From the Judgment and Order dated 16 12 1975 of the Judicial Commissioners Court, Goa, Daman and Diu in Election petition No.
The respondent denied that the tendered votes were cast by genuine voters.
These two witnesses, according to the appellant, had marked tendered ballot papers at the time of polling.
Prayer made by the appellant was that the election of the respondent be declared void and the appellant be declared to be duly elected.
The same reads as under The petitioner further submits that the scrutiny and companynting of the tendered votes is absolutely necessary in this case, companysid ering the fact that the respondent has been declared the returned candidate after securing in his favour only 2 votes more than the petitioner and the fact that the tendered votes are 10, and that the number counting of such votes may materially affect the result of the election, in so far as it companycerns the respondent, by the improper reception of votes originally polled by persons other than those who tendered their votes.
The respondent then applied for recounting of the votes and the said application was granted.
As a result of recounting, 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.
As a result.of the second recount the appellant was found to have secured 4,650 valid votes while the respondent was found to have secured 4,652 votes.
It may be mentioned that at the time of recounting 234 votes which had been earlier rejected in the first companynt were number taken into account.
Issue No.
It was also held that the appellant was number entitled to an order of the companyrt for re companynting the polled votes.
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 appellant thereafter filed the present petition on July 15, 1974.
Polling took place on June 9, 1974 and the companynting of votes on June 10, 1974.
The only ground which survives and with which we are companycerned in this appeal is given in para 9 of the petition.
The petition was resisted by the respondent, and in reply to para 9 of the petition the respondent submitted that numberrecount was justified or required in law merely because of the returned candidate having secured only two votes more than the defeated candi date.
Soon after the recount the appellant made an application for a second recount.
The petition in that respect was held to have number disclosed a cause of action.
The appellant accordingly asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes.
The petitioner, therefore, submits that the votes initially and improperly received should be removed and the tendered votes should be accepted and companynted instead.
At the time of second recount the ballot papers which had been rejected at the time of the initial companynting and the first recount were number taken into account.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
One ballot paper was rejected.
In the judgment under appeal, learned Judicial Commissioner examined the evidence of the two witnesses produced by the appellant.
Trunks companytaining election papers were also sent to the companyrt by the Election Registration Officer.
The appellant thereafter examined two witnesses, Joa quine Rodrigoes PW 1 and Vina Farnandes PW 2 .
234 ballot papers were rejected.
In reply to that application the respondent stated that the companyrt should, before sending for the said papers, call upon the appellant to make out a prima facie case by undertaking to examine all the persons who have cast the tendered votes and producing some of them and proving that they had cast the tendered votes and that they are the true votes.
As the keys of those trunks were number available, those trunks were broken open in the presence of the parties.
This application was granted and the recount took place on the following day, i.e., June 11, 1974.
The appellant, it may be stated, filed a petition seeking spe cial leave of this Court against the above order but that petition was dismissed on July 31, 1975.
154 of 1976.
In the result the respondent was declared elected.
Hardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by KHANNA, J. This appeal by Dr. Wilfred DSouza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed.
2/74 .
election petition filed by the appel lant 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.
M. Tarkunde and Shri Natgin for the Appellant.
The appellant and the respondent were the two candi dates who sought election to the Goa Legislative Assembly from Benaulim Assembly companystituency in the by election caused by the death of Vassuudev Garmalkar.
After the first companynt, 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.
