# Smt. Kehkashan v. State

- **Citation:** (2025) 4 ILRA 675
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-16
- **Case number:** Writ - C No. 31742 of 2024
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kehkashan-v-state-53194
- **Pages:** 19

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - U.P. Panchayat Raj Act,
1947 - Section 12-C, - U.P. Panchayat
Raj (Election of Members, Pradhan and
Up-Pradhans) Rules, 1994 - Rule 33, 82,
86, 86(1), 86(2), 86(2)(b), 105, 105(2)-
Writ Petition - challenging the election of the
Gram Pradhan - the petitioner initially secured
664 votes while respondent no. 4 received 658
- however, respondent no. 4 filed an election
petition under Section 12-C of the U.P.
Panchayat Raj Act, 1947, prompting a recount
- being aggrieved, petitioner filed writ petition
- High Court by earlier order remanded the
matter before the prescribed authority to
decide the election petition a fresh - led to a
Supreme Court - Supreme Court directed
recount in present of a Court Commissioner -
recounting revealing 659 votes for respondent
no. 4 and 657 for the petitioner, with 114
ballots declared invalid - the Supreme Court
remanded the matter to the High Court to
quickly review only disputed ballots and decide
the matter without delay - both contesting
parties were allowed to inspect and filed their
objections regarding invalid votes - the Court
relying on the legal maxim expressio unius est
exclusio alterius held that, any deviation from
the prescribed method, such as using ink dots
or thumb impressions, renders the ballot
invalid and threatens the integrity of the
election process - therefore, court upheld the
rejection of several disputed ballot papers in
the Gram Pradhan election, citing violations of
the mandatory voting procedure under Rules
86 and 105 of the U.P. Panchayat Raj Rules,
1994 - after reviewing the objections to 40 out
of the 114 invalid votes, the Court found 36
ballots to be invalid, while 2 were valid in
favour of petitioner and 2 in favour of
respondent no. 4 - thus, the revised tally
brought petitioner's total to 659 votes and
respondent no. 4's total to 661 votes - thereby
declaring respondent no. 4 as the winning
candidate - directions issued to respondent
authorities to take consequential steps for
676 INDIAN LAW REPORTS ALLAHABAD SERIES
entering of respondent no. 4 as Gram Pradhan
within one month - accordingly, writ petition is
disposed of. (Para no. 30, 37, 50, 51).

Writ Petition Disposed of. (E-11)

List of referred Cases: -

## Text

_Characters 0–39,964 of 63,895. This is a partial read: ask again with offset=39964 for what follows._

4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
675
bond cannot be enforced by the
respondent no.2.

6. In light of the same, the
respondent no.2 is directed to refund the
security deposit of Rs.5,00,000/- alongwith
interest at the rate of 4% per anum, of the
principal sum, starting from the date of
payment made by the petitioner till the
payment to be made by the respondent no.2
to the petitioner.

7. The above refund should be
made within a period of four weeks from
the date of receipt of a certified copy of this
order.

8. Further more, the bank guarantee
that has been deposited by the petitioner, in
pursuance of the order of the coordinate
Bench of this Court, should also be
returned to the petitioner alongwith the
refund of the security deposit.

9. With the above directions, the
writ petition is disposed of.
----------
(2025) 4 ILRA 675
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2025

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Writ - C No. 31742 of 2024

Smt. Kehkashan ...Petitioner
Versus
State
of
U.P.
&
Ors.
...Respondents

Counsel for the Petitioner:
Sri Imtiaz Husain, Sri Siddharth Nandan,
Sri H.N. Singh (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ganesh Pratap Singh, Sri R.P.S.
Chauhan, Sri Rajeev Kumar Singh, Sri
Siddharth Khare, Sri Navin Sinha (Sr.
Advocate)

Civil Law - Constitution of India,1950 -
Article 226 - U.P. Panchayat Raj Act,
1947 - Section 12-C, - U.P. Panchayat
Raj (Election of Members, Pradhan and
Up-Pradhans) Rules, 1994 - Rule 33, 82,
86, 86(1), 86(2), 86(2)(b), 105, 105(2)-
Writ Petition - challenging the election of the
Gram Pradhan - the petitioner initially secured
664 votes while respondent no. 4 received 658
- however, respondent no. 4 filed an election
petition under Section 12-C of the U.P.
Panchayat Raj Act, 1947, prompting a recount
- being aggrieved, petitioner filed writ petition
- High Court by earlier order remanded the
matter before the prescribed authority to
decide the election petition a fresh - led to a
Supreme Court - Supreme Court directed
recount in present of a Court Commissioner -
recounting revealing 659 votes for respondent
no. 4 and 657 for the petitioner, with 114
ballots declared invalid - the Supreme Court
remanded the matter to the High Court to
quickly review only disputed ballots and decide
the matter without delay - both contesting
parties were allowed to inspect and filed their
objections regarding invalid votes - the Court
relying on the legal maxim expressio unius est
exclusio alterius held that, any deviation from
the prescribed method, such as using ink dots
or thumb impressions, renders the ballot
invalid and threatens the integrity of the
election process - therefore, court upheld the
rejection of several disputed ballot papers in
the Gram Pradhan election, citing violations of
the mandatory voting procedure under Rules
86 and 105 of the U.P. Panchayat Raj Rules,
1994 - after reviewing the objections to 40 out
of the 114 invalid votes, the Court found 36
ballots to be invalid, while 2 were valid in
favour of petitioner and 2 in favour of
respondent no. 4 - thus, the revised tally
brought petitioner's total to 659 votes and
respondent no. 4's total to 661 votes - thereby
declaring respondent no. 4 as the winning
candidate - directions issued to respondent
authorities to take consequential steps for
676 INDIAN LAW REPORTS ALLAHABAD SERIES
entering of respondent no. 4 as Gram Pradhan
within one month - accordingly, writ petition is
disposed of. (Para no. 30, 37, 50, 51).

Writ Petition Disposed of. (E-11)

List of referred Cases: -

1. Era Sezhiyan Vs T. R. Balu & ors.- 1990
(Supp) SCC 322,

2. Ram Autar Singh Bhadauria Vs Ram Gopal
Singh & ors.- AIR 1975 SC 2182,

3. S. Sivaswami Vs Malaikannan & ors.- 1984
vol. 1 SCC 296

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard Sri H.N. Singh, learned
Senior Advocate assisted by Sri Imtiaz
Husain, learned counsel for petitioner and
Sri Navin Sinha, learned Senior Advocate
assisted by Sri R.P.S. Chauhan, learned
counsel for respondent no. 4 and learned
Standing Counsel for respondent-State.

2. The present writ petition is
preferred challenging order dated 9.9.2024
passed by respondent no. 2 - Prescribed
Authority/Sub
Divisional
Magistrate,
Chandausi, District Sambhal in Election
Petition No. 04085 of 2021 (Computerized
Case No. T202113740404085) (Ashraf
Khan Vs. Smt. Kehkashan and others) filed
under Section 12-C of U.P. Panchayat Raj
Act, 1947 as well as for quashing the entire
proceedings initiated in pursuance to
Election Petition No. 04085 of 2021.

3. The brief facts giving rise to
present writ petition are that election for
post of Gram Pradhan for Gram -
Mohammadpur Kashi, Tehsil - Chandausi,
District - Sambhal was notified. The
petitioner and respondent no. 4 along with
other
candidates
submitted
their
nomination for post of Gram Pradhan. The
election symbol of the candidates are as
follows :-

i Ashraf Khan - Imli

Smt. Kehkashan - Car

Smt. Ishrat Jahan - Kanni

Mohd. Kasib - Kitab

Jakir - Camera

Jahid - Carrom Board

4. The election/voting took place on
29.4.2021. The counting took place on
2.5.2021 and the same was concluded. On
completion of the counting, petitioner (Smt.
Kehkashan) was declared as returned
candidate having secured 664 votes and
respondent no. 4 (Sri Ashraf Khan) had
secured 658 votes, Mohd. Ansar secured
one vote, Smt. Ishrat Jahan secured 6 votes,
Mohd. Kasib secured 2 votes, Jakir secured
16 votes and Jahid secured 2 votes.

5. The respondent no. 4 thereafter
preferred
an
election
petition
dated
28.5.2021 under Section 12-C of U.P.
Panchayat Raj Act, 1947. The Prescribed
Authority by order dated 9.9.2024 has
directed recounting of votes.

6. On an earlier occasion, this Court
by judgement dated 23.9.2024 decided the
present petition. The respondent no. 4
(Ashraf Khan) being aggrieved by order
dated 23.9.2024 preferred Civil Appeal No.
12308 of 2024 (Arising out of SLP(C) No.
25059/2024) (Ashraf Khan Vs. Kehkashan
& Ors.) before the Hon'ble Supreme Court.

7. The Hon'ble Supreme Court by
order dated 23.10.2024 directed recounting
of
votes
in
presence
of
Court
Commissioner
appointed
by
Hon'ble
Supreme Court. In furtherance thereof,
4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
677
recounting of votes was once again
undertaken whereby the respondent no. 4
(Ashraf Khan) secured 659 votes and
petitioner (Smt. Kehkashan) secured 657
votes. In the process, 114 votes have been
declared as invalid. The Hon'ble Supreme
Court thereafter by order dated 13.11.2024
has remanded the matter before this Court.

8. In pursuance to order dated
13.11.2024 passed by Hon'ble Supreme
Court, learned Standing Counsel has
produced a sealed envelope containing
invalid ballot papers before this Court (in
the presence of learned counsel for the
petitioner
and
learned
counsel
for
respondent No. 4 & 7) and same was taken
on record on 21.11.2024. Further, by order
dated 21.11.2024 on request of learned
counsel for parties, learned counsel for
petitioner
and
learned
counsel
for
respondent No. 4 were permitted to inspect
the invalid ballot papers (produced by
learned Standing Counsel) before the
Registrar General of this Court. Further, the
parties were permitted to file their
objections in respect of invalid ballot
papers after inspection of same.

9. In pursuance to above-mentioned
order dated 21.11.2024 passed by this
Court, the Registrar General submitted its
report dated 28.11.2024 reporting that the
invalid ballot papers have been inspected
and thereafter sealed in presence of learned
counsel for the parties.

10. Learned counsel for petitioner has
thereafter filed objection dated 2.12.2024
(on behalf of petitioner) in respect of
invalid
votes.
Learned
counsel
for
respondent No. 4 has also filed reply dated
9.1.2025 to the objection of petitioner dated
2.12.2024 before the Registry of this Court.
Respondent No. 4 has also filed objection
dated 11.12.2024 in respect of invalid
ballot papers.

11. Learned Senior Counsel for
petitioner submits that after the abovementioned order dated 13.11.2024 passed
by Hon'ble Supreme Court, invalid votes
have been inspected in pursuance to order
dated 21.11.2024 of this Court and now
only in respect of objections raised with
regard
to
certain
invalid
votes
the
arguments are being advanced. Both,
learned Senior Counsel for respondent no.
4 and learned Senior Counsel for petitioner
agree that the only issue remains to be
decided is with regard to the validity of
certain invalid votes out of 114 invalid
votes which have been detailed in their
objection.

12. Learned Senior Counsel appearing
on behalf of petitioner further submits that
after inspection of invalid votes, the
petitioner is raising objection in respect of
ballots/votes detailed in paragraph nos. 12,
13 and 14 of objection dated 2.12.2024
filed on behalf of petitioner. Learned
counsel for petitioner further submits that
some of invalid votes contain thumb
impression as a mark to cast the vote in
favour of candidate and other invalid ballot
papers pertains to objections which are to
be individually examined.

13. Learned Senior Counsel appearing
on behalf of petitioner further submits that
elections for post of Gram Pradhan is
conducted
in
accordance
with
Uttar
Pradesh
Panchayat
Raj
(Election
of
Members, Pradhans and Up-Pradhans)
Rules,
1994
(for
brevity
hereinafter
referred to as "Rules of 1994"). It is further
submitted that Rule 105 of Rules of 1994
provides ground for rejection of ballot
papers.
Learned
Senior
Counsel
for
678 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner by referring to Rule 86(2)(b) of
Rules of 1994 submits that a mark on the
ballot paper would be sufficient with
respect to the intention of elector to vote.
Learned counsel for petitioner further
submits
that
insofar
as
the
thumb
impression on the ballot paper by elector is
concerned, the same would be valid as the
same would be a mark indicating the vote
in favour of a particular candidate. It is
further submitted that Rule 86 (2) of Rules
of 1994 is not mandatory in nature and the
ballot paper can only be rejected on the
grounds enumerated in Rule 105 of Rules
of 1994. It is submitted that any mark on
ballot paper would be sufficient except
where the mark which discloses the
identification of elector.

14. In this respect, learned Senior
Counsel for petitioner submits that ballot
paper no. 9BE 2245141 (Polling Station
No. 172), 9BE 2245421 (Polling Station
No. 172), 9BE 2245115 (Polling Station
No. 172), 9BE 2245336 (Polling Station
No. 172), 9BE 2245476 (Polling Station
No. 172), 9BE 2245490 (Polling Station
No. 172) containing the thumb impression
mark on the ballot paper is valid. Similarly,
it is submitted that Ballot paper no 9BE
2245647 (Polling Station No. 173), 9BE
2245760 (Polling Station No. 173), 9BE
2244037 (Polling Station No. 173), 9BE
2245934 (Polling Station No. 173), 9BE
2245935 (Polling Station No. 173), 9BE
2245852 (Polling Station No. 173), 9BE
2245606
(Polling
Station
No.
173)
containing the thumb impression mark on
the ballot paper is valid. Learned Senior
Counsel for petitioner further submits that
ballot paper nos. 9BE 2244354 (Polling
Station No. 174), 9BE 2244211 (Polling
Station No. 174), 9BE 224433 (Polling
Station No. 174), 9BE 2244297 (Polling
Station No. 174), 9BE 2244204 (Polling
Station No. 174), 9BE 2244375 (Polling
Station No. 174), 9BE 2244284 (Polling
Station No. 174), 9BE 2244503 (Polling
Station No. 174), 9BE 2244210 (Polling
Station No. 174), 9BE 2244294 (Polling
Station No. 174), 9BE 2244195 (Polling
Station No. 174), 9BE 2244330 (Polling
Station No. 174) containing the thumb
impression mark on the ballot paper is
valid.

15. Learned Senior Counsel appearing
on behalf of the petitioner further submits
as follows :-

a)
The
petitioner
(Smt.
Kehkashan) was allotted symbol of "Car"
whereas the respondent no. 4 (Ashraf) was
allotted the symbol of "Imli" for the
purpose of election. It is submitted by
learned Senior Counsel for petitioner that
ballot paper no. 9BE 2245090 (Polling
Station No. 172) contains full stamp on
Symbol "Car" and Half stamp of Symbol
"Kitab".
The
Election
Symbol
of
respondent no. 7 - Mohammad Kasib was
"Kitab". The ballot paper no. 9BE 2245090
was again shown to learned Senior Counsel
for petitioner during hearing. Learned
Senior Counsel appearing on behalf of
petitioner after examining the said ballot
paper submits that the said ballot paper
contains double symbol, one on symbol
"Car" and other on symbol "Kitab" as such,
he is not pressing his objection in respect of
aforesaid ballot paper.

b) The ballot paper no. 9BE
2245380 (Polling Station No. 172) contains
full stamp on Symbol "Car" and Half stamp
on Symbol "Kitab". The Election Symbol
of respondent no. 7 - Mohammad Kasib
was "Kitab". The ballot paper no. 9BE
2245380 was shown to learned Senior
Counsel for petitioner during hearing.
Learned Senior Counsel appearing on
4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
679
behalf of petitioner after examining the said
ballot paper submits that the said ballot
paper contains double symbol, one on
symbol "Car" and other on symbol "Kitab"
as such, he is not pressing his objection in
respect of aforesaid ballot paper.

c) The ballot paper no. 9BE
2244006 (Polling Station No. 173) contains
stamp/mark on Symbol "Car" and lightly
stamp on Symbol "Carom Board". The
petitioner was allotted the symbol of "Car"
whereas symbol "Carrom Board" was
allotted to respondent no. 9 - Jahid.
Learned Senior Counsel for petitioner
submits that the primary stamp in said
ballot paper is on symbol "Car" and there is
an ink on symbol "Carrom Board" and the
same is not a vote casted on symbol
"Carrom Board". The said ballot paper is to
be treated in favour of petitioner.

d) The ballot paper no. 9BE
2244216 (Polling Station No. 174) contains
light stamp/mark on symbol "Car". The
petitioner was allotted the symbol of "Car".
The said ballot paper is to be treated in
favour of petitioner.

e) The ballot paper no. 9BE
2244136 (Polling Station No. 174) contains
stamp on symbol "Car" and very light
stamp on symbol "Kitab". The petitioner
was allotted the symbol of "Car" . The
election symbol of respondent no. 7 -
Mohammad Kasib was "Kitab". Learned
Senior Counsel for the petitioner submits
that on the said ballot paper seal is on
"Car" and ink is on symbol "Kitab". It is
submitted that intention of voter can be
gathered that he actually voted for symbol
"Car". The said ballot paper is to be treated
in favour of petitioner.

f) The ballot paper no. 9BE
2244330 (Polling Station No. 174) contains
thumb impression on symbol "Car" and
stamp on symbol "Carrom Board". The
petitioner was allotted the symbol of "Car"
whereas symbol "Carrom Board" was
allotted to respondent No. 9 - Jahid.
Learned Senior Counsel for petitioner
submits that thumb impression in said
ballot paper is on symbol "Car" and there is
an ink on symbol "Carrom Board" and
same is not a vote casted on symbol
"Carrom Board". The said ballot paper is to
be treated in favour of petitioner.

g) The ballot paper no. 9BE
2244148 (Polling Station No. 174) contains
full stamp on Symbol "Car" and half stamp
on symbol "Kitab". The petitioner was
allotted the symbol of "Car" whereas
symbol "Kitab" was allotted to respondent
no. 7 - Mohammad Kasib. Learned Senior
Counsel for petitioner submits that primary
stamp in the said ballot paper is on symbol
"Car" and there is an half stamp on symbol
"Kitab" and the same is not a vote casted
on symbol "Kitab" as the impression is
transferred at the time of folding of ballot
paper on other symbol. The said ballot
paper is to be treated in favour of
petitioner.
Learned
Senior
Counsel
appearing on behalf of petitioner after
examining the said ballot paper submitted
that the said ballot paper contains double
symbol, one on symbol "Car" and other on
symbol "Kitab" and as such, he is not
pressing his objection in respect of the
aforesaid ballot paper.

16. Sri Navin Sinha, learned Senior
Counsel appearing on behalf of respondent
no. 4 submits that the mark which is
required to be placed on ballot paper to
indicate the vote in favour of a particular
candidate, by placing a mark on ballot
paper with the instruments supplied for the
purpose on or near the symbol of candidate
for which the elector intended to vote. Rule
86(2) of Rules of 1994 are mandatory in
nature. It is further submitted by learned
Senior Counsel for respondent no. 4 to
680 INDIAN LAW REPORTS ALLAHABAD SERIES
submit that above-mentioned Rule is pari
materia with Rule 39 of Conduct of
Elections
Rules,
1961
(under
the
Representation of People Act, 1951).
Learned Senior Counsel has also relied
upon the judgement of Supreme Court in
Era Sezhiyan Vs. T.R.Balu and others,
1990 (Supp) SCC 322 and Ram Autar
Singh Bhadauria Vs. Ram Gopal Singh
and Ors., AIR 1975 SC 2182 to submit
that the mark with instrument supplied for
purpose is necessary to indicate the
intention of elector to vote in favour of
particular candidate. It is further submitted
that use of any other mark would not be
tenable in law and such ballot papers are
liable to be rejected. Learned Senior
Counsel for respondent no. 4 further
submits that thumb impression was not
mark supplied for purpose of demonstrating
the intention of elector to vote in favour of
a particular candidate.

17. Learned Senior Counsel appearing
on behalf of respondent no. 4 further
submits as follows :-

a) The ballot paper no. 9BE
2245512 (Polling Station No. 172) there is
full and proper stamp on the middle line
between
symbol
"Imli"
and
symbol
"Kanni". Learned Senior Counsel submits
that the intention of voter was to cast his
vote in favour of respondent no. 4 (the
symbol of "Imli" was allotted to respondent
no. 4 for the purpose of election). It is
submitted that the aforesaid ballot paper
has been incorrectly held as invalid.

b) The ballot paper no. 9BE
2245086 (Polling Station No. 172) there is
full and proper stamp on the middle line
between symbol "Imli" and "Kanni".
Learned Senior Counsel submits that
intention of elector was to cast his vote in
favour of respondent no. 4 (who was
allotted the symbol of "Imli" for the
purpose of election). It is submitted that
aforesaid ballot paper has been incorrectly
held as invalid.

c) The ballot paper no. 9BE
2245305 (Polling Station No. 172) full and
proper stamp on the middle line between
symbol "Imli" and "Kanni" symbol.
Learned Senior Counsel submits that the
intention of voter was to cast his vote in
favour of respondent no. 4 (who was
allotted the symbol of "Imli" for the
purpose of election). It is submitted that
aforesaid ballot paper has been incorrectly
held as invalid.

d) The ballot paper no. 9BE
2245813 (Polling Station No. 173) contains
full and proper stamp on "Imli" symbol and
another partial impression on another
symbol. The said ballot paper was shown to
learned Senior Counsel appearing for both
the parties when case was being heard and
after examining the said ballot paper,
learned Senior Counsel appearing on behalf
of respondent No. 4 fairly submits that the
said ballot paper contains stamp against
two symbol and as such learned Senior
Counsel for respondent no. 4 at this stage
submits that he would not press the
challenge to ballot paper no. 9BE 2245813
which has been declared as invalid by the
authorities.

e) The ballot paper no. 9BE
2244073 (Polling Station No. 173) contains
full and proper stamp on "Imli" symbol and
another partial impression on another
symbol. The said ballot paper was shown to
learned Senior Counsel appearing for both
the parties when case was being heard and
after examining the said ballot paper,
learned Senior Counsel appearing on behalf
of respondent No. 4 fairly submits that the
said ballot paper contains stamp against
two symbol and as such, learned Senior
Counsel at this stage submits that he would
4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
681
not press challenge to ballot paper no. 9BE
2244073 which has been declared as
invalid by the authorities.

f) The ballot paper no. 9BE
2245690 (Polling Station No. 173) contain
full and proper stamp on the middle line
between symbol "Imli" and "Kanni"
symbol. Learned Senior Counsel submits
that the intention of voter was to cast his
vote in favour of respondent no. 4 who was
allotted the symbol of "Imli" for the
purpose of election. It is submitted that the
aforesaid ballot paper has been incorrectly
held as invalid.

g) It is further submitted by
learned Senior Counsel appearing on behalf
of respondent no. 4 that ballot paper no.
9BE 2245962 (Polling Station No. 173)
contains full and proper stamp on the
middle line between symbol "Imli" and
"Anaj Oshata Kisan" symbol. Learned
Senior Counsel submits that intention of
voter was to cast his vote in favour of
respondent no. 4, (who was allotted the
symbol of "Imli" for the purpose of
election). It is submitted that the aforesaid
ballot paper has been incorrectly held as
invalid.

h) It is further submitted by
learned Senior Counsel appearing on behalf
of respondent no. 4 that ballot paper no.
9BE 2245963 (Polling Station No. 173)
that full and proper stamp on the middle
line symbol "Imli" and "Anaj Oshata
Kisan" symbol. Learned Senior Counsel
submits that intention of voter was to cast
his vote in favour of respondent no. 4, who
was allotted symbol of "Imli" for purpose
of election. It is submitted that aforesaid
ballot paper has been incorrectly held as
invalid.

i) It is further submitted by
learned Senior Counsel appearing on behalf
of respondent no. 4 that ballot paper no.
9BE 2244273 (Polling Station No. 174),
respondent no. 4 was allotted the symbol of
"Imli" for purpose of election. The ballot
paper contains full and proper stamp on
"Imli" symbol and another impression on
another symbol. The said ballot paper was
shown to learned Senior Counsel appearing
for both the parties when case was being
heard and after examining the said ballot
paper, learned Senior Counsel appearing on
behalf of respondent no. 4 fairly submits
that the said ballot paper contains stamp
against two symbol and as such learned
Senior Counsel at this stage submits that he
would not press the challenge to ballot
paper no. 9BE 2244273 which has been
declared as invalid.

18. The elections for post of Gram
Pradhan for Gram Mohammadpur Kashi,
Tehsil - Chandausi, District - Sambhal was
notified
and
voting
took
place
on
29.4.2021. The counting took place on
2.5.2021 and the same was concluded on
the same date and the result was declared in
which petitioner was declared as returned
candidate
having
secured
664
votes
whereas respondent no 4 secured 658 votes.
The respondent no. 4 thereafter had filed
election petition challenging the election
result. By order dated 9.9.2024 passed in
the above-mentioned election petition filed
by respondent no. 4 an order for recount
was passed.

19. The above-mentioned order dated
9.9.2024 was subject matter of challenge in
present writ petition. The present writ
petition (on an earlier occasion) by
judgement dated 23.9.2024 was allowed
and the matter was remitted back to
respondent no. 2
- Sub Divisional
Magistrate/Prescribed Authority with a
direction to decide the same afresh. The
above-mentioned
judgement
dated
23.9.2024 was subject matter of challenge
682 INDIAN LAW REPORTS ALLAHABAD SERIES
in Civil Appeal No. 12308 of 2024 (Ashraf
Khan Vs. Kehkashan & Ors.). Hon'ble
Supreme Court by order dated 23.10.2024
further directed for re-counting of votes to
be undertaken in the presence of Court
Commissioner appointed by the Supreme
Court. In pursuance thereof, the recounting
exercise
was
undertaken,
whereby
respondent no. 4 secured 659 votes and the
petitioner secured 657 votes. Further, 114
votes were declared invalid.

20. The Supreme Court by order dated
13.11.2024 remanded the matter to this
Court with the following observations:-

"8. As of now, the appellant
appears to have an edge over respondent
no.1 in view of the fact that in the fresh
recounting
conducted
under
the
supervision of the Court Commissioner, the
appellant received 659 votes as against the
657 votes found polled in favour of
respondent no.1. However, there are
debatable issues with regard to some of the
votes declared invalid. Since the margin is
of two votes only, we are of the view that it
may be in the interest of justice to relegate
the parties before the High Court. In that
case, all the 114 rejected votes shall be
required to be produced before the High
Court. In our considered view, some of the
votes examined are such that they are
liable to be rejected out-rightly. The High
Court will be well within its right not to
invite objections so far as those votes are
concerned. However, if there are some
votes with respect to which there are
arguable issues, we request the High Court
to accord one week's time to the parties to
submit their objections and thereafter,
instead of remanding the case to the
Election Tribunal, let the High Court take a
final decision. We say so for the reason that
substantial part of the term of Gram
Pradhan is already concluded and in the
event of further remand, the matter faces
the threat of becoming infructuous.

9. For the aforesaid reasons, the
instant appeal is allowed. The impugned
judgment of the High Court is set aside and
the matter is remitted to the High Court to
decide the writ petition filed by respondent
no.1 afresh and in the light of the
observations
made
hereinabove.
Accordingly, the parties are directed to
appear
before
the
High
Court
on
20.11.2024.

10. Learned counsel for the
parties may produce a copy of this order
before the Registrar General of the High
Court, who in turn is directed to put up the
same before Hon'ble the Chief Justice of
the High Court, so that the matter may be
entrusted to an appropriate Bench as per
roster, with a special request that the same
may be decided on merits as soon as
possible, and preferably within a period of
three weeks."

21. Learned Senior Counsels for
petitioner and respondent no. 4 have
submitted that only some of the invalid
votes are being objected to and they have
confined their arguments to the certain
invalid votes as have been stated in their
objections and raised hereinabove.

22. The argument raised on behalf of
learned counsel for petitioner to the effect
that in Polling Station No. 172 - Ballot
Paper Nos. 9BE 2245141, 9BE 2245421,
9BE
2245115,
9BE
2245336,
9BE
2245476, 9BE 2245490 contains thumb
impression on symbol "Car" which was
allotted to the petitioner however, the
aforesaid vote have been incorrectly
declared invalid. It is further submitted by
learned Senior Counsel appearing on behalf
of petitioner that in Polling Station No. 173
4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
683
- Ballot Paper Nos. 9BE 2245647, 9BE
2245760, 9BE 2244037, 9BE 2245934,
9BE 2245935, 9BE 2245852, 9BE 2245606
contains thumb impression on symbol
"Car" which was allotted to petitioner
however, the aforesaid vote have been
incorrectly declared invalid. Similarly, in
Polling Station No. 174 - Ballot Paper Nos.
9BE 2244354, 9BE 2244211, 9BE 224433,
9BE
2244297,
9BE
2244204,
9BE
2244375, 9BE 2244284, 9BE 2244503,
9BE 2244210, 9BE 2244294, 9BE 2244195
contain thumb impression on symbol "Car"
(which was allotted to the petitioner)
however, the aforesaid ballot paper has
been incorrectly declared invalid. It is
further submitted that ballot paper no. 9BE
2244330 contains thumb impression on the
symbol "Car" and symbol on "Carrom
Board". The same has been incorrectly
declared as invalid as thumb impression on
symbol of petitioner would make vote
valid.

23. The election for post of Gram
Pradhan is held in accordance with
provisions of Uttar Pradesh Panchayat Raj
Act, 1947 (for brevity herein after referred
to as "Act of 1947") and Uttar Pradesh
Panchayat Raj (Election of Members,
Pradhan and Up-Pradhans) Rules, 1994 (for
brevity hereinafter referred to as "Rules of
1994"). The procedure for election of Gram
Pradhan is provided in Chapter III of Rules
of 1994. The procedure for elector on
receiving the ballot paper is provided under
Rule 86(2) of Rules of 1994. The Rule
86(2) of Rules of 1994 is quoted
hereinbelow :-

"86. Maintenance of secrecy of
voting by electors within polling station
and voting procedure. - (1) ...

(2) The elector on receiving the
ballot paper shall forthwith, -

(a) proceed to one of the voting
compartments;

(b) there make a mark on the
ballot paper with the instrument supplied
for the purpose on or near the symbol of
the candidate for whom he intends to vote;

(c) fold the ballot paper as to
conceal his vote;

(d) if required, show to the
Matdan Adhyaksh the distinguishing mark
on the ballot paper;

(e) insert the folded ballot paper
into the ballot box; and

(f) quit the polling place."

24. It is further to be noted that under
Rule 86 of Rules of 1994, the secrecy of
voting is an important object in respect of
procedure for election on the post of Gram
Pradhan. A perusal of Rule 86 (2) (b) of
Rules of 1994 provide that the elector shall
make a mark on ballot paper with the
instrument supplied for the purpose on or
near the symbol of candidate for whom
elector intends to vote. The said Rule
requires that the mark on ballot paper to
indicate the intention of elector to vote
against a particular candidate to be made by
instrument supplied for the purpose of
election. Rule 82 of Rules of 1994 provide
that the Nirvachan Adhikari (Election
Officer) shall provide at the polling station
material for the purpose of enabling voters
to mark the ballot paper.

25. It is not the argument of learned
counsel for the parties that an instrument
was not supplied by Election Officer at the
time of voting for the purpose of making a
mark on ballot paper with the instrument
supplied. The submission raised by learned
counsel for petitioner is to the effect that
even
the
thumb
impression
would
constitute a mark to indicate vote in favour
of a particular candidate and the aforesaid
684 INDIAN LAW REPORTS ALLAHABAD SERIES
ballot paper could not have been rejected as
invalid on account of the fact that thumb
impression was made as a mark on the
ballot paper to indicate the intention of
elector to vote in favour of a particular
candidate.

26. Rule 86(1) of the Rules of 1994
mandates that every elector to whom a
ballot paper has been issued under Rule 33
or under any other provision of said Rules,
shall maintain secrecy of voting within the
polling station and for that purpose observe
the voting procedure as laid down in Rules
of 1994. For the purpose of maintaining
secrecy of voting, Rule 86(2) of Rules of
1994 provides the procedure which the
elector has to follow on receiving the ballot
paper which is as follows :-

"(a) proceed to one of the voting
compartments;

(b) there make a mark on the
ballot paper with the instrument supplied
for the purpose on or near the symbol of the
candidate for whom he intends to vote;

(c) fold the ballot paper as to
conceal his vote;

(d) if required, show to the
Matdan Adhyaksh the distinguishing mark
on the ballot paper;

(e) insert the folded ballot paper
into the ballot box; and

(f) quit the polling place."

27. Rule 82(2)(b) of the Rules of 1994
specifically
provide
for
use
of
the
instrument supplied for purpose of making
a mark on ballot paper on or near the
symbol of candidate for whom the elector
intends to vote. Rule 86(2) starts with the
words "shall" which is indicative of
mandatory nature of procedure prescribed
to be followed by elector on receiving the
ballot paper. It is further to be noted that
such direction of law under Rule 86 (2) (b)
of the Rules of 1994 for use of instrument
supplied to make a mark on the ballot paper
to demonstrate elector intention to vote in
favour of a particular candidate is relatable
to the larger object of secrecy of voting as
has been provided under Rule 86 (1) of the
Rules of 1994.

28. It is further to be noted that in
present case some of invalid votes (detailed
hereinabove) contained thumb impression
(instead of use of instrument to mark on the
ballot paper) in order to demonstrate the
intention of elector to vote in favour of a
particular candidate as per petitioner. The
thumb impression was not the mark
prescribed
by election
authorities
as
instrument for purpose of making a mark in
favour of a particular candidate. It has not
been disputed by learned counsel for
parties before this Court that an instrument
having a distinct mark was supplied at the
time of voting. The aforesaid can also be
gathered as some of the invalid ballot
papers which has been challenged before
this Court (and produced) contained the
mark made on the ballot paper by the
instrument supplied for the said purpose.

29. It is further to be noted that
supplying
of
instrument
by
election
authorities to make a mark on ballot paper
on a near the symbol of candidate for
whom the elector intends to vote has
underlying purpose of fairness in election
proceedings. The use of instrument would
bring about uniformity in election process.
The object of using an instrument to mark a
ballot paper in an election is to ensure that
the voter's choice is recorded clearly,
accurately, and securely. Unauthorized
markings on ballot paper can compromise
these principles, leading to potential
disputes and challenges to election's
4 All. Smt. Kehkashan Vs.State of U.P. & Ors.
685
validity. The use of instrument to mark the
intention of voter on the ballot paper is to
ensure the confidentiality and integrity of
elector choice of candidate.

30. The use of thumb impression to
indicate the intention of elector to vote in
favour of a particular candidate instead of
using instrument supplied by election
authorities may disclose the person's
identity who has put in the thumb
impression on the ballot paper. The thumb
impression can be connected and relatable
to an individual on account of uniqueness
of thumb impression. Even otherwise, if the
law provides a thing to be done in a
particular manner then the other manner or
procedure is excluded by law. In this regard
the legal maxim "expressio unius est
exclusio alterius" meaning "the expression
of one thing is the exclusion of the other" is
applicable. Once the law has specifically
provided the manner in which elector has to
make a mark on ballot paper then other
mark (including thumb impression) would
not be available to elector to indicate his
intention to vote in favour of a particular
candidate.
The
dilution
of
aforesaid
principle would have serious impact on the
fairness of election process itself as then
the parties to election process may claim
that even a "point" (by ink) on the ballot
paper would constitute a mark, which
would result in dispute.

31. The Supreme Court in Ram Autar
Singh Bhadauria (supra) while dealing
with Rules 38 and 39 of Conduct of
Elections Rules, 1961 (framed under
Representation of the People Act, 1951)
which is pari materia with Rule 86 of the
Rules of 1994 has held that the said Rule to
be mandatory in nature and a defect arising
from
their
non-observance
inexorably
entails rejection of defective ballot paper.
Paragraph nos. 19 to 21 of the said
judgement is quoted hereinbelow :-

 "19. Clauses (a) and (b) of Rule
56(2) are referable to Rule 38 which
requires every elector to whom ballot
paper has been issued under Rule 38 to
maintain secrecy of voting and "to make a
mark on the ballot paper with the
instrument supplied for the purpose on or
near the symbol of the candidate for whom
he intends to vote."

20. Rule 38 is also relevant. This
Rule requires every ballot paper and the
counter-foil attached thereto to be stamped
on the back by the Presiding Officer with
such distinguishing mark as the Election
Commission may direct. Every such ballot
paper before it is issued is required to be
signed in full on its back by the Presiding
Officer. Sub-rule (2) requires that at the
time of issuing of ballot paper, the Polling
Officer shall on its counter-foil record the
electoral roll number of the elector and
obtain his signature or thumb-impression.

21. The object of these rules is to
secure not only the secrecy of the ballot but
also to eliminate chances of sharp
practices in the conduct of elections. Their
requirements are therefore mandatory, and
a defect arising from their non-observance
inexorably entails rejection of the defective
ballot paper except to the ex-tent covered
by the Provisos to Rule 56(2)."

32. It is further to be noted that under
Rule 105 of Rules of 1994 it is provided
that the ballot paper shall be rejected if no
vote is recorded thereon. As per Rule 86 of
Rules of 1994 the vote can be recorded by
elector by making a mark on the ballot
paper with instrument supplied for the
purpose. If ballot paper has been marked
with thumb impression (which is not the
mark on the ballot paper with the
686 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument supplied for the purpose) then
the same would amount to no vote being
recorded by elector under law. The
recording of vote on ballot paper is
required to be as per procedure prescribed
and any other mark cannot be permitted to
be used to indicate the intention of elector
through the ballot paper. Rule 105(f) of
Rules of 1994 is required to be read with
Rule 86 of the Rules of 1994 and the ballot
paper which do not satisfy the condition
provided under Rule 86(2)(b) of Rules of
1997 would be termed as that no vote is
recorded on the ballot paper by the elector
and as such consequently such ballot
papers which contains thumb impression
and not the mark by the prescribed
instrument would be liable to be rejected.
Accordingly, the invalid ballot papers
containing thumb impression to mark
intention of voter through ballot paper has
been rightly rejected and declared as
invalid.

33. The objection raised by learned
Senior Counsel for the petitioner that ballot
paper no. 9BE 2245090 (Polling Station
No. 172) and 9BE 2245380 (Polling Station
No. 172) contains full stamp on symbol
"Car" and half stamp of symbol "Kitab".
The election symbol of respondent no 7 -
Mohammad Kasib was "Kitab". The ballot
paper no. 9BE 2245090 and 9BE 2245380
was again shown to learned Senior Counsel
for the petitioner during hearing. Learned
Senior Counsel appearing on behalf of the
petitioner after examining the said ballot
papers could not dispute the fact that the
said ballot papers contains double symbol,
one on symbol "Car" and other on symbol
"Kitab". A perusal of the above-mentioned
ballot papers would clearly show that the
mark/vote has been given in favour of more
than one candidate and as such the ballot
paper is liable to be rejected under Rule
105 (e) of the Rules of 1994. Consequently,
the election authorities committed no error
in rejecting the ballot paper no. 9BE
2245090 (Polling Station No. 172) and 9BE
2245380 (Polling Station No. 172).

34. The argument raised by learned
Senior Counsel for petitioner that ballot
paper no. 9BE 2244006 (Polling Station
No. 173) contains stamp on symbol "Car"
and lightly stamp on symbol "Carrom
Board". The petitioner was allotted the
symbol of "Car" whereas symbol " Carrom
Board" was allotted to respondent no 9 -
Jahid. Learned Senior Counsel for the
petitioner submitted that the primary stamp
in the said ballot paper is on symbol "Car"
and there is an ink on symbol "Carrom
Board" and the same is not a vote casted on
symbol "Carrom Board". The said ballot
paper is to be treated in favour of
petitioner.