Case: Shradha Devi Vs. K.C. Pant and Others

on that basis, the preferences were valued and the points counted. Once again respondent 1 secured more points. The election petition was dismissed again and the appellant is once more before us.3. As already mentioned, the dispute is now confined to Ballot Paper No. 6. All the three of us (Desai, Chinnappa Reddy and Varadarajan, JJ.) examined the ballot paper with the naked eye and with the aid of a magnifying glass as well. We are not a little surprised that the Election Tribunal came to the conclusion that it did. The Tribunal said :I have pursued that mark. At the outset it must be mentioned that the alleged mark is not in ink. It has also not been made with the aid of any other instrument. It seems that it is something which has stuck with the paper. Either it was stuck while the paper was being manufactured or thereafter but it is not mark made be any elector.* * *Now I have also seen the ballot paper myself very closely and I am of the definite opinion that it is not a first preference mark made by the elector. It is something which is a manufacturing defect or any impurity. The tip of the mark is in the nature of Y and is not a mark made by the elector with the aid of any instrument whatsoever.........* * *I, therefore, record a finding that there is no mark of first preference set opposite the name of Smt. Manohara. That being the position, there was only one first preference mark set opposite the name of Shri G. C. Bhattacharya.We do not have the slightest hesitation in saying that there was clearly a mark - the numeral 1 - against the name of Manohara and that there was no manufacturing or other defect in the paper and nothing was stuck to the paper. Dr. Chitale appearing for respondent 1 tried to persuade us to accept the view of the Tribunal but we find it difficult to let our imagination run away.4. As we found at the earlier stage of hearing that two first preferences were marked in Ballot Paper No. 6, we came to the conclusion that it had to be excluded from the count as invalid. On that basis we required two officers of the Election Commission, who were appointed by us as Commissioners for that purpose, to value the preference and count the points. The Commissioners have reported to us that as a result of the fresh count made by them, they have found that the first respondent has secured 3338 points and the appellant has secured 3315 points. The appellant has objected to the computation made by the Commissioners. The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the People Act. The appellant attempted to take advantage of a sentence occurring in the earlier judgment of this Court where it has been said, " the scrutiny and recount was to be confined specifically to the decision of the Returning Officer rejecting eleven votes as invalid ". This Court was not intending to lay down any new method of recounting the points. All that was meant was that the 11 rejected ballot papers were to be scrutinised in the light of the judgment of the Court, and thereafter a recount was to be made. The recount had to be in accordance with the provisions of the Representation of the People Act and the Rules. Here we may refer to the following observations of this Court in Anirudh Prasad v. Rajeshwari Saroj Das : (SCC pp. 112-13, para 17)Initially, 306 ballot papers were accepted as valid by the Returning Officer. The minimum quota was accordingly fixed at 2551 : [306 x 100 = 30600 / 11 + 1 = 2550 + 1 + 2551]. The High Court held that 6 ballot papers were wrongly rejected by the Returning Officer as a result of which the number of valid ballot papers rose to 312. The minimum quota correspondingly rose to 2601 : (312 x 100 = 31200 / 12 = 2600 + 1 = 2601). The minimum quota which is fixed primarily on the basis of valid ballot papers is the key-point of counting and transfer of surplus votes. Surplus Votes means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The appellant says that the Commissioner were in error in making a recount by valuing all the 420 valid ballot papers instead of confining themselves to the ten disputed ballot papers which have been found to be valid. The submission was that the 10 ballot papers which have been rejected by the Returning Officer, but which have now been accepted may be treated as valid for fixing the minimum quota to be obtained by a candidate in order to be declared elected, but should be ruled out for the purpose of counting votes cast in favour of any candidate. The submission is wholly devoid of any merit. We do not see how a recounting could be done in the manner suggested by the appellant. Such a method of recounting would be wholly alien to the scheme of counting explained and adumbrated at such length in the Schedule to the Representation of the Peopleminimum quota which is fixed primarily on the basis of valid ballot papers is theof counting and transfer of surplus votes. Surplus Votes  means votes in excess of the minimum quota and it is such surplus votes that are transferred to other candidates left in the filed. The various rules and their working as illustrated in the Schedule to the Rules show that the system of proportional representation by a single transferable vote involves a progressive interlinked method of counting votes. It is therefore difficult to accept the appellants argument that a ballot paper may be treated as valid for fixation of the minimum quota but should be ruled out for purposes of counting the votes cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid, it must be treated as valid for all purposes and therefore the first preference vote contained therein in favour of respondent 8 must be involve no recrimination between respondent 8 and the appellant, both of whom were successful candidates.