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High Court Of Madhya Pradesh
G. P. Bhutt, C. J. , T. C. Shrivastava and P. K. Tare, JJ.
HARIPRASAD KHADAKSINGH - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 2 Of 1959
Decided On : 04/22/1959
ELECTION - DEPUTY CHAIRMAN - REJECTION OF BALLOT PAPER - IMPRINT OF CROSS ON BALLOT PAPER - WHETHER REJECTION PROPER - INTERPRETATION OF RULE 3 MADE UNDER SECTION 182 (2) (IX) OF THE C. P. AND BERAR LOCAL GOVERNMENT ACT, 1948 - WHETHER CHAIRMAN OF THE MEETING HAS JURISDICTION TO REJECT BALLOT PAPER - WHETHER ALTERNATIVE REMEDY AVAILABLE - WRIT OF QUO WARRANTO AND MANDAMUS.
Fact of the Case:
In an election for the post of Deputy Chairman of Seoni Janpada Sabha, the petitioner, Hariprasad, received 13 votes, while the fifth respondent, Pritamchand, also received 13 votes. One of the votes cast in favor of the petitioner was rejected by the Chairman of the meeting, resulting in Pritamchand being declared elected. The rejected ballot paper had an imprint of the cross put by the voter against the name of the petitioner, caused by the folding of the ballot paper while the ink was wet.
Finding of the Court:
The Court held that the rejection of the ballot paper was improper. The Court interpreted Rule 3 made under Section 182 (2) (ix) of the C. P. and Berar Local Government Act, 1948, to mean that the Chairman of the meeting has the jurisdiction to reject a ballot paper only if it is signed by the voter or marked by the voter in a way that would reveal their identity. The Court held that an imprint caused by the folding of the ballot paper while the ink was wet does not constitute a mark made by the voter and, therefore, the Chairman of the meeting did not have the jurisdiction to reject the ballot paper.
Issues: 1. Whether the rejection of the ballot paper was proper? 2. Whether the Chairman of the meeting has the jurisdiction to reject a ballot paper? 3. Whether an alternative remedy is available? 4. Whether a writ of quo warranto and mandamus can be issued.
Ratio Decidendi: 1. The Court held that the rejection of the ballot paper was improper because the imprint caused by the folding of the ballot paper while the ink was wet did not constitute a mark made by the voter. The Court interpreted Rule 3 made under Section 182 (2) (ix) of the C. P. and Berar Local Government Act, 1948, to mean that the Chairman of the meeting has the jurisdiction to reject a ballot paper only if it is signed by the voter or marked by the voter in a way that would reveal their identity. 2. The Court held that the Chairman of the meeting has the jurisdiction to reject a ballot paper only if it is signed by the voter or marked by the voter in a way that would reveal their identity. 3. The Court held that an alternative remedy is available in the form of an election petition under Section 22 of the C. P. and Berar Local Government Act, 1948. 4. The Court held that a writ of quo warranto and mandamus can be issued to prevent the fifth respondent from usurping the office of Deputy Chairman and to direct the respondents to complete the process of election in accordance with law.
Final Decision: The Court allowed the petition, directed the issuance of a writ of quo warranto against the fifth respondent, and a writ of mandamus against respondents 1 to 4 to complete the process of election in accordance with law. The Court also directed that the costs be borne as incurred and that the security be refunded to the petitioner.
( 1 ) THIS petition under Articles 226 and 227 of the Constitution of India is directed against the election of the fifth respondent, Pritamchand, as Deputy Chairman of seoni Janpada Sabha.
( 2 ) IN the casual vacancy caused in the office of Deputy Chairman of Seoni janapada Sabha, the petitioner Hariprasad, the fifth respondent Pritamchand and the sixth respondent Gourishankar were candidates for election. The meeting of the councillors convened for the purpose was held on 26-12-1958 and was presided over by the Chairman of the Sabha, respondent No. 4. One of (he 13 votes cast in favour of the petitioner was rejected by the Chairman, with the result that the fifth respondent, who had 13 votes, was declared to be elected.
( 3 ) THE ballot paper in question was rejected as it had an imprint of the cross put by the voter against the name pf the petitioner. It does not appear to be disputed that the imprint was caused by the folding of the ballot paper while the ink was wet. The case of the petitioner is that the rejection of the vote on this ground was improper. Other points raised in the petition were not pressed.
( 4 ) RULE 3 made under Section 182 (2) (ix) of the C. P. and Berar Local Government act. 1948, herein affer called the Act is as below: ". . . . . The ballot paper shall be signed by the Chairman and one paper handed over to each councillor who shall put a cross against the name of the candidate for whom he wishes to vote. The ballot paper shall not be signed by the voter, nor be marked by him in any other way that would reveal his identity. If the paper is so signed or marked the vote shall be void. The Chairman shall declare the person at the head of the poll to he duly elected. Explanation: The essence of the ballot is secrecy. The use of different forms of voting paper or any indication on a voting paper or other device, by which the name of the voter can be ascertained, shall amount to a violation of the secrecy of the ballot. " it was contended that what this rule contemplates is that the questioned mark should be made by the voter by his own hand and, therefore, the one that is made solely by the folding of the ballot paper is nos interdicted. However, if the voter intentionally keeps the ink wet with the idea that the ballot paper should get an imprint, I see no reason why the mark thus imprinted should not be held to be made by the voter within the meaning of the rule. This question, therefore, depends upon the intention of the voter and cannot be determined without an enquiry into the surrounding circumstances.
( 5 ) WHAT rule 3 prohibits is a mark other than a cross, or a different form of voting paper, or any indication or other device on a voting paper, by which the name of the voter can be ascertained. IE may be noted that the words 'indication' or 'device' are not qualified. The indication or device, therefore, may consist in making the cross in thick or double lines, or setting an imprint thereof on the ballob paper by folding, or even folding the ballob paper in a peculiar manner. Accordingly if a voter makes an imprint of a cross on a voting paper by folding it and this is done intentionally in concert with a candidate there appears little doubt that the secrecy of the ballot would be violated,
( 6 ) THIS question, in another connection, came up for consideration before a Special bench of this Court in Bhawaniprasad Tiwari v. Vishnu Sitaram, Misc. Petn. No. 16 of 1955, D/- 15-12-1955 to which I was a party. The present petition was directed to be heard 'by a Full Bench to understand whether it falls within the scope of the decision of the Special Bench. In that case I had made the following observations: "woodward v. Sarsons, (1875) 44 LJCP 293, on which, and other election cases which follow it, reliance was placed by the petitioner are all cases in which there were special fact-finding tribunals. All that these cases lay down is that a mere imprint caused by folding the balloti paper,
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