Placid Dominic v. Principal Munsiff — 1990 DIGILAW 515 (KER)

Judgment :- An important issue arises for consideration in this Original Petition. As per Rule 41 (1)(b) of the Kerala Panchayats (Election of. Members) Rules, 1962, hereinafter referred to as 'the Rules', an elector is to make a mark on the ballot paper with the instrument supplied for the purpose. Can this instrument be any instrument supplied by the Polling Officer for the purpose of marking vote or it should be the instrument fixed by the election authority? The instrument supplied for marking on the ballot paper is an arrow mark seal. The Polling Officer was supplying that arrow mark seal to the electors for marking on the ballot paper. While so the polling officer supplied the seal, which was to be used for stamping the distinguishing mark on the backside of the ballot papers, to an elector for making the mark on the ballot paper. Can the vote exercised by using the distinguishing mark seal be considered as a valid vote? 2. Petitioner and respondents 2 and 4 to 6 filed nominations for contesting election to Perayam Panchayat held on 23-1-1988. Out of 1005 valid votes polled including the postal vote, petitioners and 2nd respondent secured 486 votes each. Fourth respondent secured 33 votes only. Since petitioner and 2nd respondent got equal number of votes, the result of the election was declared by drawing lots. By so drawing lots, petitioner was declared as elected by there turning officer. The election of the petitioner was challenged by the 2nd respondent before the Tribunal. The contention raised by 2nd respondent was that during counting seven votes were declared by the returning officer as invalid against the provisions of law. If those votes were taken as valid, it was contended that 2nd respondent would have succeeded in the election by securing more voles than the petitioner. The rejected ballot papers were produced before the Tribunal. They were marked as Exts.X7 to X7(f). The Tribunal by order dated 31-10-1990 came to the conclusion that the rejection of one ballot paper, viz., Ext. X? therein, is unsustainable. Accordingly that ballot paper, Ext. X? was treated as a valid vote polled in favour of 2nd respondent. The result, therefore, is that 2nd respondent has been found to have secured more votes than the petitioner and he was declared elected from Ward 8 of Perayam Panchayat. Hence this Original Petition. 3. X? therein, is unsustainable. Accordingly that ballot paper, Ext. X? was treated as a valid vote polled in favour of 2nd respondent. The result, therefore, is that 2nd respondent has been found to have secured more votes than the petitioner and he was declared elected from Ward 8 of Perayam Panchayat. Hence this Original Petition. 3. The arguments advanced by the learned counsel representing the petitioner challenging the validity of the decision of the Tribunal are as follows: Every ballot paper issued to elector shall be stamped on the back with a distinguishing mark in accordance with R.40 of the Rules. The vole marked in Ext. X? ballot paper contained the distinguishing mark on its backside as well as on the symbol of 2nd respondent. Consequently, that ballot paper must be taken to be one where no vote was actually marked. The marking on that ballot paper is not in conformity with the provisions contained in R.41. There is no evidence that the distinguishing mark seal was supplied by the polling officer to any of the voters for affixing the mark on the ballot paper. In these circumstances, the ballot paper in which the marking was made with the distinguishing mark seal should have been rejected as invalid. 4. The specific contention raised by the 2nd respondent before the Tribunal was that out of the seven votes declared to be invalid, three votes were held as invalid for no reason at all. In respect of one vote, the voter had clearly marked the ballot paper in his favour. That vote, though contained clear marking in his favour, was held invalid on the ground that the seal used was the distinguishing mark seal and not the arrow mark seal. It was specifically contended that the distinguishing mark seal was handed over to the voter by the polling officer and that the voter used that seal for marking the ballot paper. It was further stated by him that the voter can affix the mark in the ballot paper only with the instrument supplied to him for the purpose by the polling officer and that the voter has no duty to verify whether the instrument so supplied is the proper one or not. The voter had not committed any wrong in marking the ballot paper with the instrument supplied to him for the purpose. 5. The Tribunal,. The voter had not committed any wrong in marking the ballot paper with the instrument supplied to him for the purpose. 5. The Tribunal,. on the basis of the evidence adduced before it, came to the conclusion that the mark seen on Ext. X? ballot paper was made with the instrument supplied by the polling officer for that purpose. The result was that Ext.X-7 was treated as a valid vote polled in favour of 2nd respondent. Thereby 2nd respondent was found to have secured 487 votes as against the petitioner who secured only 486. 2nd respondent was, thus, declared to have succeeded in the election. 6. Rule 32(3) of the Rules states that the returning officer shall provide at each polling station sufficient number of ballot boxes, copies of relevant part of the electoral roll, ballot papers, instrument for stamping, the distinguishing mark on ballot papers and articles necessary for electors to mark the ballot papers. Thus, in a polling booth, there should be instruments for stamping on the ballot papers and instrument for affixing the distinguishing marks on the ballot papers among other articles. R.40(1) of the Rules enjoins the polling officer to stamp on the back of every ballot paper before it is issued to a voter and on its counter foil with such distinguishing marks, as the Election Authority may direct. It also states that the presiding officer should sign on the back of the ballot paper before it is issued. R.41 deals with the procedure for voting. The elector on receiving the ballot paper should proceed to one of the voting compartments. There he should make a mark on the ballot paper on the facing side where the name and symbol of the candidate are imprinted, with the instrument supplied for the purpose on or near the symbol of the candidate for whom he intends to vote. He should fold the ballot paper so as to conceal his vote. If the presiding officer insists, the elector should show the distinguishing mark on the ballot paper, to him. He is then to insert the folded ballot paper into the ballot box. Thereafter he is to quit the polling station. The procedure contemplated therein makes it abundantly clear that the elector is to make mark on the ballot paper with the instrument supplied for the purpose. What is the implication of the words, "instrument supplied for the purpose"? He is then to insert the folded ballot paper into the ballot box. Thereafter he is to quit the polling station. The procedure contemplated therein makes it abundantly clear that the elector is to make mark on the ballot paper with the instrument supplied for the purpose. What is the implication of the words, "instrument supplied for the purpose"? Can it be any instrument supplied for the purpose by the presiding officer of the polling station? Or is it mandatory that the instrument supplied for the purpose by the Presiding Officer should be the one fixed by the Government or Election Authority for the purpose of making mark on the ballot paper? No provision of the Rules fixes any particular mark for exercise of the franchise in Panchayat election for electing its members. It is conceded at the bar that the Elector is not to make any specific mark on the ballot paper but he is to affix the mark with the instrument supplied for the purpose alone. A similar issue in relation to the general election to the Assembly came up for consideration before the Supreme Court in Ram Autar v. Ram Gopal (AIR 1975 SC 2182). In that case 41 ballot papers were stamped by the electors concerned with the instrument meant to be used exclusively by the presiding officer for stamping the counter foils and back of the ballot paper, instead of marking them with the instrument supplied for the purpose by the Election Commission. Their Lordships remanded the case to the Tribunal for finding two issues: (1) Was the stamping instrument with which those 41 electors marked the ballot papers given to them by the Presiding Officer or any member of his staff? (2) If so, could these ballot papers be deemed to have been marked with an instrument supplied for the purpose within the contemplation of R.38 and R.56(2) (b)? From this order of remit it appears that the marking in the ballot papers need not be with the instrument supplied for the purpose by the Election Commission. It can be stamped by the instrument supplied for the purpose by the Presiding Officer as well. Otherwise there was no necessity to enter a finding on issue No. (1) suggested by Their Lordship. It can be stamped by the instrument supplied for the purpose by the Presiding Officer as well. Otherwise there was no necessity to enter a finding on issue No. (1) suggested by Their Lordship. The validity of the 41 votes considered by Their Lordships could have been decided then and there against its validity on the ground that they were not marked with the instrument supplied for the purpose by the Election Commission. This decision was considered by my learned brother Padmanabhan, J. in Raman v. Balan Vaidhyar (1988 (2) KLT 663) and observed: "When the marking is not by any instrument brought by the elector or obtained by him from some other source, but by one bona fide supplied by the polling staff, though on the basis of mistake, and the ballot paper is also one supplied correctly for that purpose, ballot must be held as valid because whatever be the other provisions regarding user of instrument for marking, what rule 56(2) (b) provides is only for rejection of ballot paper bearing a mark made "otherwise than with the instrument supplied for that purpose". The provision for rejection has to be strictly applied. The wording is not' instrument that had to be supplied' but only'instrument supplied for the purpose'. Therefore when it is admitted or proved beyond doubt that the marking was validly made with the instrument supplied for the purpose and the intention is clear, the ballot cannot be rejected for the simple reason that the polling staff committed a bona fide mistake which did not in any way prevent the intention of the elector being made known." I am in respectful agreement with the above observation. 7. Learned counsel representing the petitioner relying on the decision in Era Sezhiyan v. T.R. Balu (AIR 1990 SC 838) raised a contention that the marking on the ballot paper should be by the instrument supplied for the purpose viz., the arrow mark seal and not by any other instrument. I do not think that the said decision will help the petitioner. The issue before Their Lordships was one relating to election to the Rajyasabha from Tamil Nadu. In that election ball point pens with bluk ink were kept inside the voting compartment for the use of the electors. Written instructions were issued to the electors that they should record the vote with the article kept in the voting compartment. The issue before Their Lordships was one relating to election to the Rajyasabha from Tamil Nadu. In that election ball point pens with bluk ink were kept inside the voting compartment for the use of the electors. Written instructions were issued to the electors that they should record the vote with the article kept in the voting compartment. Each voter was also instructed orally by the polling officer that he should record his vote with the ball point pen kept inside the voting compartment for the purpose. Instead of complying with that direction, one voter failed to record his vote with the ball point pen supplied for that purpose and he exercised his franchise by marking in green ink. The marking made by green ink clearly established the intention of the voter concerned. So, it was argued that the vote should be treated as valid. This argument was negatived by Their Lordships holding that the ball point pen with blue ink kept in the voting compartment for marking the preference must be regarded as the article supplied for that purpose, viz., for the purpose of the voter marking his preference in the ballot paper. Since the marking made with green ink is not a marking made with the instrument supplied for that purpose. Their Lordships rejected that vote as invalid. From this it is evident that even-if the intention of the voter to vote for a particular candidate is discernible for the marking on the ballot paper, it will not be valid unless it is marked with the instrument supplied for the purpose. 8. As stated earlier, no provision of the Rules prescribes any particular instrument or mark for an elector to make his mark on the ballot paper. The Rules only state that the mark on the ballot paper must be made with the instrument supplied for the purpose. It means that the mark can be made by the instrument made available by the Polling Officer or Presiding Officer. In the instant case, 2nd respondent specifically averred in Ext.P1 petition filed before the Tribunal that one vote was cast by an elector with the distinguishing mark seal supplied to him by the Polling Officer. That voter did not question the correctness of the instrument supplied by the Polling Officer for marking the vote on the ballot paper. In the instant case, 2nd respondent specifically averred in Ext.P1 petition filed before the Tribunal that one vote was cast by an elector with the distinguishing mark seal supplied to him by the Polling Officer. That voter did not question the correctness of the instrument supplied by the Polling Officer for marking the vote on the ballot paper. He had affixed the seal in such a manner as to express his intention to vote for 2nd respondent without any ambiguity. Voter's intention is clearly brought out from the marking viz., to vote for 2nd respondent. These averments have not been denied by the petitioner. Nor was it countered by the Returning Officer. The ballot paper Ext.X-7 contained the distinguishing mark on its back. It is conceded before court that that marking was in black ink. But the elector affixed the mark on the ballot paper using this distinguishing mark in brown ink. Brown ink used for making the mark goes a long way in showing that the distinguishing mark seal was handed over to the voter by the Polling Officer or Presiding Officer himself. The Presiding Officer/Polling Officer or their assistant must give the rubber stamp properly inked to the voter before he proceeds to the voting compartment for making his mark on the ballot paper. That officer must take back the rubber stamp from the voter after he comes out of the voting compartment having cast his vote. Then he is to hand over it to the next elector and so on. So, the Polling Officer handed over the distinguishing mark seal to the voter who marked Ext.X-7 ballot paper after putting it on the pad containing brown ink. It is worthwhile to note that none raised a contention before the Tribunal, not even in this petition, that the voter clandestinely brought the distinguishing mark seal for making the mark on the ballot paper. Nor was there and contention that the distinguishing mark seal was wrongly taken by the voter himself for making the mark. On the basis of the evidence let in the case it can safely be held that the distinguishing mark seal with which Ext.X-7 ballot paper was marked, was the instrument supplied for the purpose by the Polling Officer to the elector. 9. On the basis of the evidence let in the case it can safely be held that the distinguishing mark seal with which Ext.X-7 ballot paper was marked, was the instrument supplied for the purpose by the Polling Officer to the elector. 9. Another argument advanced by the learned counsel representing the petitioner was that the Returning Officer was bound to reject the ballot paper if the marking of the vote on the ballot paper is not in accordance with the provisions in clause (b) of sub-rule (1) of R.41. It is so provided inR.57(2)(i) of the Rules. According to counsel, Ext.X-7 comes within this category. According to him, as per Rule 41(1)(b) of the Rules the marking of the vote should be with the arrow mark seal. Since Ext.X-7 was marked by the voter with a distinguishing mark seal, it must fall within Rule 57(2)(i) of the Rules and consequently, it must be rejected. Rule 57(2)(i)only states that if the marking of the vote on the ballot paper is not in accordance with the provision in clause (b) of sub-rule (1) of R.41, the Returning Officer should reject the ballot paper. As stated earlier, Rule 41(1) (b) enjoins an elector to make the mark on the ballot paper with the instrument supplied for the purpose. Nowhere in the Rules it is stated that the instrument must be an' arrow mark' seal. So, an elector can make the mark on the ballot paper with the instrument supplied for the purpose by the Polling Officer. In the instant case, the distinguishing mark seal having been supplied by the Polling Officer for the purpose of marking on the ballot paper and the voter having made use of the same, it must be treated as a valid vote. 10. Petitioner and 2nd respondent obtained equal number of votes at the counting made by the Returning Officer. Thereupon the Returning Officer drew lots for finding out the successful candidate. On drawing the lots, petitioner came out successful. Now it has been found that one more valid vote was cast in favour of 2nd respondent. It means that 2nd respondent secured one more vote than the petitioner. So, he is the successful candidate. The Tribunal has declared him as such. I do not find any ground to interfere with the conclusion arrived by the Tribunal. In the result, the Original Petition fails. It is accordingly dismissed. It means that 2nd respondent secured one more vote than the petitioner. So, he is the successful candidate. The Tribunal has declared him as such. I do not find any ground to interfere with the conclusion arrived by the Tribunal. In the result, the Original Petition fails. It is accordingly dismissed. No costs.