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Judgment
Heard learned counsel for the petitioner; State and State
Election Commission.
In terms of the earlier order, the exercise as directed
has been completed by the authority and a counter affidavit has been
filed on behalf of respondents no. 2 and 3.
The main contention of the petitioner was that the
lottery was resorted to without there being any occasion for the same
as one vote counted in favour of the respondent no. 5 was not proper
as after a cross being marked against his name, it was also encircled.
This persuaded the Court to direct for re-verification with regard to
the ballots on which, after marking a cross, there was any other
mark. This was in the background of the contention that, as per the
statutory requirement, any extra marking is impermissible and the
said ballot has to be rejected. The contention of learned counsel for
the petitioner was that if the said crossed and encircled ballot is
rejected, automatically, the petitioner would be the winner and there
would be no occasion to go for any lottery. The exercise, as directed
by the Court reveals that 20 valid votes had been cast and out of that,
both the petitioner and the respondent no. 5 got 10 each and further
that one of those votes of the petitioner as well as the respondent no.
5 had a cross mark which was encircled/enclosed by a rectangle.
Thus, it is clear that even if the said two votes/ballots are held to be
invalid and are required to be rejected, the same would result in both
the petitioner and the respondent no. 5 getting nine votes each. This
also will result in a tie and as per the statutory provision, lottery has
to be resorted to, which has been done.
In view thereof, there is no occasion for this Court to
interfere in the matter and accordingly, the writ petition stands
disposed off.
It is made clear that the proper remedy after the
declaration of result is to go before the statutory forum and file
election petition. However, in the peculiar facts and circumstances
of the case and the categorical stand on behalf of the petitioner that
one ballot had been encircled after putting a cross, the Court had
gone in for this special exercise. The same shall neither be a
precedent nor shall create any right in any person to move the writ
Court after declaration of results relating to such election. It is further
clarified that it shall be open to the petitioner to challenge the
election of respondent no. 5, in accordance with law, before the
statutory forum.
In view of the fact that the petitioner had moved the
Court within two weeks of the result being declared, if an election
petition is filed by him within two weeks from today, the same shall
be considered and disposed off on merits.