Ravi Thakur vs Shiv Shankar Patel

C.K. Prasad, J.

In all these writ applications, common questions of law and factarise for consideration and as such they are being dispossed of by a common order.

The writ application pertains to the validity of election of President of the Janpad Panchayat, Mandla. One Ravi Thakur (hereinafter referred to as the returned candidate) was declared elected as a president of Janpad Panchcayat, Mandla and his election as such was challenged by one Shiv Kumar Patel (hereinafter referred to as the election petitioner) by filing an election petition u/s 122 of the M.P. Panchayat Raj Act, 1994 before the Collector.

Writ petition No. 3807/94 This writ application has been preferred by the returned candidate challenging the order dated 27.9.1994 passed by the Collector, whereby his prayer for dismissal of the election petition on the ground that the election petitioner did not deposit the security cost at the time of presentation of the election petition, has been negatived and it has been held that as the security cost was deposited within the period of limitation, the election petition does not suffer from any legal defect and consequently the Collector directed for admission of the election petition.

Writ petition No. 9171/95 This writ petition has been filed by the returned candidate for quashing the order dated 28.3.1995 whereby while disposing of the election petition by order dated 28.3.1995, two votes counted in his favour by the Returning Officer, have been declared to be illegal resulting into equality of votes between the returned candidate and the election petitioner. By the said order the Collector has directed the Returning Officer to proceed in the matter in accordance with rule 86 (6) of the M.P. Panchayat Election Rules 1994, which inter alia provides that in case of equality of votes the result shall be decided by lot, to be drawn by the presiding officer.

Writ Petition No. 1188/95 : By this writ application the election petitioner complains that one invalid vote has wrongly been directed to be counted by the Collector, by the aforesaid order dated 28.3.1995, in favour of the returned candidate. Prayer is to declare the said votes invalid and on such a declaration the election petitioner be declared elected as President of the Janpad Panchayat, as he has secured more votes.

Facts, necessary for the decision of the aforesaid writ applications are that the returned candidates as also the election petitioner were elected as members of Janpad Panchcyat, Mandla. They contested the election for the office of the President of Janpad Panchayat, held on 21.6.1994, in which the returned candidate Ravi Thakur was elected as President of the Janpad Panchayat and he defeated the election petitioner by a margin of two votes. It is relevant here to state that one Rajesh Pathak was also a candidate in the election and the returned candidates, election petitioner and the aforesaid Rajesh Pathak secured 10,8 and 6 votes respectively. The election of the returned candidate as the President of the Janpad Panchayat was declared by notification dated 1.7.1994 and the election petitioner filed an election petition on 14.7.1994 challenging the election of the returned candidate as the President of the Panchayat and grievance was made in the election petition that the Presiding Officer did not comply with the statutory provision and invalid votes have been counted as valid in favour of the returned candidate.

It is relevant here to state that election petition was presented without any deposit of the security cost and the security cost of Rs. 250/- was deposited on 26.7.1994. The returned candidate raised objection and prayed for dismissal of the election petition but the prayer was declined and the Collector held that as the security cost was deposited within the period of limitation, the election petition did not suffer from any fatal defect, by order dated 27.9.1994. Returned candidate aggrieved by the aforesaid order has preferred M.P. No. 3820/94.

After trial of the election petition the Collector found that two votes counted in favour of the returned candidate, were wrongly counted in his votes on the ground that the member, instead of putting a cross (x) mark against the name of the returned candidate has given a tick mark (sic). The two votes being declared invalid resulted into the equality of votes and accordingly, the Collector directed the Presiding Officer to proceed in the matter under Rule 86 (16) of the Rules, which inter alias provides for decision of election by lot, to be drown by the Presiding Officer. Returned candidate being aggrieved by the aforesaid order of the Collector has preferred W.P. No. 917/95.

It is relevant here to state that election petitioner submitted before the Collector that one vote which contained tick (V) and cross (x) marks, and counted in favour of the returned candidate, he declared invalid but the said submission of the election petitioner has been rejected by the Collector and he being aggrieved by that portion of the order has preferred W.P. No. 1100/95. It is relevant here to state that in case it is found that one vote has been wrongly counted in favour of the returned candidate, in the situation, the votes secured by the election petitioner shall be more.

Learned counsel for the returned candidate contends that in view of the admitted postion that on the day when the election petition was presented before the Collector, no amount of security cost was deposited the election petition suffers from fatal defect and as such, the name was fit to be dismissed on this ground alone. It is further contended by the learned counsel that the defect of non deposit of the security cost along with the election petition cannot be rectified by depositing it subsequently, not even within the period of limitation.

It is common ground that the election petition is to be decided in accordance with the provisions of M.P. Panchayat (Election Petition Corrupt Practices and Disqualification for Membership) Rules, 1991 (hereinafter referred to as the Election Rules). Learned counsel for the petitioner submits that the manner for presentation of the election petition is provided under Rule 3 of the Election Rules. Rule 7 of the Election Rules provided for deposit for the security, which reads as follows:

Rule 7. - Deposit of Security - At the time of presentation of an election petition the petitioner shall deposit with the prescribed authority a sum of rupees two hundred and fifty as security for cost of petition. Where election of co-option of more than one candidate is called in question, separate deposit of an equivalent amount shall be required in respect of the such returned candidate.

The result of non compliance of the provision of Rule 7 besides other rule has been provided in Rule 8 of the Election Rules and the same reads as follows:

Rule 8. Procedure on receiving petition - If the provisions of Rule 3 or Rule 4 or Rule 7 have not been complied with, the prescribed authority shall dismiss the petition :

Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.

Learned counsel for the returned candidate on the strength of Rule 8 of the Election Rules submits that non deposit of the security cost at the time of presentation of the election petition being admitted, the election petition was fit to be dismissed on this score alone. It is further submitted that the requirement of deposit of security cost is mandatory.

Learned counsel representing the election petitioner, however, submits that notwithstanding the fact that the requirement of deposit of security cost is mandatory but the same can be deposited within the period of limitation of presentation of the election petition and the election petition cannot be dismissed on the ground that the security cost was not deposited along with the election petition.

Learned counsel for the election petitioner in support of his submission has placed reliance on a Division Bench Judgment of this Court in the case of Babulal Keluras Kiran and another v. State of M.P. and another 1985 M.P.L.J. 3, 411, wherein it has been held :

We now proceed to dwell upon the interpretation or the provisions contained in Rule 7 and 8 of the Election Rules and the effect of its non-compliance as in the instant case, we are concerned with these rule.

The first question for consideration is whether the provision contained in these rules are mandatory or directory. There is no cut and dried formulas, applying which as an universal rule, it can be determined whether a provision is mandatory or directory. Lord Compbell has said :

No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered. However, the generally accepted principles are :

(1) When the consequence of nullification on failure to comply with a prescribed requirement is provided in the statute itself, it has unhesitatingly to be interpreted to be mandatory; and

(2) If the object of the enactment will be defected by holding the provision to be directory, then also, it has to be construed as mandatory.

We proceed to examine the rule under consideration on the touch-stone of the aforesaid well settled canons of construction. In Rule 7, the governing expression is ''shall deposit'' and for failure with this, the petitioner is visited with the penalty of dismissal of the petition as provided in Rule 8. It cannot be gainsaid that obviously, the provision about the deposit of security amount alongwith the presentation of the petition has been provided as a matter of public policy, it is certainly a whole some one, in that (sic) a democratic set up, based on representation, while providing the remedy of election petition for questioning the election so as to maintain the purity of election, it attempts to put a stop to useless and harassing litigation against the returned candidate.

In the above view of the matter, the irresistible conclusion is that the provision of Rule 7 is mandatory.

Learned counsel for the election petitioner, however submits that as the security cost was deposited within the period of limitation, the election petition does not deserve dismissal on this ground. In support of the aforesaid submission learned counsel places reliance on a judgment of this Court in the case of Kailash Narayan v. Namdar and others 1996 J.L.J. 391. In the aforesaid case this Court held as follows:

In the present case the position is the same. Shortage in deposit was made good within the period of limitation. The decision arrived at by the election Court in dismissing the petition on the ground that a sum of Rs. 250/- was not deposited on the date it was presented is not correct. This deficiency can be made good even after the date of presentation but it should be done within the period of limitation.

I had an occasion to consider this aspect of the matter in W. P. No. 2.96 (Indore Bench) and by order dated 27.5.1996 I, in agreement with the aforesaid view, held that the security cost can be deposited within the period of limitation and if the cognigance is not taken before the deposit of security cost, the election petition does not suffer from fatal defect. Thus, in the present case also the Sub-Divisional Officer hearing the election petition took cognizance of the case only after security cost was deposited and, therefore, the election petition does not deserve dismissal on this ground.

I may state that in Babulal Kaluram Kirar is Case (supra) this Court held that the provision of Rule 7 which provides for deposit of security to be mandatory, but the question of affect of deposit within the period of limitation did not arise for consideration in the said case. As such this authority is of no assistance for the point raised in the present writ petition.

Learned counsel for the returned candidate further submits that rejection of two votes which contained cross mark is illegal. It is submitted that the whole purpose of any mark in the ballot paper, is to as certain the will of the electorate and the will of the electorate being apparent from THe mark, the election Tribunal wrongly rejected his two votes. In support of the aforesaid submission reliance has been placed on a judgment of the Andhra Pradesh High Court in the case of P.M. Doraswamy Reddy Vs. The Election Authority and Director of Marketing, Andhra Pradesh and Others, . My attention has been drawn to paragraph 7 of the judgment which reads as follows :

Applying the principle of interpretation of the Rule under consideration, it is obvious that since marking of a balloot paper by any method of marking other than a cross mark ''x'' is not visited with advarse consequences under the rule, it must be held that the provisions of S.17 regarding the putting of the cross mark ''x'' on the baloot paper as indicating the desire to vote for a particular candidate are marely directory and not mandatory, It is equally well settled that, if a particular provision is directory, substantial compliance with that provision will meet the requirements of law and it is from the point of view of substantial compliance that one has to consider this case. So long as the voter expresses his intention to vote for a particular candidate by putting any mark whether ''x'' or any mark other than the mark ''x'' there would be substantial compliance with the provisions of R.17, because by putting that particular mark, he expresses his deaire to vote for that particular candidate and the underlined words in R. 17, which we have quoted above, go to show that it is the expression of the desire of the votor as to the candidate for whom he desires to vote that is material for the purpose of R.17. If that desire is substantially expressed viz. by putting any mark whether ''x'' or any mark other than the mark ''x'' it must be held that R.17 is complied with. With great respect to our learned brother Gangadhar Rao, 3. We are unable to agree with his conclusion that the provision of R. 17 are mandatory and that non compliance with the provisions of that rule regarding the method of marking would render the vote invalid not liable to be taken in to consideration.

In the case before the Andhara Pradesh High Court the rule required that the vote shall inscribe a mark ''x''; on the ballot papers. It further contemplates that in case the ballot paper contains the signature or any mark by which the voter can be indentified, the ballot paper shall be invalid. Mere in the Present case, the matter is governed by Rule 86 (12) of the Rule, which reads as follows :

Notice for election - (1).....

.....

(12) the ballot paper shall be signed by the Presiding Officer of the melting and one paper handed over to each member who shall put a corss (x) against the candidate for whom he wished to vote. If a member is unable through illiteracy blindness or other physical infirmity to record his vote, the Presiding Officer of the meeting shall record the vote on bellot paper in accordance with the whishes of the member. The ballot paper shall not be signed by the member nor be marked in any other way that could reveal 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 ballot paper can be declared as invalid which reads as follows :

86.(1).....

(14).....

(1).....

(2) A ballotpaper shall be invalid -

(a) if it bears the singnature of the member of contains any word, or any visible representation by which he can be identified; or

(b) if marks are placed thereon against more than one candidates; or

(c) if the mark is so placed therein as make it doubtful for which one or the two or more candidates the vote was intended to be given; or

(d) if no mark is placed thereon; or

(e) if it does not bear the signaler of the Presiding Officer.

A reading of rule 86 (12) of the Rules makes it clear that if the ballot paper is marked in any other way that could reveal the identity of the voter, the same shall be void. Further Rule 86 (14) (7) contemplates contigencies on which the ballot papers can be declared invalid. In the case of P.M. Doraswamy Reddy (supra), the Division Bench of the Andhra Pradesh High Court was considering a rule by which any mark by the voter, which leads to identification of the votor was being considered but in the Andhera Pradesh rule the consequence of mark, other than the mark provided in the Rule has not been indicated. However, in the present case, I find that Rule 86 (12) contemplates consequences of the mark other than what has been prescribed, has been provided i.e. vote becoming void. In view of the consequence provided in Rule 86 (12) of the Rule itself i.e. rendering the vole void in case of the mark other than the prescribed one. I have no hesitation in holding that the putting of the prescribed mark is mandatory and failure to do the same, renders the vote void. Thus, I do not find any substance in this submission of the learned counsel for the petitioner and the case relied on by the learned counsel for the returned candidate, on the Andhra Pradesh decision is clearly distinguishable.

Rliance was further placed on the decision of the Apex Court in the case of Era Sezhiyan Vs. T.R. Balu and others, , to contend that to decided the validity of vote, the intention of the voter is required to be gathered. It is submitted that the intention of the voter is writ large from the fact that he has given a tick mark in front of the name of the returned candidate. My attention has been drawn to paragraph 17 of the judgment, which reads as follows :

It is significant that in this sub-rule also there is nothing to indicate that the preferance must be indicated in the colemn reserved for that purpose, the only requirement being that the figure I should be written opposite the name of the candidate. Similarly, sub-rule (2) (b) of Rule 73 only lays down that if the figure ''1'' is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candiate it applied, the ballot paper would be invalid. Sub-rule (2) of Rule 73 deals with the invalidly of ballot papers and that sub-rule no where states that merely by reason of the prefernece being marked in the wrong column, if the marking is opposite the name of the candidate concerned, the ballot paper shall be rendered invalid, it is true that the column in which the preference sold have been marked and intended for that purpose was the column on the right hand side of the first column where the name of the candidate was to be put, but there is no express provision to the affect that unless the preference is marked in the correct column, the ballot paper would be invalid. In such a situation, the principle enunciated by this Court in several judgments and reiterated in as S. Sivaswami Vs. V. Malaikannan and Others, , that the primary task of the Courts in the case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter, must be applied. In that case, the Court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the vote had been intended to be given. This, of course, is subject to the rule that before a ballot paper is accepted as valid, the ballot paper must not be invalid under any other expressed provision and the intention of the voter must not be expressed in a manner which is contrary to or totally inconsistent with the manner prescribed under the said Act or the Election Rules for expresing the same. In the case of the said three votes in question, the figure I was clearly marked opposite the name of respondent no. 1, being the candidate concerned, as required by the express provision of the said Rule 37 A and the intention of the voter was clearly to cost the first preference in favour of respondent No. 1. In these circumstances, the balot papers were rightly accepted by the Returning Officer as valid and the High Court was justified in coming to the conclusion to which it has arrived.

(underlining mine)

In the aforesaid case the Apex Court found that the voter although expressed his desire to cost vote in favour of the candidate but the same was not marked in the correct column. The Apex Court took into consideration that there is no express provision to the affect that unless the preference is marked in the correct column, the ballot paper would be invalid and accordingly found that the mark not given in the prescribed cloumn shall not invalidate the vote. However, from the portion underlined in the judgment it is apparent that the intention of the voter on the ballot paper is subject to the condition that the ballot paper must not be invalid under any express provision or intention must not be expressed in any manner contrary to the statute.

In the present case, however, I find, that Rule 86 (12) of the rules itself contemplates of marking on a ballot paper by mark "x" and the consequence has been 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 the voter shall indicate his will by a particular mark and its failure rendering the vote to be void. I am of the considered opinion that the decision relied on by the learned counsel for the returned candidate is clearly distinguishable.

Learned counsel for the election petitioner contends that one of the votes in favour of the returned candidate which contains cross and tick marks, both, ought to have been rejected. The election Tribunal indicated that both the marks are not in the ballot paper. The said ballot paper has also been produced before me and on perusal of that, it does not appear that both corss and tick marks are present on the said ballot paper. In fact, it contains the corss mark and one of the line of the cross is a bit large. The election petitioner states that the same is a tick mark whereas the counsel for the returned candidate states that it is in continuity of the cross-mark. Having purposed the ballot paper, I find that the connection of the election petitioner that it contains corss and tick marks both, cannot be accepted. One of the lines of cross mark is a bit curved and longer which cannot be identified as separate tick mark to render the same invalid. In my opinion, the longer line is of innocuous nature and cannot be said to contain but different marks. Thus, I negative this submission of the learned counsel for the petitioner. The view I have taken I am fortified by the judgment of Apex Court in the case of Km. Shradha Devi Vs. Krishna Chandra Pant and Others, wherein the Apex Court held as follows :-

it must be remembered that every mark or writing does not result in

invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available. There is no such evidance. Therefore, the ballot papers should not have been rejected on the ground mentioned in rule 73 (2) (d), such marks being in this case some erasures or a bracket.

The result of the aforesaid discussion is that there is no merit in any of the writ petitions and the same are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to cost.