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SUPREME COURT OF INDIA
H.R. KHANNA AND JASWANT SINGH, JJ.
Dr. Wilfred DSouza, Appellant
Versus
Francis Menino Jesus Ferrao, Respondent.
Civil Appeal No. 154 of 1976,
D/- 26-10-1976.
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate, (Mr. Shri Narain, Advocate with him), for Appellant; Mr. Hardayal Hardy, Sr. Advocate, (M/s. S. K. Mehta and P. N. Puri, Advocates with him), for Respondent.
Representation of People Act – Section 83 (1) (a) - Conduct of Election Rules, 1961 - Rule 92 - Election to Legislative Assembly - Applied for re-counting of votes - Whether petitioner proves that vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account - Appellant and respondent were the two candidates who sought election to Goa Legislative Assembly from Assembly constituency in the by-election caused by death - Polling took place on June and the counting of votes on June - After first count Returning Officer found that total number of valid votes cast in favor of appellant and of those cast in favor of respondent ballot papers were rejected - Respondent then applied for re-counting of votes and the said application was granted - As a result of re-counting it was found that the appellant had secured valid votes while the respondent had secured valid votes - Seven ballot papers were rejected - It may be mentioned that at the time of recounting votes which had been earlier rejected in first count were not taken into account - Soon after re-count appellant made an application for a second re-count - This application was granted and re-count took place on the following day, June - As a result of second re-count appellant was found to have secured valid votes while respondent was found to have secured votes - One ballot paper was rejected - At time of second re-count the ballot papers which had been rejected at the time of initial counting and first re-count were not taken into account - In result respondent was declared elected - Appellant thereafter filed present petition on July – Held, Court have been taken through the evidence on record and are of the view that the evidence of two witnesses examined by appellant is sufficient to prove that their evidence relates to tendered ballot papers - Each of these witnesses has deposed that when she arrived at 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 vote in ballot box and that they handed them over to persons present at the polling booth - A very significant circumstance which shows that evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot papers is fact that there is actual reference to them in Form which relates to list of tendered votes - Packet containing Form it needs to be mentioned, was opened after close of evidence of these two witnesses - Name is mentioned in Form - Fact that the name mentioned in the electoral roll is not very material because the name of father of the witness - PW 2 is concerned Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper - Counterfoil of the tendered ballot paper however makes it clear that it relates to serial of electoral roll, part - Said serial number of the electoral roll pertains - It appears that some of formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer he did not note on the back of counterfoil of tendered ballot paper that it related to tendered ballot paper - Parties however cannot be made to suffer because of any such omission on the part of the presiding officer - Evidence of two witnesses examined on behalf of appellant can also not be discarded on ground that they have not deposed about their having affixed two thumb impressions instead of one thumb impression - As mentioned reference to those two voters in Form 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 respondents and proceeded to decide case after evidence of witnesses of appellant had been recorded and after box containing relevant necessary papers had been opened and those papers were examined - In view of fact that appellant has adduced prima facie proof in respect of two of tendered ballot papers Judicial Commissioner in court opinion should now call upon respondent to adduce his evidence - Evidence of respondent would be confined not merely to two tendered ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of other eight tendered ballot papers in respect of which appellant has not adduced any evidence - After said evidence is examined learned Judicial Commissioner would decide matter in light of legal position relating to tendered ballot papers as set – Appeal accept
Judgment
H. R. KHANNA, J.:- This appeal by Dr. Wilfred DSouza is against the judgment of learned Judicial Commissioner Goa whereby he dismissed election petition filed by the appellant 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.
2. The appellant and the respondent were the two candidates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by-election caused by the death of Vassudev Sarmalkar. 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 re-counting of the votes and the said application was granted. As a result of re-counting, 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 re-count the appellant made an application for a second re-count. This application was granted and the re-count took place on the following day, i.e., June 11, 1974. As a result of the second re-count 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 re-count the ballot papers which had been rejected at the time of the initial counting and the first re-count were not taken into account. In the result the respondent was declared elected. The appellant thereafter filed the present petition on July 15, 1974.
3. Besides the ground with which we are concerned in this appeal, the appellant challenged the election of the respondent on the following two grounds:
"(1) that in the first and second re-count 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 re-counts is illegal."
In respect of the above two grounds, objection was taken by the respondent that there was non-compliance with the statutory requirements of Sec. 83 (1) (a) of the Representation of the People Act (hereinafter referred to as the Act) inasmuch as the appellant had not set out the material facts regarding 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 special leave of this Court against the above order but that petition was dismissed on July 31, 1975.
4. 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, considering 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 petition
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