Letters Patent Appeal No.690 OF 2009 ******* Against the order of the learned single Judge Passed in CWJC no. 9830 of 2006 dated 15.4.2009. ******* Pramod Kumar Singh, s/o late Ramdhin Prasad Singh, resident of Village-Poria, P. S. Sangrampur, P. O. Supaul Jamwa, Sub-Division- Tarapur, District-Munger. -( Rspondent no.5)-Appellant Versus 1. The State of Bihar, 2. The Election Commission Through The Chief Election Commissioner, Bihar at Patna, District- Patna. 3. The District Magistrate, Munger Cum District Election Officer at Munger, District-Munger 4. The S.D.O. , Tarapur Cum Election Officer, Subdivision and P.S. Tarapur, District-Munger. -(Respondents)-Respondents 5. Vijay Kapari, S/O Late Sant Lal Kapari, R/O Village- Durmatta, P. O . Durmatta, P.S. Harpur, Sub-division-Tarapur, District- Munger. -(Petitioner)-Respondent ******* For the Appellant : M/s. S.N.P. Sharma & Jitendra Pandey For the State : A.C. to G.P. 9 For State Election : M/s R.S. Pradhan & Commission Rajeev Lochan For Private Respondent : Mr. Bindeshwar Kumar 2 P R E S E N T THE HON'BLE THE CHIEF JUSTICE THE HON'BLE Mr. JUSTICE SHIVA KIRTI SINGH Dipak Misra, CJ. Questioning the legal acceptability and defensibility of the order passed on 15th April, 2009 passed by the learned single Judge in CWJC no. 9830 of 2006 the present appeal has been preferred under Clause–X of the Letters Patent. 2. Sans unnecessary details the expose‟ of facts are that the respondent no.5 and the present appellant contested in the election for the post of Pramukh of Sangrampur Panchayat Samiti by filing their nomination papers on 20th July, 2006. The said Panchayat contained directly elected members who constituted the electoral college for the purpose of election of the said Pramukh. The date of election was initially fixed on 28th June, 2006 by the Sub-divisional Officer for conducting the election in the Office of the Block Development Officer but, as put forth by the writ petitioner in the writ petition, the Sub- divisional Officer, with the ulterior motive, cancelled the meeting and fixed the date to 20th July, 2006. It was contended before the 3 writ court that the said adjournment of the meeting was in violation of the guidelines of the Election Commission. It was put forth that the Sub-divisional Officer had deliberately not arranged the video recording of the election process so that there would not be any evidence to show the errors ommitted by him and all these acts have been done to show favour to the present appellant who was the respondent no.5 in the writ petition. It was urged that out of thirteen members only six members cast their votes in favour of the present appellant and seven members cast their votes in favour of respondent no.5 herein. One of the votes cast by the members was declared invalid by the Sub- divisional Officer on the ground that the cross mark, (X), by the said member was put adjoining to the name of the writ petitioner but was not put in the column after the oblique line in front of the contestant. It was canvassed before the learned single Judge that the intention of the member who had cast the vote in favour of the writ petitioner could be gathered from the cross mark put adjoining to his name and there was no ambiguity or confusion whatsoever to gather the intention, but after the vote was cancelled lottery process was adopted, the present appellant (the respondent no.5 to the writ petition) was declared as Pramukh. 4 3. It is worth noting, being dissatisfied with the action of the Sub-divisional Officer the writ petitioner approached the State Election Commission for declaring the election of the respondent no.5 as invalid and to declare him as elected but the application put forth by the writ petitioner before the State Election Commission was rejected by order dated 03rd August, 2006. As is evincible from the order of the learned single Judge the assail to the order passed by the State Election Commission was abandoned and the whole controversy was put to challenge invoking the inherent jurisdiction of this Court under Article 226 of the Constitution of India. The singular ground that was propounded before the learned single Judge is that the ballot paper that was rejected by the Sub-divisional Officer in exercise of power under Rule 96 of the Bihar Panchayat Election Rules, 2006 (for brevity „the Rules‟) was absolutely unjustified and in total transgression of Rules. The learned single Judge adverted to the Rule 96 and expressed the view that the ballot paper could not have been declared invalid under four corners of Rule 96 and hence, the action taken by the Sub-divisional Officer- cum-Election Officer was unjustified. Quite apart from the above the learned single Judge also referred to the guidelines dated 11th August, 2006, contained in Annexure-4 issued by the 5 State Election Commission which specifically relates to the election on post of Pramukh and provides that if the cross marks (X) in the ballot paper is not put in the column prescribed for the same but has been put on the name of the candidate or next to it from which it is clear that the voter had voted in favour of such candidate then such ballot paper would not be treated as invalid. After analyzing the provision the learned single Judge expressed the view that the mark that has been put adjoining to the name of writ petitioner was clear as crystal to show the intention and there was no acceptable reason to reject the said ballot paper. Being of the said view the learned single Judge quashed the order passed by the Sub-divisional Officer and directed that the election of the writ petitioner on the post of Pramukh was valid and accordingly so ordered. 4. We have heard Mr. S.N.P. Sharma, learned senior counsel along with Mr. Jitendra Pandey, for the appellant, Assistant Counsel to Government Pleader no.9 for the State, Mr. R.S. Pradhan , learned senior counsel alongwith Mr. Rajeev Lochan, for the State Election Commission and Mr. Bindeshwar Kumar, learned counsel for respondent no.5. 6 5. Mr. Sharma, learned senior counsel, submitted that when there is a mandate under Rule 95 how a member shall cast his vote, there could not have been any deviation therefrom and such deviation would automatically attract the postulate engrafted under Rule 96. It is propounded by him that when a statute requires a particular thing to be done in a particular manner the same should be done in that manner or not done at all. It is canvassed by him that when the cross (X) mark has not been put in the column against the name of a candidate the vote deserves to be rejected and there was no justification to treat it as a valid vote. To bolster his submission he has commended us to a decision reported in Babu Ram Vrs. Smt. Prasunni, AIR 1959 SC 993. 6. Mr. R.S. Pradhan, learned senior counsel appearing for State Election Commission and Mr. Bindeshwar Kumar, learned counsel appearing for the respondent no.5, supported the order passed by the learned single Judge contending, inter alia, that the vote has been correctly treated to be valid in view of the language employed in Rule 96 and the guidelines issued by the State Election Commission. 7 7. To appreciate the rivalised submissions raised at the Bar, we required the ballot paper to be produced before us and, accordingly, it was produced in a sealed cover. On a scrutiny of the ballot paper it is noticeable that there were two contestants and the voters has put a cross (X) mark adjacent to the name of Vijay Kapari, the fifth respondent herein. In this context we may profitably refer to Rule 94. Rule 94 of the Rules deals with ballot paper, The same reads as follows: “94. Ballot-paper:- The ballot paper shall be in Form-26. The ballot paper shall be signed by the Presiding Officer.” 8. As is evident from the said Rule there is reference to Form- 26. Form-26 is in three columns, namely, Serial number, name of candidate and space for cross (X) mark. There is instruction in the Form to put cross mark (X) against the name of the candidate. Rule 95 deals with procedure of poll and the same is as follows: “95. Procedure of Poll:- (1) Each member shall be given a ballot paper separately on which he/she shall mark his/her vote by putting secretly a cross (X) against the name of a candidate. (2) All such ballot-papers shall be collected in accordance with the secret procedure prescribed by the Presiding Officer.” 8 Rule 96, which provides how ballot paper shall be treated as invalid, is reproduced hereunder: “96. Invalid Votes:- A ballot paper shall be treated as invalid if:- (a) it bears the signature of a member or there is any such visible word which may lead to the identification of the voter; or (b)the cross (X) mark has been made against the name of more than one candidate; or (c) the mark has been made in such a manner that it can not be ascertained as to which candidate the vote has been cast; or (d) no cross mark has been made on it; or (e) it does not bear the signature of the Presiding Officer.” 9. Be it placed on record, guidelines that have been issued by the State Election Commission stipulates that where the cross mark (X) has been put either in the name of the candidate or adjoining to his name the ballot paper should be accepted as valid and should not be treated as invalid. On scanning of the anatomy of the aforequoted provisions, it is vivid that a member is required to put a cross (X) mark against the name of the candidate. There is a column of putting for cross (X) mark. It is appropriate to state that the same is in the compartment of procedure. Rule 96 categorically provides under what circumstances a ballot paper is to be treated as invalid. On a perusal of the prescriptions under Clauses (a) to (e) of Rule 96, it 9 is luculent that they relate to different realms altogether. They do not cover a situation of the present nature. Submission of Mr. Sharma is that when there is violation of Rule 95 the concerned competent authority had rightly declared the vote to be invalid and the learned single Judge has fallen into great error by dislodging the said order. There can be no shadow of doubt that Rules 94 to 96 have to be read conjointly and the mandate of Rule 96 have to be given its true meaning the same being categorical and absolutely unambiguous. When a ballot paper does not fall in any of the compartments of Clauses (a) to (e) it would not be correct to treat the ballot paper as invalid. The guidelines though, we may profitably observe, have been issued by the State Election Commission, after the order passed by the Sub-divisional Officer, yet it can safely be concluded that it is in accord with Rule 96, rather, in fact, expresses the true conceptual meaning that should be placed on the language employed in Rule 96. The decision rendered in the case of Babu Ram (Supra) which has been commended to us by Mr. Sharma really does not assist him from any spectrum. As is evident Rule 95 requires a voter to put cross (X) mark against the name of the candidate. True it is, there is Form-26 and there is a column in it but it is the Rule 96 which provides the consequence. In the absence of any provision 10 in Rule 96 to the effect that if a vote is not put in the column prescribed for a candidate, it would be invalid, it would be difficult nay impossible, to place the said construction on the provision. The submission of Mr. Sharma is primarily based on Rule 95 and on that foundation it is propounded that if the vote is not cast in the manner it is provided it should be treated as invalid. It is well settled in law that when Statute gives certain power to the authority to be exercised in a particular manner that power has to be exercised only in that manner. The exercise by a manner contrary to what has been prescribed makes the order ultra-vires. In this context, we may fruitfully refer to a three- Judges Bench decision of the Apex Court in Ramchandra V. Govind, AIR 1975 SC 915, wherein it has been held as follows: “A century ago, in Taylor V. Taylor, (1875) 1‟ Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in what way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council in Nazir Ahmad V. Emperor, 63 IND APP 372 = (AIR 1936 PC 253(2) and later by this Court in several cases, Shiv Bahadur Singh V. State of V.P, (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Cri LJ 910); Deep Chand V. State of Rajasthan, (1962) SCR 662 = (AIR 1961 SC 1527 = 1961 (2) Cri, LJ 705 ) to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies “where, indeed, the whole aim and object of the Legislature would be plainly defeated 11 if the command to do the things in a particular manner did not imply a prohibition to do it in any other. Maxwell‟s Interpretation of Statutes, 11th Edn. , PP, 362-363. ‟‟ The rule will be attracted with full force in the present case, because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of this legislature to prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the surrender and rendered it non-est for the purpose of S. 5 (3) (b).” 10. In the case at hand, Rule 96 in a categorical manner lays the procedure how the ballot paper can be treated to be invalid. Unless a ballot paper falls into that category in the completest sense it cannot be treated to be invalid as that will be stretching the languagage of the Rule. The Apex Court, in Smt. Hira Devi and Others V. District Board, Shahjehanpur, AIR 1952 SC 362, has expressed the view that when express powers have been given to a particular Authority, it would not be appropriate and legitimate to resort to any kind of general or implied powers under the general law. We have referred to the aforesaid decision only to highlight that reliance placed on Rule 95 by the learned counsel for the appellant is of no assistance as that is not the provision which provides for treating a ballot paper as 12 invalid. When there is a specific provision the same has to be given due effect. 11. In view of the aforesaid premises, we perceive no error in the order of the learned single Judge and consequently the appeal, being bereft of substance, stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. (Dipak Misra, C.J.) Shiva Kirti Singh, J. I agree. (Shiva Kirti Singh, J.) Patna High Court, The 12th January, 2010. AAhmad/(AFR).