DATTATRAYA BALKRISHNA KULKARNI Vs. SAKATAPRASAD MAHANAND UPADHYAYA

JUDGEMENT

(1.) THIS petition raises a question of considerable importance affecting the validity of ballot papers which do not strictly conform in some respects to the requirement of Election Rule 27 contained in the Bombay Municipal Corporation (Conduct of Elections) Rules framed under the Bombay Municipal Corporation Act, 1888. Rule 27(7) is as under: 27. Recording of votes. -(1) On receiving the voting paper, the voter shall forthwith proceed to the cubicle provided for the marking of voting papers and shall, without undue delay, record therein his votes by placing a cross or crosses, as the case may be, on the right hand side of the voting paper in the space provided for the purpose, opposite the name or names of the candidate or candidates for whom he desires to vote, The voter shall then fold the voting paper so as to conceal his votes and proceed to the ballot -box, show the indelible ink mark to the Polling Officer in charge of the ballot -box, deposit the voting paper in - the ballot -box and quit the polling station immediately. To state it without refinement, the principal question that we have to determine is whether a voter, who, instead of putting a cross on the right hand side on the voting paper in the space provided for the purpose opposite the name or names of the candidate or candidates for whom he desires to vote, puts some other mark in that space on his voting paper, can be said to havevalidiy recorded his vote ?

(2.) THE petitioner and nine others were candidates at the municipal election in ward No. 26, Naigaum, Greater Bombay, held on May 9, 1957, for five elective seats. The petitioner belonged to one party and respondents Nos. 1 and 2 belonged to a rival party. The result of the election was declared on May 11, 1957, and the result so far as it affected the petitioner and respondentsNos. 1 and 2 was that respondents Nos. 1 and 2 defeated the petitioner by a margin of respectively 97 and 57 votes. Respondent No. 1 had polled 10414 valid votes, respondent No. 2 had polled 10375 valid votes and the petitioner had polled 10317 valid votes. The petitioner filed an election petition, which was heard before the learned Chief Judge of the Court of Small Causes at Bombay under Section 33 of the Bombay Municipal Corporation Act. In that petition, he challenged the validity of the election of respondents Nos. 1 and 2 on various grounds. He alleged various corrupt practices. He also alleged various procedural irregularities committed by the Polling Officers and their staff in counting, cheeking and scrutiny of valid and invalid votes and prayed for a declaration that the petitioner was and the respondents were not duly elected candidates at that election. A mass of evidence was led and after a protracted hearing, the learned Judge decided on all points against the petitioner. For the purposes of the present petition, it is unnecessary to give a resume of all those allegations nor is it necessary to summarise the defences raised by the two contesting candidates or the Municipal Commissioner for Greater Bombay, who is respondent No. 3 to this petition. It will suffice to refer only to those contentions which have been pressed before us by Mr. Bhasme, learned Counsel for the petitioner.

(3.) SECTION 28 contains a number of provisions respecting contested ward elections. Clause (f) of that section lays down: in plural councillor wards every elector shall have as many votes as there are councillors to be elected at such election for such ward, and may give all such votes to one candidate, or may distribute them among the candidates as he thinks fit. Section 27 requires that a poll should be taken when a ward election is contested. There is no dispute and it is not disputable that poll had to be taken at the election and the voting had to be by secret ballot.