Karnataka High Court
Shivaram vs Kashiraya Devanagouda Patil on 14 October, 1986
Equivalent citations: ILR1987KAR287
ORDER Doddakale Gowda, J.
1. In an election held on 4-8-1983 for Chairmanship of Agricultural Produce Marketing Committee (hereinafter referred to as 'APMC'), Bijapur, petitioner and first respondent were contestants; second respondent-Tahsildar, Bijapur was the Returning Officer. Petitioner secured 8 votes, whereas first respondent secured 7 votes. But on objection raised by first respondent, one of the ballot papers marked in favour of petitioner was rejected on the ground that marking is not with instrument provided, but with a ball pen. Resultant position was, both secured 7 each and luck having favoured first respondent in lots drawn, he was declared elected.
2. Election Petition No. 1 of 1983 filed by petitioner challenging the validity of declaration of result of election has been dismissed by learned District Judge, Bijapur holding rejection as valid. It is the validity of an order, dated 6-8-1984 passed by the District Judge dismissing election petition as well as declaration of result of election by second respondent that are challenged in this Writ Petition.
3. Section 41 of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (hereinafter referred to as the 'Act') provides machinery for conduct of election of Chairman and Vice-Chairman of APMC. Amended Sub-section 2A provides mode of conduct of election and it reads thus :--
"(a) Candidates for the office of the Chairman shall be proposed by one member and second by at other. The names of all members proposed and seconded shall be read out by the Presiding Officer ;
(b) if any of the candidates desires to withdraw, he may do so in writing. The names of the contesting candidates shall then be read out by the Presiding Officer ;
(c) if there is only one candidate, he shall be declared to have been elected as the Chairman. If there are two or more candidates, votes of the members present at the meeting shall be taken by ballot and the candidate securing the highest number of votes shall be declared to have been elected as the Chairman ;
(d) in case of equality of votes, the result shall be decided by drawing lots."
Under Sub-section (4) of Section 41 of the Act, District Judge is empowered to adjudicate the dispute. Rules 44A to 44J providing for filing of nomination paper, scrutiny, prescribing procedure for conduct of election including scrutiny of ballot papers have been deleted as per Notification No. RDC. 221. MMD 76. dated 21-10 1976. But Form No. 25 prescribing form of ballot paper is retained.
Act contemplates three types of election (i) members to APMC ; (ii) Chairman and Vice Chairman of APMC ; and (iii) election to State Agricultural Marketing Board. Section 21 provides grounds on which an election of a member of APMC can be set aside by a Munsiff, if challenged. Rule 35 prescribes the mode of scrutiny of ballot paper. Likewise, Sections 103 and Rules 88(A) to (I) provide for determination of validity of election of member to State Agricultural Marketing Board and Scrutiny.
4. Faced with this situation (deletion of Rules 44(A) to 44 (J)), Returning Officer appears to have decided to adopt procedure prescribed for election of a member. Consequently, he instructed all the members to put 'X' mark with instrument furnished as against name of the candidate to whom they intend to vote. As has already indicated one of the ballot paper contained 'X' mark, marked with ball pen, it was rejected as invalid. Reason assigned is that marking is opposed to instructions given by Returning Officer. Learned District Judge is also of the view that on deletion of Rules 44(A) to 44 (J), decision of Returning Officer to adopt procedure prescribed in Rule 35 for the purpose of conduct of election of a Chairman cannot be said to be illegal.
5. Contention of Sri Shivaraj Patil, learned Counsel for petitioner, is unless Act or Rules framed thereunder, prescribe mode of exercise of franchise (marking) be it with instrument or with ball pen, rejection of ballot paper cast in favour of petitioner on the ground that 'X' is marked with ball pen, is illegal and without jurisdiction.
Sri Jayakumar S. Patil, learned Counsel for contesting respondent, tried to sustain the finding on the ground that in the absence of specification or guideline prescribed for rejection of a ballot paper, adoption of procedure prescribed for scrutiny of a ballot in election pf a member of APMC by Returning Officer is just and proper.
6. Sub-section (4) of Section 41 of the Act does not specify grounds on which an election can be set aside Section states that dispute relating to validity of an election shall be decided in accordance with 'such rules as may be prescribed', (underlining is of mine). After deletion of Rule 44 (A) to 44(J) no rule is framed by Rule Making Authority for scrutiny of ballot papers in election of Chairman and Vice-Chairman similar to Rule 35(5)(b) and Rule 88(G)(2).
Under such circumstances, as most of us are oriented by common law, matters are adjudicated "on the basis of justice, equity and good conscience" in the absence of statutory provision, fiat regarding adoption of this principle there is an abundant clash of judicial debate. To illustrate, this Court in Hayat Beig v. Munivenkate Gowda and Ors., 1972 (1) K.L.J. 121, when required to adjudicate the validity of an election of a Chairman of Village Panchayat held thus :--
"It appears to us that the Rule Making Authority has by oversight omitted to frame a Rule stating the grounds on which the election of a returned candidate shall be declared to be void. In the absence of any such Rule, we fail to see how the Munsiff exercising his powers under Section 30(2) read with Rules 17 and 18 of the Rules can try an Election Petition. The Munsiff under the Act exercises his powers not as a Court but as a Tribunal. He has no inherent powers of a Court. Therefore the Munsiff could not have set aside the election of the petitioner."
This view appears to be in consonance with the declaration of law by Supreme Court in Banwari Dass v. Sumer Chand, , which reads thus :--
"The Court cannot bridge the gap or supply this apparent omission in the Corporation Act with regard to a returned candidate's claim to recriminate, by importing principles of common law or equity, the maxim casus omissus of oblivioni latus disnositioni communis juris relinquitur being inapplicable to the construction of election statutes. A right to file an election petition or a recriminatory petition which, in substance, is a counter-election petition, being the mere creature of statute, unknown to common law, the appellant, in the absence of a clear statutory provision, is not entitled to recriminate on any of the grounds mentioned in Section 17."
Supreme Court in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman, AIR 1985 SC 1233, while examining the validity of new device adopted for recording of franchise has stated thus :--
"There is no provision in either the Act of 1950 or the Act of 1951 which would justify the proposition that the directions given by the Election Commission have the force of law. Election Laws are self contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials. Therefore, in the absence of a provision to that effect, it would not be correct to equate with law, the directions given by the Election Commission to the Chief Electoral Officers. The Election Commission is, of course, entitled to act ex debito justitiae, in the sense that it can take steps or direct that steps be taken over and above those which it is under an obligation to take under law. It, is therefore, entitled to issue directions to the Chief Electoral Officers. Such directions are binding upon the latter but, their violation cannot create rights and obligations unknown to the Election Law."
View expressed in Hayat Beig's case, 1972 (1) K.L.J. 121, Latter on, held to be obiter in Channe Gowda v. State of Karnataka, 1975 (2) KLJ 235; where a similar question arose under the Karnataka Co-operative Societies Act, Venkataramiah, J., (as he then was) distinguishing the decision ia Hayat Beig's case, 1972 (1) K.L.J. 121, held thus :-
"Although there are no provisions in the Karnataka Cooperative Societies Act, 1959, corresponding to Sections 100 & 101 of the Representation of the People Act 1951, setting out the grounds on which the election to Co-operative Societies can be set aside, it is open to the Registrar or the Arbitrator to rely as far as possible upon the large volume of judicial precedents under the election law and to decide the dispute relating to election on the basis of justice, equity and good conscience. But while doing so he should steer clear of principles which are contrary to or not warranted by the Act."
(underlining is of mine) This view was found favour by a Division Bench of this Court in Kalliah Nagaiah v. Basappa Tirakappa and Ors., 1978 (2) KLJ 378 and it is held thus :-
"Though neither the Act nor the rules provided on what ground an election for the office of the Chairman of the Marketing Committee could be set aside, the District Judge as Election Tribunal could set aside an election on any of the well accepted grounds and one of such grounds is that that disobedience of, or non compliance with, any statutory provision governing such election, has materially affected the results of such election."
The other view is that when a power is conferred to do a thing, it cannot be denuded by stating that there is no machinery or guideline for conduct or for setting aside an election and hence, adoption of any one of the modes provided in the Act, though not specific on the subject, will not vitiate an election. In Writ Petition No. 1252 of 1984 Constitution of Taxation Appeal Committee of the City of Corporation of Bangalore, was held to be invalid in the absence of a specification or mode of conduct of election viz., whether it should be by direct election or single transferable vote. On appeal, in Mayor, BCC v. K. Narayanaswamy, ILR 1986 KAR 3129, said order is reversed relying on a decision of Supreme Court in M.S.T.C. v. Gopinath Gundacbar, . But, in none of these cases, decision of Supreme Court in Banwari Dass, , is neither cited nor referred to.
7. In view of this diverse view, I heard the Writ Petition for a considerable time and on careful consideration. I have come to the conclusion that without examining this larger aspect, this Writ Petition can be disposed of with reference to instructions contained in Form No. 25 itself.
Undisputedly, Form No. 25, prescribed in schedule, annexed to the Act, being a part of the Act, Authority must adhere to and Court/Tribunal adjudicating the dispute is required to decide whether rejection of ballot paper is in conformity with instructions contained therein or not.
8. Specific instructions contained in Form No. 25 are :-
1. XX XX XX XX
2. Place a cross mark (X) clearly opposite to the name of the candidate to whom you wish to give the vote.
3. xx xx xx xx
4. The mark should be so placed as to indicate clearly and beyond doubt to which candidate you are giving your vote. If the mark is so placed as to make it doubtful to which candidate you have given the vote, that vote will be invalid."
Instructions contained therein are applicable to a voter as well as to Officer conducting election. A member exercising the franchise, is required to place a cross mark against the name of a candidate, whom he intends to elect, but it is silent as to whether 'X' mark should be by using instrument or a pen or a ball pen. As per Clause (4) extracted above, a ballot paper can only be rejected if expression of intention was not clear or ambiguous. Otherwise, there is no option, left with Returning Officer except to accept the ballot paper as valid In the presence of these specific instructions, it was not open to Returning Officer to adopt procedure prescribed under Rule 35 or adopt guidelines provided to Election Officers in 'Manual of Election', for the purpose of conduct of election to Assembly and Parliament. It is in this context, stress is laid on the observation of Venkataramiah, J., (as he then was), to the effect "one should steer clear of principles which are contrary or not warranted by the Act" before adopting what are known as well accepted principles or applying justice, good conscience or equity. Learned District Judge, without examining the implication of these instructions contained in Form No. 25, has held that there is nothing wrong in Returning Officer adopting procedure prescribed in Rule 35 after deletion of Rules 44(A) to 44(J). Ground on which ballot paper is rejected is more rigid/onerous than grounds provided under repealed Rule 44(H)(2). It is impossible to infer that Rule Making Authority on repealing these rules, has given wide discretion to Returning Officer to adopt whichever procedure he liked, be it Rule 35 or 88(G), as the case may be, ignoring instructions contained in Form itself.
9. Sri Jayakumar S. Patil, submitted that instructions contained in Form No. 25 do not form a complete code by itself for conduct of election including ground for rejection or acceptance of a ballot paper, hence, no sustenance can be derived from these instructions. It is true, there is some vehemence in that submission, but in the instant case, ballot paper marked in favour of petitioner is rejected solely on the ground that 'X' mark is with ball pea, but not using the instrument. As this ground is coveted by instructions contained in ballot paper itself, it is unnecessary for me to examine what a Returning Officer or a District Judge could or should do under circumstances not covered by instructions contained in this Form. It is true adjudication of validity or otherwise of an election under those circumstances will be in wilderness veer the arena of speculation. It may become necessary under those circumstances to decide which of the views expressed in cases cited above should be applied.
Learned Counsel for contesting respondent also contended that as Sub-section (4) of Section 44 or Rule 45 do not provide a ground on which election can be set aside, District Judge could not have interfered with the declaration of result of election. As has already indicated. Learned District Judge without examining whether Returning Officer has acted in conformity with these instructions contained in Form No. 25 has declined to interfere holding that there is nothing wrong in adopting the procedure prescribed in Rule 35. Learned District Judge has misdirected himself to issue involved, hence reached an erroneous conclusion which cannot be sustained in law. Impugned orders are liable to be quashed as illegal and without jurisdiction.
Since I have come to the conclusion that rejection of ballot paper is illegal, there is no other alternative except to allow this Writ Petition and to quash impugned orders.
10. For the reasons stated above, this Writ Petition is allowed. Order, dated 6-8-1984 made in Election Petition No. 1 of 1983 by District Judge, Bijapur and result of declaration of election by second respondent are hereby quashed. Consequently, petitioner is declared as having been duly elected as Chairman of APMC. Rule made absolute.
ORDER ON ORAL APPLICATION FOR STAY Sri Jayakumar S. Patil, learned Counsel for contesting respondent, submitted that his client is continuing as Chairman of APMC all these years and if dislodged, he would be put to irreparable loss and injury and in fitness of things, order just now pronounced must be stayed atleast for a period of fifteen days.
Sri Shivaraj Patil, learned Counsel for petitioner, submitted that first respondent who had the advantage of enjoying the office all these years on account of illegal rejection of ballot paper cannot continue to have the same privilege or benefit and circumstances do not warrant stay.
Normally, in election matters stay will be granted to enable unsuccessful party to move Appellate Court for an interim order imposing a condition not to take any policy decision or to draw any remuneration or allowance. Hence, interim order is made staying the operation of my order now pronounced for a period of ten days, of course, subject to the same conditions referred to above.