Nanak Chand v. Vachaspati — 1967 DIGILAW 229 (ALL)

JUDGMENT D.S. Mathur, J. - This is an appeal by Nanak Chand against the order of the District Judge of Etah dismissing with costs the election petition moved by him to challenge the election of Vachaspati as Adhyaksha of the Zila Parishad. 25-11-1963 was notified as the date for filing nomination papers, 28-11-1963 for the withdrawal of the nomination and 7-12-1963 for the poll. "Nanak Chand, petitioner, and Vachaspati and Jodh Singh, respondents Nos. 1 and 2, were the rival candidates for the office of the Adhyaksha. Counting of votes was done the same day, but the result was not immediately declared on account of a stay order passed by the High Court. It was on 3-1-1964, after the decision of the writ petition, that the result of the election was declared and Vachaspati, respondent No. 1, was declared elected. Respondent No. 1 had secured 34 first preference votes, the petitioner 30 first preference votes and respondent No. 2 four first preference votes. Respondent No. 2 having obtained the minimum number of first preference votes was excluded and the second preference votes of electors, namely the members of the Zila Parishad, who had voted for him, were transferred to the other candidates. One of these four members had not given his second preference, and hence his ballot paper was declared as exhausted. The other three second preference votes were transferred to the petitioner. In the ultimate result of the counting the petitioner secured 33 votes and respondent No. 1 34 votes. Consequently, Vachaspati, respondent No. 1, was declared elected. In the election petition the petitioner prayed that the election of respondent. No. 1 be declared void and the petitioner he declared to have been duly elected as Adhyaksha of the Zila Parishad. The election of respondent No. 1 was challenged on two main grounds: firstly, that three invalid ballot papers which deserved to be rejected had been counted for him and secondly, that respondent No. 1 had indulged in many corrupt practices. Details of the corrupt practices shall be given later. The petition was opposed by respondent No. 1, who denied all the allegations and naturally pleaded that there was no mistake in the counting, nor in the admission of the ballot papers. Details of the corrupt practices shall be given later. The petition was opposed by respondent No. 1, who denied all the allegations and naturally pleaded that there was no mistake in the counting, nor in the admission of the ballot papers. From the facts brought to the notice of the Court it was evident that a vote of non-confidence was eventually passed against respondent No. 1 and he ceased to function as Adhyaksha and that thereafter there was fresh election of the Adhyaksha and Nanak Chand, petitioner, was in this election, declared to have been duly elected. His election has been challenged in another proceeding. The present appeal, in one way, became in fructuous, but the petitioner wanted the appeal to be heard on merits so that if the election petition was allowed and he was declared to have been duly elected, the subsequent proceedings including the second election and also the election petition pending may become in fructuous and he be in a position to function as Adhyaksha and no one may be able to challenge his election as such. In these circumstances, the Court considered it necessary to decide the appeal on merits. The three ballot papers the validity of which had been challenged by the petitioner are ballot papers Nos. 32, 71 and 53. Rule 25 (3) of the Uttar Pradesh Zila Parishads (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1963. governs the rejection of ballot papers. This rule runs as below: - "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." On ballot paper No. 32 the number 1 has been written in the appropriate column opposite the name of respondent No. 1. The number has been written in Hindi numerical either with a thick nib or the number originally written was not very clear and the member wrote out the number all over again over the old one. The number has been written in Hindi numerical either with a thick nib or the number originally written was not very clear and the member wrote out the number all over again over the old one. Whatever the actual facts may be, the writing is not such that the number cannot be clearly and-easily read. On the basis of the writing it cannot also be said that the mark made is such by which the member may afterwards be identified. Consequently, this vote Was not such which could be declared invalid and not counted for respondent No. 1. The same can be said with regard to ballot paper No. 71. The number written I in Hindi, though not quite complete. On perusal of the ballot paper there is no doubt in my mind that the number marked was I and the vote was cast for respondent No. 1. The mistake committed by the member is that instead of placing the number in the relevant column opposite respondent No. 1, the mark was placed in the column in which the name of respondent No. 1 was printed. The point for consideration is whether the ballot paper could be rejected for placing the mark in a wrong column though in a column in which the name of respondent No. 1 alone had been printed. Clause (a) of rule 25 (3) of the above Rules is in applicable as evidently No. 1 had been marked. Similarly, clause (b) is inapplicable on account of the number being marked against only one candidate and not more than one candidate. A perusal of the ballot paper makes it clear that the mark was intended to apply to respondent No. 1. Only one number and not more had been marked against respondent No. 1. The mode of writing of the number 1 is not such on the basis of which the member may afterwards be identified. Clauses (c) and (d) are thus also inapplicable. Ballot paper No. 71 was, therefore, not one which could be rejected. Both the allot papers Nos. 32 and 71 were thus rightly counted for respondent No. 1. Ballot paper No. 53 was also counted for respondent No. 1. This ballot paper had the number 1 marked in the relevant column, but what the member did was to place 'X' mark in this column and then to cut it out. Both the allot papers Nos. 32 and 71 were thus rightly counted for respondent No. 1. Ballot paper No. 53 was also counted for respondent No. 1. This ballot paper had the number 1 marked in the relevant column, but what the member did was to place 'X' mark in this column and then to cut it out. It may be that the member unconsciously placed a cross mark in the column opposite the name of respondent No. 1, as is done in Assembly or Parliament elections, but later realised that in this election Number 1 had to be marked against the candidate for whom the vote was being cast. When the cross had been -scored out, it cannot be said that some other number in addition to number 1 had been marked opposite the name of the same candidate. Further, the cross cannot be called a number as contemplated by clause (c) and rule 25 (3) , A perusal of rule 25 (3) (d) of the above Rules and rule 56 (2) (a) of the Con duct of Elections Rules, 1961, pertaining to the elections to the Parliament and the* State Assembly, shall make it clear that ballot papers can be more easily rejected in the election of the Adhyaksha or Up-Adhyaksha than in the election of the members of the Parliament and the State Assembly. Under the Conduct of Elections Rules, 1961, the Returning Officer shall reject the ballot paper if it bears any mark or writing by which the elector can be identified. On the other hand, rule 25 (3) (d) of the Rules lays clown that the ballot paper shall be rejected if any mark is made by which the voter may afterwards be identified. The difference between the words "can" and "may" is not considerable, but the use of the word "afterwards" in rule 25 (3) (d) is significant. Consequently, if the mark made is one by which the member cannot be identified at the time of the election, but can afterwards be identified, the ballot paper shall deserve to be rejected. The difference between the words "can" and "may" is not considerable, but the use of the word "afterwards" in rule 25 (3) (d) is significant. Consequently, if the mark made is one by which the member cannot be identified at the time of the election, but can afterwards be identified, the ballot paper shall deserve to be rejected. In other words, if the member places a special or peculiar mark on the ballot paper, with or without the collusion or connivance ot the candidate, the mark being one by which he may afterwards be identified, and not necessarily at the time of the election, the ballot paper is invalid and has to be rejected. It has not come on the record that other members had also committed a similar mistake; and therefore it can be said that under clause (d) of rule 25 (3) ballot paper. No. 53 was to be declared invalid and riot to have been counted for respondent No. 1. In view of the fact that the rejection of this ballot paper does not affect the result of the election, it is not necessary to make further comments, nor is it necessary to make comments on the testimony of Sunehri Lal Pathak, the person who had cast this vote, though it must be observed that I am not satisfied with his evidence. On the rejection of ballot paper No. 53, respondent No. 1 shall be deemed to have received 33 first preference votes as against 30 received by the petitioner and after counting the second preference votes both the petitioner and the respondent No. 1 shall be deemed to have received 33 votes each. The next question for consideration is how the result of the election is to be declared in case of equality of final votes, whether by drawing lot or by some other mode. The above Rules have been framed under Section 237 read with Sections 19, 25 and 27 (2) (c) of the U.P. Kshettra Samitis and Zila Parishads Adhiniyam, 1961. Section 19 is very general prescribing that the Adhyaksha and Up-Adhyaksha shall be elected by secret ballot by the members of the Zila Parishad in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of Adhyaksha and Up-Adhyaksha. Section 19 is very general prescribing that the Adhyaksha and Up-Adhyaksha shall be elected by secret ballot by the members of the Zila Parishad in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of Adhyaksha and Up-Adhyaksha. The rules duly framed would thus form part of the enactment and the provisions thereof must be given effect to. It is rule 26 which makes reference to the first preference votes. It lays down that 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 these rules. Schedule II makes a provision for declaration of result: where there are only two contesting candidates and each gets equal number of first preference votes, the result is determined by drawing of lots by excluding the candidate on whom the lot falls. But no such provision has been made where there are more than two candidates. The procedure to be followed in cases where there are more than two candidates is contained in clauses 4 (2) , 5 and 6 of the Schedule. The Schedule makes no provision as to how the result shall be declared where the last two candidates, after exclusion of others, are found to have received equal number of votes, counting both the first and second preference votes together. A provision was, however, made where it is found that there are two or more candidates receiving the lowest number of votes. Clause 6 of Schedule II provides that in such a case that candidate shall be excluded who had secured the lowest number of first preference votes. It will thus be found that preference is given to first preference votes. It is only when there is equality of first preference votes that the exclusion of a candidate is determined by drawing of lot. Rule 26 also refers to first preference. I am thus of opinion that in the election of the Adhyaksha and Up-Adhyaksha the drawing of lot shall not ordinarily determine the result of the election in case two candidates are found to have secured the same number of votes. Rule 26 also refers to first preference. I am thus of opinion that in the election of the Adhyaksha and Up-Adhyaksha the drawing of lot shall not ordinarily determine the result of the election in case two candidates are found to have secured the same number of votes. The rule adopted shall be that out of the two candidates securing the same number of votes, the one who secured greater number of first preference votes is to be declared elected; but if they secured not only the same number of votes but also the same number of first preference votes, the lot shall determine the candidate to be excluded, in other words, the candidate not drawing the lot shall be declared to have been elected. In this view of the law respondent No. 1, who had secured 33 first preference votes as against 30 by the petitioner, was to be declared duly elected. To put it differently, the non-rejection of one ballot paper has not affected the result of the election. This appeal was heard on the previous day. Today it was to be heard on alleged corrupt practices, but no one has appeared, from the side of the appellant. On the or previous clay, I had been taken through the testimony of Sunehri Lal Pathak (P.W. 2) , who had alleged that he agreed to vote for respondent No. 1 after he was given an assurance by Sri Banarsi Das, State Cabinet Minister, that permission shall be granted to him to stand for election as Managing Director of the District Cooperative Bank, it Etah. He further stated that he was to place a cancelled cross mark on the ballot paper against the name of respondent No. 1 so that it may be evident that the witness gave his vote for respondent No. 1. NJ candidate would have made an arrangement by which the vote cast in his favour may be declared invalid. I, therefore, cannot' believe the witness as to the placing of the cancelled cross mark against the name of respondent No. 1. In the circumstances, no reliance can be placed on the evidence of Sunehri Lal Pathak. I have myself gone through the evidence of Vikram Singh (P.W. 3) , who alleges that he had been unlawfully detained by respondent No. 1. In the circumstances, no reliance can be placed on the evidence of Sunehri Lal Pathak. I have myself gone through the evidence of Vikram Singh (P.W. 3) , who alleges that he had been unlawfully detained by respondent No. 1. It is very significant that he made no report or application after he was released from unlawful detention. His subsequent conduct was not of an aggrieved person. The allegations of corrupt practices have not been proved. To sum up. the election petition was rightly dismissed. The appeal has no force and it 's hereby dismissed with costs which are assessed at Rs. 500/-.