1. The judgment in this revision shall also dispose of Civil Revision No. 159 of 1961.
2. This is a revision under Section 20-A (5) of the Central Provinces and Berar Municipalities Act, 1922 (hereinafter called 'the Act') against the order of the First Civil Judge, Class I, Bilaspur, dated 6-2-19S1, setting aside the election of the applicant to the office of President of the Municipal Committee, Bilaspur.
3. On 8-8-1959, the Collector, under Rule 20(1) of the rules framed under Section 18 (5) of the Act (hereinafter called 'the Polling Rules'), convened a meeting of the 24 elected and six selected members of the Municipal committee for the election of a president under the Chairmanship of the Deputy Collector, Shri K.K. Dwivedi. The applicant and the non-applicant Satya Prakash were duly nominated; and in the ensuing election which was held by ballot, the Chairman declared that there was a tie, the candidates having secured 15 votes each, and that he would proceed to decide the election as between them by lot. The method selected was to write the names of the candidates on two pieces of papers, mix them and put them in a cap and then to ask a young boy to pick out one of the two such papers with his eyes closed. The lots having been thus drawn, the tie was resolved in favour of the applicant who was declared duly elected and whose name was thereafter duly notified by the Collector under Section 20 of the Act in Madhya Pradesh Gazette.
4. On 10-9-1959, the non-applicant Satya Prakash filed an election petition in the Court of the First Additional District Judge, Bilaspur, by whose direction the requisite security was also deposited in the Civil Court Deposits. As the matter fell within the jurisdiction of the Court of First Civil Judge, Class 1, Bilaspur, under item No. 11 of the new distribution memo, the Additional District Judge returned the petition to the non-applicant for presentation to the proper Court. It was on that very date duly presented in the Court of the First Civil Judge, Class I, Bilaspur, who took note of the security already deposited by recording in the order-sheet that the security of Rs. 250/- had been deposited in the Civil Court Deposits and further ordered' that the case be registered snd notices be issued to the applicant to show cause against the petition.
5. The election petition alleged the following illegalities and irregularities, viz.,--
(1) that the secrecy of the ballot had been violated;
(2) that the Collector had unduly interfered with the proceedings of the meeting convened for the election of President; and
(3) that the procedure adopted for drawing lots was improper and had prejudiced the case of the petitioner;
and contended that the aforesaid illegalities and irregularities had materially affected the result of the election. It was also contended that there being a tie, the case fell within the provisions of Section 18 (2) of the Act necessitating the nomination of a person as President by the State Government, in the result, it was prayed:
(1) that the election of Shri J.P. Verma (the applicant), the returned candidate, be set aside;
(2) the petitioner Satya Prakash (non-applicant 1) be declared elected; or
(3) that it be held that action under Section 18(2) of the Act was called for as the Committee had failed to elect a president within a reasonable time.
6. The applicant joined issue; but the First Civil judge, Class I, having held in favour of the non-applicant Satya Prakash on all the points, set aside the election of the applicant with costs and declared that a vacancy in the office of President had occurred.
7. Both the parties have come up in revision against the aforesaid order -- the applicant contending that his election had been wrongly set aside; while the non-applicant Satya Prakash contending that, instead of declaring that a vacancy had occurred, he should have been declared elected. The revision of non-applicant Satya Prakash is numbered as Civil Revision No. 159 of 1961.
8. At the outset, the learned counsel for the applicant contended that the filing of the election petition in the Court of the First Civil judge, Class I, Bilaspur, was in contravention of Rule 4 of the Rules framed under Section 176 (2) (i) of the Act as at the time of the presentation of the petition in the Court of the First Civil Judge, Class I the petitioner did not deposit with the Judge a sum of Rs. 250/- as security for the costs of the petition, and that consequently the election petition deserved to be dismissed summarily. In my opinion, there is no substance in this contention.
9. When the petition was filed in the Court of the Additional District Judge, Shri Yogeshwar Prasad on 10-9-1959, it appears that the petitioner must have offered to deposit Rs. 250/- as security for the costs of the petition because I have on record an 'order' of the Additional District Judge on a piece of paper directing the Naib Nazir to receive payment of Rs. 250/- towards the security for costs of the petition from the depositor Satya Prakash, the petitioner. There is also an endorsement on the said 'order' by the Naib Nazir that Rs. 250/- had been deposited in the Civil Court Deposit No. 652, dated 10-9-1959; and the fact that the amount was in fact deposited is further evidenced by receipt No. 100, book No. 3958, issued by the Naib Nazir. When the election petition returned by the learned Additional District Judge for presentation to the proper Court had been filed in the Court of the First Civil Judge, Class I, the aforesaid 'order' relating to the receipt of Rs. 250/- in the Civil Court Deposits was also sent to the Court of the Civil Judge, because we find an endorsement at the back of the 'order' to the effect that-
'Petition returned to the petitioner for presentation to the proper Court, i.e., the Court of First Civil Judge, Class I, Bilaspur. Hence the acknowledgment is herewith sent for filing with the connected case.'
Receipt No. 100, dated 10-9-1959, aforesaid in respect of the deposit was also taken on record of this case; and the Court of the First Civil Judge, Class I, Bilaspur, where the election petition was ultimately tried, also took note of the deposit. Its order-sheet, dated 10-9-1959, also mentions the fact of this deposit having been made. There was thus a clear appropriation of this amount by the Judge who tried the case, towards the security for the costs of the petition. Under the circumstances, it cannot be said that at the time of presentation of the petition the petitioner had not deposited with the Judge a sum of Rs. 250/-as security for costs of the petition within the meaning of Rule 4 of the Municipal Election Petition Rules. In any case, there was substantial compliance with Rule 4 aforesaid as the purpose for which the rule had been framed had been fully satisfied; and, in my opinion, the rule did not require strict compliance. No grievance can, therefore, be made by the applicant on this account in this revision petition. It may also be mentioned here that no such objection was ever raised in the Trial Court, nor is there-any specific ground relating to this objection in the memorandum of revision. The objection is, therefore, rejected.
10. Considering the revision on merits, the first question that arises for determination is whether in the election of the applicant, the secrecy of the ballot was violated. The Trial Court has found in favour of the non-applicant Satya Prakash on this point and the circumstances on the basis of which it has so found are as follows:
(i) that the ballot box was neither locked nor sealed;
(ii) that one of the ballot papers had a distinguishing mark; and
(iii) that the permitted procedure of putting the ballot papers in the ballot box by opening its lid tended to reveal the identify of the voters.
11. It is an admitted fact that the ballot box was neither locked nor sealed; but no provision of law was pointed out of me which required this to be done. Even apart from the absence of such a provision in the Act or the Rules, I see no justification for the necessity of a lock or seal under the circumstances of the case. The ballot papers had to be marked In the secrecy of an enclosed space by the voters, who after so marking them to come out of the space after folding them, so that the mark given by them to any candidate was not visible. They had then to be dropped in the ballot box in the presence of the voters and the candidates as also the Chairman of the meeting, who had ultimately to scrutinize them then and there in the presence of all at the meeting itself. The non-locking of the box or its non-sealing did not thus affect the secrecy of the ballot, and this circumstance would have no bearing on the point.
12. It is then contended that one of the voting paper (Ex. 'P-l-A) had two dotted lines below the name of the candidates written in Urdu script in the margin, while all the other voting papers had only one such line. The learned Judge has characterised this as an unhappy event which could give rise to some doubt and therefore objectionable; but, in my opinion, the objection was puerile and only showed to what absured lengths the criticism could go where a person is out to find fault with the election process.
13. The Chairman of the meeting, Shri Dwivedi (R.W. 1) has explained why names in Urdu were written on the ballot papers. He says that while he was explaining to the voters how the votes had to be cast, someone informed him that one of the voters did not know either Hindi or English, that he knew Urdu only, and that consequently he would not be able to read the names of the candidates on the ballot papers as they were typed in Hindi only. He, therefore directed that the names of the candidates be written on the ballot papers in Urdu also. For this purpose, a few Urdu knowing officials, including the Collector, were re-quested by him to do the necessary writing; and these persons wrote the names of the candidates on the ballot papers in Urdu also. Now, it appears that when names in Urdu were written in the margin of the ballot papers by several persons, the writers continued the dotted lines occurring below the names of the candidates to the margin also. These lines were not always drawn uniform by the writers; some were straight, some curved, some dotted and some others continuous, so that in one of the ballot papers viz., Ex. P-1-A, there are two dotted lines. In my opinion, that was purely fortuitous. There does not appear to be any design in making a double dotted line on one of the ballot pepers, nor is there any evidence of any conspiracy for any sinister purpose on the part of the writers, the applicant and the officials conducting the election as was suggested during the course of the arguments in the Court below. In this Court no such argument regarding conspiracy was advanced; and, in my opinion, the suggestion that it (the double lining) was done deliberately with a purpose is too absurd to be taken seriously. If this suggestion were pursued to its logical conclusion, it could be shown that all the ballot papers had some peculiarity or the other which distinguished them from all others. This was because-
(a) the names in Hindi having been typed were not typed uniformly,
(b) the 'Urdu' names being in manuscript were ail different, one from the another; and
(c) the signature of the Chairman being in manuscript could not be, nor was, in fact identical in script, in all the ballot papers.
It would thus be seen that there was no suggestion that the double lining on the ballot paper (Ex. P-1-A) was done by a voter, much less that it was done with a view to make his identity known which alone could disqualify it as I shall presently show.
14. In my opinion, therefore, the occurrence of the dotted lines below the name of the non-applicant Satya Prakash in Ex. P-l-A was purely accidental and did not, nor could it, interfere with the secrecy of the ballot.
15. The third circumstance is equally devoid of substance. The contention is that by being permitted to put the ballot papers in the ballot box by opening its lid the secrecy of ballot was violated because it permitted the voters to guess for whom the vote had been cast by his predecessor in voting.
16. In the first place, it appears rather strange that a foolscap sheet of paper which was the size of the ballot papers in question could not be pushed in by the voters in the ballot box through a slit on its lid measuring 4.65' x 0.25'. Various suggestions were made by the learned counsel for the non-applicant Satya Prakash to account for this apparent incapacity of the voters to do what appears a matter of very simple intelligence and may usefully be posed to ascertain the intelligence quotient of a person of low intelligence. It was nonetheless very seriously contended that the Chairman had failed in his duty in not instructing the voters that they could put the ballot papers through the slit by folding them twice over; but to my mind it was not so much a question of putting a paper in the ballot box -- which, left to themselves, they were all intelligent enough to do -- as the question of exaggerating any and every deviation from the regular procedure as suggestive of an irregularity vitiating the election. Be that as it may, let us examine if the secrecy of the ballot had been violated by what was permitted to be done.
17. According to Shri Dwivedi (R.W. 1), the cross mark on the ballot papers was to be put In an enclosed booth by the voters, who had been further instructed to fold them before coming out of the booth for putting the paper intothe ballot box which was placed on a table in front of the Chairman. He had also instructed the voters to sofold the papers as to hide the cross mark indicating their preference. He further says that all the voters followedthese instructions, and there was no complaint on this account.
18. The Chairman, Shri Dwivedi (R.W. 1), then says-
^^,d nks lnL;ksa dk csYV isij Nn esa ls Mkyusesa rDyhQ gks jgh Fkh rks eSaus mu dks dgk fd
29. The first corollary of this principle is that if the procedure adopted for an election by ballot be consistent with giving the voter complete freedom for the exercise of his choice unhampered by circumstances which may intimidate or coerce him, the election is essentially by ballot and cannot be challenged as contrary to its principles. But, even granting that the procedure is faultless, if a vcter so conducts himself as to attempt to reveal his identity, we have no means of knowing whether the attempt was purposeful or accidental; and consequently, in order to preserve the purity of the election, the law says:
'If he does it purposely, he had done it perversely and done it in such a way as again to legitimately forfeit his vote.'
It would, however, be observed that, in these circumstances, the election is not necessarily avoided but the particular vote is forfeited.
30. The second corollary of the principle is that if, despite the system which gives freedom to vote to an elector and the specific provision of law which makes any voter who deliberately gives a due to his identity on his ballot paper forfeit his vote, any person either a voter or a candidate by surreptitious and illegal means comes to know how a particular vote has gone and divulges this secret to ethers, his act cannot and does not destroy the secrecy of the ballot. To hold otherwise would be to put the whole election machinery by ballot at the mercy of unscrupulous persons who to gain personal ends, may always make false claims of having known how a particular vote had gone. Besides, this knowledge by a person of how an elector had already voted neither concerns the system of secret ballot nor the freedom of vote of an individual elector and, in my opinion, cannot result in the election being anything but by secret ballot in the sense I have endeavoured to explain above.
31. It may also be noted that the secrecy of ballot, so far as the attempt by others to destroy it is concerned, is preserved by making it statutorily obligatory on others not to divulge to anyone any information obtained by them, which may disclose the identity of a voter with reference to any particular ballot paper, on pain of being convicted summarily to a fine or imprisonment for its breach: (Sections 53(3) and (6) of the British Representation of the People Act, 1949, Section 128 of our Representation of the People Act.) No such provision is to be found in the Act or the Rules; but even so, in my opinion, the conduct of Ansari (P.W. 1), R.P. Tiwari (P.W. 2) and Rama Shankar Tiwari (P.W. 3) in attempting to communicate to others information regarding the course of voting obtained by them surreptitiously cannot be anything but censurable as mischievous and by their such action which itself was not very commendable they cannot seek to penalise a person who is blameless in this regard and whose election they seek to set aside on this ground.
32. It has also to be remembered that even if any specific provision relating to secrecy of ballot had been contravened, that by itself would not have been enough unless the petitioner-non-applicant further established that the result of the election had been materially affected thereby. I fail to see how the knowledge of the witnesses (P.Ws. 1, 2 and 3) regarding the identity of the persons who had voted before them and to whom they had voted could influence the voters who had yet to come. There is neither any allegation nor proof that by this knowledge the voters were either intimidated or coerced so that they could not thereafter cast their votes freely. In Bolton case Ormerod v. Cross: (1874) 2 0' M and H. 138 a communication by a polling agent as to the course of the poll was held not to avoid the election.
33. The next contention is whether Shri N.S. Verma, the Collector, who was present at the meeting, illegally interfered with its proceedings, so that the election of the applicant was materially affected.
34. The findings of the learned Judge on this aspect of the case were as follows:
(1) That Shri N.S. Verma, the Collector, was presentat the meeting on the dais but that his presenceper se was not objectionable.
(2) That he (the Collector, Shri N.S. Verma) took part in the proceedings relating to the election in question in the following manner-
(a) On the query of Laxman Singh that he could not slip the ballot paper through the slit >n the lid of the ballot box, it was Shri N.S. Verma, the Collector, who told him to drop his ballot paper into the box by lifting its lid.
(b) After the voting was completed, it was Shri Verma who first collected the votes from the ballot box and handed them over to Shri Alvi who sorted them out and, after counting them, returned them to Shri Verma, who also counted them and then handed them over to Shri Dwivedi, the Chairman of the meeting.
(c) Shri Verma also took part in the drawing of lots in that it was he who, after the names of the candidates had been written on two chits by the Chairman, folded them in three folds, mixed them and made a suggestion for the calling of a boy standing nearby to pick out one of the chits, with his eyes closed.
(3) That his so taking part in the election proceedings amounted to illegal interference, which materially affected the working of the meeting, because, as Shri Dwivedi, the Chairman, was a subordinate of Shri Verma, the Collector, he must have felt himself handicapped in the exercise ofhis discretion in the conduct of the election in question. This was evidenced, according to thelearned Judge, by the following facts-
(a) In the matter of scrutinizing the ballot papers, one of the ballot papers, which contained a double dotted line and which left to himself might have been rejected by him, was not rejected by him
(b) On the complaint of Shri Laxman Singh and others-he (Shri Dwivedi) did not care to find out for himself why the ballot paper could not be slipped in through the slit in the lid of the ballet box.
(c) He did not fold and mix the chits on which the names of the two candidates had been written byhim but let the Collector do it when it should have been done by himself as the Chairman.
(d) He omitted to intimate the candidates or their agents that they might see the chits before the lots were drawn, if they were so inclined.
(4) That this illegal interference by the Collector had materially affected the result of the election.
35. On the first point I agree with the learned Judge that no objection could be taken to the presence of the Collector at the meeting, nor could any objection be taken to his presence on the dais as long as actual conduct of the meeting was done by the Chairman, Shri Dwivedi.
36. On the second point, in the first place, 1 do not feel convinced that it was only on the directions of Shri Verma (the Collector) that the ballot papers were slipped by some of the voters into the ballot box by opening its lid because, according to Shri Dwivedi (R.W. 1), the Chairman, it was he who had directed some of the voters who were finding difficulty in slipping their ballot papers through the slit to put them into the ballot box by opening its lid : (see paragraphs 12 and 65 of his deposition). It is true that the petitioner's witnesses say that the directions were given by Shri Verma; but in my opinion the evidence of the Chairman, being disinterested and independent, has to be preferred to that of the petitioner's witnesses whose interest in the petitioner is very obvious. There is also no adequate reason to disbelieve the Chairman's evidence en the point, nor has the Trial Court given any reasons for discarding it. Secondly, even if the petitioner's witnesses be believed, it does not make any material difference to the case. The conduct of the meeting was in the hands of the Chairman and consequently, even if on the suggestion of Shri Verma (the Collector) the votes were cast by some of the voters by opening the lid of the ballot box, and the procedure was not objected to by the Chairman, it should be deemed that he had acquiesced into it and made the directions of Shri Verma his own by such acquiescence. It cannot be said that by such acquiescence the Chairman had abdicated his effective control of the meeting in favour of Shri Verma. Thirdly, it is admitted by the parties that the Chairman could take help from others in all ministerial work that was needed to be done in connection with the said election. The collection of the votes by Shri Verma and their handing them over to Alvi and then returning them to the Chairman after they had been counted and sorted out by them could not be said to be anything but ministerial. The scrutiny of the ballot papers for the purpose of counting the valid votes from invalid ones obtained by each of the candidates was done by the Chairman: (see paragraph 13 of his deposition as R.W. 1), and it was he who announced the result of the poll. All the material work in connection with counting of the votes was thus done by the Chairman and the part of the Collector and Alvi in such 'counting' can be said to be nil. It is significant (hat neither then or ever was any objection taken by any one that he wanted to inspect the ballot papers or that he had been deprived of his right to do so. That there was any such irregularity in the matter of counting has also not been specifically pleaded in the election petition. Fourthly, in my opinion, the fact that the Collector, Shri Verma, folded and mixed the chits and then suggested the calling of a boy for picking out one of such chits cannot be sairi to be at all objectionable. It is not denied that the preparation of the two chits was done by the Chairman; that it was he who wrote cut the names of the two candidates on the two chits; that it was again he who mixed them and put them in a cap after they had been received from Shri Verma who had folded and mixed them; and that it was he who -- may be at the suggestion of Shri Verma (the Collector) -- called out the boy for drawing the lots by picking out a chit from out of the cap after closing his eyes. It is also to be remembered that after a chit had been drawn by the boy, it was the Chairman who received it and announced the final result of the poll. All the essential steps for the drawing of the lots were thus done by the Chairman; and even if Shri Verma (the Collector) was given the chits for the purpose of folding them and mixing them, I should say that that should remove any suspicion of partiality, if there was ever any such suspicion in anybody's mind, on the part of the Chairman. In my opinion, no objection can be taken to his drawing of the lots, which was quite fair and above-board. No doubt, it would have been better if he had shown the two chits written by him to the two candidates or their agents to satisfy them that the two chits related to two different persons; but then there was never any demand from the candidates or their agents to see the chits nor was any suggestion made in the petition or here that the Chairman had not acted 'bona fide' in the matter. The objection has been taken for the sake of an objection and has no merit.
37. On the third point, for the reasons given by me above, I am of opinion that there was no illegal interference by the Collector, Shri Verma, with the conduct of the meeting by its Chairman. I find no evidence of the Chairman having been handicapped in the exercise of his discretion in conducting the meeting in question. The Chair man had stated that he did not find any invalid voting paper and the learned counsel has not been able to establish that any of the voting papers required to be rejected. The only suggestion was that the voting paper (Ex. P-l-A), which contained double lining, may have been rejected by the Chairman, and it ought to be rejected now if not so rejected then. But, I see no merit in this suggestion. First, if the Chairman had rejected it, his rejection would have been illegal; and if, as the Trial Judge says, the Chairman had made a mistake in this regard, the mistake has resulted in an ultimate correct decision. Secondly, no provision of law nor any authority was pointed out to me which would invalidate the vote Ex. P-l-A. It is settled law that franchise is a very valuable right and that no voter should be deprived of his franchise except on the clearest proof of misconduct. There was nothing to show that the double lining was done by a voter or at his instance, much less that it was done with intent to make his indentity known. 1, therefore, see no justification for the rejection of the said vote (Ex. P-l-A). Similarly, the slipping in of the ballot papers by opening the lid of the ballot box was not objected to at the time of the poll, and I have found that it did not have any effect either on the secrecy of the voting or on the result of the election. There was no express provision of law which prohibited this procedure; and in the absence of any express prevision of law, the Chairman was free to conduct the election in the most reasonable manner he thought fit to act. I have also pointed out above that in permitting the chits to be folded and mixed by the Collector, Shri Verma, the Chairman had neither abdicated his function nor acted in an unreasonable or improper manner which could be taken exception of by anybody. Similarly, though it may have been better if the Chairman had intimated the candidates or their agents that they might see the chits, his failure to do so cannot be made much of under the circumstances of the case.
38. It is of crucial importance that under Rule 17 (c) of the Municipal Election Petition Rules the result of the election should have been materially affected by any improper receipt or refusal of a vote or by any non-compliance with the provisions of any of the rules framed under Sections 10(4), 17(1) and 18(5) of the Act. There has been no improper receipt or refusal of a vote nor has there been any non-compliance with the provisions of any of the rules framed under Sections 10 (4), 17 (1) and 18 (5) of the Act to warrant the setting aside of the applicant's election in question. The contention of the petitioner in this behalf, therefore, fails.
39. It was also contended that on the candidates obtaining equal number of votes the provisions of Sub-section (2) of Section 18 of the Act were attracted. 1 do not agree. That sub-section, as correctly pointed out by the Trial Judge, comes into operation when a Committee, within a reasonable time, fails to elect a president in accordance with Section 18, Sub-section (5) of Section 18 provides for rules to be made by the State Government for regulating the mode and time of election of the president. These rules provide for drawing of lots, in the eventuality of there being a tie, in such manner as the Chairman may determine. The election of the applicant has thus been strictly in accordance with the provisions of Section 18 and the occasion for the application of the provisions of sub-section (2) of that section did not arise. The objection is, therefore, without substance and is rejected.
40. No other question was argued before me in these revisions.
41. In the result, the revision petition of the applicant, Shri J.P. Verma (Civil Revision No. 97 of 1951) isallowed with costs here as well as in the Court of the First Civil Judge, Class I, Bilaspur, as against non-applicantNo. 1; while that of the petitioner Satya Prakash (Civil Revision No. 159 of 1961) is dismissed with costs. Thereshall be one set of costs. Counsel's fee Rs. 100/- if certified.