Case: Dr. Anup Singh Vs. Shri Abdul Ghani &amp; Others

2. There was an election to the Council of States by the Punjab Legislative Assambly in March 1962. There were a number of candidates for three seats which had to be filled. In the present appeals we are concerned with two candidates, namely, Dr. Anup Singn appellant and Shri Abdul Ghani respondent. Two of the seats were filled by Shri Chaman Lal and Shri Surjit Singh. Though originally their election was also challenged, that is not in dispute now. The position with respect to Dr. Anup Singh and Shri Abdul Ghani on first preference votes (the election being on proportional representation) was that Dr. Anup Singh got 36 votes and Abdul Ghani 35 votes. Thereafter preferences were transferred and Dr. Anup Singh got 36.3 votes andI Shri Abdul Ghani 35 votes. In consequence Dr. Anup Singh was declared elected along with the other two candidates whose election is not now in dispute, This was followed by two election petitions, one by Shri Abdul Ghani and the other by Shri Lachhman Singh. Originally the election of all the three candidates was challenged on a large number of grounds; but eventually the matter was pressed only against the election of Dr. Anup Singh and only on one ground, namely, that certain votes cast in favour of Shri Abdul Ghani had been wrongly rejected and certain votes cast in favour of Dr. Anup Singh were wrongly accepted. This challenge was met by the appellant on two grounds. In the first place he contended that the petitions were liable to be dismised under S. 90(3) of the Representation of the People Act, No. 43 of 1951 (hereinafter referred to as the Act) for non-compliance with S. 81(3). In the second place it was contended that there was no improper rejection of the votes of Shri Abdul Ghani and no improper acceptance of votes of the appellant.3. These were the two main questions before the tribunal. On the first question, the tribunal decided that the election petitions were maintainable inasmuch as there was substantial compliance with S. 81(3) of the Act. On the second question relating to eight votes which were under challenge, the tribunal held that the three votes in favour of Shri Abdul Ghani were rightly rejected. This decision of the tribunal has been upheld by the High Court and is no longer in dispute before us. As to the five votes in favour of Dr. Anup Singh, it was conceded on behalf of the appellant that one was invalid. Of the remaining four, two were held to be valid and two were held to be invalid on the basis of the decision of the Punjab High Court in Pala Singh v. Natha Singh, 1962-64 Pun LR 1110. Thereafter the tribunal redistributed the votes on the basis of its findings and declared Shri Abdul Ghani elected as on redistribution Dr. Anup Singh received 33.3 votes and Abdul Ghani 35 votes.4. Thereupon there were two appeals to the High Court by the present appellant and two points were urged on his behalf, namely, (i) that the election petitions should have been dismissed under S. 90(3) of the Act as they did not comply with S. 81(3), and (ii) that the tribunal was wrong in rejecting the two ballot papers. The High Court held that there was substantial compliance with S. 81(3) and therefore the petitions could not be rejected under S.90(3). It further held that one of the two votes in favour of Dr. Anup Singh which the tribunal had invalidated was not invalid. Lastly it held that the second vote rejected by the tribunal was rightly rejected. The final position on this basis was that Dr. Anup Singh got 34.3 votes and Shri Abdul Ghani 35 votes. In consequence the High Court dismissed the two appeals. Then followed two petitions for certificates which were granted; and that is how the matter has come up before us.

Reasoning:
In this case the necessary number of copies were filed and each copy bore the signature of the petitioner concerned. It may also be mentioned that these copies were carbon copies of the original and it is not in dispute that they were true copies thereof. But the attestion required by S. 81(3) was not there specifically on the copies. Consequently, the appellant contends that there was no compliance with S. 81(3) and in consequence the petitions should have been rejected under Section 90(3) which provides that "the tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, or Section 82 notwithstanding that it has not been dismissed by the Election Commission under Section 85". It is urged that in view of the penalty provided for non-compliance with S.81(3), that section is mandatory and has to be strictly complied with. In asmuch as in this case there was no attestation, the petitions should have beencase applies with full force to the facts of the present case, and it must therefore be held that there was substantial compliance with S. 81(3) and the petitions could not therefore be dismissed under S.tribunals judgment shows that it was inclined to hold that this ballot paper was not invalid, but following the judgment of the High Court in Pala Singhs case, 64 Pun LR 1110 it held this particular ballot paper to be invalid. When the matter came before the High Court, the case was placed before a Full Bench of three Judges to consider the correctness of the judgment in Pala Singhs case, 64 Pun LR 1110. It may be mentioned that the judgment was concerned with a mark on the ballot paper and not with any writing thereon, and the High Court in Pala Singhs case, 64 Pun LR 1110 took the view that making of any mark would make the ballot paper invalid in view of R. 73(2)(d). Pala Singhs case, 64 Pun LR 1110 was reconsidered by the High Court and it held that on the whole Pala Singhs case, 64 Pun LR 1110 could not be held to have been correctly decided in the matter of a mark on the ballot paper in view of certain decisions of the English Courts in that behalf. But so far as Ex.P-76 was concerned, the High Court took the view that that was a case of writing and relying on the decision of Woodwardv. Sarsons, (1875) LR 10 CP733, the High Court held by majority the ballot paper to bethere are three possible interpretations of the words "by which the elector can be identified" appearing in R. 73(2)(d), namely (i) any mark or writing which might possibly lead to the identification of the elector, (ii) such mark or writing as can reasonably and probably lead to the identification of the elector, and (iii) the mark or writing should be connected by evidence aliened with an elector and it should be shown that the elector is actually identified by such mark or writing. The appellant presses for the third of these alternative constructions both in respect of the mark and the writing while the respondents press the first construction, and in any case it is urged that the words do not go beyond the second construction.We are of opinion that the words cannot bear the first construction, namely, that any mark or writing other than that permitted by R. 37-A which might possibly lead to the identification of the elector would be covered thereby. When the legislature provided that the mark or writing should be such that the elector can be identified thereby it was not providing for a mere possibility of identification. On this construction almost every additional mark or writing would fall within the mischief of the provision. If that was the intention the words would have been different, if a mere possibility of identification had been enough to invalidate the ballot paper, cl. (d) of R. 73(2) would have read something like this : "that there is any mark or writing other than that permitted by R. 37-A". But the words used by the legislature are "any mark or writing by which the elector can be identified", and this in our opinion implies that there should be something more than a mere possibility of identification, before a vote can be invalidated. This may happen when some prearrangement is either proved or the marks are so many and of such a nature that an inference of pre-arrangement may be safely drawn without further evidence.We are further of opinion that the third construction on which the appellant relies also cannot be accepted. If the intention of the legislature was that only such votes should be invalidated in which the elector was actually identified because of the mark or writing, the legislature would not have used the words "the mark or writing by which the elector can be identified". These words in our opinion do not mean that there must be an actual identification of the elector by the mark or writing before the vote can be invalidated. If such was the intention of the legislature cl. (d) would have read something like "any mark or writing which identifies the elector". But the words used are "any mark or writing by which the elector can be identified", and these words in our opinion mean something more than a mere possibility of identification but do not require actual proof of identification before the vote can be invalidated, though by such proof, when offered, the disability would be attracted.It seems to us therefore that the second construction out of the three alternatives we have mentioned above is the real construction of these words. When the legislature used these words it was providing that any mark or writing by which the elector can reasonably and probably be identified would invalidate the ballot paper. The words "can be identified" in our opinion imply something more than a mere possibility of identification; at the same time they do not in our opinion require that before the ballot paper is rejected the electors identity must be actuallyconstrued therefore the words mean that the mark or writing should be such that the elector can be identified thereby with reasonable probability. Thus it is not the mere possibility of identification which will invalidate the vote under R. 73(2)(d), nor is it necessary that there should be certain identification before the vote is invalidated. All that these words require is that there should be reasonable probability of identification by the mark or writing (other than that permitted by R. 37-A) and if there is such a reasonable probability of identification, the ballot paper would be invalidated.Obviously when these words mean that there should be a reasonable probability of identification by means of the mark or writing there would be a difference in the approach of the returning officer as well as of the tribunal and of the court when dealing with a mark as distinguished from a writing. So far as the mark is concerned it has by itself very little value for purposes of identification and therefore in the case of marks the returning officer or the tribunal or the court may require evidence to show that there was arrangement between the elector and the candidate to put a certain mark on the ballot paper which would lead to his identification. But in the case of a writing the mere presence of the writing in certain circumstances would be sufficient to warrant the returning officer, or the tribunal or the court to say that the elector can be identified by the writing. Whether the elector can be identified by the writing would always be a question of fact in each case and in that connection the extent of the writing on the ballot paper may have a bearing on the question whether the elector can be identified thereby. For example, if the writing consists of (say) a capital letter A, it may be possible for the returning officer, the tribunal or the court to say that there is not sufficient material in the writing by which the elector can be identified. But if the writing consists of a number of words it will be open to the returning officer after taking into account the entire circumstances to say whether the elector can be identified by the presence of so much writing. In dealing with this question the size of the constituency and the number of words may not be irrelevant. We may also add that when scrutinising the ballot papers under R.37-A and considering whether a particular ballot paper should be rejected, it is not necessary for the returning officer to take evidence, though if any party is prepared to give evidence then and there while the scrutiny is going on and votes are being counted, there is nothing to prevent the returning officer to take such evidence to determine whether the mark or writing is such that the elector can be identified thereby. But generally evidence may not be forthcoming and it will be for the returning officer, the tribunal or the Court to decide on the ballot paper as it stands whether the mark or writing is such that the elector can be identified thereby. As we have said already the difficulty is greater in the case of a mere mark; the difficulty may be less in the case of a writing depending upon the amount of writing that is available on the ballot paper and it will be for the returning officer, the tribunal or the court in each case to decide in all the circumstances, whether the writing is of such a nature and of such an extent that the elector can be identified byare of opinion that the writing is sufficient in extent, particularly when we bear in mind a small constituency of 152 electors and it would in our opinion be right to say that there was a reasonable probability of the identification of the elector by this writing which he had put on the ballot paper. To say that the elector merely wanted to emphasise his choice is of no assistance to the appellant if the writing is of a nature and extent that it can with reasonable probability lead to the identification of the elector. In the present case we have no doubt that the writing was of sufficient extent and can lead to the identification of the elector. As Denman, J. put it in Stepneys case, (1886) 4 OM, and H. 34, the elector here has by his handwriting left sufficient evidence of his identity and can be identified thereby. We may add that it is not necessary, as the majority of the learned Judges of the High Court seems to think, that the returning officer in the peculiar circumstances of this case, being the Secretary of the Legislative Assembly might be knowing the handwriting of the members. Even if he does not know the handwriting, the ballot paper would be invalidated if the writing is of the nature and extent that it can lead to the identification of the elector. In the present case we have no doubt that by writing the words "One, Two, Three" on the ballot paper, the elector has left sufficient evidence of his identity which can lead to his identification. In the result this ballot paper was rightly rejected. In this view of the matter the conclusion of the High Court is correct and the appeals must fail.