Appeal No 154 of 1976
From the Judgment and Order dated 16 12 1975 of the Judicial Commissioner s Court Goa Daman and Diu in Election petition No 274
VM Tarkunde and Shri Natgin for the Appellant
Hardayal Hardy SK Mehta and PN Puri for the Respondent
The Judgment of the Court was delivered by KHANNA J
This appeal by Dr Wilfred D Souza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed
election petition filed by the appel lant 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
The appellant and the respondent were the two candi dates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by election caused by the death of Vassuudev Garmalkar
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 4656 and of those cast in favour of the respondent was 4654
234 ballot papers were rejected
The respondent then applied for recounting of the votes and the said application was granted
As a result of recounting it was found that the appellant had secured 4651 valid votes while the respondent had secured 4652 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 recount the appellant made an application for a second recount
This application was granted and the recount took place on the following day ie June 11 1974
As a resultof the second recount the appellant was found to have secured 4650 valid votes while the respondent was found to have secured 4652 votes
One ballot paper was rejected
At the time of second recount the ballot papers which had been rejected at the time of the initial counting and the first recount were not taken into account
In the result the respondent was declared elected
The appellant thereafter filed the present petition on July 15 1974
Besides the ground with which we are concerned in this appeal the appellant challenged the election of the re spondent on the following two grounds 1 that in the first and second recount 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 recounts is illegal In respect of the above two grounds objec tion was taken by the respondent that there was non compliance with the statutory require ments of section 831a of the Representa tion of the People Act 1951 hereinafter referred to as the Act inasmuch as the appel lant had not set out the material facts re garding 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 spe cial leave of this Court against the above order but that petition was dismissed on July 31 1975
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 consid ering 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 petitioner therefore submits that the votes initially and improperly received should be removed and the tendered votes should be accepted and counted instead
 The appellant accordingly asserted that the result of the election of the respondent had been materially affected by the improper reception refusal and rejection of votes
Prayer made by the appellant was that the election of the respondent be declared void and the appellant be declared to be duly elected
The petition was resisted by the respondent and in reply to para 9 of the petition the respondent submitted that no recount was justified 945 or required in law merely because of the returned candidate having secured only two votes more than the defeated candi date
The respondent denied that the tendered votes were cast by genuine voters
Issue No 7 which is the only issue relating to the allega tion in para9 reads as under Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account
 The Judicial Commissioner in his order dated March 22 1975 while holding that no material particulars had been given in the petition in respect of the other two grounds of the election petition found that regarding the allegation about tendered votes material facts had been given and a cause of action had been disclosed
An application was filed on April 4 1975 after the above order on behalf of the appellant praying for a direc tion to the District Election Officer to send all the papers mentioned in rule 92 of the Conduct of Election Rules 1961 to the court
In reply to that application the respondent stated that the court should before sending for the said papers call upon the appellant to make out a prima facie case by undertaking to examine all the persons who have cast the tendered votes and producing some of them and proving that they had cast the tendered votes and that they are the true votes Learned Judicial commissioner after refer ring to the case of Rameshwara Nand vs Madho Ram1 and some other cases passed order dated September 11 1975 the material part of which reads as under In the present case the tendered votes are only ten and I see no reason why the petitioner should be allowed to break the principle of secrecy particularly because the necessity of knowing for whom the voters have cast their vote does not arise now
The petitioner will have to establish his case before he succeeds in this petition
He will have therefore to produce all his evidence before the counting is done
I therefore order that the petitioner shall produce before the Court all the evi dence on which he relies
I also order that the District Election Officer be asked to produce the election papers mentioned in rule 922 of the Conduct of Election Rules 1961 before this Court
 The appellant thereafter examined two witnesses Joa quine Rodrigoes PW 1 and Vina Farnandes PW 2
These two witnesses according to the appellant had marked tendered ballot papers at the time of polling
Trunks containing election papers were also sent to the court by the Election Registration Officer
As the keys of those trunks were not available those trunks were broken open in the presence of the parties
A Panchnama of the packets contained in those 1 AIR 1968 Punjab 173
trunks was then prepared
Some of the packets having connection with the tendered ballot papers were opened after the conclusion of the evidence of the two witnesses examined by the appellant
The case was thereafter argued and the election petition was dismissed
In the judgment under appeal learned Judicial Commissioner examined the evidence of the two witnesses produced by the appellant
According to the testimony of these two witnesses when they went to the polling booth they were told that someone else had already cast their votes
When these witnesses stated that they had not voted they were each given a paper for marking in favour of the candidate of their choice
They then marked that paper and handed over that paper to the persons present there
Learned Judicial Commissioner took the view that the evidence of these witnesses did not relate to tendered ballot papers but to the ordinary ballot papers
The appel lant as such was held to have failed to prove his case
In the result the election petition was dismissed
In appeal before us Mr Tarkunde on behalf of the appellant has argued that the evidence of the two witnesses examined on behalf of the appellant relates to the tendered ballot papers marked by them and that the finding of the Judicial Commissioner to the contrary is not correct
As against that Mr Hardy on behalf of the respondent has canvassed for the correctness of the view taken by the Judicial Commissioner
Before dealing with this aspect of the matter we think it opposite to deal with the legal position relating to tendered votes
Rule 42 of the Conduct of Election Rules 1961 relates to tendered votes and reads as under 42
Tendered votes 1 If a person repre senting himself to be a particular elector applies for a ballot paper after another person has already voted as such elector he shall on satisfactorily answering such ques tions relating to his identity as the presid ing officer may ask be entitled subject to the following provisions of this rule to mark a ballot paper hereinafter in these rules referred to as a tendered ballot paper  in the same manner as any other elector
2 Every such person shall before being supplied with a tendered ballot paper sign his name against the entry relating to him in a list in Form 15
3 A tendered ballot paper shall be the same as the other ballot papers used at the polling except that a such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling sta tion and 947 b such tendered ballot paper and its counterfoil shall be endorsed on the back with the words tendered ballot paper  by the presiding officer in his own hand and signed by him
4 The elector after marking a ten dered ballot paper in the voting compartment and folding it shall instead of putting it into the ballot box give it to the presiding officer who shall place it in a cover spe cially kept for the purpose Perusal of the above rule makes it clear that the occasion for marking tendered ballot paper would arise if a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector
The person so applying would then be ques tioned regarding his identity by the presiding officer and in case he gives satisfactory answer he would be supplied a tendered ballot paper which would then be marked by the aforesaid person
Such person is also required to sign his name against the entry relating to him a list in form 16
The tendered ballot papers shall be the same as other ballot papers used at the polling except that it would be serially the last in the bundle of ballot papers issued for used at the polling station
The words tendered ballot paper have to be endorsed on the back of the tendered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him
The tendered ballot paper it is further provided is not to be put in the  ballot box but is to be kept in a separate cover
According to clause 6 of rule 56 of the Conduct of Elec tion Rules no cover containing tendered ballot papers shall be opened at the time of the counting of the votes and no such tendered ballot papers shall be counted
The Represen tation of the People Act 1951 as well as the above rules are however silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the election
Learned counsel for the parties are however agreed that such tendered ballot papers even though excluded from consideration at the time of counting of votes after the poll can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled
We agree with the learned counsel for the parties in this respect and find that this position of law is supported by two English decisions Borough of St Andrews1 and The Stepney Divi sion of the Borough of Tower Homlets2 as also bytwo Indian decisions Kalicharan Singh vs Ramcharitar Rai Yadava  Ors3 and AK Subbarava Gounder vs
G Palanisami Gounder  Ors4 Before however a tendered ballot paper can be taken into account during the proceedings of election peti tion evidence would have to be led on the following two points 1 The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number
14 Omelly  Hardcastle 32 2 Omelly  Hardcastle 34
3 4 2 It was such genuine voter who marked the tendered ballot paper
So far as the first point is concerned the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient
Once the above two points are proved the following consequences would follow a The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast and b The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked
It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters
The present election petition would have to be decided in the light of the legal position set out above
We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers
Each of these witnesses has deposed that when she arrived at the 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 votes in the ballot box and that they handed them over to the persons present at the polling booth
A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No 15 which relates to list of tendered votes
The packet containing Form No 15 it needs to be mentioned was opened after the close of the evidence of these two witnesses
The name of Joaquina Rodrigues is mentioned in Form No 15
The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos
So far as Vina Fernandes PW 2 is concerned Form No 15 does not mention her name but only gives the serial number of the tendered ballot paper
The counterfoil of the tendered ballot paper however makes it clear that it re lates to serial No 244 of electoral roll part No 12
The said serial number of the electoral roll pertains to Vina Fernandes
It 949 appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer eg he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper
The parties however cannot be made to
suffer because of any such omission on the part of the presiding officer
The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that they have not deposed about their having affixed two thumb impressions instead of one thumb impression
As mentioned above the reference to those two voters in Form No 15 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 the respondents and pro ceeded to decide the cast after the evidence of the witness es of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined
In view of the fact that the appellant has adduced prima facie proof in respect of two of the ten dered ballot papers the Judicial Commission er in our opinion should now call upon the respondent to adduce his evidence
The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above
We accordingly accept the appeal set aside the judgment of the learned Judicial Commissioner and remand the case to him for fresh decision after recording the evidence of the respondent in accordance with law as ex plained above
The parties in the circumstances shall bear their own costs of the appeal
We are conscious of the fact that the election matters should be dis posed of as soon as possible and that the remand of the case would have the effect of further prolong ing the matter yet looking to the face of the case we find no escape from the conclusion of remand
Learned Judicial Commissioner we are sure would try to expedite the dispos al of the case


Summary:
Rule 42 Conduct of Election Rules 1961 shows that the occasion for marking tendered ballet paper would arise if a person representing himself to be a paticular elector ap plies for a ballot paper after another person has already voted as such elector
The person so applying would then be questioned by the presiding officer regarding his identi ty and in case he gives a satisfactory answer he would be supplied a tendered ballot paper which would then be marked by such person
has to sign his name against the entry relating to him in a list in Form 15 prescribed under the Rules
The tendered ballot paper shall be the same as other ballet papers used at the polling except that it would be serially the last in the bundle of ballot papers issued for use at the polling station
The words tendered ballot paper  have to be endorsed on the back of the ten dered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him
The tendered ballot paper is not to
be put in the ballot box but is to be kept in a separate cover
According to r 566 no cover containing tendered ballot papers shall be opened or counted at the time of the counting of the votes
But even though the tendered ballot papers are thus excluded at the time of counting they can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided  1  the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number 2 it was such genuine voter who marked the tendered ballot paper and 3 the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of the election being materially affected
In such a case the Court would exclude the vote initially cast from the number of votes of the candidate in whose favour it was cast and take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked
In the present case the appellant and respondent were two candidates for election to a Legislative Assembly and the respondent was declared elected having secured just two votes more than the appellant
The appellant challenged the respondent s election and contended that there were ten tendered votes and that they should be counted after remov ing the votes initially and improperly cast
At the trial of the election petition the appellant examined on his behalf two witnesses who had according to the appellant marked tendered ballot papers at the time of the polling
The trial court however took the view that the evidence of the two witnesses did not relate to tendered ballot papers but related to ordinary ballot papers and dismissed the election petition
Allowing the appeal to this Court and remanding the case to the trial Court HELD 1 The evidence of the two witnesses of the appellant is sufficient to prove that their evidence relates to tendered ballot papers
Even though some of the formal ities which were required to be observed in connection with the tendered ballot papers were not complied with by the presiding officer as for example he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper the parties cannot 943 be made to suffer for such an omission
The evidence of the two witnesses cannot also be discarded on the ground that they have not deposed about their having affixed two thumb impression instead of one
948 F G 2 In view of the fact that the appellant has adduced prima facie proof in respect of the two tendered ballot papers the trial court should now call upon the respondent to adduce his evidence
The respondent s evidence need not be confined to the two tendered ballot papers but may relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced evidence
The trial court should thereafter decide the matter in the light of the legal position
949 D Borough of St Andrews 4 Orielly  Hardcastle 32 The Stepney Division the Borough of Tower Homlets 4 Orielly  Hardcastle 34 Kalicharan Singh vs Ramcharitar Raj Yadava  Ors
and 4
K Subharava Gounder vs
G Pala nisami Gounder  Ors
referred to