Hon'ble Vivek Kumar Birla,J.
This writ petition involves the game of power played by stakeholders, and its acquisition by methods that are not unknown to politics in a democracy. When Winston Churchill said that "democracy is the worst system devised by the wit of man, except for all the others" then our late Prime Minister Pt. Jawahar Lal Nehru replied by saying that "Democracy is good. I say this, because other systems are worse". The path to power in a democracy by playing the game of numbers, even though it may virtually end in the digit '0', is played with deftness and it is because of this that Jon Winne-Tyson said "that the wrong sort of people are always in power because they would not be in power if they are not wrong sort of people. "Still the ideal preserved is what was said by Pittacus (650-569 B.C.) that "the measure of the man is what he does with power".
The instant case is a living example of what is happening in our society, and when those who are called upon to deal with situations where the lust of power is pretended to be saved in the name of democracy, also get swayed away to do something which ultimately results in a legal tangle that the judiciary is called upon to resolve.
It is the misfortune of this system, that we have inherited which is full of infinite errors, most of which are created and motivated. This case indicates how a merited statutory procedure can be polluted to defeat the pure intentions of the legislature. It also unfolds as to how men of no principles but of great talent and conversely men of no talent but of one principle, that is how to achieve power, have placed their pawns in this indecent game of political chess.
This is a dispute relating to the no confidence motion tabled and passed against the petitioner, the elected Adhyaksha/Chairman of the District Panchayat of Varanasi.
A notice under Section 28 of the Uttar Pradesh, Zila Panchayat and Kshettra Panchayat Adhiniyam, 1961 was moved on 6th June, 2012, which written notice was processed by the District Magistrate and in turn he issued notices to all the members on 7th June, 2012 fixing 28th June, 2012 as the date for consideration of the no confidence motion. The said move was challenged by the petitioner by filing writ petition no. 30614 of 2012 in which no orders were passed, and it ultimately appears to have become infructuous as the no confidence motion was tabled on the date fixed. There are 39 members in all, and according to the provisions referred to hereinabove the motion has to be carried with the support of more than half of the total number of elected members. The case set up in the writ petition is that 20 members are stated to have participated, but according to the petitioner only 19 valid votes were cast as such the motion ought to have failed.
The dispute in the present matter centres around the 20th vote which would turn the fate of the no confidence motion keeping in view the numbers aforesaid. If all the 20 votes are valid then the motion has to be upheld, but if one of the votes turns out to be invalid for whatever reason, then the motion fails.
The petitioner came out with a case in the writ petition that one of the members, Uday Bhan Singh who is respondent no. 7 had not cast his vote, and some impostor had utilized a ballot paper which has been suspiciously cast so as to increase the number of valid votes from 19 to 20 for the purpose of carrying out the motion. It is thus a margin of one solitary valid vote which is the centre of controversy in the present case.
After the writ petition was filed three supplementary affidavits have been filed by the petitioner, and with the filing of the second supplementary affidavit, the case took a turn when certain glaring facts were disclosed with regard to the status of that solitary ballot paper about which the petitioner had already expressed his doubts in the writ petition. This was done with the help of the information received under the Right to Information Act with photostat copies of the ballot papers that were brought on record through the second supplementary affidavit of the petitioner dated 7th July, 2013.
It is also relevant to mention that such disclosure of facts relating to the proceedings was also reflected through the information that was tendered in response to the letter dated 8.8.2012 sent by the Upper Mukhya Adhikari, Zila Panchayat Varanasi to the Presiding Officer, copy whereof has been filed alongwith the counter affidavit of the Zila Panchayat as Annexure CA-2 therein. The Presiding Officer passed orders on 8.8.2012 permitting the opening of the sealed envelopes for providing photostat copies of the motion documents to the officials for the purpose of filing affidavits in this Court in the present litigation.
These facts are to be necessarily mentioned as the learned counsel for the respondents has raised an issue with regard to the secrecy of ballot papers to be maintained and the authority of the Presiding Officer to pass any order after the papers have been kept in the custody as per rules applicable.
The facts that have been brought on record further reveal that after the passing of the no confidence motion on 28.6.2012, the State Government passed an order on 25th July, 2012 appointing a three member committee to run the Zila Panchayat in the absence of the Chairman. An amendment application has been filed which was allowed on 19.2.2014 assailing the said consequential order.
The thrust of the submissions and the documents on record therefore centre around the validity of one single vote and the manner in which it was cast by the respondent no. 7 Uday Bhan Singh.
After having perused the affidavits, we had again passed an order on 19.2.2014 to produce the ballot papers in a sealed cover which was examined by us on 26.2.2014 whereupon we had directed the Presiding Officer who had conducted the said meeting of no confidence motion, namely, Sri Ram Manohar Narain Mishra, the then Additional District Judge, Varanasi, to be present in Court and also file his affidavit after examining the documents produced by the State. We had also issued other directions accordingly. The said officer after inspecting the original records of the proceedings and the ballot papers has filed his affidavit on 12.3.2014.
Heard Sri Sunil Kumar Singh and Sri H.K. Singh, learned counsel for the petitioner, Sri Kesari Nath Tripathi learned Senior Counsel assisted by Sri Sudist for the respondent no. 14, Sri Ram Krishna learned Chief Standing Counsel-III for the respondent nos. 1 and 2, Sri V.K. Singh Chandel for the respondent no. 3-Zila Panchayat, and Sri Sudhir Mehrotra, Special Counsel for the Presiding Officer Sri Ram Manohar Narain Mishra.
Notices had been dispatched to the respondent nos. 4 to 23 and service of notice on them has been indicated in the office report dated 14.9.2012. The said respondents who have been served with notices are 20 in number including one Uday Bhan Singh who is respondent no. 7.
The dispute in the present writ petition was in relation to one ballot paper which was alleged by the petitioner to have not been cast by the respondent no. 7-Uday Bhan Singh. It is for this reason that this Court had passed orders on 26.2.2014 for service on the said respondent once again and for the filing of the affidavit by the Presiding Officer. In response thereto the Presiding Officer has inspected the records and has filed his affidavit through Sri Sudhir Mehrotra Advocate as noted above.
So far as Sri Uday Bhan Singh is concerned, the respondent State represented by the learned Chief Standing Counsel-III has filed an affidavit of Radhey Shyam Pathak, Additional City Magistrate, Varanasi stating therein that Uday Bhan Singh was not available at his residence and the notices were served on his wife Smt. Rambha Singh who informed the deponent that Uday Bhan Singh is detained in a Mumbai Jail but no further facts have been disclosed in this regard nor any further effort appears to have been made to explain the whereabouts of the said Uday Bhan Singh except, for sending of letters to the Commissioner of Police, Mumbai for seeking information.
It is thus clear that Uday Bhan Singh had been earlier in 2012 served with the notices and on this second attempt the notices have already reached his wife and the explanation of the State is as noted hereinabove.
In the aforesaid background it is quite clear that none of the other members who had cast their vote, and have been arrayed as respondents in the present writ petition, have chosen to contest this matter individually except through respondent no. 14 inspite of service. The service is therefore treated to be complete on all the respondents and we have perused the affidavits filed by the respective parties.
The issue which was raised in the present writ petition was with regard to the casting of a vote by an impostor in place of Uday Bhan Singh but the stand of the State and the Zila Panchayat in their affidavit is that he had himself cast his vote, and that there were 20 ballot papers that were cast and counted, and since 20 votes had been cast in favour of the no confidence motion out of 39 members, the no confidence motion stood passed against the petitioner and he was accordingly unseated.
The matter was taken up on 10.3.2014 whereafter it was posted for 12.3.2014 and we have received the affidavit of the Presiding Officer as well as of the Additional City Magistrate both of which have been taken on record.
Sri H.K. Singh, on the basis of the records and the ballot papers which have again been produced before us contends that one ballot paper does not bear the seal and signature of the Presiding Officer and also bears a thumb impression, which ballot paper was issued to Uday Bhan Singh. He contends that even assuming that Uday Bhan Singh was present, he did not cast his vote, and it was some impostor who put his thumb impression and inserted the ballot paper or otherwise an invalid vote was counted.
The contention is that the Presiding Officer committed a manifest error, as he was the lawful and only custodian of all the ballot papers, to have counted the said vote in favour of the no confidence motion. The contention is that had that invalid vote/ballot paper not been counted, then there would have been only 19 votes which falls short of the required strength, and the motion against the petitioner would have automatically failed.
Sri Singh has invited the attention of the court to all the affidavits and supplementary affidavits as well as the supplementary-counter affidavit and rejoinder affidavits filed by the parties to urge that it is now established that one vote was clearly invalid in terms of the Uttar Pradesh, Zila Parishads (Voting on Motions of Non-Confidence) Rules, 1966.
In order to appreciate the controversy as urged by the learned counsel for the petitioner it would be appropriate to refer to the relevant provisions of Section 28 of the 1961 Act and the 1966 Rules framed thereunder that are extracted herein under:-
Section 28. Motion of no-confidence in Adhyaksha or [xxx]. - (1) A motion expressing want of confidence in the Adhyaksha or [xxx] of a Zila Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by not less than one-half of the total number of [elected members] of the Zila Panchayat for the time being, together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Zila Panchayat.
(3) The Collector shall thereupon:-
(i) convene a meeting of the Zila Panchayat for the consideration of the motion at the office of the Zila Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and
(ii) give to the [elected members] notice of not less than fifteen days of such meeting in such manner as may be prescribed.
Explanation. - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notice of the meeting to the [elected members] shall be excluded.
(4) The Collector shall arrange with the District Judge of the district to preside at such meeting:
Provided that the District Judge may instead of presiding himself direct to Civil Judicial Officer not below the rank of a Civil Judge subordinate to him to preside at the meeting.
[(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).
(4-B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the [elected members] at least ten days notice of the next meeting in the manner prescribed under sub-section (3).] (5) [Save as provided in sub-sections (4-A) and (4-B), a meeting] convened for the purpose of considering a motion under this section, shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Zila Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote [which shall be held in the prescribed manner by secret ballot].
(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting together with a copy of the motion and the result of the voting thereon shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Collector.
(11) If the motion is carried with the support of [more than half] of the total number of [elected members] of the Zila Panchayat for the time being -
(a) the Presiding Officer shall cause the fact to be published by affixing forthwith a notice thereof on the notice board of the office of the Zila Panchayat and also by notifying the same in the Gazette; and
(b) the Adhyaksha [or the [xxx] ], as the case may be], shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Zila Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the Adhyaksha [or the [xxx] ], as the case may be], shall be received until after the expiration of [one year] from the date of such meeting.
(13) No notice of a motion under this section shall be received within [two years] of the assumption of office by an Adhyaksha, [or the [xxx] ], as the case may be."
The Uttar Pradesh Zila Parishads (Voting on Motions of Non-Confidence) Rules, 1966
1. Short title and commencement - (1) these Rules may called the Uttar Pradesh Zila Parishads (Voting on Motions of Non-Confidence) Rules, 1966.
(2) They shall come into force from the date of their Publication in the Gazette.
2. Definitions - In these Rules unless there is anything repugnant in the subject or context:
(1) 'Act' means the Uttar Pradesh Kshettra Samitis and Zila Parishads Adhiniyam, 1961.
(2) 'Member' means a member of a Zila Parishad.
(3) 'Presiding Officer' means the officer presiding under sub-section (4) of section 28 of the act at the meeting convened for consideration of the motion of non-confidence.
3. Procedure of meeting-As soon as the debate on a motion of non-confidence has concluded or the period of two hours for a debate thereon under sub-section (8) of section 28 of the Act has expired, the Presiding Officer shall announce that the motion shall be put to vote which shall be held by secret ballot.
4. Secrecy of ballot-The Presiding Officer shall cause such arrangements to be made as will ensure the secrecy of the ballot.
5. Ballot paper-Every member wishing to vote shall be supplied with a ballot paper which shall bear a serial number and the official seal and signature of the Presiding Officer on one side and the other being left blank.
6. Issue of ballot papers-(1) The Presiding Officer shall have before him a list of the members of the Zila Parishad and shall thoroughly satisfy himself about the identity of the member before issuing a ballot paper to him.
(2) The member shall sign on the said list against his name in token of the receipt of the ballot paper.
(3) If the Presiding Officer is not satisfied about the identity of any person, he may refuse to deliver a ballot paper to him after recording a brief note about the circumstances in which the refusal was made.
(7) Voting-(1) Every member wishing to record his vote shall do so in person and not by proxy:
Provided that nothing in this sub-rule shall be deemed to prohibit the rendering of any assistance to any member who, on account of any physical infirmity or illiteracy, is unable to record his vote on the ballot paper and requests for such assistance.
(2) The member shall put a tick or cross mark on the ballot paper against the word 'Yes' or 'No', according as he is in favour or against the motion of non-confidence, respectively, and shall not put his signature or write his name on the ballot paper or make any such mark by which the secrecy of the ballot paper may be infringed.
(3) The member shall then fold up ballot paper so as to conceal the mark put by him and insert the same in the ballot box placed in view of the Presiding Officer.
(8) Disposal of 'Returned and cancelled' ballot paper-(1) A member who has inadvertently dealt with his ballot paper in such a manner that it cannot be conveniently used as a ballot paper may, on returning it to the Presiding Officer and on satisfying him of the inadvertence, obtain another ballot paper in place of the ballot paper so returned and the letter shall together with its counterfoil be marked as 'Returned and cancelled' by the Presiding Officer and kept a separate envelop set apart for the purpose.
(2) If a member after obtaining a ballot paper decides not to use it, he shall return such ballot paper to the Presiding Officer who shall deal with the said ballot paper in the same manner as prescribed in sub-rule (1).
(9) Ballot box-The ballot box shall be any of the types approved by the Director of Elections (Local Bodies) under sub-para (2) of para 37 of the U.P. Municipalities (Conduct of Members) Order, 1953.
(10) Inspection of ballot box-Before the commencement of the voting, the ballot box shall be shown open to such members as may be present at the meeting and shall thereafter be secured and sealed in such manner that the slit for the insertion of the ballot papers remains open.
(11) Counting of votes and declaration of results-The Presiding Officer shall immediately after the voting is over-
(a) count the votes before such members as may be present and declare the number of votes cast in favour of the motion and those cast against it.
Provided that in the event of these being an equality votes cast in favour of or against the motion, the result shall be determined by the drawing of lots.
(b) declare the result.
(12) Validity of ballot papers-Any ballot paper which contains marks against both the words 'Yes' and 'No' or which bears any mark or any signature of any voter by which he can be identified or which does not bear a serial or the official seal or signature as required under rule 5 shall be invalid.
(13) Custody of records and its inspection-(1) The Presiding Officer shall make into packets the ballot papers and other papers relating to the voting on the motion of non-confidence, seal the packets and note thereon a description of the contents, the name of the Zila Parishad and its Adhyaksha against whom the motion of non-confidence was considered and the date of the meeting.
(2) The packets shall be retained in safe custody in the office of the Collector for a period of six months and shall then unless otherwise directed by a competent court be destroyed.
(3) While in the custody of the Collector the packets of ballot papers whether unused, cancelled, valid or rejected and the list of members used while issuing the ballot papers shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the orders of competent court. Inspection of other papers shall be allowed by the Collector to any person within such hours as he may fix for the purpose.
(4)Inspection of the aforesaid records whether allowed by the competent court or the Collector under sub-rule (3) shall be subject to the condition of payment of a fee of Rs. 2 (rupees two only) per day on which the inspection is made and copies of the result declared under sub-rule (b) of rule 11 shall be furnished by the Collector to any person who may ask for the same on payment of a fee of Rs. 2 (rupees two only) for each copy."
The applicability of the aforesaid rules are accepted on all hands after it was brought on record by the State counsel upon a query made through orders passed by the bench earlier hearing the matter.
Sri Kesari Nath Tripathi, learned Senior Counsel assisted by Sri Sudist for the respondent no. 14 contends that the controversy centres around the participation of Uday Bhan Singh in the proceedings and the presence of Uday Bhan Singh is established keeping in view his signatures and his thumb impression on the proceedings register which has been produced in original before this court. He further submits that the affidavit filed by the State also brings on record his identification verified by the two employees who were posted on the date of the proceedings when the motion was carried out, to urge that Uday Bhan Singh was physically present to cast his vote in favour of the no confidence motion. He submits that the meeting was validly held and any action of inadvertence on the part of the Presiding Officer, even if it is assumed that the ballot does not bear his seal and signature, cannot invalidate the proceedings.
He submits with the help of an affidavit dated 14.12.2013 sworn by Sujeet Kumar respondent no. 14 and captioned as a supplementary affidavit to urge that the present writ petition was filed on 6th July, 2012 whereafter the Presiding Officer passed the order on 8.8.2012 to provide photostat copies of the documents which was an act without jurisdiction. He therefore contends that the Presiding Officer had become functus officio after the motion had been carried out on 28.6.2012 and he had no authority to grant any permission as he was not the competent court as defined under the 1966 Rules to allow the leakage of any photostat copy of the documents relating to the proceedings. He further submits that the action of the respondent Zila Panchayat in providing the photostat copies of the ballot papers under the Right to Information Act is also contrary to law, inasmuch as, it is in teeth of the 1966 Rules and the Right to Information Act , 2005 does not permit the providing of such information which is protected under the statute of secrecy relating to elections.
Sri Tripathi urges that even otherwise, since the seal of the envelopes had been broken on two occasions and the secrecy of the ballot has been violated, there is a possibility of this one ballot paper which is disputed, to have been inserted at this stage or tampered as against the original ballot which was cast by Uday Bhan Singh. He therefore submits that this possibility cannot be ruled out and any further inquiry in the matter may be desirable before drawing any adverse inference on the basis of any records that are placed before the court.
He therefore submits that the proceedings were not vitiated as on the date when the no confidence motion was carried out, and all ballot papers were validly cast in the presence of the Presiding Officer including that by the respondent no. 7 Uday Bhan Singh. He contends that there is absolutely no infirmity in the proceedings of the no confidence motion which has been carried out by the requisite majority as per the law applicable hence no interference is called for. He has drawn support from the affidavits also filed by the Zila Panchayat and the State to contend that the physical presence of Uday Bhan Singh and his actually casting the vote cannot be doubted.
Sri Ram Krishna, learned Chief Standing Counsel-III has also advanced his submissions on the same lines and has also urged that there is a possibility and a doubt about tampering of one of the ballot papers in this process after the carrying out of the no confidence motion. He has supported the stand of the State and he contends that after having seen the records, it is clear that the no confidence motion was correctly recorded in the proceedings book. So far as the presence of Uday Bhan Singh is concerned the affidavit which has been filed captioned as an affidavit of compliance dated 12.3.2014 sworn by the Additional City Magistrate, Varanasi, the same recites about the physical non availability of Uday Bhan Singh at present on account of his alleged detention in Mumbai Jail. He prays that some more time is required to verify the status of his physical presence even though the notices on the second occasion as directed by this Court had been served on him through his wife. It is further contended that the version of Uday Bhan Singh is still awaited and in such circumstances no adverse inference can be drawn about his alleged absence during actual voting by some impostor.
Sri Chandel, learned counsel for the Zila Panchayat has also advanced his submissions in support of the motion having been carried out and justifying the same stand as taken by the respondent no. 14.
Sri Mehrotra, learned Special Counsel for the Presiding Officer has invited the attention of the Court to the affidavit dated 12th March, 2014 filed by the Presiding Officer stating therein that all the ballot papers that had been issued on the date of voting were duly stamped and signed and that no ballot paper issued to the members was deficient. This fact has been stated in Paragraph 6. Further the averments in the affidavit state that the Officer had prepared a detailed report and sent it to the District Magistrate for information and further action. It has however been stated that the documents were kept in the custody of the Zila Panchayat and it was in the interest of justice and in good faith that he passed orders to provide the photostat copies of the record. He has further admitted the proceedings having been conducted by him including the issuance of the ballot papers after obtaining the signatures and thumb impressions on the relevant ballot receipt counterfoil after recognizing each and every member present for voting. Sri Mehrotra submits that no error was committed and the motion was carried out after following the due process of law.
Having considered the submissions raised by the learned counsel for the parties and having perused the record that has been produced in a sealed envelope including the Register of the proceedings, we find that the proceedings book relating to the no confidence motion was prepared by the Presiding Officer under his signature and the same has been inspected by him during the proceedings of this court as well. There is no averment in his affidavit that the ballot paper which has been produced before this court, and is the disputed ballot paper was not in existence or is not the correct ballot paper. There is also no averment denying the contents of the proceeding book and the signatures of the officer thereon. The officer has very conveniently stated that whatever ballot paper had been issued by him contained his seal and signature. There is no allegation that the Register of the proceedings was either tampered or any of the pages were changed.
Learned counsel Sri Mehrotra tried to draw an inference and suggest as if the disputed ballot paper which bears the name of Uday Bhan Singh, if it does not bear the seal and signature of the officer, may have either been altered or is not the same ballot paper. However, no such averment is contained in the affidavit of the officer.
To our mind, the possibility of insertion of a ballot paper subsequently therefore does not appear to be borne out from the record. There is yet another valid and cogent reason for the same, namely, the proceedings book which has been prepared by the Officer himself indicates that at Serial No. 5 the name of Uday Bhan Singh appears in the attendance sheet and his signatures in vernacular Hindi are contained against his name. There is no thumb impression of Uday Bhan Singh, whereas to the contrary the pages which relate to the issuance of the ballot paper and contained in the same proceedings book duly countersigned by the Presiding Officer, contains the alleged Right Thumb Impression of Uday Bhan Singh without any signature against Serial No. 5.
The aforesaid position on facts therefore raises not only a doubt but confirms our suspicion that the same person, at the same time, while proceeding to record his attendance has put his signatures and has forgotten to do so while receiving a ballot paper issued by the same Presiding Officer during the proceedings itself and has put his Right Thumb Impression. This peculiarity as well in the Register is worth noting, inasmuch as, by practice it is only the Left Thumb Impression of males that is utilized for the purpose of identification and not the Right Thumb Impression which is utilized by females. We may usefully refer to the following extract of para 60 of Part - 2 of Handwriting & Thumb Print Identification And Forensic Sciences by H.R. Hardless (1970 - Law Book Company), extracted herein under:-
"60. Thumb Prints are Sign Manual of Illiterate Persons - The significance of a thumb print has been aptly described by Ferdinand Melder. He says :- "Your thumb is you for the law. Nobody else in the world has a duplicate. Those wiggly lines - spinning like a whirlpool or rising like a wave - are writing of God on your body, certifying you are you."
Thumb impressions are affixed to letters and documents by persons who are unable to sign their names, and this has been the practice since the beginning of the present century.
The general rule is to take the left thumb print of an illiterate male in Courts and various Govt. and private offices. All pensioners, illiterate or otherwise, are also required to give their thumb impressions at certain periods in proof that they are alive.
As regards women, all Government offices and Courts take the right thumb impressions of these persons. The left thumb print is seldom or never taken from a woman."
It is not the case of any of the respondents that Sri Uday Bhan Singh had no thumb in his left hand or otherwise was not fit and available for impression. The same thumb impression then appears to be contained in the ballot paper counterfoil which has been retained in the original records, with the same endorsement almost in the same handwriting, that it is the right thumb impression of Uday Bhan Singh. It is thus clear that Uday Bhan Singh is stated to have put his signatures in the attendance sheet but the thumb impression appears in the same proceedings while receiving a ballot paper. This glaring contradiction clearly indicates reflecting on the doubtful identity and presence of the person who is alleged to have cast the disputed vote. The Presiding Officer has chosen to remain completely silent on this vital aspect which is sufficient to draw an adverse inference.
Whether it was Uday Bhan Singh or it was the ghost of Uday Bhan Singh, who participated is the mystery that is sought to be covered up, but the fact remains that the ballot cast with a thumb impression on the counterfoil is relatable to the proceeding book where also a thumb impression appears, which proceedings as recorded and produced before us has not been doubted. Above this, the ballot produced does not bear the seal and signature of the officer which could not have been counted. There is no indication of the real ballot having been lost or evidence to support any tampering. The argument therefore is imaginary and based on mere surmises and conjectures. Uday Bhan Singh inspite of notice nor any of the balance of the members have chosen to file any affidavit or evidence to support such argument. The plea of inadvertence as introduced by Sri Tripathi through arguments even though nothing being said by the officer, is unacceptable. The contention of Sri Tripathi that a thumb impression can also be put by a member voter, if is correct, then the occurrence thereof on the proceeding book having not been denied, this plea has no foundation. The officer therefore even otherwise was at fault if he allowed the cast of a ballot without his seal and signature but his affidavit clearly states that he did not issue any ballot without seal or signature. If that is so then why no explanation is coming forward to that effect from the officer and also why was such an invalid vote counted. There is no explanation of the signature and thumb impression occurring simultaneously as noted above.
To further confirm our doubts we can safely draw support from Rule 6 of the 1966 Rules which provides that on receipt of a ballot paper the member will have to put his signature on the counterfoil in token thereof. It is here that the role of the Presiding Officer becomes significant as he also has the power to refuse a ballot paper for reasons to be recorded in writing if he is not satisfied about the identity of the member. In the instant case as noted above, Uday Bhan Singh had allegedly signed in the attendance sheet, but his right thumb impression appears while receiving the ballot paper. The officer has not come up with any explanation worth the name as to how this happened and as to how the requirement of a signature was condoned and allowed to be substituted by a thumb impression.
It cannot be possibly believed by us that the Presiding Officer was oblivious of the rules as he admits having allowed 20 votes to be cast after issuing 20 ballots. We are also surprised at the affidavits coming forward swearing the presence of respondent no. 7, and his participation in the proceedings, after the officials have obtained the photostat copies of the same records that have been produced before us exhibiting what has been noted above. There seems to be a concerted collective effort of the administration, the Presiding Officer and the group headed by Respondent No. 14 to turn this black part of the transaction to white on an imaginative shelter of the possibility of insertion of an invalid vote after custody was secured under Rule 13 without any material or substance to the contrary.
In the absence of any material to establish tampering of the custody of the papers, the apprehension created through the affidavit of the respondent no. 14 is a desperate attempt without foundation and can be also a counsel's ingenuity. We cannot but deprecate this red-herring situation sought to be created and the joining of the State Counsel in this misleading assertion and argument on behalf of the respondent no. 14.
Sri Tripathi then turned his guns suspecting tampering, referring to the rules of custody and the power of the Presiding Officer to allow supply of copies of documents when he had become functus officio. It is urged that supply of copies was an outcome of breaking open the seal of envelopes that ought to have remained in sealed custody unless the court of competent jurisdiction permitted it otherwise. Rule 13 of the 1966 Rules empowers the Collector to allow inspection of other papers except the ballot papers. It is no doubt correct that the Presiding Officer on 8.8.2012 had become functus officio and no order of the competent court was available for unsealing the custody of the ballot papers. The provisions of the Right to Information Act, 2005 and their applicability in such matters, where the rules of 1966 provide for a specific mode of disclosure, are clearly debatable but as noted above this has not been demonstrated by any material to prove that it has resulted actually in tampering. We have noticed that the proceeding book prepared by the Officer has not been alleged to be tinkered with. The officials have sworn by proper and safe custody. The respondent no. 14, except for a solitary one paragraph unsubstantiated affidavit, has nowhere been able to demonstrate any pilferage. Having examined the records we are also satisfied that no such allegation could be established. The only inference that can therefore be drawn is that the disputed ballot/vote was included for counting which was a vote to the disadvantage of the petitioner so as to dislodge him through this solitary vote.
In this background, it is to be noted that the ballot which has been cast in favour of the no confidence motion and is the disputed ballot, does not contain the seal and signatures of the officer. In such circumstances, even assuming for the sake of arguments as suggested by Sri Kesari Nath Tripathi that Mr. Uday Bhan Singh was present, the alleged vote cast in his name is not only suspicious but is clearly invalid as per Rule 12. This we conclude on the basis of the 1966 Rules quoted hereinabove which mandatorily requires that the ballot paper has to contain the seal and signature of the officer concerned or else it will be invalid. Having found so, it is further to be noted, as a matter of reference only that the dispute after the no confidence motion did not conclude and fresh elections were notified which became subject matter of a second round of litigation before this Court.
The elections after notification had been countermanded by the State Election Commission. The same was challenged by none else than by the respondent no. 14 Mr. Sujeet Kumar before this Court in a writ petition that was ultimately decided on 14th March, 2013, a copy of the said judgment has been brought on record through third supplementary counter affidavit of the respondent no. 14. The petition was allowed and the countermanding of the elections was set aside. The Election Commission filed a Special Leave to Appeal No. 13161 of 2013 before the Apex Court and the operation of the said judgment was stayed. The reference to the said judgment is necessary in order to reflect upon the background of the parties to the litigation particularly the status of the respondent no. 14. After referring to several police reports about the influence of mafia dons like Chulbul Singh and Brijesh Singh the court recorded as follows:-
".........Though it is unfortunate that the members of the family of the petitioner, facing large number of criminal cases, and wielding influence both with their money and muscle men are able to create an atmosphere of fear in the entire area, it is difficult to understand as to how the district administration, which is required to protect the citizens with all the powers to summon security forces including paramilitary forces recognised their powers and in the absence of any information of the whereabouts of the members of the Zila Panchayat made recommendations that on account of the fear created by them it is not possible to hold free and fair elections. The first part of report, giving reasons for countermanding the elections prima facie establishes that the State Government was not willing, to deal firmly with powers of the family of the petitioner and accepted their influence on the electors. The postponement or countermanding of the elections would not in any way help the State Government in dealing with the situation, as the influence, so long as State Government is not willing to deal with it firmly, will continue to cast shadow on the elections on any rescheduled dates. We are informed by learned counsel appearing for the petitioner that Shri Brijesh Singh is in jail.........."
In our opinion, the aforesaid proceedings are in relation to the countermand of the consequential vacancy and therefore, are no impediment for the purpose of deciding the present writ petition.
Having recorded the findings as aforesaid, we are of the clear opinion that the proceedings of the no-confidence motion stand clearly vitiated with the casting of the said disputed vote which has been held by us to be invalid for the reasons aforesaid.
Coming to the proceedings and the manner in which the respondents have come up with their affidavits the argument of Sri Kesari Nath Tripathi for the purpose of dealing with the powers of the authorities to provide the information, becomes irrelevant once we in the exercise of our powers under Article 226 of the Constitution have perused the records ourselves and being satisfied with the aforesaid serious infirmity as pointed out hereinabove the submission with regard to the disclosure of the ballot papers or any other information looses its significance.
The question of the conduct of the Presiding Officer, therefore, now deserves to be taken note of. The arguments which have been advanced on behalf of the respondent are clearly aimed to indicate as if the records which had been sealed under the 1966 Rules had been opened without authority in law. In this regard, it is relevant to mention that the officer himself vide his order dated 8th August, 2012 permitted the opening of the sealed envelopes. Thus it is clear that the envelope was opened only with a view to support the cause of the respondent and the proceedings to contend that they were validly carried out. No malice can either be attributed on the petitioner nor any material worth the name has been brought on record by the respondents to carry forward this apprehension as urged by the State or by the respondent no. 14. In the absence of any such material, the projection of the grey area relating to the complicity of either the officers or the Zila Panchayat otherwise need no further elaboration. The ballot paper in our opinion appears to be the same ballot paper which was utilized and counted by the Presiding Officer himself during the proceedings. In such a situation, the officer appears to have counted 20 votes for carrying out the no confidence motion including the disputed invalid vote.
We are not inclined to further investigate the allegation of the alleged occurrence of any such incident of tampering having taken place for the reasons aforesaid and also on account of the fact that we have found the vote to be otherwise invalid. We therefore with the aforesaid observations, warn the concerned Presiding Officer to act in a cautioned way in future. His lapse in counting an invalid vote has resulted in the unseating of a democratically elected Adhyaksh of the Zila Panchayat. The conduct of Sri Ram Manohar Narain Misra in his official capacity as the Presiding Officer is neither a bonafide exercise of discretion nor it can be termed as an action taken in good faith. In such circumstances, this judgment shall be placed before the Hon'ble Chief Justice for appropriately dealing with the matter in case so desirable on the administrative side. A copy of the judgment shall also be placed before the Hon'ble Administrative Judge concerned and also on the service record of the officer by the Registrar General.
So far as the issue of the filing of affidavits by the State and the Zila Panchayat are concerned, we clearly find that the State and the Zila Panchayat have taken an absolutely imaginary stand of the tampering of the alleged ballot. The arguments of Sri Ram Krishna, learned Chief Standing Counsel - III, to that effect, therefore, has to be rejected, but at the same time, in view of the fact that the affidavits appear to be covering the entire episode, we hereby impose a cost of Rs. 10,000/- each on the State and the Zila Panchayat.
The writ petition is allowed. The no confidence motion against the petitioner dated 28th June, 2012 and all consequential orders are hereby quashed. The petitioner shall be restored to his office of Adhyaksha of Zila Panchayat for the rest of his term.
The entire original records produced by the learned Chief Standing Counsel shall be kept in a sealed cover by the Registrar General of the High Court to be sent by the Bench Secretary, as the same may be required for perusal either by this Court on the administrative side or in the event the parties file an appeal in the matter before the Apex Court.
Order Date :- 13.3.2014 Sahu