Letters Patent Appeal No.68 of 2010(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Letters Patent Appeal No.68 of 2010 Ravinder Kumar Rawal ... Appellant VERSUS V.K.Sood and others ... Respondents and Letters Patent Appeal No.1617 of 2010 Deputy Commissioner, Panchkula and another ... Appellants VERSUS V.K.Sood and others ... Respondents Decided on : May 23, 2011 CORAM : HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes Present: Mr.Sanjay Bansal, Senior Advocate assisted by Mr.Amit Jhanji and Mr.Asha Chauhan, Advocates for the appellant (in LPA No.68 of 2010) Mr.Sukhbir Singh Mattewal, Advocate for respondent No.1. Mr.Aman Chaudhary, Additional Advocate General, Haryana. Letters Patent Appeal No.68 of 2010(O&M) [ 2 ] A.N.JINDAL, J.- 1. This judgment shall dispose of two Appeals i.e. LPA No.68 of 2010 filed by Ravinder Kumar Rawal and another LPA No.1617 of 2010 filed by Deputy Commissioner, Panchkula and another, both arising out of the common judgment dated 08.01.2010 passed by Single Bench of this Court. However, the facts are taken from LPA No.68 of 2010 for adjudicating both the appeals. 2. Having travelled through the hierarchy of Tribunals as set out under the Haryana Municipal Act, 1973 (herein referred as `the Act of 1973') for challenging the election by an unsuccessful candidate for the Presidentship of the Municipal Council, Panchkula, the verdict has been recorded by the Election Tribunal and the Appellate Authority in favour of respondent No.1 – V.K.Sood. Consequently, the appellant – returned candidate, namely Ravinder Kumar Rawal (herein referred as `the appellant') also lost before the Single Bench of this Court. His election was set aside on the following grounds:- (1)The procedure as followed by the Returning Officer in preparing the electoral rolls and marking of serial numbers on the ballot papers amounts to breach of secrecy, which was considered as material irregularity materially affecting the result of an election; (2)The Returning Officer acted in violation of the Rules while directing the electors to mark `X' on the ballot paper, which is in clear violation of Rule 71 of the Haryana Municipal Letters Patent Appeal No.68 of 2010(O&M) [ 3 ] Elections Rules, 1978 (herein referred as `the Rules of 1978'), therefore, it amounts to illegal reception of votes, which is impermissible and a ground for setting aside the election as provided under Rule 85 (1)(d)(iii) of the Rules of 1978. 3. The crucial questions to be determined before us may be summed up as under:- (i)Whether Rule 71 of the Rules of 1978 is directory or mandatory in nature and whether its violation materially affects the result of the election? (ii)Whether the preparation of separate sheet of paper containing names of electors, their ward numbers and signatures as also serial number of the ballot papers (which is to be kept in a sealed cover by the Returning Officer) amounts to breach of secrecy materially affecting the election result? (iii)Whether the election petition is in consonance with Rule 76 of the Rules of 1978 and as such, the election petition was bad for want of cause of action. 4. The aforesaid posers have arisen from the facts as set in the pleadings of the parties. The election of the Municipal Council, Panchkula took place on 30.3.2008 to elect 31 Municipal Councillors. Mr.Ravinder Kumar Rawal – appellant was declared elected from Ward No.14, whereas, Letters Patent Appeal No.68 of 2010(O&M) [ 4 ] Mr.V.K.Sood – respondent No.1 was elected as such from Ward No.4. The total number of winning candidates party-wise is as follows:- Congress – 9; B.J.P. - 8; INLD-6 and Independents-8. 5. The meeting for the election of the President and Vice- President of the Council was convened on 14.5.2008, wherein, the appellant Ravinder Kumar Rawal (a Congress candidate); respondent No.1 V.K.Sood (a BJP candidate) and one V.K.Kapoor (an INLD candidate) contested for the office of the President. The whole election process was videographed. There was no objection raised at any stage and it had concluded peacefully. On counting, the appellant (from Congress) was declared as elected having secured 13 votes, whereas, respondent No.1 V.K.Sood (from BJP) secured 10 votes and V.K.Kapoor (from INLD) secured 9 votes. In the same election, BJP candidate Shri Bharat Bhushan Singal was declared elected as the Vice President of the Council by securing 13 votes, whereas, Congress candidate secured 10 votes. Dissatisfied with the election of the President, respondent No.1 filed an Election Petition on the following grounds:- (i)That respondent No.3 completely deviated from the procedure as laid down in Rule 71 of the Rules of 1978, by requiring the members to put a sign of `X' on the ballot paper instead of writing `yes' or `no'. Such a procedure adversely affected the voting pattern which materially affected the result of the election; (ii)That respondent No.3 prepared a separate sheet containing the signature of members, their ward numbers and their names. Surprisingly, the serial numbers of the ballot papers Letters Patent Appeal No.68 of 2010(O&M) [ 5 ] were also added against the names and ward numbers of the members on the sheet. The members present realized that their ballot papers were open to scrutiny by the concerned officials as they could easily decipher as to who had voted for whom in the election. For the fear of reprisal from the ruling party and the threat of being exposed as to for whom they had voted, the members could not exercise their right to vote in a free and fair manner. This affected the voting pattern and thus, the voting which was to be held in secret manner, became an open affair. 6. The appellant, who was elected as the President of the Council contested the petition stating that there were total 32 members present in the meeting, including the local Member of Legislative Assembly. The election process was completely in consonance with the Act of 1973 and the Rules of 1978. Preparation of the electoral rolls does not amount to breach of secrecy or visible representation from which an elector could be identified. No objection to the preparation of electoral rolls was raised at the relevant time. The whole election process was completed peacefully. The appellant got 13 votes, whereas, respondent No.1 secured 10 votes. By way of similar process, Bharat Bhushan Singal was elected as the Vice President of the Council while defeating Congress candidate who secured 10 votes. No objection was raised to his election as also to that of the Vice-President at the time of conduct of the election. The proceedings were recorded qua the manner in which the election was conducted and nobody raised any objection with regard to any breach of secrecy, pressure or undue influence Letters Patent Appeal No.68 of 2010(O&M) [ 6 ] at that time. The election was completed within one day. The ballot papers were prepared at the spot as per Rules of 1978. It was also denied that the members present had realised that their ballot papers were open to scrutiny by the concerned officials. It has been categorically denied that a candidate could be identified as to who had voted for whom in the election. It was further explained that the election was conducted as per guidelines of the Haryana State Election Commission. It was also submitted in the written statement that respondent No.1 admitted in his petition that BJP had total 8 elected members and in the election for the post of the President, he had secured 10 votes and in case of the election of the Vice-Presidential candidate from BJP, namely Bharat Bhushan Singal got 13 votes, which are self-explanatory of free and fair election and that there was no pressure on any Member as alleged in the petition. 7. From the pleadings of the parties, the following issues were framed:- “1.Whether the election of respondent No.1 as President of Municipal Council, Panchkula is liable to be set aside? OPP 2. Whether the petition is not maintainable in the present form? OPR 3. Whether the petition has no locus-standi to file the petition? OPR 4. Whether the petitioner has no cause of action for filing the petition? OPR 5. Whether the petition is based on false and frivolous Letters Patent Appeal No.68 of 2010(O&M) [ 7 ] grounds? OPR 6. Whether the petitioner has not come to the court with clean hands? OPR 7. Whether this court has no jurisdiction to entertain and try the petition? OPR 8. Relief.” Though, no proper issues, which were essential to be framed, have been framed, yet we don't want to delve deep into this aspect as both the courts being alive of the real controversy involved in the case and the evidence led thereupon, have decided the matter. 8. In order to substantiate the pleas as raised by respondent No.1 for setting aside the election of the appellant, he himself appeared as PW1 and reiterated the facts as submitted by him in the petition. From his statement, it appears that the electoral roll prepared at the spot was sealed in a stout envelope, which was opened at the request of respondent No.1 and was shown to him. Thereafter, it was re-sealed. During cross-examination, he admitted that the election was videographed. He also admitted that all the votes were found valid and no vote was declared invalid. When the ballot papers were taken out for counting, they were tallied with the issue- list. He also admitted that all the members remained present in the office during the entire election process. He further said that Sh.Chander Mohan belongs to Congress. It is correct that B.J.P. got more votes for the post of Vice President and President than the number of its elected members in the Council. It is correct that respondent No.3 had informed at the time of Letters Patent Appeal No.68 of 2010(O&M) [ 8 ] election that mark `X' was to be put against the name of the candidate in whose favour the elector wanted to cast the vote. He further admitted that respondent No.1 did not complain about the process to the Haryana State Election Commission or held any personal conference with the Election Commission or the Deputy Commissioner or protested in any other manner. 9. Vijay Kumar Kapoor (PW2), Municipal Councillor from Ward No.6 also supported the case of the election petitioner - respondent No.1. However, during cross-examination, he stated that he never made any correspondence regarding discrepancy in election process, which he had mentioned in his statement. He also mentioned that even illiterate person can contest the Municipal Election. He could not tell as to how many Councillors are literate and how many illiterate. He has also admitted that entire election process was video-graphed and all the members had legally marked `X' against the name of the person, in whose favour the votes were to be polled as per direction of the SDO (Civil). 10. To the contrary, the winning candidate – appellant examined B.R.Dhiman (DW1), Secretary, Municipal Council, Panchkula, who proved the record of the proceedings Ex.D1, D2 and D3, relating to the election of the President and the Vice-President. Ravinder Kumar Rawal (DW2) – (appellant) tendered his affidavit Ex.DA and was cross-examined at length. Maheshwar Sharma, (DW3) an HCS officer posted as Secretary HUDA (Returning Officer at that time), stated that the election of Municipal Council, Panchkula for the offices of the President and the Vice-President was held on 14.5.2008, and the proceedings pertaining to it (Ex.D3) were recorded in the Register. The whole proceedings were conducted as per the Letters Patent Appeal No.68 of 2010(O&M) [ 9 ] relevant rules and after the election process, the whole record was handed over to the office of Deputy Commissioner. 11. On scrutiny of the aforesaid evidence, the Election Tribunal vide its judgment dated 4.5.2009 (Annexure P-2) while deciding issue No.1 observed that the State Election Commission had issued directions for using the mark `X' in the election process to indicate the right exercised by the voter, therefore, there was no violation of Rule 71 of the Rules of 1978. No cross-objections qua the said finding were filed by respondent No.1 and the Appellate Court vide judgment dated 8.6.2009 (Annexure P-4) also affirmed the findings with the following observations:- “The petitioner (respondent here) has also attacked the outcome of election on the ground that the SDO(Civil) contravened Rule 71 of the Election Rules whereby the members are required to vote by writing `yes' or `no' in the ballot paper at the time of election for the offices of President and Vice President. However, as per Ex.D4, the instructions (dt.17.4.2003) issued by the State Election Commission, Haryana, the members were required to put a cross (X) against the candidate for whom he wished to vote. As such, the procedure adopted by the SDO (Civil) in this respect was in consonance with the directions of the election Commission and hence, the election cannot be set aside on that ground. That apart, the learned Tribunal has recorded a finding on that point against the petitioner and the petitioner has not filed any cross appeal challenging that finding.” Letters Patent Appeal No.68 of 2010(O&M) [ 10 ] 12. Any way, learned senior counsel for the appellant has again stressed over his view point that the election, as stated by Maheshwar Sharma (DW3), was conducted as per the instructions dated 17.4.2003 (Ex.D4) issued by the State Election Commission, Haryana. The amended instructions dated 20.6.2003 were not part of the instructions Ex.D4, therefore, the election was conducted on the basis of instructions dated 17.4.2003, which provided for marking `X' against the candidate for whom one wished to vote. The Election Tribunal recorded the finding qua this aspect of the case against respondent No.1 and the Appellate Authority, without any cross- appeal filed by respondent No.1, again recorded a finding that there was no violation of Rule 71 of the Rules of 1978 and, thus, the election cannot be set aside on this ground. 13. To the contrary marathon arguments were advanced by the counsel for respondent No.1 while rebutting the contentions as raised by the counsel for the appellant. He urged that if specific rules are framed for proceeding in a particular manner, then violation of such rules would certainly render such act as void. The Returning Officer was not authorised to direct the candidates to put mark 'X' when basic Rule 71 as enunciated in the Rules of 1978 and also as per the amended instructions dated 20.6.2003 (Annexure `A') issued by the State Election Commission, Haryana specifically providing for marking `yes' or 'no' against the name of the candidate recorded on the ballot paper. He further submitted that marking of the serial number on the ballot paper was also in violation of the Rules and that amounts to visible representation leading to the anticipated breach Letters Patent Appeal No.68 of 2010(O&M) [ 11 ] of secrecy. Once, the ballot is opened, then from the serial number, it could easily be traced as to who voted for whom. Thus, the learned Single Judge was right in holding that the preparation of the electoral roll as well as marking of serial number over the ballot papers amounted to breach of secrecy, which could be treated as material irregularity materially affecting the election result. 14. After hearing the learned counsel for the parties, we set to decide the questions in controversy as framed by us above. Re. : Question No.1 While touching the first question, we may observe that none of the electors raised any objection at the time of casting the votes to the writing of mark `X' and none of them preferred to mark `yes' or `no'. The marking of `X' did not in any manner prejudice the electors casting the vote, though the electors could have an apprehension of being identified in whose favour they have voted in case of marking `yes' or `no' – sometimes in small alphabets or capital alphabets, and by change of pen/ pencil or ink, but the electors could not be identified by making a mark `X'. It was not the choice of the winning candidate that mark `X' should be written, but such a mark was put as per the directions of the Returning Officer, who in turn had complied with the instructions dated 17.4.2003 (Ex.D4) issued by the State Election Commission, Haryana. Maheshwar Sharma (DW3) was not issued any amended instructions. In any case, it is well-settled that for the act done by a public servant/ Returning Officer in discharge of his duties in the ordinary course and as per instructions of the higher authority with which he was equipped with, he cannot be blamed and cannot be punished for any Letters Patent Appeal No.68 of 2010(O&M) [ 12 ] such act by the Election Commission. Reliance, if any, could be placed upon the case of Mehla vs. Roop Ram, 1998(3) P.L.R. 781 (para 6) and Meera Devi vs. Bihar State Election Commission and others, AIR 2008 Patna page 83 (paras 12 and 13). 15. The learned Single Judge while recording a finding against the appellant qua this violation placed reliance on the judgment of this Court in case Sudesh Kumar Aggarwal vs. State of Punjab, 2001(3) RCR(Civil) 454, but this judgment is not applicable to the facts of the present case, because in Sudesh Kumar Aggarwal's case (supra), the election was challenged on the ground that six members who had voted, had put both `yes' and `no' on the ballot papers instead of writing `yes' or `no'. Though, such votes were liable to be declared invalid, but the Returning Officer had counted the same in favour of the winning candidate. On these facts, the High Court had reached the conclusion that proper procedure regarding the manner of voting was not followed. Certainly, writing `yes' and `no' has no meaning, rather the voter was to write `yes' or `no', but in the instant case only mark `X' was to be put which never prejudiced the rights of the electors. Not even a single member had put any other mark except the mark `X' against any other contesting candidates with a view to establish/ show their identity thereby causing breach of secrecy. Therefore, marking of ballot papers by the letter `X' cannot be said to be such a material irregularity which materially affected the result of the election. It may be further mentioned that the judgment delivered in Sudesh Kumar Aggarwal's case (supra) was later on over-ruled by the Apex Court in Civil Appeal Letters Patent Appeal No.68 of 2010(O&M) [ 13 ] No.7054 of 2001 decided on 23.10.2002 (Ashok Kumar vs. Sudesh Kumar Aggarwal & others). 16. The learned Single Judge appears to have not properly interpreted the rules while treating Rule 71 as mandatory. Whether a statutory provision is mandatory or directory in nature, depends upon the intention of the Legislature or the rule making authority. The intention of the authority making the law or the rule can best be gathered from the context in which the particular provision is made. In the absence of expressly providing for consequences which may flow from the breach of the rule, must be regarded as directory. In other words, the rule does not indicate that non-compliance of it, shall render the vote invalid. Therefore, it has to be considered directory. Similar rule fell for interpretation in Bihari Lall and others vs. Bindeshwari Prasad and others, AIR 1965 Patna 107. The said judgment involves the election of Mayor and Deputy Mayor of a Municipal Corporation in State of Bihar, wherein, it was held as under:- “Of these rules, Rule 6 prescribes the method of taking a poll by ballot. Clause (b) of Rule 6 is as follows: (b) Every Councillor (including the President) desiring to vote shall then proceed to record his vote by placing a cross mark against the name of the candidate for each office for whom he wishes to vote, but shall not sign, or make any mark on the ballot paper and shall, one after the other, place the marked ballot paper in the ballot box provided for the purpose within specified time. If a Councillor votes for more candidates than Letters Patent Appeal No.68 of 2010(O&M) [ 14 ] the number of vacancies, signs the ballot paper or make any other mark on it, his ballot paper shall be deemed to be invalid.” To the contrary, Rule 71 of the Rules of 1978 reads as under:- “71. Ballot to be taken and result thereof – [(1) if only one candidate each for the offices of the President or Vice-president is proposed, such candidate shall be declared to have been duly elected. If the number of proposed candidates is more than one for each office, the voting shall be by ballot. The members present shall be required to vote by writing `yes' or `no' on the ballot paper. The candidate getting the maximum number of votes shall be declared to have been elected. Special ballot- paper shall be used for such voting, each bearing an official mark to be placed thereon by the Deputy Commissioner.” In the light of the aforesaid Rule of Municipal Conduct of Business (Elections of Mayor and Deputy Mayor) Rules (1959) prevailing in Patna, if compared with Rule 71 of the Rules of 1978, it could be observed that Rule 6(b) was mandatory and non-compliance of it expressly shall render the vote as invalid, whereas, Rule 71 of the Rules of 1978 does not contain any such clause, therefore, the rule could be said to be directory, because the breach of this Rule will not invalidate the voting process. At the same time, it is not each and every technical violation or an insignificant infraction of a procedure, which may essentially invalidate the election, unless the breach of such rule materially affects the election result. The framers of the Rules appear to have the intention that an election once held would not be set Letters Patent Appeal No.68 of 2010(O&M) [ 15 ] aside, unless the error, illegality or irregularity is of substantial character materially affecting the result of the election. The Full Bench of this Court in case Bhoop Singh vs. Bar Council of Punjab and Haryana through its Secretary and others, AIR 1977 Punjab & Haryana 40 took very serious exception to set aside the election on the minor defect in the procedure observing that every procedural provision in the election law cannot be raised to such a high pedestal that its violation should ipso facto topple the verdict of the electorate. The relevant observations made by the Full Bench in paragraph 20 are reproduced as under:- “... A bare reference to the basic election statute in the country, namely, the Representation of the People Act, 1951, would show that it is only in the case of such fundamental infirmities like the commission of a corrupt practice, the improper rejection of nomination papers, lack of adequate legal qualification in the candidate or the basic error in the electoral roll itself, that an election would be declared void. It is obvious that these are matters which either go to the very root of the election process, or involve its very purity because of actions involving moral turpitude. Therefore, in such cases, the whole election is voided without reference to its effect on the result. On the other hand, so far the mere non-compliance with the provisions of an Act or a rule made thereunder is concerned, the principle is that the election petitioner must show that the result has been materially affected. This applied not only to a mere infraction of a statutory provision, but even to the infraction of Letters Patent Appeal No.68 of 2010(O&M) [ 16 ] the supreme law of the land, namely, the Constitution itself. The Representation