ERA SEZHIYAN versus T.R. BALU AND ORS.

Citation: [1990] 1 S.C.R. 767 · Decided: 01-03-1990 · Supreme Court of India · Bench: M.H. KANIA · Disposal: Dismissed

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Judgment (excerpt)

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ERA SEZHIY AN 
~/ 
A 
v. 
T.R. BALU AND ORS. 
MARCH 1, 1990 
I'· 
[M.H. KANIA AND KULDIP SINGH, JJ.] 
B 
Representation of the People Act, 1951/Conduct of Election Rules 
1961: Sections 60 and JOO/Rules 30, .31 .37A, 39A, 56 & 70-Rajya 
Sabha election-Bailor paper marked with green ink while blue ball 
; 
point pen kept in voting booth for use by voter-Voting in'violation of 
election rules-Hence ballot paper rightly rejected: mark not place in 
c 
the column earmarked for marking the preference but placed opposite 
__.!. 
the name of the candidate: intention of the voter clearly indicated-
Hence ballot papers rightly accepted. 
Election of six Members to the Rajya Sabha by the elected Mem-
bers of the Tamil Nadu Legislature Assembly was held in June 1986. The 
D 
appellant and respondent nos. I to 7 were the eight candidates in the 
field. Respondent Nos. I to 6 were declared duly elected and the appel-
--{ 
lant was declared as having lost the election. The appellant thereupon 
filed an election petition which was dismissed by the High Court. 
Before this Court it was contended on behalf of the appellant that: 
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~ 
( 1) the first preference vote in his favour in which the first preference 
....... 
was marked on the ballot paper in green ink had been wrongly rejected 
on the ground that it was marked otherwise than with the article sup-
plied for the purpose, i.e., the ball-point pen with blue ink which had 
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been kept in the voting booth; and (2) the tbree ballot papers indicating 
the first preference in favour of the first respondent, which did not 
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contain the figure 'I' .in the space intended for marking the said figure, 
had been wrongly accepted. In support of the first contention it was 
argued that: (1) the expression "article supplied for the purpose" used 
in Rule 39A(2)(b) and Rule 73(2)(e) of the Condlll:t of Election Rules, 
1961, was misconstrued by the High Court; (2) in the context of the 
election law, the instructions contained in the hand-books, and the 
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__.I., 
procedure followed in respect of the election to Lok Sabha and State 
Assemblies, the expression "article supplied for the purpose" should be 
' 
interpreted as meaning "actually given" or "handed over", and as 
such the ball-point pen for marking the preference should have been 
personally handed over to the voter with instructions to use it for mark-
ing his preference; (3) the mistake in the present case, namely, marking 
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767 
768 
SUPREME COURT REPORTS 
[ 1990] 1 S.C.R. 
A of the preference with green ink on the ballot paper, had occurred .'i 
because no ball-point pen w:is handed over to the voter concerned; and 
( 4) the fundamental rule of election law is that effect should be given to 
the intention of the voter and this could be done only by treating the 
vote as valid. 
B 
Dismissing the appeal, this Court, 
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HELD: (1) There is a material difference between an election to 
Lok Sabha or a Legislative Assembly which is a direct election with one 
constituency for each seat and only the vote is to be cast, and an election to 
: 
Rajya Sabha which is an indirect election with the preferential system 
c 
of voting. This difference has to be taken into account in interpreting 
the relevant words used in the Rules relating to an election. [779D~E] 
(2) Rule 39A(2)(b) read with Rule 37A(2)(a) of the Conduct of 
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Election Rules 1961 prescribes that at an election in a council an elector 
in giving his vote shall place on his ballot paper the figure 'I' in the 
D space opposite the name of the candidate for whom he wishes to vote in 
the first instance with the article supplied for the purpose. Further, 
Rule 73 which is directly applicable to the counting of votes at elections 
by Assembly Members, prescribes that if on the ballot paper there is 
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any figure marked otherwise than with the article supplied for the 
purpose, the ballot paper shall be invalid. -[777H; 778A; D] 
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(3) The High Court was right in interpreting the expression 
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"article supplied for the purpose" in Rule 39A(2)(b) and Rule 73(2)(e) 
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of the Election Rules as meaning "made available for the purpose" or 
"provided for the purpose." [778E] 
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F 
Ram Utar Singh Bhaduria v. Ram Gaopal Singh & Ors., [1976] 1 
SCR 191 distinguished. 
( 4) The difference in the case of an election to the Rajya Sabha 
makes it wholly unT!ecessary that the Presiding Officer or the Polling 
Officer should hand over to every votor individually a ball-point pen 

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