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Judgment
R.S. Narula, J.—The relevant facts of this case are not in dispute. A meeting of the Panchayat Samiti of Ghall Khurd was convened by the Sub Divisional Magistrate, Ferozepore (respondent No. 1) in his capacity as Presiding Officer under the Punjab Panchayat Samitis and Zila Parishads Act, 1961 for 16th February, 1965 to elect the Chairman and Vice-Chairman of the Panchayat Samiti of that village. There were two contestants to the office of Chairman, namely, Des Raj, petitioner and Arjan Singh, respondent No. 3. It is admitted that in all 25 members of the Samiti cast their votes at the said election. When the votes were counted it was admittedly found that 13 had been polled in favour of the petitioner while 12 had been cast in favour of Arjan Singh, respondent. The Presiding Officer declared one of the 13 votes cast in favour of the petitioner as invalid. The resultant equality of votes was resolved by resorting to toss. In the toss, Arjan Singh respondent won and he was declared elected as Chairman. It is this election of Arjan Singh as Chairman which is sought to be set aside in this writ petition filed on 19th February, 1935. The petitioner seeks a declaration to the effect that it was he who had been elected as he had obtained 13 votes on the ground that the rejection of one of his votes was illegal. At the time of filing the writ petition he also prayed for stay of the issue of notification declaring the result of the election. The Motion Bench (R.P. Khosla and Jindra Lal, JJ.) while admitting the writ petition on 24th February, 1965 declined to grant any stay order. The case of the petitioner is that the voter in question had put only one cross mark with red pencil which was clearly and unambiguously placed against the name of the petitioner on the disputed ballot paper and that the thin red line stated to have been found down below on the same ballot paper against an empty column containing no name of any candidate did not invalidate the ballot paper.
Shri Gurnam Singh, Sub-Divisional Magistrate (as Presiding Officer of Panchayat Samiti Election) has submitted his written statement dated 15th April, 1965 in reply to the writ petition. Therein he has stated that one of the votes polled in favour of the petitioner was declared invalid under rule 9 of the Punjab Panchayat Samitis and Zila Parishads, Chairman and Vice-Chairman (Election) Rules, 1931 since the said ballot paper had another mark in red pencil on it by which the vote could be identified. Arjan Singh, respondent has filed a separate written statement wherein he has, inter alia, taken up an objection to the maintainability of this writ petition on the ground that an election petition u/s 121 of the Act lies and that an election petition challenging the election of Arjan 8ingh, respondent has already been filed before the appropriate authority by one Hari Singh, Member of the Block Samiti, Ghall Khurd and the same is pending.
Mr. Sanwalka, the learned counsel for the respondent relies on a Division Bench judgment of this Court (Grover and Dua, JJ.) in Bhagirath Singh v. The State of Punjab and others AIR 1065 P&H. 170 : 67 P.L.R. 413, and argues that this writ petition should be dismissed on the short ground that an alternative remedy by way of an election petition was available to the petitioner. In the case cited by him Dua, J., who wrote the judgment of the Court held that an alternative remedy by way of an election petition was not a constitutional bar but was merely in the nature of a self-imposed restriction and that an objection to this effect should not be allowed to prevail if the alternative, remedy is not equally adequate, efficacious and speedy or when it is found by the Court that interference of this Court in exercise of its writ jurisdiction is necessary to facilitate the cause of substantial justice and to further the ends of justice.
Again in Civil Writ No. 1552 of 19S5 a Division Bench of this Court (Dua, J and myself) held in Charan DAS v. State (1965) 67 P.L. R. 1238, on 30th July, 1965, as follows:
The conclusion is irresistible that mere existence of an alternative remedy cannot by itself or per se enjoin this Court to decline interference on the writ side, but that the Court must consider and weigh in a disciplined and responsible manner according to the rules of reason and justice all the facts and circumstances before it and eliminating prejudice and sympathy, judicially determine whether or not interference would further the purposes of securing justice to the citizens for which this power is conferred.
In this writ petition the facts are not in dispute. The limitation for filing an election petition has already expired and the petitioner has admittedly not filed any election petition so far. Even it he had filed a petition u/s 121 of the Act its trial and decision would certainly not have been as speedy as the decision in a. writ case. In the circumstances of this case, I do not consider the alternative remedy, by way of ah election petition to be an adequate or equally efficacious and equally speedy remedy. In the view that I am taking of the matter on its merits. It appears that error of law is writ large on the face, of the decision of the Presiding Officer and in fact his decision is contrary to the law of the land as settled by the Supreme Court. To dismiss a writ petition in an exceptional case of this type appears to thwart rather than, further the ends of justice. I, therefore, overrule, the preliminary objection raised by the contesting respondent in this behalf.
Still another objection has been raised by Mr. Sanwalka. Ha argues that it was for the Presiding Officer to accept or reject a ballot paper and so long as he has the jurisdiction to do so it is not for this. Court to interfere with his decision. This is indeed so. But if it is found that the Presiding Officer rejected a ballot paper or declared it to be invalid on a ground on which he has no jurisdiction to do so or if his decision is based on an error of law apparent on the face of the record it is the duty of this Court to set aside such an order.
Coming to the merits of the case, rule 9 of the Punjab Panchayat Semites and Zila Parishads Chairman and Vice-Chairman (Election) Rules, 1961 reads as follows:
Any ballot-paper which bears any mark or signature by which the voter can be identified or on which the mark "(X)" is placed against more than one name or in an ambiguous manner or which does not bear the signature of the Presiding Officer prescribed in sub-rule (3) of rule 8, shall be declared invalid.
A mere reading of the above-said rule would show and indeed it is not disputed that the Presiding Officer has the jurisdiction to reject any ballot paper only if it falls within one of the five categories mentioned in the above rule and analysed below and in no other case:
If the prescribed mark "(X)" is placed against more than one name on the relevant ballot paper.
If the prescribed mark "(X)" is placed on the ballot paper in an ambiguous manner, i.e, the mark is placed in such a way as to make it difficult or doubtful for the Presiding Officer to judge the candidate in whose favour the vote has been cast.
If the ballot paper in question does not bear the signature of the Presiding Officer.
If the ballot paper bears the signatures of the voter.
If the ballot paper bears any mark by which the voter can be identified.
It is admitted case of both the parties before me the it this case does not fall within any of the first four categories enumerated above.
According to the respondent and according to the affidavit of the Presiding Officer filed in reply to the writ petition the case falls in the fifth category mentioned above. In the presence of the parties I have got the sealed cover containing the relevant ballot paper opened. In this ballot paper (No. PZCH 4490) names of only two candidates are mentioned, i.e. of Shri Arjan Singh, respondent at item No. land of Shri Des Raj. petitioner at item No. 2. No mark whatever has been put in the relevant column against the name of Arjan Singh. A clean cross mark in red pencil exists in the column for voting against the name of Des Raj, petitioner. In the place for casting the vote against item No. 3 where no name of any candidate occurs a small straight line in red pencil admittedly occurs. On this ballot paper Shri Gurnam Singh, the Presiding Officer has passed an order 16th February, 1965 in his own handwriting which reads as follows:
Rejected as invalid since there is a distinguishing mark underneath the cross.
What is required by law to invalidate a ballot paper is not the mere existence of a mark or even a distinguishing mark but only such a mark by which a voter can be identified. Similar words occur in rule 73(2) (d) of the rules framed under the Representation of the People Act. There also the mark which can invalidate a ballot paper "must be one by which the elector can be identified." The above phrase came up for interpretation before a Full Bench of this Court (Mehar Singh, Dua and Mahajan, JJ.) in Dr. Anup Singh Vs. Abdul Ghani and Others, . The learned Judges of the Full Bench held as follows:
The position in law that now emerges on consideration of all these cases seems to me to be this : In so far as any mark, other than writing on a ballot paper in addition to the mark required to signify intention to vote, is concerned, its peculiarity as a mark of identification can only invalidate a ballot paper if there is evidence of arrangement to vote in that peculiar manner to enable identification; but in the case of initiations or handwriting on a ballot paper the same is by itself evidence of the identity of the voter, the handwriting providing the evidence of such identity. In the latter case the only question that remains on the facts of a particular case is the sufficiency and adequacy of the writing to support an inference that the handwriting amounts to identification of the voter. It is upon this consideration that in some of the cases referred to a type of writing has been held not to invalidate a ballot paper. But that obviously must be a question for consideration in the facts and circumstances of each particular case.
The judgment of the Full Bench of this Court was the subject matter of a further appeal to the Supreme Court. That appeal was discoed of by a Constitution Bench of that Court and the judgment is reported in re. Dr. Anup Singh v. Shri Abdul Ghani and others A.I.R 1985 S.C. 815. The judgment of this Court was upheld by their Lordships of the Supreme Court and it was held that the vote will be invalidated under rule 73(2) (d) of the above-said rules if there should be a reasonable probability of identification of the elector by the mark or writing (other than that permitted by the relevant rule). Their Lordships held that the mere possibility of identification will not invalidate the vote under the above-said rule. It was held that a rule of this type requires that there should not only be a mark or writing on the ballot paper other than what is permitted by the relevant provisions but the mark or acting should be such that the elector can be identified because of it. An illustration of this kind has been given in the Full Bench judgment of this Court, i.e., where signature or some other writing is made by the elector, which can lead to an identification of the voter. If mere possibility of identification had been enough to invalidate a ballot paper, held the Supreme Court, the rule would have read something like this :
that there is any mark or writing other than that permitted * *
On a careful consideration of the matter I hold that what has been laid down by the Full Bench of this Court and by their Lordships of the Supreme Court in Dr. Anup Singh''s case (supra) in relation to rule 73 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 equally applies to the relevant clause in rule 9 of the above-mentioned Punjab rules of 1961. Though the Presiding officer has tried to quote the words of the relevant rule in his affidavit in reply to the writ petition, it is obvious that the ground on which he stated that he was rejecting the ballot paper on 16th February, 1965 in his order passed on the ballot paper itself, did not fall within rule 9, ibid. Under Article 141 of the Constitution the interpretation of such a rule as authoritatively pronounced by the Supreme Court is the law of the land. I, therefore, hold that the ground on which the disputed ballot paper was rejected is contrary to law.
In the absence of evidence of any arrangement between the person who cast the disputed ballot and the candidate in whose favour it was polled, it is impossible to identify the voter who cast the disputed ballot in the instant case. Even the most capable of handwriting experts cannot identify the writer of this less than one inch straight line in red pencil. Suppose, this was somehow possible, even then it is not the mere possibility of identification of the voter from the mark that will invalidate a ballot paper under rule 9. The mark would be fatal only if the elector can be identified because of it without any further evidence of special arrangement. Admittedly, there was no such evidence before the Presiding Officer. He had no jurisdiction to reject the ballot paper merely because it could be distinguished from the other ballot papers on account of the straight line referred to above. Still it was on this account alone and for no other reason that the crucial ballot paper was invalidated by the Presiding Officer. This being an error of law apparent on the face of the record and having led to manifest injustice to the petitioner who has otherwise admittedly secured more votes than the contesting respondent, the impugned order cannot be sustained.
In the above circumstances, this writ petition is allowed, the order of respondent No. 1 rejecting the disputed ballot paper is set aside and it is further directed that the appropriate authorities should declare the petitioner as elected in place of Shri Arjan Singh, respondent, unless there is some legal impediment against such a declaration. In the circumstances of the case there will be no order as to costs.