LexSHRADHA DEVI versus KRISHNA CHANDRA PANT & OTHERS
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.,
681
SHRADHA DEVI
v.
KRISHNA CHANDRA PANT & OTHERS
October 26, 1982
[D.A. DESAI. AND A.P. SEN, JJ.]
Representation of the People Act, 1951-E/eciiOn Petition-Elector's duty-
Nature ofproof--Required for a relief ofsCrutiny and recount on the a/legation
of miscount in an election 'petition.
A
B
c
The appellant was one-of the 19 candidates for the 11 members to be elected
at the biennial election for electing members to ,Council of States from the
!I"'! consti1uency of el~cted m~mbers of the Uttar Prad"'sh Legislative Assembly, at
the election held on 28th March, 1979.
D '
, The election was to be in accOrdance with the ·sYstem of proportional
representation by means of single trans_fcrable ~ote. Io all 421 members exercised
their franchise. Eleven ballot papers were rejected by tbe returning officer as
inValid and the 1st Respondent was declared elected in tbe'14th count.
The appellant, thereupon, filed an election petition Under section 81 of the
.J.951 Act before the Lucknow Bench· of the Allahabad High Cou'rt for Scrutiny
and ·recount· on the allegation of miscount. The appellant alleged that (i) ~he
result of the election in so far as it co~cerns the returned candidate {i.e.)~ .Jst
. respondent-has been materially affected by the improper rejectiori of valid votes·
by wrongly declaring them invalid as weIJ as by improper reception of what other~
wise would haVe been the invalid vote's if the Return-i,ng Officer had been consitent
in his approach, and, therefore, the election of the returned candidate not only
shquld be declared void but in bis· place bf a proper computation oi'votes, the
.petitioner sho1,dd be. declared elected to·the 1 I th vacancy, (ii) there had been an
:in1prOper rejection of the valid votes cast in her favour and that 'has materially
;affe~ted the result.of the election; and (iii) even though it was obligatory upon
:the Returning Offic.er to sho'w all the ballot papers 'Yhich be rejected as invalid,
to the candidates and/or their counting agents, he· only showed four out of the
eleven ballot papers heJd invaiid by him and did not show the rest of .them.
Even these four were wrongly rejected and cannot be said to •be covered. by
.Rule 73(2)(d) of the Election Rules.
The High Court dismissed the election
petition and hence the appeal by special le~ve.
F
The appellant contended that {i) where the election is to be held in accor-
H'
dance with. the system of .Proportiopal .representation by means of the single
transferable vote, if the µrst preference is properlr ~pg w;cerlainably cast any
682
SUPREME COURT REPORTS
(1983] 1 S.C.R,
A
error in setting oUt the reinaining preferences would not enable the Returning
Officer to reject the whole ballot paper;· and (ii) every unrequired mark, cutling,
erasure cannot tantamount to any indication which would enable the voter to be
identified but the writing or mark roust De such that the veter can be and not
merely might be identified and there is no such cutting mark or erasure within
the meaning of Rule 73(2)(d) of the Conduct of Election Rules; 1961.
8
c
D
E
F
G
H
Allowing the appeal, the Court
HELD: 1:1. When a petition is for relief of scrutiny and recount on the
allegation of miscoutit, the petitioner has to offer prima facie proof of errors in
counting and if errors in counting. arc prima facie established, a recount can be
ordered. If the allegation. is of improper rejection of valid votes which is
covere.d by the broad spectrum of scrutiny and recount because of miscount,
petitioner must furnish prima facie proof of such error. If proof is furnished
of some Crrors in respect of ~ome b81lot papers·, scrutiny and recount cannot
. be limited to those ballot papers only. If the recount is limited to those ba11ot
papers in respect of which there is a specific allegation of error and the correla-
tion is established, the approach would work havoc in a Parliamentary consti-
tuehcy where rnore often_l0,()00 or more vo1es a1e re.ltcted as invalid. [690 A-C]
1 :2. Law does not require that while giving proof of prima facie error
in counting each head of error must be tested by only sample examination of
some of the ballot papers which answer the error and then take into considera-
tion only those ballot papers and not others. This is not the area of inquiry
in a
0
petition for relief of recount on the J?,round of n1iscount. True it is that
'a recount is not granted as of ·right, butExcerpt shown. Read the full judgment & AI analysis in Lexace.