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1996 Supreme(Ori) 193
IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
RABINDRA KUMAR MALLICK - APPELLANT
Versus
PANCHANAN KANUNGO AND OTHERS - RESPONDENT
Election Petition No. 5 of 1995
Decided On : 20-11-1996
P. Palit, Bijoy Pal, R. Mahapatra, O.N. Ghose, S.C. Parija, A. Kr. Mishra, L.K. Mohapatra, B.P. Das, S.K. Ojha, P. Das, P. Behera, B. Baug, B.K. Rout, A. Das, L. Jena, J. Katikia, P.K. Majhi, C.R. Lenka and S. Patnaik, for the Appellant; Bidyadhar Mishra, Amiya Kumar Mishra, Pramod Kumar Rout, Amiya Kumar Mohanti, B. Routray, B. Sarangi and G.D. Tripathy, for the Respondent
The provisions of the Act and the Rules relating to the manner of marking ballot papers are mandatory and should be strictly followed. A recounting should be ordered to ferret out invalid votes which might have escaped during counting prior to the discovery of such fact in order to maintain the purity of the election process. However, the result of an election will not be set aside unless it is shown that the improper acceptance of invalid votes or the improper rejection of valid votes has materially affected the result of the election.
Headnote:
Whether the ballot papers which were marked with distinguishing circular seal instead of by the rubber stamp containing the arrow cross mark should be treated as valid or invalid votes ? If such ballots shall be treated as invalid, as has been done by the Returning Officer, whether a recounting should be ordered to ferret out such ballots which might have escaped during counting prior to the discovery of Such fact in third round of counting ? and If such ballots are held to be valid, whether recounting of the rejected ballot papers should be ordered ?
Fact of the Case:
In an election petition, the petitioner challenged the election of respondent No. 1 on the ground of irregularities in the counting of votes. The main issue was whether the ballot papers which were marked with a distinguishing circular seal instead of the arrow-cross mark should be treated as valid or invalid votes. The petitioner also alleged that the counting agents of respondent No. 1 had free access to the ballot papers in violation of the rules and that the result of the election had been materially affected by the improper acceptance of invalid votes and the improper rejection of valid votes.
Finding of the Court:
The court held that the ballot papers which were marked with a distinguishing circular seal instead of the arrow-cross mark should be treated as invalid votes. The court also held that a recounting should be ordered to ferret out such ballots which might have escaped during counting prior to the discovery of such fact in the third round of counting. However, the court held that the result of the election had not been materially affected by the improper acceptance of invalid votes and the improper rejection of valid votes.
Issues: 1. Whether the ballot papers which were marked with distinguishing circular seal instead of by the rubber stamp containing the arrow cross mark should be treated as valid or invalid votes ? 2. If such ballots shall be treated as invalid, as has been done by the Returning Officer, whether a recounting should be ordered to ferret out such ballots which might have escaped during counting prior to the discovery of Such fact in third round of counting ? 3. If such ballots are held to be valid, whether recounting of the rejected ballot papers should be ordered ?
Ratio Decidendi: The court held that the ballot papers which were marked with a distinguishing circular seal instead of the arrow-cross mark should be treated as invalid votes because the provisions of the Act and the Rules are mandatory and should have been strictly followed. The court also held that a recounting should be ordered to ferret out such ballots which might have escaped during counting prior to the discovery of such fact in the third round of counting because it was necessary to maintain the purity of the election process. However, the court held that the result of the election had not been materially affected by the improper acceptance of invalid votes and the improper rejection of valid votes because there was no evidence to suggest that the counting process had been disrupted or hampered in any manner.
Final Decision: The election petition was dismissed.
JUDGMENT :
P.K. Misra, J. - Having been vanquished in the Eleventh General Assembly Election to the Legislative Assembly in the State of Orissa from 42-Govindpur Assembly Constituency, by a mere 85 votes, the petitioner has filed this election petition challenging the election of respondent No. 1 and seeking for a relief that he himself should be declared to have been elected.
2. The election took place on 9.3.1995 and the counting took place in Ravenshaw Collegiate School on 11.3.1995 and 12.3.1995. The petitioner who was contesting as a candidate of Indian National Congress secured 55,936 votes, whereas respondent No. 1 who was contesting as a candidate of Janata Dal secured 56,021. The petitioner alleges that the result of the election has been materially affected by the improper acceptance of invalid votes which have been counted in favour of respondent No. 1 and improper rejection of valid votes which should have been counted in favour of the petitioner. It is alleged by the petitioner that the counting took place in two interconnected rooms of small dimension without providing any barricade and due to over-crowding and lack of barricade, the counting agents, especially those of respondent No. 1, handled the ballot papers at the time of counting and as such many bundles of votes were manipulated. It is specifically alleged that in respect of Table No. 8, many ballots meant for the petitioner were kept in the bundles of respondent No. 1 and no corrective action was taken in spite of the protest of the counting agents of the petitioner. Instead of sorting out and counting each ballot paper individually, the officials in charge of counting counted number of bundles as a result of which many valid votes in favour of the petitioner were counted in favour of respondent No. 1 and many invalid votes which should have been rejected were also counted in favour of the latter. It was specifically alleged that the officials in charge of counting did not follow the Handbook for Returning Officers (hereinafter referred to as the "Handbook") issued by the Election Commission and more particularly there was violation of Clauses (n) and (o) of para-24 of Chapter XIV (B) of the Handbook which resulted in materially affecting the result of the election so far as respondent No. 1 is concerned. It has been further asserted that in many ballot papers specially with regard to booth Nos. 112 and 113, the ballot papers had been marked with some instrument other than the instrument which had been supplied for the purpose of marking the ballot papers and as such should have been rejected. It is asserted that about 500 such ballot papers which had been marked not by the instrument containing cross-arrow mark but by some other instrument were illegally counted in favour of respondent No. 1 in spite of protest of the counting agents of the petitioner. Though some such ballot papers were considered as invalid, more than 500 such ballot papers were counted illegally in favour of respondent No. 1, thus materially affecting the result of the election. It is further claimed that a written objection was filed on behalf of the petitioner, but the same was arbitrarily rejected by the Returning Officer without affording any opportunity of hearing to the petitioner or his election agent. It is prayed that in view of such illegalities, the result of the election declaring respondent No. 1 as elected should be set aside and the petitioner may be declared as elected after inspecting and recounting all the ballot papers.
3. Respondent No. 1 in his written statement while denying the main allegations in the election petition has prayed for dismissal of the election petition on the ground of non-compliance with Sections 81, 82 and 83 of the Representation of the People Act, 1951 (hereinafter called the "Act"). It has been asserted by respondent No. 1 that the election petition has not been signed nor presented in the manner required under law and as such should not be tr
