Allowed

Prema Chaudhary and Ors. v. The State Of Bihar and Ors.

Patna HC29 Jul 2019CWJC/21718/2018

Case brief

AI extract

What is this about?

In a writ petition, elected Zila Parishad members challenged a no-confidence motion result where their vote was rejected due to marking an 'X' instead of 'x'. The court held the vote valid as it did not violate identification rules and allowed the petition.

What did the court decide?

The Presiding Officer/District Magistrate was directed to declare the result of the No Confidence Motion taking all 13 petitioner votes as valid.

Prema Chaudhary and Ors. Vs The State Of Bihar and Ors. — Election Law | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21718 of 2018

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======================================================

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Prema Chaudhary wife of Sri Dharmadeo Kumar Resident of VillageSohjana,P.S./Block/Distt.-Nawada

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Anita Kumari Wife of Sri Gautam Kapoor, Resident of Village/MohallaGonawan,P.S./Block/Dist.-Nawada

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Dharmashila Devi Wife of Sri Birendra Kumar Resident of VillageBhalua,P.S./Block-Nardiganj,Distt.-Nawada

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Ashok Kumar Son of Late Krishna Prasad Resident of Village-Dila Inglish,P.S./Blockk-Pakriwarawan,Dist.-Nawada

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Kanti Devi Wife of Ram Balak Prasad Resident of VillageLodipur,P.S./Block-Pakriwarawan,Dist-Nawada

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Anjani Kumar Son of Sri Umesh Prasad Singh Resident of VillageKutari,P.S./Block-Warisaliganj,Distt.-Nawada

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Rajendra Prasad Singh Son of Late Darogi Singh Resident of VillageMaheshdih,P.s./Block-Akbarpur,Dist.-Nawada

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Pinki Bharti Wife of Raj Kumar Bharti Resident of Village/P.S./BlockSirdalla,Dist.-Nawada

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Raj Kiskhore Prasad Son of Baijnath Prasad Sinha Resident of VillagePatrang, P.S./Block-Akbarpur,Dist.-Nawada

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Narayan Swami Mohan, Son of Murli Dhar Mohan Resident of VillagePandey Gangout and presently at Shikshak Singh Gali,Ram Nagar, Nawada,P.S./Block/Distt.-Nawada

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Sabo Devi wife of Sri Kuleshwar Yadav Resident of VillageSidhheshwarpur @ Nehaluchak, P.S./Block/Distt.-Nawada

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Ranjeet Kumar Son of Sri Saket Bihari Sharma Resident of Village-Bhelwa, P.S. / Block-Hisua,Distt.-Nawada

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Pinki Kumari Wife of Vinay Kumar Resident of Village-Bhaluatanr Kharant, P.S./Block/Distt.-Nawada

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... ... Petitioners

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Versus

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The State Of Bihar through the Principal Secretary, Panchayati Raj Department, Bihar, Patna.

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The Presiding Officer-cum-District Magistrate,Nawada

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The D.D.C.-cum-Chief Executive Officer,Zila Parishad,Nawada

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The State Election Commission,Bihar,Patna through it's Secetary

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Smt. Pushpa Devi Wife of Sri Kunal Ananad, Resident of Vill.Bela,P.S./P.O./Block-Govindpur,Distt.-Nawada

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Smt. Gita Devi Wife Srawan Kumar Resident of Vill./P.O.-Kochgaon,P.S. Warisaliganj,Distt.-Nawada

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Smt. Ugiya Devi Wife of Ram Briksha Chaudhary Resident of Vill.Pesh,P.O./P.S. Nardiganj,Dist.-Nawada

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Birendra Kumar Singh Son of Srikant Singh Resident of VillageBhadseni,P.O./P.S. Hisua,Distt.-Nawada

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Sri Sharda Rajbanshi son of Rajendra Prasad Resident of VillageTakeya,P.O. Choubey,P.S./Block-Sirdalla,Distt.-Nawada

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Sri Naresh Chaudhary Son of Bhola Chaudhary Resident of VillageBhahadurpur,P.O./P.S.-Rajauli,Distt.-Nawada

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Smt. Manju devi Wife of Ram Vilash Turiya, Resident of VillageSirodabar,P.O./P.s./Block-Rajauli,Distt.-Nawada

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Smt. Rekha Kumari Wife of Sri Santosh Anand Resident of VillagePakariya,P.O. Orhanpur,P.S./Distt.-Nawada

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Smt. Sunaina Devi Wife of Satish Kumar Resident of VillageMahrath,P.O./P.S. Kashichak,Distt.-Nawada

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Sri Anirudh Singh Son of Late Jugeshwar Singh Resident of Village/P.OMarha, P.S./P.O/Block-Roh,Distt.-Nawada

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Smt. Rina Devi wife of Sri Uma Shankar Prasad, Resident of Village/P.O./P.S.Block-Roh Distt.-Nawada

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Sri Ajit Kumar Azad Son of Sri Dwarika Yadav Resident of VillageLalpur,P.O./P.S. Kawakole,Distt.-Nawada

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... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Sidhendra Narayan Singh, Advocate For the Private Respondent Mr. P.K. Shahi, Sr. Advocate For the S.E.C. : Mr. Amit Shrivastava, Advocate Mr. Girish Pandey, Advocate For the State : Mr. Karandeep Kumar, A.C. to G.P.6 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD C.A.V. JUDGMENT

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Date : 29-07-2019

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Petitioner in the present case are the 13 elected members of the Zila Parishad, Nawada who claimed to have voted in favour of a no confidence motion brought against the Chairman (Respondent No.5), but the motion failed when the Presiding Officer cum District Magistrate, Nawada declared one vote invalid, because one of the

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members while casting his vote marked ‘X’ instead of ‘x’.

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It is the case of the petitioners that out of 25 elected members of the Zila Parishad, 13 members had entered appearance and participated in the meeting and all the 13 members voted in favour of no confidence motion.

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The bone of contention in the present case is the impugned Memo No. 274 dated 24.09.2018 (Annexure ‘5’) by which the Presiding Officer held only twelve votes valid and declared one vote invalid for the reason that he found it contrary to the instruction given in letter no. 2535 dated 16.09.2008 of the State Election Commission.

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Mr. Sidhendra Narayan Singh, learned counsel representing the petitioners submits that Rule 96 read with Rule 75 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to “Rules 2006”) lay down the circumstances whereunder a vote may be declared invalid but none of those grounds of invalidation of vote would be attracted in the facts and circumstances of the case.

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It is further contended that in the present case the Presiding Officer has declared one vote invalid

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without giving any opportunity of hearing, hence, the impugned order is liable to be set aside.

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It is submitted that the kind of mark made by one of the voters does not disclose his identity, therefore, by no stretch of imagination one of the votes would be held invalid that too when all the 13 members have vocally entered appearance in the meeting and voted in favour of the motion against the Chairman.

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A counter affidavit has been filed in this case on behalf of respondent nos. 2 & 3. It is the contention of the official respondents (respondent nos. 2 & 3) that it is incorrect to say that all the 13 members did cast their vote by putting prescribed voting marks ‘X’ under the column made for this in the ballot paper. It is stated that a ballot paper is liable to be rejected in terms of Rule 96(d) of the Rules 2006 if no cross (X) mark has been made on it.

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It is submitted that in absence of any direction of the State Government separately in respect of voting in no confidence motion against the Adhyaksha and Upadhyaksha of Zila Parishad under the 2015 Rules, the

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instructions issued by the State Election Commission would govern the field and therefore the District Magistrate has not committed any wrong in holding one of the votes invalid. A copy of the guideline dated 16^th September 2008 issued by the State Election Commissioner has been enclosed as Annexure ‘A’ to the counter affidavit of respondent no. 3. Reliance has been placed on Clause 3(i). It is stated that no fault may be found with the decision of the Presiding Officer.

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Mr. P.K. Shahi, learned senior counsel appearing on behalf of the private respondents has made a submission in consonance with the stand of the official respondents and argued the same.

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Having heard learned counsel for the petitioner, learned counsel for the State as also learned senior counsel representing the private respondents, this court finds that in the present case the only controversy is as to whether the mark cross (X) put on one of the ballot papers made the said vote declared invalid.

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Before proceeding further it would be necessary

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to take note of Rule 75 and 96 of the Rules 2006 on which

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reliance has been placed by all the parties as under: -

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“75. Scrutiny of the ballot papers and their rejection - (1) At any ballot paper contained in the ballot box shall be rejected on the following grounds, if -

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(a) it bears any mark or writing by which the elector can be identified; or

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(b) the ballot paper is fictitious; or

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(d) it does not bear the distinguishing mark or the signature of the Presiding Officer; or

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(e) no vote is recorded on the ballot paper; or

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(f) voting marks have been put in the column of more than one candidate; or

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(g) the mark on the ballot paper has been made by an instrument other than the prescribed one; or

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(h) the ballot papers are not printed in accordance with the name of the candidate or candidates, serial number & symbol allotted to a candidate as recorded in Form 9; or

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(i) other grounds prescribed by a general or special direction of the Commission.

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Provided that, where the Returning Officer or the Officer authorized by him/her is satisfied that any such defect mentioned in clause (d) has been caused by any mistake or failure on the part of a Presiding Officer or the Polling Officer, he may

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direct that the ballot papers shall not be rejected merely on the ground of such defect under clause (d).

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provided further that, if the mark made by the voter extends to two columns of the ballot paper, the same will be counted in favour of the candidate in whose column the major part of such mark falls.

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(2) The Returning Officer or the Officer authorized by him shall, before rejecting the ballot paper under sub-rule (1), give reasonable opportunity to each Counting Agent present to inspect the ballot paper there, but shall not allow him to handle any ballot paper.

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(3) The Returning Officer or the Officer authorized by him/her shall endorse the word “rejected” on the ballot paper so rejected and record the grounds of rejection either by hand or by a rubber stamp.

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(4) The rejected ballot papers shall be bundled together.

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96. Invalid Votes. - A ballot paper shall be treated as invalid if: -

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(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

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(b) the cross (X) mark has been made against the name of more than one candidate; or

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(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

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(d) no cross mark has been made on it; or

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(e) it does not bear the signature of the Presiding

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Officer.”

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Now it is to be examined whether the aforesaid word in mark (X) should be held invalid on the ground of it’s being covered under rule 96(d) of the Rule.

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The relevant part of the guideline (Annexure ‘A’) on which reliance has been placed on behalf of the respondents reads as under:

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^^3 (i) er foHkktu “kq: djus ds igys dk;Zikyd inkf/kdkjh er&i= dk uewuk lHkh lnL;ksa dks fn[kykdj mUgsa (X) fpUg yxkus dh izfØ;k ls Hkyh Hkk¡fr okfdQ djk nsxk rkfd fdlh dks dksbZ Hkze ugha gksA lnL;ksa dks ;g Hkh Li’V dj fn;k tk,xk fd (X) fpUg dh txg (√) yxkus vFkok gLrk{kj djus@vaxwBs dk fu”kku yxkus ;k dksbZ vU; fpUg vafdr djus ;k i{k vkSj foi{k nksuksa esa (X) fpUg yxk nsus ij mldk er jnn ekuk tk,xkA vxj fdlh lnL; }kjk (X) fpUg ds lkFk&lkFk dksbZ vfrfjDr fpUg vFkok fu”kku yxk fn;k tkrk gs rks ml fLFkfr esa Hkh er i= jnn ekuk tk,xk A**

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In course of hearing, learned counsel for the petitioner has placed before this court a Division Bench judgment of this court in LPA No. 1482/2016 (Kiran Devi Vs. State of Bihar and others) to submit that unless there

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is any visible word on the ballot paper which may lead to identification of the voter, the vote could not have been held invalid.

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Although in the impugned order a particular ground in terms of Rule 96 of the Rules is not provided but on going through the contents of the counter affidavit filed on behalf of respondent no. 3, this court finds that the impugned order has been sought to be defended on the ground as stated in Clause (d) of Rules 96, hence, this court has considered this case taking note of the aforesaid grounds shown in the counter affidavit.

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In the counter affidavit it is not the case of the respondents that the mark made by one of the voters led to his identification, the only ground is that it cannot be treated as a valid vote in terms of Clause (d) of Rule 96 of the Rules.

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To this court, it appears that without going into the controversy as to whether the guideline of the State Election Commissioner as contained in Annexure ‘A’ or not in case of voting of no confidence in respect of

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Chairman and Vice Chairman of Zila Parishad it may be safely held that Clause (d) of Rule 96 would not be attracted in the facts of the present case. A bare look at the provisions of the Rule 2006 and the instruction of the State Election Commission would show that if any other mark such as (√) or signature or thumb impression or any other mark or both (X) or any other mark is made in addition thereto, the vote will be held invalid. In this case one of the elected members has put a mark (X), this is neither a signature of the member nor it can lead to identification of the voter. Further it cannot be said that the voter has not put a cross (X) mark, this is also not in addition to the mark (X). The mark put by him is totally innocuous in nature.

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This court, therefore, comes to a conclusion that the decision arrived at by the Presiding Officer/District Magistrate, Nawada as contained in Annexure ‘5’ to the writ application is not in accordance with the Rule 96 of the Rules of 2006 and the same is liable to be set aside.

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The Writ application is, thus, allowed.

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The Presiding Officer/District Magistrate,

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Nawada is directed to declare the result of the No Confidence Motion taking all the 13 votes valid. Let the appropriate consequential action be taken immediately.

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(Rajeev Ranjan Prasad, J)

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Rajeev/-

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AFR/NAFR	AFR
CAV DATE	01.07.2019
Uploading Date	29.07.2019
Transmission Date

Prema Chaudhary and Ors. v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Prema Chaudhary and Ors. v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

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