- (1.) BY means of this writ petition the petitioner has prayed for the issue of writ of certiorari to quash the entire proceeding pending before Housing Commissioner/Registrar Urban Housing Co-Operative Societies U P. Avas Evam Vikas Parishad and others and has also prayed for the issue of writ of mandamus commanding him to decide the case according to law. -
(2.) IN the election of the U. P. Sahkari Avas Sangh Limited the petitioner and the opposite parties nos. 4 and 5 filed their nomination papers for the office of Vice President. After the counting of vote it was declared that - the petitioner and opposite party no. 4 secured equal number of vote, i.e. four votes. Opposite party no. 3 secured 3 votes. Accordingly lots were drawn as contemplated under rule 427 U. P. Co-operative Societies Rules 19o8 by the Returning Officer. After the lots were drawn, petitioner was declared elected as Vice President. It is thereafter the said opposite party no. 4 filed a reference before opposite party no. 1 under section 70 of the U. P. Co operative Societies Act and the petitioner filed written statement to the same. No issue had been framed arising out the pleadings of the petitioner and the opposite party no. 4. The petitioner raised objection before opposite party no. 1 that no scrutiny of the ballot papers could and can be done without framing issues and evidences. Opposite party no. 1 opened and broke the sealed cover containing the ballot papers of the election in question and fixed 31-8-1989 for the final orders On be half of the petitioner it was contended that in the absence of any prima facie evidence it was improper on the part of the opposite party no. 1 to break and open the sealed cover containing the ballot papers of the election in question and it was not within the jurisdiction of opposite party no. 1 to try the reference of election or to allow the inspection or to carry on scrutiny, of the ballot papers by breaking sealed cover and thereafter to proceed and decide the case finally on such ground. In para 4 of the reference it has been mentioned that opposite party- petitioner secured only 3 votes since the ballot paper of one of the votes counted in favour of Sri Verma was defective and ambiguous. A perusal of the disputed ballot paper shows that it contains two contradictory marks : one cross mark affixed from a seal and the other tick mark made by the pen against the name of dependent no. 2. It was contended that the said ballot paper ought to have been rejected out rightly being expressly violative of the provisions made in Rules 423 and 424 of the Co-operative Rules. According to opposite party no.- 4 simultaneous use of two different and contradictory marks on the same ballot papers makes it ambiguous and accordingly the same invalid and further tick mark seriously jeopartizes the secrecy of the ballot. Tick mark is an indication of undue influence exercised by defendant no 2 or his agent which has interfered with the free exercise of the electoral, right of the voter. Two marks which are directly opposed to each other cannot signify any positive exercise of vote. It is ambiguous, against the law and it therefore invalid. Defendant No. 2 Vinod Behari Verma in the written statement has stated that the marking if any on the alleged ballot paper or not contradictory. The marking indicate the intention of the voter to cast vote in favour of the answering defendant and no other conclusion is possible. It was also stated by him that he secured 4 votes. None of the four votes in favour of him was either ambiguous or defective The marking in all the four ballots was well within the space meant of him.
(3.) ROLE 424 enumerates the grounds ; 424 (1) A ballot paper shall be rejected, if (i) It bears any signature to identify the voter; (ii) It does not bear the seal of the society or the initials of the polling Officer; (iii) It contains no mark, indicating a vote; (iv) It contains more marks than the number of the seats to be filled. The law regarding inspection and scrutiny of ballot papers from the judicial decisions by the highest court is very specific. An order for inspection cannot be granted as a matter of course. Scrutiny of ballot papers cannot be allowed to be made on vague pleas or in the absence of any prima facie evidence. In the garb of seeking inspection, a candidate should not be allowed to make a reving inquiry in order to fish out materials to set aside the election.;