held on 25.04.2008, which is presently in challenge, was to be conducted through secret ballots when the Bench held that the Presiding Officer should be reminded of the earlier order of this Court passed in C.W.P. No.5010 of 2005 on 01.04.2005.
(d) The envelope containing the voters' register had not been opened and hence, secrecy not compromised
7. The secrecy of the voting had not been in any way breached, according to the learned Senior Counsel, Sh. Arun Palli, since it was nobody's case that any information was made available or secured by unsealing the envelope containing the register of names and serial numbers of the ballot papers given to the candidates to ascertain in whose favour they had respectively voted. He would argue that apart from the ipse dixit of the petitioner that the voters had apprehensions that their identity would be revealed, none of the persons amongst the voters had been examined on the petitioner's side to say that they were so influenced and that it had any bearing to the free choice of the candidate that they made when the preference was indicated in the ballot papers. The method of expressing the choice of either a tick-marking or yes or no also, according to him was irrelevant, as the Election Tribunal and the C.W.P. No.9227 of 2009 -10- Appellate Court themselves rejected such a contention raised by the petitioner before the Election Tribunal. The learned Senior Counsel refers to Rule 69(F)(4), which requires the ballot papers to be serially numbered as being relevant only in the context of Rule 36 which also refers to the form of ballot papers in the election of members that required each ballot paper should have a counterfoil attached and a serial number itself will be irrelevant if the counterfoil also did not contain such serial number. In this case, there was no counterfoil and therefore, a record-sheet had been substituted to retain such particulars. The record-sheet itself had been kept in a sealed cover and the polling of the Vice President had also taken place in the same fashion. No objection had been given by the very same petitioner before the Election Tribunal and the decision of the Election Tribunal and the Appellate Court were, therefore, vitiated in referring to issues, which were irrelevant and which had no bearing to affect the ultimate outcome of the results in election.
(e) Court shall not fish out information on the basis of vague allegations in the election petition
8. The learned Senior Counsel refers to decision in Hari Ram Vs. Hira Singh and others (1984) 2 SCC 36 where on a challenge to an election held for the Metropolitan Council of Narela Constituency, the Hon'ble Supreme Court held that the Court should sparingly exercise its power to allow the production of electoral rolls and counterfoils. The Hon'ble Supreme Court C.W.P. No.9227 of 2009 -11- reminded that the demand for production of these papers, which was to fish out materials in challenging the election could not be done when the averments in the election petition were only vague. This point need not wait for any detailed examination. The petitioner has no lesson to be apply to this case where the Hon'ble Supreme Court was dealing with the power of a Court at the interlocutory stage to fish out information for buttressing vague allegations relating to challenge to the election contained in the election petition. We are not at the stage of dealing with an interlocutory order for production of ballot papers and the issue at hand to be resolved is whether the secrecy in the election process had been compromised by the procedure adopted by the Election Officer.
(f) Use of wrong mark on the ballot paper shall not vitiate the electoral process- distinguishing feature
9. The learned Senior Counsel referred to a decision in T.H. Musthaffa Vs. M.P. Varghese and others (1999) 8 SCC 692 that dealt with the issue of pleadings and what was required to be established in an election petition to annul the election. The Hon'ble Supreme Court was dealing with the issue of relief of recounting sought by adducing evidence that the stamping instrument supplied by the Election Commission for the purpose of exercising preference of voter was the wrong instrument, in as much as it was meant for the polling officials for making distinguishing marks of the polling stations. On a plea made in the C.W.P. No.9227 of 2009 -12- election petition as to using such wrong instrument for casting votes, the Hon'ble Supreme Court held that plea was not sufficient to raise the issue. This decision is explained by the learned Senior Counsel appearing for the respondent, Sh. Satya Pal Jain by pointing out that if the Election Officers had given a wrong seal to the voters to cast the votes and uniformally the same seal had been used by all the voters, the material irregulairty did not permeate in upsetting the ultimate results. While in this case, the attack was with reference to how the secrecy in the electoral process had been vitiated by making possible the revelation of identity of voters, I am of the view that this decision is also not relevant for the purpose of the case and need not detain us from examining the real controversies in issue.
III. Meaning of 'materially affecting the result'
10. As to the nature of pleadings and the proof that has to be adduced to vitiate the election, the learned Senior Counsel, Sh. Palli referred to the decision in Vashist Narain Sharma Vs. Dev Chandra and others AIR 1954 SC 513(1) that dealt with an election petition under the Representation of the People Act where a similar expression, 'the result of the election as being materially affected' was sought to be explained. The Hon'ble Supreme Court also explained in the said judgment how the burden of proof is to be discharged, which underlines the legal proposition in the following words:-
"The words "the result of the election has been materially C.W.P. No.9227 of 2009 -13- affected" indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate."
Elsewhere in the said same judgment, the Hon'ble Supreme Court while dealing with Section 100(1)(c) of the Represention of People Act held in the context of an improper acceptance of votes held:
"The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the grounds of improper acceptance of a nomination paper, but neither the tribunal nor this Cout is concerned with the inconvenience resulting from the operation of the law."
11. In this case, we have not a situation of any improper votes as having been received, which is convered under Rule 85(d)(i), but the material irregularity in the procedure for election is what is put to test. This decision will have an immediate bearing to us about how the material irregularity complained of is contained through an inclusive expression found in the explanation that it could also be C.W.P. No.9227 of 2009 -14- for non-compliance with the provisions of the Act and the Rules. It must be immediately noticed that the non-compliance of the Act or the Rules must have the effect of rendering void the reception of any vote. In our present context, tick-marking the vote or the entry of the serial number in the ballot paper must have the effect of rendering the vote cast itself as void.
(a) Relevant rules to be applied for the election of President distinct from other class of election of ordinary members
12. Sh. Satya Pal Jain, learned Senior Counsel appearing for the respondent would submit that Rules 1 to 69 as contained in the Rules themselves have no relevance, in so far as they make reference to the form of ballot papers, the voting and counting of votes, the appointment of election agents etc., for they referred to the election of ordinary members of the Municipal Council and the relevant provisions would be only from Rule 70 onwards. Rule 70 refers to the oath of allegiance and election to President, which spells out completely a different procedure. Rule 70 reads as follows:
"70. Oath of allegiance and election of President etc.-
(1) The Deputy Commissioner or any gazetted officer appointed by him in this behalf shall, within a period of [thirty days] [Substituted for the words "fourteen days vide Haryana Notification No.GSR 84/HA24/73/S.257 and 276/94 dated 28.12.1994] of the publication of the notification of the names of the members elected to a committee convene the first meeting of the newly-
constituted committee at forty-eight hours notice to be delivered at their ordinary place of residence. The notice shall clearly state that the oath of allegiance will be administered to the members present, and that the election of President and Vice Pesident [-] [Words "or Vice- President" omitted by Haryana Notification C.W.P. No.9227 of 2009 -15- No.S.O.72/HA24/73/S.257 and S.276/94 dated 19.08.1994] shall be held in the meeting. The convener shall administer the oaths to the members and shall preside over the meeting till the election of the President and the Vice-President. Such meeting shall be deemed to be a validly convened meeting of the Committee. Notwithstanding anything contained in any bye-laws, made under the provisions of Section 31 of the Act, the administration of the oath of allegiance and the election of the President and Vice-President shall be recorded as part of the proceeding in the minutes of the meeting. (2) The oath of allegiance shall be administered to a member who was not present at the meeting convened under sub-rule (1) or to member elected or nominated to fill a cause vacancy subsequently by the Chairman of the meeting at which such member appears to take such oath. (3) The terms of office of the President shall be for five years or the residue of the term of his office as a member whichever is less. The President shall be elected from amongst the members of the Committee. [Substituted vide Haryana Notification No.GSR 78/HA24/73/S.257 and 276/94 dated 6.12.1994.] (4)..........................
13. The SDO under Rule 70 had a clear role to publish the notification of the names of the members elected to a Committee and to convene the first meeting of the newly constituted committee at 48 hours notice when he shall hold the election of the President and Vice President. The convener shall preside over the meeting till the election of the President and Vice President and he shall administer to them the oath of allegiance and he shall record the election of the President and Vice President as part of the proceedings in the minutes of the meeting. Rule 71 sets out the procedure for the election of the President and Vice President in that it describes that if only one candidate each for the offices of the President or Vice President is proposed, such candidate shall be C.W.P. No.9227 of 2009 -16- declared to have been duly elected. If the number of proposed candidates is more than one for each office, the voting shall be by ballot. Rule 71 also specifies the members present shall be required to vote by writing 'yes' or 'no' on the ballot paper and the candidate gettingthe maximum number of voted should be declared to be elected. It will be better to reproduce the exact provision for accuracy:
"71. Ballot to be taken and result thereof: (1) [If only one candidate each for the offices of the President or Vice President is proposed, such candidate shall be declared to have been duly elected. If the number of proposed candidates is more than one for each office, the voting shall be by ballot. The members present shall be required tovote by writing "Yes", or "No" on the ballot paper. The candidate getting the maximum number of votes shall be declared to have been elected. Special ballot paper shall be used for such voting, each bearing an official mark to be placed thereon by the Deputy Commissioner.] [Substituted by Haryana Notification No.S.O.72/HA24/73/S.257 and S.276/94 dated 19.08.1994.] (2) [Omitted] [Omitted by Haryana Notification No.S.O.72/HA24/73/S.257 and S.276/94 dated 19.08.1994.] (3) All ballot papers used for such voting shall, immediately after the counting of votes has been completed, be enclosed in the stout envelop members present thereat and the description of the election to which the ballot papers relate shall be inscribed thereon and such envelope shallbe enclosed in another large envelope which shall be addressed, and delivered to the Deputy Commissioner. The Deputy Commissioner shall preserve the inner envelope intact until the expiry of the one year from the date of the election, and shall then, subject to any direction to the country made by the State Government, a competent court, or a person or person appointed to hold an enquiry into an election under Part V of these rules cause it be destroyed with ins contents. (4) [Omitted] [Omitted by Haryana Notification C.W.P. No.9227 of 2009 -17- No.S.O.72/HA24/73/S.257 and S.276/94 dated 19.08.1994.]
14. Section 72 details the procedure in case of the equality of votes of which we are not concerned. Rule 73 sets out the corrupt practices and Rule 74 states that an election cannot be questioned except by an election petition filed under Section 75. Rule 76 makes reference to the contents of petition and Rule 85 details the grounds for declaring the election to be void. It could be seen that the Hand Book for Returning Officers issued by the State Election Commission, Haryana which makes reference under Clause 20 to a register of voters to be prescribed in Form 12 containing the details of the serial number of the elector, the signature etc. is to be applied only for election of ordinary members and cannot be used for election of the President or the Vice President. Clause 20 which refers to the fact that the register as a substitute for the counterfoil of the ballot paper, which is used in the conventional system of voting must be read in the context of Form 12, which makes reference to Rule 69G, 69H(7), 69M, 69(P)(1)(b) and 69X(1)(e), of the Rule 1978 which do not apply for election to the office of the President. Form 12 from Clause 20 is reproduced as hereunder:
FORM 12 [See Rules 9G, 69H(7), 69M, 69(P)(1)(b) and 69X(1)(e), Form 18] REGISTER OF VOTERS Election to the Municipality.........from Ward No.............Number and name of polling station...................... Part number of electoral roll...............................
On each page of the Register, there should be C.W.P. No.9227 of 2009 -18- provision for recording the electoral roll serial numbers and obtaining of signatures/thumb impressions of electors.
Both sides of the paper should be used for printing the Register.
The Register prepared by the SEC containing 13 pages (printed both sides) is for 520 entries and one additional register containing 7 pages (printed both sides) for 266 entries. If number of entries exceeds more than 520, a small register provided at each polling station may be used, if the number of electors exceeds more than 750 additional register may be used as per suitability.
You should get the above Registers in sufficient quantity well in advance from the SEC.
(b) Instruction of State Election Commission for the type of ballot paper to be used for the election of President not followed
15. The learned Senior Counsel, Sh. Jain referred to the instructions given by the State Election Commission to the Deputy Commissioner, Panchkula regarding the election to the office of the President and Vide President of the Municipalities that gave the details of the nomination papers and the ballot papers that had to be used. The said form is reproduced here:
FORM OF NOMINATION PAPER FOR ELECTION FOR THE OFFICE OF PRESIDENT/VICE PRESIDENT OF MUNICIPAL COUNCIL / COMMITTEE.
Name of Municipal Council/Committee______________ Name in full of candidate_________________________ Full Address ____________________________ Name in full of proposer:________________________ Name in full of Seconder________________________ Signature of the Seconder________________________ C.W.P. No.9227 of 2009 -19- It is to be also noticed that the form of ballot papers, which is given is distinct and does not refer to any counterfoil or a register as prescribed in the Hand Book. It is in some sense a special instrument for the election of the President and the Vice President. The instruction contained in the communication dated 17.04.2003 also includes detailed procedure for the Deputy Commissioner to follow while acting as a convener for the election of the President and the Vice President at the first meeting of the members. The certificate of scrutiny (wrongly expressed in the communication as certificate of security) sets out other aspects, which the Deputy Commissioner is required to do such as scrutiny of the eligibility of the candidates, the nomination of the President to be in the prescribed form, the objections that could be entertained at the time when the nominations are either accepted or rejected, to read out the names of the duly nominated candidates, etc. Clause (vii) specificially sets out as under:
"That the Deputy Commissioner or the officer appointed by him shall assign serial number to each candidate with reference to their names written alphabetically in Hindi in Devnagri Script and then announce to the members serial number assigned to each candidate."
Clause (viii & ix) contain reference to the Form of Ballot Paper and how the authentication shall be done by the signature of the Deputy Commissioner. The relevant clauses are :
"(viii) That the Deputy Commissioner or the C.W.P. No.9227 of 2009 -20- Officer appointed by him shall cause the ballot paper to be prepared in the following form:
BALLOT PAPER ..................... Municipal Council/Committee .....................name of candidate(s) for election of .....................
Signature of the Deputy Commissioner or the Officer appointed by him with his official seal.
(ix) That the ballot papers shall be signed by the Deputy Commissioner or the Officer appointed by him and one paper each shall be handed over to each elected member present for each election, who shall put a cross (X) against the candidate for whom he wishes to vote. If a member is unable due to illiteracy, blindness or other physical infirmity to record his vote, the Deputy Commissioner or the Officer appointed by him of the meeting shall record the vote on ballot paper in accordance with the wishes of such member. The ballot paper shall not be signed by the member nor be marked in any other way that could reveal his identity. If the paper is so signed or marked or mutilated, the C.W.P. No.9227 of 2009 -21- vote shall be void."
Clause (xii) refers to situations when a ballot paper shall be held as invalid:
"(xii) That a ballot paper shall be invalid:-
(a) if it bears the signatureof the member or contains word,or any visible representation by which he can be identified; or
(b) if marks are placed thereon against more than one candidate; or
(c) if the mark is so placed thereon as to make it doubtful for which one or two or more candidates the vote was intended to be given; or
(d) if no mark is placed thereon; or
(e) if it does not bear the signature of the prescribed authority."
(c) Distinguishing features of election of the President and the election of members
16. It should be noticed that Clause (vii) which requires a serial number to be assigned to each candidate does not make reference to any serial number of the ballot paper. The serial number to a candidate is only to assure the presence of a candidaate and his/her participation in the electoral process. Clause (xii) specifically states that any form of visible representation by which he can be identified renders the ballot paper invalid. It is not denied that it is possible to identify the candidate from the ballot C.W.P. No.9227 of 2009 -22- paper with reference to the serial number found in the ballot paper with the record sheet/register that is retained by the convener of the meeting. These instructions dated 17.04.2003 are definitely at variance with the form and language of ballot papers issued through the instructions that the State Election Commission issued on 24.07.2001. Indeed the instructions dated 24.07.2001 in its preamble set out that the ballot papers for election to the Municipal Councils and Committees in the State of Haryana shall be prepared and printed in devnagri script and its form and design shall be as prescribed. The instructions referred to the counterfoil, serial number of ballot paper etc. By the fact that the subsequent instructions dated 17.04.2003 makes a different form of ballot papers for the office of the President and Vice President which are at variance of the directives dated 24.07.2001, it should only be understood as covering a distinct situation.
17. The learned Senior Counsel for the petitioner, Sh. Palli would submit that this instruction was not even known to the petitioner at the time of filing of the petition and that if they were only following the Hand Book of the Returning Officer and the corresponding register as issued by the State Election Commission, no prejudice could be attributed. In my view, the Hand Book must be understood as applying only for election of members of the Municipal Council and not to the election of the President and Vice President which are governed by distinct instructions. The expressions found in the Hand Book for Returning Officers are C.W.P. No.9227 of 2009 -23- wide enough, in that it uses to include all types of elections to Municipal Council but by the very fact that it details procedure for acceptance of nomination of members, appointment of poll agents, voting through machines or postal ballots, they cannot be applied to the election of the President or the Vice President. We have already observed that Rule 70 contemplates a distinct procedure. To list out some of the features, there can be no question of appointing a polling agent for a candidate contesting for the post of the President, there can be no postal ballot and there can be no voting machine. The members are elected directly while the election to the President or Vice President is through an indirect election. The election of members would be on party lines while the elections of the President or the Vice President are above party considerations. The electoral college of the members is drawn from a wide constituency of the Municipality, while the election of the President and the Vice President is from a definite small body of persons, who are present and voting at the meeting called by the convener in the manner referred to under Rule 71.
(d) Effect of statutory violations, in the context of right of election is only statutory but not a fundamental right
18. Learned Senior Counsel, Sh. Satya Pal Jain appearing for the respondent refers to a decision in Ram Phal Kundu Vs. Kamal Sharma JT 2004(Suppl.2) SC 336, which dealt with the case under Representation of the People Act, 1951. The judgment was rendered in the context of substitution of election symbols by a C.W.P. No.9227 of 2009 -24- political party and how it shall be done in form as prescribed under the relevant orders. The Hon'ble Supreme Court was laying down the need for strict observance of the thing to be done under the Election Rules and the Symbols Order of 1968. The Hon'ble Supreme Court referred to the rule laid down in Taylor Vs. Taylor [1876 (1) Ch.D. 426] when it said that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule was followed by the judicial committee in the Privy Council in Nazir Ahmad Vs. King Emperor AIR 1936 PC
253. Applying the principles, the Hon'ble Supreme Court held that the question as to who shall be deemed to have been set up by a political party should be strictly in accordance with Paras 13 and 13-A of the Symbols Order and any extrinsic evidence could not be used for this purpose, unless it was pleaded that the signature of the authorized person on the form prescribed had been obtained by him under a threat or fraud practised on him. A direct application of this principle may not be possible in our case. The decision in Ram Phal Kundu's case (supra) dealt with the situation of rejection of nomination of one candidate and acceptance of nomination of another as an official candidate of a political party. The very same judgment had also held that the success of a candidate, who has won at an election should not be lightly interfered with. Any petition seeking such interference must strictly conform to the requirements of the law. Though the purity C.W.P. No.9227 of 2009 -25- of the election process has to be safeguarded and the court shall be vigilant to see that people do not get elected by flagrant breaches of law or by committing corrupt practice, the setting aside of an election involves serious consequences not only for the returned candidate and the constituency, but also for the public at large inasmuch as re-election involves an enormous load on the public funds and administration. There the election petition, which was filed to set aside an election was dismissed. There is no lesson that could be learnt from this decision to be applied to the facts of this case.
19. Jyoti Basu and others Vs. Debi Ghosal and others AIR 1982 SC 983(1) is more apposite in that, it lays down that election disputes have to be confined within the four corners of the statutes and the relevant rules. The Hon'ble Supreme Court held that:
"....A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. 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 C.W.P. No.9227 of 2009 -26- rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodies. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket...... Stressing on the strict observance of procedures as laid down by statute relating to Election Laws, the Hon'ble Supreme Court held in Parmar Himmatsingh Jugatsingh Vs. Patel Harmanbhai Narsibhai AIR 1974 SC 951 that wherever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence.
20. The learned Senior Counsel Sh. Jain referred to the decision Sudesh Kumar Aggarwal Vs. State of Punjab 2001(3) R.C.R. (Civil) 454 that dealt with the case under Punjab Municipal President and Vice President Election Rules, 1994. The rule required the election by ballot by writing 'yes' or 'no' on the ballot paper. In that case, a Councillor who had cast his vote by tick- C.W.P. No.9227 of 2009 -27- marking the same instead of writing 'yes' in front of the name of the candidate was treated as having cast an invalid vote. The Division Bench also dealt with the situation where when the rules provided for marking only 'yes' or 'no', same ballot papers contained a writing of 'yes' and 'no'. The Court found that if an act was required to be done in a prescribed manner, it can only be done in accordance with the said procedure. The votes cast with reference to 'yes' or 'no' and tick-marking were found to be invalid. The Division Bench answers, therefore, a problem that had been raised in the writ petition that the manner of casting a valid vote had also not been correctly done.
21. It is no answer to a challenge raised by a member that the procedure had not been followed and that there was a material irregularity to state that the members had not raised such an objection. There cannot be any estoppel against the statute. If there was a material irregularity that resulted in the vote cast being void, the obvious effect is that the acceptance of such void vote would also amount to affecting the ultimate decision in the electoral process. The juxtaposition of the expression 'material irregularity' with 'affecting the result' as found in Rule 86 must be understood in such a way that if there was a material irregularity in the procedure and such a material irregularity included reception of any vote, which was void, it could only be understood that it materially affected the result of the election. The meaning of material irregularity itself will be rendered otiose, if there could C.W.P. No.9227 of 2009 -28- exist a material irregulairty that did not materially affect the result of the election. The adjective 'material' to 'irregularity' has a meaning only because it leads to affect the result of the election. If it was mere irregularity, it may not affect the result. But if the irregularity in this case could be seen from the context of enabling a person to identify the voter by any process, which in this case obtains through serializing the ballot paper and retention in the register the very same serial number against his name that enables the identification, it vitiates secrecy. In my view, that such a comparison was not made by opening the seal containing the register is irrelevant. Even the argument that other persons had not come to give evidence that they were affected in their free volition by the fact that the serial numbers found in the ballot papers had been noted in the register is equally unimportant. The Rules lay down the prospect of mischief of a breach of secrecy and even if one candidate complains that the process adopted created an apprehension in his mind that the secrecy was likely to be breached, that is good enough to sustain the challenge. The manner of casting the vote signifying the preference to a candidate had also been breached and the decision of the Division Bench in Sudesh Kumar Aggarwal's case specifically covers the field. The decisions of the Election Tribunal and the Appellate Court are sustained also on additional ground relating to the manner of marking by way of expression of choice amongst the candidates, which I hold as not having been in compliance of Rule 71 and all C.W.P. No.9227 of 2009 -29- the votes cast were invalid.
22. Both the writ petitions, therefore, fail and they are dismissed. Learned Senior Counsel appearing for the respondent states that the Government itself ought not to have preferred the writ petition and the writ petition filed by the official respondents, which was a replication of the writ petiton filed by the petitioner in C.W.P. No.9227 of 2009 clearly betrayed the partiality of the official respondents. The learned Senior Counsel seeks for imposition of costs for supporting an unworthy cause by making reference to a decision in Mahender Pratap Vs. Krishan Pal and others JT 2002 (10) SC 30. I am not prepared to go as far as to hold that the Government was trying to support an unworthy cause but still it could be noticed that the Government officials had not strictly followed the statutory rules.
10. The writ petition filed in C.W.P. No.9227 of 2009 is dismissed without costs and C.W.P. No.9452 of 2009 is dismissed with costs assessed at Rs.10,000/-. The direction contained by the Election Tribunal shall be applied afresh by furnishing fresh ballot papers in the manner set out in the instructions of the State Election Commission dated 17.04.2003 and casting vote in the manner prescribed under Rule 71 of the relevant Rules. The electoral process shall be concluded within a period of 4 weeks.
(K. KANNAN) JUDGE January 08, 2010 Pankaj*