RAFIQ, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS writ petition has been filed challenging the judgment dated 25. 8. 2007 passed by Rajasthan State Cooperative Tribunal, Jaipur (for short-the Tribunal ). The Tribunal by the said judgment had quashed and set award passed by the Arbitrator under Section 58 of the Rajasthan Cooperative Societies Act, 2001 (for short- `the Act') and allowed the appeal. The dispute pertains to the election of the Office of President of Bassi Gram Seva Sahakari Samiti Ltd. Petitioner Nathu Lal Sharma as well as respondent No. 2 Suraj Mal both were elected as Directors of the said society on 9. 12. 2006 and they both contested the election of the office of the President of the society which was held on 10. 12. 2006. Both petitioner as well as respondent Suraj Mal secured five votes and one vote was rejected. Respondent Suraj, Mal was declared elected by draw of lottery. A dispute was raised by the petitioner under Section 58 of the Act that one of the votes which was cast in his favour was illegally rejected by the Election Officer on the ground that it contained two seals, one in the column of the petitioner and another in the blank column and therefore the said vote was liable to be counted in his favour. The Assistant Registrar, who acted as Arbitrator in the scope of Section 58 allowed the dispute in favour of the petitioner by award dated 23. 3. 07 thereby declaring election of respondent Suraj Malas illegal and holding that one vote which was cast in favour of the petitioner, was illegally rejected by the Election Officer and that being the position, the petitioner was elected on the post of President of the Society. The said award was challenged by the respondent Suraj Mal by filing appeal before the Tribunal under Section 105 of the Act of 2001. The Tribunal by its judgment dated 25. 8. 2007 while allowing the appeal, set aside the award of the Arbitrator dated 23. 3. 07 holding that disputed vote was rightly rejected by the Election Officer as the ballot paper had two seals due to which the elector could be identified. Hence this writ petition. I have heard Shri Chandra Shekhar Sharma, learned counsel for the petitioner and Shri Sandeep Mathur, learned counsel for respondent No. 3. Shri Chandra Shekhar Sharma, the learned counsel for the petitioner has argued that the Tribunal has failed to correctly appreciate the provisions of Rule 45 of the Rajasthan Cooperative Societies Rules, 2003 (for short-`rules of 2003') which inter alia provides that a ballot paper shall be rejected if it bears any mark by which the member who voted, can be identified. It is argued that the election to the various Village Cooperative Societies through out the State were held on the basis of common election programme declared by the respondent State. A common/similar ballot paper was supplied to all such cooperative societies with seven symbols indicated therein from S. No. 1 to S. No. 7. Even society was therefore required to make use of such ballot papers for filling up of names of candidates in each of such columns. In the case of election to the Bassi Gram Seva Sahakari Samiti, there were only two candidates and therefore only two columns were made use of. Rent of the columns were to be left blank. It was argued that name of Nathulal was mentioned at S. No. 1 with the symbol of aeroplane mentioned thereagainst whereas name of Suraj Mal was mentioned at S. No. 2 of ballot paper with the symbol of Almirah. The disputed ballot clearly contained the seal against the name of petitioner Nathulal Sharma on the symbol of aeroplane. The concerned elector However erroneously also affixed the seal in column No. 4 which was blank and did not have name of any candidate. Learned Arbitrator rightly took the view that the seal additionally affixed in a blank column was inconsequential because the elector had clearly indicated his desire of voting in favour of petitioner by categorically affixing the seal in column No. 5 on the symbol of aeroplane. There was no clear indication, nor was it is possible to identify the elector. The learned Tribunal however erred in law in holding that such additional seal would make the identification of the elector possible and would therefore render the ballot/vote to be rejected. Shri Chandra Shekhar Sharma, learned counsel for the petitioner further argued that the Tribunal has failed to appreciate true ratio of the Constitution Bench judgment of Supreme Court in Dr. Anoop Singh vs. Shri Abdl Ghani & Ors. reported in AIR 1965 SC 815, according to which, vote could be rejected on such ground only if the ballot contains mark or writing other than what is permitted in law and that the mark or writing should be such that the elector can be identified because of it. In the present case, however, the same seal which was used by the elector while indicating his choice of vote in favour of petitioner was additionally used in blank column No. 4 as well. It cannot be treated as a mark or writing so as to make identification of the elector possible. Learned counsel for the petitioner also relied on the judgment of Supreme Court in Mangi Lal vs. Subhash & Anr. reported in 1997 (1) WLC 327 and argued that in the case of equality of votes, draw of lots cannot be mechanically adopted by the Returning Officer who is under the statutory obligation to correctly undertake the work of counting of votes. Shri Chandra Shekhar Sharma, learned counsel for the petitioner also relied on the judgment of Supreme Court in Kumari Shradha Devi vs. Krishna Chandra Pant & Ors. reported in (1982) 3 SCC 389 (II) and argued that the mark or writing which would invalidate the ballot paper must be such as to itself unerringly point in the direction of or reasonably give indication of the identity of the voter and that the ballot paper cannot be rejected merely because there is some mark or writing. Learned counsel for the petitioner also relied on the judgment of Election Tribunal, Ludhiana in Sohan Lal vs. Abinash Chander & Ors. reported in E. L. R. Vol. IV page 55. Learned counsel also argued that the supply of proforma of the ballot paper and then filling up the names of the candidates in first two columns of the proforma, which had symbols in all its seven columns, created confusion in the mind of the electors. The affixation of additional seal in fourth column was therefore only a bona fide mistake. This did not however mean that the voter became identifiable for that reason.
(3.) PER contra, Shri Sandeep Mathur, learned counsel for the respondent argued that elections of the Board of Directors of the society through out the State were held on 9. 12. 2006. In the present case, eleven Directors were elected on that day. Election for the office of President & Vice President took place on 10. 12. 2006. Complete process of the election of the office bearer including receipt of nomination paper, scrutinizing, voting, counting and declaration of result was completed in one single day. It was therefore not possible for the election officer to print the ballot papers after the receipt of the nomination papers on the same day. The blank ballot papers were used only to facilitate the election on the same date. Shri Sandeep Mathur, learned counsel for the respondent therefore denied that there was confusion for this reason. Although the respondent No. 3 sought time to file reply on three earlier occasions but he could not appear before the Arbitrator on 22. 3. 2007 due to illness and therefore sent the application for adjournment. Learned Arbitrator however refused to grant the adjournment and fixed the matter on 23. 3. 2007 and thereafter he without framing the issues and without recording any evidence decided the matter on the very same day. The award passed is therefore in any case liable to be set aside. It was argued that the present ballot paper made the identification of the voter possible because of its distinguishing feature that it was the only ballot which had two seals and similar ballot was followed by the said voter in the election for the office of Vice President too which also was held on the same day. His intention was clear that he wanted himself to be known to the candidate in whose favour he voted. His identification thus was disclosed at least to the candidate in whose favour he indicated his choice of vote. The Tribunal therefore has rightly held that the additional seal even affixed on the blank column made identification of the elector possible. Learned counsel for the respondent in this connection relied on the judgment of this Court in Mannalal vs. Mannalal - (1964) ILR 803 and Inder Singh vs. Sheonath Singh & Ors. (1968) ILR 68. It was therefore prayed that the writ petition be dismissed. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties, respectfully studied the cited case law and perused the material on record. Sub-rule (21) of Rule 45 of the Rules of 2003, which is relevant for deciding the controversy involved in the present matter provides as to on what basis the ballot paper shall be rejected by the Election Officer. It would be therefore useful to reproduced sub-rule 21 of Rule 45 in extenso:-      " (21) A ballot paper shall be rejected by the Election Officer- (a) if it bears any mark by which the member who voted can be identified; or (b) if it does not bear the seal of the society; or (c) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which the candidate the vote has been cast. ;