Kerala High Court
Benny Esthappan vs State Of Kerala on 30 January, 2006
Equivalent citations: 2006(1)KLT921
Author: Thottathil B. Radhakrishnan
Bench: Thottathil B. Radhakrishnan
JUDGMENT Thottathil B. Radhakrishnan, J.
1. The election to the Standing Committees of the second respondent Grama Panchayat was held on 28-10-2005, in a meeting of its members, presided over by the third respondent, its President.
2. The vote cast by the petitioner, a member, in the election to the Standing Committee for Development was treated as invalid. This Writ Petition is filed challenging the said invalidation and seeking different directions.
3. At the outset, it has to be noticed that though different allegations have been made, following which a counter-affidavit is on record, there is no room at all to hold that there is sufficient plea and proof of mala fides on the part of the third respondent President in treating the vote cast by the petitioner as invalid.
4. The crucial legal issue on which arguments were addressed is as to whether the rejection of the vote cast by the petitioner in the election could be treated as invalid, going by the relevant statutory provisions.
6. Section 161 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the "Act") deals with meetings of Panchayats. Section 162 deals with Standing Committees. The Kerala Panchayat Raj (Standing Committee) Rules, 2000, for short, "SC Rules", provides, among other things, for the manner of recording votes, counting of votes and declaration of result in the election to the Standing Committees. Rule 8(1) of the SC Rules enjoins that the ballot paper shall be in Form No. 1 of the said Rules. Rule 8(2) provides for the manner of voting. Rule 8(3) provides for counting of votes and Rule 8(4) provides for rejection of ballot papers. Rule 8(5) is not immediately relevant for the purpose of this case. Sub-rules (1) to (4) of Rule 8 of the SC Rules read as follows:
8. Manner of recording votes, counting of votes and declaration of result in elections.-
(1) The Chairman of the meeting shall issue a ballot paper in Form No. 1 appended to these rules to every elected member of a Panchayat who wishes to vote in the election to a Standing Committee and the ballot paper shall contain the names of all the contesting candidates.
(2) Each member shall, immediately on receipt of the ballot paper, proceed to the place set apart for voting and record the vote by writing legibly on the ballot paper the priority given by him in the order of one, two, three and so on against the names of such number of candidates as may be elected, and after putting his signature and writing his name on the reverse of the ballot paper, fold the ballot paper and put it into the ballot box kept at a place fully visible to the Chairman, (3) The Chairman shall, on completion of the voting, open the ballot box in the presence of the members, take out the ballot papers and count the priority votes obtained by each candidate.
(4) A ballot paper on which vote has been marked for none of the candidates or on which vote has been marked giving same priority to more than one candidate or the reverse of which does not bear the name and signature of the member who voted, shall be rejected and the rejected ballot papers shall be kept in separate cover.
(5) xxx xxx xxx.
7. Sub-rule (2) of Rule 8 provides that each member shall record the vote by writing legibly on the ballot paper, the priority given by him in the order of one, two, three and so on against the names of such number of candidates as may be elected. It requires him to write his name and put his signature on the reverse of the ballot paper before it is put into the ballot box. The name of the petitioner has been written by him and he has signed on the reverse of his ballot paper. Sub-rule (4) of Rule 8 provides that a ballot paper on which vote has been marked for none of the candidates or on which the vote has been marked giving the same priority to more than one candidate or the reverse of which does not bear the name and signature of the member who voted, shall be rejected. Thus, the grounds of re-election enumerated in Sub-rule (4) of Rule 8 are three: (1) no vote has been marked for any of the candidates. (2) vote has been marked giving the same priority to more than one candidate and (3) the reverse of the ballot paper does not bear the name and signature of the member who voted. In any among the three situations, the ballot paper shall be rejected. These are the only grounds for rejection and the penalty of rejection is statutorily provided only for the aforesaid three situations and for none else.
8. In the case in hand, the name and signature of the voter, namely, the petitioner appear on the reverse of the ballot paper. Hence, the vote cannot be rejected for want of such inscription of name and signature. Votes have been marked for more than one candidate. This means, the said vote cannot be rejected on the ground that vote has not been marked for any of the candidates (or that no vote has been marked for any of the candidates). The next available, ground for rejection is only that the vote has been marked giving the same priority to more than one candidate. It has not been so done in this case. Hence, ballot paper in question is not liable to be rejected on any of the grounds enumerated in the statutory provisions contained in Rule 8(4). While Rule 8(4) of the SC Rules, the relevant statutory provision, enumerates for the rejection of the votes on specified grounds and provides no penalty by way of rejection on any other count, there shall be no rejection of any ballot paper which is not invalid for any among the three reasons enumerated in the said Rule.
10. The SC Rules, particularly Rule 8(4), do not provide the bona fide correction of an entry as a ground for rejection of the ballot paper. It also does not prescribe that any correction or rectification of an entry made in the ballot paper will result in the rejection of the ballot paper. Since no such ground is provided in the Statute and the consequence or effect of such a situation has not been provided as one that would result in invalidating the vote, the same cannot be treated as a ground for invalidating the vote cast by the voter. So much so, the rejection of the ballot paper of the petitioner is not referable to a ground of rejection incorporated.
11. In S. Sivaswami's case , the Apex Court has categorically laid down that ballot papers should not be rejected if the marking on the ballot paper is indicative of the intention of the voter as to the identity of the candidate. In its essence, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication of the voter. In Era Sezhiyan's case , the Apex Court subscribed to the aforesaid view and held that the primary task of the Court in a case wherein the question is whether the ballot paper is invalid or not, is to ascertain the intention of the voter. The ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication as to the intention of the voter. On the basis of the materials on record, I have no hesitation to conclude that the real intention of the petitioner, the voter, was that the candidate shown against Sl.No. 6 in the ballot paper was to have the petitioner's second preference vote. I hold so and it is declared accordingly.
12. Now, another contention urged by Adv. Sri. Rajesh Nambiar on behalf of respondents 2 to 7 requires consideration. According to him, the President of the Panchayat is the President of the meeting in which the election was held. It was for the President to determine the votes and declare the results, going by the SC Rules. The argument advanced is that, in a Panchayat, a democratic institution, if the President has not acted mala fide, his wisdom of having rejected the ballot paper ought not to be interfered with since he cannot be attributed with any arbitrariness as regards the rejection of the ballot paper. It is further urged that the President having determined the matter in one way, the same ought hot to be disturbed in proceedings under Article 226 of the Constitution of India.
13. There can be no doubt that the position of the President in the meeting is as urged by Sri. Nambiar. However, the right of a voter to insist that his ballot paper shall not be rejected except in accordance with the mandatory provisions contained in the Statute is prime and salutary, that judicial review on such a ground cannot be excluded. The right of the voter in this case to exercise his right to franchise in the election in question is statutory. At the same time, Part IX of the Constitution envisages the Panchayat as a constitutional body after the inclusion of the said Part in the Constitution. The gaze of Article 14 and the provisions of Part IX should advise the interpretative exercise of the statutory provisions in the Act. As already noticed, the Statute does not provide the penalty of rejection of ballot paper on the ground in question. The ballot paper in question, on an examination on the yardstick of reasonableness, shows that any person properly advised in law and on facts could not have come to any conclusion other than that the said ballot paper contains clear indication of the intention of the petitioner, the voter, that his second preference vote shall go to the person shown at Sl.No. 6 in the ballot paper. Under such circumstances, a clear case of arbitrariness is established. The argument advanced on behalf of respondents 2 to 7, in this regard, fails.
In the result, this Writ Petition is allowed declaring that the second preference vote cast by the petitioner is in favour of the person at Sl.No. 6 in the ballot paper. It shall be so created for all intents and purposes. No costs.