LexSHRI SHANKAR BABAJI SA VANT versus SHRI SAKHARAM. VITHOBA SALUNKHE AND OTHERS
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A B c D E F G ff SHRI SHANKAR BABAJI SA VANT v. SHRI SAKHARAM. VITHOBA SALUNKHE AND OTHERS December 9, 1964 (P. B. GAJENDRAGADKAR, C.J., M. liIDAYATULLAH, J. C. SHAH, S. M. SIKRI AND R. S. BACHAWAT, JJ.J The Representation of the People Act (43 of 1951), s. 100(1) (d) (iii)- Scope of-Conduct of Election Ruies, 1961, rr 35 and 36-Presiding Offi- cers power to disregard etrors in election roJl-J:,Xtent of. The appellant and reopondcnt were candidates for eiection to the Maha- rashtra Legislative Assembly. They secured equal number of votes and so the Returning Officer drew lots and declared the appellant elected. The respondent filed, an election petition alleging, that the identity of 19 voters was disputed by the polling agent of the appellant, that the presid- ing officer enquired and found that they were electors entered on the electoral roll, that they were then supplied with ballot papers but were not permitted to insert them into the ballot box after entering their votes, that the presiding officer directed them to hand over to him those ballot papers, that he forwarded them to the returning officer in a sealed envelope, that 18 of them had recorded their votes in favoar of the re.:;pondent but the returning. officer did not count them and that therefore the appellant's election was liable to be declared void. The Election Tribunal dismissed the petition, but on appeul the High Court set aside the election. In the appeal to the Supreme Court, it was contended that : (i) the com- plaint was based upon a breach of s. !OO(l)(d)(iv) of the Representa- tion of the People Act, 1951, and the High Court erred in <leclaring the election void under s. 100( 1) ( d)( iii), (ii) s. 100( I)( d) (iii) contemplates breaches of duty by the returning officer and does not cover an improper refusal by the presiding officer, (iii) the Tribunal erred in holding that the appellant could not raise the objection that the 19 voters were not entitled to vote at all without filing a recrimination under s. 97 of the Act; (iv) the power of the presiding officer to disregard errors in the electoral roll is circumscribed by r. 35 ( 4) of the Conduct of Election Rules, 1961, and that under the rule he could o,·erlook only clerical or printing errors and the errors with respect to the 19 voters being in the surnames and father's name, they could not be said to be clerical or printing errors; and (v) the refusal of the 19 votes could n<>t be regard- ed as an improper refusal of votes affecting the result of the election. because they never became valid votes. HELD : (i) The election petition definitely charged that the presidini. officer improperly prevented the 19 voters from inserting the ballot papers into the ballot box. The pleadings were therefore broad enough to cover a case of breach of s. IOO(l)(d)(iii). (407 BJ (ii) The sub~section covers not only an improper rejection of vote! by a returning officer at the time of counting, but also an improper refusal of a vote by the presiding officer at the time of polling. [412 A-BJ (iii) In an enquiry under s. !OO(l)(d)(iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under s. 97. [407 EJ (iv) Errors with regard ~o surnames or fath~r's name a~e. not mero clerical errors. because a clenca1 error connotes some error ans1ng from a slip of the pen or some mistake by a clerk or a transcriber in writing or 404 SUPRBM:B COURT REPORTS [1965] 2 S.C.R. copying. But, while under the specific provisions of r. 35 ( 4) of the A Conduct of Election Rules, 1961, the presiding officer must disregard merely clerical and printing errors in the exercise of bis general powers of enquiry under rr. 35 and 26 be may disregard other errors if he is satisfied about the identity of 1 the elector. An error or defect in the entry in the electoral roll, does not disqualify the elector from voting. It is still opfln to him to satisfy the presiding officer at the polling station that he is really the elector' to whom the entry relates. The presiding officer being satisfied that the ~9 voters were the electors B referred to in the relevant entries, and that the surnames and father's name given in .them were eroneous and should be disregarded rightly issued ballot papers to them. [ 4 U B, E-F] 1 (v) An improper refusal to receive a
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