1. Heard Sri Shashi Nandan, learned Senior Advocate assisted by Sri S.K.S. Paliwal, learned counsel for the appellant and Sri Naveen Sinha, learned Senior Advocate assisted by Sri Kartikey Saran and Sri Sanjiv Kumar Yadav, learned counsel for the respondents.
2. Both the learned counsel for the parties jointly stated that the appeal may be finally heard and decided. Consequently, with the consent of learned counsel for the parties, this appeal has been finally heard.
3. This first appeal has been filed by the defendant-appellant under Rule 49 of The U.P. Kshetra Panchayats (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to be as 'Rules') for setting aside the judgment and order dated 19.09.2016 in Election Petition No. 02 of 2016 passed by the court of District Judge, Azamgarh.
Facts:
4. Briefly stated the facts of the present case are that the plaintiff-respondent no. 1 and the defendant-appellant both have filed nominations on 05.02.2016 for the post of "Pramukh" of Kshetra Panchayat 'Palhna', District Azamgarh in the Election, 2016. Total number of elected members of the aforesaid Kshetra Panchayat were 56 and amongst them "Pramukh" was to be elected. The voting and counting of votes took place on 07.02.2016. As per instructions of the Election Commissioner, the voters were required to cast their preferential votes by mentioning the numericals 1, 2, 3 . . . in the ballot paper opposite the name of the candidates.
5. There were only two candidates in the aforesaid election for the post of "Pramukh" namely the plaintiff-respondent and the defendant-appellant whose names were mentioned in the ballot paper at serial nos. 1 and 2 respectively. Both the candidates secured 28 votes each. According to the Returning Officer both the candidates secured equal votes and as such lottery took place in which the defendant-appellant was declared winner. However, in election petition the court below found one vote casted in favour of the defendant-appellant to be invalid for the reason that in the said ballot paper although figure "1" was mentioned in order of preference against the name of the defendant-appellant but figure "II" was mentioned against the name of the plaintiff-respondent no. 1.
Submissions of the defendant-appellant:
6. Sri Shashi Nandan, learned Senior Advocate has submitted as under:
(i) The impugned judgment is ex-parte, inasmuch as, on 19.09.2016 advocates were on strike and they abstained from work. Consequently, none of the counsel for the parties appeared before the court in the aforesaid Election Petition and thus the impugned judgment was passed ex-parte.
(ii) The finding of the court below with regard to the identification of the voter afterwards because of putting the figure "II" against the name of plaintiff-respondent in terms of Rule 26(3)(d) of the Rules is beyond pleadings.
(iii) The ballot paper in question was never rejected by the Returning Officer under Rule 26(2)(b) of the Rules and as such the question of declaring the vote as invalid by the impugned judgment is erroneous.
(iv) Once the first preference vote casted by the ballot paper in question in favour of the defendant-appellant was found to be valid, there was no occasion to look into the second preference vote in terms of Rule 26(2)(c) of the Rules since there were only two candidates.
(v) Mere putting the figure "II" against the name of plaintiff-respondent for second preference vote is not indicative of identity of voter. Hence, the provisions of Rule 26(3)(d) of the Rules are not attracted at all.
(vi) No reasons have been recorded by the court below in the impugned judgment for its finding of identification of voter afterwards in terms of Rule 26(3)(d) of the Rules.
(vii) Even the ballot paper in question was not summoned and produced before the court below.
7. Sri Shashi Nandan has pain takingly referred to various portions of the impugned judgment, the order sheet of several dates, written statement of the defendant-appellant and also relied upon the judgment of Hon'ble Supreme Court in Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another AIR 2014 SC 1290 and Dr. Anup Singh Vs. Sri Abdul Ghani and others AIR 1965 SC 815. He also relied upon the judgment of this Court in the case of Hari Om Vs. Hakim Singh 2007 (4) AWC 4185.
Submissions of plaintiff-respondents:
8. Sri Naveen Sinha, learned Senior Advocate referred to various paragraphs of the plaint, ballot paper, examination of plaintiff-respondent, order sheet of 29.08.2016, 05.09.2016 and 19.09.2016. He also referred various paragraphs of the impugned judgment in support of his submissions. He submitted as under:
(i) Ballot paper containing the alleged mark against the name of plaintiff-respondent was clearly a mark by which the voter may be afterwards identified.
(ii) Total 56 ballot papers were used for casting votes, out of which the ballot paper in question was the alone ballot paper which contained the mark in question and because of which the voter will be afterwards identified. Such mark is well within provisions of Rule 26(3)(d) of the Rules and contrary to the guidelines of the Election Commission by circular dated 18.01.2016.
(iii) Section 264(b)(2) of the U.P. Kshetra Panchayats and Zila Panchayats Adhiniyam, 1961 (hereinafter to be referred as 'Adhiniyam') provides that Superintendence, direction and Control of the conduct of election of the office of an Adhyaksh or a member of Zila Panchayat or of Pramukh or a member of Kshetra Panchayat shall vest in the State Election Commission and as such the instructions by the Election Commission were binding.
(iv) Unless there is valid ballot paper there cannot be a valid vote in terms of Rule 26 of the Rules and therefore, the ballot paper in question being invalid was lawfully rejected by the Returning Officer in terms of Rule 26(3)(d) of the Rules.
(v) Both the parties were heard by the court below as evident from the order sheet dated 05.09.2016 and 19.09.2016, copies of which have been filed along with supplementary affidavit dated 29.09.2016.
(vi) The judgment in the case of Dr. Anup Singh (supra) considered a provision which used the words "mark or writing" whereas, the Rule in question i.e. Rule 26(3)(d) uses the word "mark" only and therefore, in view of the observations made in para 22 of the judgment, the mark put in the ballot paper in question was sufficient to attract the provisions of Rule 26(3)(d) of the Rules.
(vii) The judgment in the case of Arikala Narasa Reddy (supra) indicates that the law laid down in the case of Dr. Anup Singh (supra) shall apply.
(viii) The circular of the Election Commission and the ballot paper containing instructions for putting numericals 1, 2, 3 . . . . in order of preference were well before the electors for casting vote and if an elector has still put the mark in question, that clearly indicates his identity. If the test of reasonable probability as led in the case of Dr. Anup Singh (supra) is applied the test would be satisfied.
(ix) Reliance is placed on the judgments of Hon'ble Supreme Court in the case of Arikala Narasa Reddy (supra), Dr. Anup Singh (supra), Km. Shradha Devi Vs. Krishna Chandra Pant AIR 1982 SC 1569 and also the judgment of this Court in the case of Hari Om (supra).
Discussions and findings:
9. I have carefully considered the submissions of learned counsel for the parties.
10. Considering the submissions of learned counsel for the parties, two main questions arise for consideration.
(i) Whether the impugned judgment dated 19.09.2016 was passed ex-parte?
(ii) Whether the ballot paper in question was invalid in view of the provisions of Rule 26(3)(d) of the Rules?
11. Before I proceed to examine the rival submissions of learned counsels for the parties and the decisions relied by them, it would be advantageous to reproduce the relevant provisions of the Rules namely Rule 17, 19, 25, 26, 27 & 29 of the Rules as under:
"17. Manner of voting.--The election will be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot. Votes shall be cast in person and no votes shall be received by proxy.
19. Ballot Papers and Ballot Box.--(1) Ballot papers to be used at the election shall be in Form VII and the name of the contesting candidates shall be given therein in Hindi in the order as in the list of contesting candidates published under Rule 13.
(2) A ballot box to be used at the poll shall be any of the types of boxes approved by the State Election Commission.
25. Maintenance of secrecy of voting by election within polling station and voting procedure.--(1) Every member to whom a ballot paper has been issued under Rule 22 or under any other provision of this order, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
(2) Every member shall have as many preference as there are candidates but no ballot paper shall be considered invalid solely on the ground that all such preferences are not marked.
(3) The member on receiving the ballot paper shall forthwith--
(a) proceed to a polling compartment provided at the place of polling and screened from observations;
(b) place on the ballot paper the No. 1 in the space opposite the name of the candidate whom he chooses for his first preference;
(c) make as many subsequent preferences as he wishes by placing on the ballot paper the Nos. 2, 3, 4 and so on, in the space opposite the names of other candidates in order of preference;
(d) fold the ballot paper so as to conceal his vote;
(e) insert the folded ballot paper into the ballot-box through the slit provided for the purpose; and
(f) then quit the place of polling.
(4) Every member shall vote without undue delay.
(5) No member shall be allowed to enter a polling compartment when another elector is inside it.
(6) The Returning Officer shall, if requested by a member explain to him the instructions contained in the ballot paper for the recording of votes.
(7) If an elector is unable to read the ballot paper or to record his vote thereon by reason of illiteracy, blindness or other infirmity, the Returning Officer shall on being satisfied about such illiteracy, blindness or infirmity, permit the elector to take with him a companion of not less than 21 years of age who is able to read the ballot paper and record the vote thereon on behalf, and in accordance with the wishes of the elector and if necessary, to fold the ballot paper so as to conceal the vote and insert it into the ballot box:
Provided that no person shall be permitted to act as companion of more than one elector at any polling station on the same day:
Provided further that before any person is permitted to act as the companion of an elector on any day under this rule, the person shall be required to declare that he will keep secret the vote recorded by him on behalf of the elector and that he has not already acted as the companion of any other elector at any polling station on that day.
The Returning Officer shall keep a record in Form 7-A of all the cases under this sub-rule.
(8) If a member to whom a ballot paper has been issued refuses, after warning given by the Returning Officer to observe the procedure as laid down above, the ballot paper issued to him shall, whether he has recorded his vote thereon or not, be taken back from him by the Returning Officer.
(9) After the ballot paper has been taken back the Returning Officer shall record on its back the words "Cancelled; Voting procedure violated" and put his signature and the date below those words.
(10) All the ballot papers on which the words "Cancelled; Procedure Violated" are recorded shall be kept in a separate cover which shall bear on its face the words "Ballot papers, voting procedure violated".
(11) The vote, if any, recorded on such ballot paper shall not be counted.
26. Procedure at the counting.--(1) As soon as the poll is closed the Returning Officer shall, in the presence of the contesting candidates and the members who may be present, proceed to count the votes.
(2) The Returning Officer shall open the ballot box and shall--
(a) count the number of ballot papers taken out therefrom and record it in a statement;
(b) scrutinise the ballot papers and separate those which in his opinion are valid from those which in his opinion are invalid endorsing on the latter the word "rejected" with reasons for such rejection; and
(c) arrange all the valid ballot papers in parcels according to the first preference recorded for each candidate.
(3) A ballot paper shall be rejected as invalid on which -
(a) the number 1 is not marked; or
(b) the number 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or
(c) the number 1 and some other numbers are marked opposite the name of the same candidate; or
(d) any mark is made by which the voter may afterwards be identified.
27. Determination of result.--After all the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of the voting in accordance with the instructions contained in Schedule II to those rules.
29. Declaration of result.--When the counting of the votes has been completed and the result of the voting has been determined, the Returning Officer shall in the absence of any direction by the State Election Commission to the contrary, forthwith--
(a) declare the result to those present;
(b) report the result to the District Magistrate, the State Election Commission and the State Government;
(c) prepare and certify a return of the election in Form VIII; and
(d) seal up in separate packets the valid ballot papers and the rejected ballot papers and record on each such packet a description of its contents."
Question No. 1 - Whether the impugned judgment dated 19.09.2016 was passed ex-parte?
12. Perusal of the certified copy of the order sheet dated 05.09.2016 filed as Annexure No. 5 to the supplementary affidavit on behalf of plaintiff-respondent no. 1 dated 29.09.2016 records that the case was called out and the arguments of learned counsels have been heard in part. Case is fixed for remaining argument and orders for 19.09.2016. Thereafter, the order sheet entry dated 19.09.2016 recorded as under:
"Called out. Both parties present. They have already been heard at length.
They have not expressed any desire to advance argument now.
Put up after lunch for orders."
13. Thereafter, the impugned judgment dated 19.09.2016 was signed and pronounced in open court by the District Judge, Azamgarh. Perusal of the aforesaid order sheet entries leave no manner of doubt that the parties were heard and thereafter the judgment was pronounced in open Court. Thus, the impugned judgment is not ex-parte. Consequently, the submission of learned counsel for defendant-appellant on the question no. 1 is rejected and it is held that the impugned judgment was not passed ex-parte.
Question No. 2 - Whether ballot paper in question was invalid in view of the provisions of Rule 26(3)(d) of the Rules?
14. It is undisputed that in the election in question there were only two candidates namely the plaintiff-respondent no. 1 and the defendant-appellant whose names were mentioned in the ballot paper at serial no. 1 and 2 respectively. There was no 3rd candidate in the election in question.
15. As per instructions of the Election Commission the voters were to cast their preferential votes by mentioning the figure 1, 2, 3, 4 ............. against the names of the candidates.
16. There were only 56 voters who casted their votes. The plaintiff-respondent no. 1 and the defendant-appellant both secured 28 votes each. However, the dispute is with regard to the validity of one ballot paper by which first preference vote was casted in favour of the defendant-appellant. No evidence was brought on record by the plaintiff-respondent that the ballot paper in question was rejected by the Returning Officer in terms of Rule 26(2)(b) of the Rules.
17. Rule 26 of the Rules provide the procedure for the counting. Sub-rule (2) provides that after the Returning Officer opens the ballot box, he shall firstly count the number of ballot papers taken out from there and record it in a statement, secondly he shall scrutinise the ballot papers and separate those which in his opinion are valid from those which in his opinion are invalid endorsing on the latter the word "rejected" with reasons for such rejection and thirdly arrange all the valid ballot papers in parcels according to the first preference recorded for each candidate.
18. For the purposes of rejection of ballot paper as invalid under clause (b) of sub-rule (2), four grounds are provided in sub-rule (3) as under:
(a) The number '1' is not marked; or
(b) The number 1 is marked opposite to the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or
(c) The number 1 and some other numbers are marked opposite the name of the same candidate; or
(d) any mark is made by which the voter may afterwards be identified.
19. After the procedure as provided in Rule 26(2) of the Rules is followed and valid ballot papers are arranged in parcels according to the first preference recorded for each candidate, rule 27 comes into play which provides that after the valid ballot papers have been arranged in parcels according to the first preference recorded for each candidate, the Returning Officer shall proceed to determine the result of voting in accordance with the instructions contained in schedule II to the Rules. For ready reference, schedule II under Rule 27 of the Rules is reproduced hereunder:
"Schedule II (Rule 27)--Instructions for the Determination of Result.
1. In this Schedule--
(1) the expression "continuing candidate" means any candidate not elected and not executed from the poll at any given time;
(2) the expression "first preferences" means the No. 1 set opposite the name of any candidate, the expression "second preference" similarly means the No. 2, the expression "third preference" the No. 3, and so on;
(3) the expression "next available preference" means the second or subsequent preference recorded in consecutive numerical order for a continuing candidate preferences for candidate, already excluded being ignored.
(4) The expression "unexhausted paper" means a ballot paper on which a further preference is recorded for a continuing candidate;
(5) the expression "exhausted paper" means a ballot paper on which no further preference is recorded for a continuing candidate:
Provided that a paper shall be deemed to be exhausted in any case in which--
(a) the names of two or more candidates whether continuing or not are not marked with the same figure, and are next in order of preference; and
(b) the name of the candidate next in order of preference whether continuing or not, is marked by a number not following consecutively after some other number on the ballot paper or by two or more numbers.
2. Ascertain the number of first preference votes secured by each candidate and credit him with that number.
3. Add up the numbers so credited to all the candidates, divide the total by two and add one to the quotient disregarding any remainder. The resulting number is the quota sufficient to secure the return of a candidate at the election.
4. (1) If there are only two contesting candidates then--
(a) if one candidate gets larger number of first preference votes than the other, declare the former as elected; or
(b) if both the candidates get equal number of first preference votes, determine the result by drawing of lots. Exclude the candidate on whom lot falls and declare the other candidates as elected.
(2) If there are more than two candidates, then--
(a) if one of them is found to secure first preference votes equal to or more than the quota determined under Instruction No. 3, declare him as elected; or
(b) if none of them secure first preference votes equal to or more than the quota aforesaid, proceed according to the instructions hereinafter taking into consideration second and subsequent preferences as may be necessary.
5. If at the end of the first or any subsequent count the total number of votes credited to any candidate is equal to, or greater than the quota or there is only one continuing candidate, that candidate is declared elected.
6. If at the end of any count, no candidate can be declared elected:
(a) exclude the candidate who up to that stage has been credited with the lowest number of votes;
(b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcel according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to the candidate and make a separate sub-parcel of all the exhausted papers; and
(c) see whether any of the continuing candidates has, after such transfer and credit, secured the quota.
If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded.
All the sub-parcels of exhausted papers referred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account."
20. After the afore noted procedure is followed, result is declared by the Returning Officer as per provisions of Rule 29 of the Rules.
21. A plain reading of aforesaid provisions clearly indicates that the process of ascertaining the number of first preference votes secured by each candidate starts under Rule 27 of the Rules read with schedule II.
22. In para 7, 8 & 9 and ground B of the Election Petition the plaintiff-respondent no. 1 has stated that at the time of counting he was present at the counting table and the Returning Officer has counted 28 valid votes in his favour and 27 votes in favour of defendant-appellant and one vote was declared invalid. Neither in the impugned judgment nor in the pleadings it has been stated that after counting the number of ballot papers taken out from the ballot box and recording it in a statement, and after scrutinising the ballot papers, the Returning Officer endorsed on the ballot paper the word "rejected" with reasons for such rejection and declare the said ballot paper to be invalid. Thus the Returning Officer has not declared the ballot paper as invalid in terms of Rule 26(2)(b) of the Rules. Since both the candidates had secured equal votes, therefore, he proceeded for draw of lots in terms of clause 4(1)(b) of Schedule II under rule 27 of the Rules.
23. The main thrust of argument of learned counsel for the parties is on the question as to whether the figure II mentioned in the ballot paper in question opposite the name of plaintiff-respondent would render the ballot paper invalid even though the first preference vote in favour of the defendant-appellant was validly casted through the ballot paper in question.
24. Similar question came for consideration before Hon'ble Supreme Court in the case of Km. Shradha Devi (supra) in which Hon'ble Supreme Court considered two sets of controversy namely firstly if the elector has committed some error in exercising his preference lower down the ladder the whole of the ballot paper cannot be rejected as invalid and secondly that any mark or writing on the ballot paper which enables the elector to be identified shall render the ballot paper liable to be rejected as invalid provided the mark or writing must be such as would unerringly lead to the identity of the voter.
25. The relevant portion of the judgment in the case of Km. Shradha Devi (supra) is as under:
"12. The Returning Officer while counting votes at election by Assembly members has to bear in mind the implication of voting in accordance with the proportional representation by means of the single transferable vote. What is obligatory in this system of voting is that every elector must exercise his first preference vote. Rule 37A (1) specifies that every elector has one vote only irrespective of the number of seats to be filled in at such election. Rest are preferences. In order to exercise franchise at such election the elector is under a duty to give his 1st preference vote. Where the 1st preference vote is not exercised the ballot paper will have to be rejected as invalid as mandated by rule 73 (2) (a) which provides that the ballot paper shall be invalid on which figure 1 is not marked. By the combined reading of rule 37A (2) (a) with rule 73 (2) (a) it unquestionably transpires that in this system of voting as understood in contradistinction to single member constituency where a cross has to be placed against the name or the symbol of the candidate the first preference vote is a sine qua non for validity of the ballot paper. The provision contained in rule 37A (2) (b) read with rule 73 (2) (a) and (b) would manifestly show that the elector is not required to exercise all preference available to him at the election. To illustrate, if as in the present case there were 11 vacancies, the elector can go on exercising his preferences up to 11th number by putting figures 1 to 11 against the candidates whom the elector wants to accord his preferences according to his own choice. But while exercising the preferences it is obligatory in order to render the ballot paper valid to give first preference vote. It is optional for the elector to exercise or not to exercise his remaining preferences. This must be so in the very nature of things because this system of voting was devised to provide minority representation. If amongst 421 electors as in the present case a party has 220 members owing allegiance to the party and each one can exercise 11 votes with the reservation that not more than one vote can be given to one candidate and that a cross up to the totality of number 11 can be placed against 11 different candidates, no one else having 201 votes in his pocket can get elected. To avoid this monolithic political pocket borough of votes this more advanced system of proportional representation by means of the single transferable vote was devised. The very expression 'proportional representation' is onomatopoetic in the sense it shows that various interests especially the minority groups can secure representation by this more advanced method of franchise. True, where there are single member constituencies this system is not helpful. But where there are multi member constituencies this system has a distinct advantage and the advantage becomes discernible from the fact that rule 37A (2) (a) provides that an elector in giving his vote shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance. The expression 'shall' demonstrates the mandate of the section and when compared with sub-clause (b) which provides that an elector in giving his vote may, in addition, place in his ballot paper the figure 2 or the figures 2, 3, 4 etc which would bring in sharp focuss the mandatory and the directory part in clauses 2 (a) and 2 (b). The underlying thrust of the section becomes further manifest by referring to rule 73 (2) (a) and (b) which provide that a ballot paper shall be invalid on which the figure 1 is not marked or the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which it is intended to apply. Sub-clause (c) of sub-rule (2) of rule 73 further brings out the intendment of the provision because it mandates that the ballot paper shall be invalid on which the figure 1 and some other figures 1 are set opposite the name of the same candidate. It, therefore, necessarily, follows that when voting is in accordance with the proportional representation by means of the single transferable vote it is obligatory to cast the first preference vote for ensuring the validity of the ballot paper and the first preference vote must be so cast as not to leave any one in doubt about it. The remaining preferences are optional with the elector. He may or may not exercise his franchise for the remaining preferences. If he chooses not to exercise remaining preferences the ballot paper cannot be rejected as invalid for failure to exercise the remaining preferences. Rule 73 (2) is exhaustive of the grounds on which a ballot paper at a voting at election by Assembly members shall be rejected as invalid and on a true and in depth reading of it, it does not transpire that the failure to cast the remaining preferences would invalidate the ballot paper. This conclusion is reinforced by the provision contained in rule 37A (1) which provides that every elector has only one vote at an election irrespective of the number of seats to be filled. Therefore, the vote is only one and even if there is more than one seat to be filled in, subsequent preferences may be indicated by the elector and it is optional with him not to exercise preferences outside his only one vote which he must cast by indicating unambiguously his first preference.
13. What then follows ? If there is only one vote at such an election and the preference are as many as there are seats chronologically to be indicated and failure to exercise preferences subsequent to first preference would not invalidate the ballot paper, it must follow as a corollary that if the elector has committed some error in exercising his preferences lower down the ladder the whole of the ballot paper cannot be rejected as invalid. To illustrate, if the elector has with sufficient clarity exercised his preferences, say 1 to 5 in chronological order but while exercising his sixth preference he having the right to exercise the preference up to 11, has committed an error, the error, in exercising his sixth preference would not render the whole ballot paper invalid and his preference up to 5 will have to be taken into account while computing the votes. We specifically invited learned counsel on both sides to assist us in examining this aspect as we were treading on an uncovered ground. In fact, we adjourned the matter to enable Mr. Chauhan, learned counsel for the petitioner and Mr. A.K. Sen, learned counsel for the respondent to study the problem and at the resumed hearing it was not only not disputed but unambiguously conceded that in view of the provision contained in rule 37A read with rule 73 (2) once the first preference vote has been clearly and unambiguously exercised the ballot paper cannot be rejected on the ground that lower down the ladder there was some error in exercising the subsequent preferences. If this is the correct interpretation of rule 37A, it must follow that not only such a ballot paper has to be held as valid ballot paper but its validity shall continue up to the stage in preferences where an error or confusion transpires which would not permit computation of subsequent preferences below the level of error. To illustrate the point, if as in the present case the voter had option to exercise 11 Preferences and if he has exercised his preferences 1 to 5 correctly and unambiguously and has committed an error in exercising sixth preference and it cannot be said with certainty for whom the sixth preference vote was cast, the ballot paper has to be held valid in computation of votes up to and inclusive of the fifth preference and rejected for the preferences down below as if the elector has not exercised his further preferences which was optional with him. The ballot paper can thus be partially valid. This is not a startling proposition but is the logical outcome of the system of voting. No authority is needed in support of it but one is required it is to be found in the statement of law in paragraph 636, page 345, Vol. 15 of the Halsbury's Laws of England, 4th Edn. It may be extracted :
"636. Ballot papers rejected in part-Where at a local government election or poll consequent on a parish or community meeting the voter is entitled to vote for more than one candidate or at a poll consequent on a parish or community meeting on more than one question, a ballot paper is not to be deemed to be void for uncertainty as respects any vote as to which no uncertainty arises and that vote is to be counted".
We have examined this aspect in depth because out of 11 invalid ballot papers which we have marked now in the Xerox copies from 'A' to 'K' for identification, ballot paper marked 'B' has been rejected under rule 73 (2) (b) by the Returning Officer on the ground that figure 1 appears against two candidates J.P. Singh and Surendra Mohan. The High Court has accepted the rejection as valid. It is difficult to accept this view of the Returning Officer affirmed by the High Court because figure 1 has been clearly marked against the candidate Surendra Mohan and the figure 11 is noted against the candidate J.P. Singh. There is some overwriting in the two strokes of 11 but it must be remembered that explanation appended to rule 37A permits that the figures indicating preferences may be marked in the international form of in Indian numerals or in the Roman form or in the form used in any Indian language but shall not be indicated in words. All other figures indicating the preferences have been written in Hindi numerals and 11 is by two strokes having the loop at the top slightly overwritten but the preference is the 11th preference against J.P. Singh, is indisputable and is clearly visible to the naked eye. Obviously this ballot paper marked 'B' could not have been rejected on the ground mentioned in rule 73 (2) (b)."
(Emphasis supplied by me)
26. On the second point i.e. "unerringly lead to the identity of the voter" the judgment in the case of Km. Shradha Devi (Supra) was over ruled by Hon'ble Supreme Court in the case of Arikala Narasa Reddy (supra) as under:
"17. If all the judgments referred to hereinabove in respect of interpreting the provisions of Rule 73(2)(d) are conjointly considered, we are of the opinion that there must be some casual connection between the mark and the identity of the voter and such writing or marking itself must reasonably give indication of the voter's identity. As to whether such marking or writing in a particular case would disclose the identity of the voter, would depend on the nature of writing or marking on the ballot involved in each case. Therefore, such marking or writing must be such as to draw an inference about the identity of the voter. To that extent, with all humility at our command, we have to say that word "unerringly" used by this Court in Km. Shradha Devi (AIR 1982SC 1569) (supra) is not in consonance with the law laid down by the Constitution Bench of this Court in Dr. Anup Singh (AIR 1965 SC 815) (supra)."
(Emphasis supplied by me)
26. Thus, the judgment in the case of Km. Shradha Devi (supra) laying down the principles in para 12 as quoted above, still holds good and has direct bearing on the controversy involved in the present appeal.
27. In the case of Dr. Anup Singh (supra) the Constitution Bench of Hon'ble Supreme Court considered the meaning of the phrase "mark or writing by which the elector can be identified afterwards" and held in para 10, 11, 12, 13, 14 and 22 as under:
"10. This raises the question as to what the words "by which the elector can be identified" appearing in R. 73 (2) (d) mean. The contention of the appellant is that these words mean that the mark or writing should be such that the elector is actually identified because of them. On the other hand the contention of the respondents is that it is not necessary that the elector is actually identified by the presence of the mark or writing. It is urged that it is enough if the elector might possibly be identified by such mark or writing, or at any rate the mark or writing should be such as would make it reasonable and probable that the elector can be identified thereby. Thus there are three possible interpretations of the words "by which the elector can be identified" appearing in r. 73 (2)(d), namely-(i) any mark or writing which might possibly lead to the identification of the elector, (ii) such mark or writing as can reasonably and probably lead to the identification of the elector, and (iii) the mark or writing should be connected by evidence aliunde with an elector and it should be shown that the elector is actually identified by such mark- or writing. The appellant presses for the third of these alternative constructions both in respect of the mark and the writing while the respondents press the first construction, and in any case it is urged that the words do not go beyond the second construction.
11. We are of opinion that the words cannot bear the first construction, namely, that any mark or writing other than that permitted by r. 37-A which might possibly lead to the identification of the elector would be covered thereby. When the legislature provided that the mark or writing should be such that the elector can be identified thereby it was not providing for a mere possibility of identification. On this construction almost every additional mark or writing would fall within the mischief of the provision. If that was the intention the words would have been different, for if a mere possibility of identification had been enough to invalid-ate the ballot paper, cl. (d) of r. 73 (2) would have read something like this : "that there is any mark or writing other than that permitted by r. 37-A". But the words used by the legislature are "any mark or writing by which the elector can be identified", and ' this in our opinion implies that there should be something more than a mere possibility of identification, before a vote can be invalidated. This may happen when some pre-arrangement is either proved or the marks are so many and of such a nature that an inference of pre-arrangement may be safely drawn without further evidence.
12. We are further of opinion that the third construction on which the appellant relies also cannot be accepted. If the intention of the legislature was that only such votes should be invalidated in which the elector was actually identified because of the mark or writing, the legislature would not have used the words "the mark or writing by which the elector can be identified". These words in our opinion do not mean that there must be an actual identification of the elector by the mark or writing before the vote can be invalidated. If such was the intention of the legislature, cl. (d) would have read something like "any mark or writing which identifies the elector". But the words used are "any mark or writing by which. the elector can be identified", and these words in our opinion mean something more than a mere possibility of identification but do not require actual proof of identification before the vote can be invalidated, though by such proof, when offered, the disability would be attracted.
13. It seems to us therefore that the second construction, out of the three alternatives we have mentioned- above, is the real construction of these words. When the legislature used these words it was providing that any mark or writing by which the elector can reasonably and probably be identified would invalidate the ballot paper. The words "can be identified" in our opinion imply something more than a mere possibility of identification; at the same time they do not in our opinion require that before the ballot paper is rejected the elector's identity must be actually established. Truly construed therefore the words mean that the mark or writing should be such that the elector can be identified thereby with reasonable probability. Thus it is not the mere possibility of identification which will invalidate the vote under r. 73(2)(d), nor is it necessary that there should be certain identification before the vote is invalidated. All that these words require is that there should be reasonable probability of identification by the mark or writing (other than that permitted by r. 37-A) and if there is such a reasonable probability of identification, the ballot paper would be invalidated.
14. Obviously when these words mean that there should be a reasonable probability of identification by means of the mark or writing there would be a difference in the approach of the returning officer as well as of the tribunal and of the court when dealing with a mark as distinguished from a writing. So far as the mark is concerned it has by itself very little value for purposes of identification and therefore in the case of marks the returning officer or the tribunal or the court may require evidence to show that there was arrangement between the elector and the candidate to put a certain mark on the ballot paper which would lead to his identification. But in the case of a writing the mere presence of the writing in certain circumstances would be sufficient to warrant the returning officer, or the tribunal or the court to say that the elector can be identified by the writing. Whether the elector can be identified by the writing would always be a question of fact in each case and in that connection the extent of the writing on the ballot paper may have a bearing on the question whether the elector can be identified thereby. For example, if the writing consists of, say, a capital letter 'A', it may be possible for the returning officer, the tribunal or the court to say that there is not sufficient material in the writing by which the elector can he identified. But if the writing consists of a number of words it will be open to the returning officer after taking into account the entire circumstances to say whether the elector can be identified by the presence of so much writing. In dealing with this question the size of the constituency and the number of words may not be irrelevant. We may also add that when scrutinising the ballot papers under r. 37-A and considering whether a particular ballot paper should be rejected, it is not necessary for the returning officer to take evidence, though if any party is prepared to give evidence then and there while the scrutiny is going on and votes are being counted, there is nothing to prevent the returning officer from taking such evidence to determine whether the mark or writing is such that the elector can be identified thereby. But generally evidence may not be forthcoming and it will be for the returning officer, the tribunal or the court to decide on the ballot paper as it stands whether the mark or writing is such that the elector can be identified thereby. As we have said already the difficulty is greater in the case of a mere mark; the difficulty may be less in the case of a writing depending upon the amount of writing that is available on the ballot paper and it will be for the returning officer, the tribunal or the court in each case to decide in all the circumstances, whether the writing is of such a nature and of such an extent that the elector can be identified by it.
22. This then being the construction to be placed on the words "by which the elector can be identified" we have to see whether ballot paper Ex. P-76 bears any mark or writing by which the elector can be identified. Besides the figures 1, 2 and 3 which were permissible under r. 37-A. the ballot paper in question also bears cases in each case. A cross however is in our opinion a slender basis on which the elector can be reasonably identified. Therefore we shall overlook the crosses. After the cross we find the words "One, Two, Three" written in each case along with the figures, "1, 2, 3" which come last. The contention on behalf of the appellant is that the words "One, Two, Three" were really written as a matter of emphasis and it cannot be said that the voter can be identified by writing these words. Now there is no dispute that these words constitute the writing of the elector on this ballot paper, and the only question is whether by this writing he can be identified. Applying the interpretation of the words we have given above, the question is whether this writing is of the nature and extent which would be reasonably sufficient to lead to the identity of the elector. We are of opinion that the writing is sufficient in extent, particularly when we bear in mind a small constituency of 152 electors and it would in our opinion be right to say that there was a reasonable probability of the identification of the elector by this writing which he had put on the ballot paper. To say that the elector merely wanted to emphasise his choice is of no assistance to the appellant if the writing is of a nature and extent that it can with reasonable probability lead to the identification of the elector. In the present case we have no doubt that the writing was of sufficient extent and can lead to the identification of the elector. As Denman J. put it in the Stepney case(1), the elector here has by his handwriting left sufficient evidence of his identity and can be identified thereby. We may add that it is not necessary, as the majority of the learned Judges of the High Court seem to think, that the returning officer in the peculiar circumstances of this case, being the Secretary of the Legislative Assembly might be knowing the handwriting of the members. Even if he does not know the handwriting, the ballot paper would be invalidated if the writing is of the nature and extent that it can lead to the identification of the elector. In the present case we have no doubt that by writing the words "One, Two. Three" on the ballot paper, the, elector has left sufficient evidence of his identity which can lead to his identification. In the result this ballot -paper was rightly rejected. In this view of the matter the conclusion of the High Court is correct and the appeals must fail."
(Emphasis supplied by me)
28. In the case of Harim Om (supra) this Court considered the similar controversy and observed/ held in paras 5, 6, 13, 15, 18, 20, 21 and 22 as under:
"5. The counting also took place on the same evening. Of the 55 votes cast, one ballot paper was rejected as invalid by the returning officer. Therefore, only 54 ballot papers remained for counting. Out of the 54 valid votes both the candidates polled 27 votes each and as such there was a tie. On account of tie lottery was drawn in accordance with clause of schedule II of the Rules. On the basis of the lottery the returning officer declared Hari Om, appellant as the successful candidate.
6. On the declaration of the result respondent Hakim Singh who lost despite having polled equal number of votes, filed an election petition No. 2 of 2006 under Rule 35 of the Rules challenging the election of the appellant on the ground that four more ballot papers were invalid and were liable to be rejected. The non rejection of the said four invalid ballot papers has materially affected the result of the election.
13. The only point for determination in the present appeal it as to whether the alleged four ballot papers were liable to be rejected as invalid or not as has been held by the court below.
15. The plain reading of the provisions of the Rules indicate that a voter to the election of the post of Pramukh is entitled to cast his vote in order of preference. The preference has to be exercised by marking No. 1 in the space, opposite the name of the candidate whom he chooses for his first preference and by marking No. 2, 3 and 4 in the space, opposite the name of other candidates in order of his preference. The Rules place no restriction in marking preference even where the number of candidates are only two in number. The Rules further provides for the grounds on which the ballot paper can be rejected.
18. I have perused the original ballot papers which were ordered to be produced before the Court. A perusal of the ballot papers reveals that out of the alleged four ballot papers in three of them the voters in addition to placing the mark '1' against the candidate of their first preference have also placed the mark 'II' against the name of other candidate for the purposes recording their second preference.
20. Undisputedly, the aforesaid three ballot papers contain the mark 'I' against the name of only one candidate. The said mark of 'I' has not been placed before the name of any other candidate. There is no other number or mark against the name of the said candidate. The said marking of No. 'I' does not make it doubtful as to whom the said voter has voted or has given his first preference. The ballot paper does not even contain any other mark by which the voter can be identified. Therefore, these three ballot papers do not attract any of the grounds enumerated above for the rejection of the ballot paper. Accordingly, the aforesaid three ballot papers cannot be rejected on any of the grounds in terms of the Sub-rule (3) of the said Rule 26.
21. Sri S.P. Singh on behalf of the respondents has urged that as in the aforesaid three ballot papers the voter has also placed the mark 'I f for his second preference instead of placing No. "2". The said marking of No. 'lI' being contrary to Rule 26 (3) was enough to reject the said three ballot papers. I am unable to accept the above submission. Rule 26(3) of the Rules does not provide for rejecting the ballot papers on he ground of placing a different mark of 'II' instead of numerical '2' while casting the second preference vote. The marking of figure 'II' while casting a second preference vote in place of numerical No. '2' is not a ground for rejecting the ballot paper under the Rules.
22. On behalf of the respondents reliance has been placed upon Era Sezhiyan v. T.R. Balu and Ors., for the preposition that if a different procedure is followed in casting f vote other than provided under the rules, ballot paper is liable to be rejected. In the above case, the voter had used pen with green ink for casting the vote while the polling officer had provided a pen with blue ink for putting the mark on the ballot paper. The ballot paper was rejected as invalid on the ground of use of green ink, The rejection was held to be valid by the Supreme Court as the evidence proved that the polling officers had provided bail pen with blue ink in all the compartments for the purposes of polling and have specifically instructed the voters to use blue ink pen but even then a pen with green ink was used and as such it was held that use of green ink was to disclose the identity of the voter. However, the facts and circumstances of the present case are different as there is no evidence to indicate that the voters were told to mark their preference on the ballot papers by numerical No. 1, 2 and 3. There is no finding that the placement of mark 'I I' was with the intention to disclose the identity of the voter or that the voter had been identified on its basis. The use of mark 'II' by the voter therefore, did not render the ballot paper as invalid. Therefore, the court below manifestly erred in law in hold, ig that since the aforesaid three ballot papers bear the mark 'IT instead of numerical '2' the said ballot papers are invalid. Accordingly, the finding to this effect returned by the court below is against law, and is set aside."
(Emphasis supplied by me)
29. In the case of Hari Om (supra) this Court clearly held that the marking of figure "II" while casting the 2nd preference vote in place of numerical number "2" is not a ground for rejecting the valid ballot paper under the Rules.
30. Section 264-B of the Adhiniyam mandates that election of Pramukh of a Kshetra Panchayat shall be held in the manner provided by Rules i.e. the Rules, 1994. Rule 17 of the Rules provides that the election will be held in accordance with the system of proportional representation by means of single transferable vote. In the case of Km. Shradha Devi (supra) Hon'ble Supreme Court held that in this system of voting it is obligatory that every elector must exercise his first preference vote. He is not required to exercise all preferences available to him at the election under Rule 25(3)(c) where the first preference vote is not exercised the ballot paper has to be rejected as invalid under rule 26(3)(a) of the Rules. Thus the first preference vote is sine quanon for validity of the ballot paper. Under this system of proportional representation by single transferable vote under Rule 17 it is obligatory to cast the first preference vote for ensuring the validity of the ballot paper and the first preference vote must be so casted as not to leave any one in doubt about it. The remaining preferences are optional. The vote is only one and if there is more than one seat to be filled in, subsequent preferences may be indicated by the elector. Option is available with him not to exercise preferences out side his only one vote. Thus when there is only one vote at such an election and the preferences are as many as there are seats chronologically to be indicated then failure to exercise preferences subsequent to first preference would not invalidate the ballot paper. In the present set of facts there was only one seat of Pramukh and there were only two candidates. Therefore, there was error committed by the elector in exercising the second preference vote by putting the figure "II" opposite the name of the plaintiff-respondent no. 1. In the case of Km. Shradha Devi (supra) Hon'ble Supreme Court laid down the law that "if the elector has committed some error in exercising his preference lower down the ladder the whole of the ballot paper cannot be rejected as invalid. The ballot paper can thus be partially valid. This is not the startling position but is the logical outcome of the system of voting. No authority is needed in support of it but one is required to be found in the statement of law in paragraph 636, page 345 vol. 15 of the Halsbury's Laws of England 4th Edn". Applying the aforenoted statement of law laid down by Hon'ble Supreme Court I have no hesitation to hold that the ballot paper in question casting first preference vote in favour of the defendant-appellant is valid as respect to the vote in his favour by the elector to which no uncertainty arises and therefore, that vote was validly counted by the Returning Officer.
31. Now the question arises as to whether the mark "II" put by the elector in the ballot paper opposite the name of the plaintiff-respondent no. 1 would attract the provisions of Rule 26(3)(d) of the Rules?
32. In the case of Dr. Anup Singh (supra) the Constitution Bench of Hon'ble Supreme Court considered similar provision and observed that there are three possible interpretation of the words "by which the elector can be identified" namely:-
(i) any mark or writing which might possibly lead to the identification of the elector;
(ii) such mark or writing can reasonably and probably lead to the identification of the elector; and
(iii) the mark or writing should be connected by evidence aliunde with an elector and it should be shown that the elector is actually identified by such mark or writing.
After discussion, Hon'ble Supreme Court held that the second construction out of the three alternatives mentioned above is the real construction of the words "by which the elector can be identified." It, therefore, held that these words mean that the mark or writing should be such that the elector can be identified thereby with reasonable possibility. It was further held in para 14 of the judgment that there would be a difference in approach of the Returning Officer as well as the Tribunal and of the Court when dealing with a mark as distinguished from a writing. So far as the mark is concerned it has by itself very little value for purposes of identification. Therefore, in the case of marks the Returning Officer or the Tribunal or the Court may require evidence to show that there was arrangement between the elector and the candidate to put a certain mark on the ballot paper which would lead to his identification.
33. In the impugned judgment while deciding issue nos. 1, 2 & 3 the court below merely observed that the mark "II" put by the elector in the ballot paper in question opposite the name of the plaintiff-respondent no. 1 was not in accordance with any instruction rather it was against the instruction which would fall under the grounds of rejection of ballot paper as provided in Rule 26(3)(d) by which voter may be identified. The court below has neither recorded any reason for the aforesaid conclusion nor required the plaintiff-respondent to lead evidence to show that there was arrangement between the elector and the candidate (defendant-appellant) to put the said mark on the ballot paper which would lead to his identification, nor the plaintiff-respondent no. 1 led any such evidence. Thus the aforesaid finding is neither based on any evidence nor is supported by any valid reason, rather it is in conflict with the law laid down by the Constitution Bench of Hon'ble Supreme Court in the case of Dr. Anup Singh (supra) as quoted above.
34. Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice. Reasons are really linchpin to administration of justice. It is link between the mind of the decision taker and the controversy in question. Thus failure to give reasons amounts to denial of justice. Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases (Wharton's Law Lexicon). Such is the significance of reasoning in any rule of law.
35. It needs to be emphasised that every litigant, who approaches the court for relief is entitled to know the reason for acceptance or rejection of his prayer, particularly when either of the parties to the lis has a right of further appeal. Unless the litigant is made aware of the reasons which weighed with the court in denying him the relief prayed for, the remedy of appeal will not be meaningful. It is that reasoning, which can be subjected to examination at the higher forums.
36. The Court cannot lose sight of the fact that a losing litigant has a cause to plead and a right to challenge the order if it is adverse to him. Opinion of the Court alone can explain the cause which led to passing of the final order. Whether an argument was rejected validly or otherwise, reasoning of the order alone can show. To evaluate the submissions is obligation of the Court and to know the reasons for rejection of its contention is a legitimate expectation on the part of the litigant.
37. By practice adopted in all Courts and by virtue of judge-made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and, in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and proper reasoning is the foundation of a just and fair decision.
38. There is a rationale, logic and purpose behind a reasoned judgment. A reasoned judgment is primarily written to clarify own thoughts; communicate the reasons for the decision to the concerned and to provide and ensure that such reasons can be appropriately considered by the appellate/higher court. Absence of reasons thus would lead to frustrate the very object stated hereinabove.
39. While deciding issue nos. 4 and 7 the court below held that need of lottery was felt because of inclusion of vote by the ballot paper in question in favour of defendant-appellant and on that ground the procedure of lottery was adopted in which the defendant-appellant was declared winner. Thus, it is evident that the procedure of lottery as provided in schedule 'II' under Rule 27 of the Rules was adopted by the Returning Officer when the first preference vote secured by both the candidates were found to be equal.
40. In view of the discussions made above, the Returning Officer has not committed any error of law to determine the result of election by draw of lots in terms of clause 4 of Schedule II under Rule 27 of the Rules. Accordingly, I hold that the Returning Officer has adopted the lawful procedure under the Rules and correctly declared the defendant-appellant to be winner.
41. In view of the aforesaid, I have no hesitation to hold that the rejection of ballot paper in question by the impugned judgment is wholly unsustainable and consequently the judgment deserves to be set aside.
42. In view of the aforesaid, the appeal succeeds and is hereby allowed. The impugned judgment dated 19.09.2016 and the decree in Election Petition No. 02 of 2016 passed by the court of District Judge, Azamgarh is set aside. However, there shall be no order as to cost.
Order Date :- 07.10.2016 IrfanUddin