Harbans Lal, J. - (1.) THIS is a letters patent appeal under clause X of the Letters Patent, challenging the judgment of a learned Single Judge, dated December 17, 1975, by which the Writ petition of Mohinder Singh, Respondent, was accepted.
(2.) THE facts, in brief, are that eighteen members of the Panchayat Samiti, Samrala (hereinafter to be called the Samiti) were elected in accordance with the provisions of the Punjab Panchayat Samitis and Zila Parishads Act, 1961 (hereinafter to be called the Act). A meeting of the Samiti for the purpose of co -opting Scheduled Cast/Scheduled Tribes and women members, as required under Section 5(2) (cc) (iii) of the Act was held on August 7, 1975, under the Presidentship of the Block Development and Panchayat Officer. All the eighteen members cast their votes. The Presiding Officer rejected one ballot paper cast in favour of Mohinder Singh, Respondent, on the ground that the voter had not put a cross mark (X) against the name of the Respondent, but had put only a straight line as a result the Appellant was declared as eo -opted member of the Samiti from the backward classes. This decision of the Presiding Officer and co -option of the Appellant as a member of the Samiti was challenged by means of a writ petition under Articles 226 and 227 of the Constitution of India out of which the present letters patent appeal has arisen. The learned Single Judge, after hearing the counsel for both the parties, came to the conclusion that the mark on the ballot paper, in question, did not " lead to the identification of a voter or an elector " and, therefore, set aside the decision of the Presiding Officer rejecting the ballot paper. It was further held that if that ballot paper being valid was counted in favour of the Respondent both the Respondent and the Appellant will have equal number of votes and as such, a direction was issued to the Presiding Officer to draw lots in the presence of the members of the Samiti and the candidates and to declare the result in the light of the draw. In the writ petition, a preliminary objection had been taken by the counsel for the Appellant that as the writ Petitioner had not availed of the remedy of an election petition, the writ petition was not maintainable. This contention did not find favour with the learned Single Judge. The Learned Counsel for the Appellant has raised the following contentions: 1. That the election, including the co -option, under Act and the rules framed thereunder can only be challenged through an election petition. The Respondent not having availed of that remedy, the writ petition under Articles 226 and 227 of the Constitution of India was not maintainable. 2. That the ballot paper was rightly rejected by the Presiding Officer as there was no cross mark (X) affixed by the voter against the name of the Respondent ; and 3. that the ballot paper was invalid under sub rule (4) of Rule 7 of the Punjab Panchayat Samitis (Co -option of members) Rules, 1961 (hereinafter to be called the Rules). The ballot paper was invalid because instead of cross mark as provided in the rules, only a straight line had been put by the voter against the name of the Respondent which could be identified and, therefore, as envisaged under Rule 5 of the Rules, the same was an invalid ballot paper and was rightly rejected by the Presiding Officer. In support of his first contention that the writ petition was not maintainable in election matters where a remedy of an election petition has been provided under the law, the Learned Counsel for the Appellant has relied upon Nanhoo Mal and Ors. v. Hira Lal : A.I.R. 1975 S.C. 2140, wherein to fill up a casual vacancy in the office of the President of the Municipal Board, the District Magistrate issued notices to the members of the Board calling for filing the nomination papers by September 26, 1974, with the direction that if necessary, the election will take place on October 1, 1974. The validity of the procedure adopted by the District Magistrate was challenged through a writ petition under Article 226 of the Constitution of India. The objection taken was that the procedure for holding election adopted by the District Magistrate did not conform to the provisions of Rule 6 of the U. P. Municipal Committee (Conduct of Election of Presidents and Election Petitions) Order 1964. Relying on N. P. Ponnuswami v. Returning Officer, Namakkal Constituency : A.I.R. 1952 S.C. 64, their Lordships of the Supreme Court came to the following conclusion: The election to the office of the President of the Municipal Board could be challenged only according to the procedure prescribed by the U. P. Municipalities Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. An election petition is to be presented after the election is over and there is no remedy provided at any intermediate stage. In N. P. Pennuswami's case (supra) on which the aforesaid decision is based, one nomination paper for election to the Madras Legislative Assembly bad been rejected. This was challenged through a writ petition. It was in these circumstances that their Lordships of the Supreme Court held - Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court In Nonhoo Mal's case (supra), it was specifically held that, an election petition has to be presented after the election is over and there is no remedy provided at any intermediate stage. Thus, the ratio of the decision of their Lordships in the said case cannot be construed as laying down and invariable rule that in election matters no writ petition under Articles 226 and 227 of the Constitution of India is maintainable challenging a particular election There can be no dispute with the proposition that normally, an election could be challenged through an election petition because generally there are a number of disputed matters of fact in which evidence is called for. However, the law is well established that where there is no dispute about facts and no evidence is to be led, a writ petition under Articles 226 and 227 of the Constitution of India may be an appropriate and speedy remedy in the circumstances of a particular case. In the present case II the facts are admitted and the only question to be determined is whether the ballot paper on which the cross mark (Ã -) was not affixed, but a straight line was drawn against the name of the Respondent was rightly rejected or not, by the Presiding Officer, under the Act and Rules. If it is held to be rightly rejected, the writ petition is to be dismissed ; if it was wrongly rejected, as held, by the learned Single Judge, the writ petition will be held to be validly accepted and the order with regard to the drawing of the lots will be perfectly within the ambit of the Act and the Rules. Therefore, in our considered opinion, the preliminary objection of the Learned Counsel for the Appellant has no substance and the same was rightly repelled by the learned Single Judge.
(3.) IN support of his second contention that the ballot paper was rightly rejected by the Presiding Officer, the Learned Counsel for the Appellant has placed reliance on Sub -rule (4) of the Rule 7 of the Rules, which is reproduced below: The member shall, on receiving the ballot paper, proceed to the place set apart for voting and there place a cross mark "(Ã -)" in column (3) of the ballot paper against the name or names of the candidate for whom he wishes to vote, with a red or blue pencil. According to the Learned Counsel, admittedly, no cross mark (x) was affixed by the voter on the ballot paper, in question, against the name of the Respondent and option instead only a straight lire was drawn. A, the ballot paper had not been marked in accordance with that sub -rule, which is mandatory, there was no alternative with the Presiding Officer, but to reject the said ballot paper. We have perused the rules from beginning to the end. No rule has been pointed out to us which may have provided as to what would be the consequence if cross mark (Ã -) as provided in Sub -rule (4) of Rule 7 of the Rules is not affixed, but some other mark as straight line in the present case is made by the voter from which his intention to caste his vote in favour of a particular candidate may be clearly indicated. Rule 8 of the Rules lays down the circumstance in which the ballot paper will be declared invalid. The said rule is in the following terms: Any ballot paper which bears any mark or signature by which the voter can be identified or on which the mark (Ã -) is placed against more than the number of persons to be co -opted or in an ambiguous manner or in contravention of the provisions of Sub -rule (5) of Rule 7 or which does not bear the signature of the Presiding Officer prescribed in sub rule (3) of Rule 7 shall be declared invalid. A perusal of this shows that it does not lay down that a ballot paper will be declared invalid or rejected in case any other mark is affixed on the ballot paper instead of the cross mark (Ã -). So far as the question of identification of the voter from a particular mark drawn on the ballot paper is concerned, we shall discuss the same later on, but for the present we are to interpret sub rule (4) of Rule 7 of the Rules. In this connection, our attention has been drawn to Rule 56 of the Conduct of Elections Rules, 1961, regarding elections to the State Legislative Assemblies and the Parliament. The said rule is reproduced below: (1) Subject to such general or Special directions, it any, as may be given by Election Commission in this behalf, the ballot papers taken out of all boxes used in a constituency shall be mixed together and then arranged in convenient bundles and scrutinised. (2) The returning officer shall reject a ballot paper - (a) If it bears any mark or writing by which the elector can be identified, or (b) If, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose, or (c) If votes are given on it in favour of more than one candidate, or (d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is spurious ballot paper, or (f) if it is so damaged or mutilated that its identity as genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be, design of the ballot papers authorised for use at the particular polling station, or (h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub rule (1) of Rule 38: Provided that where the returning officer is satisfied that any such defect as is mentioned in Clause (g) or Clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect: Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (3) Before rejecting my ballot paper under Sub -rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot a paper but shall not allow him to handle it or any other ballot paper. (4) The returning officer shall endorse on every ballot paper which he rejects the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement. (5) All ballot papers rejected under this rule shall be bundled together. (6) Every ballot paper rejected under this rule shall be counted as one valid vote: Provided that no cover containing tendered ballot papers shall be opened and no such paper shall be counted. (7) After the counting of all ballot papers contained in all the ballot papers used in a constituency has been completed the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars. Explanation: For the purpose of this rule, the expression "constituency" shall, in relation to an election from a parliamentary constituency, mean the assembly constituency comprised therein. Its perusal shows that according to Sub -clauses (b) and (h) of Sub -rule (2) of Rule 56 of the Conduct of Elections Rules, 1961, reproduced above, a ballot paper has to be rejected if the same does not contain the mark as prescribed under the said rules A combined reading of this rule and Rule 8 of the rules i. e. the Punjab Panchayat Samitis (Co -option of Members) Rules, 1961, shows that the rule making authority has enacted Rule 8 on the lines of Rule 56 of the Conduct of Elections Rules, 1961, but Sub -clauses (b) and (h) of Sub -rule (2) of Rule 50 of the aforesaid rules, have not been incorporated in the said Rule 8 of the Rules. It seems that this was done purposely. The rule making authority while making the rules for the co -option of the Panchayat Samitis members appears to have been conscious of the fact that the voters in the case of elections to the Panchayat Smitis are not so educated in a majority of cases and may be even illiterate, while it was provided that a ballot paper should be marked by a cross (Ã -) with a red or a blue pencil, it was anticipated that it may not be adhered to in many cases, but the intention of the voters may be indicated by some other mark. That is why, while enacting Sub -rule (4) of rule (7) of the Rules, it was not laid down specifically as in Rule 8 of the Rules that in the absence of a cross mark, but there being any other mark against the name of a candidate, showing the intention of the voter, regarding his choice of the candidate, the ballot paper must be rejected Keeping in view the overall scheme in the matter of co -ootion(sic) of Panchayat Samitis members, as contained in the Rules in our opinion the provision as embodied in Sub -rule (4) of Rule 7 of the Rules, cannot be interpreted as mandatory. If instead of cross mark (Ã -) on the boi -lot paper, any other mark is affixed by a voter from which the clear intention can be gathered as to in favour of which candidate the voter had exercised his choice, the ballot paper cannot be rejected. The paramount consideration while accepting or rejecting a ballot paper should be the intention of the voter. For this conclusion, we also derive support from Dhanpat Lal v. Hari Singh : AIR 1969 Raj. 92, in which it was held as under: The dominant consideration in deciding the validity of a vote is to ascertain the intention of the voter It makes no difference whether the mark is put outside the compartment in the paper, opposite the name of the candidate or is put on the reverse so long as it is clear that the voter intended to vote for a particular candidate.......;