Judgment

BACHAWAT, J. :- Shankar Babaji Savant and Sakharam Vithoba Salunkhe were candidates for election to the Maharashtra Legislative Assembly from the Mahad Constituency. There were four other candidates in the field. Savant and Salunkhe got equal number of valid votes. The other candidates got much lesser votes. The Returning Officer drew lots and declared Savant duly elected. Salunkhe filed an election petition claiming that the election was void, and that he, having received the majority of the valid votes, should be declared duly elected. The Election Tribunal at Alibag dismissed the petition. On appeal, the Bombay High Court declared that the election of Savant was void, and dismissed the rest of the claim made by Salunkhe. Savant now appeals by special leave. The High Court rejected Savant s preliminary contention that the first appeal was not maintainable on account of non-compliance with the provisions of S. 119A of the Representation of the People Act, 1951. This contention is no longer pressed before us.

2. The complaint of Salunkhe that the Returning Officer improperly received and counted in favour of Savant a postal ballot paper with the writing "Shankar Babaji Savant" on its back instead of rejecting it on the ground that it bore a writing by which the elector could be identified is concluded by the concurrent finding of fact that the elector could not be identified by the writing on the back of the ballot paper. The particular complaint of Salunkhe is no longer pressed, and may be left out of consideration.

3. The major complaint of Salunkhe was that Kolhe, the Presiding Officer for the polling station at Village Turveh Khurd, improperly prevented 19 voters from inserting their ballot papers into the ballot box. On the polling day, those 19 voters wanted to vote in favour of Salunkhe. The polling agent of Savant challenged those voters, disputing their identity. For each challenge he deposited a sum of Rs. 2 in cash with Kolhe. On enquiry, Kolhe was satisfied that all 19 voters were electors, entered on the electoral roll, and the challenges as to their identity were not established. The voters were then supplied with ballot papers, and they duly entered their votes on these papers. They then wanted to insert their ballot papers into the ballot box, but Kolhe did not permit them to do so, and instead, directed them to hand over those papers to himself. On taking possession of the ballot papers, Kolhe kept them inside a sealed envelope and forwarded them to the Returning Officer. Salunkhe succeeded in establishing this major complaint. The Election Tribunal and the High Court have concurrently found that in the circumstances, the Presiding Officer wrongfully took possession of the ballot papers, and thus prevented the voters from inserting those ballot papers into the ballot box. None of the ballot papers was returned by the voters to the Presiding Officer under R. 41(2) of the Conduct of Election Rules, 1961. All the 19 voters indicated their preferences on the ballot papers before they were taken possession of by the Returning Officer. A scrutiny of the ballot papers shows that 18 voters recorded their votes on their ballot papers in favour of Salunkhe, and one recorded his vote in favour of a candidate other than Savant and Salunkhe. The ballot papers were not tampered with after they were taken possession by the Presiding Officer. The Returning Officer received the 19 ballot papers inside the sealed envelope, but he did not count them, as they were not taken out of the ballot box. The question is whether, in the circumstances, Savant s election is liable to be declared void.

4. The charge of Salunkhe that the Returning Officer improperly refused to count these 19 votes cannot be sustained. The 19 ballot papers were not valid votes. They never went inside the ballot box. Rules 39, 44, 47, 56, 57 and 64 of the Conduct of Election Rules, 1961 show that the elector casting his vote must insert the ballot paper in