Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 871 (MP)

Somwati v. State of M. P.

2006-07-18

A.K.MISHRA

body2006
ORDER 1. In this petition, petitioner has assailed an order passed by the Collector by which the Collector has held that no confidence motion against respondent No. 5 Smt. Keshkali was not carried out in accordance with law. Collector has come to the conclusion that one of the votes on which there were two marks, it was possible to identify the voter as such the said vote has been held to be invalid, excluding the said vote no-confidence motion was not carried out by the majority as required under section 21 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. 2. Facts are not being mentioned in detail as controversy involved in this petition is whether the vote which has been held to be invalid by the Collector ought to have been treated as validly cast vote in favour of resolution of no-confidence. Following were the two marks as noticed in the order of Collector: "[v ]" "[x]" Collector has come to the conclusion that on the basis of the other mark which was put on ballot paper, it was possible to identity the voter as such the vote has been treated to be invalid as per mandate of rule 76 (1) (a) of M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as "the Rules of 1995") which reads as under: "76. Scrutiny and rejection of ballot paper -- (1) A ballot paper contained in a ballot box shall be rejected in-- (a) it bears any mark or writing by which the voter can be identified; 3. Shri Praveen Dubey, learned counsel appearing for petitioner has placed reliance on a decision in Km. Shradha Devi v. Krishna Chandra Pant [ AIR 1982 SC 1569 ], Ravi Thakur v. Shivshankar Patel and others [ 1997 (1) JLJ 89 = AIR 1997 MP 136 ] and Sharada Bai Khatik v. State of M.P. and others [1998 (l)JLJ 399 = 1997 (2) MPLJ 291 ]. 4. Shri A.M. Trivedi, learned senior counsel appearing on behalf of respondent No.5- Sarpanch of Gram Panchayat and Shri K. Pathak, GA appearing for State have supported the order, he has submitted that mark was such by which it was possible to identify the voter as such a vote has to be rejected as per mandate of rule 76(1) (a) of the Rules of 1995. 5. 5. After hearing learned counsel for parties, on bare reading of rule 76 (1) (a) of the Rules of 1995 makes it clear that vote shall be rejected in case there is such a mark on the ballot paper by which it was possible to identify the voter, the mark in question is such by which it was clearly possible to identify the voter. Thus, the conclusion recorded by the Collector is right that it was possible to identify the voter by mark in question which was in addition to the ''v'', only the ''v'' mark was permissible to be put on the ballot paper, I find no force in the submission of Shri Praveen Dubey, learned counsel appearing for petitioner that Collector should have further found that infact it was the vote cast by which Panch, that kind of exercise is not warranted to find actually who has cast this vote, only possibility which has to be found out whether it was possible to identify the voter and precisely that finding has been recorded by the Collector, it was not necessary for the Collector to give a further finding that vote was infact cast by which of the Panchas. The apex Court while considering Conduct of Election Rules, 1961, framed under Representation of People Act, has held in Km. Shradha Devi v. Krishna Chandra Pant and others (supra) that the mark or identification on the ballot paper for rejection should be such as to unerringly reveal the identity of the voter of the evidence of prior arrangement connecting the mark must be made available. The apex Court has laid down thus: "15. The High Court did not examine the other 9 ballot papers on the erroneous view that only two were correlated to the averments in the plaint. There was specific averment in Para 18 of the petition that the marks were not such as to lead to identity of the elector and that the ballot papers could not be rejected as invalid under Rule 73 (2) (d). This allegation is wholly substantiated by a casual look at the remaining nine ballot papers. The error is apparent. Once the error has been established the scrutiny and recount had to be ordered as a prima facie case of miscount is made out and, therefore, the decision of the High Court is liable to be set aside. This allegation is wholly substantiated by a casual look at the remaining nine ballot papers. The error is apparent. Once the error has been established the scrutiny and recount had to be ordered as a prima facie case of miscount is made out and, therefore, the decision of the High Court is liable to be set aside. At one stage we were inclined to examine the validity of each ballot paper. But as the High Court has not undertaken that exercise it would not be proper for us to undertake the same for the first time here. The position of law having been made very clear, namely that once an error is established it is not necessary that the pleadings must show error in respect of each individual invalid ballot paper. Prima facie proof of error resulting in miscount having been established, a scrutiny and recount has to be ordered. And the scrutiny of invalid ballot papers must precede the recount. It is further made clear that where voting is in accordance with the proportional representation by the single transferable vote a ballot paper can be valid in part. And it must be remembered that every mark of writing does not result in invalidation of the vote. The mark of identification should be such as to underringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. There is no such evidence. Therefore, the ballot papers could not have been rejected on the ground mentioned in Rule 73 (2) (d), such marks being in this case some erasures or a bracket." Bare reading of aforesaid decision makes it clear that vote in question has been rightly rejected by Collector as it was possible to identify the voter. 6. The decision in Sharda Bai Khatik v. State of M.P. and others (supra) the marks were put in the nature as if all were "v" marks, were put in different directions, following were the marks noted in Para 4 of the order passed by this Court : "[ v ]" In view of aforesaid marks, this Court came to the conclusion that intention of the voter was clear. Rule 76 was not placed for consideration before the Court nor it was considered that whether it was possible to identify the voter by the aforesaid marks. 7. Rule 76 was not placed for consideration before the Court nor it was considered that whether it was possible to identify the voter by the aforesaid marks. 7. In decision of this Court in Ravi Thakur v. Shivshankar Patel and others (supra) what were the other marks is not clear from the report, it depends upon the mark in question, this Court has followed the decision of apex Court in Km. Shradha Devi v. Krishna Chandra Pant (supra) as such the decision turns on the particular facts of the case. There is no dispute with the proposition of law laid down by this Court in the aforesaid decision. Only question of fact is that whether it was possible to identify the voter by second mark which was put in addition to the permissible mark. Finding of Collector which was recorded is reasonable one and appears to be in contest of rule 76 (1) (a). 8. Resultantly, no case for interference is made out in this writ petition. Writ petition being devoid of merit is hereby dismissed. Parties are left to here their own costs as incurred of this petition.