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2009 DIGILAW 250 (ORI)

LILI BEHERA ` MANI GHOSH v. PREMALATA MALLICK

2009-03-23

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This writ appeal has been filed against the judgment and order of the learned Single Judge dated 11.12.2008 allowing the writ petition No. 920 of 2008 against the judgment and order of the learned Tribunal in Election Misc. Case No. 7 of 2007 dated 8.1.2008 by which the Election Tribunal had rejected the application for segregation, inspection and recounting of ballot papers. 2. The facts and circumstances giving rise to the case are that the Appellant-Respondent and others were contesting for the post of Sarpanch of Serapur Gram Panchayat under Bari Block. The election was held on 7.2.2007 and the present Appellant was declared elected on 22.2.2007 by a margin of 65 votes. Respondent No. 1 filed election petition mainly on two grounds that the present Appellant did not belong to Scheduled Caste though the seat was reserved for Scheduled Caste candidates and that 100 false ballot papers were used in Booth Nos. 5 and 8 which did not even bear the signature and seal of the Presiding Officer. The election petition was contested by the present Appellant and on closing of the evidence an application was filed by Respondent No. 1 for segregating, inspecting and recounting of 100 false votes in Booth Nos. 5 and 8 on the ground that in the election 100 false ballot papers were used in Booth Nos. 5 and 8 and it was within the knowledge of the "Election Officer and it did not have the distinguishing marks on the said ballot papers nor it were signed by the Presiding Officer and it had materially affected the result. The application has been rejected by the Election Tribunal vide order dated 8.1.2008 on the ground that no pleadings had been taken as it had not been disclosed, as on what basis such allegations have been made and there was nothing on record to show as how it has materially affected the result of the election. It had not been disclosed in whose favour those votes have gone. 3. Being aggrieved, the election Petitioner filed a writ petition which has been allowed issuing direction for segregation, Inspection and recounting of all the votes of Booth Nos. 5 and 8 and if any ballot papers are found to be invalid as per Rule 47(e) of Orissa Gram Panchayat Election Rules, the same shall be excluded from counting. Hence this appeal. 4. 5 and 8 and if any ballot papers are found to be invalid as per Rule 47(e) of Orissa Gram Panchayat Election Rules, the same shall be excluded from counting. Hence this appeal. 4. Mr. A. Mishra, learned Counsel for the Appellant has submitted that in the/election petition no material facts had been pleaded giving any particular number of ballot papers which were false and did not bear distinguishable marks. It was not the case that there were forged, fabricated ballot papers in absence of any pleading as to, in whose favour those false ballot papers have been casted, it could not be held that result of the election stood materially affected. In case such ballot papers had been used by the voters casting their votes in favour of the election Petitioner herself, it was not permissible to argue that the result of the said votes stood materially affected. Moreso, it has not been disclosed as on what basis such allegations had been made. The grievance in the election petition was only in respect of 100 ballot papers in Booth Nos. 5 and 8. Learned Single has allowed the petition granting relief which was not even a claim of the election Petitioner before the Election Tribunal. Court cannot grant the relief, which is even asked for, The direction has been issued for recounting of all the votes of Booth Nos. 5 and 8 which is not permissible in law. It is not pointed out by the election Petitioner as to how many number of false ballots have been used in Booth Nos. 5 and 8, respectively nor it is disclosed as to what was the total number of votes casted in Booth Nos. 5 and 8. The election petition cannot be tried on such a vague pleadings. The judgment and order of the Election Tribunal should not have been interfered with by the learned Single Judge. Hence this appeal deserved to be allowed. 5. On the contrary, Mr. Rath, learned Senior Counsel appearing for the election Petitioner has submitted that a complaint was lodged after the completion of the election with the B.D.O. in this regard and it was duly endorsed by the Presiding Officer. The said document is a part of record of the election petition as Ext. A/4 and once false votes are used in the election, the sanctity of the election goes. The said document is a part of record of the election petition as Ext. A/4 and once false votes are used in the election, the sanctity of the election goes. Therefore, the appeal is liable to be dismissed. 6. We have considered the rival submission made by the learned Counsel for the parties and perused the record. 7. In the election petition so far as issue No. 1 before the Election Tribunal is concerned as to whether the returned candidate is a Scheduled Caste is yet to be determined. So far as issue No. 2, i.e., recounting of 100 false votes is concerned, averments have been made in paragraph-5 of the petition which reads as under: That besides the above illegality false ballot papers were used in Booth Nos. 5 and 8. The above manipulation of voting was within the knowledge of Election Officer. There is no distinguish mark on the more than 100 ballot papers which is admitted by the Election Officer-cum-B.D.O., Bari Block. The Petitioner and some of her supporter raised objection for the illegal ballot and false voting before the Election Officer. The Petitioner had also brought her "grievance" before the Election Commissioner, Orissa on 22.2.2007 by Fax. Election Officer has also not took signature of the agent of the Petitioner at the time of counting. 8. In support of his contention, Mr. Rath, learned Senior Counsel has submitted that after conclusion of the election, a complaint dated 22.2.2007 which is exhibited as Ext.4 before the Election Tribunal was filed, submitting that some 100 numbers of false ballot papers were used basically in Booth Nos. 5 and 8. The said ballot papers had not been signed by the Presiding Officer nor it contain any seal and this aspect had been duly endorsed by the B.D.O. himself on the same date. Thus, such votes should be discarded. 9. The translation of the aforesaid complaint dated 22.2.2007 (Ext. -4) reads as under: To The Election Officer, Bari, Sub: Regarding the illegalities committed in respect of Booth No. 5. Sir, I, Smt. Premalata Mallik, being a Sarpanch candidate in respect of Serapur G.P. want to state that a book containing 100 numbers of ballot papers in booth No. 5 did not contain the signature and seal of the Presiding Officer on the back side of them. Therefore, the same have to be discarded. Sir, I, Smt. Premalata Mallik, being a Sarpanch candidate in respect of Serapur G.P. want to state that a book containing 100 numbers of ballot papers in booth No. 5 did not contain the signature and seal of the Presiding Officer on the back side of them. Therefore, the same have to be discarded. However, the Election Officer, Bari had counted such votes and declared Smt. Lili Behera elected. It is totally out of imagination and baseless. Therefore, it is prayed that taking in to account the aforesaid facts an appropriate inquiry may be conducted and necessary action may be taken and oblige. Bari, Ramchandrapur 22.2.2007 Yours Smt. Premalata Mallik Sarpanch Candidate. 10. The endorsement of the Election Officer on the said complaint dated 22.2.2007 (Ext.-4) reads as under: It is a fact that in some ballot papers the distinguishing marks have not been stamped, though the signature of the presiding Officer and SI. No. are visible, which I have not tallied. So in pursuance of the information communicated by the D.P.O., I did not reject the same. Finally, the result was declared. (Emphasis added). 11. In her examination in chief, in the deposition of the Election Petitioner Smt. Premalata Mallik, she has deposed as under: There was also false voting in Booth Nos. 5 and 8. On the date of election, I had also informed about false voting to the Election Officer and to the Collector, Jajpur in writing.... Ext.-4 is my written objection to the Election Officer, Bari containing endorsement of the Election Officer ... Ext.-6 is the original ballot paper containing the signature of the Presiding Officer, which was collected from outside the booth on the date of election. In her Cross-Examination she stated as under: It is not a fact that the election in booth Nos. 5 and 8 were conducted as per the law and no false voting was made. It is not a fact that I have created the ballot paper for the purpose of this case. I have not mentioned about ballot paper (Ext.-6) in the Election Petition filed by me. 12. In the said complaint dated 22.2.2007, there is no reference to Booth No. 8. It had not been mentioned therein that such ballot papers had been used in Booth No. 8. I have not mentioned about ballot paper (Ext.-6) in the Election Petition filed by me. 12. In the said complaint dated 22.2.2007, there is no reference to Booth No. 8. It had not been mentioned therein that such ballot papers had been used in Booth No. 8. Nor it is revealed any where in the election petition or In the complaint as to how many of those votes casted in favour of the returned candidate or the election Petitioner. In such a situation, the question does arise as to on what basis the election petition can be entertained so far as second issue is concerned. The endorsement made by the Election Officer-cum-B.D.O. made it clear that said ballot papers were having the signatures and, serial numbers, but had not been stamped. It has been admitted by Shri Rath, learned Senior Counsel, appearing for the Appellant that in the trial of the election petition, the said fact had not been examined. The Officer, who made the endorsement, had not been examined by either side and evidence has been led by the election Petitioner to the effect that those papers did not contain the seal of the Presiding Officer. 13. The claim of the election Petitioner had been that there has been false voting without explaining further what she meant by false voting. However, it is evident that false voting she meant was use of 100 ballot papers without having seal. No argument had been advanced in detail on this aspect. The Election Tribunal thus held as under: Moreover, the Petitioner in her election petition and in her evidence has not stated that her agents who were present in Booth Nos. 5 and 8 at the time of election have raised any objection before the Presiding Officer that false ballot papers without the seal and signature of the Presiding Officer have been used in the above two booths by which the result of the election was materially affected. After closure of evidence, the Petitioner filed the present petition for an order of segregation inspection of used ballot papers in booth Nos. 5 and 8 on the ground of that 100 false ballot papers were used in those two booths which was with the knowledge of the Election Officer. 14. The case is governed by the Statutory provisions contained in Panchayat Samiti Election Rules, 1991. Rule 15 reads as under: Ballot Paper (1).... 5 and 8 on the ground of that 100 false ballot papers were used in those two booths which was with the knowledge of the Election Officer. 14. The case is governed by the Statutory provisions contained in Panchayat Samiti Election Rules, 1991. Rule 15 reads as under: Ballot Paper (1).... (2).... (3) The ballot papers which bear the seal and signature of the Presiding Officer of the polling station shall be issued to the voters. Rule 30 - Procedure for counting of votes (1) xxxx (2) Each vote caste by the voters shall be scrutinized by the Presiding Officer in the course of counting and a vote shall be invalid for counting on one or more of the following grounds, namely: (i) If it bears any mark or writing by which the voter can be identified; (ii) If it does not bear the mark specified under Rule 18; (iii) If votes are recorded in favour of more than one candidate; (iv) If the mark indicating the vote is placed in such a manner so as to make it doubtful as to the candidates in whose favour the same has cast; (v) If the ballot paper is spurious; (vi) If the ballot paper is so damaged or mutilated that its genuineness cannot be established; (vii) If the ballot paper does not bear the authentication mark of the Presiding Officer as specified by Sub-rule (3) of Rule 15. (Emphasis added) 15. Thus, the question does arise as to whether in view of the aforesaid Rules such 100 votes could be declared to be invalid for want of seal of the Presiding Officer. 16. Mr. Rath, learned Counsel appearing for the Election Petitioner has placed heavy reliance upon the judgment of the Supreme Court in N.E. Horo Vs. Leander Tiru and Others, where in it has been held as follows: Here again we cannot help the Appellant. It may be noted that the High Court while allowing inspection, has not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the Appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the Appellant; it must also fall to be excluded. The inspection was permitted in respect of all ballot papers to the credit of the Appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the Appellant; it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading is no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers'. (Emphasis added) 17. The ratio of the judgment of the Hon'ble Supreme Court in N.E. Horo (supra) that invalid votes, if any, should be excluded from counting. Thus the question does arise as to whether the ballot papers which inadvertently had not been subjected to seal though signed by the Presiding Officer can be held to be invalid ballot papers. 18. A Constitutional Bench of the Hon'ble Supreme Court In Jabar Singh Vs. Genda Lal, ; held that valid vote means which cannot be rejected as per the rules prescribed for counting and it would be deem to be a valid ballot papers and thus to be counted. 19. The Supreme Court in S. Baldev Singh Vs. Teja Singh Swatantar (Dead) and Others held that ballot paper should not be rejected merely on the ground of a formal defect as the accidental omission of the signature of the Presiding Officer. The Apex Court observed as under: The main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the Sherpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper. The Court construed Rule 56 of the Rules in the light of Rule 38 and took the view that the ballot paper shall not be rejected merely on the ground of such a formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence or lapse of the Presiding Officer or the Polling Officer. This approach is sound in law and a recount was rightly undertaken. (Emphasis added) 20. This approach is sound in law and a recount was rightly undertaken. (Emphasis added) 20. The aforesaid judgment of the Supreme Court was based on the interpretation of Rules 38 and 56 of the Conduct of Election Rules, 1961. Therefore, to examine the issue in correct perspective it may be necessary to examine what are the provisions in the aforesaid Rules at the relevant time. Sub-rule (1) of Rule 38 read as under: (1) Every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commissioner may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the presiding officer. (Emphasis added). 21. Rule 56 provided the procedure for counting of votes. Sub-rule (2)(h) thereof provides for rejection of ballot paper on the ground that it did not bear the distinguishing mark as required under Rule 38(1). The relevant Rule reads as under: (2) The returning officer shall reject a ballot paper -xxx xxx xxx (h) if it does not bear both the mark and the signature which it should have borne under the provisions of Sub-rule (1) of Rule 38. Provided that where the returning officer is satisfied that any such defect as mentioned in Clause (g) or Clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect: In fact the word "both" has been inserted vide amendment w.e.f. 7.9.1979. 22. In Bashir Ahmad Magrey Vs. Ghulam Quadir Mir and Others the question arose as to whether the ballot papers duly marked but not bearing full signature of the Presiding Officer could be rejected as invalid votes. The Apex Court referred to the proviso to Rule 56 and answered in negative. 23. In Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others while deciding the similar issue i.e. the ballot papers had been duly stamped but the Presiding Officer failed to put his signatures on the ballot papers in question and the Apex Court while making reference to the proviso to Rule 56 held that such votes could not be held to be invalid votes. 24. Mohd. Furkan Ansari and Others while deciding the similar issue i.e. the ballot papers had been duly stamped but the Presiding Officer failed to put his signatures on the ballot papers in question and the Apex Court while making reference to the proviso to Rule 56 held that such votes could not be held to be invalid votes. 24. So far as the Rules applicable in the instant case are concerned, the provision analogous to the proviso to Rule 56(2)(h) is not there. Therefore, it is difficult to apply the ratio of the judgment of the Hon'ble Supreme Court in S. Baldev Singh (supra). A Full Bench of this Court in Binod Nayak Vs. Dasarathi Padhi and Others, considered as to whether the provisions of Rule 43 of the Orissa Panchayat Samiti Election Rules, 1991 which is verbatium to Rule 30, applicable herein are mandatory or directory, After placing reliance on a large number of judgments including Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, ; S. Sivaswami Vs. V. Malaikannan and Others, and Sharif-ud-din Vs. Abdul Gani Lone this Court came to the conclusion that the provisions are mandatory and a ballot paper may be accepted as valid if it is not invalid under any express provision of law. Thus, in view of the above, the ballot papers which did not contain the stamp have to be excluded from counting being invalid votes. The judicial discipline and decorum demand that this Bench must follow the larger Bench judgment and It is not permissible to take any view contrary to the same. Therefore, the 100 votes, if had not been stamped have to be held invalid. 25. Section 44-L of the Orissa Panchayat Samiti Act, 1959 provides that the election shall not be declared void merely on the ground that there has been some error, irregularity or informality on the part of the officer or the officers charged with the carrying out the provisions of the Act or of any Rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election. In a case where the margin of votes between the successful candidate and the election Petitioner is less than the number of votes alleged to have been illegally received this provision would have no application. 26. In a case where the margin of votes between the successful candidate and the election Petitioner is less than the number of votes alleged to have been illegally received this provision would have no application. 26. Even otherwise it is provided that the ballot papers shall be stamped on the back and shall be signed in full on its back by the Presiding Officer. The legislature in its wisdom used the word "and". The word "and" is generally conjunctive in only exceptional circumstances, the word "and" may be capable of being read as 'or', if the context so demands. In normal course the term "and" has a cumulative sense, requiring the fulfilment of all the conditions that joins together. (vide S. Krishnan and Others Vs. The State of Madras, ; Vidyacharan Shukla Vs. Khubchand Baghel and Others, ; Ishwar Singh Bindra and Others Vs. State of U.P., ; State of Tamil Nadu Vs. R. Krishnamurthy, ; and Fakir Mohd. (dead) by LRs v. Sita Ram AIR 2002 SC 433 ). 27. The learned Single Judge ought to have directed segregation and inspection of only 100 votes which allegedly did not bear the stamp and could not have directed recounting of all the votes of Booth Nos. 5 and 8. The learned Single Judge ought not to have directed recounting of all votes which was not even asked by the election Petitioner. Such a course permitted the Election Petitioner to have fishing inquiry to support the contention in his election petition, which is not permissible in law. (vide Rajankumar Shankarrao Taware and Another Vs. Ajit Anantrao Pawar, ). 28. It is settled legal proposition that the Court cannot grant the relief, to the litigant, which he has not asked for (vide Trojan and Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, ; Life Insurance Corporation of India and Others Vs. Jyotish Chandra Biswas, ; Rhone-Poulenc (India) Ltd. Vs. State of U.P. and Others, ; and National Board of Examinations Vs. G. Anand Ramamurthy and Others, ). 29. In view of the above, the appeal is partly allowed and the the Election Tribunal shall segregate the votes of Booth No. 5 which did not contain the stamp in their back, if found therein, and after excluding them from counting, shall proceed in accordance with law. G. Anand Ramamurthy and Others, ). 29. In view of the above, the appeal is partly allowed and the the Election Tribunal shall segregate the votes of Booth No. 5 which did not contain the stamp in their back, if found therein, and after excluding them from counting, shall proceed in accordance with law. However, it is clarified that if the Tribunal has taken any proceedings during pendency of this appeal, it shall be re-examined in the light of the observations made herein. No costs. B.N. Mahapatra, J. 30. I agree.