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Bherulal Vs. Bardichand and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Petn. Case No. 6 of 1972
Judge
Reported inAIR1975MP99
ActsMadhya Pradesh Gram Panchayats Election and Co-option Rules, 1963 - Rules 52 and 53(4)
AppellantBherulal
RespondentBardichand and ors.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateU.N. Bhachavat, Adv.
DispositionPetition allowed
Excerpt:
.....only one box and the voter is required to affix the seal against the symbol of her choice on the ballot paper. the power given to the presiding officer under sub-rule (3) of rule 51 is clearly to ensure that any voter while inside the polling compartment does not have any opportunity to tamper with the ballot boxes in any man-ner. having remained out of the polling compartment and at the door near the otla for about an hour without making any enquiry, she cannot be heard to complain that proper opportunity to vote was not afforded to her or that there was any refusal to receive her vote. the expression 'found anywhere' and the context in which it appears clearly indicates that the ballot paper may not only be found lying on the floor but even with any person who is not authorised to'..........a voter is unable to read the symbol on a ballot box or is physically incapable of putting the ballot paper into a ballot box, the presiding officer shall enter the polling compartment with such voter, ascertain from the voter the candidate or candidates in whose favour he desires to vote and shall put the ballot paper or papers in the ballot box or boxes of such candidate or candidates in accordance with the wishes of such voter. the presiding officer shall, have this done with as much secrecy as is feasible and shall keep a brief record of each such instance without indicating the manner, in which the votes have been cast.' rule 19 finds place in chapter iv of the election rules under the heading 'administrative machinery for the conduct of elections'. this rule only lays down the.....
Judgment:

J.S. Verma, J.

1. The petitioner Bherulal was declared elected a Panch from Ward No. 4 to Gram Panchayat Bagh at an election held on 15-5-1970. The rival candidates were respondent No. 1 Bardichand and respondent No. 2 Danmal. At the election, the petitioner secured 39 votes, which were the highest, while respondent No. 1 secured 37 votes and respondent No. 2 secured 20 votes. An election petition challenging the petitioner's election was filed by respondent No. 1 Bardichand, which has been allowed by the prescribed authority so that the present petition under Article 226 of the Constitution seeks to have the order of the prescribed authority setting aside the petitioner's election quashed.

2. Section 357 of the M. P. Panchayats Act, 1962 provides for an election petition presented to the prescribed authority for challenging such an election. The prescribed authority is admittedly the Sub-Divisional Officer, respondent No. 3. The Rules applicable for the purpose are the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules 1962 (hereinafter referred to as the Election Petition Rules). Rule 22 of the Election Petition Rules lays down grounds for declaring an election to be void. The Petitioner's election in the present case has been set aside by the prescribed authority on the grounds contained in Sub-clauses (ii) and (iii) of C. (d) of Sub-rule (1) of Rule 22 of the Election Petition Rules. It has been held that there was non-compliance with Rule 52 of the M. P. Gram Panchayats Election and Co-option Rules, 1963 (hereinafter referred to as the Election Rules) so as to make out a ground under Sub-clause (iii) and that there was improper rejection of two votes so as to make out a ground under Sub-clause (ii). In view of both the defects found, it has been held that the result of the election of the concerning returned candidate has been materially affected.

3. The relevant allegations on the basis of which both the grounds have been found proved are that the votes of two voters, namely, Jhammobai and Sarswatibai were improperly rejected, who were both intending tovote for respondent No. 1 and that the Presiding Officer did not comply with Rule 52 of the Election Rules, inasmuch as he did not assist the voter Jhammobai to cast her vote as a result of which the election was materially affected in the manner already stated. The margin with which the petitioner was declared elected being only two votes, the result of the election has been held to be materially affected. As already stated, both these allegations made in the election petition have been found proved.

4. Shri S. D. Sanghi, learned Counsel for the petitioner has confined his argument only to the Allegation relating to the alleged improper rejection of Jhammobai's vote and the allegation of non-compliance of Rule 52 of the Election Rules by the Presiding Officer in her connection and has made no attempt to challenge the finding with regard to the vote of Saraswatibai, the other voter. It is obvious that if the petitioner succeeds on this ground alone, then he is entitled to the relief claimed and it is not necessary to decide whether the decision of the prescribed authority in relation to the other vote can be sustained or not. The consequence in such a case would be that the result would not be materially affected if only vote was improperly rejected. In support of this petition, Shri Sanghi argues that there is an error apparent on the record justifying quashing of the impugned order. It is argued that Rule 52 of the Election Rules has no application to the present case so that the ground under the aforesaid Sub-clause (iii) cannot be made out. It is further argued that the rejection of Jhammobai's vote was proper and in accordance with Rule 53 (4) of the Election Rules so that a ground under Sub-clause (ii) is also not available. In reply, Shri U. N. Bhachwat has pressed into service also the aid of Rule 19 of the Election Rules in addition to placing reliance on Rule 52 for attempting to show that the ground under Sub-clause (iii) is made out. With regard to the ground under Sub-clause (ii), Shri Bhachawat relies on the view taken by the prescribed authority and further contends that it was also a case of refusal to permit Jhammobai to cast her vote. Shri Bhachawat also contends that on the findings recorded, there is no escape from the conclusion arrived at by the prescribed authority.

5. Rule 22 of Election Petition Rules in so far as it is relevant for our purpose is as follows :--

'22. Grounds for declaring election or co-option to be void-- (1) Subject to the provisions of Sub-rule (2) if the prescribed authority is of opinion :--

(a) * * * * *(b) * * * * *(c) * * * * * (d) that the result of the election or co-option in so far as it concerns returned candidate has been materially affected:

(i) * * * (ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or

(iii) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder:--the prescribed authority shall declare the election or co-option of the returned candidate to be void. (2) * * *'.

6. We shall first take up the ground relating to non-compliance with the rules as provided in the aforesaid Sub-clause (iii). Rules 19 and 52 of the Election 'Rules are the rules on which reliance is placed by Shri Bhachawat even though the prescribed authority has found non-compliance only with Rule 52. These rules are as under:--

'19. General duty of Presiding Officer. It shall be the general duty of the Presiding Officer at a polling station to keep order thereat and to see the poll is fairly taken.'

52. Recording of vote of blind or in-firm, voter:-- If owing to blindness or other physical infirmity a voter is unable to read the symbol on a ballot box or is physically incapable of putting the ballot paper into a ballot box, the Presiding Officer shall enter the polling compartment with such voter, ascertain from the voter the candidate or candidates in whose favour he desires to vote and shall put the ballot paper or papers in the ballot box or boxes of such candidate or candidates in accordance with the wishes of such voter. The Presiding Officer shall, have this done with as much secrecy as is feasible and shall keep a brief record of each such instance without indicating the manner, in which the votes have been cast.'

Rule 19 finds place in Chapter IV of the Election Rules under the heading 'Administrative machinery for the conduct of elections'. This rule only lays down the general duty of the Presiding Officer and says that the Presiding Officer at the polling station has the power of general superintendence at the polling station and he has to see that the poll is fairly taken. We fail to understand how such a general provision can be of any assistance to the respondents in the present case. So far as Rule 52 of the Election Rules is concerned, we have no doubt that the same is wholly inapplicable to the present case. In the scheme of election rules, this rule appears after Rule 51 which provides the voting procedure. Rule 51 provides that on receiving the ballot paper the voter shall forthwith proceed into the polling compartment and shall without undue delay puthis ballot paper through the slit provided for the purpose into the ballot box of his choice. Thereafter Rule 52 provides for assisting a blind or infirm voter for the purpose of enabling him to cast his vote. It is clear that a person, who is either blind or suffers from any other physical infirmity on account of which he is unable either to read the symbol on the ballot box or to put the ballot paper into the box of his choice, has to be assisted in order to enable him to identify ballot box of his choice and thereafter put the ballot paper through the slit into that box. Rule 52 therefore, deals only with voters, who are unable either to identify the box due to blindness or having identified the same are otherwise incapable of putting the ballot paper into that box through the slit due to any other physical infirmity. The object of the rule is clear and it is only to help the voters, who are either unable to see for the purpose of identifying the box or are unable to hold the ballot paper and push it through the slit into the box on account of any other physical disability. No other class of voter can obviously be covered by Rule 52. Admittedly, the voter Jhammobai in this case was neither blind nor suffered from any physical infirmity so as to require the assistance of the Presiding Officer either for identifying the box or for putting the ballot paper through the slit into the box of her choice. She has clearly stated that the only confusion on account of which she did not cast her vote while inside the polling compartment was the absence of a seal as is provided during general election where there is only one box and the voter is required to affix the seal against the symbol of her choice on the ballot paper. The voting procedure in the election with which we are concerned, admittedly, was that there were separate boxes bearing separate symbols of the candidates and no seal had to be affixed on the ballot paper and all that was to be done by the voter was to put the ballot paper in the box bearing the symbol of the voter's choice. She has further stated that she knew the symbol for which she had to cast her vote and it is nobody's case that the box bearing that symbol was not present inside the polling compartment. For this reason, accepting the statement of Jhammobai at its face value, there was no reason or disability on account of which Jhammobai could not cast her vote even assuming that she did not exercise her right of franchise. In any case, Rule 52 is clearlyinapplicable to her case so that there was no occasion to apply the same and to hold that there was non-compliance with that rule.

7. It is, therefore, obvious that no ground as provided in Sub-clause (iii) of Clause (d) of Sub-rule (1) of Rule 22 of the Election Petition Rules could be made out in the present case by any stretch of imagination.

8. So far as the other ground provided in Sub-clause (ii) is concerned, we are equally of the view that even accepting Jhammobai's statement at its face value, which alone is the relevant direct evidence for marking out the ground, no such ground has been made out.

According to Jhammobai's statement, the only reason why she did not cast her vote was the absence of any seal as already indicated. She has further expressly admitted that she had been told when she was given the ballot paper that there were several ballot boxes inside the polling compartment and she could put that ballot paper into the box of her choice. In addition, she has further admitted that having got so confused she came out of the polling compartment walked back through the room where the Presiding Officer was sitting to the Otla outside and stood at the door of that Otla for about an hour, after which she asked the Presiding Officer as to what she has to do with the ballot paper and at that stage the Presiding Officer took the ballot paper from her. Obviously it was thereafter that the same was cancelled in accordance with Sub-rule (4) of Rule 53 of the Election Rules by the Presiding Officer.

9. In this connection it is necessary to notice also Rule 51 of the Election Rules which reads as under:--

'Voting procedure:-- (1) on receiving the ballot paper the voter shall forthwith proceed into the polling compartment and shall without undue delay put his ballot paper through the slit provided for the purpose into the ballot box or boxes of the candidate or candidates for whom he desires to vote :

Provided that not more than one ballot paper shall be put by a voter into one ballot box. (2) Every voter shall vote without undue delay and shall quit the polling station as soon as he has cast his vote. Ho voter shall remain in a polling compartment longer than is reasonably necessary for casting his vote.

(3) The Presiding Officer may, whenever there is in his opinion sufficient cause, enter the polling compartment while a poll is proceeding and, may take such steps as may be necessary to ensure that the ballot boxes on use remain ready for the reception of ballot papers and are not tampered or interfered with in any way by any voter or any other person. If the Presiding Officer has reason to suspect that any voter who has enter-ed a polling compartment is tampering or otherwise interfering with any ballot box or if such voter has remained inside the polling compartment for an unduly long period, the Presiding Officer shall enter such polling compartment and take such steps as may be necessary to ensure the smooth and prompt progress of the poll.'

10. It is clear from Rule 51 of the Election Rules that the voter is required to go into the polling compartment as soon as the ballot paper is given to him and to cast his vote in the manner indicated without undue delay within a reasonable time. The power given to the Presiding Officer under Sub-rule (3) of Rule 51 is clearly to ensure that any voter while inside the polling compartment does not have any opportunity to tamper with the ballot boxes in any man-ner. What is the reasonable time for which a voter should be expected to remain within the polling compartment is naturally left to the discretion of the Presiding Officer. It is also clear from the rule read as a whole that the voter is not expected to leave the compartment until he has cast his vote in the manner provided. It necessarily follows that a voter having come out of the polling compartment without the permission of the Presiding Officer has no right to enter the same thereafter for the purpose of casting his vote. It is not unreasonable to infer from this rule that the voter is expected to meet no outsider after having received the ballot paper till he has cast his vote. In the very nature of things what is the reasonable time in a given case to enable the voter to exercise his right after he has entered the polling compartment must be left to the discretion of the Presiding Officer and this is what has been done by Rule 51, Once a ballot paper has been issued to the voter and he has been permitted to enter the polling compartment whereafter the voter has come out voluntarily from the polling compartment, all that is required to be done by the rules to enable the voter to cast his vote is fully complied with, so that no objection can be permitted thereafter on the ground that proper opportunity was not given to that voter to enable him to cast his vote. Admittedly, all these requirements of Rule 51 were fully met with in the present case and Jhammobai had full opportunity to cast her vote as contemplated by the rules. If she chose to leave the polling compartment after having entered the same with the ballot paper, there being- no impediment In her way to cast the vote in the manner she wanted, she has only to blame herself even assuming that she did not in fact cast her vote as alleged by her. It is significant that Jhammobai had come out of the polling compartment ofher own choice and, admittedly she was not hurried out of the same by the Presiding Officer or any one else and thereafter she chose to go out to the Otla without seeking any help from the Presiding Officer further assuming her entire story to be true. Having remained out of the polling compartment and at the door near the Otla for about an hour without making any enquiry, she cannot be heard to complain that proper opportunity to vote was not afforded to her or that there was any refusal to receive her vote. The argument, of Shri Bhachwat to this effect cannot, therefore, be accepted.

11. The further question is whether the Presiding Officer had the authority to act in accordance with Sub-rule (4) of Rule 53, the aid of which was taken for rejecting the ballot paper of Jhammobai. Rule 53 of the Election Rules reads as under:--

'53. Spoilt and returned ballot papers and ballot papers found outside ballot boxes : A voter who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper may, on returning it to the Presiding Officer and on satisfying him of the inadvertence, be given another ballot paper, and the ballot paper so returned shall be marked 'Spoilt-cancelled' by the Presiding Officer.

(2) If a voter after obtaining a ballot paper decides not to use it, he shall return it to the Presiding Officer, and the ballot paper so returned shall be marked as 'Returned cancelled' by the Presiding Officer.

(3) All ballot papers cancelled under Sub-rule (1) or Sub-rule (2) shall be kept in a separate packet.

(4) If any ballot paper, which has been issued to a voter, has not been inserted by him into any ballot box, but is found anywhere in or near the polling station, whether within or outside the voting compartment, it shall be deemed to have been returned to the Presiding Officer under Sub-rule (2) and dealt with accordingly.

(5) If a ballot paper is found on a ballot box of a candidate or partly inserted in it, it shall be presumed that the intention of the voter was to cast that vote for the candidate and the Presiding Officer may accordingly, push or insert the same into that ballot box.'

Sub-rule (4) creates a legal fiction enabling the Presiding Officer to act according to Sub-rule (2) where a ballot paper has been found in the manner stated. The consequence of the fiction is that a ballot paper so found shall be treated as returned to the Presiding Offi-cer and dealt with accordingly, in the manner provided in Sub-rule (2). It is argued by Shri Bhachwat that the words 'found anywhere' in Sub-rule (4) must be construed as 'found lying on the ground.' We find nothing in either Sub-rule (4) or elsewhere to confine the meaning of this expression so as to limit it only to ballot papers found lying on the floor. The expression 'found anywhere' and the context in which it appears clearly indicates that the ballot paper may not only be found lying on the floor but even with any person who is not authorised to' possess the same at that time and place. Rule 51, as already indicated by us, clearly requires the voter to enter the polling compartment as soon as the ballot paper is issued to him and thereafter to come out of the polling compartment only after the vote has been cast by putting the ballot paper into one of the ballot boxes of the voter's choice. Such a provision clearly excludes any right in the voter to move about in that area or elsewhere with the ballot paper after the same has been issued to him except permitting him to proceed to the polling compartment forthwith and to remain therein for a reasonable time which may be necessary for him to cast the vote. As already indicated, the voter is not permitted to leave the polling compartment with the ballot paper after he has entered into it for the purpose of casting his vote without the permission of the Presiding Officer. The use of the expressions 'forthwith', 'without undue delay' and 'unduly long period' in Rule 51 clearly lead to such a conclusion.

12. Reading Sub-rule (4) of Rule 53 along with Rule 51 as they ought to be for the purpose of harmonious construction of the provisions, we are of the opinion that the expression 'found anywhere' appearing in Sub-rule (4) of Rule 53 must be construed as including within its ambit any ballot paper which is found in a manner including the possession of a person, where it should not be found at that time and place. This means that even if a voter to whom the ballot paper has been issued is found with the ballot paper in his possession outside the polling compartment having left the polling compartment without the permission of the Presiding Officer and the period in-tervening between the issue of the ballot paper and the time when it is so found with the voter is unduly long in the opinion of the Presiding Officer, such a ballot paper could be dealt with by the Presiding Officer, in the manner provided in Sub-rule (4) of Rule 53 of the Election Rules. In the present case even according to Jhammobai, the ballot paper was taken from her after the lapse of at least one hour of her coming out of the pollingcompartment voluntarily and going out to the door near the Otla without even making any enquiries from the Presiding Officer, or any one else. In such a situation, the power to act in accordance with Sub-rule (4) of Rule 53 of the Election Rules was clearly available to the Presiding Officer. Shri Bhachwat argues that such a construction would lead to the undesirable effect of depriving a voter of his franchise the moment he steps out of the polling compartment having once entered the same with the ballot paper. In the view we have taken such an apprehension is imaginary. In any event, the present case does not fall within that category and the view we have taken excludes cases where the voter has come out of the polling compartment with permission of the Presiding Officer. It is also clear from the rules that the voter is required to enter the polling compartment only after he has made all enquiries that he wishes to make so that the time requisite for him to cast the vote in the manner prescribed after entering the polling compartment is ordinarily insignificant.

13. For the reasons given, we are of the opinion that the Presiding Officer had the requisite authority in the present case to reject the ballot paper issued to Jhammobai by virtue of Sub-rule (4) of Rule 53 of the Election Rules in the manner provided in Sub-rule (2} thereof. It is, therefore, not a case of either improper rejection of Jhammobai's vote or of refusal to permit her to cast her vote. It necessarily follows that no ground under Sub-clause (ii) of Clause (d) of Sub-rule (1) of Rule 22 of the Election Petition Rules is also made out. We are conscious of the limitations within which alone power can be exercised in this petition in respect of the findings recorded by the prescribed authority. However, this is a case where there is an error apparent on the record in view of the fact that the conclusion of the prescribed authority is based on no evidence and the testimony of Jhammobai taken even at its face value, as we have taken, does not support the conclusion arrived at by the prescribed authority.

14. It was also urged by Shri Bhachwat for the respondents that this petition should be dismissed for the reason that there was an alternative remedy available to the petitioner by way of a revision under Section 314 of the M. P. Panchayats Act, 1962, which has not been exhausted before filing this petition. It is not necessary in the present case to decide whether a revision under Section 314 of the M. P. Panchayats Act was available to the petitioner as of right in the present case. However, even assuming that such a revision lay, we are of theopinion that the same was not an efficacious alternative remedy in the present case. Moreover, the petitioner has relied on an error apparent to support this petition and for that reason also interference under Article 226 of the Constitution would be justified. We are therefore of the opinion that the petition cannot be dismissed on this ground.

15. The result is that this petition succeeds and is hereby allowed with costs. The impugned order is quashed. Counsel's fee Rs. 100 if certified. The outstanding amount of security deposit shall be refunded to the petitioner.


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