LexWILFRED D'SOUZA versus FRANCIS MENINO JESUS FERRAO
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A B c D E F G H 942 WILFRED D'SOUZA v. FRANCIS MENINO JESUS FERRAO October 26, 1976 (H. R. KHANNA AND JASWANT SINGH, JJ.J Conduct of Election Rules, 1961, rr. 42 and 56(6)-Tendered ballot paper, ~~~-~ . • Rule 42, Conduct of Election Ru!C-', 1961, shows that the occasion for mark- in, tendered ballet paper would arise if a person representing himself to be a particular elector applies for a ballot paper after another person ]e1s already voted as such elector. The person so applying, would then be questioned by tho presiding officer regarding his identity, and in case he gives a satisfactory an!wer, ho would be supplied a tendcr~d ballot paper which would then be marked by such person. He has to sign his name against the entry relating to him in a list in Form 15, prescribed under the Rules. The tendered ballot paper shall be the same as other ballet papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for use at the polling station. The words 'tendered ballot paper' have to be endorsed on the back of tbc tendered ballot paper and its counterfoil by the presiding officer in his own hand and bas to be signed by him. The tendered ballot paper is not to be put in the ballot box, but is to be kept in a separate cover. According to r. 56(6) no cover containing tendered ballot papers shall be opened or COl'Jltcd at the time of the counting of the 'Votes. But even though the tendered ballot papers arc thus excluded at the time of counting they can be taken into account in proceedings to challenge tbe validity of the election of tbe returned candidate provided, ( 1) the person wbo cast the initial vote as a voter on a particular ~erial number in the electoral roll was some.one other than tbe genuine voter mentioned at that number; (2) it was such genuine voter who marked the tendered ballot paper; and (3) the difference between the number of votes polled oy the candi- date declared elected and his nearest rival· is so small that there is a possibility of that difference being wiped out and the result of the election being materially affected. In such a case, the Court would exclude the vote initially cast from the number of votes of the candidate in whose favour it was cast; and take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked. In the present case, the appellant and respondent were two candidates for election to a Legislative Assembly, and the respondent was declared elected having secured just two votes inore than the appellant. The appellant challenged the respondent's election, and contended that there were ten tendered votes and that they should be counted, after removing the votes initially and improperly Ca!t. At the trial of the election petition, the appellant exa~ined on his behalf two witnesses, who had, according to the appellant, marked tendered hallot papers at the time of the polling. The trial court however, took the view that tho evidence of the two witnesses did not relate to tendered ballot papers but related to ordinary ballot papers, and dismissed the election petition. Allowing the appeal to this Court, and remanding the, case to the trial Court, HELD : ( 1) The evidence of the two witnesses of the appellant i' suffi- cient to prove that their evidence relates to tendered ballot papers. Even though some of the formalities which were required to be observed in connec- tion with the tendered ballot papers were not complied with by the presiding officer, as for example, he did not note on the back of the counterf!Jil of the tendered ballot paper that it related to tendered ballot paper, the parties cannot f I ' \ y WILFRED D'SOUZA v. FRANCIS MENINO (Khanna, I.) 943 be· made to suffer for such an omission. The evidence of the two witnesses c3lli!ot also be discarded on the ground that they have not deposed about their A havmg affixed two thumb impression instead of one. [948 F-G] . (2) In view of the fact that the appellant has adduced pl'ima facit! proof m respect of the two tendered ballot papers the trial court should now call upon the respondent to adduce his evidence. The respondent's evidence need not be confined to the two tendered ballot papers but may relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced evidence. The trial court should thereafte
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