PETITIONER:
WILFRED D’SOUZA
Vs.
RESPONDENT:
FRANCIS MENINO JESUS FERRAO
DATE OF JUDGMENT26/10/1976
BENCH:
KHANNA, HANS RAJ
SINGH, JASWANT
CITATION:
1977 AIR 286 1977 SCR (1) 942
1977 SCC (1) 396
ACT
Conduct of Election Rules, 1961, rr. 42 and
56(6)--Tendered ballot paper, what is and use of
HEADNOTE
Rule 42, Conduct of Election Rules, 1961, shows that the
occasion for marking tendered ballet paper would arise if a
person representing himself to be a paticular elector ap-
plies for a ballot paper after another person has already
voted as such elector. The person so applying, would then
be questioned by the presiding officer regarding his identi-
ty, and in case he gives a satisfactory answer, he would be
supplied a tendered 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 the ten-
dered ballot paper and its counterfoil by the presiding
officer in his own hand and has 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 counted at the time of the counting of the votes.
But even though the tendered ballot papers are thus excluded
at the time of counting they can be taken into account in
proceedings to challenge the validity of the election of the
returned candidate provided, ( 1 ) the person who cast the
initial vote as a voter on a particular serial number in the
electoral roll was someone other than the 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 by the candidate 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 more 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 remov-
ing the votes initially and improperly cast.
At the trial of the election petition, the appellant
examined on his behalf two witnesses, who had, according to
the appellant, marked tendered ballot papers at the time of
the polling. The trial court however, took the view that
the 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 is sufficient to prove that their evidence relates
to tendered ballot papers. Even though some of the formal-
ities which were required to be observed in connection 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 counterfoil of the tendered ballot paper that it
related to tendered ballot paper, the parties cannot
943
be made to suffer for such an omission. The evidence of the
two witnesses cannot also be discarded on the ground that
they have not deposed about their having affixed two thumb
impression instead of one. [948 F-G]
(2) In view of the fact that the appellant has adduced
prima facie proof in 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 thereafter decide the matter in the
light of the legal position. [949 D]
Borough of St. Andrews (4 Orielly & Hardcastle 32), The
Stepney Division the Borough of Tower Homlets (4 Orielly &
Hardcastle 34), Kalicharan Singh v. Ramcharitar Raj Yadava
& Ors. (5 ELR 98) and .4. K. Subharava Gounder v.G. Pala-
nisami Gounder & Ors. (11 ELR 251) referred to.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 154 of 1976.
(From the Judgment and Order dated 16-12-1975 of the
Judicial Commissioner’s Court, Goa, Daman and Diu in
Election petition No. 2/74).
V.M. Tarkunde and Shri Natgin for the Appellant.
Hardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by
KHANNA, J.--This appeal by Dr. Wilfred D’Souza is
against the judgment of learned Judicial Commissioner Goa
whereby be dismissed. election petition filed by the appel-
lant to declare the election of Francis Menino Jesus Ferrao
respondent to the Goa Legislative Assembly to be void and to
declare instead the appellant to be duly elected.
The appellant and the respondent were the two candi-
dates who sought election to the Goa Legislative Assembly
from Benaulim Assembly constituency in the by-election
caused by the death of Vassuudev Garmalkar. Polling took
place on June 9, 1974 and the counting of votes on June 10,
1974. After the first count, the Returning Officer found
that the total number of valid votes cast in favour of the
appellant was 4,656 and of those cast in favour of the
respondent was 4,654. 234 ballot papers were rejected. The
respondent then applied for recounting of the votes and
the said application was granted. As a result of
recounting, it was found that the appellant had secured
4,651 valid votes, while the respondent had secured 4,652
valid votes. Seven ballot papers were rejected. It may be
mentioned that at the time of recounting 234 votes which had
been earlier rejected in the first count were not taken into
account. Soon after the recount the appellant made an
application for a second recount. This application was
granted and the recount took place on the following day,
i.e., June 11, 1974. As a result.of the second recount the
appellant was found to have secured 4,650 valid votes while
the respondent was found to have secured 4,652 votes. One
ballot paper was rejected. At the time of second recount the
ballot papers which had been rejected at the time of the
initial counting and the first recount were not taken into
account. In the result the respondent was declared elected.
The appellant thereafter filed the present petition on July
15, 1974.
Besides the ground with which we are concerned in this
appeal, the appellant challenged the election of the re-
spondent on the following two grounds:
"(1) that in the first and second recount
the Returning Officer illegally accepted .in
favour of the returned candidate, some votes
which he ought to have rejected, and rejected
some votes in favour of the appellant which he
ought to have accepted under law;
(2) that the failure of the Returning
Officer to re-scrutinize the rejected votes in
the first and second recounts is illegal"
In respect of the above two grounds, objec-
tion was taken by the respondent that there
was non-compliance with the statutory require-
ments of section 83(1)(a) of the Representa-
tion of the People Act, 1951 (hereinafter
referred to as the Act) inasmuch as the appel-
lant had not set out the material facts re-
garding those allegations. Learned Judicial
Commissioner as per order dated March 22, 1975
held that the appellant had failed to give
material particulars in respect of the said
two grounds. The petition in that respect was
held to have not disclosed a cause of action.
It was also held that the appellant was not
entitled to an order of the court for re-
counting the polled votes. The appellant, it
may be stated, filed a petition seeking spe-
cial leave of this Court against the above
order but that petition was dismissed on July
31, 1975.
The only ground which survives and with
which we are concerned in this appeal is given
in para 9 of the petition. The same reads
as under:
"The petitioner further submits that the
scrutiny and counting of the tendered votes
is absolutely necessary in this case, consid-
ering the fact that the respondent has been
declared the returned candidate after securing
in his favour only 2 votes more than the
petitioner and the fact that the tendered
votes are 10, and that the non-counting of
such votes may materially affect the result of
the election, in so far as it concerns the
respondent, by the improper reception of votes
originally polled by persons other than those
who tendered their votes. The petitioner,
therefore, submits that the votes initially
and improperly received should be removed and
the tendered votes should be accepted and
counted instead."
The appellant accordingly asserted that the result of the
election of the respondent had been materially affected by
the improper reception, refusal and rejection of votes.
Prayer made by the appellant was that the ’election of the
respondent be declared void and the appellant be declared
to be duly elected.
The petition was resisted by the respondent, and in
reply to para 9 of the petition the respondent submitted
that no recount was justified
945
or required in law merely because of the returned candidate
having secured only two votes more than the defeated candi-
date. The respondent denied that the tendered votes were
cast by genuine voters.
Issue No. 7 which is the only issue relating to the allega-
tion in para9 reads as under:
"Whether the petitioner proves that
the vote or votes were initially improperly
received, and should be removed and in their
place tendered vote or votes should be taken
into account."
The Judicial Commissioner in his order dated March 22, 1975,
while holding that no material particulars had been given in
the petition in respect of the other two grounds of the
election petition, found that regarding the allegation
about tendered votes material facts had been given and a
cause of action had been disclosed.
An application was filed on April 4, 1975 after the
above order on behalf of the appellant praying for a direc-
tion to the District Election Officer to send all the papers
mentioned in rule 92 of the Conduct of Election Rules, 1961
to the court. In reply to that application the respondent
stated that the court should, before sending for the said
papers, call upon the appellant "to make out a prima facie
case by undertaking to examine all the persons who have cast
the tendered votes and producing some of them and proving
that they had cast the tendered votes and that they are the
true votes." Learned Judicial commissioner after refer-
ring to the case of Rameshwara Nand v. Madho Ram(1) and
some other cases, passed order dated September 11, 1975, the
material part of which reads as under:
"In the present case the tendered
votes are only ten and I see no reason why the
petitioner should be allowed to break the
principle of secrecy, particularly because the
necessity of
knowing for whom the voters have cast their
vote does not arise now. The petitioner will
have to establish his case before he succeeds
in this petition. He will have, therefore, to
produce all his evidence before the counting
is done.
I therefore order that the petitioner
shall produce before the Court all the evi-
dence on which he relies. I also order that
the District Election Officer be asked to
produce the election papers mentioned in rule
92(2) of the Conduct of Election Rules, 1961
before this Court."
The appellant thereafter examined two witnesses, Joa-
quine Rodrigoes (PW 1) and Vina Farnandes (PW 2). These two
witnesses, according to the appellant, had marked tendered
ballot papers at the time of polling. Trunks containing
election papers were also sent to the court by the Election
Registration Officer. As the keys of those trunks were not
available, those trunks were broken open in the presence of
the parties. A Panchnama of the packets contained in those
(1) A.I.R. 1968 Punjab 173.
trunks was then prepared. Some of the packets having
connection with the tendered ballot papers were opened after
the conclusion of the evidence of the two witnesses examined
by the appellant.
The case was thereafter argued and the election petition
was dismissed.
In the judgment under appeal, learned Judicial
Commissioner examined the evidence of the two witnesses
produced by the appellant. According to the testimony of
these two witnesses, when they went to the polling booth,
they were told that someone else had already cast their
votes. When these witnesses stated that they had
not .voted, they were each given a paper for marking in
favour of the candidate of their choice. They then marked
that paper and handed over that paper to the persons present
there. Learned Judicial Commissioner took the view that the
evidence of these witnesses did not relate to tendered
ballot papers but to the ordinary ballot papers. The appel-
lant as such was held to have failed to prove his case. In
the result, the election petition was dismissed.
In appeal before us, Mr. Tarkunde on behalf of the
appellant has argued that the evidence of the two witnesses
examined on behalf of the appellant relates to the tendered
ballot papers marked by them and that the finding of the
Judicial Commissioner to the contrary is not correct. As
against that, Mr. Hardy on behalf of the respondent has
canvassed for the correctness of the view taken by the
Judicial Commissioner.
Before dealing with this aspect of the matter, we think
it opposite to deal with the legal position relating to
tendered votes.
Rule 42 of the Conduct of Election Rules, 1961 relates
to tendered votes and reads as under:
"42. Tendered votes.--(1) If a person repre-
senting himself to be a particular elector
applies for a ballot paper after another
person has already voted as such elector, he
shall, on satisfactorily answering such ques-
tions relating to his identity as the presid-
ing officer may ask, be entitled, subject to
the following provisions of this rule, to mark
a ballot paper (hereinafter in these rules
referred to as a ’tendered ballot paper’) in
the same manner as any other elector.
(2) Every such person shall, before
being supplied with a tendered ballot paper,
sign his name against the entry relating to
him in a list in Form 15.
(3) A tendered ballot paper shall be the
same as the other ballot papers used at the
polling except that--
(a) such tendered ballot paper shall be
serially the last in the bundle of ballot
papers issued for use at the polling sta-
tion; and
947
(b) such tendered ballot paper and its
counterfoil shall be endorsed on the back
with the words ’tendered ballot paper’ by
the presiding officer in his own hand and
signed by him.
(4) The elector, after marking a ten-
dered ballot paper in the voting compartment
and folding it, shall, instead of putting it
into the ballot box, give it to the presiding
officer, who shall place it in a cover spe-
cially kept for the purpose."
Perusal of the above rule makes it clear that the occasion
for marking tendered ballot paper would arise if a person
representing himself to be a particular elector applies for
a ballot paper after another person has already voted as
such elector. The person so applying would then be ques-
tioned regarding his identity by the presiding officer and,
in case he gives satisfactory answer, he would be supplied a
tendered ballot paper which would then be marked by the
aforesaid person. Such person is also required to sign his
name against the entry relating to him a list in form 16.
The tendered ballot papers shall be the same as other
ballot papers used at the polling, except that it would be
serially the last in the bundle of ballot papers issued for
used at the polling station. The words "tendered ballot
paper" have to be endorsed on the back of the tendered
ballot paper and its counterfoil by the presiding officer in
his own hand and has to be signed by him. The tendered
ballot paper, it is further provided, is not to be put in
the’ ballot box but is to be kept in a separate cover.
According to clause (6) of rule 56 of the Conduct of Elec-
tion Rules, no cover containing tendered ballot papers shall
be opened at the time of the counting of the votes and no
such tendered ballot papers shall be counted. The Represen-
tation of the People Act, 1951 as well as the above rules
are, however, silent on the point as to what use would be
made of the tendered ballot papers and how they would affect
the result of the election.
Learned counsel for the parties are, however, agreed
that such tendered ballot papers, even though excluded from
consideration at the time of counting of votes after the
poll, can be taken into account in proceedings to challenge
the validity of the election of the returned candidate
provided certain conditions are fulfilled. We agree with
the learned counsel for the parties in this respect, and
find that this position of law is supported by two English
decisions, Borough of St. Andrews(1) and The Stepney Divi-
sion of the Borough of Tower Homlets(2) as also by.two
Indian decisions, Kalicharan Singh v. Ramcharitar Rai Yadava
& Ors(3) and A.K. Subbarava Gounder v.G. Palanisami Gounder
& Ors.(4) Before, however, a tendered ballot paper can be
taken into account during the proceedings of election peti-
tion, evidence would have to be led on the following two
points:
(1) The person who cast the initial vote
as a voter on a particular serial number in
the electoral roll was someone other than the
genuine voter mentioned at that number.
(1)4 Omelly & Hardcastle 32, (2) Omelly &
Hardcastle 34.
(3) 5 E.L.R, 98. (4) 11 E.LR. 251.
(2) It was such genuine voter who marked
the tendered ballot paper.
So far as the first point is concerned, the
evidence of the genuine voter that he had not
cast such initial vote would normally and in
the absence of any circumstance casting doubt
regarding its veracity be sufficient. Once the
above two points are proved, the following
consequences would follow:
(a) The court would exclude the vote
initially cast by the person other than the
genuine voter from the number of votes of the
candidate in whose favour it was cast; and
(b) The court would further take into
account the tendered ballot paper in favour
of the candidate in whose favour it is duly
marked.
It may also be mentioned that the proper occasion for
scrutinising tendered ballot papers would normally arise
only when the difference between the number of votes polled
by the candidate declared elected and his nearest rival is
so small that there is a possibility of that difference
being wiped out and the result of election being thus
materially affected if the court takes into account the
tendered ballot papers and excludes from consideration the
corresponding votes which were cast by persons other than
the genuine voters.
The present election petition would have to be decided
in the light of the legal position set out above.
We have been taken through the evidence on record and
are of the view that the evidence of the two witnesses
examined by the appellant is sufficient to prove that their
evidence relates to tendered ballot papers. Each of
these witnesses has deposed that when she arrived at the
polling booth, she was told that someone else had cast her
vote. When these witnesses persisted that they had not cast
their votes, each of them was supplied with a paper which
she marked. Both the witnesses were emphatic that they had
not. put their votes in the ballot box and that they handed
them over to the persons present at the polling booth. A
very significant circumstance which shows that the evidence
of these witnesses relates to tendered ballot papers and not
to the ordinary ballot paper is the fact that there is
actual reference to them in Form No. 15 which relates to
list of tendered votes. The packet containing Form No.
15, it needs to be mentioned, was opened after the close of
the evidence of these two witnesses. The name of Joaquina
Rodrigues is mentioned in Form No. 15. The fact that the
name mentioned in the electoral roll is Rodrigues Joaquina
Domingos and not Joaquina Rodrigues is not very material
because the name of the father of the witness is Domingos.
So far as Vina Fernandes (PW 2) is concerned, Form No. 15
does not mention her name but only gives the serial number
of the tendered ballot paper. The counterfoil of the
tendered ballot paper however, makes it clear that it re-
lates to serial No. 244 of electoral roll, part No. 12.
The said serial number of the electoral roll pertains to
Vina Fernandes. It
949
appears that some of the formalities which were required to
be observed in connection with tendered ballot papers were
not complied with by the presiding officer, e.g., he did not
note on the back of the counterfoil of the tendered ballot
paper that it related to tendered ballot paper. The parties,
however, cannot be made to. suffer because of any such
omission on the part of the presiding officer. The evidence
of the two witnesses examined on behalf of the appellant can
also not be discarded on the ground that they have not
deposed about their having affixed two thumb impressions
instead of one thumb impression. As mentioned above, the
reference to those two voters in Form No. 15 relating to
tendered ballot papers goes a long way to show that it were
these two witnesses who marked the tendered ballot papers.
Their evidence also shows that they did not cast the initial
votes which were cast in their names.
Learned Judicial Commissioner in this case did not
record any evidence on behalf of the respondents and pro-
ceeded to decide the cast after the evidence of the witness-
es of the appellant had been recorded and after the box
containing the relevant necessary papers had been opened
and those papers were examined. In view of the fact that
the appellant has adduced prima facie proof in respect of
two of the ten dered ballot papers, the Judicial Commission-
er, in our opinion, should now call upon the respondent to
adduce his evidence. The evidence of the respondent would
be confined not merely to the two tendere ballot papers in
respect of which the appellant has adduced evidence but can
also relate to some or all of the other eight tendered
ballot papers in respect of which the appellant has not
adduced any evidence After the said evidence is examined,
learned Judicial Commissioner would decide the matter in
the light of the legal position relating to tendered ballot
papers as set out above.
We accordingly accept the appeal, set aside the
judgment of the learned Judicial Commissioner and remand
the case to him for fresh decision after recording the
evidence of the respondent in accordance with law as ex-
plained above. The parties in the circumstances shall bear
their own costs of the appeal.
We are conscious of the fact that the election matters
should be dis posed of as soon as possible and that the
remand of the case would have the effect of further prolong-
ing the matter, yet looking to the face of the case, we find
no escape from the conclusion of remand. Learned Judicial
Commissioner, we are sure, would try to expedite the dispos-
al of the case.
V.P.S. Appeal
allows
950