Judgment

KANIA, J.:- This is an appeal from a judgment and order delivered by a learned single Judge of the Madras High Court on April 24, 1987* dismissing election petition filed by the appellant. The appellant herein was the petitioner before the High Court and the respondents Nos. 1 to 8 herein were arraigned as respondents in the same order in the election petition. The dispute pertains to the election of six Members to the Rajya Sabha by the Elected Members of the Tamil Nadu Legislative Assembly. The election was held, as scheduled, on june 28, 1986. The appellant and respondents Nos. I to 7 were the eight candidates in the field, all the nominations having been found valid. The 8th respondent was the Returning Officer. The polling took place, as scheduled, on June 28, 1986 and, immediately thereafter, the ballot box was opened and the votes were sorted out. the election was under the preferential system of voting and the particulars of the first preferences votes secured by the candidates are as follows:

* Reported in AIR 1988 Madras 50

Candidates First Preference Votes

1. Appellant 33

2. 1st Respondent 35

3. 2nd Respondent 31

4. 3rd Respondent 33

5. 4th Respondent 32

6. 5th Respondent 34

7. 6th Respondent 34

8. 7th Respondent nil

2. Out of the 33 first preference votes cast in favour of the appellant, one ballot paper was rejected by the 8th respondent, the Returning Officer, on the ground that the said ballot paper was marked by the voter otherwise than with the article supplied for that purpose. It may be mentioned here that the first preference was indicated on the said ballot paper by a ball-point pen with green ink whereas in the ball point pen kept along with the ballot box had blue ink. The working result sheets of the counting were prepared and announced by the 8th respondent. The particulars of the said working result sheets are as follows:

1. Appellant 3219

2. 1st Respondent 3301

3. 2nd Respondent 3270

4. 3rd Respondent 3300

5. 4th Respondent 3301

6. 5th Respondent 3301

7. 6th Respondent 3301

3. In consequence, respondents Nos. I to 6 were declared as duly elected and the appellant was declared as having lost the election.

4. It is submitted by learned counsel for the appellant, that (1) the first preference vote in his favour in which first preference was indicated on the ballot paper in green ink was wrongly rejected. The rejection of the said ballot paper by the Returning Officer was duly objected to by the appellant at the time of counting. The said ballot paper is hereinafter referred to as the said rejected ballot paper. If the said rejected ballot paper had been received as valid, the appellant would have the proportionate number of preference votes and would have been declared elected.

5. The second contention raised by the appellant was that three ballot papers which did not contain the figure I in the space intended for marking the said figure should have been rejected and the same were wrongly accepted. These ballot papers had been used for casting first preference votes in favour of the first respondent and if the same had been rejected, first respondent would not have been elected and in his place the appellant would have been elected. Both the mistakes according to the appellant materially affected the result of the election.

6. Before going into the controversy raised before us, we may note the relevant provisions of the Election Law. The election petition was filed under Chapter-II of the Representation of the People Act, 1951 (hereinafter referred to as "the said Act). Section 59 of the said Act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed. We are not concerned here with the special procedure for voting provided in certain cases provided for under section 60 of the said Act. Section 100 of the said Act deals with the grounds for declaring elections to be void. The relevant portion of the said section reads thus :

"100(l):- Sub