ORDER
J.N. Patel, J.
(Note: The learned Counsel for the respondent No. 1 has filed a Pursis on 2-9-1999 stating that the respondent No. 1, namely, Madhukar Ramrao Bhuibhar, expired on 25-8-1999. The learned Counsel for the parties state that irrespective of the fact that the respondent No. 1 having expired on 25-8-1999, this petition will have to be disposed of on merits. In my opinion, the present petition requires to be considered on merits as election petitioner has died after the decision of the election petition in his favour and action survives.)
1. The petitioner Sudhakar Gangaram Bahale seeks to impugn the order dated 29th September, 1998 passed by the Additional Commissioner, Amravati Division, Amravati, in Election Petition No. 6/Ele-Pet/ 144-T of 1996-97 of Akola, under which he has set aside the election of the petitioner (original respondent No. 3) and declaring respondent No. 1 (original petitioner), Madhukar Ramrao Bhuibhar, as elected member till the Managing Committee completes its term, of Nilkanth Sahakari Soot Girni Ltd., Akola, a specified society within the meaning of section 73G of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as ‘the Societies Act‘ for the sake of brevity).
2. Nilkanth Sahakari Soot Girni Ltd., Akola, (hereinafter referred to as ‘the Society’), is a duly specified Society registered under the Societies Act, 1960 and its jurisdiction extends to Akola District. Elections to elect the Managing Committee of the Society had to be taken as provided under Chapter XI of the Societies Act and as per the provisions of the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971 (hereinafter referred to as ‘the Elections Rules’ for the sake of brevity); therefore, the Collector, Akola, published an Election Programme on 26th March, 1997, for the said Society and appointed the Sub Divisional Officer at Akola as its Election Officer, to conduct the elections of the Managing Committee of the Society for incoming five years. In the Election Programme, there were several Constituencies, and from various Constituencies, the Committee Members were to be elected by the voters as per the Voters List. The dispute relates to the election of one member to the Managing Committee of the specified Society, from “Ginning, Pressing and Processing Co-operative Society”, which has 13 voters in its Electoral College, who are entitled to elect one Member to the Managing Committee of the Society . The petitioner as well as the respondent No. 1 filed their nomination papers from this Constituency for contesting the elections. Their nomination papers were accepted. In the elections held, all the 13 voters had cast their votes by participating in the process of voting. Upon counting of votes, the petitioner received 7 votes and the respondent No. 1 polled 6 votes. The respondent No. 1 took objection in respect of the validity of two votes cast under ballot paper Nos. 017 and 018, but the Returning Officer rejected the objection in respect of the validity of these votes and these votes were allegedly held in favour of the petitioners. An application for recount of votes came to be made on the basis that these two ballot papers were invalid. The Returning Officer acceded to the request and recounted the votes, but rejected the objection that they were invalid votes and declared that the petitioner was elected as Member of the Managing Committee of the Society. The respondent No. 1 therefore, challenged the election by filing an Election Petition under section 144T of the Societies Act before the Additional Commissioner, Amravati Division, Amravati, which came to be registered as Election Petition No.6/Ele-Pet/ 144-T/96-97 of Akola. The petitioner filed his written statement on 11.8.1997. Though an application for stay also came to be filed before the Additional Commissioner, but the Additional Commissioner did not take cognizance of the same and no orders were passed on it. The Sub Divisional Officer also filed his reply, in which it was his contention that the alleged over-writings on the two ballot papers, viz., Nos. 017 and 018, do not disclose the identity of the voters while the intention of the voters to vote in favour of the petitioner was clearly expressed because against the name of the petitioner, there appears to be a marking with the instrument of marking that was supplied and, therefore, these votes would not be rejected in terms of Rule 60 of the Elections Rules, 1971.
3. It appears that before the Additional Commissioner, both the parties agreed that the Election Petition can be decided by perusing the ballot papers which were kept in a sealed packet, according to the report of the Election Officer, and as such there is no need of recording any evidence, which came to be recorded in the order-sheet dated 15-10-1997, but subsequently, the Counsel for the petitioner filed an application for leading evidence, which came to be rejected by order dated 13-7-1998, as the Tribunal trying the Election Petition came to the conclusion that both the parties agreed not to lead any evidence. After hearing the parties, the Additional Commissioner passed the impugned order setting aside the election of the petitioner (original respondent No. 3) and declaring the respondent No. 1 (original petitioner) as elected Member, on the basis that ballot paper Nos. 017 and 018 bore additional marks other than the instrument supplied for marking purposes and, therefore, were liable to be rejected as per Rule 55(2)(a) of the Election Rules, 1971, and also came to the conclusion that the Election Officer has improperly counted the votes, as after rejection of the two ballot papers polled in favour of the petitioner, the position of votes would be that Shri Madhukar Ramrao Bhuibhar (present respondent No. 1/original petitioner) had got 6 votes, whereas Shri Sudhakar Gangaram Bahaie (present petitioner/original respondent No. 3), who had actually polled 7 votes, but as two votes were held to be invalid, got only 5 votes. Shri Madhukar Ramrao Bhuibhar (present respondent No. 1) got one more vote than Shri Sudhakar Gangaram Bahale (present petitioner) and, therefore, present respondent No. 1 was to be declared as elected Member of the Managing Committee under the provisions of Rule 79(b) of the Elections Rules, 1971.
4. Shri C.G. Madkholkar, learned Counsel for the petitioner, submitted that in the impugned order, the Additional Commissioner has not recorded any finding that the intention of the voters to vote in favour of the candidate, viz., the petitioner, by affixing the mark from the instrument supplied at the Booth was not clear. Further, there is also no observation in the order of the Additional Commissioner that because of the so-called additional marking, the identity of the voters can be ascertained and, therefore, according to Shri Madkholkar, the Additional Commissioner merely by observing that as there are additional marks, apart from the marking made by the instrument supplied at the Booth for recording votes, the votes are liable to be rejected under Rule 55(2)(a) of the Election Rules, which is per se perverse and liable to be quashed and set aside.
5. Shri Madkholkar further submitted that Rule 55(2)(a) provides that the Returning Officer shall reject a ballot paper, if it bears any mark or writing by which the voter can be identified. Therefore, according to him, there are two things which are required under this rule, namely, there must be some marking other than the marking of the instrument supplied at the booth, or writing by which the voter can be identified. Mere marking, apart from the marking of the official instrument supplied at the booth if it fails to disclose the identity of the voter, such a ballot paper cannot be rejected, and in absence of such a finding, the impugned order is vitiated by error of law apparent on the fact of the record.
6. Shri Madkholkar submitted that Rules 55(2)(a) of the Election Rules is pari materia to Rule 73(2)(d) of the Conduct of Election Rules, 1961 framed under the Representation of People Act, 1951. Shri Madkholkar submitted that while considering the said rule, the Apex Court in the case of Km. Shradhadeui v. Krishna Chandra Pant and others, held that every and any mark or writing on the ballot paper does not per se result in invalidation of vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence or prior arrangement connecting the mark must be made available. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. There must be some casual connection between the mark and the identity of the voter that looking at one the other becomes revealed. Therefore, the mark or a writing itself must reasonably give indication of the voter’s identity. It may be that there must be extrinsic evidence from which it can be inferred that the mark was placed by the voter by some arrangement. Therefore, Shri Madkholkar submitted that unless it was established by the respondent No. 1 that the marks on the ballot paper Nos. 017 and 018 were such by which the voters can be identified and as no such material was placed or evidence came to be led before the Additional Commissioner, and in absence of any such finding by the Additional Commissioner, the impugned order deserves to be quashed and set aside.
7. It is submitted by Shri Madkholkar that on the two ballot papers in question, there are cross marks by the instrument other than the instrument supplied by the Returning Officer. There is no writing except the cross marks. Therefore, only these two additional cross marks cannot identify the voters, and as the Additional Commissioner has failed to record a finding that whether these additional marks are sufficient to identify the voters, the impugned order is liable to be quashed and set aside.
8. Shri Sharad Bobde, learned Senior Counsel appearing on behalf of the respondent No. 1, submitted that the Election Tribunal has allowed the Election Petition, and while doing so, it has found that in addition to the marks made by the instrument supplied for the purpose, both the ballot papers bore marks by the instrument other than the instrument supplied for the purpose. Further that this violates the relevant rules and in particular there has been a grave error in accepting these two ballot papers, which are in contravention of Rule 55(2)(a) of the Election Rules. According to Shri Bobde, in other words, it has been found that these two ballots bore marks by which the voters can be identified. It is submitted that in the Election Petition, the present respondent No. 1 (original petitioner) made a concise statement of material facts, such as: (a) the precise number of ballots which have been improperly received; (b) the reasons why they are invalid and should not have been counted in favour of Sudhakar Bahale, i.e., the fact that they bear a mark by an instrument other than the one supplied for the purpose; (c) that the marks are such as would violate Rule 55(2)(a), that is to say, a mark by which a voter can be identified; and (d) the facts showing how the result of the election is materially affected by such improper reception of votes. It is, therefore, submitted that the basic contention of the respondent No. 1 has been that the two ballot papers are marked by an instrument other than the one supplied for the purpose and that the marks are such by which the voters can be identified. It is, therefore, submitted that under Rule 55(2)(a), such a ballot is liable to be invalidated, only on the ground that it bears a mark by which the voter can be identified, whether or not there is any dishonest or corrupt intention on the part of the voter or any candidate. Where, therefore, such votes are found by which the voters can be identified and if the number of such votes is such that vide Rule 81(d), the result of the election, insofar as it concerns a returned candidate, has been materially affected by the improper reception of any votes or the reception of any votes which is void, the Commissioner is duty bound to declare the election of the returned candidate to be void. Shri Bobde further submitted that in the present case, it has been found that there has been reception of two votes which are void as being contrary to Rule 55(2)(d) and that the exclusion of such votes materially affects the result of the election insofar as the election of the returned candidate is concerned and, therefore, the order of the Additional Commissioner is liable to be sustained.
9. Shri Bobde submitted that in the facts of the case, any evidence of prearrangement could have only been within the exclusive knowledge of the returned candidate or the voter, and the election petitioner could have had no knowledge of it. In the circumstances, it is submitted that the submission of the petitioner, that there is no basis in the finding that the marks are such that the voter is likely to be identified, is liable to be rejected, because the mere nature of the marks are such that they could not have been made casually or inadvertently by the instrument supplied for the purpose; on the other hand, they are such that they are made by an instrument, in fact, a rubber-stamp of larger size, which were clearly capable of identifying the voters. According to Shri Bobde, in this case it is crucial to have in consideration the size of the constituency which consisted of only 13 voters. Having regard to such a size, it is reasonable and probable to draw an inference that the voters could have been identified by such marks and, therefore, the contention of the petitioner, that no pre-arrangement between the candidate and the voters with regard to the two invalid ballots has been pleaded or proved, is of no consequence since it is not necessary for such pre-arrange-ment to exist in order to declare such ballots to be void on the ground that the voters can be identified. Shri Bobde has placed reliance on the case of Dr. Anup Singh v. Shri Abdul Ghani and others, in which, it has been clearly held:
“The words “can be identified” in our opinion imply something more than a mere possibility of identification; at the same time they do not in our opinion require that before the ballot paper is rejected the elector’s identity must be actually established. Truly construed therefore the words mean that the mark or writing should be such that the elector can be identified thereby with reasonable probability. Thus it is not the mere possibility of identification which will invalidate the vote under Rule 73(2)(d), nor is it necessary that there should be certain identification before the vote is invalidated. All that these words require is that there should be reasonable probability of identification by the mark or writing (other than that permitted by Rule 37-A) and if there is such a reasonable probability of identification, the ballot paper would be invalidated.”
10. Shri Bobde also raised a contention regarding the question relating to drafting etc. of pleadings which, according to him, are not of much consequence, once the evidence is led by parties which are conscious of the issues being tried, based on various Supreme Court decisions. According to him, in the present case, as the parties have agreed not to lead any evidence, now the petitioner cannot make an issue out of it.
11. Shri Bobde further submitted that the petitioner has relied upon the latter decision of Supreme Court in Km. Shradha Devi’s case (supra), which is a decision rendered by two Judges Bench and does not refer to the earlier decision in Dr. Anupsingh’s case (supra), which is a decision rendered by the Constitution Bench consisting of five Judges of the Supreme Court. It is, therefore, submitted that the conflict, if any, between the two judgments arises only with respect to the observations relating to actual identification of a voter vis-a-vis the vote; that whereas it is held by the larger Bench of the Supreme Court in Dr. Anup Singh’s case that, “All that these words “can be identified” require is that there should be reasonable probability of identification of the mark or writing and if there is such a probability of identification, the ballot paper would be invalidated”. On the other hand, in Shradha Devi’s case (cited supra), the observations of the Supreme Court are; “Every and any mark or writing on the ballot paper does not per se result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence or prior arrangement connecting the mark must be made available. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter”. It is submitted that the view expressed by the larger Bench of the Supreme Court in Dr. Anup Singh’s case would prevail. Shri Bobde, therefore, submitted that the decision given by the Election Tribunal is correct and in accordance with law and, therefore, the petition is entirely without any substance or merit and the same deserves to be dismissed.
12. Shri S.J. Chawda, the learned A.P.P. who represents respondent Nos. 3 to 5, submitted that the two applications filed by the petitioner before the respondent No. 5 for permission to lead evidence were rightly rejected on the basis of the earlier order passed on 13-9-1997. It is further submitted that it is not correct to say that the respondent No. 5 has not given any findings as alleged by the petitioner. This respondent has specifically referred to Rule 55(2)(a) of the Election Rules and has found that the two votes were cast in breach of the said rule. It is, therefore, submitted that this is a sufficient finding on the basis of which the Election Petition was allowed. In the aforesaid facts and circumstances, Shri Chawda submitted that the petition is liable to be dismissed.
13. The short question for decision of this Court is, whether the casting of the two votes (ballot paper Nos. 017 and 018) in favour of the petitioner has become invalid by virtue of Rule 55(2)(a) of the Election Rules, 1971.
14. Rule 55(2)(a) of the Election Rules, 1971, reads as under :-
“55. Scrutiny and rejection of ballot papers.
(1)—–;
(2) The Returning Officer shall reject a ballot paper:-
(a) if it bears any mark or writing by which the voter can be identified;
or
(b)—–;
to—–;
(j)—–.
It can be seen that this rule is pari materia to Rule 73(2)(d) of the Conduct of Election Rules, 1961 framed under the Representation of People Act (43 of 1951). In the course of arguments, the learned Counsel for the petitioner as well as the respondents have extensively relied upon the two cases of the Apex Court, i.e. the case of Dr. Anup Singh, and the case of Km. Shradha Devi, (both cited supra).
15. In Dr. Anup Singh’s case, , a Five Judges Bench of the Apex Court consider Rule 73(2)(d) of the Representation of People (Conduct of Elections and Election Petitions) Rules 1951. In their discussions on the issue, their Lordships placed reliance on English and Australian cases with reference to Woodward’s case, 1875 L.R. 10 C.P. 733 Woodward v. Sarsons 8, 15, 16, 18, 19 & 21, which is also followed in Shradha Dew’s case, , decision of two Judges Bench of the Supreme Court.
16. I do not find any conflict between the two decisions as regards the principles enunciated to apply Rule 73(2)(d); if there is any, latter has to be read in the light of former. For the purpose of decision of this petition, in my opinion, paras 9 to 22 of the decision rendered in Dr. Anup Singh’s case (cited supra) would meet the requirement; and as observed ;
“A vote will be invalidated under Rule 73(2)(d) if there should be a reasonable probability of identification of the elector by the mark or writing (other than that permitted by R. 37-A). The mere possibility of identification will not invalidate the vote under the rule. Nor is it necessary that there should be certain identification before the vote is invalidated.
What Rule 73(2)(d) requires is (i) that there should be a mark or writing on the ballot paper other than what is permitted under Rule 37-A and (ii) that this mark or writing should be such that the elector can be identified because of it. The words “by which the elector can be identified” cannot bear the construction that any mark or writing other than that permitted by Rule 37-A which might possibly lead to the identification of the elector would be covered thereby. If a mere possibility of identification had been enough to invalidate the ballot paper, Clause (d) of Rule 73(2) would have read something like this; “that there is any mark or writing other than that permitted by Rule 37-A”. But the words used by the Legislature are ” any mark or writing by which the elector can be identified”, and this implies that there should be something more than a mere possibility of identification, before a vote can be invalidated. This may happen when some pre-arrangement is either proved or the marks are so many and of such a nature that an inference of pre-arrangement may be safely drawn without further evidence.
Those words do not also mean that there must be an actual identification of the elector by the mark or writing before the vote can be invalidated. If such was the intention of the legislature, Clause (d) would have read something like “any mark or writing which identifies the elector’. But the words used in the Clause mean something more than a mere possibility of identification but do not require actual proof of identification before the vote can be invalidated, though by such proof, when offered, the disability would be attracted.
Obviously when these words mean that there should be a reasonable probability of identification by means of the mark or writing there would be a difference in the approach of the Returning Officer as well as of the tribunal and of the Court when dealing with a mark as distinguished from a writing. So far as the mark is concerned, it has by itself very little value for purposes of identification and therefore in the case of marks the Returning Officer or the tribunal or the Court may require evidence to show that there was arrangement between the elector and the candidate to put a certain mark on the ballot paper which would lead to his identification. But in the case of a writing the mere presence of the writing in certain circumstances would be sufficient to warrant the Returning Officer, or the tribunal or the Court to say that the elector can be identified by the writing. Whether the elector can be identified by the writing would always be a question of fact in each case and in the connection the extent of the writing on the ballot paper may have a bearing on the question whether the elector can be identified thereby.
In dealing with this question, the size of the constituency and the number of words may not be irrelevant. It may also be added that when scrutinising the ballot papers under Rule 37-A and considering whether a particular ballot paper should be rejected, it is not necessary for the Returning Officer to take evidence, though if any party is prepared to give evidence then and there, while the scrutiny is going on and votes are being counted, there is nothing to prevent the Returning Officer to take such evidence to determine whether the mark or writing is such that the elector can be identified thereby. But generally evidence may not be forthcoming and it will be for the Returning Officer, the tribunal or the Court to decide on the ballot paper as it stands whether the mark or writing is such that the elector can be identified thereby. The difficulty is greater in the case of a mere mark, the difficulty may be less in the case of a writing depending upon the amount of writing that is available on the ballot paper and it will be for the Returning Officer, the tribunal or the Court in each case to decide in all the circumstances, whether the writing is of such a nature and of such an extent that the elector can be identified by it.”
17. In Shradha Dew’s case (supra) also the same principles are followed; as
Their Lordships have observed:
“Every and any mark or writing on ballot paper does not per se result in invalidation of the vote. The mark or identification should be such as to unerringly reveal the identity of the voter and the evidence or prior arrangement connecting the mark must be made available. Any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter.
There must be some casual connection between the mark and the identity of the voter that looking at one the other becomes revealed. Therefore, the mark or a writing itself must reasonably given indication of the voter’s identity. It may be that there must be extrinsic evidence from which it can be inferred that the mark was placed by the voter by some arrangement.”
Borrowing from Shradha Devi’s case, I would like to quote paragraphs 634 and 636, page 345, Vol. 15 of the Halsbury’s Laws of England, 4th Edition, as under :
“634. Ballot papers rejected for marks of identification—Any ballot paper on which anything is written or marked by which the voter can be identified, except the printed number on the back, is void and must not be counted. The writing or mark must be such that the voter can be, and not merely might possibly be, identified.
“As respects ballot papers which have names, initials, figures or other possi
ble marks of identification on them by which it might be suggested that
the voters could be identified, it has been said that the Court should
look at the paper and form its own opinion whether what is there has
been put there by the voter_for the purpose of indicating for whom he
votes, if the voter has not voted in the proper way (if for example he has
made two crosses, or some other such marks which might have been
intended for purposes of identification). but the Court comes to the
conclusion on looking at the paper that the real thing that the voter
has been doing is to try, badly or mistakenly, to give his vote, and
make it clear for whom he voted, then these marks should not be considered to be marks of identification unless there is positive evidence of
some agreement to show that it was so.”
636. Ballot papers rejected in par: Where at a local Government election or poll consequent on a parish or community meeting the voter is entitled to vote for more than one candidate or at a poll consequent on a parish or community meeting on more than one question, a ballot paper is not to be deemed to be void for uncertainly as respects any vote as to which no uncertainty arises and that vote is to be counted.”
18. It is the contention on the part of the learned Counsel for the petitioner that the petitioner has been deprived of the opportunity of leading evidence in the matter, as though when the matter was taken up for hearing, it was agreed between the parties that no evidence is required to be led, but subsequently, the petitioner did make an application which was allowed but ignored by the Election Tribunal, which has caused prejudice to the petitioner.
19. I have no hesitation to state that considering the nature of dispute, which was restricted to the examination of the two ballot paper Nos. 017 and 018, the earlier decision taken by the parties before the election tribunal that they do not propose to lead evidence, was not incorrect and did not cause any prejudice to the parties; if in the facts and circumstances of the case, the election tribunal thought that it was not necessary and proceeded to decide the matter on the basis of the record, to quote from Halsbury’s Laws of England, “—–, it has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voter for the purposes of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for purposes of identification), —–“. Therefore, in the present case also, it was for the election tribunal to look at the ballot papers and form its own opinion as to whether there has been any breach of Rule 55(2)(a) of the Election Rules, 1971, or not, and for that purpose, it was not necessary that any evidence was required to be led, though in a given case, it cannot be ruled out.
20. It is the contention of the learned Counsel for the petitioner that in the impugned order, the Election Tribunal has not given any reasons as to how it came to the conclusion that in exercising its right of franchise, the voters have committed breach of Rule 55(2)(a), particularly in reference to the ballot papers in dispute. From the impugned order, what one finds is that though detailed reasons in the matter are not given, but the finding is based on the fact that the two votes, which were cast in favour of the petitioner, vide ballot paper Nos. 017 and 018, did contravene Rule 55(2)(a) of the Election Rules, 1971, as they had additional marking than the authorised mark.
With the assistance of the learned Counsel for the parties, this Court has critically examined ballot papers Nos. 017 and 018. What has to be ascertained is as to whether the additional marks on the ballot paper Nos. 017 and 018 construe committing of breach of Rule 55(2)(a), i.e., whether they bear any mark or writing from which the voters can be identified. This is only possible by examining the nature and characteristic of the additional marks which will go a long way in deciding whether it is in breach of the rule or not. Examination of ballot paper Nos. 017 and 018 reveals that the two voters, who had cast their votes in the election, have carried with them identical rubber-stamps for marking the ballot papers, in addition to the authorised instrument, which speaks of a pre-arrangement and not a co-incidence. The two ballot papers in question reveal that the votes have been given in favour of the petitioner. The unauthorised markings on the said ballot papers are made in the column of the candidates in whose favour they did not cast their votes. To my mind, this unauthorised marks by a rubber-stamp, which are identical in nature in the two ballot papers in question, are sufficient to reveal the identity of the voters and they are not merely innocuous markings on the ballot papers which could have been ignored, as held in the two cases, viz., Shradhadevi’s case and Anup Singh’s case (cited supra).
21. Therefore, this Court finds that the impugned order invalidating the two votes cast in favour of the petitioner was justified in the facts and circumstances of the case.
22. As this Court is informed that the respondent No. 1, who was declared to be elected, has expired and the term of office of the Managing Committee is not yet completed, there will be a vacancy of a member in the Managing Committee of the Society from the said Electoral College. It will be open for the society to have an election to fill in the said vacant post, under Rule 72 of the Election Rules, 1971.
23. In view of the aforesaid conclusion, the writ petition has no merits. The same is dismissed. Rule is discharged, with no order as to the costs.
24. The two ballot papers, which are in sealed cover, be sent to the concerned Returning Officer who may preserve them till the current term of the Managing Committee of Nilkanth Sahakari Soot Girni Ltd., Akola, is over.
25. Writ petition dismissed.