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2011 DIGILAW 351 (ORI)

Braja Kishore Mallick v. Kadambini Nayak

2011-07-08

R.N.BISWAL

body2011
JUDGMENT R.N. BISWAL, J. — The petitioner and six others including opp. party filed nominations to contest the election for the office of Sarpanch of Mousuda Gram Panchayat under Chandabali block in the district of Bhadrak scheduled to be held on 19.2.2007. After scrutiny, their nominations were found to be valid, as such, they all jumped to the election fray. The petitioner was allotted the symbol ‘umbrella’ and the opp. party ‘open book’. After the election was over, on counting the ballot papers petitioner was found to have polled 1349 votes and the opp. party 1348 votes and accordingly on 22.2.2007 the petitioner was declared to be elected as sarpanch of Mousuda Gram Panchayat. 2.Being dissatisfied with the result of the election, opp.party filed Election Misc. Case No.85 of 2007 before the Court of learned Civil Judge (J.D.), Bhadrak, which was subsequently transferred to the Court of Civil Judge (JD), Chandabali. As per the case of O.P. (election petitioner), there were 16 booths corresponding to 16 wards in Mousuda G.P. Some invalid votes were counter in favour of the petitioner and some valid votes cast in favour of the opp. party (election petitioner) were not counted in her favour. It is her further case that some voters of the same G.P. cast their votes twice and some voters of nearby G.P.s cast their votes in Mousada G.P. besides casting their votes in their respective parent G.Ps. So, the opp. party requested the B.D.O.-cum-Election Officer, Chandabali for inspection and recounting of the ballot papers, but he did not pay any heed to it. According to opp. party proper scrutiny of all the rejected ballot papers and the ballot papers counted in favour of the petitioner would show that she secured highest number of votes. Accordingly, she filed the Election Misc. Case with prayer to recount the ballot papers counted in favour of the petitioner and all the rejected ballot papers and to declare the election of the petitioner as illegal, and void and further to declare her as the Sarpanch of Mousuda G.P. The petitioner in his objection inter-alia denied the allegation of double voting and counting of invalid votes in his favour. He also refuted the pleading that some valid votes cast in favour of opp. party were not counted in her favour. He also refuted the pleading that some valid votes cast in favour of opp. party were not counted in her favour. To establish her case, O.P. (election petitioner) examined eight witnesses as against nine witnesses examined by the petitioner. 3.It is pertinent to mention here that after closer of evidence O.P. (election petitioner) filed a petition before learned Civil Judge (J.D) praying for recounting of votes, which was allowed. Being aggrieved with the said order, the petitioner filed WP(C) No. 12954 of 2007 before this Court. The same having been dismissed by a single Honourable Judge. The petitioner preferred W.A. No.110 of 2007 which also failed. Again, the petitioner carried the matter to the Supreme Court vide SLP No.1270 of 2007 which was dismissed and the order of recounting was confirmed. Thereafter, learned Civil Judge (JD) recounted the votes and on recounting one vote more was added in favour of the petitioner and accordingly the Election Misc. Case was dismissed vide order dated 30.11.2010. 4.Being aggrieved with the said order, opp. party filed FAO No. 1 of 2011 before the learned District Judge, Balasore. After hearing learned counsel for the parties and on submission made by learned counsel for the appellant, the learned District Judge opened the election box breaking open the seal in presence of learned counsel for both parties and inspected the rejected ballot papers. Only 6 ballot papers were chosen, which according to the appellate Court, were found to have been illegally rejected and the same were marked as Ext.I, II, III, IV and V and VI on behalf of the Court. The appellate Court found voting marks on the symbol ‘open book’ and ‘motor car’ in all these exhibits. In Ext.IV besides voting marks on symbol ‘motor car’ and ‘open book’ voting mark on symbol ‘lantern’ was also found. Admittedly, each ballot paper had ten serial numbers and ten different symbols. Since there were seven contestants, the last three serial numbers were left blank. In Ext.I to VI as stated earlier voting marks were found in symbol ‘open book’ and ‘motor car’ and in Ext. IV an extra voting mark on symbol ‘lantern’ was also found. Admittedly, each ballot paper had ten serial numbers and ten different symbols. Since there were seven contestants, the last three serial numbers were left blank. In Ext.I to VI as stated earlier voting marks were found in symbol ‘open book’ and ‘motor car’ and in Ext. IV an extra voting mark on symbol ‘lantern’ was also found. So, the appellate Court held that since there was no candidate against the symbol ‘motor car’ and ‘lantern’, Ext.1 to VI ought to have been counted in favour of the O.P. (appellant) since it had not been done so, he added the same in her favour. She got 1354 votes (1348 + 6) against 1349 votes secured by the petitioner. Accordingly, the learned District Judge allowed the appeal and set aside the order of learned Civil Judge (JD) Chandbali vide order dated 3.2.2011. Being aggrieved with the said reversing order, the respondent has preferred the present writ petition. 5.Learned counsel for the petitioner submits that in view of the provisions contained under Rule 47(a) of the Orissa Grama Panchayat Election Rules, 1965 (hereinafter referred as 1965 Rules) the appellate Court ought not have held Ext.I to VI as valid votes, since those votes bear voting signs not only on the symbol ‘open book’ but also on the symbol ‘motor car’ and Ext. IV besides bearing voting signs on symbol ‘open book’ and ‘motor car’ bore voting sign on symbol ‘lantern’ by which the voters in respect of those ballot papers can be identified. In support of his submission, he relies on the Full Bench decision of this Court in the case of Binod Nayak vs. Dasarathi Padhi and others AIR 1995 Orissa 175. As against this, learned counsel for the opp. party contends that since Ext.I to VI bear voting signs on symbol ‘open book’ allotted in favour of opp. party, even if they also bear voting signs on symbol ‘motor car’ and in addition to the same, Ext.4 bears voting sign on symbol ‘lantern’ in absence of any writing or evidence to show that there was arrangement between the voters and the candidates to put voting sign in that manner the voters in respect of those votes cannot be identified and as such the trial Court rightly held those votes to be valid votes and counted the same in favour of opposite party. So, the order of the appellate court warrants no interference. In support of his submission, he relies on the decisions in the case of Dr. Anup Singh vrs. Abdul Ghani AIR 1965 SC 815 , Nathulal Sharma Vrs. The Rajastan State Cooperative Tribunal and others, RLW 2008 (3), Rajasthan 2393, S. Sivaswami vrs. V. Malaikanan and others AIR 1983 SC 1293 , Jagannath Dhal vrs. District Judge AIR 1995 Orissa 225. 6.At this stage, it would be profitable to quote Rule 47(a) of 1965 Rules, which reads as follows:- “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 scrutinized 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 voter can be identified; xxxxxxxxx xxxxxxxxx (h)xxxxxxxx In the case of Golak Behari Chhotray vrs. Harihar Jena (1970) 36 CLT 699, a division bench of this Court had occasion to deal with Rule 34(1) of Orissa Panchayat Samiti and Zilla Parishad (Conduct of Election) Rules, 1996 which is in pari materia with Rule 43(I) of Orissa Panchayat Samiti Election Rules, 1996 and Rule 47(a) of 1965 Rules. In that case four ballot papers were rejected by the trial Court on the ground that they did not bear cross mark required to be caused by affixing the seal correctly. The marks in those ballot papers were given in the reverse end of the seal. The Munsif before whom the Election Petition was filed held that there was infringement of Rule 34(1) of Orissa Panchayat Samiti and Zilla Parishad (Conduct of Election), Rules, 1966. Challenging the said order Golak Behari Chhotray filed the aforesaid case before this Court. Referring the case of Dr. The Munsif before whom the Election Petition was filed held that there was infringement of Rule 34(1) of Orissa Panchayat Samiti and Zilla Parishad (Conduct of Election), Rules, 1966. Challenging the said order Golak Behari Chhotray filed the aforesaid case before this Court. Referring the case of Dr. Anup Singh (supra), H.V. Kamath v. Ahmed Ishaque AIR 1993 SC 323 and some other cases of the Supreme Court, the Division bench of this Court held as follows:- “It would thus be seen that in the case of Mark, without further evidence it cannot be said that from it the voter can be identified. The same reasoning would apply to the construction of Rule 34(1). In the present case there is no pleading, evidence or finding that there was some previous arrangement by which the voters were to put a mark with the reverse end of wooden seal on the ballot papers. The learned Munsif therefore illegally exercised his jurisdiction and committed an error of law apparent on the face of the record in holding that there was infringement of Rule 34(1). The judgment of learned Munsif on its own reasoning cannot be supported”. 7.While dealing with the case of Binod Nayak (supra) a division bench of this Court referred it to a larger bench holding that the decision in the case of Golak Behari Chhotray (supra) might need reconsideration in view of the decision of the Supreme Court in the case of H.V. Kamath (supra). Accordingly, a full bench of this Court decided the said case. In that case a voter gave the mark of vote not in the separately demarcated column-3 meant for putting the voting mark, but in column No.2 where the name of the candidate finds place. It relates to a case of Orissa Panchayat Samiti (Election Rules) 1991, Rule 43(a) of which envisages that: “A vote shall be liable for rejection on either one or more of the following grounds namely:- (i)if the ballot paper bears the signature of the voter or contains any word, sign or visible representation by which he can be identified; ........... It relates to a case of Orissa Panchayat Samiti (Election Rules) 1991, Rule 43(a) of which envisages that: “A vote shall be liable for rejection on either one or more of the following grounds namely:- (i)if the ballot paper bears the signature of the voter or contains any word, sign or visible representation by which he can be identified; ........... xxxxxxxxxxxx xxxxxxxxxxxx (v)xxxxxxxxxxxx After going through the decision in the case of H.V. Kamath (supra), H. Sivaswami and some other Supreme Court cases, this Court held as follows:- “Sub-clause (i) of Rule 43 cannot and does not give exhaustive and detailed list of the factors by which the voter can be identified leading to the violation of secrecy. Considered in this light, it can be said that putting the voting sign outside the column can have the potentiality of “visible representation by which he can be identified”. Thus, casting of vote in column 2 and not in column 3 is also a good ground of rejection of vote under sub-clause (1). The Full Bench did not endorse the view of the Division Bench decision rendered in the case of Golak Behari (supra), where it was held that in absence of pleading and evidence of prior arrangement by which the voter was to put a mark with the reverse end of the instrument supplied for putting the voting mark to show the candidate that he had voted for him, there was no infringement of Rule 34(i) of Orissa Panchayat Samiti and Zilla Parishad (Conduct of Election) Rules, 1966. In the case of Dr. Anup Singh (supra) relied on by the learned counsel for the opposite party, it was held as follows:- “In so far as any mark, other than writing on a ballot paper in addition to the mark required to signify intention to vote, is concerned, its peculiarity as a mark of identification can only invalidate a ballot paper if there is evidence of arrangement to vote in that peculiar manner to enable identification; but in the case of initials or handwriting on a ballot paper the same is by itself evidence of the identity of the voter, the handwriting providing the evidence of such identity. In the latter case the only question that remains on the facts of a particular case is the sufficiency and adequacy of the writing to support an inference that the handwriting amounts to identification of the voter. It is upon this consideration that in some of the cases referred to a type of writing has been held not to invalidate a ballot paper. But that obviously must be a question for consideration in the facts and circumstances of each particular case.” This decision will be of no help to the opp. party since the Division Bench of this Court in the case of Golak Behari (supra) referred to it. In the case of S. Sivaswami (supra), the apex Court held:- “In the case before us, the Returning Officer was obviously misled by the aforesaid illustration contained in the pamphlet, Ex.P.3 and that was the sole reason why he rejected as invalid the ballot papers where the marking was contained partly in the column of the first respondent and partly on the demarcating line or shaded area. Had the Returning Officer taken the trouble to study the instructions contained in the “Handbook for the candidates” and the “Handbook for the Returning Officers” it would have been apparent to him that the illustration aforementioned contained in Ex.P3 did not correctly reflect the position laid down in the rules and instructions. It follows that the High Court was perfectly right in holding that the counting and declaration of the results in the instant case were vitiated by serious illegality and in directing a re-scrutiny and recounting of all the rejected votes:” The decision is not applicable to the present case as it dealt with altogether a different matter and since it was also referred to in the case of Binod Nayak (supra). In the case of Nathulal Sharma (supra) a single Judge of Rajasthan High Court (Jaipur Bench) relying on the decision of the Supreme Court in the case of Dr. Anup Singh (supra) held as follows:- “The additional seal, in my considered opinion, by itself does not link the ballot to the identity of the elector as it does in the case of writing of words or figures, or thumb impression. Anup Singh (supra) held as follows:- “The additional seal, in my considered opinion, by itself does not link the ballot to the identity of the elector as it does in the case of writing of words or figures, or thumb impression. This additional seal was in the nature of an innocuous and meaningful mark and could not be raised to the level of such a suggestive mark as to reveal identity of the voter. In order to connect elector with the ballot, the mark that is contained on the ballot paper should be such which must gave reasonable communication of the voter’s identity in the sense that looking at the one, the identity of the other is revealed. The mark must be such as to unerringly point in the direction of identity of the voter”. As stated earlier, in view of the full bench decision in the case of Binod Nayak (supra), this decision will also be of no help to the opp. party. In the case of Jagannath Dhal (supra), a voter gave the voting sign partially on symbol of contesting candidate and partially on scored through symbol of a candidate who had withdrawn from contest. This Court while dealing with Rule-47 of 1965 Rules held that the said vote had to be counted in favour of the contesting candidate. This decision was in respect of a different contest. 8.Coming to the present case, there are voting marks on the symbol ‘open book’ and ‘motor car’ in all the ballot papers marked Ext.I to VI. In addition to the same there was also voting mark on the symbol ‘lantern’. So, in view of the full bench decision in the case of Binod Nayak (supra), Ext.I to VI have potentiality whereby the six voters concerned can be identified, as such, the learned District Judge, Balasore should have rejected the same. As it appears the decision in the case of Binod Nayak (supra) was not brought to the notice of the learned District Judge. 9.Under the aforesaid premises, the writ petition is allowed, the decision of the learned District Judge, Balasore is set aside and the decision of the learned Civil Judge (Junior Division) Chandbali is restored. No cost. Petition allowed.