Decided on October 26,1982



Desai, J. - (1.) An unsuccessful candidate for election to Council of State (Rajya Sabha) at the election held on March 28, 1979, is the appellant. At the biennial election for electing members to Council of States from the constituency of elected members of the Uttar Pradesh Legislative Assembly, 19 candidates including the appellant and the 1st respondent were duly nominated as candidates. 11 members were to be elected. Election was to be held as mandated by Clause (4) of Article 80 of the Constitution in accordance with the system of proportional representation by means of the single transferable vote. After the poll was closed according to the time prescribed by the Election Commission under Section 56 of the Representation of the People Act, 1951 ('1951 Act' for short), the Returning Officer, R. W. 4 Satya Priya Singh commenced counting of votes. As the election was to be in accordance with the system of proportional representation by means of the single transfarable vote, the Returning Officer as required by Rule 76 of the Conduct of Election Rules, 1961 ('Rules' for short), proceeded to ascertain the quota. In all 421 members exercised the franchise. Eleven ballot papers were rejected by the Returning Officer as invalid. Accordingly the quota was worked out at the value of 3417. Respondents 2 to 11 were declared elected as each of them secured the value of ballot papers greater than the quota in the course of counting. As the counting proceeded further the contest was between the election petitioner (appellant) and the 1st respondent and the 1st respondent was declared elected in the 14th count. Once all the 11 vacancies were filled in, counting was closed.
(2.) Petitioner filed an election petition under Section 81 of the 1951 Act in the High Court of Judicature (Lucknow Bench), Lucknow. The petition was for scrutiny and recount on the allegation of miscount and directed against the 1st respondent because be was declared elected to the last vacancy.
(3.) Petitioner alleged that the result of the election in so far as it concerns the returned candidate - 1st respondent - has been materially affected by the improper rejection of valid votes by wrongly declaring them invalid as well as by improper reception of what otherwise would have been the invalid votes if the Returning Officer had been consistent in his approach and, therefore, the election of the returned candidate not only should be declared void but in his place by a proper computation of votes the petitioner should be declared elected to the 11th vacancy. The petition primarily being for relief of scrutiny and recount on the allegation of miscount it was necessary to allege and offer prima facie proof of the possible errors in the counting which, if satisfactorily established, would enable the Court to direct a recount. It may be stated that no prima facie proof has been offered of the improper reception of an otherwise invalid vote in favour of the 1st respondent and that allegation may be excluded from further consideration. Petitioner alleged that there has been an improper rejection of the valid votes cast in her favour and that has materially affected the result of the election. Petitioner states that even though it was obligatory upon the Returning Officer to show all the ballot papers which he rejected as invalid to the candidates and/or their counting agents, he only showed four out of the eleven ballot papers held invalid by him and did not show the rest of them. To the question as to why votes were rejected as, invalid it is alleged that the Returning Officer informed the counting agents that there were marks and cuttings in the ballot papers which may possibly identify the voters and, therefore, such ballot papers have been rejected on the ground set out in Rule 73 (2) (d) of the Rules. Four specific allegations of error, improper rejection of votes otherwise valid necessitating scrutiny and recount are set out in paragraphs 14, 15, 17 and 18 of the election petition. It was also alleged that of the four ballot papers shown there was one in which first preference was indicated in favour of the petitioner but that was illegally rejected by the Returning Officer on the ground that it contained an overwriting in respect of the 10th preference vote marked by the voter. The second error alleged in the petition is that in one ballot paper the 4th preference figure was put in a bracket and this was illegally rejected on the ground that the voter can be identified. The third allegation is to the effect that the ballot paper containing a 1st preference vote cast in favour of the candidate Shri Surendra Mohan was illegally rejected by the Returning Officer on the ground that the voter had given his 1st preference vote at two places whereas in fact the voter had given his 1st preference vote only to Shri Surendra Mohan and had given 11th preference vote to another candidate which could be demonstrably established by scrutiny of the ballot paper. The fourth error alleged to have crept in the counting was that the Returning Officer invalidated two other ballot papers on the ground that there were overwritings in the 8th and 9th preference votes respectively and that even though these ballot papers did not contain any mark or writing by which the voters could be identified, they were rejected as invalid contrary to the relevant provision. it was urged that these prima facie errors when substantiated would clearly make out a case of miscount and the same can be corrected by scrutiny and recount. The scrutiny and recount was sought to be confined specifically to the decision of the Returning Officer rejecting 11 votes as Invalid. The contentions were crystallised in the course of hearing of the appeal by urging that where the election is to be held in accordance with the system of proportional representation by means of the single transferable vote, if the first preference is properly and ascertainably cast any error in setting out the remaining preferences would not enable the Returning Officer to reject the whole ballot paper as invalid. The second specific contention is that every unrequired mark, cutting, erasure cannot tantamount to any indication which would enable the voter to be identified but the writing or mark must be such that the voter can be and not merely might be identified and there is no such cutting, mark or erasure.;

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