Judgment:
Sharad Manohar, J.
(Only part delivered at this stage)
1. The main question involved in the petition :---The question involved in this petition relates to the purpose of a tendered vote as contemplated by the Maharashtra Municipalities Act, 1965 (hereinafter, the Act).
2. Facts :---The facts are simple. Question relates to the election of Sangli Municipal Council and we are concerned with Ward No. 15 of the said Council's territory. The voting took place on 5th November, 1985. There were, in all, 2038 voters; the votes polled were 1,114. There were 8 votes which were admittedly invalid About one vote, there was some difficulty because one voter who went to exercise his franchise was informed that in his name some other person had already cast a vote. There is no dispute that voter satisfied the Returning Officer ---
(a) that the himself was the voter concerned;
(b) that the earlier person casting vote was not himself.
3. For the sake a of convenience, parties will be referred to hereinafter with reference to their first names. In the lower Court, the present respondent No. 1 Vasantrao was the petitioner and Ramchandra was respondent No. 1. They will, therefore, be referred to hereinafter as Vasantrao and Ramchandra, respectively. Mr. Vaze appears for Ramchandra who declared to have lost to Vasantrao .
4. Arguments for petitioner :---The submission made by Mr. Vaze before us was that the tendered vote is not a valid vote at all. According to him, the votes that had been nestting snugly in the ballot boxes at the time of the counting of the votes were the only valid votes. Since the tendered vote is, as per the specific requirement of the Act, kept out of the ballot-boxes, the same cannot be taken into account at the time of counting of votes at all, runs the argument. Plea is that the tendered vote has no part of play or function to perform, that it was an invalid note for all purposes, not worth even the paper upon which the mark of the vote was stampled, as it were. In the present case its inevitable exclusion results in an equally of votes and, hence decision of the question by lots was the only option, argues Mr. Vaze.
5. The relevant legal provisions :---Before referring to the reply given by Mr. Nadkarni, the learned Advocate appearing for Vasantrao, it will be useful making a brief reference to the relevant provisions of the Maharashtra Municipalities Act, 1965 (hereinafter, the Act) and of the Election Rules framed thereunder.
(a) We are concerned here only with the effect and legal result of the tendered vote. Reference to the tendered vote is to be found only in section 17(2)(m) of the Act. By that section the State Government is given power to make rules relating to 'the procedure to be followed in respect of challenged votes and tendered votes'. We do not find reference to the tendered votes in any other part of the Act as such. Coming to the Rules, the first relevant rule is Rule 40 which deals with 'tendered votes'. Since the Rule is of the crucial importance in this petition, it is set out hereinafter, verbatim :---
'40. Tendered votes :---(1) If a person representing himself to be a particular voter applies for a ballot paper after another person has already voted a such voter the shall on satisfactorily answering such questions relating to his identity as the Presiding Officer may ask, be entitled, subject to the following provisions of this rule, to mark a ballot paper (hereinafter in these rules referred to as a 'tendered ballot paper') in the same manner as any other voter).
(2) Every such person shall, before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form XII.
(3) A tendered ballot paper shall be the same as the other ballot papers used at the polling station, except that it shall be---
(a) serially the last in the bundle of ballot papers issued for use at the polling station; and
(b) endorsed on the back with the words 'tendered ballot paper' by the Presiding Officer in his own hand and signed by him.
(4) The voter, after making a tendered ballot paper in the polling compartment and folding it, shall instead of putting it into the ballot box, give it to the Presiding Officer, who shall place it in a cover specially kept for the purpose.'
(b) The next relevant rule is Rule 44, Clause (d) of said Rules provides that the Presiding Officer shall make separate packet / cover containing the tendered ballot papers and the list of tendered ballot papers.
(c) The next relevant Rule is Rule 54. Sub rule (1) of the same provides that 'Ballot papers which are not rejected under Rule 53, shall be taken for counting'. (Even Mr. Vaze did not go to the extent of contending that a tendered vote' was a 'rejected vote'. Hence, it follows as per sub-rule (1) that the tendered vote is also in the reckoning while counting takes place. But the proviso to sub-rule , which will be referred to presently goes some way to repulse this effect.
(d) sub rule (2) provides that the votes recorded in favour of each candidate be counted shall in the manner provided in the said sub-rule.
(e) Now comes the above-mentioned important proviso to sub rule (3). It stated that 'no cover containing tendered ballot papers shall be opened and no such ballot paper shall be counted.'
(f) It is the proviso which Mr. Vaze sought to commission into service very heavily.
(g) Proviso to section 21(10) (b) of the Act was also relied upon. It runs as follows :---
'Provided that ---(i) for the purpose of such commutation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it;
(ii) after such computation, if any equality of vote is found to exist between any candidates and the addition of one vote would entitle any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been recorded in favour of the candidate of candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine.'
(h) There is no provision in the Rules clarifying as to what is to happen to the tendered ballot papers and as to what its purpose or rule is. It is his omission in the Act and the rules that has given rise to the present controversy.
6. The further arguments for the petitioner---The arguments advanced by Mr. Vaze were that what are to be counted at the time of the counting are only valid ballot papers. Evidently, there can be no quarrel with this proposition. But, according to Mr. Vaze, the tendered ballot paper is not a valid ballot paper because.
(a) the tendered vote is just a vote . It is not a valid vote within the meaning of section 21(10) of the Act.
(b) There is a procedure prescribed by Rules, particularly Rules 37 to 54 providing as to which vote are to be taken into consideration for counting and procedure has been prescribed for the other aspect of the counting as well.
7. The authorities relied upon for the petitioner---In support of the above submissions, Mr. Vaze relied upon certain authorities and he also tried to distinguish the present case from the provisions obtaining in the Representation of the People Act. The first authority that was relied upon was : [1955]1SCR1104 Hari Vishnu v. Ahmad Ishaque. In that case, it was held that the result of the election has to be declared only on the basis of valid votes. He invited our attention to the Rules indicating What were the valid votes. According to him, a tendered vote is not regarded as a valid vote at all. He made a distinction between a vote and a valid vote. Submission was that this may be a vote but that it was not a valid vote because it was not to be taken into consideration.
A.I.R. 1965 SC 1824
'Rules 39, 44, 47, 56, 57, and 64 of the Conduct of Election Rules, 1961 : how that the elector casting his vote must insert the ballot paper into the ballot box. At the close of the polling the ballot papers contained in the ballot box are transmitted by the Presiding Officer to the Returning Officer in sealed covers or bags, the ballot papers taken out of the ballot box are finally scrutinised by the Returning Officer, those not rejected are counted as valid votes and the candidates to whom the largest number of valid votes has been given is declared elected by the Returning Officer. All these provisions indicate that in order to become a valid vote the ballot recording the vote must be inserted by the elector into the ballot box. In the circumstances, the Returning Officers rightly refused to count the 19 ballot papers as valid votes.
The argument was that, according to the Supreme Court only the votes which have gone into the ballot box can be considered to be valid votes and that these authorities read with the proviso to sub rule (3) of Rule 54 leave no room for doubt that a tendered vote does not qualify itself for being taken into account while counting the votes.
8. Question in fact fully covered by a Supreme Court judgement---The submission is unacceptable. We will presently point out that the Supreme Court was dealing with an entirely different set of facts while making the above mentioned observations. But the further point is that the question relating to the legal value and function of the tendered vote is in fact no longer res integra. In this connection, Mr. Nadkarni rightly relied upon the judgment of the Supreme Court : [1977]1SCR942 Wiltred D'souza v. Francis menino Jesus Ferrao, in which identical question had come up before the Supreme Court in the context of identical statutory provisions. In that case, the Returning Officer had found, after counting of votes, that the identical number of votes viz. 4656, were received both by the appellant and the respondent. The respondent applied for recounting upon which recount, he was found to have secured two votes more. The result was that he was declared by the Returning Officer to be elected. In appeal, the only question (relevant for our purpose) was whether the 10 tendered votes should be counted or not. According to the appellant, non-counting of such votes had materially affected the result of the election. There was some dispute as to in whose favour the tendered votes were given. Evidence was led but the evidence was found by the Judicial Commissioner to be unsatisfactory. That view of the Judicial Commissioner was not approved by the Supreme Court and the Supreme Court came to the conclusion that, as per the evidence, it was clear as to it whose favour the tendered votes had been cast. But further question arose as to what is the legal value of tendered votes. For considering this question, the Supreme Court was required to interpret Rules 42 and 66(6) of the Conduct of Election Rules framed under the Representation of the People Act. As per Rule 56(6) of these Rules, no cover containing the tendered ballot paper shall be opened at the time of the counting of votes and no such tendered ballot paper shall be opened at the time of the counting of votes and no such tendered ballot paper shall be counted. It can be readily seen that said Rule 56(6) of the Control of Election Rule is idential as proviso to Rule 54(3) of the Rule with which we are concerned. It can also be seen that all the provisions relating to the tendered votes to be found in the Conduct of Election Rules framed under the Representation of the People Act are identical as those obtaining in the Rules framed under the Maharashtra Municipalities Act. While construing said Rule 42 read with Rules 56(6) of the Conduct of Election Rules, the Supreme Court observed as follows :
'The Representation of the People Act, 1951, as well as the above Rules are silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the elections.'
'such tendered votes can be taken into account in proceeding to challenged the validity of the election of the returned candidate provided certain conditions are fulfilled.'
The conditions that have to be fulfilled before the tendered votes could be taken into account are laid down by the Supreme Court in paragraph 14 of its judgment stating that---
'A. Evidence would have to be led on the following two points :
(i) A person who cast the initial vote as a voter at a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number ;
(ii) It was such genuine voter who marked the tendered ballot paper.'
After being statisfied above the conditions the Supreme Court observed that the following consequences would ensue :(a) The Court would exclude the vote initially cast by the person other than the genuine voter from the number of voter of the candidates in whose favour it was cast ;
(b) The Court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duty marked.'
9. This Court's view---In our view, the argument that the tendered vote cannot be taken into consideration for any purpose whatsoever cannot be sustained at all, even independently of the Supreme Court Judgment. The contention that a vote is not a valid vote unless it has gone into the ballot box cannot be accepted even on first principles because, by such a process of reasoning the entire exercise of accepting the tendered vote, keeping it in a sealed packet and giving the opportunity to the real voter to vote by treating the vote as a tendered vote would be an exercise in futility. Mr. Vaze submitted that a tendered vote is a vote but is not a valid vote. The distinction, in our opinion, is without any substance. From the very nature of things, a vote would mean a valid vote. The fact that a vote is described as a valid vote does not mean that the absence of the word 'valid' being added to describe the vote would make the vote anything different from the concept of the valid vote. It is true that the valid votes have got to go into the ballot box, but the Converse in is not true that the votes which have not gone into the ballot box are valid votes. There is a provision for keeping even valid votes separately and there has got to exist some rational purpose behind this. The Courts must have face set against all the attempts to indulge in inanities. The learned advocates has been doing precisely this thing while arguing that the tendered vote has no purpose, no rationale or no part of function to perform at all. The Supreme Court has laid down the rule as to for what purpose these tendered votes are to be used and as to when these votes kept separately are to be taken into account. The Supreme Court has observed and held that they are to be taken into account only when their counting is going to effect the result of the election materially. In the case before the Supreme Court, the candidate had been declared elected only by two votes, whereas the number of tendered votes was 10. It was, therefore, inevitable that the result was bound to be affected, ex facie, by virtue of the exclusion or inclusion of the tendered votes.
10. : [1965]2SCR403 explained distinguished---The reliance on the judgment of the Supreme Court in the case of Shankar Babaji Sawant v. Shakharam Vithoba Salunkhe. : [1965]2SCR403 is in our opinion, not quite apposite. There the question was not as to what is the effect or purpose of the tendered vote. The Court was not required to consider as to whether a tendered vote, even though not inserted in the ballot box, would, all the same, be a valid vote or not. Entirely different set of facts existed and it was in that context that the Supreme Court had occasion to observe that the vote would not be valid unless it found the place in the ballot box. The Supreme Court was not intending to nullify the provisions relating to the tendered vote which find place both in the Representation of the People Act and the Maharashtra Municipalities Act.
10-A Provisions of the Act, insofar as they relate to elections of the Council, are statutes para materia with relevant provisions of the Representation of the People Act--- The argument that the Representation of the People Act and the Rules framed thereunder are not statutes para materia with the Maharashtra Municipalities Act is the statement of law which is to be stated to be rejected. We find no reason whatsoever to hold that they are not statutes para materia. It may be that the Representation of the People Act relate to the election to Parliament and the Legislative Assembly, whereas the Maharashtra Municipalies Act relates to the election of the Municipal Councils but the principal is the same. We find that even the provisions are the same.
Misconception re. tests of statutes para materia---An argument was advance by Mr. Vaze that, under the Bombay Village Panchayats Act, a specific reference is made, under section 12 thereof, to the Representation of the People Act and therefore, the Village Panchayats Act would be statute para materia with the Representation of the People Act but not the Maharashtra Municipalities Act because the Act made not even a reference to the Representation of the People Act. In our opinion, this is a distinction without any principle whatsoever section 12 of the Bombay Village Panchayats Act only states as to who would be the voters in the various wards of the village Panchayats and it provides that the electoral roll under the Representation of the People Act would also be the electoral roll for the purpose of election under the Maharashtra Municipalities Act. Both the Bombay Village Panchayats Act and the Maharashtra Municipalities Act are equally para materia with the Representation of the People Act so far as the process of election is concerned For considering whether the two statutes are para materia or not; what is required to be considered is the object of each of the Acts; not whether reference to the one is made in the other statute or not.
We are, therefore, of the opinion that the tendered vote has got to be considered having regard to the peculiar facts of this case which are fully stated above.
11. Petitioner's argument re-exclusion of the bogus vote accepted.
However, we cannot accept the connection of the Mr. Nadkarni that the statement of the Supreme Court to the effect that the earlier vote given by a bogus voter was to be excluded means that it was to be ignored. It we turn to paragraph 14 of the Supreme Court Judgment, we can clearly find that what the Court meant by excluding the bogus vote was to find out in the first instance, as to in whose favour the bogus vote was cast. Then, as per the Supreme Court that vote has to be deducted from the number of votes received by the candidate in whose favour the bogus vote was cast. Thereafter the number of votes polled in favour of the person in whose favour the tendered votes were cast will have to be augmented by the number of such tendered votes and the final calculation will have to be made on that basis. This is what the Supreme Court has laid down. By 'ignoring' such votes. some candidates might get a totally unjust advantage. As per our Constitution, there is the basic valuable right to vote given to each voter. The very concept of tendered vote is to safeguard this right and not to allow the right to be defeated by an imposter. But the statute in question is equally alive to the position that no candidate should be allowed to take undue benefit of double voting. That is the reason why the Supreme Court has directed, in effect that , by same process, it has got to be ascertained as to in whose favour the bogus vote was cast and that bogus vote has got to be excluded from consideration while counting the total of votes received by that candidate. It is thereafter that the tendered vote is to be added to the votes received by the person in whose favour the tendered votes is cast and thereafter the election result has to be declared. This was the second argument of Mr. Vaze and we quite appreciate it.
In our opinion, the lower Court was not justified in just ignoring the bogus vote By following such a process, it has done injustice to some candidate or the other; it may be the petitioner or it may be respondent No. 1. It is, therefore, necessary that the Court should, first to all, ascertain as to in whose favour the bogus vote was cast. Supposing, for instance the bogus vote was cast in favour of respondent No. 1. In such case, he will be deemed to be having not 455 votes but only 454 votes. Assuming that the tendered vote was cast in the own favour, he will be deemed to be having 455 votes and, this being the position of equality of votes lots will be the only resort and hence, the result declared by the Returning Officer would be the correct result. If, on the other hand, bogus votes was cast in favour of the present petitioner, the total number of votes polled by him will be 454 and not 455. Respondent No. 1 having received 455 votes must be deemed to be elected in that event. The question of resorting to lots would, therefore not arise.
12. Petitioner partly allowed :--- We, therefore, allow the petition partly. However, since the question has been hanging fire for a very long time and the petitioner has been enjoying the position from November 1985, may be rightfully or wrongfully, it would not be proper on our part to remand the matter entirely to the lower Court.
13. What is to happen if ballot papers are destroyed : Order reserved---We are informed that, beyond obtaining stay of the order passed by the lower Court, the petitioner has done nothing to see to it that the ballot papers have been preserved . We hope that the ballot papers have not been destroyed. However, we make it clear that, if the ballot papers have been destroyed by this time, the situation will be one of the petitioner's own making. In that event, we will have to consider whether the petition should be dismissed simpliciter or not.
14. Present order :--- Both the parties shall appear before the lower Court on Monday, the 19th instant, in order, to obtain further orders from that Court.
15. This petition shall be kept before this Court for final order on 29th instant, if necessary in the Chamber.
Appeal dismissed.
1. This is in continuation of our earlier judgment dated 12th and 13th February, 1990.
2. The report of the learned II Additional District Judge, Sangli, is now received. From the report it is clear that the direction given by this Court by order dated 12th and 13th February, 1990 has been substantially complied with. After examining all the ballot papers and checking the position of the impugned ballot paper, along with the corresponding counterfoil, the Court has found that the particular ballot paper has not been cast in favour of either of the two candidates, whether the petitioner or the respondent. From the report it also appears that the ballot paper has not been cast even in favour of any other candidate. Position is that it might have been invalid vote. But that is a question to which the learned District Judge does not appear to have applied his mind.
3. Much capital was sought to be made by Mr. Vaze of this position, According to him, the report is patently erroneous because the learned District Judge has not applied his mind to the above-mentioned aspect.
We see no reason to accept this argument. The only relevant question was as to whether the impugned ballot paper obtained by the bogus voter was cast in favour of the petitioner or the respondent. If neither of them has received that vote then whether anybody else has received it or not is thoroughly immaterial for the simple reason that, at this stage, only the petitioner and the respondent are in the contest; the other candidates are no where near (in the matter or number of votes ) the parties to this petition. If it is found that neither of them has received the particular misused ballot paper and, hence, the particular vote, then it follows that the tendered vote which is undisputedly in favour of the present respondent has the inexorable effect of tilling the balance in favour of the respondent. That is what has been done by the learned District Judge in the first instance. It follows that, including the tendered vote, the respondent received 456 votes, whereas the petitioner has received only 455 votes. The decision given by the District Judge, therefore, cannot be cavilled at.
4. The petition, therefore, fails. The Rule earlier issued stands discharged. However, there shall be no order as to costs.
5. All interim orders stand vacated.
6. Mr. Vaze applies for stay of the operation of the order. The application is rejected.