K.C. Dinakaran Vs. S.P. Rajendran and ors. - Court Judgment

Excerpt:
- ordervenkataswami, j.1. this civil revision petition is filed challenging the order of the election court in election o.p. no. 42 of 1986, on the file of the principal district munsif, tindivanam, dated 19.1.1990.2. brief facts are the following: election for the post of vice-chairman of olakkur panchayat union was held on 20.6.1986. the petitioner and the 1st respondent were the only two candidates for vice-chairmanship. 58 voters (panchayat presidents) participated in the election including the petitioner and the 1st respondent. it is the case of the petitioner that he secured 28 votes and the 1st respondent secured 27 votes and the 4th respondent declared three votes as invalid. consequently, when he was about to enter the petitioner's name as the successful candidate in the records, at the instance of the second respondent, two votes declared as invalid were counted again in favqur of the first respondent, and ultimately the 4th respondent declared the first respondent as successful candidate securing 29 votes as against the 28 votes secured by the petitioner. aggrieved by the declaration, declaring the first respondent as the successful candidate, the election o.p. was filed. it is seen from the counting the alleged two invalid votes as void votes in favour of the first respondent. pending election petition, the ballot papers were sent for, and after scrutinising the same, the election court has found that there was nothing to suggest that two invalid votes were counted in favour of the first respondent, as contended by the petitioner. the court below also rejected the other contentions, and consequently dismissed the petition.3. before me, the learned counsel appearing for the petitioner submitted three points. one is that as many as 20 votes polled in favour of the first respondent contained marks behind those ballot papers, those votes must be treated as invalid votes as such marking is against rule 16 of the tamil nadu panchayat union councils (election of vice chairman) rules, 1978. the second contention is that the fourth respondent has not fixed the programme of election by giving the closing time. on account of that, one voter could not participate in the election. the third contention is that the second respondent, in his capacity as a rajya sabha member, exercised influence and coerced the 4th respondent to count two invalid votes as valid votes in favour of the first respondent.4. learned counsel appearing for the first respondent submitted that it is not open to the petitioner now to contend that exs. d-1 to d-20 ballot papers marked in the court below are invalid on account of the markings on the backside as the only contention that was raised in the election petition and pressed before the court below was that two votes declared as invalid were, at the instance of the second respondent, counted as valid votes in favour of the first respondent and, therefore, the declaration in favour of the first respondent was bad. no such contention that the twenty votes polled in favour of the first respondent must be treated as invalid on account of the violation of rule 16 of the above said rules was taken either in the petition or before the court below. he also submitted that the court below has found that there is no evidence to substantiate the case of the petitioner that one voter was disabled from participating in the election because of the non-mentioning of the closing time. that being a question of fact, it cannot be canvassed in this civil revision petition. he also submitted that on the evidence placed before the court below, the finding is given to the effect that the 2nd respondent was not present at the time of counting in the counting hall and, therefore, there was no question of his exercising either coercion or influence, and this being a question of fact, cannot be canvassed in the revision petition.5. learned counsel for the petitioner placed reliance on the decision selva v. aravamudha iyengar : air1953mad969 , hon vishnu kamath v. syed ahmed ishaque and ors. : [1955]1scr1104 and n.e. horo v. leander tiru : air1989sc2023 .6. i have considered the rival submissions. before taking up the first contention, we can dispose of contentions 2 and 3 holding that as contended by the learned counsel for the respondent no. 1 in the light of the clear findings given by the court below on those contentions against the petitioner, it is not open to him to canvass the same in this civil revision petition. therefore, those contentions are rejected.7. on the first contention, the court below has observed as follows:8. let me now consider the first point. no doubt, as contended by the learned counsel for the 1st respondent, there is no specific allegation about the invalidity of exs. d-1 to d-20 votes polled in favour of ihe 1st respondent in the election petition filed by the petitioner. however, i find that allegations in a general form have been made in the election petition which read as follows:with the connivance of the 1st respondent, the chairman of the union council advised the voters to write down the serial numbers on the rear side of the ballot papers which were already allotted by the union chairman so as to ascertain whether those voters have cast their votes in favour of the 1st respondent. hence the election conducted on 20.6.1986 for the office of the vice-chairman is vitiated as it was held under duress and coercion.in support of the above allegation, the petitioner as p.w. 1, has spoken as follows:9. the question is, in the light of the above allegation and the evidence, is it open to the learned counsel for the petitioner to contend that the votes polled in favour of the 1st respondent and marked as exs. 6-1 to d-20 containing marks by which the voters (members) may afterwards be identified, are to be declared invalid. in this context, the recent j udgment of the supreme court in n.e. horo v. leander tiru : air1989sc2023 , in my view, can be usefully referred to and applied. in that judgment, their lordships of the supreme court have observed as follows:the next contention urged by counsel for the appellant relates to packet no. 8 containing 56 ballot papers. 55 ballot papers in this packet were rejected by the high court on the ground that they contained no seal of 'arrow cross' marks of the rubber stamp of the particular booth. counsel argued that the high court ought not to have taken up those ballot papers for scrutiny for want of specific pleading in that regard.here again we cannot help the appellant. it maybe noted that the high court-while allowing inspection, has not restricted the operation to specified ballot papers. the inspection was permitted in respect of all ballot papers to the credit of the appellant. in the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the appellant, it must also fall to be excluded. there may not be any specific allegation in the pleading in respect of such ballot paper. but the absence of specific averments in the pleading no bar to inspect such ballot papers. when illegality is noticed upon inspection, it must be corrected. invalid votes, if any, should be excluded. that is precisely the purpose of inspection of ballot papers.as to the aforesaid ballot papers, rule 30(2)(b) of the conduct of election rules, 1961 and the election commission instruction to presiding officers require that if the mark is made otherwise than by the instrument provided for the purpose, such ballot papers are to be rejected. there is no dispute that the ballot papers in question contained no prescribed mark, namely, 'arrow cross' mark. the report of the commissioner of this court also confirms this illegality. they could not, therefore, be retained in favour of the appellant.[emphasis supplied.]in this case on hand, it is not in dispute that exs. d-1 to d-20 contain the marks other than the cross marks intended for the purpose of balloting. in exs. d-5 and d-9, initials are found apart from the extraneous marks like p.m.r. (ex. d-5) and e.r. (ex. d-9). rule 16 reads as follows:16. invalid ballot papers : - a ballot paper shall be invalid on which(a) there is no cross mark, or(b) a cross mark is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or(c) a cross mark and some other mark are set opposite to the name of the same candidate; or(d) any mark is made by which the member may afterwards be identified.in view of the above rule, in particular rule 16(d), these votes cannot be treated as valid votes. however, the election court has lightly dealt with exs. d-1 to d-20 by stating that inasmuch as the 4th respondent-returning officer has counted ex. c-1, a vote with extraneous mark (similar to exs. d-1 to d-20) in favour of the petitioner herein, it cannot be said that such treatment was given only to the first respondent. in other words, the election court got over the objection by stating that inasmuch as one vote containing extraneous mark polled in favour of the petitioner as well as 20 such votes polled in favour of the 1st respondent having been treated alike, no grievance can be made out of it. this approach is totally wrong and cannot be sustained in the light of the ratio laid down by he supreme court in n.e. horo v. leander tint a.i.r. 1989 s.c. 2023. their lordships are specific in their observation viz., when illegality is noticed upon inspection, it must be corrected. invalid votes, if any, should be excluded. applying the ratio of the decision of the supreme court in n.e. horo v. leander tim : air1989sc2023 , these illegalities cannot be ignored. moreover, the court below is not very right in observing that there are no allegations or evidence to enable the petitioner to contend that ex. d-1 to d-20 are invalid votes. because, as pointed out earlier, the petitioner has made allegations in a general form in the election petition and has also given evidence supporting such allegations (vide extracts supra).10. in the circumstances, the contention of the learned counsel for the first respondent that it is not open to the petitioner to contend that exs. d-1 to d-20 are invalid votes cannot be sustained. at this juncture, one other fact has to be pointed out, namely, that a vote containing a mark other than cross mark marked as ex. c-1 and polled in favour of the petitioner has to be declared as an invalid vote, applying rule 16(d) extracted above. if so done, the number of valid votes secured by the petitioner will be reduced to 27. likewise the number of valid votes polled by the first respondent will be, 9. the obvious result is that the petitioner must be declared validly elected as vice chairman as there were only two contesting candidates for the post of vice chairman.11. in the result, the civil revision petition is allowed. the election of the 1st respondent as vice-chairman of the olakkur panchayat union is set aside as void, and the petitioner is declared as duly elected vice-chairman of the olakkur panchayat union. the petitioner is entitled to costs throughout.

Judgment:
ORDER

Venkataswami, J.

1. This civil revision petition is filed challenging the order of the Election Court in Election O.P. No. 42 of 1986, on the file of the Principal District Munsif, Tindivanam, dated 19.1.1990.

2. Brief facts are the following: Election for the post of Vice-Chairman of Olakkur Panchayat Union was held on 20.6.1986. The petitioner and the 1st respondent were the only two candidates for Vice-Chairmanship. 58 Voters (Panchayat Presidents) participated in the election including the petitioner and the 1st respondent. It is the case of the petitioner that he secured 28 votes and the 1st respondent secured 27 votes and the 4th respondent declared three votes as invalid. Consequently, when he was about to enter the petitioner's name as the successful candidate in the records, at the instance of the second respondent, two votes declared as invalid were counted again in favqur of the first respondent, and ultimately the 4th respondent declared the first respondent as successful candidate securing 29 votes as against the 28 votes secured by the petitioner. Aggrieved by the declaration, declaring the first respondent as the successful candidate, the Election O.P. was filed. It is seen from the counting the alleged two invalid votes as void votes in favour of the first respondent. Pending Election Petition, the ballot papers were sent for, and after scrutinising the same, the Election Court has found that there was nothing to suggest that two invalid votes were counted in favour of the first respondent, as contended by the petitioner. The court below also rejected the other contentions, and consequently dismissed the petition.

3. Before me, the learned Counsel appearing for the petitioner submitted three points. One is that as many as 20 votes polled in favour of the first respondent contained marks behind those ballot papers, those votes must be treated as invalid votes as such marking is against Rule 16 of the Tamil Nadu Panchayat Union Councils (Election of Vice Chairman) Rules, 1978. The second contention is that the fourth respondent has not fixed the programme of election by giving the closing time. On account of that, one voter could not participate in the election. The third contention is that the second respondent, in his capacity as a Rajya Sabha Member, exercised influence and coerced the 4th respondent to count two invalid votes as valid votes in favour of the first respondent.

4. Learned Counsel appearing for the first respondent submitted that it is not open to the petitioner now to contend that Exs. D-1 to D-20 ballot papers marked in the court below are invalid on account of the markings on the backside as the only contention that was raised in the Election Petition and pressed before the Court below was that two votes declared as invalid were, at the instance of the second respondent, counted as valid votes in favour of the first respondent and, therefore, the declaration in favour of the first respondent was bad. No such contention that the twenty votes polled in favour of the first respondent must be treated as invalid on account of the violation of Rule 16 of the above said Rules was taken either in the petition or before the court below. He also submitted that the Court below has found that there is no evidence to substantiate the case of the petitioner that one voter was disabled from participating in the election because of the non-mentioning of the closing time. That being a question of fact, it cannot be canvassed in this Civil Revision Petition. He also submitted that on the evidence placed before the court below, the finding is given to the effect that the 2nd respondent was not present at the time of counting in the Counting Hall and, therefore, there was no question of his exercising either coercion or influence, and this being a question of fact, cannot be canvassed in the revision petition.

5. Learned Counsel for the petitioner placed reliance on the decision Selva v. Aravamudha Iyengar : AIR1953Mad969 , Hon Vishnu Kamath v. Syed Ahmed Ishaque and Ors. : [1955]1SCR1104 and N.E. Horo v. Leander Tiru : AIR1989SC2023 .

6. I have considered the rival submissions. Before taking up the first contention, we can dispose of contentions 2 and 3 holding that as contended by the learned Counsel for the respondent No. 1 in the light of the clear findings given by the Court below on those contentions against the petitioner, it is not open to him to canvass the same in this civil revision petition. Therefore, those contentions are rejected.

7. On the first contention, the Court below has observed as follows:

8. Let me now consider the first point. No doubt, as contended by the learned Counsel for the 1st respondent, there is no specific allegation about the invalidity of Exs. D-1 to D-20 votes polled in favour of Ihe 1st respondent in the Election petition filed by the petitioner. However, I find that allegations in a general form have been made in the Election Petition which read as follows:

With the connivance of the 1st respondent, the Chairman of the Union Council advised the voters to write down the serial numbers on the rear side of the ballot papers which were already allotted by the Union Chairman so as to ascertain whether those voters have cast their votes in favour of the 1st respondent. Hence the election conducted on 20.6.1986 for the office of the Vice-Chairman is vitiated as it was held under duress and coercion.

In support of the above allegation, the petitioner as P.W. 1, has spoken as follows:

9. The question is, in the light of the above allegation and the evidence, is it open to the learned Counsel for the petitioner to contend that the votes polled in favour of the 1st respondent and marked as Exs. 6-1 to D-20 containing marks by which the voters (members) may afterwards be identified, are to be declared invalid. In this context, the recent j udgment of the Supreme Court in N.E. Horo v. Leander Tiru : AIR1989SC2023 , in my view, can be usefully referred to and applied. In that judgment, their Lordships of the Supreme Court have observed as follows:

The next contention urged by counsel for the appellant relates to packet No. 8 containing 56 ballot papers. 55 ballot papers in this packet were rejected by the High Court on the ground that they contained no seal of 'arrow cross' marks of the rubber stamp of the particular booth. Counsel argued that the High Court ought not to have taken up those ballot papers for scrutiny for want of specific pleading in that regard.

Here again we cannot help the appellant. It maybe noted that the High Court-while allowing inspection, has not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the appellant, it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. That is precisely the purpose of inspection of ballot papers.

As to the aforesaid ballot papers, Rule 30(2)(b) of the Conduct of Election Rules, 1961 and the Election Commission Instruction to presiding officers require that if the mark is made otherwise than by the instrument provided for the purpose, such ballot papers are to be rejected. There is no dispute that the ballot papers in question contained no prescribed mark, namely, 'arrow cross' mark. The report of the Commissioner of this Court also confirms this illegality. They could not, therefore, be retained in favour of the appellant.

[Emphasis supplied.]

In this case on hand, it is not in dispute that Exs. D-1 to D-20 contain the marks other than the cross marks intended for the purpose of balloting. In Exs. D-5 and D-9, initials are found apart from the extraneous marks like P.M.R. (Ex. D-5) and E.R. (Ex. D-9). Rule 16 reads as follows:

16. Invalid ballot papers : - A ballot paper shall be invalid on which

(a) there is no cross mark, or

(b) a cross mark is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or

(c) a cross mark and some other mark are set opposite to the name of the same candidate; or

(d) any mark is made by which the member may afterwards be identified.

In view of the above Rule, in particular Rule 16(d), these votes cannot be treated as valid votes. However, the Election court has lightly dealt with Exs. D-1 to D-20 by stating that inasmuch as the 4th respondent-Returning Officer has counted Ex. C-1, a vote with extraneous mark (similar to Exs. D-1 to D-20) in favour of the petitioner herein, it cannot be said that such treatment was given only to the first respondent. In other words, the Election Court got over the objection by stating that inasmuch as one vote containing extraneous mark polled in favour of the petitioner as well as 20 such votes polled in favour of the 1st respondent having been treated alike, no grievance can be made out of it. This approach is totally wrong and cannot be sustained in the light of the ratio laid down by he Supreme Court in N.E. Horo v. Leander Tint A.I.R. 1989 S.C. 2023. Their Lordships are specific in their observation viz., when illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded. Applying the ratio of the decision of the Supreme Court in N.E. Horo v. Leander Tim : AIR1989SC2023 , these illegalities cannot be ignored. Moreover, the Court below is not very right in observing that there are no allegations or evidence to enable the petitioner to contend that Ex. D-1 to D-20 are invalid votes. Because, as pointed out earlier, the petitioner has made allegations in a general form in the Election petition and has also given evidence supporting such allegations (vide extracts supra).

10. In the circumstances, the contention of the learned Counsel for the first respondent that it is not open to the petitioner to contend that Exs. D-1 to D-20 are invalid votes cannot be sustained. At this juncture, one other fact has to be pointed out, namely, that a vote containing a mark other than cross mark marked as Ex. C-1 and polled in favour of the petitioner has to be declared as an invalid vote, applying Rule 16(d) extracted above. If so done, the number of valid votes secured by the petitioner will be reduced to 27. Likewise the number of valid votes polled by the first respondent will be, 9. The obvious result is that the petitioner must be declared validly elected as Vice Chairman as there were only two contesting candidates for the post of Vice Chairman.

11. In the result, the Civil Revision Petition is allowed. The Election of the 1st respondent as Vice-Chairman of the Olakkur Panchayat Union is set aside as void, and the petitioner is declared as duly elected Vice-Chairman of the Olakkur Panchayat Union. The petitioner is entitled to costs throughout.