SHRADHA DEVI Vs. K C PANT

JUDGEMENT

(1.) Despite the commendable pertinacity with which the appellant. Kumari Shradha Devi has, pursued this matter, we are afraid she must fail. In March 1978, there was the biennial election to the Rajya Sabha from the Uttar Pradesh Legislative Assembly Constituency. The members of the Uttar Pradesh Legislative Assembly were required to elect 11 members to the Rajya Sabha. The term for which the members were to be elected was six years. That term will expire in another four months. Such has been the delay of the processes of the law that even if the appellant had been successful in this appeal, she would be a member of the Rajya Sabha for hardly four months though the normal term is six years.

(2.) The facts of the case have been fully set out in the judgment pronounced by this court an the earlier occasion when the appellant had approached this Court. That judgment is reported in (1982) 3 SCC 389 (2). 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 preference 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 No. 1 was elected in the fourteenth count. The appellant who was the "runner up", if such an expression may be used filed an election petition. We are not now concerned with the several allegations in the election petition. We are only 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 decide upon the validity of each of the ballot papers in whole or in part and direct computation of the preferences over again. It was held by this court that a ballot paper could be valid in part and invalid in part for instance where the first few preferences were validly marked but the later preferences were invalidly marked, in which case the subsequent preferences were to be ignored and the earlier preferences 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 no dispute before as 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 them as valid. The dispute is only in 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 put 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 No. 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: