Punjab-Haryana High Court
Joginder Kaur vs Anju And Ors. on 29 August, 2006
Equivalent citations: AIR2007P&H144, (2007)145PLR299, AIR 2007 PUNJAB AND HARYANA 144, 2007 (5) ALL LJ NOC 799, 2007 (6) ABR (NOC) 885 (P&H), 2007 (5) AKAR (NOC) 674 (P&H), 2007 AIHC NOC 480, (2007) 2 LANDLR 368, (2007) 1 PUN LR 299(2), (2006) 4 RECCIVR 720
JUDGMENT S.N. Aggarwal, J.
1. The elections of Municipal Council, Kharar had taken place on 9.3.2003. Joginder Kaur-appellant and Anju-respondent No. 1 had mainly contested the elections against each other among others in Ward No. 4. The results were declared on the same date and Joginder Kaur-appellant was declared elected for having secured 608 votes against 605 votes secured by Anju-respondent No. 1. Anju-respondent No. 1 filed an election petition on 27.7.2003. The learned Election Tribunal vide order dated 8.9.2004 directed recounting of votes on 24.9.2004. However, the appellant filed CR No. 4436 of 2004 against the said order which was accepted by this Court vide order dated 8.10.2004 and the order dated 8.9.2004 was set aside. Anju - respondent No. 1 filed Civil Appeal No. 4463 of 2005 arising out of SLP (C ) 23073 of 2004, which was accepted by the Hon'ble Supreme Court vide order dated 25.7.2005. The order of this Court dated 8.10.2004 was set aside and the order of the Election Tribunal dated 8.9.2004 was restored. The parties were directed to appear before the Election Tribunal on 8.8.2005. Thereafter, the learned Election Tribunal held recounting of votes on 16.8.2005, in which it was found that Anju-respondent No. 1 secured 609 votes, while Joginder Kaur secured 608 votes and the file was adjourned for arguments of remaining issues on 24.8.2005 and after arguments, the learned Election Tribunal vide order dated 29.8.2005 accepted the election petition by which the election of Joginder Kaur-appellant was set aside and Anju-respondent No. 1 was declared elected having secured one vote more than the votes secured by Joginder Kaur-appellant. Aggrieved against this order, the present appeal has been filed by Joginder Kaur-appellant.
2. One of the points which had come up for consideration before the Election Tribunal was that there were two voters at serial number 1161 and 1162 in the voter's list of Ward No. 4, who had polled their votes. It was objected to by the respondent on the plea that they were underage and were not eligible to be voters. The objections were filed in the statutory form after depositing the necessary fees. The Presiding Officer, permitted these two voters to vote but these votes were kept in a separate envelope. Learned Election Tribunal had held that by keeping these two votes in separate envelope, the secrecy of votes has been violated and therefore, these two votes cannot be counted as valid votes. It was not disputed that these two votes were in favour of the appellant.
3. There is also no dispute between the parties that if these two votes are counted, the appellant shall secure one vote more than the votes secured by Anju-respondent No. 1. As a result thereof, the appellant shall stand elected as a member from Ward No. 4 in Municipal Council, Kharar. The important question before this Court is whether these two votes could be counted in the votes, secured by the appellant, or not.
4. The submission of the learned Counsel for the appellant was that admittedly, the voters shown in the voter's list at serial number 1161 and 1162 were entered as voters. Once these two persons are shown as voters, the question whether they were underage or whether they were of proper age, just pales into insignificance and cannot be gone into, either by the Election Tribunal or by this Court. In other words, once a candidate is shown as a voter, he has a right to vote irrespective of his or her age. In support of this preposition of law, learned Counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court reported as R. Chandran v. M.V. Marappan AIR 1973 Supreme Court 2362, in which it was held by the Hon'ble Supreme Court as under:
This Court has, in numerous decisions beginning from the one in Durga Shankar Mehta v. Raghuraj Singh (1955) 1 SCR 267 : AIR 1954 SC 520 and down to its latest decision in S.K. Choudhary v. Baidyanath Panjiar (1973) 1 SCR 95 : AIR 1973 SC 717 consistently held that when once a person's name has been included in the electoral roll his qualifications to be included in that roll cannot be questioned either when he tries to cast his vote or to stand for election or even after the election is over. It is not necessary to refer to all of them or to quote from them. The only exception made has been in respect of the requirement under Article 173 of the Constitution.
5. It was also held by the Full Bench of our own High Court in the judgment reported as Roop Lal Mehta v. Dhan Singh and Ors. AIR 1968 Punjab and Haryana 1, as under:
Thus Sub-section (1) of Section 82 confers the right to vote on every person whose name is for the time being entered in the electoral roll of any constituency and Sub-sections (2) to (5) are clearly in the nature of exceptions to the right conferred by Sub-section (1). It is significant that there is nothing in Section 62 to justify the view that the vote of person whose name was on the electoral roll of the constituency and who as such was entitled to vote in the constituency shall be liable to challenge if at the hearing of the election petition it could be shown that he had not attained the age of 21 years on the qualifying date. Section 62 is on the the face of it comprehensive in its scope and the disqualifications referred to in Section 16 of the 1950 Act are mentioned in Sub-section (2).
6. In another unreported judgment, titled as Darshan Lal Bhatia v. State of Punjab and Anr. CWP No. 9530 of 1996, decided on 11.9.1996, the Hon'ble Division Bench of this Court was pleased to observe as under:
From the above quoted decisions of the Supreme Court and that of this Court, which has been approved by the Supreme Court, the principle of law which clearly emerges is that the election of a returned candidate cannot be set aside merely on the ground that some of the persons who cast their votes in favour of the returned candidate were minor on the appointed date.
7. It is, therefore, held that even if the voters shown at serial number 1161 and 1162 of the voter's list were minors, but since their names were included in the list of voters, therefore, they were entitled to vote. Neither the Election Tribunal nor this Court has any right to question the voting right of these voters entered at serial number 1161 and 1162.
8. These votes caste by the voters entered at serial number 1161 and 1162 have not been included by the Election Tribunal in the votes secured by the appellant on the plea that secrecy of ballot has been violated. It was also observed by the Election Tribunal that either these votes should have been rejected and legal proceedings should have been initiated or these votes should have been put in the ballot box. The Presiding Officer had no right to keep these votes separately in an envelope. Therefore, the violation of the secrecy of ballot has nullified these votes and these cannot be taken into consideration while counting the votes.
9. On this premise, the submission of the learned Counsel for the appellant was that secrecy of ballot is no doubt sacrosanct but it cannot be used for defeating the election process. No doubt, it was held by the Hon'ble Supreme Court in the judgment reported as P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors. AIR 1989 Supreme Court 640 that secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. But at the same time, the secrecy of ballot cannot be raised to such a high pedestal that it amounts to defeat the election process. Hon'ble Supreme Court was pleased to observe in the judgment reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. AIR 1980 Supreme Court 1362 as under:
The interpretation of Section 94 which appeals to us ensures free and fair elections. Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basis postulate of democracy would be utilised for undoing free and fair elections which provide life-blood to Parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, a suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections.
10. Reference may also be made to the latest judgment of the Hon'ble Supreme Court reported as Nayini Narasimha Reddy v. Dr. K. Laxman and Ors. AIR 2006 Supreme Court 2050 in which it was held by Hon'ble Supreme Court in para 21 as under:
Secrecy of ballots was necessary for ensuring free and fair elections; but by reason thereof the concept of purity of election cannot be given a go-by.
11. It was further held by Hon'ble Supreme Court in para 28 as under:
The second question is whether, the evidence of the witness would breach the secrecy of the election process. It has been held by this Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors. (1980) Supp SCC 53 and A. Neelalohithadasan Nadar v. George Mascrene and Ors. (1994) Supp (2) SCC 619 that the purity of the election process is more important than the privilege conferred by Section 94 of the Act. This Court has recognized that the secrecy of voting could be breached to subserve a larger public good, namely, to prevent a fraud on the election process. My learned brother has dealt with this aspect and I am in agreement with him.
12. It was also submitted by the learned Counsel for the appellant that if some mistake is committed by the Presiding Officer, by keeping the ballot paper in a separate envelope, instead of putting it in the ballot box, the appellant should not be made to suffer. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as Hari Shankar Prasad v. Shahid Ali Khan and Ors. AIR 2003 Supreme Court 1302, in which the Hon'ble Supreme Court was pleased to observe as under:
On consideration of all the material available on the record, we find that the wrong stamp was made available to the voters by the polling officer. That being the position, such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner-appellant also as per the directions of the Election Commission.
13. Reference was also made to the judgment of the Hon'ble Supreme Court reported as Vadivelu v. Sundaram and Ors. AIR 2000 Supreme Court 3230, in which it was held by the Hon'ble Supreme Court as under:
Therefore, a harmonious construction of Rules 51 and 63 would show that in order to reject a postal ballot paper the same should have lacked both the features, viz., the signature of the Presiding Officer as well as the distinguishing mark of the Polling Station. In the instant case, it is evident that due to some mistake or inadvertence, the Presiding Officer did not sign these ballot papers. The absence of signatures under the circumstances could not invalidate the ballot paper, which bore the distinguishing mark of the Polling Station. Therefore, the commissioner went wrong in declaring these votes as invalid. That apart, it may be noted that had these votes been treated as valid by the Commissioner, even on recount, the Ist respondent would have secured the highest number of votes.
14. Therefore, on the principle of law enunciated by the Hon'ble supreme Court, the conduct of the Presiding Officer in keeping the votes of candidates entered at serial number 1161 and 1162 of the voter's list in separate envelope and not putting the same in the ballot box should not be used as a stick to beat the appellant or to her disadvantage. These are to be counted as validly cast votes. The submission of learned Counsel for respondent No. 1 was that this point was already gone into by the Election Tribunal in the order dated 8.9.2004 that these ballot papers cast by the voters entered at serial number 1161 and 1162 cannot be taken into consideration. This order was upheld by the Hon'ble Supreme Court in the order dated 25.7.2005 passed in Civil Appeal No. 4463 of 2005 and therefore the chapter stands closed. It can neither be re-agitated by the appellant nor this Court has the jurisdiction to go into it. This submission has to be examined in the context of the order passed by the Election Tribunal and order passed by the Hon'ble Supreme Court on 25.7.2005. A perusal of the order dated 8.9.2004 reveals that the Election Tribunal had held in the order dated 8.9.2004 that secrecy of ballot has been breached, as ballot paper of voters at serial number 1161 and 1162 were kept separate. Secondly, that some votes were rejected, which was not done by the Presiding Officer in accordance with law and thirdly, the signatures of the polling agents were not obtained by the Presiding Officer at the time of counting and after the counting. For these reasons, the Election Tribunal had passed the order for recounting of votes. After narrating these circumstances, the Election Tribunal had held in the order dated 8.9.2004 as under:
Keeping in view of the aforesaid facts and for the removal of doubts it is necessary that the recounting be done so that the candidates would be satisfied in relation to counting of votes and its result. Therefore, before deciding this petition finally, I hereby order the recounting of votes.
15. The order of recounting dated 8.9.2004 was set aside by this Court vide order dated 8.10.2004. However, the Hon'ble Supreme Court vide order dated 25.7.2005 had set aside the order of this Court dated 8.10.2004 and was pleased to restore the order of the Election Tribunal passed on 8.9.2004. The question before the Hon'ble Supreme Court was only whether the order of recounting was justified or not and the Hon'ble Supreme Court was pleased to observe that the order of recounting passed by the Election Tribunal on 8.9.2004 was legally justified. The Hon'ble Supreme Court was further pleased to observe that the High Court had not gone into the findings of question of fact recorded by the Tribunal i.e. the reasons given by the Election Tribunal justifying the recounting of votes and accordingly, the order of the High Court was set aside. The concluding observations were made by the Hon'ble Supreme Court in the order dated 25.7.2005 as under:
The appeal is allowed. The impugned order of the High Court is set aside and that of the Election Tribunal is restored. However, we make it clear that inspite of recount having taken place pursuant to the order of the Tribunal, the Tribunal shall record its findings on all contentious issues and give effect to the result of the recount only on the findings of fact arrived at by it. The parties are directed to appear before the Election Tribunal on 8th August, 2005.
16. In the operative para of the order dated 25.7.2005, the Hon'ble Supreme Court was pleased to uphold the order of recounting and the Election Tribunal was further directed that the result should be declared not only after recounting, but after deciding all other contentious issues. One of the contentious issues before the Tribunal was whether the votes cast by the voters entered at serial number 1161 and 1162 were to be counted in favour of the appellant or not. It was in this contest that even the Election Tribunal in the impugned order dated 29.8.2005, after recounting of votes, had held as under:
It is clarified that above said figure relate to recounting as per Zimni orders, the final decision is not to be taken on the sole basis of that rather as per the orders of Hon'ble Supreme Court, other issues like minor voters on the casted minor votes and double votes casted and hearing the parties final order is to be passed.
17. Even after noticing that this contentious issue is also to be decided by the Election Tribunal, thereafter the Election Tribunal again fell into the trap laid by respondent No. 1, while arguing that this chapter stands closed after the Hon'ble Supreme Court had upheld the order dated 8.9.2004. The following observations were made by the Election Tribunal:
The contention of counsel for respondent No. 1 that challenged votes No. 1161 and 1162 which were put into separate envelop and were keep out of counting, these votes were casted in favour of respondent No. 1, the same may be counted in favour of respondent No. 1 but I am not satisfied with plea of the counsel of respondent No. 1 because secrecy of these votes was violated. The name of the their persons and casted their votes whose favour all these facts are stated by Sher Kaur in her statement. Consequent upon inquiry, all the facts were found correct, so due to violation of the secrecy of these invalid votes, it cannot be counted in favour of any candidate regarding which it was clarified the orders dated 08.09.2004 for counting the votes. The Hon'ble Supreme Court upheld the order dated 25.07.2005 which is correct. Due to this, I do not agree with the plea of the counsel for the respondent No. 1.
18. Therefore, the findings of the Election Tribunal are not in consonance with the order passed by the Hon'ble Supreme Court on 25.7.2005.
19. The Hon'ble Supreme Court had upheld the order passed by the Election Tribunal directing recounting after giving reasons and one of the reasons given by the Election Tribunal was that the voters at serial number 1161 and 1162 were minors and that secrecy of the ballot was breached. There were other reasons also.
20. The tenor of the order passed by the Hon'ble Supreme Court clearly reveals that these findings recorded by the Election Tribunal dated 8.9.2004 were not made final. These were considered as only the reasons given by the Election Tribunal for ordering recounting, which was clear from the order dated 8.9.2004. Only the order of recounting was upheld by the Hon'ble Supreme Court. The Hon'ble Supreme Court was further pleased to direct the Election Tribunal to decide other contentious issues besides recounting of votes. If it is taken that the Hon'ble Supreme Court had upheld the order dated 8.9.2004 as a whole including the reasons given by the Tribunal for recounting, then the Hon'ble Supreme Court would not have directed the Election Tribunal to decide contentious issues also, besides recounting. Although the Election Tribunal noticed it, but it again fell into an error by presuming that the findings recorded in the order dated 8.9.2004 had been upheld by the Hon'ble Supreme Court.
21. The above discussion reveals that this contentious issue was to be re-decided by the Election Tribunal and it was not to be considered as having been concluded in the order dated 8.9.2004 and the said order having been upheld by the Hon'ble Supreme Court vide order dated 25.7.2005.
22. The next submission of learned Counsel for respondent No. 1 was that under the law, only those votes could be counted which were taken out of the ballot box. Reference was made to Rules 78, 79, 80 (1), 80(7) and 81 of the Punjab Municipal Election Rules, 1994 in support of his submission.
23. This submission has been considered. No hyper-technical meaning can be given to the words ballot box. It has been held that the voters at serial number 1161 and 1162 were entitled to vote as their names were included in the voter's list. Their votes have been kept in a separate envelope. That also amounts to the ballot box. As it was the fault of the Presiding Officer, not to have placed these votes in the ballot box, therefore, these two votes have to be counted. Once these two votes are counted, the votes of the appellant shall rise to 610, while the votes of Anju -respondent No. 1 remain 609. As a result, therefore, the appellant gets more votes than respondent No. 1 and is entitled to be declared elected.
24. Therefore, this appeal is accepted. The order of Election Tribunal dated 29.8.2005 is set aside and the appellant is declared elected as member Municipal Council, Kharar, Ward No. 4.