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

2. The facts of the case been fully set out in the Judgment pronounced by this Court on the earlier occasion when the appellant had approached this Court. The judgment is reported in (1982) 3 SCC 389 (II). Briefly stated the facts are as follows : There were 19 candidates who sought election to the Rajya Sabha from the Uttar Pradesh Legislative Assembly Constituency in March 1978. The appellant was one of them Eleven members were to be elected and the election was by means of the single transferable vote. 421 members of the Uttar Pradesh legislative Assembly exercised their franchise. Eleven ballot papers were rejected by the Returning Officer as invalid. Thereafter, the preferences cast in the remaining ballot papers were valued and the points counted. Respondents 2 to 11 were declared elected in the first count itself and respondent 1 was elected in the fourteenth count. The appellant who the " runner up ", if such an expression may be used, filed an election petition. We are not now concerned with the dispute relating to the rejection of the eleven ballot papers. The Election Tribunal (T. S. Misra, J.) rejected the election petition on a ground which was found by this Court to be wholly untenable in the appeal preferred by Kumari Shradha Devi against the rejection of her election petition. This Court, while allowing the appeal, gave certain directions and remitted the matter back to the Election Tribunal. The Tribunal was directed to examine the ballot papers which had been rejected by the Returning Officer as invalid, ascertain the reasons for their rejection, satisfy itself whether the reasons were tenable, decided upon the validity of each of the ballot papers in whole or in part and direct computation of the preference over again. It was held by this Court that a ballot paper could be valid in part and invalid marked but the later preference were invalidly marked, in which case the subsequent preference were to be ignored and the earlier preference were to be computed. After the remand, the Election Tribunal accepted as valid all the eleven ballot papers which had been rejected by the Returning officer as invalid. In fact there is nor dispute before us that ten out of the eleven ballot papers had been improperly rejected by the Returning Officer and the Election Tribunal was quite right in accepting then as valid. The dispute is only regard to one ballot paper marked as Ballot Paper No. 6. This ballot paper was accepted by the Election Tribunal as valid despite the fact that first preference was marked against the names of two candidates, Manohara and Bhattacharya. The Election Tribunal thought that the numeral  1  marked against the name of Manohara was in fact not a mark put by the voter but something which had got stuck to the paper either at the time of manufacture or thereafter. The Election Tribunal, therefore, took the view that the first preference had been marked for Bhattacharya only and proceeding 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.

Reasoning: 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.