Judgment

D. A. DESAI, J.

( 1 ) AN unsuccessful candidate for election to Council of State (Rajya Sabha) at the election held on 28/03/1979, is the appellant. At the biennial election for electing members to Council of States from the constituency of elected members of the Uttar Pradesh Legislative Assembly, 19 candidates including the appellant and the 1st respondent were duly nominated as candidates. 11 members were to be elected. Election was to be held as mandated by Clause (4) of Article 80 of the Constitution in accordance with the system of proportional representation by means of the single transferable vote. After the poll was closed according to the time prescribed by the Election Commission under Section 56 of the Representation of the People Act, 1951 (1951 Act for short), the Returning Officer, R. W. 4 Satya Priya Singh commenced counting of votes. As the election was to be in accordance with the system of proportional representation by means of the single transfarable vote, the Returning Officer as required by Rule 76 of the Conduct of Election Rules, 1961 (rules for short), proceeded to ascertain the quota. In all 421 members exercised the franchise. Eleven ballot papers were rejected by the Returning Officer as invalid. Accordingly the quota was worked out at the value of 3417. Respondents 2 to 11 were declared elected as each of them secured the value of ballot papers greater than the quota in the course of counting. As the counting proceeded further the contest was between the election petitioner (appellant) and the 1st respondent and the 1st respondent was declared elected in the 14th count. Once all the 11 vacancies were filled in, counting was closed.

( 2 ) PETITIONER filed an election petition under Section 81 of the 1951 Act in the High Court of Judicature (Lucknow Bench), Lucknow. The petition was for scrutiny and recount on the allegation of miscount and directed against the 1st respondent because be was declared elected to the last vacancy.

( 3 ) PETITIONER alleged that the result of the election in so far as it concerns the returned candidate - 1st respondent - has been materially affected by the improper rejection of valid votes by wrongly declaring them invalid as well as by improper reception of what otherwise would have been the invalid votes if the Returning Officer had been consistent in his approach and, therefore, the election of the returned candidate not only should be declared void but in his place by a proper computation of votes the petitioner should be declared elected to the 11th vacancy. The petition primarily being for relief of scrutiny and recount on the allegation of miscount it was necessary to allege and offer prima facie proof of the possible errors in the counting which, if satisfactorily established, would enable the Court to direct a recount. It may be stated that no prima facie proof has been offered of the improper reception of an otherwise invalid vote in favour of the 1st respondent and that allegation may be excluded from further consideration. Petitioner alleged that there has been an improper rejection of the valid votes cast in her favour and that has materially affected the result of the election. Petitioner states that even though it was obligatory upon the Returning Officer to show all the ballot papers which he rejected as invalid to the candidates and/or their counting agents, he only showed four out of the eleven ballot papers held invalid by him and did not show the rest of them. To the question as to why votes were rejected as, invalid it is alleged that the Returning Officer informed the counting agents that there were marks and cuttings in the ballot papers which may possibly identify the voters and, therefore, such ballot papers have been rejected on the ground set out in Rule 73 (2) (d) of the Rules. Four specific allegations of error, improper rejection of votes otherwise valid necessitating scrutiny and recount are set out in paragraphs 14, 15, 17 and 18 of