Case: Shri Shankar Babaji Savant Vs. Shri Sakharam Vithoba Salunkhe And Others

1. Shankar Babaji Savant and Sakharam Vithoba Salunkhe were candidates for election to the Maharashtra Legislative Assembly from the Mahad Constituency. There were four other candidates in the field. Savant and Salunkhe got equal number of valid votes. The other candidates got much lesser votes. The Returning Officer drew lots and declared Savant duly elected. Salunkhe filed an election petition claiming that the election was void, and that he, having received the majority of the valid votes, should be declared duly elected. The Election Tribunal at Alibag dismissed the petition. On appeal, the Bombay High Court declared that the election of Savant was void, and dismissed the rest of the claim made by Salunkhe. Savant now appeals by special leave. The High Court rejected Savants preliminary contention that the first appeal was not maintainable on account ofwith the provisions of S. 119A of the Representation of the People Act, 1951. This contention is no longer pressed before us.2. The complaint of Salunkhe that the Returning Officer improperly received and counted in favour of Savant a postal ballot paper with the writing "Shankar Babaji Savant" on its back instead of rejecting it on the ground that it bore a writing by which the elector could be identified is concluded by the concurrent finding of fact that the elector could not be identified by the writing on the back of the ballot paper. The particular complaint of Salunkhe is no longer pressed, and may be left out of consideration.3. The major complaint of Salunkhe was that Kolhe, the Presiding Officer for the polling station at Village Turveh Khurd, improperly prevented 19 voters from inserting their ballot papers into the ballot box. On the polling day, those 19 voters wanted to vote in favour of Salunkhe. The polling agent of Savant challenged those voters, disputing their identity. For each challenge he deposited a sum of Rs. 2 in cash with Kolhe. On enquiry, Kolhe was satisfied that all 19 voters were electors, entered on the electoral roll, and the challenges as to their identity were not established. The voters were then supplied with ballot papers, and they duly entered their votes on these papers. They then wanted to insert their ballot papers into the ballot box, but Kolhe did not permit them to do so, and instead, directed them to hand over those papers to himself. On taking possession of the ballot papers, Kolhe kept them inside a sealed envelope and forwarded them to the Returning Officer. Salunkhe succeeded in establishing this major complaint. The Election Tribunal and the High Court have concurrently found that in the circumstances, the Presiding Officer wrongfully took possession of the ballot papers, and thus prevented the voters from inserting those ballot papers into the ballot box. None of the ballot papers was returned by the voters to the Presiding Officer under R. 41(2) of the Conduct of Election Rules, 1961. All the 19 voters indicated their preferences on the ballot papers before they were taken possession of by the Returning Officer. A scrutiny of the ballot papers shows that 18 voters recorded their votes on their ballot papers in favour of Salunkhe, and one recorded his vote in favour of a candidate other than Savant and Salunkhe. The ballot papers were not tampered with after they were taken possession by the Presiding Officer. The Returning Officer received the 19 ballot papers inside the sealed envelope, but he did not count them, as they were not taken out of the ballot box. The question is whether, in the circumstances, Savants election is liable to be declared void.

Court's reasoning:
The petition definitely charged that the Presiding Officer improperly prevented the 19 voters from inserting the ballot papers into the ballot box. The pledings are broad enough to cover a case of breach of S.find that the objection was distinctly raised by the polling agent of Savant. We also think that the enquiry under S.100(1)(d)(iii) is outside the purview of S. 97. On an enquiry under s. 100(1) (d) (iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under S. 97. In view of this erroneous approach of the Election Tribunal and the High Court, Mr. Sastri justifiably asked us to examine the evidence on this point. We have examined the evidence with the assistance of Mr. Sastri, and on such examination, we are satisfied that the 19 voters are identical with the electors referred to in the relevant entries in the electoralare unable to say that the errors will regard to the surnames or the fathers name were merely cleric errors. But the question still remains whether the Presiding Officer could apart from R. 35(4), disregard errors other than merely clerical or printingattention was drawn to the fact that in our electoral law there is no provision corresponding to S. 39(5) of the English Representation of the People Act, 1949 (12 and 13, Geo. 6, c. 68), which provides that no misnomer or inaccurate description of any person or place named in the register of parliamentary electors and other documents shall affect the full operation of the document with respect to that person or place in any case where the description of the person or place is such as to be commonly understood. In view of the elaborate argument of Mr. Sastri, we shall briefly examine the scheme of our electoral law on the subject.10.This brief survey of the electoral law reveals that the elective franchise of a citizen is a valuable right. The elector is entitled to the inclusion of his name on the electoral roll so that he may vote at the election. If the entry in the electoral roll relating to him is erroneous or defective in any material particular, he may obtain correction of the error or defect by recourse to the machinery provided in the Representation of the People Act, 1950 and the Registration of Electors Rules, 1960. In the absence of such a correction he runs the risk of a challenge at the polling station and may be debarred from voting if he fails to establish his identity. But the error or defect in the entry does not disqualify the elector from voting. It is still open to him to satisfy the Presiding Officer at the polling station that he is really the elector to whom the entry relates. Rule 35(4) of the Conduct of Election Rules, 1961 makes it obligatory on the Presiding officer to overlook merely clerical or printing errors if he is satisfied about the identity of the elector. But the power of the Presiding Officer to disregard errors in the entry is not rigidly circumscribed by R.35(4). Rules 35 and 36 confer upon the Presiding Officer ample power of enquiry into the identity of the elector. If on such enquiry he is satisfied that the claimant is really the elector referred to in the entry and some parts of the entry are incorrect or erroneous descriptions of the claimant, he may disregard those errors and issue the ballot paper to the claimant. We are not inclined to construe Rules 35 and 36 narrowly and to hold that his power to disregard errors in the entry on such an enquiry is limited to overlooking merely clerical or printing errors. In our opinion, under the specific provision of R. 35(4) he must disregard merely clerical and printing errors, and in the exercise of his general powers of enquiry under Rules 35 and 36, he may disregard other errors if he is satisfied about the identity of the elector. In the instant case the presiding Officer was satisfied that the 19 voters were the electors referred to in the relevant entries and the surnames and the fathers name given in them were erroneous and should be disregarded. In the circumstances, we hold that the ballot papers were rightly issued to all the 19 voters. We think that on this point no distinction can be made between an error in the fathers name and an error in the surname of the elector.In the above discussion, we have purposely refrained from referring to S. 36 of the Representation of the People Act, 195l and subss. (4) and (7) thereof, as we do not propose to consider the effect of a misnomer or an inaccurate description of a candidate in a nomination paper. In this case, we are concerned with the question of the effect of an error in the name of the elector on the electoral roll on the right of the elector to vote at thecontention must be rejected. Section 100(1)(d)(iii) covers not only an improper rejection of votes by a Returning Officer at the time of counting, but also an improper refusal of a vote by the Presiding Officer at the time of polling. We have no doubt that Kolhes conduct in not allowing the 19 voters to place their ballot papers in the ballot box amounts to improper refusal of votes within the meaning of S. 100(1)(d)(iii).Out of the 19 votes which the Presiding Officer refused to receive 18 votes were cast in favour of Salunkhe. The remaining one vote was cast in favour of a candidate other than Savant and Salunkhe. Savant alleged that two ballot papers and 27 or 29 postal ballot papers were wrongly rejected and should have been counted in his favour. The High Court has found that one ballot paper was wrongly rejected, and should have been counted in his favour. The High Court rejected the rest of his charge, and they are no longer pressed before us. We find that Savant and Salunkhe got equal number of valid votes. There was improper refusal to receive 18 votes cast in favour of Salunkhe. There was also improper rejection of one vote cast in favour of Savant. Had the 18 votes cast in favour of Salunkhe been received, the result of the election would have been otherwise. We thus find that the result of the election was materially affected by the improper refusal of those votes. The High Court, therefore, rightly declared that Savants election was void.