Smt. Suman Devi vs State Of U.P. Thru Secy. And 3 ...
2014 Latest Caselaw 40 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 20.2.2014
 
							Delivered on 21.3.2014	    
 
								Court No. - 21
 
								   	  AFR
 

 
	    Civil Misc. Writ Petition No.60063 of 2013
 

 
Smt. Suman Devi             Vs.       State Of U.P. and others 
 

 
				     ****
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Vivek Kumar Birla, J.

This petition raises the issue of the jurisdiction of the presiding officer, while conducting the proceeding of a no confidence motion under the U.P. Kshettra Panchayat Zila Panchayat Adhiniyam, 1961, in proceeding to declare a result in the manner in which it has been done in the present case, coupled with the issue of the validity of the votes that have been declared invalid, resulting in the alleged failure of the no confidence motion by a solitary vote. The provisions of Section 15 of the Act govern the proceedings of a no confidence motion, read with the Uttar Pradesh Kshettra Samitis (Voting on Motions of No-Confidence) Rules, 1966.

The challenge raised is to the order dated 23.10.2013 passed by the Sub Divisional Magistrate, Manikpur, the presiding officer, who conducted the no confidence motion declaring that the no confidence motion against the respondent no.4, who is the Pramukh of the Kshettra Panchayat, Pahadi, Tehsil Karwi, District Chitrakoot has failed. The petitioner claims herself to be a member of the aforesaid Kshettra Panchayat who is aggrieved by the orders passed.

The authority of an officer to be exercised in the manner prescribed under the law, therefore, is under scrutiny as the allegations clearly are that the officer acted malafidely to alter the decision making process, which is governed by the casting of votes by the members participating in the meeting, and not by any exercise of administrative discretion. The issues raised also reflect on the acceptance of the mode of expression of the intention to cast a vote in accordance with the rules prescribed, namely, the 1966 Rules aforesaid, and the reflection of such intention through a prescribed manner to be endorsed on the ballot paper.

The facts, as unfolded, indicate that there are 84 members in all in the Kshettra Panchayat concerned and as per the Rules aforesaid a no confidence motion can be moved under Section 15 of the 1961 Act read with the aforesaid Rules. The motion can be passed only by a requisite simple majority, and in the instant case by the casting of 43 or more votes in favour of such no confidence. In the instant case, the respondents have come out with a case that 50 members had cast their votes out of which 42 were valid in favour of the no confidence motion. 2 votes went against the no confidence motion and 6 of the votes were invalid. The dispute raised in the present petition is also with regard to the 6 votes which, according to the petitioner, have been wrongly declared to be invalid by the presiding officer for various reasons discussed hereinafter and the order declaring such votes to be invalid has also been assailed. Thus, the outcome of the no confidence motion would alter, even if one of the 6 invalid votes is found to be validly cast.

The dispute commenced after the motion was tabled on 28.9.2013. The presiding officer, namely, the Sub Divisional Officer, Manikpur, who in the instant case is Chandra Prakash Upadhayay issued a notice on 22.10.2013 after the no confidence motion was held, that 50 votes were cast out of which 42 went in favour of the no confidence motion, 2 went against it and 6 votes were declared invalid and accordingly the motion will be treated to have been passed expressing no confidence against the respondent no.4.

It is at this stage that a representation was filed by one Anita Devi who also claims herself to be a member before the District Magistrate, Chitrakoot, praying that the results are being withheld wrongly treating the motion to have not been passed which is a clear collusive act between the presiding officer and the respondent no.4-Pramukh, hence the no confidence motion should have been treated to be passed or in the alternative fresh polls should be conducted.

According to the disclosure made in the counter affidavit of the District Panchayat Raj Officer filed on behalf of the respondent no.2-Collector and respondent no.3- presiding officer, an application was also received from the respondent no.4 Smt. Shakuntala Devi-the Pramukh on 22.10.2013 itself, that as per the voting pattern disclosed the no confidence motion has not been carried out as it falls short of one vote of the requisite majority, but the presiding officer has illegally treated the same to have been passed. Consequently, the representation should be entertained and appropriate action should be taken.

On the said applications, having been received, the Collector appears to have passed an order directing the District Panchayat Raj Officer and the District Government Counsel (Civil) to give their reports. Both these officers recommended for calling for a report from the presiding officer and accordingly the District Magistrate passed an order calling upon the presiding officer to submit his final report in relation to the said proceedings of the no confidence motion. The said orders are transcribed on the application of the respondent no.4.

The presiding officer while informing the District Magistrate simultaneously issued a fresh declaration through a notice on 23.10.2013 which is Annexure 1 to the writ petition and has been impugned herein, declaring that no objections were raised to the rejection of the invalid votes during the proceedings, and that the order dated 22.10.2013 passed a day earlier was not clear on the issue of the motion having been carried out or defeated. Consequently, a clarification was being issued that in terms of sub-section (11) of Section 15 of the 1961 Act if more than half of the members vote in favour of the motion, then only the motion can be said to have been carried out, but since only 42 votes out of 84 have been cast in favour of the no confidence motion, the same does not establish the majority in terms of the aforesaid rule.

The counter affidavit filed on 22.1.2014 to that effect by the State recites that no result was declared on 22.10.2013 and it was declared on 23.10.2013 on having found that only 42 votes had been cast, as a result whereof the motion had failed.

It is in this background that the writ petition was filed assailing the order dated 23.10.2013 contending that once the presiding officer had held the motion to have been carried out on 22.10.2013, he had become functus officio and could not have passed another order on 23.10.2013. The affidavit indicating that no results were declared on 22.10.2013 is absolutely false, and in the event there was any such discrepancy, the votes ought to have been recounted then. The challenge, therefore, is that in the absence of any provisions under the 1961 Act to alter the declaration of results just one day thereafter is erroneous and contrary to law.

Additionally, in paragraph 12 of the writ petition it is also alleged that 6 of the votes which have been declared to be invalid, is also wrong, as the said votes if counted in favour of the no confidence motion would clearly unseat the respondent no.4.

We had heard the matter on 6.1.2014 and on the second issue of the validity of the 6 votes, since the fate of the motion was resting only on 1 vote counted otherwise, we had summoned the ballot papers in a sealed envelop to satisfy ourselves about the validity of the said votes and the mode prescribed for casting such votes. The matter was taken up on 22.1.2014, on which date the ballot papers were produced and inspected up by us and the following order was passed :-

"Three affidavits have been filed today on behalf of the State, they are taken on record. Learned counsel for the petitioner, may if he so chooses, file a reply to the same by the date fixed.

Heard Sri Chandan Sharma, learned counsel for the petitioner, Sri Ansul Mishra holding brief of Sri N.K. Pandey for respondent no. 4 and Sri Ram Krishna, learned Chief Standing Counsel for the respondents 1, 2 and 3.

This dispute about a no confidence motion has been raised on the ground that certain votes which are six in number have been wrongly declared to be invalid, as a result whereof, the motion was defeated. Since the result of the motion would vary even by one vote, we had, in order to satisfy ourselves, called upon the learned Chief Standing Counsel to obtain all the 50 ballot papers, on which the votes of the members were cast, including the six invalid votes so declared by the presiding officer.

The said ballots alongwith the ballots that were utilized for the said election, have been produced in a sealed cover before us. We have perused the ballots cast, particularly the six invalid votes and the 42 valid votes. We find that out of the six invalid votes, three of them were tick marked against the word 'Yes' and in the event, such votes are counted in favour of the motion, the same

can be carried out.

We have also perused the other 42 votes, which have been cast in favour of the motion and out of them, prima facie we find 17 of the ballots contain marks which are similar to the marks on the

three votes bearing serial nos. 48, 35 and 24. The marks are recorded in the box of 'Yes'.

The votes which have been declared to be invalid by the presiding officer indicate that the voter has not put a tick mark as desired in Rule 7 (2) of the Uttar Pradesh Kshetra Samiti (The Vote of Motion of Confidence) Rules, 1966. The description of a ballot paper is provided in Rule 5, and the validity of the vote cast is contained in Rule 12. In order to understand the status of the tick

mark or any other mark contained in the box, the affidavit and the presence of the presiding officer are both necessary, in as much as the 17 votes which have been counted as valid also contain similar marks, as in the three ballot papers which have been declared to be invalid.

The presiding officer, who has passed orders declaring the said votes to be invalid on 22.10.2013 shall be called upon to be personally present in this Court on 28.01.2014, on which date, he will also file his affidavit explaining the same. The ballot papers shall be kept in one common sealed cover by the Bench Secretary to be opened on the date fixed.

List on 28.01.2014."

Having found the action of the presiding officer to be wavering in law we had also called upon him to be present along with the records and file an affidavit explaining as to how he had taken a decision to declare the 6 votes to be invalid in the circumstances indicated in our order dated 22.1.2014. Time was again taken on 28.1.2014 by the learned State counsel to file an appropriate affidavit and the officer has filed his affidavit thereafter.

An amendment application was also filed assailing the order passed by the presiding officer declaring the 6 votes to be invalid which was allowed on 6.2.2014 whereafter Sri N.K. Pandey, learned counsel for the respondent no.4, also made a prayer for inspection of the 6 invalid votes and 42 valid votes to assist the Court accordingly. All the learned counsel were given full opportunity vide order dated 13.2.2014 to file their further affidavits in the wake of the aforesaid discovery relating to the nature of the endorsement made on the invalid votes and in particular the impact thereof.

Learned counsel have further proceeded to advance their submissions accordingly.

Sri Chandan Sharma, learned counsel for the petitioner, apart from pressing the first point with regard to the jurisdiction of the presiding officer in proceeding to declare the results has also addressed the Court on the issue of the validity of 6 votes, in particular the 3 votes declared to be invalid.

On the first point relating to the jurisdiction it has been urged that as per the rules, after the votes are cast, they have to be counted and then the results have to be declared accordingly. For this reference may be had to the rules which had been placed by the learned Standing Counsel to urge that the 1966 Rules provide for a procedure to that effect. The respondent no.4 has also relied on the same rules through her affidavit dated 11.2.2014. The Rules have been brought on record through the rejoinder affidavit of the petitioner dated 28.1.2014. In order to appreciate both the issues, Section 15 of the 1961 Act and the 1966 Rules are quoted hereinunder :-

15. Motion of non-confidence in Pramukh or [xxx]- (1) A motion expressing want of confidence in the Pramukh or any [xxx] of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.

(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of [elected members of the Kshettra Panchayat] for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.

(3) The Collector shall thereupon:-

(I) convene a meeting of the Kshetta Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and

(ii) give to the [elected member of the Kshettra Panchayat] notice of not less than fifteen days of such meeting in such manner as may be prescribed.

Explanation - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded.

(4) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting :

Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant Collector named by the Collector shall preside at the meeting.

[(4-A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4-B).

(4-B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the members at least ten days' notice of the next meeting in the manner prescribed under sub-section 3.]

(5) [Save as provided in sub-sections (4-A) and (4-B), a meeting] convened for the purpose of considering a motion under this section, shall not be adjourned.

(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.

(7) No debate on the motion under this section shall be adjourned.

(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote [which shall be held in the prescribed manner by secret ballot]

(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.

(10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Zila Panchayat having jurisdiction.

(11) If the motion is carried with the support of [more than half] of the total number of [elected members of the Kshettra Panchayat] for the time being-

(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette, and

(b) the Pramukh or, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.

(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or shall be received until after the expiration of [one year] form the date of such meeting.

(13) No notice of a motion under this section shall be received within [two years] of the assumption of office by a Pramukh or as the case may be.

The Uttar Pradesh Kshettra Samitis (Voting on Motions of Non-Confidence) Rules, 1966-

1. Short title and commencement- (1) These Rules may called the Uttar Pradesh Kshettra Samitis (Voting on Motions of Non-Confidence) Rules, 1966.

(2) They shall come into force from the date of their Publication in the Gazette.

2. Definitions- In these Rules, unless there is anything repugnant in the subject or context-

(1) "Act" means the Uttar Pradesh Kshettra Samitis and Zila Parishads Adhiniyam, 1961.

(2) "member" means member of a Kshettra Samiti.

(3) "Presiding Officer" means the officer presiding under sub-section (4) of section 15 of the Act at the meeting convened for consideration of the motion of non-confidence.

3. Procedure of meeting- As soon as the debate on a motion of non-confidence has concluded or the period of two hours for a debate thereon under sub-section (8) of section 15 of the Act has expired, the Presiding Officer shall announce that the motion shall be put to vote which shall be held by secret ballot.

4. Secrecy of Ballot- The Presiding Officer shall cause such arrangements to be made as will ensure the secrecy of the ballot.

5.Ballot Paper- Every member wishing to vote shall be supplied a ballot paper which shall bear a serial number and the official seal and signature of the Presiding Officer on one side and the words "Yes" and "No" written on the other.

6. Issue of Ballot Paper- (1) The Presiding Officer shall have before him a list of members of the Kshettra Samiti and shall thoroughly satisfy himself about the identity of the member before issuing a ballot paper to him.

(2) "The member shall sign on the said list against his name in token of the receipt of the ballot paper.

(3) If the Presiding Officer is not satisfied about the identity of any person, he may refuse to deliver a ballot paper to him after recording a brief note about the circumstances in which the refusal was made.

7. Voting- (1) Every member wishing to record his vote shall do so in person and not by proxy:

Provided that nothing in this sub-rule shall be deemed to prohibit the rendering of any assistance to any member who, on account of any physical infirmity or illiteracy is unable to record his vote on the ballot paper and requests for such assistance.

(2) The member shall put a (tick) "√" or (cross) "X" on the mark ballot paper against the word "Yes" or "No" according as he is in favour or against the motion of non-confidence respectively, and shall not put his signature or write his name on the ballot paper or make any other mark by which the secrecy of the ballot paper may be infringed.

(3) The member shall then fold up the ballot paper so as to conceal the mark put by him and insert the same in the ballot box placed in view of the Presiding Officer.

8. Disposal of "Returned and Cancelled" ballot paper- (1) A member who has inadvertently dealt with his ballot paper in such a manner that it cannot be conveniently used as a ballot paper may, on returning it to the Presiding Officer and on satisfying him of the inadvertence, obtain another ballot paper in place of the ballot paper so returned and the latter shall together with its counterfoil be marked as "Returned and cancelled" by the Presiding Officer and kept in a separate envelope set apart for the purpose.

(2) If a member after obtaining a ballot paper decides not to use it, he shall return such ballot paper to the Presiding Officer who shall deal with the said ballot paper in the same manner as prescribed in sub-rule (1).

9. Ballot Box- The ballot box shall be of any of the types approved by the Director of Elections (Local Bodies) under sub-para (2) of para 37 of the U.P. Municipalities (Conduct of Election of Members) Order, 1953.

10. Inspection of Ballot Box- Before the commencement of the voting, the ballot box shall be shown to open to such members as may be present at the meeting and shall thereafter be secured and sealed in such manner that the slit for the insertion of the ballot papers remains open.

11. Counting of votes and declaration of result- The Presiding Officer shall immediately after the voting is over-

(a) count the votes before such members as may be present and declare the number of votes cast in favour of the motion and those cast against it:

Provided that in the event of their being an equality votes cast in favour of or against the motion, the result shall be determined by the drawing of lots.

(b) declare the result.

12. Validity of Ballot Papers- Any ballot paper which contains marks against both the words "Yes" and "No" or which bears any mark or any signature of any voter by which he can be identified or which does not bear a serial number or the official seal or signature as required under rule 5 shall be invalid.

13. Custody of records and its inspection - (1) The Presiding Officer shall make into packets the ballot papers and other papers relating to the voting on the motion of non-confidence, seal the packets and note thereon a description of the contents, the name of the Kshettra Samiti and its Pramukh or Up Pramukh against whom the motion of non-confidence was considered and the date of the meeting.

(2) The packets shall be retained in safe custody in the office of the Collector for a period of six months and shall then unless otherwise directed by a competent court be destroyed.

(3) While in the custody of the Collector the packets of ballot papers which is unused, cancelled, valid or rejected and the list of members used while issuing the ballot papers shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the orders of competent court inspection of other papers shall be allowed by the Collector to any person within such hours as he may fix for the purpose.

(4) Inspection of the aforesaid records whether allowed by the competent court or the Collector under sub-rule (3) shall be subject to the condition of payment of a fee of Rs.2 (Rupees two only) per day on which the inspection is made and copies of the result declared under sub-rule (b) of rule 11 shall be furnished by the Collector to any person who may ask for the same on payment of a fee of Rs.2 (rupees two only) for each copy.

The procedure which has been prescribed obliges the presiding officer to count the votes as per Rule 11 thereof and sub-section (b) of the said Rule requires the presiding officer to declare the results. The declaration has to be obviously by a notification. In the instant case the first notice which has been admittedly issued and has not been denied in the counter affidavit, is the notice dated 22.10.2013 which is appended as Annexure 5 to the writ petition. The recital with regard to the said document is contained in paragraph 10 of the writ petition. The reply to paragraph 10 is contained in paragraph 11 of the counter affidavit where it is stated that the motion has not been carried out, and that the result was not declared on 22.10.2013 but only the factual position was stated in the said notice. The existence of the notice dated 22.10.2013 as appended along with the writ petition together with its contents is, therefore, not being denied as being some other document or manipulated piece of paper. The counter affidavit tries to explain it away that it only describes the factual position and does not declare the results.

Having examined the said document very closely, the operative part of the said notice clearly recites that the no confidence motion has been passed on the basis of the result of the counting. We are unable to accept the explanation given in paragraph 11 of the counter affidavit inasmuch as the words used in the order dated 22.10.2013 are categorical.

The table was sought to be turned when the representations as indicated above one by Anita Devi and the other by the respondent no.4 reached the District Magistrate. The respondent no.4 asserted that the motion has failed and, therefore, the presiding officer should firmly declare the results accordingly, whereas it was asserted by Anita Devi that the motion had been carried out and the result is now sought to be altered and even if there is some confusion, a fresh poll should be conducted.

Once the results are declared then the presiding officer becomes functus officio thereafter except for keeping all the ballots in a sealed custody. The notification dated 22.10.2013 set the confusion into motion when it recited that 42 votes were cast in favour of the motion, which obviously is not the majority, but at the same time declared the motion to have been carried out. This gave rise to the representation on which the District Magistrate proceeded to call for a report from the presiding officer. Consequently, the presiding officer on the very next day issued the impugned notification indicating that there was no clarity in his earlier order dated 22.10.2013 about the motion and, therefore, in view of Section 15 (11) of the 1961 Act the motion cannot be treated to have been passed. The presiding officer, therefore, was responsible for having generated this dispute clearly acting one way or the other in the circumstances given above.

The affidavit was therefore called upon to be filed by the presiding officer himself, and the same has been filed on 13.2.2014 where in paragraph 4 he has stated that inspite of wisdom applied by him, some discrepancy had occurred in accepting and rejecting some of the ballot papers which is neither deliberate nor wilful, but has occurred due to misunderstanding the matter, for which he tenders unqualified apology. This affidavit was, however, in response to the amendment application whereby a challenge had been raised to the orders passed by him on 22.10.2013 rejecting 6 votes as invalid. Another affidavit had been filed by the officer on 12.2.2014 which did not give any details except that he stated that he had acted impartially.

We, therefore, find from the narration of the aforesaid facts that the declaration of result after counting was not in accordance with Rule 11 aforesaid, which if accepted on the allegations contained in the counter affidavit could not have been done after the District Magistrate called for a report from him. The counting and the declaration has to follow immediately as per Rule 11 as soon as the voting is over. The words used in Rule 11 are that the presiding officer shall immediately do so after voting is over. If the same is accepted then an immediate action is contemplated to be taken by the presiding officer by issuing the notification which was done on 22.10.2013 itself, and which contains the aforesaid discrepancy pointed out by us hereinabove. The said order contradicts itself on the one hand by recording that 42 votes had been cast in favour of the no confidence motion, but at the same time declared the motion to have been carried out which obviously is not by more than half of the votes as required under Section 15 (11) of the 1961 Act as admittedly the total membership is 84.

It is for this reason that we had called for the inspection of the ballots to be made by us on the allegations of the petitioner that 6 of the votes that have been treated to be invalid were in fact valid votes to ascertain if even one vote could make a difference.

We now come to the issue relating to the validity of 6 votes where counsel have focussed their energy to contend that the votes were valid or invalid.

Sri Chandan Sharma, learned counsel for the petitioner, has invited the attention of the Court to 6 invalid votes, particularly, 3 of them bearing ballot nos. 24, 35 and 48 to be compared with 17 votes that were counted to be valid from amongst 42 votes in favour of the motion, and on that strength he contends that the intention which has been expressed in the aforesaid three votes, particularly, is clearly in favour of the no confidence motion and in accordance with the 1966 Rules. He submits that the marks which are against the word 'Yes' in the respective boxes has to be clearly treated to be a valid intention expressing no confidence. He submits that this has to be understood in the wake of the fact that lower down in the ballot paper is a separate box with the word 'No' thereby giving full indication in vernacular to the voter to express his or her choice that can be endorsed either by ticking against the word 'Yes' or 'No' in separate boxes as indicated in the ballot paper.

The argument of Sri Sharma is being countered both by the learned Chief Standing Counsel Sri Ram Krishna and Sri N.K. Pandey, learned counsel for the respondent no.4, on the ground that these ballots have been clearly rejected by giving reasons endorsed on the ballot papers to the effect that they do not bear proper tick marks as per rules. Sri Pandey has vehemently urged that if the rule prescribes a particular tick mark then it has to be done in that manner alone and he relies on the decision in the case of Chandra Kishore Jha Vs. Mahavir Prasad and others, 1999 (8) SCC Page 266. He further contends that the intention can be gathered as held by the Apex Court in the case of Ram Autar Singh Bhadauria v. Ram Gopal Singh & Ors., reported in AIR 1975 SC 2182 and Sri Ram Krishna, learned Standing counsel for the respondent no.3 has relied upon on the Constitution Bench in the case of Hari Vishnu Kamath Vs. Ahmad Ishaque and others, AIR 1955 SC Page 233, paragraphs 28, 29, 30, 34 and 35 in particular. Sri Pandey submits that firstly the rule prescribes that a person has to put the correct tick mark for 'Yes' which admittedly does not exist on the 3 ballot papers on which insistence is being made by the learned counsel for the petitioner, namely, ballot nos.24, 35 and 48.

Having perused the said endorsement we do find that the exact tick mark as provided for under the rules is not contained thereon but the same position exists with regard to 17 other votes which have been treated to be valid by the same presiding officer. These are ballot paper nos. 2, 8, 9, 11, 13, 17, 19, 26, 29, 34, 36, 44, 45, 46 and 47.

At this juncture it is relevant to record that it is not the case of the respondents that 42 votes or 17 out of the 42 votes as pointed out by us were also invalid on account of an incorrect tick mark being endorsed in the ballot box. This stand is practically admitted by the respondent no.4 when she herself moved an application before the District Magistrate for declaring the results which application has been filed as Annexure 1 to the counter affidavit dated 22.1.2014 filed by the respondent-State. The said document admits 42 valid votes having been cast in favour of the no-confidence motion. The motion according to the said respondent failed as it did not cross the requisite majority.

The issue, therefore, clearly is of the intention expressed by an appropriate mark as prescribed on the ballot paper. The question of the six votes being valid or invalid, particularly ballot paper no. 48, 35 and 24 that are stated to bear similar marks as 17 of the 42 valid votes being ballot nos.47, 17, 36, 34, 29, 08, 46, 02, 11, 45, 09, 40, 44, 19, 13, 04, 26 has been examined by us on the contentions issue of expression of a clear intent expressed by the voter in the manner prescribed.

On a closer scrutiny we clearly find that the marks endorsed in ballot nos.48, 35 and 24 are almost similar to the manner of marking in ballot paper nos.47, 17, 29, 11, 44, 19 if not exactly identical. The marks on the three ballots no.24, 35 and 48 are circular in nature in the shape of a horse shoe with an extended arm. They are more hieroglyphical than lingual even though it is urged that the word 'Yes' is indicated by the said sign in vernacular Urdu. They, therefore, express an intention. There is, therefore, no reason to treat the aforesaid marks differently. This is also not the consideration made by the presiding officer while rejecting the said 3 ballots as invalid votes. The rejection order as contained on the reverse of these 3 votes states that they do not contain the correct prescribed 'Yes' tick mark and, therefore, the votes are invalid. If this logic of the presiding officer is accepted then the other votes which bear almost similar marks, and not the prescribed yes tick mark, ought to be invalid. But the presiding officer has been unable to explain the same by simply describing it to be an error of judgment. We are unable to agree with the reasoning given by the respondents on this score. The variance in the judgment is evident and so is the error.

The contention of Sri Pandey about the prescribed manner of putting a correct tick mark is founded on the structure of rule 7(2) extracted hereinunder :-

(2) The member shall put a (tick) "√" or (cross) "X" on the mark ballot paper against the word "Yes" or "No" according as he is in favour or against the motion of non-confidence respectively, and shall not put his signature or write his name on the ballot paper or make any other mark by which the secrecy of the ballot paper may be infringed."

If one goes by the exact letter and spirit of the rule, nearly half the ballots would not stand the scrutiny thereof. The contention raised is that if a rule requires an act to be performed in a particular manner then the expression "Expressio unius est exclusio alteruis" is sought to be supported by the ratio of the decision of the apex court in the case of Chandra Kishore Jha Vs. Mahavir Prasad and others 1999 (8) SCC Page 266.

The said decision was with regard to the procedure and manner of presenting an election petition, and not with regard to the casting of a vote through a prescribed mode so as to gather an intention. In the instant case the manner prescribed is coupled with the intention of either voting in favour or against the motion of no confidence. This is not a simple matter of strict procedure but also of something that fulfils and advances the purpose expressed in the rule which has to be judged in the light of the fact that the voter has been expressly given the choice of endorsing a mark against any one of the boxes separately indicated by the words in vernacular "Yes" and "No" that are printed alongside.

Coming to the decision in the case of Hari Vishnu Kamath (supra) we find that the dispute raised therein was with regard to the argument of a rule being mandatory or directory that was considered in the light of the rules that were discussed therein. The rule related to the contents of a distinguishing mark on the ballot paper, namely, a green bar or a brown bar. It was held therein that if a distinguishing mark has been prescribed under the rule the ballot paper to be delivered to the voter must bear that mark. In the event of any change or alternation of any original distinguishing mark, it should be made only before the commencement of the poll. Thus, the mistake in the use of the correct ballot paper was held, that if the intention of a voter has to be gathered, then if the mode prescribes a particular manner of such expression, the intention should be treated to have been expressed if it is done in that manner alone or else an intention will not be presumed to have been expressed at all.

Having perused the said decision we find a clear distinguishing feature in the nature of the controversy involved in the present case as compared to the facts of the aforesaid decision. In the said case it was the issue relating to the existence of the colour of the bar indicated in the ballot paper and that had created a confusion amongst the voters. On this the Supreme Court arrived at a conclusion that if the expression has to be in a particular manner as prescribed under the rules applicable to the controversy therein, then the intention cannot be gathered otherwise.

Before us the issue is with regard to the intention of the voter. The ballot paper is quite clear and does not have any confusion, namely, there are two separate boxes, one with the word 'Yes' printed against it and the other with the word 'No' printed against it. The voter, therefore, has the choice to either express his intention in the box separately allocated against the word 'Yes' or against the word 'No'. There is no basis to presume any confusion with regard to the existence of two separate boxes for entirely two different expressions of intention. This was not the issue involved in Hari Vishnu Kamath's case where there was a scope of confusion with regard to the colour of the bar.

In the instant case a suggestion has been made in one of the affidavits that there is likelihood of the most of the members being not literate enough to understand the aforesaid distinction. We may record that the rule itself in order to avoid any confusion as per the proviso to Rule 7 (1) allows assistance to a member who is either physically infirm or illiterate to record his vote by making a request for assistance. Otherwise the rule prohibits voting by proxy. In the instant case no material has been brought forward in any of the affidavits that any member by virtue of his physical infirmity or illiteracy had expressed his inability to record his vote or had asked for assistance. Thus, the presumption would be that every member who had cast his vote was fully aware of the contents of the ballot and was not suffering from any illiteracy as sought to be suggested by the respondent. Consequently, there can be no escape from the conclusion that all the members have consciously cast their votes.

The second issue is as to whether the endorsement made against the word 'Yes' in 3 of the ballots, namely, 24, 35 and 48 bear any such distinguishing marks so as to disclose the identity of the voter. A bare perusal thereof does not indicate any signature or writing of name nor has the said mark being treated to be leaking the secrecy of the ballot paper by the presiding officer himself while rejecting the ballot paper. It is, thus, clear that the endorsement made on the ballot paper does not suffer from any infirmity as suggested by the learned counsel for the respondents.

Sri Pandey wanted to make capital out of the recital contained in the ballot paper itself which indicates putting of a tick mark against both the boxes as per the intention of the voter on the ground that sub-rule (2) of Rule 7 requires the putting of a cross 'X' mark against the word 'No'.

We may put on record that all the ballot papers contain the same recital and, therefore, this plea that any such confusion in the mind of any voter may not be tenable even though the rule does require the putting of a cross mark against the word 'No'. Even if that is assumed to be correct, we find that there are only 2 votes against the motion which are different ballot papers other than the 3 ballots referred to hereinabove and as such that would not make any difference.

Narrowing down to the scrutiny of the 3 ballots, namely, 24, 35, and 48, it is necessary to put on record that an intention is a purpose that one has in mind. It is a resolution for an action which is determined and resolute. In short it is a purpose formed in the mind itself and an action may be prompted by such intent. The resolution to act in a particular way is, therefore, intention. We would like to remember the words of the famous philosopher Goethe who said "In the works of man, as in those of nature, it is the intention that is chiefly worth studying". The mind of a man is the seat of his conscious acts and intentions with which he remembers reasons and wills.

The foundation to prompt a member to vote in a particular box is clearly exhibited by the words "Yes" or "No" in vernacular indicated against separate boxes. Thus a member, having full sight of such words, with all faculties working would be inclined towards the box placed before the said words. This presumption is logically and empirically valid to gather the intention in his mind.

If a member has not put a cross, then his intention cannot be read otherwise. If instead of a right tick mark the member voter has put a mark, which has been treated to be valid in other ballots, then the intention is clear and the vote cannot be invalidated. The intention therefore is decipherable in the present case and there is no possibility of a confusion in the mind of the member voter about whom there is no proof or evidence to treat him or her as illiterate. Thus on such distinguishable facts, the application of a distinguished mark in a different way cannot justifiably be treated to be a sign of no intention. Accordingly the ratio of Kamath's case (supra) cannot be pressed into service as binding law in the facts and procedure involved in the present case.

From the facts that have been disclosed we find that the presiding officer has found 42 voters to have declared their intention in favour of the no confidence motion even though some of the ballots namely ballot no.11, 17, 19, 29, 44 and 47 as explained hereinabove bore similar marks as the 3 votes of ballot bearing no.24, 35 and 48. In such a situation to discard the votes on the ground of a tick mark not in accordance with Rule 7 (2) does not dissolve the intention of the voter. If that was so then the presiding officer could have declared other similarly marked votes as invalid as well, which has not been done and has not even been explained by him. A convenient plea of an error of judgement has been taken by the presiding officer. If that was so then this was a fit case for recounting in the terms of the findings and observations made hereinabove.

The presiding officer appears to have proceeded deliberately to discard the aforesaid 3 votes, namely, 24, 35 and 48 which clearly expresses the intention of the voter. The order passed by him rejecting the ballots is perverse.

It was suggested that these marks which find similar endorsement in the other ballot papers in Urdu means Yes, and there is a possibility of the members of the minority community having expressed their intention in their own vernacular. The said possibility cannot be ruled out but we may not enter into this issue as in view of the findings arrived at hereinabove we are of the opinion that the presiding officer deliberately and wilfully acted in a way which seriously doubts his credibility in having proceeded to count the votes fairly and correctly in accordance with the rules. We, therefore, see no ground to gather that there was no correct tick mark so as to discard the aforesaid 3 votes and consequently the order to declare them invalid is not justified.

While interpreting Rule 7 we have considered the manner of the wish to be recorded which has to be done in the present case. It is not the case of the respondent that these 3 votes were not cast by the persons who had intended to vote against the no confidence motion. The said 3 ballots clearly record that they are in favour of the no confidence motion and this expression is contained in the box as against the word 'Yes' on the ballot paper. The intention is, therefore, clearly relatable to the occurrence of the word 'Yes' printed in vernacular on the ballot paper itself. The reasoning, therefore, given by the presiding officer to reject these ballots is not founded on sound logic and the discretion has been wrongly exercised which is not in accordance with the letter, intent and purpose of Rule 7. The motion thus became the victim of a confidence trick to which the officer appears to be a party.

We may clarify that if the letter 'X' would have been endorsed against the word 'Yes', the same would have been capable of construing some confusion, but in the instant case all the aforesaid 3 ballots contain similar marks most of which occur in 17 of the valid votes that have been counted in favour of the motion particularly ballot nos.11, 17, 19, 29, 44 and 47. This discriminatory judgement on the part of the presiding officer, therefore, on that score is complete indiscretion and cannot be supported in law. It is not an error of judgement but a deliberate act in view of the two dubious orders dated 22.10.2013 and 23.10.2013 passed by him.

The gathering of the intention, therefore, in the aforesaid background has to be read accordingly as indicated by us hereinabove. The rule of strict construction and statutory compliance, therefore, has to be read by explaining the impact of sub-rule (2) of Rule 7 aforesaid Rules. The first part of the rule, therefore, has to be read in accordance with the intention expressed. It would be something different if there was no mark at all on the ballot paper, or would have been marked elsewhere than the mark which is prescribed for the said purpose.

Further, if the argument of Sri Pandey for the respondent no.4 is accepted that the ballot paper itself indicated only one type of tick mark which is not in accordance with Rule 7(2), then obviously all the ballot papers would be invalid and there has to be a fresh poll as indicated in the representation of Anita Singh. The decision to declare only 3 votes as invalid is, therefore, a partial decision and also appears to be tainted with malafides.

For the forgoing reasons we are clearly of the view that the presiding officer had unfairly discarded the aforesaid 3 ballots, namely, 24, 35 and 48 as invalid votes. We, therefore, quash the order dated 22.10.2013 as endorsed on these 3 ballots as prayed for through the amendment application.

However, on the first issue we find that the presiding officer created a confusion first by his intention dated 22.10.2013 and then favoured the respondent no.4 by the order dated 23.10.2013. Both these orders are, therefore, liable to be quashed subject to the condition that the motion will be treated to have been carried out with 45 votes in favour of the motion with only three votes out of six being invalid. The writ petition is accordingly allowed. A declaration to that effect shall be notified unseating the respondent no.4 forthwith from the office of Pramukh of Kshetra Panchayat Pahadi, Tehsil Karwi, District Chitrakoot.

A copy of this order shall be placed on the service record of the presiding officer Sri Chandra Prakash Upadhayay for reference in view of the findings recorded by us hereinabove. Learned Standing Counsel shall inform the respondent no.1 and the respondent no.2 accordingly.

Order Date :- 21.3.2014

Anand Sri./-