M. S. Gopalakrishnan v. P. P. Dominic — 1992 DIGILAW 269 (KER)

ORDER:- In the election for the Chairman of Palakkad Municipal Council held on 9-8-1991 petitioner was declared elected. The losing candidate, the 1st respondent, challenged the election before the District Court, Palakkad in O.P. 56/91. By judgment dt. 12-2-1992 the District Court set aside the election of petitioner as Chairman and ordered a reelection. That order is under challenge in this O.P. 2. In the election held on 9-8-1991, 33 councillors cast their votes of which 17 were in favour of petitioner and 16 in favour of the 1st respondent. Petitioner was declared as elected and was functioning as Chairman from that date onwards. The election was challenged by the 1st respondent mainly on the ground that the 2nd respondent (Vice-Chairman) who presided over the meeting had treated certain invalid votes as valid which had materially affected the result of the election. The District Judge took the view that one vote cast in favour of the petitioner which contained a tick mark instead of 'X' mark as per rules should be treated as invalid in which case each of the candidates had secured 16 votes. Though the Chairman has to be elected in such a case by draw of lots, the District Judge directed a re-election in view of the peculiar circumstances of the case. The order is challenged mainly on the following grounds : 1. The District Judge has not correctly comprehended or construed Rule 5 of the Election Rules. 2. The effect of Rule 2 has been completely ignored. 3. The interpretation placed on Rule 5 is faulty and illegal. 4. The distinction between rules relating to election of Chairman and Vice-Chairman of the Municipalities and those of the Panchayats was lost sight of. 5. The principles of the decisions had not been correctly comprehended, and 6. The reason for directing a re-ejection instead of election by draw of lots is faulty and illegal. For the above mentioned reasons petitioner seeks a writ of certiorari to quash the order Ext. P1 and to declare that petitioner was duly elected to the office of Chairman. 3. In the counter-affidavit filed by the 2nd respondent it is stated that the relevant rules had been followed by him as the presiding officer and that petitioner was duly elected as the Chairman. 4. Heard counsel in both sides. 5. P1 and to declare that petitioner was duly elected to the office of Chairman. 3. In the counter-affidavit filed by the 2nd respondent it is stated that the relevant rules had been followed by him as the presiding officer and that petitioner was duly elected as the Chairman. 4. Heard counsel in both sides. 5. The District Judge has interfered and set aside the election mainly for the reason that a tick mark was seen put on one of the ballot papers which is against the rules as per which a voter has to put 'X' mark against the name of one of the candidates. The Court has mainly relied on the decision of this Court in Walter D. Paul v. Ummer, 1990 (1) KLT 492, and a Division Bench decision of the Patna High Court in Bihari Lall v. Bindeshwari Prasad, AIR 1965 Patna 107. According to learned counsel for petitioner the Court below has not correctly comprehended the principles of these decisions in the application of the same to the election of the Chairman of a municipality governed by the Kerala Municipalities (Election of Chairman and Vice-Chairman) Rules (the rules for short). In order to appreciate the contention raised by the learned counsel it is worthwhile to refer to the relevant provisions of the rules and the rules contended in the election of President and Vice President of Panchayats as per Panchayat Rules. 6. The decision of this Court in Walter D. Paul's case relied on by the Court below relates to the election of the President of a Panchayat as per Panchayat Rules. Rule 7 stipulates the manner of recording votes. Every member wishing to vote shall be supplied with voting paper on which the names of the candidates shall be typed or legibly written. Every member wishing to vote shall then proceed to the place set apart for the purpose and place a mark 'X' on the voting paper against the name of the candidate for whom he wishes to vote. He shall then fold up the voting paper and deposit the same as enumerated in Rule 7(2). Every member wishing to vote shall then proceed to the place set apart for the purpose and place a mark 'X' on the voting paper against the name of the candidate for whom he wishes to vote. He shall then fold up the voting paper and deposit the same as enumerated in Rule 7(2). Rule 8 provided that any voting paper which does not contain the mark 'X' as specified in Rule 7(2) or which contains the signature or writing of any of the voting members or on which the mark 'X' is placed against more than one name shall be treated as invalid. 7. Interpreting these provisions the Division Bench held that a voter can exercise his vote only by placing the mark 'X' on the voting paper against the name of the candidate for whom he wishes to vote. It is observed that the statutory provision restricts the mark to be put by the voter to indicate his preference to 'X' mark. After referring to Rule 8 extracted above the Court held that since there is express provision which requires that a voting paper containing any mark other than 'X' should be rejected as invalid, Rule 8 is mandatory and if any mark other than 'X' mark is used in the ballot paper, the same is liable to be rejected. 8. An identical provision was considered by the Patna High Court in Bihari Lall's case (supra). The Court was interpreting the provisions of the Patna Corporation Act and the Rules relating to election of Mayor and Deputy Mayor. Rule 6(b) of the Rules stipulates that every councillor has to record his vote by placing an 'X' mark against the name of the candidate. It is further provided that if a councillor votes for more candidates than the number of vacancies, signs the ballot paper or make any other mark on it, his ballot paper shall be deemed to be invalid. Interpreting this part of the rule it was held that "any other mark" means any mark other than the prescribed cross mark. It is observed that the consequences provided in this part the clause are categorical and mandatory and leaves no discretion to the presiding or counting officer. Any mark other than a cross mark put on the ballot paper will render the vote invalid. 9. It is observed that the consequences provided in this part the clause are categorical and mandatory and leaves no discretion to the presiding or counting officer. Any mark other than a cross mark put on the ballot paper will render the vote invalid. 9. Learned counsel for petitioner points out that the principles enunciated in the aforesaid decisions are not applicable since the rules do not contain a provision similar to Rule 8 of the Panchayat Rules or the clause considered by the Patna High Court. By Rule 5 every councillor wishing to vote has to proceed to the place set apart for the purpose and place mark 'X' against the name of the candidate for whom he wishes to vote. Rule 7 directs that any voting paper which contains the signature or writing of any of the voting councillors or on which the mark 'X' is placed against more than one name, shall be treated as invalid. Relying on this provision it is strenuously contended that a vote can be invalidated only if the conditions embodied in Rule 7 are present. It is pointed out that putting a mark other than 'X' will not invalidate a vote whereas a vote shall be treated as invalid only if (1) it contains the signature or writing of any of the voting councillors, or (2) the mark 'X' is placed against more than one name. There is thus a distinction between the Panchayat Rules and the Bihar Rules, according to counsel. Rule 8 of the Panchayat Rules mentions about an voting paper which does not contain the mark 'X' and the Bihar Rules makes mention of a mark other than the mark prescribed. Similar provisions are absent in the Rules under the Kerala Municipalities Act. Learned counsel for the petitioner was therefore right in his submission that the decisions aforementioned are not applicable to the present case. In other words it has only to be seen whether the vote can be invalidated under one or other of the provisions contained in the rules. 10. A tick mark is seen put on the ballot paper invalidated by the Court below for the reason that it does not contain an 'X' mark as per Rule 5. In other words it has only to be seen whether the vote can be invalidated under one or other of the provisions contained in the rules. 10. A tick mark is seen put on the ballot paper invalidated by the Court below for the reason that it does not contain an 'X' mark as per Rule 5. It is urged by learned counsel for petitioner that the intention of the voter to vote for petitioner has been manifested by putting a tick mark and that is sufficient as per the rules. The consequences of putting a different mark does not find a place in the rules. The intention having been manifested by putting a mark against the name of the petitioner, the vote cannot be invalidated, argues counsel. In support of this contention I am referred to the decision of the Supreme Court in S. Sivaswami v. V. Malakannan, AIR 1983 SC 293. The election to the Tamil Nadu Legislative Assembly from one of the Constituencies was challenged in that case on three grounds: (a) improper rejection by the returning officer of valid votes case in favour of the 1st respondent, (b) improper reception of invalid votes cast in favour of appellant, and (c) improper treatment of valid votes cast in favour of lst respondent and 3rd respondent as votes cast in favour of the appellant. After referring to Rule 39 (2)(b) of the Conduct of Election Rules which requires an elector to make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candidate to whom he intends to vote, the Supreme Court held that the essence of the principle incorporated in the rule is that so long as the ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given. It is observed that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked. 11. It is observed that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked. 11. This question again came up for consideration before Supreme Court in Era Sezhiyan v. T.R. Balu, AIR 1990 SC 838. The dispute in that case pertains to the election of six members to the Rajya Sabha by the elected members of the Tamil Nadu Legislative assembly. Regarding the three first preference votes cast in favour of the 1st respondent therein which were accepted by the returning officer, the figure'1' was marked not in the right hand column opposite the name of respondent No.1, but in the left hand column containing the name of the candidate and opposite the name of respondent No. 1. The Supreme Court was considering the objection raised to the validity of these three ballot papers on the ground that the first preference had not been marked in the space provided for that purpose. The Supreme Court held (at page 846) : "It is true that the column in which the preference should have been marked and intended for that purpose was the column on the right-hand side of the first column where the name of the candidate was to be put; but there is no express provision to the effect that unless the preference is marked in the correct column, the ballot paper would be invalid". The Supreme Court followed the decision in Sivaswami's case (supra) and observed that the primary task of the Court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter. It is further observed that this is subject to the rule that before a ballot paper is accepted as valid, the ballot paper must not be invalid under any other express provision and the intention of the voter must not be expressed in a manner which is contrary to or totally inconsistent with the manner prescribed under the said Act or the Election Rules for expressing the same. In that case the figure'1' was clearly marked opposite the name of the 1st respondent in the case of the three votes in question. In that case the figure'1' was clearly marked opposite the name of the 1st respondent in the case of the three votes in question. The Supreme Court held that the ballot papers were rightly accepted by the returning officer as valid. 12. Learned counsel for the 1st respondent on the other hand urges that Rule 5 is mandatory and that every Councillor wishing to vote shall put the mark 'X' against the candidate for whom he wishes to vote. Relying on the decision in Bihari Lall's case (supra) and the decision of this Court in Walter D. Paul's case (supra), counsel would point out that the ballot paper containing any other mark is invalid. As observed earlier this Court in Walter D. Paul's case was interpreting the provisions of the Panchayat Rules which contains a specific rule under the heading 'Rejection of Votes'. The rule mandates that any voting paper which does not contain the mark 'X' shall be treated as invalid. A similar provision finds a place in the Bihar Rules. Also, as per which any ballot paper containing mark other than the prescribed mark has to be treated as invalid. The Municipality Rules do not contain a similar provision whereas a voting paper can be rejected only on one or the other of the two grounds mentioned in Rule 7. Putting a mark other than 'X' on the voting paper is not a ground to treat the ballot paper as invalid according to that rule. It necessarily follows that a voting paper shall be treated as invalid only if it contains the signature or writing of any of the voting councilors or the mark 'X' is placed against more than one name. In the present case one of the voters had put a tick mark against the name of petitioner. Following the principles enunciated by the Supreme Court in the aforementioned decisions and on a consideration of Rule 7 of the rules, the only conclusion possible is that a ballot paper containing a tick mark cannot be treated as invalid. The Court below has committed an error in treating this vote as invalid for the reason that it contains a mark different from the mark prescribed in Rule 5. 13. From the impugned order it would appear that there were four ballot papers containing marks other than 'X'. The Court below has committed an error in treating this vote as invalid for the reason that it contains a mark different from the mark prescribed in Rule 5. 13. From the impugned order it would appear that there were four ballot papers containing marks other than 'X'. One is the vote invalidated by the Court below containing tick mark. The second contains a mark like 'Y'. In the third the marking appears like the English alphabet 'Y' and in the fourth two 'X' marks were seen placed one over the other. Of these two are in favour of petitioner and the other two in favour of I st respondent. The Court below found the other three votes valid and only the vote containing the tick mark was invalidated. If really a ballot paper containing a mark other than 'X'mark is liable to be invalidated, the Court should have found all these four votes invalid. But an attempt is been made to validate three votes. The reasons given by the Court below do not appear to be convincing. Two of the marks are not 'X' marks and in one there are two 'X' marks placed one over the other. The Court below should have adopted the same standard in respect of these four votes. If they are eschewed from consideration, the votes polled in favour of petitioner will be 15 and those in favour of 1st respondent will be 14. In that case also the election of petitioner as the Chairman should not have been set aside. 14. Having found that the ballot paper containing a tick mark has to be treated as valid, the election of petitioner as the Chairman is beyond challenge. We need not further probe into the matter as to whether the other three voting papers are invalid or not. Even if it be so, that will not in any way affect the result of the election since two of the four votes are in favour of petitioner and the other two in favour of the 1st respondent. In any case therefore the Court below should not have interfered with the result of the election. There has thus been a manifest error on the part of the Court below in invalidating the ballot paper containing a tick mark. In any case therefore the Court below should not have interfered with the result of the election. There has thus been a manifest error on the part of the Court below in invalidating the ballot paper containing a tick mark. This Court has therefore to interfere under Article 226 of the Constitution of India and to set right that error. The result is that the finding of the Court below setting aside the election has to be reversed. For the aforesaid reasons the O.P. is allowed and Ext. P1 is quashed. The parties are directed to suffer their costs. Petition allowed.