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TMI Blog2014 (2) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... B. The Respondent No. 1, defeated candidate, filed Election Petition No. 2 of 2009 on the ground that certain invalid votes had been counted in favour of the Appellant and certain valid votes which were cast in favour of the Respondent No. 1 had wrongly been declared invalid. C. The election petition was to be decided on the basis of the fact that election for the said post was held on 30.3.2009 wherein out of 706 total votes, 701 votes were cast. D. The votes were counted on 2.4.2009 and initially both the contesting candidates are said to have got equal number of votes as 336 each while 29 votes were found invalid. E. On the application of the Appellant herein, the Returning Officer allowed re-counting of all the votes wherein the Appellant got 336 votes and the Respondent No. 1 secured 335 votes and 30 votes were found to be invalid and therefore, the Appellant was declared to be the successful candidate and elected as MLC by a margin of one vote. F. The election petition was filed mainly on the ground that 3 votes in question Ex. X-1 to X-3 polled in favour of the Respondent No. 1 had been wrongly rejected and one vote Ex. Y-13 which had been counted in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same being an interim order. N. The High Court during the trial of the election petition picked up 17 ballot papers from the bundle of rejected ballot papers as determined by the Returning Officer and marked the same as Ex. Y-1 to Y-17. The High Court also picked up 2 ballot papers from the valid votes of the Appellant and marked the same as Ex. R-1 and R-2. Four ballot papers were picked up from the valid votes of Respondent No. 1 and marked as Ex. P-16 to P-19. After considering all these ballot papers, the High Court vide judgment and order dated 20.7.2012 allowed the election petition holding that certain votes cast in favour of Respondent No. 1 had wrongly been rejected and the vote which should have been declared as invalid had wrongly been counted in favour of the Appellant as valid and thus, the Respondent No. 1 was declared as successful candidate and elected as MLC. The operation of the aforesaid judgment dated 20.7.2012 was stayed only for a period of 4 weeks to enable the Appellant to approach this Court. Hence, these appeals. 3. Shri B. Adinarayana Rao, learned senior counsel appearing for the Appellant has submitted that the election petition has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Evidence Act') shall also be applicable subject to the provisions of the Act. 7. It is a settled legal proposition that the statutory requirements relating to election law have to be strictly adhered to for the reason that an election dispute is a statutory proceeding unknown to the common law and thus, the doctrine of equity, etc. does not apply in such dispute. All the technicalities prescribed/mandated in election law have been provided to safeguard the purity of the election process and courts have a duty to enforce the same with all rigours and not to minimize their operation. A right to be elected is neither a fundamental right nor a common law right, though it may be very fundamental to a democratic set-up of governance. Therefore, answer to every question raised in election dispute is to be solved within the four corners of the statute. The result announced by the Returning Officer leads to formation of a government which requires the stability and continuity as an essential feature in election process and therefore, the counting of ballots is not to be interfered with frequently. More so, secrecy of ballot which is sacrosanct gets exposed if recounting of votes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts. (Vide: Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. AIR 1964 SC 1249; Bhabhi v. Sheo Govind and Ors. AIR 1975 SC 2117; and M. Chinnasamy v. K.C. Palanisamy and Ors. (2004) 6 SCC 341). 10. There may be an exceptional case where the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions, but in refutation of the case set up by the other side. Only in such circumstances, absence of an issue may not be fatal and a party may not be permitted to submit that there has been a mistrial and the proceedings stood vitiated. (Vide: Kalyan Singh Chouhan v. C.P. Joshi AIR 2011 SC 1127). 11. The secrecy of a ballot is to be preserved in view of the statutory provision contained in Section 94 of the Act. Secrecy of ballot has always been treated as sacrosanct and indispensable adjunct of free and fair election. Such principle of secrecy is based on public policy aimed to ensure that voter may vote without fear or favour and is free from any apprehens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, and (iii) the mark or writing should be connected by evidence aliened with an elector and it should be shown that the elector is actually identified by such mark or writing. 11....When the legislature provided that the mark or writing should be such that the elector can be identified thereby it was not providing for a mere possibility of identification. On this construction almost every additional mark or writing would fall within the mischief of the provision. If that was the intention the words would have been different,.... 12. We are further of opinion that the third construction on which the Appellant relies also cannot be accepted. If the intention of the legislature was that only such votes should be invalidated in which the elector was actually identified because of the mark or writing, the legislature would not have used the words "the mark or writing by which the elector can be identified". These words in our opinion do not mean that there must be an actual identification of the elector by the mark or writing before the vote can be invalidated. If such was the intention of the legislature Clause (d) would have read something like "any mark or writing which identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be rejected as invalid. But the mark or writing must be such as would unerringly lead to the identity of the voter. 17. If all the judgments referred to hereinabove in respect of interpreting the provisions of Rule 73(2)(d) are conjointly considered, we are of the opinion that there must be some casual connection between the mark and the identity of the voter and such writing or marking itself must reasonably give indication of the voter's identity. As to whether such marking or writing in a particular case would disclose the identity of the voter, would depend on the nature of writing or marking on the ballot involved in each case. Therefore, such marking or writing must be such as to draw an inference about the identity of the voter. To that extent, with all humility at our command, we have to say that word "unerringly" used by this Court in Km. Shradha Devi (supra) is not in consonance with the law laid down by the Constitution Bench of this Court in Dr. Anup Singh (supra). 18. This brings us to the next question involved herein as to whether election petition and recrimination petition have to be tried simultaneously. In a composite election petition wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vote Ex. Y-13 which had been counted in favour of the Appellant ought to have been declared invalid. 20. In view of the pleadings in the election petition, the case should have been restricted only to these four votes and even if the recrimination petition is taken into account, there could have been no occasion for the High Court to direct recounting of all the votes and in case certain discrepancies were found out in recounting of votes by the Registrar of the High Court as per the direction of the High Court, it was not permissible for the High Court to take into consideration all such discrepancies and decide the election petition or recrimination petition on the basis thereof. The course adopted by the High Court is impermissible and cannot be taken note of being in contravention with statutory requirements. Therefore, the case has to be restricted only to the four votes in the election petition and the allegations made in the recrimination petition ignoring altogether what had been found out in the recounting of votes as under no circumstance the recounting of votes at that stage was permissible. 21. We have been taken through the judgment of the High Court as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has to be declared as void? 6. To what relief? 25. It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal AIR 2010 SC 1227; and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil AIR 2009 SC 2975. Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case. 26. The High Court had examined the votes in dispute and came to the following findings: Coming to Ex. X-1, the figure '1' is clearly marked by the voter in the panel meant for the Petitioner in the ballot paper. Though, it was not in the space which is actually meant for marking figure '1', since it is in the panel (space) provided for the Petitioner, it has to be treated as valid. This was also, however, objected to by the first Respondent that it looks like '7' an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or evidence to find out the identity of the voter. As regards the 'tick' mark since such mark is not contemplated by the rules it has to be ignored. For all these reasons, since the figure '1' was clearly put by the voter, it has to be validated in favour of the Petitioner. Accordingly, the same is validated in favour of the Petitioner. xxx As regards Ex. Y-13, it requires to be noticed that the figure '1' was clearly and specifically put in the column meant for the Petitioner. However, the elector in the space provided for the Petitioner for marking the figure put his signature apart from marking figure '1'. From the signature also it is not possible to trace out the identity of the voter and therefore, this vote also can be validated in favour of the Petitioner and accordingly, it is validated in favour of the Petitioner. 27. In view of the above, the High Court concluded the trial of the election petition declaring the Respondent elected by margin of two votes as he secured 338 votes, while the Appellant secured 336 votes. 28. We have gone through the record of the case including the four disputed ballots i.e. Ex. X-1 to 3 and Ex. Y-13 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in favour of the Petitioner herein in whose favour '1' is put on the ballot paper and by ignoring the subsequent figure. (d) The 2nd Respondent has illegally rejected some other votes validly polled in favour of the Petitioner on flimsy and untenable grounds. 32. As regards the ground (d) it is to be noticed that the same is non-descriptive and vague. Any ground raised in a recrimination petition has to be specific and the court cannot be asked to make a roving and fishing enquiry on the mere asking of a party. Thus, ground (d) is not worth consideration. 33. Coming to ground (a), the same relates to Ex. P-19. The Appellant has claimed that on the said ballot mark '7' had been put which was treated as mark '1' and counted in favour of the Respondent No. 1. On a careful examination of the said exhibit, it is to be held that though the same may appear to be '7' but it is also another form of writing '1' and thus, there was no illegality committed by the Returning Officer in holding the same in favour of the Respondent No. 1. Ground (b) relates to Ex. P-16, wherein one long stroke is made to make a mark denoting the number '1'. How ..... X X X X Extracts X X X X X X X X Extracts X X X X
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