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Judgment
Dharmadhikri, J.—As all these Writ Petitioner involve common question of law and fact, they were heard together and are being disposed of by this common judgement.
Elections to he Municipla corporation, Solapur took place on 25th Apr. 1985 and the petitioner in these Writ Petitioner were duly declared elected as Councillors form WArd Nos. 26, 31, 32, 35 39, and 52. After the declaration of the elctions , Elecionms to these wards. The roiginal peititioner raised a contention in the Election Peotition that by reason of improper reception or refusal of the votes, theresult of the election has been materially affected and, therefore, it is necessary to recount the alleged invalid votrs . One of the contention reised was that various mark in the column reserved for marking the choice were rejected by the Returning Officer, which was contrry to the proviisons of law. The learned Civil Judge, Senior Division, Solapur, bu this order dt. 20th Sept. 1985 accepted this contetnion of the election petitoner and h elkd hat the ballot papaer which bore more than one mark in the cllumn reserved for nay one candidatres should be treated as valid ballot papers. On that basis he directed the Municipal Commissioner to send the sealed balot boxed of these Municipal wards for recounting of the votes. It is this common order which is challenged in these Writ Petitioner.
Shri C. J. Sawant, the learned Coundel appearing for the petitioner in some Writ Petitions contended before is that the order passed by theh Civil Judge, Senior Division on the preliminary isue of vitiated by an eror apaparent on the face of te record, it being contrary to thh mandatory proviiosn of the Act and the Rules. It is contended by him that under s. 5 of the Bombay Provincial Municipal Corporation Act ( hereinafter referred to as The Act'') the State Government is authorised to divid the whole of the locval area into different wards. Then by sub sub-sec (3) of s. 5 it is provided that each of the Wards shall elect only one Council. By s. 14 of the Act it is laid down that election of the Councillors a shall be held be accordacne with the rules. S. 433 mandates that the rules in the Schedule as amended from time to time shall be deemed to be part of this Act. Chapter 1 of the Schedule deals with the Elections Rules. R. 12 lays down the procedure tobe foolwoed regarding the ward elections. R. 18 deals with tthe procedure for recording of the votes. As to how the votes shosuld be recorded is laid down in r. 22 . As per R. 25 it is laid down that the ballot paper sahll in be form B. Then comes R. 36 which enumerrates the grounds for rejections of a ballot paper . The form the ballot paper is Form B attached to the Schedule. The ballot paper is in two parts. It has an outer foil and a counterfoil. On the back of the ballot paper, instructions are printed . According to the lerned Counsel if these various provisions of the Act and the Rules are read with the contents of the Form, which is also an intergral part of the Act, it is qhite clear that if a voter puts more thanm opne mark, aganist the name puts more of one candidates, the said ballot paper is invalid. In vies of these mandatory provisions, the reliance placed by the learned Civil Judge, Senior Division upon the ;learned Civil Judge, Senior Division upon the decision of this Court in Dajiba Gurunath Gavane and Others Vs. Sangappa Sharanappa Patil and Others, is wholly unwarranted. The said decision was based on the provisions of the BOmbay Village Panchayats Act, which are not pari material to the proviosions of the presetnt ACt. It was also contended by Shri Sawant that even otherwise the said decision requires reconsideration as it can safely be termed as per icuriam sicne the Division Bench therein had failed to take noticve of the relevant provisions of the Bombay Village Panchaya Act read with the rules and the form prescribed. Form the bare reading of the jundgement it is quite clear that the relevant form and the istrucions contained b therein were not brought to the notice of the Division Bench. Therefore, taking any view of the matter, the order passed by the Civil Judge, Senior Division , cannot be sustained.
A contention a was also raised by Shri Sawant that in any case thee blanket order passed by the Civil Judge, Senior , Division, permitting recount of all the votes is wholly uncalled for. At best, a recount could be directed qua the invalid votes only .. In the pleadings of the original Elecion petition, the petitioner have not even arered that the counting of valid was in any way illegal. In these circumstances , a recount cannot be ordered qua all the votes, valid and invalid . On this ground also, the order passed by the lower Court is liabnle to be set aside.
Shri Bhimrao Naki , while adopting the arguments advanced by Srhi Sawat, contended that the right to vote not being a common law rgith must stricltly be exercise in accordqance with the ACt and Rules. Any other mode of exercise of choice is prohibited by necessary implication. As to how the choice should be exercised is laid .. ... with the relevant form. The law in this behalf will have to be strictly construed and there isno scope for liberal construction . Making a fishing inquiry for finding out as to what was intended by the voter is wholly impermissible. The intention of the voter is wholly irrelevant in view of the mandatory provisions of the Act and the Rues and, therefore, the learned Judge of the TRial court was wholly wrong in tnerpreting the provisions of the present enactment on the basis of the provisions of the Bombay Village Panchayats ACt where there is a specific provision in that behalf.
On the other hand, it is contended by shri Ajit Shah and Shri Patankar, the learrned Counsel appearing for the respondent that the controversy involved in these Writ Petition is wholly covered by the two decisions of this Court v.z Dajiba Gurunath Gavane and Others Vs. Sangappa Sharanappa Patil and Others, and Laxmibai v. Mainabai 1962 Nag Lj 56 . The Division Benches in the aforesaid cases had considered the pari matria provision of the Bombay Villages Panchayats Act, the relevcant rules and the fom of the ballot paper which the are indetical in every respect. After considering the relevant proviision of the Act and the Rules, the Division Benched of the Court in the aforesaid two cases acame tot he conclusion that only because the ovooter has put in more than one mark against the name of the same candidate in the space provcided, the voting paper is not liable to rejection. It appears that though the legilsatute ameded S. 5 of the Act by providing that each of the wards shall elct only one Councillor and also sought to amend the instrucion ijn het Form accordingly , it lost sight of the fact tahtt instructions Nop.s 32 and 3 on the back of the outer foil of the ballot paper are also reduandant after the amendment. The Legislature after allowed the said instrucions to remain since it though that in view of the decision of this Court in the aforesaid two cses, the law in that behalf has been clearly laid down. Though by way of abundant caution the proviso to R,. 33 of the Bombay viilage Panchayats Act a was insetrted in the said Rules and similar proviso also finds place in R. 56 of the Maharastra Zilla Parishad and Panchayat Samiti ( Registration of votes and Conduct of Election) Rules , the provisos were added by way of abundant caution to clarify the legal position. It is explanatory in nature. What is incorporational in the Form is merely directrory and, therefore, the law laid down by the Division Benches in the aforesaid two decisions squarely covers the controversy raised in the prsetnt Writ Petitioners. It is also contended by him that the interpretation put forward by the Court of law of the pari material provisions is a good guideline for deciding is as to whether the ballot paper is valid or invalid. The relevant provisions of the Act, the Rules and the Form will have to be read together harmonioously and so read, the intenion of the legislature is quite clear. In support of these contentions shri Patankar has placed strong reliacne Court in S. Sivaswami Vs. V. Malaikannan and Others,
For deciding the controversy raised before is us it, it will be worthwhile if a detailed refernce is made ot th erelevant provisions of the Act. By s. 5(3) it is declared that each of the wards shall elect only one councillor. S.14 then lays down that elections fot the councillors shall be held in accordance with the rules . By s 453 it is made clear tahat the rules in the Schedule as amended from the time to time shall be deemed to be aprt fot he Act. Chapter I of the Schedule deals with Election Rules . The relevant portion of R. 12 reads as udner:-
"12. With respect of to the contested ward elections the following provisions shall have effect, namely-
votes shall be given by ballot and in person; no votes shall be received by proxy;
No votes shallbe recived for any candidates whose name has not been published by the Commisssioner under sub-rule (2) of r. 11 as having been validy nominated;
( c) no votes shall be recived from any person whose name is not entrolled in the ward roll as a vote of the ward for which the election is being held;
every elector shall be entitled to giver only one vote, and te he may give that vote only to any of the candidates.................."
Rule 22 which deals with the manner of voting reads as under:-
"The elector shall, on receiving ballot papaer, forthwith proceed to one of the compartments in the polling station and there make a mark, on the ballot paper witht he instruments supplied for the purpsoe either at the place provided for putting a cross or on or nerar the name and sumbol of the candidaate for whom he intends to vote and fold it uipso as to conceal his vote, and shall put his ballot paper, so folded up into the ballt bozx. Every elector shall vote without undue delay and shall qute the poling station as soon as he has put his ballot paper into thre ballot box".
Rule 25 then provides that the ballot paper shal be in Form B. Form B reads as under:-
It appears that by Maharastra ACt 26 of 1967, isntrucion nO . 1 came to be amended and instrucion No 4 was deleted. Therefore, according to the learned Counsel for the petitioner , if these various provision are read together harmoniously a concluson is inevitable that putting more than one cross marks against the name of any one candidate is prohibited by law and, therefore, the said ballot paper must be treated as invalid.
It appears to be an admitted position on both sides that none of the provisions of the Act or Rules cab be readd in s\\isolation, but will have to be read together and harmoniously ,.. By S.8 qualification of a voter has been laid down. Every perwson whose name is in a ward roll shall be deemed to e entitled to vote at the ward elecion, and every person whose name is not in the said roll shall be deemed to be not entitled so to vote. Under the Rules it is laid down tha vgotes shallbe given by balolot and every elector shall be entitled to only one vote and he mayu give that vote of to any one of the candidates. This position is obvious in view of the provisions of S. 5(3) which provieds that each of the wards shall elect only one Councillor. The procedure of voting is laid down inR, 22. I. e. making of a mark on the ballot paper with the instrument supplied forthe prupse and then comes R. 36 which enumerates the grounds of rejections of a ballot paper. The
Maliksingh v. Jagatsingh
FORM B
(See Chapter 1, Rule 25)
FORM OF BALLOT PAPER
Form of Front of Ballot Paper
Counterfoil Outerfoil
Serial No. Front
Ward ....................... Name and Symbol of Cross Candidate Name and numberof polling Station ............ . ..................
Number of Elector on election roll ..................................
Signature or thumb impression of elector ............................
Note : It is considered important that the whle of the outerfoil of te ballot paper should be taken up by the face containing the name and symbols of candidates and spaces for recordings votes.
Back of Outerfoil Instructions Your have one vote. The vote is to be shown by a cross mark (x). Each mark means one vote. Do not put more than one corss against the name of any one candidate. Serial No.
said Rule as under as udner:-
"36 (1) A baoolt paper shall be jejected if-
the number of votes recorded thereon exceeds the number of seats to be filled;
no vote is recorded thereon;
( c) more than one vote has been recorded agaisnt the name of any one candidates ;
it is void for uncertainty;
it bears any mark by which the elector can be indetified.
It is pertient to note that the corresponding provisions of tht Bombay Vilage Pnachayats Act, which fell for consideration of the division Benches in the aforesaid tow cases i.e. Laxmibai Mainbai, 1962 Nag LJ (Note) 56 and Dajiba Gurunath Gavane and Others Vs. Sangappa Sharanappa Patil and Others, were pari meteria to the provisions in the presetnt enactemt. In Dajibai case the Dvision Bench has quoted in extends Rr. 23 and 33. It is no doubt true that the form prescribed by the Rules is not specificsly referrred to in the judgement . But Form B of the, Bombay Village Pancchayat Election Rules, 1959, also contains similar instructions on the b ack on the ballot paper. The relevant instruction read as folow:-
Please read this carefully before carefully recording your vote (s)
You have .......votes (s)
One mark means one vote.
Do not put more than one makr, opposits the name of any candidates.
While considering these Rules , this is what the Division Bench has observed in Dajibai case:-
We may at onvce say that there is no rule abn\\nywhere which states that putting more than one mark on a symbol of a candigate or against the name of he candidate on voting paperp would amount to casting more than one vote agaiosnt the candidate or would render the ballot aper invalid. We m,ay here state that as a matter of cau;tion express provision has been mede in respect of elecions under Representation of the People Act, cautioning the REtrunign Officer that he shall not reject the ballot paper merely on the ground of that the mark indicating vote is indistict or made more than once, if the intentiono f the voter to vote for for a particular candidate clearly appears from the way the ballot paper is marked. Of course the provisin is in respect of another enactment and in that sence it has no direct applicaion to the case provisions indicates a general priniciple . Right to vote and elect a reperesentatbie is a valuable right. The right of casting votes is conferred on persons who may even be ilitereat, lireacy is not a qualification for being a voter. The said right is not to be denied on flimsy and tecnical grounds".
The after making refernce to R. 33, which these proviions it emerges that making more than one mark against any one candidate tantamounts to giving more than one vote to that candidates . If the rule making authorities wanted to say so they could hae saidd oso in clear terms".
Therefore, to say the leats in terms the Division Bench has laid down the law in general terms. The finidg iof the ?Division Bench is based on the general principle and wa snot restricted tot he proviiosn of a was not restircted to the provisions of a particular enactment. A similar view awas taken by abnother Division Bench in Laxmibai v. Mainbai 1963 2 nag LJ 56. It was argued before us that hese decisions should be treated as per incuriam as the form of the ballot paper wsas not referred t. It is didficult to hold that only because the form is not specifically referred to , it was iether not brough to the notice of the Division Benches or that the Digvision Benches were not aware of it. Therefore it will have to be held that hthe law in this respect has been laid down by the two Division Benches and unless there is something in the present enactement to distinguiish the said decisons , these two dfecision will be binding upon us.
It is now well settled that where there are seemingly incosidtent provisons inan Act or between a secion of the Act and the rules framded thereunder, the attempt and effort of the Clurt must be to reconcile the two situations as far as posib;le and to give effect to the inteniton ofo the legilsture by construing harmoniously all thse various provisions. It will not be correct to say that the inteniton fthe voter isnot relevant for deciding the validity or invalidity of a ballot Km. Shradha Devi Vs. Krishna Chandra Pant and Others, the Supreme Court oserved:-
"Free and fair eleciton being the fountain source of Parliamentary democracy attempt of the Returning Officer and the court should not be to chart the easy course of rejecting ballot papers as invalid under the silighttest pretext but serious attempt should be made before rejecting ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sifficient clarity revealing his intendment........"
Then after quoting R. 39(2)(b) of the Conduct of Election Rules, in S. Sivaswami Vs. V. Malaikannan and Others, , the Supreme Court observed:-
"The essence of the principle incorporated in the rule is that so long as ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gater a definite indication from the marking as to the identity ofthe candidate in favour of whom the vote had been given. In this context it is necessary to remember that nearly 90% of the electorate in this country consists of illiterate and uneducated rural fold totally unacquained with the intricacies of the rules and technicalities of procedure pertaining to elections. Even if the best of endeavour is made to explain to them such complicatwed rules and procedures they may not be capable of grasping and fully understanding all the implications and actually carrying them into effect while exercising their franchise. If the right conferred on the people to choose their representatives to the state Legislature and the Parliament throught the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed throught a marking on theballot paper which though not strictly inside the column of the particular candicate is clearly indicative of the identity of the candidate for whom the vote is cast has to respected and given its full effect."
The question which fell for the consideration of the Supreme Court in Km. Shradha Devi Vs. Krishna Chandra Pant and Others, was also considered earlier by the Supreme Court in Anup Singh Vs. Shri Abdul Ghani and Another, . After making a detailed the filed, including the
"But the mere fact of there being two such crosses is not a substantial breach ofthe statute."
Then in para 22 the Supreme Court clarified the position that a cross is a slender basis on which the elector can be reasonably identified. Therefore, as a general rule, putting up of more than one corss marks against the same candidates is not treated as covered by the candidate is not treated as covered by the Rule providing thegrounds for rejection of a ballot paper. Therefore, it will have to be seen as to whether this general principle is excluded either expressly or by necessary implicaiton by the provisions of the present implication by the providions of the present enactment. In our view, it is not possible to hold that this general principle has been given a go-by either expressly or by necessary implication if the relevant provisions of the present enactment are read harmoniously and together. An elector isentitled to give only one vote. By putting up two marks against the same candidate, he does not exercise more than one vote. Exercise of vote by the method of the ballot is the expression of vote by the method of ballot is the expression of the choice of the voter. Here the choice is qua the same candidate and there is no confusion about his choice. In this context reference could usefully be made to the statement of law in Halsbury''s Laws of England quoted with approval in Shradha Devi''s case AIR 1982 SC 1562, and the law laid downin that behalf, which reals as under:-
"As respects ballot papers which have names, initials figures or ither possible marks of identification on them by which it might be suggested that the voter could be identified,. It has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voter for the voter for the purpose ofdindicating for whom be votes; if thevoter has not voted in the proper way (if for example has made two crosses, or some other such marks which might have but the Court comes to theconclusion on looking at the paper that the real thing that the voter has been doing as to try, badly or mistakenly, to gives his vote, and made it clear for whom he voted, then these marks should not be considered to be marks of identification unless there ispositive evidence os some agreement to show that it was so.
In Woodward''s case 1875 32 LT 867 the Court came to the conclusion that the placing of two crosses or three crosses or a single stroke in line of a cross or a straight line or a mark like imperfect letter "P'' in additon to the cross or star instead of a cross or a cross blurred placed on the or marked with a tremulous hadn, or a cross placed on the left side of the ballot paper, or a pencil line drawn through the centre, are not marks which would invalidate the votes on the ground that the mark was such that the voter can be identified. Similarly, Election Tribunal in Sohan Lal v. Abinash Chander (1953) 4 ELR 55 held that the addition of a horizontal line after figure I indicating first preference vote would not invalidate the ballot paper, unless there was evidence that the horizontal line was drawn so as to reveal the identity of the voter. In the absence of any such evidence the ballot paper was held valid. It would, therefore, follow that the mark or writing which would invalidate the ballot paper must be such as to unerrighly point out in the direction of identify of the voter. In the absence of such suggested mark or writing the ballot paper caqnnot be reject merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified. One has to bear in mind the difference betweencan be identified'' and might possibly be identified."
However, strong reliance was placed by the Counsel for the petitioners on the insturctions published at that back of the outer foil of the ballot paper. It is no doubt true that the form is part and parcel of the Rules i. e. Schedule I and there is an amendment to the instructions by Maharashtra Act 26 of 1967. Still it cannot be forgotten that these instructions are meant for the guidance of the voter and they cannot control that these instructions are meant for the guidance of the voter and they cannot condrol or override the substantive provisions of the Act. In view of the provisions of S. 5(3) of the Act, each of the wards has to elect only one Councillor. Therefore, each voter has only one vgote. Thus, casting of more than more vote is an impossibility. If a valuable right is conferred upon a voter to exercise his vote in a particular manner by substantive provisions of the Act and the Rules then by instructions oprinted on the back of the outer foil of the ballot paper something cannot be imported into it to defeat the said right. The instructions which are in the nature of guidelines cannot be treated as mandatory to invalidate a vote and that too contrary to the provisions of R. 36 of the Rules which lays down in specific terms the grounds for rejection of a ballot paper. By putting up more than one cross mark against he name of one and the same candidate, it cannot be said tthat the voter has recordedmore than onevote; more so when he has only onevore. It is no doubt true that after the amendment of S. 5(3) of the Act, when instructions Nos. 1 and 4 came to be amended, insturctions Nos. 2 and 3 could have also the been amended. But the omission on thre part of the legislature in this behalf cannot charge the construction or interpretation of the substantive provisions of the Act and the Rules. In the context it is pertinent to note that by adding a proviso to the relevant rule in the Bombay Villiage Panchayats Act after the aforesaid decisions of this courts the concerned authorities have only endorsed the general principles. In our view, it was rightly contended by the counsel for tehrespondents that such a proviso is merely explanatory and clarifies the position which is in true with the general principles. As observed by the Supreme Court in S. Sivaswami Vs. V. Malaikannan and Others, in spite of such a specific insturction, a possibility cannot be ruled out that an elector may not be capable of greasping and fully understanding its im0licastions, therefore, by taking a techinical view the ballot paper should not be rejected, if it is reasonably possible to gather the intention and choice of the voter. Further, it is well known that the word "any" is also used as covering several i. e. meaning all, or more than one. Therefore, in the context of amended S. 5(3) of the Act, a conclusion of inevitable t5hat insturctions Nos. two and three on the ballot paper will only mean that a voter should not cast more than one vote, meaning thereby that he should not vote for more than one candidates. Thereafter, the view taken by the civil judge, Senior Divisons in this behalf cannot be termed as illegal or perverse so as to call for an interference. However, it is needless to say that if it is established that the second mark was put by agreement to disclose the identity of the voter, then the said circumstances could be taken into consideration while recounting the voters, as in that case the matter stands on a different footing. Depending upon the facts of the cases. It might unerrigly point in the direction of the identity of the voter. Such a csae will be covered by R. 36(1)(e) of the rules and not by general principles.
So far as the second contention of the learned Counsel for the petitioners is concerned, it is concedced by the respondents that on the basis of the pleadings in the election petitions, a wholesale recounts is not called for. The case made out in the petitions is limited to the legality and validity by the votes which are declared invalid by the Returning Officer. The controversy raised is a limiterd one. If the controversy raised is restricted to the invalid votes only, then there is no occasion for directing wholesale recount of the votes. Therefore, to that extent the order passed by the learned Civil Judge, Senior Divison will have to be modified and the recount-will have to be restricted only to the votes which are declared or treated as invalide, by the REturning Officer. Hence , the Rule is made party absolute to this extent. However, in the circumstances of the case, there will be nor order as to costs.
At this stage, a request for leave to file an appeal to the Supreme Court is made by the counsel for the petitioners. Since we have decided the controversy raised in these writ petitions on the basis of the law laid down by the Supreme Court and the two Division Bench decisions of this Court, which are binding upon us, in our view, this is not a fit case for grant of such a leave. Hence leave refused. However, the interim order pased by this court to continue for a period of four weeks.
Order accordingly.