- (1.) This writ petition has been filed by Gurbax Singh against notification No. 6 (III) B-USLG (3)/257 (Spl.) dated 9th of November, 1979 of the Punjab Government (Annexure P. 11 to the petition) by which on the basis of the report of the Election Commissioner and the opinion of the Civil Court, his election as a President of Municipal Committee, Jaitu was set aside.
(2.) The facts of the case leading to this petition are that the Municipal Committee, Jaitu, has 16 members, out of whom 12 are elected and 4 are co- opted. The election to the office of the President of Municipal Committee was held on 22nd of December, 1977 by the Sub-Divisional Magistrate, Faridkot, as the convener and in this meeting all the 16 members were present. The petitioner and Shri Surinder Kumar Mittal, respondent No. 3, were the only two candidates proposed for the office of the President and they contested the election. Before the voting, one ballot paper bearing the signature of the Deputy Commissioner, Faridkot, was given to each individual member. The convener gave directions to the members present that they were to affix a cross mark against the name of the candidates out of the petitioner and respondent No. 3, in whose favour they wanted to vote. He further made it clear that the mark of cross placed against the candidate should not cross over to the space of the other candidate. The votes were polled through a secret ballot. After all the 16 votes were cast, the convener opened ballot box and counted the votes. The petitioner and respondent No. 3 polled equal number of votes, that is, each got 8 votes. On examination of the ballots, it was found that in ballot paper Annexure P.4 polled in favour of respondent No. 3, the limbs of the cross had projected into the column of the petitioner. In ballot paper Annexure P.5, the voter put a cross-mark in a blank space above the names of the candidates and placed 'T' mark in the ruled compartment against the name of respondent No. 3. In the ballot paper Annexure P.6, the elector put a horizontal line in front of the name of respondent No. 3. On an objection by the petitioner about the validity of ballot papers Annexures P.4, P.5 and P.6. The convener accepted Annexures P.4 and P.5 as valid votes but rejected Annexure P.6 in which the option for voting was not indicated by a cross mark. On counting all the valid votes, it was declared that the petitioner polled 8 votes and respondent No. 3, seven votes, consequently, the petitioner was elected as the President.
(3.) Respondent No. 3 not satisfied with the result of the election, preferred election petition before the appropriate Election Commission, challenging the rejection of the ballot paper. Annexure P.6, on the ground that the intention of the elector in favour of the petitioner was discernible from a bare look at the ballot paper and the non-conformity of the direction regarding the affixation of the mark did not invalidate the vote. The petitioner in his reply supported the rejection of Annexure P6, but also took as additional plea that Annexures P.4 and P.5 had been wrongly accepted by the Election Commissioner. The Election Commissioner tried the election petition and came to the conclusion vide his report Annexure P.7 that ballot papers Annexures P.4 and P.5 were rightly accepted by the convener and ballot paper Annexure P.6 was wrongly rejected. The petitioner then filed a representation to the Government, Annexure P.8. The Government, vide Annexure P.9, referred the matter to the Civil Court formulating the following points :- (a) Whether there is a compliance of the resolution dated 22nd December 1977 in the matter of marking the aforesaid three ballot papers? (b) Whether the decision of the Returning Officer accepting or rejecting the above referred three votes is right or wrong? (c) Which out of the three votes are likely to be accepted as valid votes? (d) Which out of the three votes are liable to be rejected as invalid votes? The Civil Court after hearing the parties agreed with the report of the Election Commission regarding the wrongful rejection of ballot paper Annexure P.6 and returned an opinion of favour of respondent No. 3. Consequent to the report of the Civil Court, the Punjab Government, vide aforesaid notification, declared the election of the petitioner as President of the Municipal Committee, Jaitu on 22nd December, 1977, as null and void. The petitioner through this petition has challenged the report of the Election Commission, findings of the Civil Court and the notification of the Punjab Government on the ground that the direction given by the convener in the proceedings of the meeting of the Municipal Committee for election regarding the affixation of cross-marks as an indication of vote in favour of a particular candidate was mandatory and a violation of this instruction by any voter was to invalidate the vote. It was also averred that the secrecy of the vote was impugned. On this basis it has been asserted in the petition that ballot papers Annexures P.4 and P.6 were wrongly taken into consideration in favour of respondent No. 3.;