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PETITIONER:

SHRADHA DEVI

Vs.

RESPONDENT:

KRISHNA CHANDRA PANT & OTHERS

DATE OF JUDGMENT26/10/1982

BENCH:

DESAI, D.A.

BENCH:

DESAI, D.A.

SEN, A.P. (J)

CITATION:

1982 AIR 1569 1983 SCR (1) 681

1982 SCC (3) 389 1982 SCALE (2)964

CITATOR INFO :

F 1983 SC1311 (16)

R 1984 SC 382 (2)

ACT:

Representation of the People Act, 1951-Election

Petition-Elector’s duty-Nature of proof-Required for a

relief of scrutiny and recount on the allegation of miscount

in an election petition.

HEADNOTE:

The appellant was one of the 19 candidates for the 11

members to be elected at the biennial election for electing

members to Council of States from the constituency of

elected members of the Uttar Pradesh Legislative Assembly,

at the election held on 28th March, 1979.

The election was to be in accordance with the system of

proportional representation by means of single transferable

vote. In all 421 members exercised their franchise. Eleven

ballot papers were rejected by the returning officer as

invalid and the 1st Respondent was declared elected in the

14th count.

The appellant, thereupon, filed an election petition

under section 81 of the 1951 Act before the Lucknow Bench of

the Allahabad High Court for scrutiny and recount on the

allegation of miscount. The appellant alleged that (i) the

result of the election in so far as it concerns the returned

candidate (i.e.) 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, (ii) there had been an improper

rejection of the valid votes cast in her favour and that has

materially affected the result of the election; and (iii)

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. Even these four were wrongly

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rejected and cannot be said to be covered by Rule 73(2)(d)

of the Election Rules. The High Court dismissed the election

petition and hence the appeal by special leave.

The appellant contended that (i) where the election is

to be held in accordance with the system of proportional

representation by means of the single transferable vote, if

the first preference is properly and ascertainably cast any

682

error in setting out the remaining preferences would not

enable the Returning Officer to reject the whole ballot

paper; and (ii) every unrequired mark, cutting, erasure

cannot tantamount to any indication which would enable the

voter to be identified but the writing or mark must be such

that the voter can be and not merely might be identified and

there is no such cutting mark or erasure within the meaning

of Rule 73(2)(d) of the Conduct of Election Rules; 1961.

Allowing the appeal, the Court

^

HELD: 1:1. When a petition is for relief of scrutiny

and recount on the allegation of miscount, the petitioner

has to offer prima facie proof of errors in counting and if

errors in counting are prima facie established, a recount

can be ordered. If the allegation is of improper rejection

of valid votes which is covered by the broad spectrum of

scrutiny and recount because of miscount, petitioner must

furnish prima facie proof of such error. If proof is

furnished of s