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R.R.P. Singh Vs. Awadhesh Pratap Singh University, Rewa and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberM.P. No. 829 of 1984
Judge
Reported inAIR1986MP115; 1986MPLJ169
ActsMadhya Pradesh Vishwavidyalaya Adhiniyam, 1973 - Sections 35
AppellantR.R.P. Singh
RespondentAwadhesh Pratap Singh University, Rewa and ors.
Appellant AdvocateR.N. Singh, Adv.
Respondent AdvocateS.L. Saxena, Dy. Adv. General and ;V.K. Tankha, Adv.
DispositionPetition dismissed
Cases ReferredAssurance Co. v. Punjab Roadways
Excerpt:
.....as to costs. i would like to say that an unduly extended meaning has been assigned to the term 'duly sealed'.13. all the necessary facts have been stated by brother gupta, j. it will, therefore, be not possible to return any definite opinion as to the validity of action of the returning officer in rejecting the good number of ballot papers as he has done in the present case. the matter can well be gone into only in an election petition provided under clause 53 of the statute. 18. may be that in such elections the contesting candidates are able to persuade a particular voter to hand over a ballot paper to a particular candidate who may, in that event, use that ballot paper in the manner he may like. 20. before parting, i would like to mention that in these proceedings, it is difficult..........the election; (b) if the signature on the cover is not duly attested or if the cover 'd' is not duly sealed. the cover 'd' rejected under this paragraph shall not be opened but kept in a separate parcel. he shall then remove the remaining cover 'd' and place together all covers 'c'. he shall next open the covers 'c' and scrutinise the ballot papers in the manner hereinafter provided.' if the result of the scrutiny be that the cover 'd' is not duly signed or the signature on the cover is not duly attested or if the cover 'd' is not 'duly sealed' the ballot paper has to be rejected. the controversy between the parties centres around the true meaning and scope of the words 'duly sealed' appearing in this clause. it appears that out of 1984 postal ballots received 235 were rejected.....
Judgment:

Gulab Chand Gupta, J.

1. The petitioner is a Registered Graduate of respondent No. 1 University and was a candidate for election as a representative of Registered Graduates of the University to the Court constituted under Section 20 of the M.P. Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred to as 'the Act).

The petitioner complains that 611 postal ballots were illegally and unjustifiably rejected-resulting in his defeat in the efection. The rejection of such a large number of ballot papers has been done according to the decision of respondent No. 2 on 20th March, 1984 (Annexure 'E') which according to the petitioner is illegal. The petitioner has accordingly approached this Court by filing this writ petition under Article 226 of the Constitution praying for a writ of certiorari for quashing the aforesaid order of the ; respondent No. 2 and also for a direction to the respondent No. 3 to re-count the rejected votes in accordance with law.

2. The facts of this case are similar to the facts of Misc. Petition No. 2747 of 84 and hence both the petitions have been heard together. Since the question of law involved in both these petitions are the same, the said petition is also being disposed of by this order.

3. The respondent University is admittedly governed by the Act. Section 19 of the Act provides for the authorities of the University and the Court is one of them. Section 20 of the Act provides for constitution of the Court and for the said purpose divides its members into 5 groups named as 'A' 'B', 'C, 'D' and 'E'. Representatives of Registered Graduates admittedly, fall in Clause (xix) of group 'C' under which they are entitled to elect 15 representatives from among themselves. Election of representatives of the Registered Graduates is regulated by provisions of statute 23 made under the provisions of the Act. This statute provides for voting in person and voting by post. We are, however, concerned with only voting by post in these two petitions and hence only these provisions need be noticed. Clause 17 of this statute provides for method of casting vote by postal ballot and indicates how an elector shall mark his preferences. Clause 18 provides that each elector shall be sent by registered post one ballot paper in form 'B' and 2 covers in forms 'C and 'D'. It also provides that these ballot papers shall bear the signature of the Registrar. The elector is required to record his ballot in accordance with the provision of Clause 17 on this ballot paper and put the same in the cover 'C' which should be sealed and placed in the cover 'D'. The cover 'D' is also required to be sealed by the elector and is required to bear the nameand registration number of the elector. Clause19 of the Rule being relevant is reproducedfor ready reference :

'After recording his vote on the ballot paper, the elector shall place it in the cover 'C and then seal the cover and place it in the cover 'D' and seal the later cover. Each cover 'D' shall bear the name and registration number of elector.'

After these ballot papers are received by the Returning Officer, they are required to be ., scrutinized under Clause 37 of this statute which reads as under:

'The Returning Officer shall first open the box containing the postal ballot papers received in time. He shall then examine the cover 'D' and shall reject the ballot papers : --

(a) if the cover 'D' is not duly signed by a person authorised to vote at the election;

(b) if the signature on the cover is not duly attested or if the cover 'D' is not duly sealed.

The cover 'D' rejected under this paragraph shall not be opened but kept in a separate parcel. He shall then remove the remaining cover 'D' and place together all covers 'C'. he shall next open the covers 'C' and scrutinise the ballot papers in the manner hereinafter provided.'

If the result of the scrutiny be that the cover 'D' is not duly signed or the signature on the cover is not duly attested or if the cover 'D' is not 'duly sealed' the ballot paper has to be rejected. The controversy between the parties centres around the true meaning and scope of the words 'duly sealed' appearing in this clause. It appears that out of 1984 postal ballots received 235 were rejected because cover 'D' was not 'duly sealed'. The dispute about the rejection of these ballot papers is the subject matter of the present writ petition. Then 312 ballot papers were rejected because according to the Returning Officer cover 'C' was not . 'duly sealed'. Rejection of these ballot papers is the subject matter of M.P. No. 2747 of 84. Clause 55 of this statute provides for interpretation of any provision of the statute by the Vice-Chancellor for decision. It appears that since there was a dispute between the petitioner and the Returning Officer about the true meaning and interpretation of the words 'duly sealed', appearing in Clause 37,the matter was referred to respondent No. 2 for his decision. The said respondent considered respective submissions of the parties and decided the same by the impugned order dated 20-3-84 (Annexure 'E') by holding that the words 'duly sealed' mean that it should be so sealed that the envelope could not be opened without breaking the seal. The petitioner felt aggrieved by the order and had rushed to this Court for the authoritative decision of the controversy without resorting to the provision of election petition under Clause 53 of this statute. The petitioner in Misc. Petition No. 2747 of 1984 has, however, preferred an election petition also which remains pending, presumably awaiting the decision of this Court.

4. In order to statisfy our curiosity we required the learned counsel for the respondents 1, 2 and 3 to produce some of the envelopes of both the categories for our inspection and they were accordingly produced. On a perusal of these envelopes it is apparent that none of them were sealed either on the middle or on the bottom though they were sealed on the top flap of the envelopes. A reading of various endorsements on these envelopes also indicated that though the voters belonged to Lalgaon, District Rewa most of these envelopes were posted from Rewa and not from Lalgaon. Though these envelopes are said to have been sealed by sealing wax, the sealing wax did not indicate any impression of the seal except in few cases indicating mark of 'Shukla'. On the basis of these facts it is the case of the respondents in their return that these envelopes were neither sealed nor sent by the real elector but were sealed by some Shukla at Rewa who also despatched them from Rewa.

5. Before considering the meaning and purpose of Clause 37 we may ascertain the object and purpose of the provision. Fortunately, for us there is no dispute between the parties that election has to be conducted in a manner which preserves and protects the secrecy of the ballot and avoids tampering with the ballot. Representation of registered graduates in an important functionary of a university really represents its democratic set-up and is in line with our current political thinking of participative democracy. That elections are the means of exercising sovereignrights by the people is not in dispute and indeed cannot be in dispute. In this context, the necessity of securing an impartial exercise of voting right becomes important. That is perhaps the reason why all our laws dealing with elections aim at securing free and independent exercise of voting rights by means of secret ballot. Under the circumstances, the whole purpose of statute 23 should be to secure free and independent exercise of right of franchise by the voters. Every provision of the statute must therefore be read and interpreted with a view to achieve these objects. It is the recognized rule of interpretation of statute that expression used therein should ordinarily be understood in a sense in which they best harmonize the object of the statute and which effectuate the object of the legislature. Deputy Custodian v. Official Receiver, AIR 1965 SC 951 at p. 956 New India Sugar Mills v. Commr. of Sales Tax, AIR 1963 SC 1207 at p. 1213 and Motor Owners' Insurance Co. Ltd. v. J.K. Modi, AIR 1981 SC 2059 at p. 2065.

6. We may now examine the true meaning of the words 'duly sealed' as appearing in Clause 37 of the Statute. This phrase has not been defined anywhere in the Act or the statute though the word 'sealed' has been defined in Clause 2 (11) of the statute as meaning 'sealed with sealing wax.' If the phrase has to be understood in the context of this definition it would mean 'duly sealed with sealing wax.' The word 'duly' is used as an adjective which according to the Chambers Dictionary means 'properly', 'fitly'. The Random House Dictionary defines the word 'duly' as 'in a proper or fitting manner.' That is how this word has also been understood by law Courts. In State of Orissa v. Kaushalya Dei, AIR 1965 Ori 38 the court interpreted the word 'duly' appearing in Section 510 of the Code of Criminal Procedure to mean 'properly.' The Punjab High Court in New India Assurance Co. v. Punjab Roadways, Ambala, AIR 1964 Punj 235 while interpreting the words 'duly authorised agent' appearing in Section 110-A (1)(C) of the Motor Vehicles Act, 1939 held that it means persons not only expressly Authorised but also persons having implied authority. The Supreme Court in Mohamed Kamgarh Shah v. Jagdish Chandra AIR 1960 SC 953 while considering the words 'duly authorised' in explanation II to Section 19 ofthe Limitation Act, 1908 read this word in a broader sense and held that it would include duly authorised either by the action of the party indebted or by force of law or order of the Court. Apparently, therefore, the word 'duly' has not been interpreted in any limited sense or manner but has been given a wider meaning so as to bring out the real intention of the provision. Considered in this context, the phrase 'duly sealed' would mean either 'properly sealed with sealing wax' or 'sealed with sealing wax in a proper or fitting manner.' The word 'proper' means 'strictly', 'appropriately' or 'sealed with the sealing wax in an appropriate manner.' The word 'seal', according to the Random House Dictionary means, 'a piece of wax or similar adhesive substance so attached to an envelope, folded documents, etc., that it must be broken when the object is opened, ensuring that the contents have not been tampered with or altered.' The word 'seal' when used as a noun means 'an embossed emblem, figure, symbol word, letter, etc., used as attestation or evidence of authenticity.' If these meanings of the word 'seal' is superimposed on the phrase under consideration, it would mean'properly embossed with an emblem,evidencing authenticity, and so secured withwax that its content could not be tamperedwith or altered, without breaking it In other words 'authenticity' and 'secrecy' are the necessary ingredients of the words 'duly sealed'. If this be the correct understanding, the statute intends to secure that (i) the cover containing the vote must be authentic i.e. by the real voter entitled to cast the votes, (ii) it must be so secured that it could not be tampered with or altered without breaking the seal, and (iii) it should bear the stamp so that its 'authenticity' could be scrutinised. The scrutiny in the said context must show that (i) the cover is real and authentic, (ii) bears an embossed emblem or letter evidencing authenticity, and (iii) is so secure by 'sealing wax' that its contents cannot be tampered with or altered, except without breaking the seal. This meaning is not only in line with dictionary meaning of the words but effectuates the purpose of the provision in the statute. This meaning is therefore the real meaning of the provision and should serve as 'guideline' to the Returning Officer while scrutinizing postal ballots.

7. Clause 37 of the statute read in the context of aforesaid analysis would oblige the Returning Officer to scrutinize covers containing ballot papers with a view to as --certain : (1) if it bears seal and if it has been secured with a sealing wax, (2) if the sealing wax is sealed, that is, embossed with an emblem, letter, figure, etc., indicating that the cover and the seal are authentic and (3) if the envelope is secured by the aforesaid sealing process in such a manner that its contents cannot be tampered with except without breaking the seal. If the result of the aforesaid scrutiny be to create doubt about any of the aforesaid in the mind of the Returning Officer he 'shall' reject the ballot paper. The use of the word 'shall' in the aforesaid context only indicates the intention of the framers of the statute to ensure purity of election process. A purity of election process includes fair and impartial exercise of voting right by the voter and the secrecy of the ballot. Under the circumstances, it will be within the authority of the Returning Officer to not only examine the seals but to examine the same in such a manner as to be satisfied that the cover contains the vote which has been actually cast by the real voter and that the said vote has not been tampered with or altered in any manner whatsoever. In this process, whether the envelope bears 3, 5 or more seals would not be very material though normally 3 seals i.e. one at each of the two ends and third on the middle of envelope may suffice but in certain conceivable cases even less than 3 or more than 3 may be required. Indeed, the approach adopted by the Returning Officer in such cases should be pragmatic and intended to secure the object of the provision. Similarly, seal by themselves would not be sufficient. It should 'be the obligation of the Returning Officer to examine whether seals ensure authenticity of the vote. The opinion given by the respondent Vice-Chancellor about the true meaning and interpretation of the words 'duly sealed' in Clause 37 of the statute, when tested on the aforesaid touchstone does not bring out the full meaning and purpose of the provision. We must however hasten to add that whatever has been held by the Vice-Chancellor is correct but he should not have, according to us, stopped at that. He should have also held that the process of sealing must ensure authenticity which the respondent Vice-Chancellor had not done.

8. The submission of the learned counselfor the petitioner, however, is that the aforesaidmeaning is too wide and would create practicaldifficulties on the part of the voters to exercisetheir voting rights. We are, however, unableto agree with the learned counsel. It is ourfirm opinion that if a voter wishes to exercisehis franchise he is not only to record his voteon the ballot paper in accordance with clause17 but has also to place the ballot paper in thecover and then seal the said cover. The lawfurther requires him to place these sealedcovers in another cover and seal this coveralso. The latter cover is required to bear thename and registered number of the electorand has to be attested by an attesting officer.This is the internment of Clauses 19 and 20 ofthe statute read together. This intentment canonly be achieved if the real voter performsthese exercises himself. It may be somewhattedious but exercise of an important right likeright to vote has to be performed, if at all inthis very manner. It would not be correct foran elector to hand over his ballot paper blankto some one to perform the rest of the exercisesby him. It would also be against the intentionof the framers of the statute to permit anycandidate or agent, friends or admirers tocollect votes from the voters in their favourand then seal and send the cover to theRegistrar. In such a situation the envelopemay be sealed correctly but the seals wouldnot be, evidencing authenticity. It is hotunthinkable that in an election like the presentone some influential candidate may try toobtain ballot papers from the electors andmark their votes in his favour and there afterget the envelopes sealed and secured in amanner as to satisfy the requirement of theletter of the law. In such a process the letter ofthe law may be satisfied but the object of thesame would be defeated. On the contrary, theview taken by us would ensure giving effect tonot only the letter of the law but also the spiritbehind it. Under the circumstances, we haveno hesitation in rejecting the submission ofthe learned counsel.

9. If the facts of the present case are examined in the context of the aforesaid law it would be difficult to, find any defeat in the decision of the Returning Officer or Vice-Chancellor. It is not in dispute that the covers did not have seals at places so as to makeopening of the envelope impossible. Indeed, the cover presented to us for our inspection indicated only 3 sealing wax marks on the top end of the same and nothing on the middle and the bottom end. In the absence of the seals on the middle and bottom ends, these covers could be opened and the contents could be tampefed with or changed. In such a situation actual tampering is not of any consequence. Even if no tampering has taken place, the conclusion has to be that covers were not duly sealed In such a situation there is no option left with the Returning Officer but to reject the ballot papers. It must consequently be held that covers 'C and 'D' were properly and correctly rejected by the Returning Officer. In this view of the matter Misc. Petition No. 829 of 1984 must fail and be dismissed.

10. As far as Misc. Petition No. 2747 of 84 is concerned the same must also be rejected on the aforesaid conclusion. We have, however, noted that an election petition under Clause 53 of the statute has been filed by the said writ petitioner and is pending consideration. It would therefore be within the jurisdiction of the authority hearing the said writ petition to examine each of the rejected covers to ascertain, whether it was 'duly sealed', in the context of the meaning and purpose of Clause 37 of the statute, as clarified above and reach his own conclusions.

11. In view of the discussion aforesaid, both the writ petitions fail and are dismissed but without any order as to costs. The outstanding amount of security deposit, if any, shall be refunded to the petitioners.

B.C. Varma, J.

12. I have had the advantage of going through the order proposed by learned brother Gupta, J. Although I agree with the ultimate conclusion that the petition must be dismissed. I would like to say that an unduly extended meaning has been assigned to the term 'duly sealed'.

13. All the necessary facts have been stated by brother Gupta, J. in his order. I need not, therefore, repeat the same. The only question which falls for consideration in this case is the meaning to be attributed to the words 'duly sealed' in the context in which it is used in Sub-clause (b) of Clause 37 of Statute 23 whichgoverns the election of representatives of the registered graduates on the Council of the University. The question has presented some difficulty only because while word 'seal' is defined in Clause 2(xi) of the Statute to mean 'sealed with sealing wax', the expression 'duly sealed' has not been so defined.

14. As the object of sealing the envelope in the instant case is to keep the contents of the envelope, viz., ballot secured and prevent the same from being tampered with or altered without breaking the seal, the attribute of the word 'sealed' meaning 'sealed with sealing wax' should be considered with a view to achieve this objective. In my opinion, in that reference it would only mean 'closing or securing with sealing wax'. Thus, where one says 'jars were sealed with paraffin', it would only mean that the jars were closed or secured or fastened with paraffin. Sealing does not have to do anything with the authenticity of vote. The purpose of sealing the envelope here is not to assign authenticity to the ballot in the sense in which a document receives authenticity only when a particular seal is put on it. When we say a document should be sealed by some authority or it should bear the seal of particular authority, it means that without such seal the document lacks authenticity. In the instant case, there is no question of giving any authenticity to the ballot by putting any seal on it. What is to be sealed is the envelope containing the ballot. Sealing the envelope with wax is not for the purpose of giving any authenticity to the ballot contained in it. There is no .provision in the Statute requiring sealing of the ballot paper by the candidate, since what is required to be sealed with the wax is only the envelope. It may also appear from a reading of Sub-clause (b) of Clause 37 that the authenticity is required only in respect of the signature of the voter contained over the envelope. It is the requirement of Sub-clause (b) that the signature alone has to be duly attested and absence of such due attestation of the signature shall result in rejection of the ballot paper. A due attestation will make the signature on the cover authentic. Absence of, such attestation of such signature appearing oh the cover will leave the cover unauthentic. Same, however, is not true about the seal to be affixed on that cover, There the requirement is of its being duly sealed and nothing more. That being so, it is clear that what is requiredto be authenticated is the signature on the cover but not the seal. I have earlier indicated that the purpose of sealing the envelope is only to prevent violation of the secrecy of the ballot. I am of the opinion that the sealing is not for the purpose of attributing any authenticity to the ballot To my mind keeping in view the context, sealing of the envelope with wax would only mean putting seal upon the envelope with a view to maintain the secrecy of the ballot without breaking the seal.

15. In view of the aforesaid purpose of sealing the envelope, a ballot paper can only be rejected if either the envelope is not sealed or that it is sealed in a fashion that the secrecy of the ballot could be violated even without breaking the seal. It will therefore, be difficult and indeed not proper to require any minimum number of seals to be put on the envelope. May be that even five or six or ten seals may not secure the purpose in some case while in the other even one or two seals may suffice. Whether a seal or seals affixed to an envelope serve this purpose would depend upon the examination of the particular envelope. Although envelopes were produced before us, we did not examine all of them but only tested a few with a view to only satisfy our curiosity. It will, therefore, be not possible to return any definite opinion as to the validity of action of the Returning Officer in rejecting the good number of ballot papers as he has done in the present case. The matter can well be gone into only in an election petition provided under Clause 53 of the Statute. Indeed, the petitioner in M.P. No. 2747 of 1984, has filed an election petition challenging the election of persons as representatives of registered graduates. There alone the validity of a particular vote for the ballot having not been kept in 'duly sealed envelope' can be scrutinised.

16. For these reasons, I would refrain from passing judgment or recording any opinion as to the correctness or otherwise of the action in rejecting any particular ballot paper as has been done by the Returning Officer in the present case.

17. The word 'duly' means 'properly; in a fitting manner'. However, the real sense in which this term is used should be ascertainedonly in the context in which it appears. Thus, when we say that a person was 'duly thanked', it would mean that he was deservedly or correctly or appropriately thanked. When we say that the witness 'duly arrived', it will mean that he punctually arrived or that he arrived at the proper time. In relation to extending authority to any other person, the term would mean not only an express authority but may also include implied authority. See -- New India 'Assurance Co. v. Punjab Roadways, Ambala, AIR 1964 Punj 235. The same expression may have a somewhat different colour when used in different statutes. Thus, the term 'duly authorised' used in Section 110-A (l)(c) of the Motor Vehicles Act, 1939 was held to include implied authority in New India Assurance Co.'s case (supra). Used in Explanation II to Section 19 of the Limitation Act, 1908, it signifies a broader sphere to include authorised not only by the action of the parties indebted but also by force of law and order of the Court. In the present context, it would mean that the device of closing the envelope by, affixing wax to it is so thorough and appropriate that the envelope cannot be opened and its contents do not become accessible except when the wax is broken and. the envelope is opened. If the seals on the envelopes withstand this test, it has to be held that the envelopes are 'duly sealed'. Therebeyond I am not prepared to assign any further attribute to this term 'duly sealed'. Since that alone is the requirement of law, i.e., Clause 37 (a) and (b) of the statute, the vote has to be held as duly cast if the ballot paper is put in the envelope and is sealed as aforesaid.

18. May be that in such elections the contesting candidates are able to persuade a particular voter to hand over a ballot paper to a particular candidate who may, in that event, use that ballot paper in the manner he may like. This certainly is not a very commendable act or practice. However, it is the matter between the voter and the candidate. The Returning Officer is only concerned with sealing that the vote is cast strictly in the manner required by the Statute and no more. If he finds that the letter of the law in thematter of casting the vote is complied with, he has no option but to accept the vote as validlycast and cannot reject it.

19. In the present case, the petitioner instead of filing an election petition, has chosento invoke the jurisdiction of the. Vice Chancellor under Clause 55 of Statute 23 and he was required to interpret the term 'duly sealed'. The Vice-Chancellor properly interpreted the term and has, therefore, turned down the petitioner's request for re-examination of the rejected ballot papers and to hold those votes validly cast. I do not see any infirmity in the order of the Vice-Chancellor (Annexure-E). I would, therefore, dismiss the petition.

20. Before parting, I would like to mention that in these proceedings, it is difficult and if I may say so, not desirable, to plunge into scrutinizing each and every envelope to find out if it has been duly sealed. This can well be done only in a duly constituted election, petition as provided in Clause 53.

21. The petition is, accordingly, dismissed. There shall be no order as to costs. The security amount be refunded to the petitioner.


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