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1994 DIGILAW 364 (ORI)

BINOD NAYAK v. DASARATHI PADHI

1994-12-02

ANOOP V.MOHTA, D.P.MOHAPATRA, R.K.PATRA

body1994
V. A. MOHTA, C. J. ( 1 ) BINOD Nayak, the petitioner, and Dasarathi Padhi, opposite party No. 1, contested election for the seat of Chairman of Dhamnagar Panchayat Samiti in the district of Bhadrak. The Election Officer, on coming to the conclusion that the petitioner as well as opposite party No. 1 had secured equal number of votes, drew a lot and on such drawal of the lot, the petitioner was declared as elected on 29-6-92. The petitioner assumed charge on the next day. The election has been set aside on the ground that one invalid vote was wrongly counted in favour of the petitioner and hence there was no valid reason to draw a lot. Consequently, on the basis of the difference of one vote, opposite party No. 1 was declared elected, he took charge of the office and is on the saddle till this day. In this writ petition, the order passed in the election petition holding the vote invalid is impugned. ( 2 ) A Division Bench of this Court, while admitting this petition, felt that the point involved needs consideration by a larger Bench in view of its general public importance. No question of law as such has been framed, but the referring order indicates that the Division Bench of this Court in the case of Golak Behari Chhotrai v. Harihar Jena, (1970) 36 Cut LT 699, may need reconsideration in view of the decision of the Supreme Court in the case of H. V. Kamath v. Ahmad Ishaque, AIR 1955 SC 233 , and the subsequent Supreme Court judgments. ( 3 ) NOW, electorate college for the election of Chairman consists of a small number of Panchayat Samiti members who, in the instant case, were 26 in number. This election is governed by the Orissa Panchayat Samiti Election Rules, 1991 (";the Rules";) framed by the Government under Section 57 of the Orissa Panchayat Samiti Act, 1959 (";the Act"; ). Part VI of the Rules deals with the election of Chairman / Vice-Chairman of the Panchayat Samiti Rules 41 and 43 only are relevant for our purpose. We reproduce them here for ready reference: -";41. Voting and declaration of result:- (1) Every member present and wishing to vote shall be supplied with a ballot paper duly authenticated by the Election Officer with his seal and signature. We reproduce them here for ready reference: -";41. Voting and declaration of result:- (1) Every member present and wishing to vote shall be supplied with a ballot paper duly authenticated by the Election Officer with his seal and signature. (2) Names of the duly nominated candidates shall be typed or cyclostyled or legibly written on the ballot paper arranged according to the alphabetical order of their names in the following format in Oriya:- serial No. Name of the candidate with the name of father or husband voting sign (X) (3) The members shall then proceed one after the other to the place set apart for voting and there secretary place a clear arrow cross mark in column (3) of the ballot paper against the name of the candidate for whom he wishes to vote and shall then fold the ballot paper inwardly and deposit it in a ballot box placed in full view of the Election Officer. Explanation.- The Election Officer shall explain the above procedure to the members before the commencement of the poll. (4) In the case of a member who is physically incapacitated or is blind, the Election Officer shall at the request of such member take him to the place set apart for Voting, ascertain his choice, accordingly mark the voting paper, fold it up so as to maintain secrecy and deposit it in the ballot box. ";";43. Grounds for rejection of votes:-a vote shall be liable for rejection on either one or more of the following grounds, namely,- (i) If the ballot paper bears the signature of the voter or contains any word, sign or visible representation by which he can be identified; (ii) If the arrow cross marks are placed against more than one name; (iii) If the arrow cross mark is so placed as to make it doubtful for which candidate the vote has been casted; (iv) If the ballot paper does not bear the authentication mark of the Presiding Officer prescribed under sub-rule (1) of Rule 41, or (V) If no arrow cross mark is made against candidate. "; ( 4 ) WE may also mention that Section 44-A of the Act provides for filing of election petition before a Subordinate Judge and of an appeal before the District Judge under Section 44-Q against the said order. "; ( 4 ) WE may also mention that Section 44-A of the Act provides for filing of election petition before a Subordinate Judge and of an appeal before the District Judge under Section 44-Q against the said order. Rule 44 (2) provides that in the event of an inequality of votes, the Election Officer shall draw a lot and the candidate whose name is first drawn shall be declared to have been duly elected. ( 5 ) ON facts, there is no dispute that the disputed ballot paper has the marking of the voter, not in the separately demarcated column 3 for putting the voting sign, but in column 2 where the name of the candidate finds place. What is the consequence of not putting the mark in column 3 and putting it in column 2 is thus the nub of the controversy. ( 6 ) CERTAIN basic aspects about the right to be elected need to be noticed first. Though such right is basic to democracy, it is neither a fundamental right nor a common right. It is a statutory right, pure and simple. The right to be elected would include the right to dispute an election. Each election process is prescribed by the statute and, is, therefore, subject to the limitations prescribed in that statute. Considerations of equity have no place there. The election procedure is undoubtedly meant to ascertain the preference of a voter to a particular candidate. Various modes and manner are prescribed for discovery of that intention as well as its expression. In this context, the following passage in the case of H. V. Kamath (supra) may be noticed :-";it is argued with great insistence that as the object of the Election Rules is to discover the intention of the majority of the voters in the choice of a representative, if an elector has shown a clear intention to vote for a particular candidate, that must be taken into account under Section 100 (2) (c), even though the vote might be bad for non-compliance with the formalities. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law in the same position as an intention not expressed at all. But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law in the same position as an intention not expressed at all. "; (Emphasis supplied)this is a decision by a Constitution Bench of the Supreme Court and so far has been guiding all legal approaches to the question involved under various election laws. ( 7 ) THE question of rejection of a ballot paper essentially depends upon the question whether the requirement violated is mandatory or directory. The basic rule is that an absolute enactment must be obeyed and fulfilled exactly and a directory enactment may be obeyed or fulfilled substantially. In determining this question whether the requirement is mandatory or directory, the factor to be determined is the intention of the law-maker. If the manner of expressing the intention is clearly indicated in the statute or rule, the expression of intention in any other manner would, in law, be non-expression of the intention. If the consequences of such departure and / or violation are provided for, they would without doubt take effect. These are the various touchstones on which the validity of a ballot paper has to be tested and hence, keeping these principles in view, let us examine the scheme/ scope of the Rules and, through it, its intention. ( 8 ) RULE 40 prescribes procedure for conducting the election and Rule 41 for the voting and declaration of results. Sub-rule (1) of Rule 41 mandates supply of a ballot paper authenticated with the seal and signature of Election Officer to the voter. Sub-rule (2) prescribes that the ballot paper would have three independently demarcated columns, first for the serial number of the candidate, the second for the name of the candidate and the third for putting the voting sign. Sub-rule (3) mandates that the members shall proceed one after the other to the place set apart for voting and there secretly place a clear arrow cross mark in column 3 of the ballot paper against the name of the candidate of his preference, fold the ballot paper inwardly and deposit the same in the ballot box placed in the full view of the Election Officer. The Explanation to the sub-rule mandates the Election Officer to explain the above procedure to the voters before commencement of the poll. In the case of physically incapacitated or a blind member, a somewhat different procedure is to be followed. ( 9 ) RULE 43 enumerates five grounds for rejection of votes. Sub-clause (i) deals with the possibility of identification of a voter and sub-clause (v) deals with the absence of arrow cross mark against any candidate. The Rules provide for maintaining absolute secrecy an extremely important element in any election process by ballot. Secrecy has a great public purpose and all possible efforts are made in the Rules to preserve it. Sub-rule (3) has several parts. A place has to be set apart for secret voting. The voting can be only on the authenticated ballot paper. Preference has to be indicated only by a clear arrow cross mark. The cross mark has to be put in column 3 against the name of the candidate of preference. The ballot paper has to be folded inwardly. It has to be deposited in a ballot box. The ballot box has to be placed in full view of the Election Officer and the above procedure has to be explained to the members before commencement of the poll. The use of the word ";shall"; at three places in sub-rule (3) prima facie indicates the mandatory nature of each and every process contained therein. It is true that the mere use of the word ";shall"; is not conclusive of the mandatory nature of the requirement, but it seems to us that there are no reasons for reading the word ";shall"; as ";may"; in this sub-rule. In our view, all the requirements are clearly mandatory. Questions to be asked are : (1) Would the ballot paper be valid if it was not secretly marked?; (2) Would it be valid if the ballot paper not duly authenticated by the Election Officer was used ?; (3) Would it be valid if the voting sign was not a clear arrow cross mark ?; (4) Would it be valid if it was not deposited in the ballot box in full view of the Election Officer ? The clear answer to these questions would have to be in the negative. The clear answer to these questions would have to be in the negative. In these circumstances, would it be proper to consider only the requirement of putting the voting sign in the specified column as directory? The word ";shall"; have to be assigned the same meaning for all the requirements under the sub-rule. In this context it is worth while mentioning the following paragraph in the case of H. V. Kamath (supra): -";. . . . . . If the word ";shall"; is thus to be construed in a mandatory sense in Rule 47 (1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47 (1) (c) also. ";it is pertinent to notice that in the Election Rules framed under the Representation of the People Act, no column is set apart for putting a voting sign and the only requirement is to put the sign against the name of the candidate. The rule-making authorities of these Rules will have to be presumed to know the said electoral Rules and other rules, and if, despite that, this requirement was added in 1991, the departure will have to be considered as conscious and intended and this aspect also will indicate the mandatory character. It appears clear that the emphasis upon the use of column 3 only for putting the cross mark is intended to warn the voter that use of any other column for that purpose would render the vote invalid. By making such elaborate procedure in the rule and also providing for explanation of the entire procedure to the voter before the commencement of the poll, the authorities desired to assure not only proper voting but also maintenance of secrecy in voting and to achieve that result to plug all possible loop-holes which have the potentiality of identity of the voter. Rejection of votes on the ground of violation of Rule 3 is thus implied in the scheme. ( 10 ) SUB-CLAUSE (i) of Rule 43 cannot and does not give exhaustive and detailed list of the factors by which the voter can be identified leading to the violation of secrecy. Considered in this light, it can be said that putting the voting sign outside the column can have the potentiality of ";visible representation by which he can be identified";. Considered in this light, it can be said that putting the voting sign outside the column can have the potentiality of ";visible representation by which he can be identified";. Thus, casting vote in column 2 and not in column 3 is also a good ground of rejection of vote under sub-clause (i ). This is also a ground which can fall under sub-clause (v ). Sub-clause (v) cannot be read as referable only to a blank ballot paper or absence of a cross mark against the name of the candidate, Provision or no provision, such ballot paper will have to be ignored since it would not indicate the vote to any person. It seems to us that a separate sub-clause for this obvious situation was not at all necessary. Also the sub-clause cannot be read as an exercise in futility. The words ";arrow cross mark"; referred to in this sub-clause must, therefore, mean the ";arrow cross mark in column 3"; as mandated by Rule 41 (3 ). Thus, in our view, not only is the requirement mandatory in nature but even the consequences of deviation therefrom have been specified in Rule 43 as resulting in rejection of the vote. This view would be also in consonance with the ratio of H. V. Kamath's case ( AIR 1955 SC 233 ). ( 11 ) IN the case of Golak Behari Chhotrai (supra), a Division Bench of this Court was dealing with the subject of validity of a vote cast by putting the voting mark with the wooden portion of the rubber stamp and not with the rubber cross mark at its other end. That was also a case of an election for the office of Chairman of a Panchayat Samiti, but under a different set of rules then prevailing, namely, the Orissa Panchayat Samiti and Zilla Parishad (Conduct of Election) Rules, 1966. Rule 28 (a) and Rule 34 of the 1966 Rules fell for consideration. We are proceeding on the basis that they are in pari materia with Rules 41 and 43 of the Rules. The Division Bench held that in the absence of pleadings and evidence of prior arrangement by which the voter was to put a mark with the reverse to show to the candidate that he had voted for him, infringement of Rule 34 (1) dealing with violation of secrecy cannot be inferred. The Division Bench held that in the absence of pleadings and evidence of prior arrangement by which the voter was to put a mark with the reverse to show to the candidate that he had voted for him, infringement of Rule 34 (1) dealing with violation of secrecy cannot be inferred. It is further held that the word ";shall"; in Rule 28 (a) will have to be read as ";may"; only for the part of the rule relating to putting the sign in a demarcated column. With respect, we find it difficult to endorse the above approach for the reasons already indicated. Question of validity of vote under Rule 28 (a) does not at all depend upon actual proof of prior arrangement between the over and the candidate. It depends upon the potentiality of disclosure at any stage. Moreover, to ask for the proof of such arrangement is to ask for the impossible. ( 12 ) IN this context, two decisions of the Supreme Court need mention. In the case of N. Narayan Rao v. G. Venkata Reddy, AIR 1977 SC 208 , the question that arose was whether a vote cast on the reverse side of the symbol against Rule 39 (2) of the Conduct of Election Rules would be a valid vote, though the intention of the voter can be clearly gathered therefrom. The question was answered in the negative. The Court observed :-";putting a mark on the reverse side, even though because of the thinness of the paper, the symbol may be visible, is far from complying with the requirements of the rule. Such a mark will make the ballot paper in substance and in effect bearing no mark at all within the meaning of clause (b) of sub-rule (2) of Rule 56 of the Rules. ";the said vote was rejected as the intention, though clearly expressed, was not expressed in the manner prescribed and, therefore, was held to be, in law, a case of expression of no intention. ( 13 ) IN Era Sezhiyan v. T. R. Balu, AIR 1990 SC 838 , the points were about the validity of a ballot paper where (i) mark was otherwise than with the article specially supplied for the purpose and (ii) an insignificant portion of the voting mark had encroached upon the shaded portion between the names of the two candidates. The vote with the minor encroachment on the shaded portion was held to be valid and the other vote cast with a different pen and ink was held invalid. Relying upon the case of H. V. Kamath (supra), it was held that when law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. Since both the parties have relied upon the following observations in Era Sezhiyan's case, we reproduce the same, for ready reference :"17. It is significant that in this sub-rule also there is nothing to indicate that the preference must be indicated in the column reserved for that purpose, the only requirement being that the figure 1 should be written opposite the name of the candidate. Similarly, sub-rule (2) (b) of Rule 73 only lays down that if the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it applied, the ballot paper would be invalid. Sub-rule (2) of Rule 73 deals with the invalidity of ballot papers and that sub-rule nowhere states that merely by reason of the preference being marked in the wrong column, if the marking is opposite the name of the candidate concerned, the ballot paper shall be rendered invalid. 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. In such a situation, the principle enunciated by this Court in several judgments and reiterated in S. Sivaswami v. V. Malaikannan, (1984) 1 SCR 104 : AIR 1983 SC 1293 , 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 must be applied. In that case the Court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the voter had been intended to be given. In that case the Court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the voter had been intended to be given. This, of course, 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. "; ( 14 ) ANALYSIS of the above observations would reveal that it was clearly a case where the rule did not expressly prescribe that the preference must be indicated in the column reserved for the purpose and the only requirement was of writing figure 1 opposite the name. The observations imply that the position would be different when the rule so prescribes. It is further observed that the exercise of ascertaining the intention of the voter is subject to the conditions (i) that the ballot paper must not be invalid under any express provision, and (ii) the intention of the voter must be expressed in the manner prescribed. ( 15 ) ACCORDING to the petitioner, the ratio of the case of Era Sezhiyan is that unless there is violation of an express provision of law, and so also the consequences of that violation, resulting in rejection of a vote, are provided for, the vote, which is otherwise valid, has to be counted. We find it difficult to accept the above proposition as the ratio of that case. Even if it is so held, it would make no difference in this case, since, in our view, the consequences of invalidity in question are provided for as resulting in rejection of the vote. Conclusion is thus inevitable that the vote in question was invalid and ought not to have been counted in favour of the petitioner. ( 16 ) ALL that remains is consideration of some of the other decisions relied on behalf of the petitioner. In Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 , the use of ";shall"; has been read as ";may"; considering that the word appeared in procedural law. ( 16 ) ALL that remains is consideration of some of the other decisions relied on behalf of the petitioner. In Sharif-ud-Din v. Abdul Gani, AIR 1980 SC 303 , the use of ";shall"; has been read as ";may"; considering that the word appeared in procedural law. In S. Sivaswami v. V. Malaikannan, AIR 1983 SC 1293 , a major portion of the mark was against the name of the candidate and a small portion had encroached upon the shaded area. That factor was not held sufficient to invalidate the vote. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 , controversy was about non-joinder of parties to the election petition of a person who is not a candidate. In Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 , it is laid down that a provision of a statute is generally not mandatory unless non-compliance with it is made penal. That decision was also on the subject of necessary parties to an election petition. We see nothing in these decisions which has any decisive impact on the point involved. ( 17 ) ON the above analysis, we hold that the rejection of ballot paper in question was in accordance with law and hence there is no substance in this petition. It is dismissed. No costs. D. P. MOHAPATRA, J. I agree. R. K. PATRA, J. I agree. Petition dismissed. .