Roop Narain Pandey vs State of U.P., through Collector, Bahraich and others

K.N. Goyal, J.—The petitioner was Pradhan of a Gaon Sabha. A motion of no confidence was moved against him. At the meeting 399 members were present. As many as 202 votes were cast in favour of the motion and 92 votes were cast against the motion. Law requires that not less than twothirds of the members present and voting shouldvote in favour of the motion, vide section 14 (1) of the U.P. Panchayat Raj Act, 1947. The contention of the petitioner is that 104 votes which were cast but were found invalid should have been counted for the purpose of counting the aforesaid proportion of twothirds. As this was not done, the decision of the Presiding Officer declaring the motion to be carried is said to be vitiated.

In support of this contention, reliance has been placed on a decision of a learned Single Judge reported in Dhan Sahai Singh Verma v. Zila Panchayat Adhikari, 1975 Allahabad Law Reports 624. The said decision does not cite any authority in support of the view taken by the learned Single Judge.

In Halsbury''s Laws of England, Third Edition, Volume 14, paras 237, 238, 239 and 240 at pages 138 and 132 show that what are called invalid ballot papers for want of official mark or for voting for too many candidates or for marks of identification or for uncertainty are �void and must not be counted�.

In Words and Phrases, permanent Edition, Volume 44 A, at page 16, we find the following: ''

�Under the constitutional provision that no school district shall become indebted to an amount exceeding in any year the income and revenue provided for that year without the consent of twothirds of the voters thereof voting on the proposition,� twothirds of the legal votes cast, showing a preference in the affirmative or negative, is sufficient and void votes need not be taken into consideration. V.A.M.S. Const, art. 10 & 12. The word �voting� being the present participle of the intransitive verb to vote�, mean''s expressing the will, mind or preference; casting or giving a vote; casting a �vote as a formal or an authoritative expression of opinion; exercising the right of suffrage. State ex rel. Consolidated School Dist. No. 3 of Franklin country v. Smith, 109 S. W. 2d 857, 858, 341 M. O. 807�.

In the cumulative Supplement 1980 to the same volume, again we find the following:

�Reason and common sense dictate that the, verb �vote� carries with it the implication of affirmative choice by action and word �vote� cannot be equated with total failure of choice. Wooley v. Sterrett, Tax Civ. App., 387 S.W. 2d 734, 740.�

�In statute providing that dues of international union shall not be increased except by majority vote of delegates voting at a regular convention, the key word �vote� describes what is to be counted to determine a majority�.

In Kaul and Shakdher''s Practice and Procedure of Parliament, Third Edition, Volume II, the following decision of the Rules Committee of the Lok Sabha has been cited in the context of the requirement in Article 368 of the constitution in regard to the special majority for an amendment of the constitution

�Abstentions'' in any voting are not taken into consideration in declaring the result on any question. A member who votes ''abstention'' either through the electric vote recorder or on a voting slip or any other manner, does so only to indicate his presence in the House and his intention to abstain from voting he does not record his vote within the meaning of the words ''present and voting''. The expression ''present and voting'' refers to those who vote for ''ayes'' or for ''noes'' Min. (RC). 891970�.

We agree with these views. In our opinion there is no practical difference between a person who overtly and expressly abstains from voting and one who purports to cast vote by using a ballot paper but does so either deliberately or through inadvertence or ignorance, which cannot be speculated, in a manner in which, his choice cannot be ascertained. It is clear that invalid votes are mere waste papers and are not to be counted at all for any purpose whatsoever, except that corrupt practice may conceivably be committed even in respect of an invalid vote, and it is only voters who have cast valid votes who can be said to be �present and voting�. Those who either abstained or merely intended or purported to cast �votes� which were found void cannot be said to have �voted� on the motion. They were merely �present�, but cannot be included among persons �present and voting�. With due respect, therefore, to the learned Single Judge who decided the case �of Dhan Sahai Singh Vertna, supra, we are not inclined to agree with the view taken therein. It is, accordingly, overruled.

We may add that the phrase �present and voting� occurs also in articles 124 (4), 169 (1) and 368 (2) of the Constitution'' but no judicial decision on these provisions has come to our notice.

In the result, the decision of the Presiding Officer must be upheld and the writ petition must fail.

The writ petition is, accordingly, dismissed in limine.

(Petition dismissed in limine)