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Madhya Pradesh High Court · body

2002 DIGILAW 1022 (MP)

AARTI SINGH v. USHA KOL

2002-11-15

S.P.KHARE

body2002
Judgment ( 1. ) THIS is a revision under Section 26 (2) of the M. P. Municipalities Act, 1961 (hereinafter to be referred to as the Act) by the returned candidate Smt. Aarti Singh against the order by which her election as Councillor of Nagar panchayat, Kymore has been held to be void and election petitioner Smt. Usha kol has been declared to be duly elected. ( 2. ) IT is not in dispute that election for the Councillor of Ward No. 5 of Nagar Panchayat, Kymore took place on 26-12-1999 and the counting of votes was done on 28-12-1999. The result was declared on 31-12-1999. At the time of counting, thirteen ballot papers were rejected. After the completion of the counting, the Returning Officer declared that Smt. Aarti Singh had polled 114 votes and Smt. Usha Kol 115 votes. Thus, there was a difference of one vote only. Smt. Aarti Singh submitted an application at 4 P. M. to the returning Officer for recounting of votes. The recounting was allowed as there was difference of one vote only. On recounting also the result was the same. Smt. Aarti Singh again submitted an application at 6 P. M. for second recount on the ground that two votes polled by Smt. Usha Kol were invalid. That application was also allowed by the Returning Officer. It was found on the second recount that one of the votes polled by Smt. Usha Kol bore a thumb impression. It was, however, not known and it could not be ascertained whose thumb mark that ballot paper was bearing. That ballot paper was rejected on the second recount. Now the two candidates had equality of votes (114 each ). A lot was drawn as per Rule 73 of the M. P. Nagarpalika Nirvachan Niyam, 1994 (hereinafter to be referred to as the Rules) and as the lot fell in favour of Smt. Aarti Singh she was declared elected. Smt. Usha Kol submitted the election petition on 19-1-2000 in the office of the District Judge, Jabalpur challenging the election of Smt. Aarti Singh as Councillor. The election petitioner deposited an amount of Rs. 250/- on 28-1-2000 in the Government treasury and submitted the receipt before the District Judge, Jabalpur. By order dated 2-2-2000 the District Judge, Jabalpur transferred the election petition to the Ist Additional District Judge, Katni as per Section 20 (2) of the act. The election petitioner deposited an amount of Rs. 250/- on 28-1-2000 in the Government treasury and submitted the receipt before the District Judge, Jabalpur. By order dated 2-2-2000 the District Judge, Jabalpur transferred the election petition to the Ist Additional District Judge, Katni as per Section 20 (2) of the act. It was received by the Ist Additional District Judge, Katni from the office of the District Judge, Jabalpur on 5-2-2000. ( 3. ) THE case of the election petitioner is that the result of the election of the returned candidate has been materially affected by improper refusal of the vote polled in favour of the election petitioner. It is stated in the election petition that the second recount of votes was contrary to law. It is also pleaded that there was no scope for drawing a lot. ( 4. ) ACCORDING to respondent No. 1 Smt. Aarti Singh the second recount was legally permissible and the one vote polled by the election petitioner was rightly rejected as it was bearing a thumb mark by the voter who could be identified, as per Rule 68 (1) (a) of the Rules. It is also pleaded that the election petition has not been properly presented as required by Section 20 of the Act as the petition on the date of its presentation was not "accompanied by" the Government Treasury receipt and therefore, the election petition deserved to be dismissed on this count only. ( 5. ) THE Additional District Judge after holding the election trial came to the conclusion that the election petition was duly presented as per requirement of law and there is no infirmity on that count. He also held that the one vote polled by the election petitioner bearing some thumb mark could not be rejected as this mark was not such "by which the voter can be identified" within the meaning of the words used in Rule 68 (1) (a) of the Rules. He has also held that there could not be second recounting on this ground. The rejection of the one vote polled by the election petitioner has materially affected the result of the election within the meaning of words used in Section 22 (1) (d) of the Act. He has also held that there could not be second recounting on this ground. The rejection of the one vote polled by the election petitioner has materially affected the result of the election within the meaning of words used in Section 22 (1) (d) of the Act. On this finding the impugned order declaring the election of the returned candidate as void has been passed and the election petitioner has been declared to be duly elected. ( 6. ) DURING the course of hearing of this revision, three points have been debated; (a) whether the crucial vote which was bearing some thumb mark was such "by which the voter can be identified" and therefore, it was rightly rejected, (b) whether election petition was not properly presented as "it was not accompanied by the receipt of the Government Treasury showing the deposit, and (c) whether the election petition was presented before the competent Judge. ( 7. ) POINT (a): rule 68 (1) (a) of the Rules provides that a ballot paper shall be rejected if it bears any mark or writing by which the "voter can be identified". This rule corresponds to Rule 73 (2) (d) of the Conduct of Election Rules, 1961 framed under the Representation of the People Act, 1951. The words "elector can be identified" used in this rule were construed by the Supreme court in Shradha Devi Vs. K. C. Pant, AIR 1982 SC 1569 , and it was held that every and any mark or writing on ballot paper does not perse result in validation of the vote. The mark or identification should be such as to unerringly reveal the identify of the voter and the evidence or prior arrangement connecting the mark must be made available. Any mark or writing of an innocuous nature or meaningless import can not be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. The decision in Woodward Vs. Sarsens, (1874-75) LR 10 CP 733, has been cited which held: "it is not every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the voter can be identified". The decision in Woodward Vs. Sarsens, (1874-75) LR 10 CP 733, has been cited which held: "it is not every writing or every mark besides the number on the back which is to make the paper void, but only such a writing or mark as is one by which the voter can be identified". It has been further observed by the Supreme Court that it would imply that there must be some causal connection between the mark and the identity of the voter that looking at the one the other becomes revealed. Therefore, the mark or a writing itself must reasonably give indication of the voters identity. It may be that there must be extrinsic evidence from which it can be inferred that the mark was placed by the voter by some arrangement. Reference was then made to Halsburys Laws of England, 4th Edition Vol. 15 para 634 which reads : "ballot papers rejected for marks of identification-Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back is void and must not be counted. The writing or mark must be such that the voter can be, and not merely might possibly be, identified. As respects ballot papers which have names, initials, figures or other possible marks of identification on them by which it might be suggested that the voter could be identified, it has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voter for the purpose of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for purposes of identification), but the Court comes to the conclusion on looking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and make it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of some agreement to show that it was so". It is further observed that the mark or writing which would invalidate the ballot paper must be such as to unerringly point in the direction of identity of the voter. In the absence of such suggested mark or writing the ballot paper can not be rejected merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified. One has to bear in mind the difference between can be identified and might possibly be identified. ( 8. ) IN the present case there was no indication in the ballot paper whose thumb mark it was bearing. There was no other evidence to establish the identity of the voter. There was no extrinsic evidence in that respect. Looking at the ballot paper alone the identification was not possible and there was no link to show the identity of the voter. As already stated mere mark or writing is not enough. It should be capable of establishing the identity. This was not the case in the category of "can be identified" but it was in the category of "might possibly be identified". The disputed vote was not discarded when there was initial scrutiny to sort out invalid votes in which 13 votes were rejected. It must have been inspected by the candidates or their election agents as per Rule 68 (2) of the Rules. The Returning Officer as required by Rule 68 (3) did not record the letter r on the disputed ballot paper at that time. He did not specifically record the ground for rejecting it even later. At the time of counting and first recount also the disputed vote was not rejected. Therefore, the Returning Officer must be held to have wrongly rejected this vote at the time of second recount even assuming that the second recount was permissible as per proviso to Rule 72 (5) of the Rules. There was no valid ground for second recount and for rejection of the disputed vote. The result had been announced twice in favour of the election petitioner. In such a situation Rule 73 was not attracted and the lot could not be drawn. There was no valid ground for second recount and for rejection of the disputed vote. The result had been announced twice in favour of the election petitioner. In such a situation Rule 73 was not attracted and the lot could not be drawn. The Additional District Judge by the impugned order has rightly held that improper refusal of the disputed vote has materially affected the result of the election and it is a good ground fori declaring the election of the returned candidate as void and for furthers declaration that the election petitioner has been duly elected. ( 9. ) POINT (b): section 20 (3) of the Act provides that no petition presented under sub-section (2) shall be "admitted" unless (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the gazette, and (ii) it is "accompanied by" a Government Treasury receipt showing a deposit of rupees one hundred in the case of election or nomination to Nagar Panchayat. In the present case, as stated above, the election was notified in the gazette on 31-12-1999. The election petition was presented on 19-1-2000 and the deposit of Rs. 250/- was made on 28-l-200 (Rupees one hundred and fifty extra) and the receipt was produced in the court on 28-1-2000. Thus, the election petition was presented within the prescribed time limit of 30 days and the deposit was also made within the said time limit. It is argued on behalf of the revision petitioner that the election petition was not "accompanied by" the receipt and therefore, it could not be legally admitted. It is contended that the statutory requirement is that the receipt showing the deposit must accompany the election petition and as this requirement was not complied with the petition can not be said to have been presented according to law and the subsequent deposit though made within the time limit of 30 days would not cure the initial defect in the presentation of the petition. This argument is too technical to be accepted as valid. The law requires the petition to be presented within 30 days of the notification of the result and that was done. The deposit was also made within 30 days. The word "admitted" used in sub-section (3) of Section 20 must be interpreted in the sense ascribed to it by legal usage. The law requires the petition to be presented within 30 days of the notification of the result and that was done. The deposit was also made within 30 days. The word "admitted" used in sub-section (3) of Section 20 must be interpreted in the sense ascribed to it by legal usage. There is always some time gap between "presentation of the petition" and its "admission". The word "admitted" in this context means the acceptance of the petition for consideration by the judge on merits. It is a judicial act and the petition is admitted after application of judicial mind on the point whether the requirements antecedent to the admission have been complied with. Therefore, if at the time of consideration of the question of admission it is found that the deposit has been made within the time limit then there would be substantial compliance with the requirement of law. The ordinary meaning of accompany is to go with, "to go along with" or "to occur in association with". But it can not be given too literal interpretation. It is said that "the key to the opening of every law is the reason and spirit of the law". In the words of Krishna Iyer, J. , the interpretative effort "must be illumined by the goal though guided by the word". (Kanta Goel Vs. B. D. Pathak, AIR 1977 SC 1599 ). It has been again reiterated : "to be literal in meaning is to see the skin and miss the soul". (Board of Mining Vs. Ramjee, air 1977 SC 965 ). Literally must be eschewed where it leads to absurdity. The plain meaning of Section 20 (3) of the Act is that the election petition must be filed within the prescribed period of 30 days and the deposit also must be made within that period. If the deposit is not made with the petition but it is made within 30 days and before the question of admission of the petition is considered that would sufficiently and substantially meet the requirement of law. It would be highly arbitrary if the petition is thrown on the technical ground that the receipt showing the deposit was not attached with the petition when it was filed. That would tantamount to "judicial arbitrariness". ( 10. ) THE doctrine of "substantial compliance" is well rooted in our jurisprudence and even in the field of election law. It would be highly arbitrary if the petition is thrown on the technical ground that the receipt showing the deposit was not attached with the petition when it was filed. That would tantamount to "judicial arbitrariness". ( 10. ) THE doctrine of "substantial compliance" is well rooted in our jurisprudence and even in the field of election law. Section 81 (3) of the representation of the People Act, 1951 provides that every election petition shall be "accompanied by" as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Interpreting this provision the Constitution Bench of the Supreme Court held in T. M. Jacob Vs. C. Poulose, (1999) 4 SCC 274 : AIR 1999 SC 1359 , "substantial compliance" with Section 81 (3) was sufficient and the petition could not be dismissed, in limine, under Section 86 (1) where there has been substantial compliance with the requirement of Section 81 (3) of the Act. It has been distinctly observed that the argument that since proceedings in election petitions are purely statutory proceedings and not civil proceedings as commonly understood. There is no room for invoking and importing the doctrine of substantial compliance into Section 86 (1) read with Section 81 (3) of the Act, can not be accepted and has to be repelled. The two cases Dr. Shipra Vs. Shantilal, (1996) 5 SCC 181 and Harcharan Singh Josh Vs. Harikishan, (1997)10 SCC 294 , in which it was held that the concept of substantial compliance has no application in such cases have been overruled. Long back it was held by the Supreme Court in Murarka Radheshyam Vs. Roop Singh, AIR 1964 SC 1545 , that the test of substantial compliance is applicable. This legal position has been made crystal clear in T. Phung zathang Vs. Hangkhanlian, (2001) 8 scc 358 . ( 11. ) THE doctrine of substantial compliance and curable defect have wider applications. These are attracted even in a case where the security deposit has been made within the prescribed time though not with the election petition on the date it was filed. ( 12. Hangkhanlian, (2001) 8 scc 358 . ( 11. ) THE doctrine of substantial compliance and curable defect have wider applications. These are attracted even in a case where the security deposit has been made within the prescribed time though not with the election petition on the date it was filed. ( 12. ) THE learned Counsel for the revision petitioner has strongly relied upon the Division Bench decision of this Court in Smt. Sarla Tripathi vs. Smt. Kaushilya Devi (M. P. No. 6826/2000, decided on 3-7-2001 ). That was a case under M. P. Panchayat Raj Adhiniyam, 1993 and Rules 7 and 8 of the m. P. Panchayats (Election Petition, Corrupt Practices and Disqualification for membership) Rules, 1995 were the subject- matter of interpretation. Rule 7 provides for deposit of security "at the time of presentation of the election petition" and Rule 8 specifically lays down, inter alia, that if the provision of rule 7 has not been complied with, the petition "shall be dismissed". It was held relying upon the earlier decision in Babulal Vs. State of M. P. , AIR 1986 mp 49 , that the expression "shall deposit" and the penalty of failure prescribed in Rule 8 clearly spelt out that the provision of Rule 7 is mandatory. Thus these decisions interpreted an altogether different phraseology used in the Rules. There is no lethal provision akin to the Rule 8 in the M. P. Municipalities Act, 1961 or the rules framed thereunder. In the absence of such lethal provision no fatality can be inflicted on the election petition when the provision in sub-section (3) of Section 20 regarding the deposit of Rs. 100/- has been sufficiently and substantially complied before the question of admission of the petition came to be considered. ( 13. ) POINT (C): the point that the election petition was not presented before the Competent Judge was not raised by the revision petitioner in the pleadings or during the trial. There is no decision of the Trial Judge on this point. However, being a question of law based on the material on record it is being considered. ( 13. ) POINT (C): the point that the election petition was not presented before the Competent Judge was not raised by the revision petitioner in the pleadings or during the trial. There is no decision of the Trial Judge on this point. However, being a question of law based on the material on record it is being considered. Section 20 (2) of the Act provides that the election petition may be presented before the (a) District Judge, where such election is held within the revenue district in which the Court of the District Judge is situate, (b) in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election is held, and (c) if there be more than one such Additional District Judge within the said revenue district, to such one of them as the District Judge "may specify for the purpose". The present case fell in the category (c) as Katni became separate revenue district from 25-5-1998 but the civil district continued to be Jabalpur. The number of Additional District Judges at Katni is more than one. A copy of the Distribution Memo issued by the District Judge, Jabalpur is on record. There were three Additional District Judges but the work of hearing the election petitions under Section 20 of the Act was not allotted to any of them. The election petitioner could not submit the petition before any of the additional District Judges at Katni and therefore, she chose the third alternative and submitted it before the District Judge, Jabalpur and he has by his order dated 2-2-2000 "specified" the First Additional District Judge, Katni to hear this petition and sent the petition to him. In the order sheet the word "transferred" (antarit) has been used but that does not alter the real character of the order. It can be read as "specified" within the meaning of the word used in Section 20 (2) of the Act. In the order sheet the word "transferred" (antarit) has been used but that does not alter the real character of the order. It can be read as "specified" within the meaning of the word used in Section 20 (2) of the Act. The argument of the learned Counsel for the revision petitioner is that the District Judge should have issued a separate administrative order under Section 15 of the M. P. Civil Court Act, 1958 specifying the Additional District Judge at Katni to hear the petition under section 20 (2) of the Act and then it was for the petitioner to present the petition before that Additional District Judge at Katni. This is again hairsplitting. The District Judge, Jabalpur could have done so but the election petitioner can not be blamed for that purpose. The District Judge instead of adopting the course as argued by the learned Counsel for the revision petitioner passed the order in the order-sheet and sent the election petition directly to the First Additional District Judge, Katni for further proceedings. The petition had to be presented before the District Judge, Jabalpur for the purpose of specifying the Additional District Judge at Katni who was to hear the petition. The petition must be held to have been duly presented as required by law. The decision of this Court in Anup Vs. Baboolal, 1979 MPLJ 487 , cited by the learned Counsel for the revision petitioner is not attracted in the present case as in that case the petition was to be presented before the Additional district Judge, Sehore where there was only one Additional District Judge and therefore, the case was covered by category (b) mentioned above. Earlier the full Bench in Babulal Vs. Dattatraya, 1971 MPLJ 765, has held that Section 20 authorises the District Judge to nominate any one of the Additional District judges for this purpose if in the same revenue district there are more than one additional District Judge. It would follow that what Section 20 contemplates is that the election petition shall be entertained by the District Judge; and if the matter comes from another revenue district, it shall be entertained by the delegate or the nominee of the District Judge and that this provision is made with a view to get the election petition disposed of within the geographical limits of a revenue district, and nothing more. Thus, in the present case the election petition was rightly presented before the District Judge, Jabalpur and he specified the First Additional District Judge, Katni to hear it. ( 14. ) THE revision is dismissed. Civil Revision dismissed.