Nilanjana
PROHIBITION(WRIT PETITION)
Nilanjana Ganguly 27 Jan 2020

PROHIBITION(WRIT PETITION)

Writ - A writ is a legal document written by a judge or other body with administrative or judicial jurisdiction such as a court. The writ orders the person or entity it is addressed to perform or close performing a specified action.

 

Types of Writs : The different types of writs are :

·         PROHIBITION

·         HABEAS CORPUS

·         MANDAMUS

·         CENTIORARI

·         QUO-WARRANTO

PROHIBITION- The word PROHIBITION means 'stay order'. A writ is issued when the lower court or body attempts to violate the limits or powers bestowed on it. After this writ has been issued, proceedings in the lower court, etc. have come to an end.

Case Law on PROHIBITION-

Name of the case-

K.C. DINAKARAN VS. S.P. RAJENDRAN AND ORS.

DATED-23.01.1991

 

1. This Civil Revision Petition is filed against the Order of the Electoral Court in Election O. P. No. 42 of 1986, filed by the Principal District of Munsif, Tindivanam, 19-1-1990.

 

2. Brief facts are as follows:—

Election for the post of Vice-Chairman of the Olakkur Panchayat Union took place on 20-6-1986. The only two candidates for Vice-Chairmanship were the nominee and the first respondent. 58 Voters (Panchayat Presidents) participated in the race, including the petitioner and the first respondent. It is the case of the petitioner that he had won 28 votes and the first respondent had won 27 votes and the fourth respondent had ruled three votes invalid. Consequently, when he was about to insert the name of the petitioner as a successful candidate in the records, at the instance of the second respondent, two votes declared invalid were counted again in favor of the first respondent, And finally, the 4th respondent declared that the first respondent had won 29 votes against the 28 votes won by the petitioner. Aggravated by the decree, which proclaimed the first respondent to be a successful candidate, Election O. P. was held. It is seen from the counting the alleged two invalid votes as void votes in favour of the first respondent. Pending the Election Petition, the ballot papers were sent and, after reviewing the same, the Election Court found that there was nothing to indicate that two invalid votes had been counted in favor of the first respondent, as claimed by the petitioner. The Court also dismissed the other claims below, and therefore denied the appeal.

3. Before me, three points were posed by the experienced lawyer appearing for the complainant. One is that as many as 20 votes cast in favor of the first respondent contained marks behind those ballot papers, those votes must be considered as invalid votes as such, contrary to Rule 16 of the Rules of The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.Procedure of the Tamil Nadu Panchayat Union Councils (Election of Vice-Chairmen) of 1978. The second argument is that the fourth respondent did not fix the election system by providing the closing time. As a result, one candidate could not take part in the contest. The third argument is that the second respondent, in his capacity as Rajya Sabha Speaker, exerted power and compelled the fourth respondent to count two invalid votes as legitimate votes in favor of the first respondent.

4. Learned counsel appearing for the first respondent submitted that it is not now open to the petitioners to contend with the Exs. to D-20 ballot papers stated in the court below are invalid on the basis of the markings on the back, as the only point presented in the Election Petition and submitted to the Court below was that two votes declared invalid were at the instance of the second respondent, counted as legitimate votes in favour of the first respondent and, thus, the declaration in favour of the first respondent was evil. No such statement that the twenty votes cast in favor of the first respondent must be considered as invalid on the grounds of the violation of Rule 16 of the Rules referred to above has been made either in the petition or before the Court below. He also submitted that the Court found below that there was no evidence to support the petitioner's argument that one of the electors had been prevented from participating in the election due to the failure to note the closing time. That being a matter of fact, it cannot be dealt with in this petition for a civil revision. He also argued that, on the basis of the facts presented to the Court below, the conclusion is that the second respondent was not present at the time of the counting in the counting hall. And, thus, there was no question of his practice either of coercion or power, and this being a matter of fact, can not be dealt with in the petition for revision.

5. I've considered competing submissions. Before we take up the first dispute, we can dispose of contentions 2 and 3 which, in the light of the clear statement made by the learned counsel for the respondent No. 1 in the light of the clear findings made below by the Court on those arguments against the petitioner, it is not open to him to consider the same in this petition for a civil revision. These arguments are therefore rejected.

6. Now let me look at the first point. As argued by the learned counsel for the 1st respondent, we doubt that there is no specific allegation of the invalidity of Exs. D-l to D-20 votes polled favour of the 1 st respondent in the Election petition filed by the petitioner. However, I find that allegations in a general form have been made in the Election Petition which read as follows :—

"With the connivance of the 1st respondent, the President of the Council of the Union advised the voters to write down the serial numbers on the back of the ballot papers, which had already been allocated by the President of the Union, in order to ascertain whether or not the votes had been taken. Those voters cast their votes in favor of the first respondent. The elections held on 20-6-86 for the Vice-Chairman's office are therefore vitiated as they took place under duress and coercion.

7. The question is, in the light of the above allegation and the evidence, is it open to the learned counsel for the petitioner to contend that the votes polled in favour of the 1st respondent and marked as Exs. D-1 to D-20 containing marks by which the voters(Members) may be subsequently classified and declared invalid. In this context, the recent judgment of the Supreme Court in (supra) may, in my opinion, be usefully referred to and applied.

8. In the judgement, their lordships of the supreme court observed-

"The next argument put forward by the appellant's counsel concerns package No. 8 containing 56 ballot papers. 55 ballot papers in that package were rejected by the High Court on the ground that they contained no seal of the rubber stamp of the booth. Counsel argued that, in the absence of clear pleadings in that respect, the High Court should not have taken such ballot papers for scrutiny.

Here again we cannot help the appellant. It may be noted that the High Court while allowing inspection, has not restricted the operation to specified ballot papers. The inspection was permitted in respect of all ballot papers to the credit of the appellant. In the course of such inspection, if a ballot paper which ought not to have been accepted has, in fact, been counted in favour of the appellant, it must also fall to be excluded. There may not be any specific allegation in the pleading in respect of such ballot paper. But the absence of specific averments in the pleading no bar to inspect such ballot papers. When illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, should be excluded, which is precisely the purpose of the inspection of the ballot papers.

As regards the above-mentioned ballot papers, Rule 30(2)(b) of the Rules of Procedure of the Electoral Regulations, 1961 and the Electoral Commission Instructions for Presidents require that, where a mark is made other than the instrument provided for that purpose, such ballot papers be rejected. There is no dispute that the ballot papers in question did not contain a prescribed mark, namely the "cross arrow" mark. This illegality is also confirmed in the report of the Commissioner of this Court. Consequently, they could not be retained in favor of the appellant."

In this case in hand, Exs is not in dispute. D. 1 to D-20 contain the marks other than the cross marks intended for the purpose of balloting. In Exs. andD-9, initials are found apart from the extraneous marks like PMR (Ex D. 5) and ER (Ex.D-9). Rule 16 reads as follows:— 16. Invalid ballot papers.— A ballot paper shall be invalid on which

 (a) there is no cross mark; or

 (b) the cross mark is set in the opposite direction to the name of more than one candidate or is placed in such a way as to make it doubtful to which candidate it is intended to apply; or

 (c) the cross mark and some other mark are set in the opposite direction to the name of the same candidate;

(d) any mark which may subsequently be found by the member shall be made.

In the light of the above Rule, in particular Rule 16(d), these votes cannot be treated as valid votes. However, Exs has been dealt with lightly by the election court. D. 1 to D-20 by stating that, in so far as the 4th respondent-Returning Officer counts Ex.C-1, a vote with an extraneous mark (similar to Exs. D. 1 to D-20) in favor of the petitioner herein, it cannot be said that such treatment was given only to the first respondent. In other words, the Election Court got over the objection by stating that inasmuch as one vote containing extraneous mark polled in favour of the petitioner as well as 20 such votes polled in favour of the 1st respondent having been treated alike, no grievance can be made out of it. This approach is totally wrong and cannot be sustained in the light of the ratio laid down by the Supreme Court (Supra). Their Lordships are specific in their observation, in that, when illegality is noticed upon inspection, it must be corrected. Invalid votes, if any, are to be excluded. Applying the ratio of the decision of the supreme Court in, (supra) these illegalities cannot be ignored. Moreover, the Court below is not very right in observing that there are no allegations or evidence to enable the petitioner to contend that Exs. D. 1 to D-20 are invalid votes. Because, as pointed out earlier, the petitioner has made allegations in a general form in the Election petition and has also given evidence supporting such allegations (vide extracts supra).

9. As a result, a petition for civil revision is allowed. The election of the 1st respondent as Vice-Chairman of the Olakkur Panchayat Union is set aside as invalid and the petitioner is declared as duly elected Vice-Chairman of the Olakhur Panchayat Union. The petitioner is entitled to all costs.

10. Petition was allowed.


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