JUDGMENT
M.R. Agnihotri, J.
1. This is a letters patent appeal against the judgment of the learned Single Judge dated 5th November, 1992 by which C. W. P. No. 8377 of 1992 was allowed and respondent Ramesh Chander Sehgal was ousted from the office of President Municipal Committee, Rohtak, by a no confidence motion by a majority of 24 members out of 36.
2. In nutshell, the factual position is that 24 members of the Municipal Committee, Rohtak, submitted a memorandum to the Deputy Commissioner, Rohtak, for convening a meeting for considering the no-confidence motion against the President, Shri Sehgal The requisition was challenged in this Court by the President, Shri Sehgal, in C. W. P. No. 6642 of 1992. During the course of hearing of this petition, he, however, agreed to call a meeting for 8th June, 1992, in the Municipal Hall, Rohtak, under the chairmanship of Mr. T. K. Sharma, Sub Divisional Officer (Civil), Rohtak. Accordingly, the meeting was convened and no confidence motion against the petitioner was carried out by the majority of 24 members out of 36. As a result thereof, the President, Shri Sehgal, had to vacate the office and thereafter he filed a separate writ petition-C. W. P. No 8377 of 1992 challenging the resolution of passing the no-confidence motion against him.
3. The solitary grievance made in the writ petition before the learned Single Judge was that in view of the political climate of the State, 24 Municipal Commissioners, out of the strength of 36, had prearranged and pre-planned to oust the President by carrying out toe vote of no confidence against him, and it was in pursuance of that pre arrangement that the voting had taken place to achieve their object. In this background, the grievance has been projected in the term of legal contention by pleading that, according to rules 49, 52 and 59 of the Haryana Municipal Election Rules, 1978, while marking the ballot papers for the purpose of voting, secrecy of voting was not maintained, inasmuch as the mark on the ballot papers was not with the instrument supplied for the purpose, but by the voters using their own pen On this basis, the arguments proceed to contend that the Presiding Officer should have rejected all the 24 ballot papers and as a consequence the President. Shri Sehgal, should have been allowed to hold the office of the President, Municipal committee, even if 24 voters out of 36 had voted against him.
4. The learned Single Judge has, in his very detailed judgment, very succinctly marshalled the factual position of the case and has rightly rejected the preliminary objections raised by the learned Advocate-General, Haryana. However, the writ petition has been allowed by holding that secrecy of voting had been violated because the ballot papers had been marked by the voters by not using the instrument supplied to them, that is, the ball point pen, but by using their own pen. As a result thereof, the learned Single Judge has quashed the resolution by which no-confidence motion was carried for the ouster of the President by majority of 24 votes out of 36. For arriving at this conclusion, the learned Single Judge has placed reliance on two judgments of the Hon’ble Supreme Court reported, as N.E. Horo v. Leander Tiru, A. I. R. 1989 S. C. 2023. and Era Sezhiyan v. T. R. Balu, A. I. R. 1990 S. C. 838.
5. In this appeal before us, Mr. Harbhagwan Singh, learned Senior Advocate, appearing on behalf of the State of Haryana and others, has vehemently contended that merely by not using the instrument of marking as supplied to the voters at the time of voting, the secrecy of voting has not been voilated at all According to the learned counsel, the secrecy of voting is not violated even when the voter himself states in election petition as to in whose favour he has cast his vote. In support of his submission, reliance has been placed by the learned counsel on the judgment of the Supreme Court in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, A .I. R. 1980 S. C. 1362. The relevant para from the aforesaid judgment of their Lordships of the Supreme Court is reproduced below :-
“Section 94. however, does not enact an absolute prohibition or a total embargo on a voter being questioned about how he voted. It is the privilege of the voter to refuse to answer a question as to for whom he voted. Ensuring the secrecy of ballot does not mean that there is a total embargo and absolute prohibition on finding out through the mouth of a voter for whom he voted. If Section 94 is interpreted to mean to be a privilege of the voter to divulge or not to divulge how he voted and if he chooses not to divulge, Section 94 protects him inasmuch as he cannot be compelled to divulge that information, then it does not stand in conflict with the other important principle of free and fair elections to sustain parliamentary democracy But if a voter chooses to open his lips of his own free will without a direct or indirect compulsion and waive of the privilege, nothing prevents him from disclosing how he voted. There is no provision which would expose him to any penalty if a voter voluntarilly chooses to disclose how he voted or for whom he voted. Section 128 has nothing to do with the voter disclosing for whom he voted. It casts an obligation of secrecy of those connected with the process of election and not on the voter”.
Distinguishing the aforesaid two judgments relied upon by the learned Single Judge, it has been contended by Mr. Harbhagwan Singh, the learned Senior Advocate, that the Hon’ble Supreme Court was not dealing with the case of elections under the Municipal Act, much less considering of no-confidence motion against the President, but a case under the Representation of the People Act, In one case, election was to the Rajya Sabha where the voting pattern is different. In the present case, the pattern of voting did not require the writing of ‘yes’ or ‘no’ nor was it the putting of an arrow or cross mark by the seal to be provided at the time of voting. All that was required to be done by the voter was, to signify his Will and wish with the pen which could hardly provide any help in disclosing the identity of the voter Not a single ballot has been found containing any other mark except the “tick” of the voter, on the basis whereof the ballot could be rejected.
6. In view of the aforesaid position, with respect, we do not agree with the view taken by the learned Single Judge. Consequently, we allow this appeal and dismiss C. W. P. No. 8377 of 1992. There shall, however, be no order as to costs.
7. So far as C. W. P. No 6642 of 1992 is concerned, the learned single Judge rightly did not feel the necessity of deciding the same, us with efflux of time it bad already become infructuous, and that is why later C. W. P. No. 8377 of 1992 had to be filed. Thus, L. P. A. No. 1283 of 1992 in C. W. P. No. 6642 of 1992 stands disposed of accordingly.