LexDR. ANUP SINGH versus SHRI ABDUL GHANI AND ANOTHER
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' ' DR. ANUP SL'IGH v. SURI ABDUL GHANI AND ANOTHER A ugus/ 14, 1964 (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, A M. HIDAYATULLAH, J. C. SHAH AND N, RAJAGOPALA B AYYANGAR JJ.) The Rcprew1tatio11 of the People Act (43 of 1951). ss. 81(3) and 90(3)-Scope of. Conduct of Election Rules, 1%1. r. 73(2) (d)--"Any mark or writing by which the elector can he id~ntifie,t', meaning of. The Election Trihunal allowed the periiion ch1llenging the appellant's election to the Council of States and declared the respondent elected. The a;,pellant's appeal to the High Court was di•missed. In his appeal to the Supreme Court, he contended that ; ( i) the High Court was in error in not rejecting the election peti_rion under s. 90(3) of the Representation ol the People Act ( 43 of I ?51) for non-compliance with the provi- sions of s. 81(3) of the Act, and (ii) the High Court wa. in error in rejecting one of the votes \\:hich \V;1s in his favou:-. HELD; (i) As there was a substantial compliance with s. 81(3), the petition could not be dismissed under s. 90(3). (41F] Ch. Subba Ra'J v. Member, Election Tribunal, A.1.R. 1964 S.C. 1027, followed. c 0 (ii) As the elector by his- wri1ing on the ballot paper had left suffi- cient evidence of his identity \vhich could lead to his. identification. the E ballot paper was rightly rejc'Cted. (48G] 'fhe words ''any n1ark or writing hy \vhich the elector can be identi- fied" in r. 73(2)(d) of-the Conduct of Election Rules mean something more than a mere possibility of identification hu:: do not require actual proof of identification before a vote can be invalidated. All that these words require is that there -should be reasonable probability of identifica- tion by the mark or writing (other than that pennittcd by r. 37-A) and if there is such a reasonable probability of idenrifi,:ation, the ballot paper F would be invalidated. [44C-E] Woodward v. Sarson.<, (1875), L.R. 10 C. P. 733; Jsaac1on v. Durant, (1886) IV O'M & H 34; fl. L. Lawso" v, Colonel Chester Master, (1893), IV O'M & H 194; He,,ry Ed1.-ard Duk' v. R/ch,,rd Harold, (1911) VI O'M & H 228. Ll'wi.< v. Shepperdson, (1948] 2 All E.R. 503, Reginald Pole Blundell v. Joseph Vardon, ( 1907) 4 (Pt. 2) C.L.R. 1463, Kenned.v v. Palmer, (1907) 4 (Pt. 2) C.L.R. 1481 and Kean v. Kerby (1920} 27 G C.L.R. 449, referred to. CrvtL APPH!.ATE ]URISDlCTJON: Civil Appeals Nos. 141 and 142 of 1964. - Api:eals from lk judgment and order dated May 30, 1962 of the Punj~b High Court, in F.A.O. Nos. 3.'E and 4/E of 1962. H G. S. ·Pathak. Harder Singh, Y. Kumar, Mohinder Narain, S. N. And/ey, nnd Ramesltwar Na1h, for the appellants. .. ANUP v. ABDUL GHAN! (Wanchoo J.) 39· A T. R. Bhasin, Rajinder'Sachar and S. C. Malik, for respon- B c D E F dent No. 1 (in C.A. No. 141/64) and respondent No. 2 (in C.A. No. 142/64). The Judgment of the Court was delivered by Wanchoo J. These appeals on certificates granted by the Punjab High Court arise out of an election to the Council of States by the Punjab Legislative Assembly and will be dealt with together as they arise out of two separate election petitions by two persons, challenging the election of the same person. There was an electfon to the Council of States by the Punjab Legislative Assembly in March 1962. There were a number of candidates for three seats which had to be filled. In the present. appeals we are concerned with two candidates, namely, Dr. Anup Singh, appellant, and Shri Abdul Ghani respondent. Two of·the seats were filled by Shri .Chaman Lal and Shri Surjit Singh. Though originally their election was also challenged, that is not in dispute now. The position with respect to Dr. Anup Singh and Shri Abdul Ghani on first preference votes' r the election being on proportional representation) was that Dr. Anup Singh got 36 votes and Abdul Ghani 35 votes. Thereafter preferences were transferred and Dr. Anup Singh got 36 · 3 votes 'and Shri Abdul Ghani 35 votes. Jn consequence Dr. Anup Singh was declared el~cted along with the other two candidates whose election is not now in dispute. This was followed by two election petitions, one by Shri Abdul Ghani and the other by Shri Lachhman Singh. Originally the election of all the three candidates was challenged on a large number of grounds; but eventually the matter was pressed only against the election of Dr. Anup Singh and only on one ground, namely, that certain votes cast in
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