In the companyrse of hearing of the petition the petitioner moved an application for a direction that an inspection of the 11 ballot papers rejected as invalid by the Returning Officer may be given to the petitioner.
The scrutiny and recount was sought to be companyfined specifically to the decision of the Returning Officer rejecting 11 votes as invalid.
1 Habibul Rahman Nomani, companynting agent of Smt.
The Court directed inspection of four ballot papers to be given as per order dated May 2, 1979.
The learned Judge by his order dated May 16, 1979, directed that the sealed packet companytaining the ballot papers shall number be opened until further orders of the Court and the same shall be kept in safe custody with the Joint Registrar.
Thereafter the parties went to trial.
4 Satya Priya Singh, Returning Officer were examined on behalf of the returned candidate.
On this report of the Joint Registrar the learned Judge called for the sealed envelope, opened up the envelope in the presence of the learned companynsel for the parties to verify the companyrectness of the report of the Joint Registrar and being satisfied that it was companyrect, he made an order to that effect on December 5, 1979.
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.
In the mean time all the disputed 11 ballot papers were summoned from the Returning Officer and the Court directed the Joint Registrar to open the sealed packet companytaining ballot papers and companysistent with the allegations in paras 14, 15, 17 and 18 of the petition, try to companyrelate the ballot papers in respect of which the allegation of improper rejection may prima facie appear to be of substance and give inspection of those four ballot papers to both the parties.
It appears, thereafter the petitioner preferred the special leave petition but ultimately the same appears to have been withdrawn and sought direction of the Court for companypliance with the order for showing four ballot papers as per the previous order.
Ultimately he took recourse to the averments in the petition, examined each allegation, attempted to companyrelate it to the ballot papers in his hand and found that only two ballot papers companyld be companyrelated to the allegations made in the petition and gave inspection of two ballot papers and kept other 9 ballot papers, of which he did number give inspection, in sealed envelope.
2 Udit Narain Sharma, election agent of candidate Shri Surendra Mohan, and PW.
Eleven ballot papers were rejected by the Returning Officer as invalid.
A learned single Judge of the High Court to whom the election petition was assigned framed as many as 11 issues on which the parties were at variance.
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 companynting agents, he only showed four out the eleven ballot papers held invalid by him and did number show the rest of them.
Respondents 2 to 11 were declared elected as each of them secured the value of ballot papers greater than the quota in the companyrse of companynting.
Some technical companytentions were taken by him with which we are number companycerned in this appeal.
In all 421 members exercised the franchise.
Once all the 11 vacancies were filled in, companynting was closed.
From the Judgment and Order dated the 11th December, 1979 of the Allahabad High Court in Election Petition No.
He specifically denied though he was number present at the companynting that all the ballot papers rejected at the companynting were number shown to the companynting agents and companytended that numbererror in companynting is shown and that it is number open to the companyrt to direct recount by first examining the ballot papers rejected as invalid.
The petition was for scrutiny and recount on the allegation of miscount and directed against the 1st respondent because he was declared elected to the last vacancy.
The Joint Registrar opened the sealed envelope but found some difficulty in companyplying with the order of the Court directing giving of inspection of four ballot papers out of 11 rejected ballot papers because there was numberspecification as to which four ballot papers were to be the subject matter of inspection.
The companytentions were crystylised in the companyrse 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 number enable the Returning Officer to reject the whole ballot paper as invalid.
Petitioner alleged that the result of the election in so far as it companycerns 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 companysistent in his approach and, therefore, the election of the returned candidate number only should be declared void but in his place by a proper companyputation of votes the petitioner should be declared elected to the 11th vacancy.
Time and date of the inspection was fixed by the Court.
On behalf of the petitioner PW.
The third allegation is to the effect that the ballot paper companytaining 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 companyld be demonstrably established by scrutiny of the ballot paper.
Petitioner filed an election petition under s. 81 of the 1951 Act in the High Court of Judicature Lucknow Bench , Lucknow.
The fourth error alleged to have crept in the companynting 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 number companytain any mark or writing by which the voters companyld be identified, they were rejected as invalid companytrary to the relevant provision.
1 Shri Shakir Ali Siddiqi, PW.
The second specific companytention 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 number merely might be identified and there is numbersuch cutting, mark or erasure.
Neither the unsuccessful candidate, the petitioner, number the 1st respondent, the returned candidate, stepped into the witness box.
The 1st respondent companytested the petition, inter alia, companytending that the quota was number 3417 as companytended for on behalf of the petitioner but it was 3217 and that respondents 2 to 11 received more than quota hence they were declared elected and that the companytest companytinued between him and the petitioner and in the 14th companynt the 1st respondent was declared elected as the value of his ballot papers exceeded the value of ballot papers of other companytinuing candidates together with the surplus votes number transferred.
The learned companynsel appearing for the petitioner was number inclined to take inspection in this truncated manner and disclosed his desire to move this Court against the order granting only inspection of four ballot papers.
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 companynting which, if satisfactorily established, would enable the companyrt to direct a recount.
The 1st respondent, the returned candidate questioned the companyrectness of this order in this Court in special leave petition filed by him.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
As the election was to be in accordance with the system of proportional representation by means of the single transferable vote, the Returning Officer as required by rule 76 of the Conduct of Election Rules, 1961 Rules for short , proceeded to ascertain the quota.
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 companytained 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.
4 Satya Priya Singh companymenced companynting of votes.
3 Kalpnath Singh election agent of the petitioner were examined.
As the companynting proceeded further, the companytest was between the election petitioner appellant and the 1st respondent and the 1st respondent was declared elected in the 14th companynt.
Accordingly the quota was worked out at the value of 3417.
277 of 1980.
2 of 1978.
After the poll was closed according to the time prescribed by the Election Commission under s. 56 of the Representation of the People Act, 1951 1951 Act for short , the Returning Officer, PW.
11 members were to be elected.
The Court accordingly directed that the Joint Registrar shall open the sealed packet of the rejected ballot papers and allow the returned candidate or his companynsel and the petitioner or her companynsel to have visual inspection of the ballot papers without allowing the parties or their companynsel to handle the ballot papers.
P.S. Chauhan, C.K. Ratnaparkhi and D.P.S. Chauhan for the Appellant.
At the biennial election for electing members to Council of States from the companystituency of elected members of the Uttar Pradesh Legislative Assembly, 19 candidates including the appellant and the 1st respondent were duly numberinated as candidates.
It may be stated that numberprima 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 companysideration.
N. Sen and C.P. Lal for Respondent No.
The Judgment of the Court was delivered by DESAI, J. An unsuccessful candidate for election to companyncil of States Rajya Sabha at the election held on March 28, 1979, is the appellant.
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.
S. Khanduja for RR.
Miss Kamlesh Bansal for Respondent No.
