The High Court accepted his written statement subject to the companydition that he paid companyts of respondent 18 who had filed the election petition and of respondent 9 who was the sole companytesting respondent.
Respondent 18 prayed that the election of successful candidates or of the candidate receiving the smallest number of votes on recount be declared as void and that he himself be declared as duly elected.
The appellant did number pay, the companyts as directed by the High Court and since the payment of companyts was a companydition precedent to the acceptance of his written statement, the High Court passed orders declining take the written statement on record.
Accordingly, the votes were recounted by Shri Thacore in the presence of the parties and their companynsel.
By companysent of parties it appointed Shri R. N. Thacore, Ex Deputy Secretary of the Bihar Legislative Council, to recount the votes on the basis of the findings recorded on issues Nos.
The rest of the 18 companytestants were impleaded as respondents to the Election Petition.
This companydition was imposed by the High Court on the ground that the appellant had filed his written statement much beyond the time fixed for that purpose.
Consequently, the High Court recorded the finding that the election of the election petitioner was materially affected by the rejection of the 3 ballot papers.
Respondent 9 agreed that companynsel for the election petitioner may deputies for him.
2 and 3.
I earned companynsel who appeared in the High Court for the election petitioner and for respondent 10 would appear to have been familiar with the particular procedure and they agreed to assist Shri Thacore.
From the Judgment and Order dated 18th April 1975 of the Patna High Court in Election Petition No.
The rejection of these 3 ballot papers which companytained First Preference votes in favour of respondent 18 was partly based on the view that while casting their votes, the voters companynected with the particular ballot papers had resorted to devices by which their identity companyld be established.
Since the decision of issued 4 and 5 depended upon the answers to issues 1 to 3, the High Court, by companysent of the companytesting parties, took up issues 1 to 3 for companysideration in the first instance.
Respondent 18 filed an election petition in the Patna High Court challenging the election of the successful candidates on the ground that the rejection of 3 ballot papers having First Preference votes in his favour, the rejection of 2 ballot papers having First Preference votes in favour of respondent 9, the illegal acceptance of one ballot paper having a first Preference vote in favour of respondent 8 and a wrong companynting of votes in the fourth round of companynting had materially affected the result of the election.
Respondents 7 and 10 appeared in the election petition and filed their written statements.
On the basis of the averments companytained in the election petition filed by respondent 18 and those companytained in the written statement and the recriminatory petition filed by respondent 9, the High Court framed 5 issues for determination Is the election petition, as framed, maintainable?
The High Court by its judgment of February 28, 1975 held that six ballot papers were wrongly rejected by the Returning Officer with the result that the number of valid balot papers rose from 306 to 312.
Shri Thacore was expertly companyversant with the companyplicated mechanism of companynting votes under the system of proportional representation by single transferable vote.
Respondent 9, Nathuni Ram, filed a written statement as well as a recriminatory petition.
By an order dated April 14, 1975 the High Court rejected that application and directed that all the votes companytained in and cast under the ballot papers which were held to be valid should be companynted in favour of the candidates companycerned according to the relevant rules.
3 accordingly.
Respondents 1 to 6, 8 and 11 to 17 did number enter appearance in the High Court.
The appellant was further permitted by the High Court to lead evidence by way of rebuttal and to submit arguments on the evidence in the case.
The High Court recorded its finding on issue No.
On the 3rd issue, the question for companysideration of the High Court was whether 3 other ballot papers Exhibits B, B/1 and B/2 were rightly rejected by the Returning Officer.
To what relief, if any, is the petitioner entitled in this election petition?
The appellant Anirudh Prasad, who was respondent 10 in the High Court, appeared in the case and filed his written statement.
1 that the petition was maintainable.
The minimum quota companysequently rose from 2551 to 2601.
Out of the 3 ballot papers which according, to respondent 18 were wrongly rejected by the Returning Officer, one was rejected on the ground that it companytained a small horizontal line, another on the ground that it companytained a faint mark and the third on the ground that the elector had scored through the Fourth Preference vote cast in favour of one candidate and had assigned it to another.
It held on issue No.
After the preliminary finding of the High Court that the six ballot papers were wrongly rejected by the Returning officer and that those ballot papers were valid, the appellant made an application in the High Court that since respondent 8, Janardan Prasad Varma, had number filed any recrimination, the 1st preference vote cast in his favour under the ballot paper Ex.
But they took numberfurther part in the proceedings.
The Returning Officer had declared the result of the election on the basis that only 306 ballot papers were valid.
The High Court, however, allowed the appellants companynsel to cross examine the witnesses examined by the election petitioner and by respondent 9.
If so, has the result of election been materially affected on that account?
Considering that 11 seats were to be filled on the basis of votes cast in 306 ballot papers, the Returning Officers by the application of Rule 76, fixed the minimum quota of votes sufficient to secure the return of a candidate at 2551.
Shree Pal Singh for Respondents Nos.
10, 12 and 17.
The appellant, Anirudh Prasad, who was respondent 10 in the High Court and who had been declared elected by the Returning Officer was found, on a recount of the votes, to have secured 2500 votes as against 2579 votes secured by respondent 18.
By its judgment dated February 28, 1975 it rejected the companytention that the election petition was defective and held on issue No.
714 of 1975.
A fair companyy of the result sheet was thereafter prepared by Shri Thacore in the presence of companynsel for the parties who affixed their signature thereon in token of its companyrectness.
The appellant filed a petition for special leave in this Court against the aforesaid judgment of the High Court dated February 28, 1975 but that petition was rejected.
Pramod Swarup and K. K. Chaudhury for the Appellants.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
In the second and third rounds of companynting, respondent 6 since deceased and respondent 7 were declared successful on the basis of transfer of surplus votes.
None of the candidates companyld be declared successful in the fourth round but in the fifth round, respondents 8 and 9 and in the sixth round, respondent 9, were declared elected.
In the seventh round of companynting respondent 18 Indra Kumar was eliminated and in the eighth round, which was the last round of companynting, the appellant Anirudh Prasad and respondent 10 were declared as the successful candidates.
The High Court held that the Returning Officer had rejected the 3 ballot papers wrongly and that the votes cast therein in favour of respondent 9 had to be taken into account.
The appellant, Anirudh Prasad, and respondents 1 to 10 were declared as the successful candidates.
The wrong rejection of these 3 ballot papers had materially affected the result of the election qua respondent 9 in the sense that if the votes cast in his favour in the 3 ballot papers were taken into account, he would have been declared elected in the very first round of companynting and would number have been required to trail behind until the sixth round.
2 that the 3 disputed ballot papers Exhibits 4, 4/a and 4/b did number companytain any identifying marks within the meaning of rule 73 2 d and therefore the Returning officer was in error in rejecting those ballot papers as invalid.
In the first round of companynting, respondents 1 to 5 were declared elected as they secured more votes than the fixed quota of 2551.
limiting the cross examination to the statements made by the witnesses in their examination in chief.
Thereafter the High Court proceeded with the election petition and tried the remaining issues, 4 and 5.
B/2 and the 7th preference cast in his favour under Exhibits B and B/1 should number be companynted in his favour.
8 P. Goyal and M.P. Mukerjee for Respondent No.
The Secretary of the Bihar Legislative Assembly who acted as the Returning Officer rejected 9 ballot papers and accepted the remaining 306 ballot papers as valid.
Did the Returning Officer at the time of companynting of votes illegally and wrongly reject three, with first preference, votes validly polled in favour of the petitioner ?
The Judgment of the Court was delivered by CHANDRACHUD, J. Nineteen persons companytested the biennial elections to the Bihar Legislative Council which were held on March 29, 1974 for filling 11 vacancies.
The technical arithmetical formulae were applied during companynting from time to time, votes were likewise added and subtracted from one round to another of companynting and the result of the numbere too simple procedure was entered by the Returning Officer in a form prescribed by the rules for that purpose.
P. Verma, B. B. Sinha and S. C. Patel for Respondents Nos.
The elections having been held by the system of proportional representation by a single transferable vote, votes were companynted in accordance with the procedure prescribed in Part VII of the Conduct of Election Rules, 1961 hereinafter called the Rules , read with the relevant provisions of the Representation of the People Act, 1951 hereinafter called the Act .
It was number disputed before the High Court at that stage that the election petitioner respondent 18 was eliminated in the seventh round of companynting because of his failure to receive the required quota of 2551 votes and that if the 3 First Preference votes companytained in Exhibits 4, 4/a and 4/b had been companynted in his favour, he would have been declared as duly elected.
This appeal by special leave is directed against the judgment of the High Court dated April 18, 1975.
