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2008 DIGILAW 836 (MP)

Aniruddh Pandey v. Advocate General

2008-07-08

R.K.GUPTA, R.S.GARG

body2008
JUDGMENT (Oral) Garg, J. -- 1. Before dictating the judgment, we asked the learned counsel for the appellant that whether he wants to exploit the liberty reserved in favour of the appellant or not because the observations made by us are likely to affect his right of election petition, learned counsel for the appellant after consulting the appellant, who is also present in the Court, submitted that the appellant wants a judgment on the merits of the matters and is not interested in the election petition. In view of that submission, we have to consider the merits of the matter. 2. Being aggrieved by the order dated 23.6.2008 passed in Writ Petition No. 6706/2008 by the learned Single Judge dismissing the appellant-petitioner's writ petition, the appellant has filed this writ appeal under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005. 3. Short facts necessary for consideration of this writ appeal are that the appellant, a person registered with the Bar Council of Madhya Pradesh, is a practising Advocate. He submitted his candidature for the elections, which were to commence on 29.4.2008. The appellant deposited a sum of Rs. 10,000/- towards the fee. 4. According to the appellant, vide notification dated 2.4.2008, the State Bar Council of Madhya Pradesh notified for general information to all concerned that as per election programme for the office of the Member, State Bar Council of Madhya Pradesh after withdrawal, the list of the contesting candidates in alphabetical order was as shown in the notification. The name of the appellant was shown at Serial No. 11. The polling was to be held on 29.4.2008. A ballot paper was printed and was provided to the voters for casting their votes in preferential order. 5. The frame of the voting paper was that the Column No.1 contained the serial number, Column No.2 contained the names as are shown in the roll of the Bar Council, Column No.3 provided the date of the enrolment, Column No.4 provided the address with place of the candidates, Column No.5 again provided for serial number and Column No.6 provided the blank place for a mark to be put by the voter. 6. Undisputedly, in the Column No.1, the appellant was shown at Serial No. 11 but in the Column No.5 instead of showing at Serial No. 11, the appellant was shown as No.1. 6. Undisputedly, in the Column No.1, the appellant was shown at Serial No. 11 but in the Column No.5 instead of showing at Serial No. 11, the appellant was shown as No.1. Undisputedly, there is a printing mistake in the ballot paper. 7. The appellant, who was probably to lose the election filed the writ petition on 31.5.2008 that is almost after about rather more than a month of the voting, on the ground that wrong mention of the serial number in Column No.5 amounted to rejection of the candidature of the appellant, therefore, the entire process of the election was vitiated. 8. Submission of the learned counsel for the appellant was that the persons who wanted to cast their votes in favour of the appellant were confused that whether the appellant continued to be at Serial No.1 or at 11 and, therefore; under the said confusion, they could not cast their votes in favour of the appellant. It is also submitted that mentioning of the wrong serial against the appellant in Column No.5 had vitiated the entire process, therefore, the entire election deserves to be quashed. 9. Placing reliance upon a judgment of the Supreme Court reported in Surendra Nath Khosla and another v. Dalip Singh and others [Vol. 20 SCJ page 162], it was submitted that if a nomination paper is illegally/ improperly rejected then the Court has to presume that result of the election had been materially affected. Reliance is also placed on the judgment of the Supreme Court in the matter of Santosh Yadav v. Narendra Singh [2001 AIR SCW 4916] to reinforce the submission. 10. The learned Single Judge has dismissed the petition observing inter alia that Rule 31 of Election Rules, 1968 issued by the State Bar Council of Madhya Pradesh provides for an election petition, therefore, the appellant would be entitled to file an election petition. With the liberty, the learned Single Judge has disposed of the petition. 11. We have heard learned counsel for the parties and have perused the records. 12. So far as application of afore-referred two judgments of the Supreme Court is concerned, unless the Court comes to a conclusion that the matter on hands is a case relating to improper rejection of the nomination paper, the same cannot be applied. 11. We have heard learned counsel for the parties and have perused the records. 12. So far as application of afore-referred two judgments of the Supreme Court is concerned, unless the Court comes to a conclusion that the matter on hands is a case relating to improper rejection of the nomination paper, the same cannot be applied. If the Court holds that the nomination paper was illegally or improperly rejected then there would be no problem in presuming that the improper rejection of the nomination paper led to change of the result or to say that the result of the election was materially affected. 13. Learned counsel for the appellant has not submitted before us that wrong mention of the serial number amounted to rejection of the nomination paper. His case is that wrong mention of the serial number should be presumed to be rejection of the nomination paper. 14. In our considered opinion, when the name of a person is mentioned in the ballot paper and everybody knows that he is contesting the election then wrong mention of the serial number would not amount to rejection of the nomination paper especially when by notification dated 2.4.2008, the State Bar Council of Madhya Pradesh issued the list of the contesting candidates. If the Bar Council knew and informed all concerned that the appellant is a contesting candidate and has mentioned his name in the ballot paper then by no stretch of imagination, a wild presumption can be raised that the nomination paper or the candidature of the appellant was rejected. 15. So far as the appellant's submission that the voters were confused in casting their votes is concerned, we must immediately reject the submission because present was not an election where the voters were illiterates or they did not know what is what. It is not an election where by the marks/symbols, the identity of a candidate is fixed. Present is an election where the voters are graduates so also they are law graduates and they can read and write English properly. If in the first column, the appellant is shown at Serial No. 11 then a misprint in Column No.5, in our considered opinion, was not likely to mislead the literate voters. The appellant cannot be allowed to make a capital out of a printing mistake. If in the first column, the appellant is shown at Serial No. 11 then a misprint in Column No.5, in our considered opinion, was not likely to mislead the literate voters. The appellant cannot be allowed to make a capital out of a printing mistake. We could also understand the plea of the appellant if some voters have filed their affidavits to fortify the submission made by the appellant that because of some confusion, they could not cast their votes in favour of the appellant. 16. The ipse dixit made by the appellant is nothing but is a self assessment that if Serial No. 11 was shown in Column No.5, the results mght have changed. In the democracy, when a person is to be elected by the agency of voters then such person must ultimately rely upon the freewill of the voters and should not have the fanciful idea. We are unable to hold that the appellant could make out any ground for any interference in the election. 17. The appeal is dismissed.