H. R. Khanna, J. - (1.) This appeal by Dr. Wilfred D'souza is against the judgment of learned Judicial Commissioner Goa whereby he dismissed election petition filed by the appellant to declare the election of Francis Menino Jesus Ferrao respondent to the Goa Legislative Assembly to be void and to declare instead the appellant to be duly elected.
(2.) The appellant and the respondent were the two candidates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by-election caused by the death of Vassudev Sarmalkar. Polling took place on June 9, 1974 and the counting of votes on June 10, 1974. After the first count, the Returning Officer found that the total number of valid votes cast in favour of the appellant was 4,656 and of those cast in favour of the respondent was 4,654. 234 ballot papers were rejected. The respondent then applied for re-counting of the votes and the said application was granted. As a result of re-counting, it was found that the appellant had secured 4,651 valid votes, while the respondent had secured 4,652 valid votes. Seven ballot papers were rejected. It may be mentioned that at the time of recounting 234 votes which had been earlier rejected in the first count were not taken into account. Soon after the re-count the appellant made an application for a second re-count. This application was granted and the re-count took place on the following day, i.e., June 11, 1974. As a result of the second re-count the appellant was found to have secured 4,650 valid votes while the respondent was found to have secured 4,652 votes. One ballot paper was rejected. At the time of second re-count the ballot papers which had been rejected at the time of the initial counting and the first re-count were not taken into account. In the result the respondent was declared elected. The appellant thereafter filed the present petition on July 15, 1974.
(3.) Besides the ground with which we are concerned in this appeal, the appellant challenged the election of the respondent on the following two grounds: "(1) that in the first and second re-count the Returning Officer illegally accepted in favour of the returned candidate, some votes which he ought to have rejected, and rejected some votes in favour of the appellant which he ought to have accepted under law; (2) that the failure of the Returning Officer to re-scrutinize the rejected votes in the first and second re-counts is illegal." In respect of the above two grounds, objection was taken by the respondent that there was non-compliance with the statutory requirements of Sec. 83 (1) (a) of the Representation of the People Act (hereinafter referred to as the Act) inasmuch as the appellant had not set out the material facts regarding those allegations. Learned Judicial Commissioner as per order dated March 22, 1975 held that the appellant had failed to give material particulars in respect of the said two grounds. The petition in that respect was held to have not disclosed a cause of action. It was also held that the appellant was not entitled to an order of the court for re-counting the polled votes. The appellant, it may be stated, filed a petition seeking special leave of this Court against the above order but that petition was dismissed on July 31, 1975.;