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1994 DIGILAW 67 (ORI)

JAGANNATH DHAL v. THE DISTRICT JUDGE, SELESORE

1994-03-24

ARIJIT PASAYAT, S.K.MOHANTY

body1994
PASAYAT, J, J. ( 1 ) ORIGINAL decision of learned Munsif, Bhadrek and appellate order of District Judge, Selesore in an election dispute raised under Orissa Gram Panchayat Act, 1964 (in short, the 'act') and Orissa Gram Panchayat Election Rules, 1965 (in short, the 'election Rules') is the subjectmatter of challenge in this writ application. Petitioner Jagannath Dhal, opposite party No. 3 Manos Ranjan Barik and opposite party No. 4 Ashok Kumar Puhan were contestants for the office of Sarpanch of Panchani Gram Panchayat. Two others namely, Muktikanta Sahu and Biswamber Puhan withdrew their candidature after having filed nomination papers. Ultimately therefore, there were three contestants in they field. Manos was allotted symbol of umbrella, while Jagannath and Ashok were allotted symbols of fish and bird respectively. Though Biswamber and Muktikanta had withdrawn their candidature, symbols that were originally allotted them namely, Sun and cow head were printed on the ballot papers, but were cancelled. Polling took place on 5-6-1992 and 9-6-1992. In total 1897 voters cast votes on 16-4-1992, Block Development Officer, Dhasnagar, who was the Election Officer declared that Manos owned 851 valid votes, while Jagannath and Ashok owned 849 and 115 valid votes respectively. 79 votes were rejected. Jagannath applied for recounting and re-examination of ballot papers and on 14-6-1992 votes were recounted. After recounting, the Election Officer declared that both Manos and Jagannath have polled equal number of valid votes, i. e. 842 votes each and thereafter lots were drawn, and Jagannath was declared to the office of Sarpanch. The number of invalid votes was held to be 95. Manos filed an election petition under Section 31 of the Act before the learned Munsif, Bhadrak. The basis for such challenge was the allegation that there was improper rejection of about 25 valid votes cast in favour of Manos, and there was improper admittance of about 60 rejected votes cast in favour of Jagannath, further, allegations of resort to corrupt practice was made. It was pleaded that the Election Officer did not comply with various provisions of the Act and Election Rules. Jagannath denied the allegations and supported action of the Election Officer, Ashok did not choose to contest. ( 2 ) LEARNED Munsif held that election of Jagannath was invalid and, accordingly Manos was declared to have been duly elected to the office of Sarpanch. Jagannath denied the allegations and supported action of the Election Officer, Ashok did not choose to contest. ( 2 ) LEARNED Munsif held that election of Jagannath was invalid and, accordingly Manos was declared to have been duly elected to the office of Sarpanch. Jagannath assailed the correctness of conclusions before learned District Judge, Selesore in an appeal under Section 38 (4) of the Act. The appellate authority confirmed the conclusions of learned Munsif. The conclusions of learned Munsif and learned District Judge were as follows: (I) Four of the ballots marked as Exts. XXXII, XXXVI, LXXXVI and LXLIV have been rightly rejected. The ballots contained certain impressions which rendered them invalid votes. Two ballots marked Exts. XLIV and LXXX were to be treated as valid votes, and to be counted in favour if Manes. (II) Even though allegations of corrupt practice were made, they were not substantiated. ( 3 ) IN support of the writ application, learned counsel for petitioner submitted that the conclusions of the Courts below are erroneous. With reference to four votes which were treated to be valid, it is submitted that they contained marks which clearly indicated that they were intended to be cast in favour of the petitioner. So far as two votes which have been taken to the credit of Manas, it is submitted that they were intended to be cast in favour of Manos. Though symbols were scored through in case of persons who withdrew their candidature, some of the voters had put their marks on symbols originally allotted to them. This shows that the voter was not very sure about their presence in the field. If voters were not aware that two persons were not in the field, that itself shows that voting was not done in a regular and proper manner. Fairly large number of votes were cast in respect of the persons who had withdrawn their nominations. It is urged that ballot should not be rejected if the mark on it indicates the person in whose favour it was intended to be cast. Learned counsel for Manos however, supported the conclusions of the Courts below. ( 4 ) BEFORE coming to the factual contraversy, provisions of the Act and Rules deserve a bird's eye view. The grounds on which an election can be declared void are laid down in Section 39. Learned counsel for Manos however, supported the conclusions of the Courts below. ( 4 ) BEFORE coming to the factual contraversy, provisions of the Act and Rules deserve a bird's eye view. The grounds on which an election can be declared void are laid down in Section 39. The grounds on which a ballot paper shall be liable for rejection, are enumerated in Rule 47 of the Election Rules. The provisions are extracted below :";section 39. Grounds for declaring election void. (1) The Munsif shall declare the election of a returned candidate void, if he is of the opinion- (a) that on the date of his election the candidate was not qualified or was disqualified to be elected under the provisions of this Act or the rules made thereunder; or (b) that any corrupt practice has been committed by the candidate; or (c) that any nomination paper has been improperly rejected or accepted; or (d) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes for any other reason was not duly elected by a majority of lawful votes; or (e) that there has been any non-compliance with or breach of any of the provisions of this Act or of the rules made thereunder : provided that in relation to matters covered by Cl. (a) the Munsif shall have due regard to the decision, if any, made under S. 26 before making a declaration under this section. (2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially effected the result of the election. ";";rule 47. After the close of polling the Presiding Officer shall proceed to take up counting of the votes polled in the presence of the candidates and their polling agents who may be present at the polling stations. He shall first take up counting of the votes in the ballot-box relating to the membership of the ward. ";";rule 47. After the close of polling the Presiding Officer shall proceed to take up counting of the votes polled in the presence of the candidates and their polling agents who may be present at the polling stations. He shall first take up counting of the votes in the ballot-box relating to the membership of the ward. Each ballot-paper shall be carefully scrutinised by the Presiding Officer in the course of counting and a ballot-paper shall be liable to rejection on one or more of the following grounds, namely: (a) If it bears any mark or writing by which the votes can be identified; (b) If no vote is recorded thereon; (c) If votes are recorded in favour of more than one candidate; (d) If the mark indicating the vote is placed in such a manner so as to make it doubtful so to which candidate the vote has been given; (e) If the ballot-paper is spurious; (f) If it so damaged or mutilated that its genuineness cannot be established; (g) If it is of a design different from the one authorised for use at the polling station. The Presiding Officer shall summarily decide at the time of scrutiny and in case of rejection shall so endorse under his signature on the ballot-paper itself. He shall also record the reason for each ballot-paper is rejected in a separate paper. "; ( 5 ) THE case at hand is claimed to be relatable to clause (d) of sub-section (1) of Section 39 of the Act and grounds (e) and (d) enumerated in Rule 47 of the Election Rules. The procedure for voting is inter alia provided in Rule 41. The said provisions reads as follows :";41. (a) xx xx (b) (As each voter approaches the Presiding Officer, he shall check up the eligibility with reference to the working copy of the electoral roll and issue a ballot-paper to the voter for the Office of Sarpanch after putting an indelible ink mark on his left forefinger ). The Presiding Officer shall clearly explain to each voter the procedure to be followed in putting his mark. The voter shall then proceed along with the ballot-paper to the enclosure and affix a mark secretly against the candidate, whom he wishes to vote either with the stamp provided for the purpose or by any other method as may be decided by the Presiding Officer. The voter shall then proceed along with the ballot-paper to the enclosure and affix a mark secretly against the candidate, whom he wishes to vote either with the stamp provided for the purpose or by any other method as may be decided by the Presiding Officer. After affixing the mark the voter should fold the ballot-paper on the inner side so as to maintain secrecy of the vote and proceed to the Presiding Officer and to insert the fold ballot-paper into the box specified for the purpose. ";votes as per Exts. XXXII, LXXVI, LXLIV, XXXVI contained certain marking on either symbol umbrella or fish. Exts. LXLIV, LXXXVI and XXXVI show markings on symbol fish, while in Ext. XXXII marking is on the symbol umbrella. Rule 41 (b) provides that as each voter approaches the Presiding Officer, he shall check up eligibility of the person to cast vote with reference to the copy of electoral roll and issue a ballot to the voter for the office of Sarpanch after putting indelible ink mark on his forefinger. The procedure to be followed in putting mark on the ballot paper has to be explained by the Presiding Officer. The provision makes it clear that the stamp provided for the purpose of marking is to be used, unless any other method is decided by the Presiding Officer. From the ballot papers on record, we find that a stamp was provided which has been used in respect of other votes. The impression on the four ballot papers referred to above, were not made by stamp provided by the Presiding Officer. It is not the case of the petitioner that any other method was decided by the Presiding Officer. In the eye of law, there was no valid marking by the concerned voters and it has to be held as if no vote is recorded on any of those ballot papers. The Courts below were justified in holding that these votes were to be kept out of consideration. ( 6 ) IN respect of votes marked as Exts. XLV and LXXX, it is submitted by the learned counsel for the petitioner that a portion of marking was over symbol scored through, and should have been kept out of consideration. Reference is made to the ground (d) of Rule 47. A bare reading of ground (d) shows hollowness in the argument. XLV and LXXX, it is submitted by the learned counsel for the petitioner that a portion of marking was over symbol scored through, and should have been kept out of consideration. Reference is made to the ground (d) of Rule 47. A bare reading of ground (d) shows hollowness in the argument. If mark indicating the vote is placed in such a manner so as to make it doubtful as to which candidate vote has been given, ballot is liable for rejection. In the two ballot papers a part of mark is over the symbol which has been scored through as it related to a person who had withdrawn candidature. Where mark is partially placed over the symbols of two candidatures, and it is doubtful as to which one of them it related, ground (d) can be pressed into service. The plea is that major portion of the mark was over scored through symbol. A person who had withdrawn his nomination cannot be called a candidate. Section 27 of the Act deals with the manner of holding election. Sub-section (2) deals with power of the State Government to make rules including that relating to withdrawal of candidatures. Rule 34 provides that it is open to a duly nominated candidate for election as Sarpanch to withdraw his candidature three days before the date fixed for the poll. If therefore, any portion of the mark available on the ballot is relatable to any candidate, the same shall be counted in his favour, unless it is difficult to make out to which candidate the vote has been given. The question whether major portion of the mark was over scored through symbol is of no consequence. The Courts below were justified in counting the two votes in favour of Manos. ( 7 ) WE find no infirmity in the conclusions of the Courts below to warrant interference. The writ application fails and is dismissed. No costs. S. K. MOHANTY, J. I agree. Petition dismissed. .