LexANIRUDH PRASAD versus RAJESHWARI SAROJ DAS & OTHERS
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• ANIRUDH PRASAD v. RAJESHW ARI SAROJ DAS & OTHERS April 20, 1976 91 A [Y. V. CliANDRACHUD, V. R. KRISHNA !YER AND A. C. GUPTA, JJ.J B Election-Representation of People Act, 1951-Sec. 91-Recriminatory peti· tw,..,..Nature and scope of-Conduct of Election Rule1 196l--R11le 73(2)(d)- _,) Ballot paper1 containing identification marks. ..... I 19 persons contested biennial elections to the Bihar -Legislative Council for filling 11 vacancies. The appellant and respondents No. 1 to IO were declared as the successful candidates. Election was held by the system of proportional representation by a single transferable vote. The votes were counted in accord- ance with the procedure prescribed in para 7 of the Conduct of Election Rulet 1961, read with the relevant provisions of the Representation of the People Act, 1951. The Returning Officer rejected 9 ballot papers and accepted 306. Th-e Returning Officer by application of rule 6 fixed the minimum quota of votes sufficient to secure the return of a candidate at 2551. In first three rounds respondents 1 to 7 were declared elected. None of the candidates could be declared successful in the fourth round. In the fifth and 6th rounds res~ pendents 8 and 9 were declared elected. In the seventh round, respondeht No. 18 (Election Petitioner) was eliminated and in the last round, i.e. the 8th round, the appellant and respondent No. 10 were declared as the successful candidates. Respondent No. 18 filed an Election Petition in the High Court challenging the election of the successful candidates on the ground that the rejection of 3 ballot papers having first preference votes in its favour, the rejection of 2 ballot papers having first preference votes in favour of respondent No. 9 the illegal acceptance of one ballot paper having first preference vote in favour of res..r pondent No. 8 and wrong counting of votes in the fourth round of counting had materially affected the result of the election. The Returning Officer had rejected one ballot paper on the ground that it contained merely a horizontal line, another on the ground that it had a faint mark and the third on the ground that the voter had scored through the fourth preference vote in favour of one candidate and had assigned it to another. Respondent No. 8 and some other respondents did not enter appearance in the High Court. Resrondent No. 9 filed a written statement as well as recriminatory petition. He con ... tended that the Returning Officer had wrongly rejected 2 ballot papers which contained first preference votes in his favour and one other ballot paper having a second preference vote in his favour. The appellant! who was respondent No. 10 in the High Court contested the petition. The High Court with the consent of parties decided as preliminary issue whether the election petition was maintainable and whether the Returning Officer wrongly and illegally rejected the ballot papers and, if so, whether the result of the election had been materiallv affected. The High Court also held that the three disputed ballot papers did not contain anv identification marks within the meaning of rule 73(2)(d) of Conduct of Election Rules, 1961 and, therefore, the Returning Officer was in error in rejecting those ballot papers as invalid. It was not disputed before the High Court that if the 3 ballot papers that were \HOngly rejected were not eliminated respondent No. t 8 would have been declared elected. 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. The High Court also held that as a result of the i!legaJ rejection of the three votes respondent No. 9 was reQuired to trial behind until the sixth round and that but for the wrongful rejection resnondent No_ 9 would have been declared elected in the very first round. Special leave Petition filed by the Election Petition filed by the Election Petitioner in thi<; Court against the findings of the High Court on issues No. 1, 2 and 3 \Vas dismissed. c D E F G H A n c D E F - G H 92 SUPREME COURT REPORTS [1976] SUPPLEMENTARY Thereafter, th~ Hi&h Court proceeded with the election petition and tried the retp-aining issues. The votes were recounted by an Officer appOinted by the court 1n the presence of parties and their counsel. A fair copy of the result sheet was thereafter prepared signed by all concerned
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