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Madhya Pradesh High Court · body

2012 DIGILAW 9 (MP)

Rajesh Kumar S/o Atmaram v. Premchand s/o Babulal

2012-01-03

S.C.SHARMA

body2012
JUDGMENT : Thepresent revision has been filed under section 26(2) of the M. P. MunicipalitiesAct, 1961 read with M. P. Municipalities (Election of Vice President) Rules,1998. 2.The applicant, in the present case, was a candidate for the post of Vice President, Nagar Panchayat , Soyatkala , Distt . Shajapur and the respondent No. 1 was also acandidate in respect of the aforesaid election. The election took place on 16-1-2010 and out of total 16 votes,the applicant received 7 votes and the respondent No. 1 also received 7 votes.The Presiding Officer by drawing a lot declared the petitioner as elected inrespect of the post of Vice President, Nagar Panchayat , Soyatkala , on 16-1-2010 itself. The respondent No.1 being aggrieved by the declaration of result declaring the applicant as VicePresident of the Nagar Panchayat , preferred anelection petition under section 20 of the M. P. Municipalities Act, 1961 andvarious grounds were raised before the Distt . Judge, Susner . The aforesaidelection petition was registered as Case No. 2/10 and after framing the issuesand after appreciating the evidence adduced, the Presiding Officer has allowedthe election petition on 18-9-2010 .The election petition filed by the respondent No. 1 was allowed and it was heldthat one vote was wrongly declared as invalid and the meeting in which draw oflot took place was also an invalid meeting. The applicant being aggrieved bythe order passed in election petition dt . 15-2-2010 came up beforethis Court by filing a Civil Revision and the same was allowed by an order dt . 23-9-2010 passed in C.R. No. 223/2010 Rajesh Kumar vs. Premchand and another. It has also been stated that therevision was allowed and the matter was remanded back to the trial Court topass a fresh order ignoring the statement of Mrs. Usha Singh, the then Tehsildar who was the ElectionOfficer and the trial Court was also directed to pass an appropriate orderregarding necessity of opening of sealed cover to examine the validity of twoinvalid votes. The matter after remand was again considered by the trial Courtand by an order dt . 7-1-2011 , the trial Court has directedopening of the sealed cover containing ballot papers and thereafter a finalorder has been passed on 17-1-2011 allowing the election petition. The election of the present applicant has beendeclared as void and the respondent No. 1 has been declared as elected VicePresident of Nagar Panchayat , Soyatkala . 7-1-2011 , the trial Court has directedopening of the sealed cover containing ballot papers and thereafter a finalorder has been passed on 17-1-2011 allowing the election petition. The election of the present applicant has beendeclared as void and the respondent No. 1 has been declared as elected VicePresident of Nagar Panchayat , Soyatkala . Learned counsel appearing for theapplicant has vehemently argued before this Court that in the earlier round oflitigation after appreciating the entire evidence on record, the learned SingleJudge has categorically directed the trial Court to pass fresh order afterignoring the statement of Mrs. Usha Singh, Tehsildar , who was Election Officer and who was examined on 29-4-2010 . Contention ofthe learned senior counsel is that while passing the impugned order dt . 17-1-2011 , the trial Court has once again relied upon theearlier statement of Mrs. Usha Singh in spite of the fact that the deposition of Mrs. Usha Singh was set aside by this Court in the earlier roundof litigation. Learned sr. counsel has further contended that the order passedby the Election Tribunal is bad in law and deserves to be set aside. LearnedSr. counsel has also argued before this Court that the trial Court hascommitted an error by passing an order dt . 7-1-2011 by directingreopening of the envelope containing ballot papers and the same is contrary tothe law laid down by the Apex Court in the case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao , AIR 2010 SC 24 . He has vehemently argued beforethis Court that without appreciating the evidence on record in a mechanicalmanner an order was passed on 7-1-2011 directing opening of the sealed cover which was containing the ballot papersand in a mechanical manner recounting of votes has also been ordered that tooby relying upon the statement of Mrs. Usha Singh.Learned senior counsel has prayed for quashing of the order dt . 7-1-2011 as well as order dt . 17-1-2011 passed by the ElectionTribunal. Learned Sr. counsel has also vehemently argued before this Court thatthe Election Tribunal has erred in law in directing recounting of votes and hasalso erred in law in declaring the invalid vote as valid vote in spite of thefact that it was containing an additional mark other than the cross mark. 17-1-2011 passed by the ElectionTribunal. Learned Sr. counsel has also vehemently argued before this Court thatthe Election Tribunal has erred in law in directing recounting of votes and hasalso erred in law in declaring the invalid vote as valid vote in spite of thefact that it was containing an additional mark other than the cross mark. Hehas referred to Rule 10 and 11 of the M. P. Municipalities (Election of VicePresident) Rules, 1998 and his contention is that in case the ballot paperscontains any other mark other than the X mark on the ballot paper, the same hasto be declared as invalid because it discloses the identity of the voter.Learned senior counsel has placed reliance upon the judgment delivered by thisCourt in the case of Ravi Thakur vs. Shivshankar Patel and others, reported in 1997(2)MPLJ 649 = AIR 1997 MP 136 and he has prayed for quashing of order dt . 7-1-2011 passed by the Election Tribunal. 3.Mr. Vivek Sharan , learnedcounsel for the respondent No. 1 has vehemently argued before this Court that theElection Tribunal after the matter was remanded back by this Court has rightlydirected opening of the sealed cover in order to ascertain whether the twovotes were rightly declared as invalid or not? He has also argued before thisCourt that the order dt .7-1-2010 was never challenged by the applicant at any point of time and afteropening the sealed cover the election Tribunal has rightly arrived at aconclusion that one of the votes which was carrying a X mark was in fact casted in favour of respondentNo. 1 and the additional line along with the X mark will certainly not renderthe vote as invalid vote because the intention of the voter has to be seen andas per the intention of the voter, the voter in question has certainly voted in favour of non - applicant No. 1. He has drawnattention of this Court towards the findings arrived at by the ElectionTribunal and his contention is that the Election Tribunal, after examining thevote in question has rightly arrived at a conclusion that one of the two voteswhich was declared invalid was in fact casted in favour of non - applicant No. 1. 4.Learned counsel for the respondent No. 1 has placed reliance upon a judgmentdelivered by the Apex Court in the case of 5. 4.Learned counsel for the respondent No. 1 has placed reliance upon a judgmentdelivered by the Apex Court in the case of 5. Sivaswami vs. V. Malaikannan and others, reported in AIR 1983 SC 1293 andhis contention is that a ballot paper cannot be rejected only because someadditional mark indicative of identity of candidate for whom the vote has beencast is in existence on the ballot paper. Learned counsel for the respondentNo. 1 has vehemently argued before this Court that the election Tribunal whilepassing the impugned order though has referred to the statement of Mrs. Usha Singh, has not relied uponthe statement of Mrs. Usha Singh while passing thefinal order. The contention of the learned counsel is that the ElectionTribunal after examining the ballot paper in question and after taking intoaccount, the statement of other witnesses has given a categoric finding that one of the votes was wrongly declared as invalid and it was infact a vote casted in favour of non applicant No. 1. He has prayed for dismissal of the present revision. 5.Heard learned counsel for the parties at length and perused the record. 6.In the present case, it is an admitted fact that an election for the post ofVice President, Nagar Panchayat , Soyatkala , took place on 16-1-2010 . The total number ofvoters were 16 and the applicant as well as the non applicant No. 1received 7 votes each. Two votes were declared as invalid votes and thereafterby drawing a lot the applicant was declared as Vice President, Nagar Panchayat , Soyatkala , on 16-1-2010 .An election Petition was preferred by the non-applicant No. 1 and the same wasallowed and the meeting which took place on 16-1-2010 in which a draw took place, was declared asinvalid by the Tribunal. The present applicant beingaggrieved by order dt . 18-9-2010 came up before this Court by filing acivil revision and the same was registered as CR NO. 223/2010 and this Courthas remanded the matter back vide order dt .23-11-2010. This Court while remanding the matter, in para 7 to 17, has held as under : 7.From plain reading of Rule 11 of the Rules it is evident that a ballet papercan be declared as invalid by which the voter can be identified and on theballet paper there is "X" mark against more than one name. This Court while remanding the matter, in para 7 to 17, has held as under : 7.From plain reading of Rule 11 of the Rules it is evident that a ballet papercan be declared as invalid by which the voter can be identified and on theballet paper there is "X" mark against more than one name. 8.Election petition is being filed under section 20 of Municipalities Act,according to which petition can be filed on one or more of the grounds specifiedin section 22 of the Act. Section 22(d )( iii) ofMunicipalities Act empowers the Court to declare the election to be void ifbecause of non-compliance with the provisions of this Act or of any rules ororders made thereunder . In the light of aforesaid provisionsof law the facts of the case has to be examined. 9.In the election petition which was filed on 15-2-2010 it is nowhere stated that any provision of lawor the rules was violated. On the contrary in Para-1 of the petition it isalleged that the meeting was convene for election of which intimation was givento all the councillors . Vide order dated 18-8-2010additional ground was added which was to the effect that the notice issued tothe councillors were not served in time and also werenot issued in time. This ground was not taken by the respondent within 30 daysfrom the date of election of the petitioner. In view of law laid down by this Court in the matter of Ganpat lal Sharma (supra) objection can be considered even thoughthe amendment was allowed. Apart from this in the present case notices wereissued on 8-1-2010 , whileelection took place on 16-1-2010 ,therefore, on the face of it there was seven days clear notice which isnecessary for calling of ordinary meeting. It was not the case of respondentNo. 1 that any of the councillor was unserved with the notice. Moreover there isnothing on record on the basis of which it can be said that the notice was notpasted on the notice board. As per section 56(3) of the Act notices arerequired to be dispatched to the councillors andexhibited before any ordinary meeting. Since it was not the case of respondentNo. 1 that the notice was not exhibited, therefore, findings of the learnedtrial Court that pasting of the notice on the notice board is doubtful, iswithout any basis. As per section 56(3) of the Act notices arerequired to be dispatched to the councillors andexhibited before any ordinary meeting. Since it was not the case of respondentNo. 1 that the notice was not exhibited, therefore, findings of the learnedtrial Court that pasting of the notice on the notice board is doubtful, iswithout any basis. 10.Apart from this it has to be presumed that notice must have been accepted asper section 56(3) of the Act unless it is rebutted, for which no case was madeout by the respondent. So far as finding of the learned Court below that thenotice was not served before seven days to the councilors is concerned, as persection 56(3) of the Act requirement of law is that the notices are required tobe dispatched before seven days. Moreover, in the present case since all thevoters were present and also casted their votes,therefore, there was no justification on the part of learned Court below inholding that the meeting itself was invalid as the voters were not served intime. 11.In view of this, the findings recorded by the learned trial Court for declaringthe election invalid on the ground that the notice was not exhibited and wasnot served in time to the councillors cannot beallowed to sustain because the ground was not raised by the respondent No. 1 intime and also the ground was not taken in the amendment petition that thenotices were not exhibited and also on the ground that all any of the voterswas not served as the persons were required to cast their votes were present. 12.So far as other ground is concerned, whereby the learned Court below allowedthe recounting of votes is concerned, Hon'ble ApexCourt in the matter of Kattinokkula Murali Krishna (supra) in para-12 has observed as under :- TheCourt would be justified in ordering a recount of the ballot papers only where : (1) the election-petition contains an adequate statementof all the material facts on which the allegations of irregularity orillegality in counting are founded; (2)on the basis of evidence adduced such allegations are prima facie established,affording a good ground for believing that there has been a mistake incounting; and (3) the Court trying the petition is prima facie satisfiedthat the making of such an order is imperatively necessary to decide thedispute and to do complete and effectual justice between the parties. 13.From the aforesaid position of law it is clear that the Court is not powerlessin ordering of recounting of ballet papers. However the justification for anorder of recounting of votes should be by placing material by an electionpetitioner on the threshold before an order for re­count of votes is actuallymade. The reason is that the preservation of the secrecy of the ballot is asacrosanct principle which cannot be lightly or hastily broken unless there isprima facie genuine need for it. The right of a defeated candidate to assailthe validity of an election result and seek recounting of votes has to besubject to the basic principle that the secrecy of the ballot is sacrosanct ina democracy and hence unless the affected candidate is able to allege andsubstantiate in acceptable measure by means of evidence that a prima facie caseof a high degree of probability existed for the recount of votes being ordered bythe Election Tribunal in the interests of justice, a Tribunal or Court shouldnot order the recount of votes. 14.In view of the aforesaid position of law, this Court has to examine the factsstated in the petition. In para-5 of Election Petition the facts stated by therespondent No. 1 are as under : - xxxxxxxxxxxxxxxxxxxx 15.Vide order dated 7-4-2010 upon the application filed by respondent No. 1 record was called along with theballet papers. On 29-4-2010 Smt . Usha Singh, Tehsildar who was Election Officer was examined. Duringcourse of examination-in-chief counsel for the respondent prayed that he bepermitted to open the envelop in which ballets were kept to prove that theballet paper is not on the form-B as per Rule (iii) of Rule 10 of the Rules,therefore, entire procedure is illegal. This prayer was opposed by the counselfor the petitioner. The prayer was rejected and witness was directed to open the envelop wherein ballet papers were kept. 16.From the aforesaid fact it is evident that the prayer was made for opening the envelop wherein the ballet papers were kept, to verifywhether the ballet papers were on Form-B as Per Rule 10(iii) or not. This wasnot the case of respondent No. 1 in the petition. The case of the respondentwas that two ballet papers have wrongly been rejected. 16.From the aforesaid fact it is evident that the prayer was made for opening the envelop wherein the ballet papers were kept, to verifywhether the ballet papers were on Form-B as Per Rule 10(iii) or not. This wasnot the case of respondent No. 1 in the petition. The case of the respondentwas that two ballet papers have wrongly been rejected. Since it was not thecase of respondent No. 1 in the election petition that the ballet paper is noton Form-B as prescribed in sub-rule (iii) of Rule 10 of the Rules and also itwas not materially affecting the election, therefore, there was nojustification on the part of learned trial Court to allow the witness to openthe sealed cover in which ballet papers were kept. However, the electionpetition filed by respondent No. 1 has not been allowed on that count. In thefacts and circumstances of the case, petition filed by the petitioner isallowed and the impugned order whereby election of respondent No. 1 is declaredas void, is set aside and also the order which was passed on 29-4-2010 in theorder-sheet and also in the deposition of Smt . Usha Singh is set aside and the case is remanded to thelearned trial Court to redecide the petition on theground stated in para-5 of Election Petition, which has been quotedhereinabove. Learned trial Court is directed to pass the order regardingnecessity of opening of sealed cover to examine the validity of two invalidvotes. Parties are directed to remain present before the learned Court below on 3-12-2010 . Learned trialCourt is directed to redecide the petition within aperiod of three weeks. 17.With the aforesaid observations, petition stands disposed of. No order 'as tocosts. 7.The aforesaid order makes it very clear that the deposition of Mrs. Usha Singh was set aside and the case was remanded to thetrial Court to redecide the same keeping in view theground raised in para 5 of the election petition. Thetrial Court was also granted a liberty to pass an appropriate order regardingnecessity of opening of sealed cover to examine the validity of two invalidvotes. The trial Court after the remand has passed an order on 7-1-2011 directing opening of thesealed cover. Thetrial Court was also granted a liberty to pass an appropriate order regardingnecessity of opening of sealed cover to examine the validity of two invalidvotes. The trial Court after the remand has passed an order on 7-1-2011 directing opening of thesealed cover. The order passed by the trial Court, in para 32, reads as under : xxxxxxxxxxxxxxxxxxxxxx 8.The aforesaid para makes it very clear that apartfrom a mark of X, there was an additional mark (a line) on the ballot paper andthe same was declared as invalid. Rule 10 and 11 of the M. P. Municipalities(Election of Vice President) Rules, 1998 reads as under : 10.Ballot Box and manner of recording votes. - (1) When election is to be held byballot the presiding authority shall provide a ballot box which shall be soconstrued that the ballot papers can be inserted therein but cannot bewithdrawn without the box being unlocked. (2)The presiding authority shall, immediately before the commencement of voting,demonstrate to the councillors present that theballot box is empty, and shall then lock it up and place it to receive theballot papers. (3)Every councillor present at the meeting shall besupplied with a ballot paper, initialled by thepresiding authority, on which the names of all candidates contesting theelection shall be typed or legible written in "Form B". (4)Each councillor shall in the order prescribed by thepresiding authority proceed to the place set apart for the purpose and theremake a mark "X" on the ballot paper against the name of the candidatefrom whom he wishes to vote. No councillor shall votefor more than one candidate. The ballot paper shall then be folded so as toconceal his vote and insert the folded ballot paper in the ballot box. 11.Procedure upon opening each ballot box and counting of votes. -The presidingauthority shall open the ballot box and proceed to scrutinise the ballot papers. If on any ballot paper there is "X" mark againstmore than one name or there is any mark or sign on a ballot paper by which thevoter can be identified, such ballot papers shall be considered invalid andshall not be counted. The decision of the presiding authority shall be final inthis respect. The valid votes shall then be counted by the presiding authorityand the ballot paper arranged in respect of each candidate. The decision of the presiding authority shall be final inthis respect. The valid votes shall then be counted by the presiding authorityand the ballot paper arranged in respect of each candidate. 9.The aforesaid statutory provision of law makes it very clear that any ballotpaper which contains any mark or sign other than X mark by which the voter canbe identified, shall be invalid and shall not be counted. In the present case,it has not been disputed by the parties that apart from the X mark there was anadditional mark and the same has also been observed in para 32 of the order passed by the trial Court and therefore in the light of thestatutory provision governing the field, once there is some other mark even ifit is a line and a voter can be identified, the same cannot be counted and wasrightly declared as invalid vote. Learned counsel for the respondent No. 1 hasplaced heavy reliance upon a judgment delivered by the Apex Court in the caseof S. Sivaswami vs. V. Malaikannan and others, reported in AIR 1983 SC 1293 and para 7and 8 of the aforesaid judgment reads as under : 7.Rule 39(2 )( b) of the Conduct of Election Rules, 1961requires an elector to make a mark on the ballot paper with the instrumentsupplied for the purpose "on or near the symbol of the candidate for whomhe intends to vote". Rule 56(2) directs the Returning Officer to reject aballot paper "(a)..................or (b) if it bears no mark at all toindicate the vote, or it bears a mark elsewhere than on or near the symbol ofone of the candidates on the face of the ballot paper or, it bears a mark madeotherwise than with the instrument supplied for the purpose, or (c)......... ..... or (d) if the mark indicating the vote thereon isplaced in such a manner as to make it doubtful to which candidate the vote hasbeen given." The essence of the principle incorporated in the rule is thatso long as the ballot paper bears a mark made with the instrument supplied forthe purpose, the ballot paper shall not be rejected as invalid, if it isreasonably possible to gather a definite indication from the marking as to theidentity of the candidate in favour of whom the votehad been given. In this context it is necessary to remember that nearly 90% ofthe electorate in this country consists of illiterate and uneducated rural folktotally unacquainted with the intricacies of the rules and technicalities ofprocedure pertaining to elections. Even if the best of endeavour is made to explain to them such complicated rules and procedures they may notbe capable of grasping and fully understanding all the implications andactually carrying them into effect while exercising their franchise. If theright conferred on the People to choose their representatives to the StateLegislatures and the Parliament through the process of free and fair electionsis to be meaningful the will of the illiterate and unsophisticated voterexpressed through a marking on the ballot paper which though not strictlyinside the column of the particular candidate is clearly indicative of theidentity of the candidate for whom the vote is cast has to be respected andgiven its full effect. It is gratifying to note that the Election Commissionhas manifested due awareness of this stark reality while issuing instructionsto the Returning Officers regarding the principles to be adopted for rejectionof ballot papers in the "Handbook for Returning Officers" publishedby the Commission in 1982. At page 90 of the book, the Returning Officers havebeen instructed to reject a ballot paper only - ( i ) when there is no mark at all onthe front or the mark is made otherwise thin with the instrument supplied forthe purpose; (ii) when the mark is in blank area, that is to say, at theback or entirely in the shaded area; or (iii) when there are marks against two or more candidates;or (iv) when there is any writing or mark by which the votercan be identified; or (v) when the ballot paper is mutilated beyond recognition;or (vi) when the ballot paper is not genuine or it isspurious. TheElection Commission has also issued a "Handbook for candidates" forelection to the House of the People, Legislative Assemblies of States and Union Territories , etc. At page 78 of thebook it is specifically stated that the Returning Officer will not reject anyballot paper simply because the mark is only partially within the column of onecandidate and the rest of the mark is in the blank area. At page 78 of thebook it is specifically stated that the Returning Officer will not reject anyballot paper simply because the mark is only partially within the column of onecandidate and the rest of the mark is in the blank area. It has also clarifiedthat a ballot paper shall not be rejected merely on the ground that the markindicating the vote is indistinct or made more than once, if the intention thatthe vote is for a particular candidate clearly appears from the way the paperis marked. The matter has been further clarified in a pamphlet issued by theElection Commission of India in 1982 entitled "A Pamphlet snowingillustrative cases of valid and invalid postal and ordinary ballotpapers". The illustration at page 17 of the pamphlet depicts a case wherethe mark affixed on the ballot paper is partially in the column of thecandidate No. 1, the rest of it being in the shaded area and it is clearlydirected that in such cases the ballot paper should be treated as containing avalid vote in favour of candidate No. 1. The Chief ElectoralOfficer of Tamil Nadu had issued a similar pamphletcontaining instruction in Tamil to the counting staff purporting to be in termsidentical with those contained in the Handbook and the pamphlet issued by theElection Commission of India. Ex. P3 marked in this case is the pamphlet soissued in Tamil by the Chief Electoral Officer, Tamil Nadu ,Ex. P3 contains illustrative cases of valid and invalid postal and ordinaryballot papers and in publishing it, the obvious intention was to haveillustrations on identical lines as those found in the corresponding pamphletissued by the Election Commission of India. Unfortunately, however, in theillustration of invalid ballot papers appearing at page 40 of the Book (Ex.P3), the major portion of the marking is in the shaded area and a small portionof the mark is in the column of the candidate. Apparently what was intended tobe printed was an illustration showing a ballot paper in which the whole of themarking was in the shaded area only without any portion of it being in thecolumn of the candidate. The illustration as printed in the pamphlet obviouslyconveys the erroneous impression that a ballot paper where the marking ispartly in the column of the candidate and partly in the shaded area is to berejected by the Returning Officer as invalid. The illustration as printed in the pamphlet obviouslyconveys the erroneous impression that a ballot paper where the marking ispartly in the column of the candidate and partly in the shaded area is to berejected by the Returning Officer as invalid. This is directly contrary to theintendment of the relevant rule and also the express wording of theinstructions issued by the Election Commission. 8.In the case before us, the Returning Officer was obviously misled by theaforesaid illustration contained in the pamphlet, Ex. P. 3 and that was thesole reason why he rejected as invalid the ballot papers where the marking wascontained partly in the column of the first respondent and partly on thedemarcating line or shaded area. Had the Returning Officer taken the trouble tostudy the instructions contained in the "Handbook for the candidates"and the "Handbook for the Returning Officers" it should have beenapparent to him that the illustration aforementioned contained in Ex. P3 didnot correctly reflect the position laid down in the rules and instructions. Itfollows that the High Court was perfectly right in holding that the countingand declaration of the results in the instant case were vitiated by seriousillegality and in directing a rescrutiny andrecounting of all the rejected votes. The appeal is, therefore, devoid ofmerits. 10.The aforesaid case was in respect of assembly constituency involving largenumber of voters whereas in the present case only 16 voters are involved. The applicant as well as respondent No. 1 have received 7 votesas per the initial counting and two votes were declared invalid. One of thevotes which was declared as invalid was having an additional mark other thanthe cross mark and the mark can certainly disclose the identity of the voterwho has casted his vote in favour of a particular candidate and therefore in the light of the statutoryprovisions as contained under the M. P. Municipalities (Election of VicePresident) Rules, 1998, the same cannot be taken into account at all as hasbeen done by the Election Tribunal. The judgment relied upon by the learnedcounsel for the respondent is distinguishable in the peculiar facts andcircumstances of the case. 11.Not only this, this Court in the case of Ravi Thakur vs. Shivshankar Patel andothers, reported in 1997(2) MPLJ 649 = AIR 1997 MP 136 , in para 15 to 17 has held as under : 15.Learned counsel for the returned candidate further submits that rejection oftwo votes which contained cross mark is illegal. 11.Not only this, this Court in the case of Ravi Thakur vs. Shivshankar Patel andothers, reported in 1997(2) MPLJ 649 = AIR 1997 MP 136 , in para 15 to 17 has held as under : 15.Learned counsel for the returned candidate further submits that rejection oftwo votes which contained cross mark is illegal. It is submitted that the wholepurpose of any mark in the ballot paper, is to ascertain the will of theelectorate and the will of the electorate being apparent from the mark, theElection Tribunal wrongly rejected his two votes. In support of the aforesaidsubmission reliance has been placed on a judgment of the Andhra Pradesh HighCourt in the case of P. M. Doraswamy Reddy vs. TheElection Authority and Director of Marketing, A. P., AIR 1977 Andh Pra 286. My attention hasbeen drawn to paragraph 7 of the judgment which read as follows: "Applyingthis principle of interpretation of the Rule under consideration, it is obviousthat since marking of a ballot paper by any method of marking other than across mark 'X' is not visited with adverse consequences under the rules, itmust be held that the provisions of R. 17 regarding the putting of the crossmark 'X' on the ballot paper as indicating the desire to vote for a particularcandidate are merely directory and not mandatory. It is equally well settledthat, if a particular provision is directory, substantial compliance with thatprovision will meet the requirements of law and it is from the point of view ofsubstantial compliance that one has to consider this case. So long as the voterexpresses his intention to vote for a particular candidate by putting any markwhether 'X' or any mark other than the mark 'X' there would be substantialcompliance with the provisions of R. 17, because by putting that particularmark, he expresses his desire to vote for that particular candidate and theunderlined words in R. 17, which we have quoted above, go to show that it isthe expression of the desire of the voter as to the candidate for whom hedesires to vote that is material for the purpose of R. 17. Ifthat desire is substantially expressed viz. by putting any mark whether 'X' orany mark other than the mark 'X' it must be held that R. 17 is complied with. Ifthat desire is substantially expressed viz. by putting any mark whether 'X' orany mark other than the mark 'X' it must be held that R. 17 is complied with. With great respect to our learned brother Gangadhara Rao , J. we are unable to agree with his conclusion that theprovisions of R. 17 are mandatory and that non-compliance with the provisionsof that rule regarding the method of marking would render the vote invalid andnot liable to be taken into consideration." Inthe case before the Andhra Pradesh High Court the rule required that the votershall inscribe a mark 'X' on the ballot papers. It further contemplates that incase the ballot paper contains the signature of any, mark by which the votercan be identified, the ballot paper shall be invalid. Mere in the present case,the matter is governed by Rule 86(12) of the Rules, which reads as follows : "86.Notice for election - (1)............(12) The ballot paper shall be signed bythe Presiding Officer of the meeting and one paper handed over to each memberwho shall put a cross (X) against the candidate for whom he wished to vote. Ifa member is unable through illiteracy blindness or other physical infirmity torecord his vote the Presiding Officer of the meeting shall record the vote onballot paper in accordance with the wishes of the member. The ballot papershall not be signed by the member nor be marked in any other way that couldreveal his identity. Ifa member is unable through illiteracy blindness or other physical infirmity torecord his vote the Presiding Officer of the meeting shall record the vote onballot paper in accordance with the wishes of the member. The ballot papershall not be signed by the member nor be marked in any other way that couldreveal his identity. If the paper is so signed or marked or, multilated , the vote shall be void." Rule 86(14 )( 2) contemplates of the contingencies in which the ballotpaper can be declared as invalid which reads as follows : "86(1 )* ******* (14)********* (1)****** (2)A ballot paper shall be invalid - (a) if it bears the signature of the member or containsany word, or any visible representation by which he can be identified; or (b) if marks are placed thereon against more than onecandidates; or (c)if the mark is so placed thereon as make it doubtful for Which one of the twoor more candidates the vote was intended to be given; or (d) if no mark is placed thereon; or (e) if it does not hear the signature of the PresidingOfficer." Areading of Rule 86(12) of the Rules makes it clear that if the ballot paper ismarked in any other way that could reveal the identity of the voter, the sameshall be void. Further Rule 86(14 )( 2) contemplatescontingencies on which the ballot papers can be declared invalid. In the caseof P. M. Doraswamy Reddy, AIR 1977 Andh Pra 286 (supra), theDivision Bench of the Andhra Pradesh High Court was considering a rule by whichany mark by the voter, which leads to identification of the voter was beingconsidered but in the Andhra Pradesh rule the consequence of mark, other thanthe mark provided in the Rule has not been indicated. However, in the presentcase, I find that Rule 86(12) contemplates consequences of the mark other thanwhat has been prescribed, has been provided i.e. vote becoming void. In view ofthe consequence provided in Rule 86(12) of the Rules itself i.e. rendering thevote void in case of the mark other than the prescribed one, I have nohesitation in holding that the putting of the prescribed mark is mandatory andfailure to do the same, renders the vote void. In view ofthe consequence provided in Rule 86(12) of the Rules itself i.e. rendering thevote void in case of the mark other than the prescribed one, I have nohesitation in holding that the putting of the prescribed mark is mandatory andfailure to do the same, renders the vote void. Thus, I do not find anysubstance in this submission of the learned counsel for the petitioner and thecase relied on by the learned counsel for the returned candidate, on the AndhraPradesh decision is clearly distinguishable. 16.Reliance was further placed on the decision of the Apex Court in the case ofEra Sezhiyan vs. T. R. Balu , AIR 1990 SC 838 , to contend that to decide the validity of vote, the intentionof the voter is required to be gathered. It is submitted that the intention ofthe voter is writ large from the fact that he has given a tick mark in front ofthe name of the returned candidate. My attention has been drawn to paragraph 17of the judgment, which reads as follows : 17.It is significant that in this sub-rule also there is nothing to indicate thatthe preference must be indicated in the column reserved for that purpose, theonly requirement being that the figure T should be written opposite the name ofthe candidate. Similarly, sub-rule (2)(b) of Rule 73 only lays down that if thefigure T is set opposite the name of more than one candidate or is so placed asto render it doubtful to which candidate it applied, the ballot paper would beinvalid. Sub-rule (2) of Rule 73 deals with the invalidity of ballot papers andthat sub-rule nowhere states that merely by reason of the preference beingmarked in the wrong column, if the marking is opposite the name of thecandidate concerned, the ballot paper shall be rendered invalid. It is truethat the column in which the preference should have been marked and intendedfor that purpose was the column on the right hand side of the first columnwhere the name of the candidate was to be put, but there is no express provisionto the effect that unless the preference is marked in the correct column, theballot paper would be invalid. In such a situation, the principle enunciated bythis Court in several judgments and reiterated in as Sivaswami vs. Melaikanan , (1984) 1 SCR 104 : AIR 1983 SC 1293 ,that the primary task of the Courts in a case where the question is whether theballot paper is invalid is to ascertain the intention of the voter, must beapplied. In that case, the Court held that the ballot paper shall not be rejectedas invalid if it is reasonably possible to gather a definite indication fromthe marking so as to identify the candidate in favour of whom the vote had been intended to be given. This, of course, is subject tothe rule that before a ballot paper is accepted as valid, the ballot paper mustnot be invalid under any other expressed provision and the intention of thevoter must not be expressed in a manner which is contrary to or totallyinconsistent with the manner prescribed under the said Act or the ElectionRules for expressing the same. In the case of the said three votes in question,the figure T was clearly marked opposite the name of respondent No. 1, beingthe candidate concerned, as required by the express provision of the said Rule37A and the intention of the voter was clearly to cast the first preference in fovour of respondent, No. 1. In these circumstances, theballot papers were rightly accepted by the Returning Officer as valid and theHigh Court was justified in coming to the conclusion to which it hasarrived." (Underlining mine) In these aforesaid case the Apex Court found that the voter although expressed hisdesire to cast vote in favour of the candidate butthe same was not marked in the correct column. The Apex Court took intoconsideration that there is no express provision to the effect that unless thepreference is marked in the correct column, the ballot paper would be invalidand accordingly found that the mark not given in the prescribed column shallnot invalidate the vote. However, from the portion underlined in the judgmentit is apparent that the intention of the voter on the ballot paper is subjectto the condition that the ballot paper must not be invalid under any expressprovision or intention must not be expressed in any manner contrary to thestatute. However, from the portion underlined in the judgmentit is apparent that the intention of the voter on the ballot paper is subjectto the condition that the ballot paper must not be invalid under any expressprovision or intention must not be expressed in any manner contrary to thestatute. 17.In the present case, however, I find that Rule 86(12) of the Rules itselfcontemplates of marking on a ballot paper by mark X and the consequence hasbeen provided for its non-compliance i.e. the vote is to be declared void.Thus, in the present case there being express provision to the effect that thevoter shall indicate his will by a particular mark and its failure renderingthe vote to be void, I am of the considered opinion that the decision relied onby the learned counsel for the returned candidate is clearly distinguishable. 12.This Court has also taken into account the judgment delivered by the Apex Court in the case of S. Sivaswami vs. V. Malaikannan and others, reported in AIR 1983 SC 1293 . In the aforesaid case, it has beencategorically held that marking on ballot paper by a mark other than theprescribed one renders the vote as void and therefore keeping in view Rule 10and 11 and also keeping in view the judgment delivered by this Court in thecase of Ravi Thakur vs. Shivshankar Patel and others, reported in 1997(2) MPLJ 649 = AIR 1997 MP 136 as there was an additional mark as held by the Tribunal in para 32, apart from X mark, the vote could not have beentaken into account by the Tribunal while allowing the election petition andtherefore the order passed by the Election Tribunal is bad in law and deservesto be set aside. The Apex Court in the case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao , AIR 2010 SC24 in para 11 has held as under: 11.Before examining the merits of the issues raised onbehalf of the parties, it would be appropriate to bear in mind the salutaryprinciple laid down in the Election Law that since an order for inspection andre-count of the ballot papers affects the secrecy of ballot, such an ordercannot be made as a matter of course. Undoubtedly, in the entire electionprocess, the secrecy of ballot is sacrosanct and inviolable except where strongprima facie circumstances to suspect the purity, propriety and legality in thecounting of votes are made out. Undoubtedly, in the entire electionprocess, the secrecy of ballot is sacrosanct and inviolable except where strongprima facie circumstances to suspect the purity, propriety and legality in thecounting of votes are made out. The importance of maintenance of secrecy ofballots and the circumstances under which that secrecy can be breached, hasbeen considered by this Court in several cases. It would be trite to state thatbefore an Election Tribunal can permit scrutiny of ballot papers and orderrecount, two basic requirements viz., ( i ) theelection petition seeking re-count of the ballot papers must contain anadequate statement of all the material facts on which the allegations ofirregularity or illegality in counting are founded, and (ii) on the basis ofevidence adduced in support of the allegations, the Tribunal must be, primafacie, satisfied that in order to decide the dispute and to do complete and effectualjustice between the parties, making of such an order is imperatively necessary,are satisfied. Broadly stated, material facts are primary or basic facts whichhave to be pleaded by the election petitioner to prove his cause of action andby the defendant to prove his defence . But, as towhat could be said to be material facts would depend upon the facts of eachcase and no rule of universal application can be laid down. 13.Keeping in view the judgment delivered by the Apex Court as the electionpetition was not containing adequate statement of all the material facts on thebasis of which the allegation of irregularity or illegality in counting werefounded, has erred in law and facts in allowing the election petition and theorder passed by the Election Tribunal deserves to be set aside. 14.Resultantly, keeping in view the totality of the circumstances of the case,specially in view of the fact that one of the invalid votes which has now beentreated as a valid vote, was having a mark or sign other than X mark by whichthe voter can be identified, could not have been treated as a valid vote andtherefore the order passed by the Election Tribunal dt . 7-1-2011 and 17-1-2011 are accordingly set aside.The revision petition is allowed and as the applicant, by virtue of the interimorder, is still functioning as Vice President of the Nagar Panchayat , Soyatkala , hewill be entitled to continue as Vice President on account of the electionresult which was declared on 16-1-2010. No order as to costs. Revisionallowed.