Case: Wilfred D'Souza Vs. Francis Menino Jesus Ferrao

This appeal by Dr. Wilfred DSouza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed. election petition filed by the appellant 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 dulyappellant and the respondent were the two candidates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in thecaused 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 4, 656 and of those cast in favour of the respondent was 4, 654. 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 4, 651 valid votes, while the respondent had secured 4, 652 valid votes. Seven ballot papers were r ejected. 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, i.e., June 11, 1974. As a result of the second recount the appellant was found to have secured 4, 650 valid votes while the respondent was found to have secured 4, 652 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, th e appellant challenged the election of the respondent on the following twothat 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 tothe rejected votes in the first and second recounts isrespect of the above two grounds, objection was taken by the respondent that there waswith the statutory requirements of section 83(1)(a) of the Representation of the People Act , 1951 (hereinafter referred to as the Act) inasmuch as the appellant had not set out the material facts regarding those allegations. Learned Judicial Comm issioner 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 recounting the polled votes. The appellant, it may be stated, filed a petition seeking special leave of this Court against the above order but that petition was dismissed on July 31, 1975.

Reasoning:
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 relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It 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, e.g., 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 the y 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 proceeded to decide the cast after the evidence of the witnesses 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 tendered ballot papers, the Judicial Commissioner, 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.above.12. 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 relates to serial No. 244 of electoral roll, part No. 12. The said serial number of the electoral roll pertains to Vina Fernandes. It 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, e.g., 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 the y 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 proceeded to decide the cast after the evidence of the witnesses 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 tendered ballot papers, the Judicial Commissioner, 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.