SHYAM SUNDER Vs. SATYA KETU

JUDGEMENT

(1.) This is an appeal on a certificate granted by the Allahabad High Court and arises in the following circumstances. An election was held for one seat to the U. P. Legislative Council from the Rohilkhand Graduates Constituency on April 22, 1962. There were 14 candidates, and election was held in accordance with the system of proportional representation by means of single transferable vote. Totalnumber of votes cast were 4412 and 2207 first preference votes were required to secure the return of any candidate at the first count As no candidate secured the minimum votes at the first count, subsequent counts had to be made excluding the candidate who had received the lowest number of votes on each count. Eventually, Satya Ketu respondent got the highest number of votes after the last count and he was declared elected by margin of 47 votes. Thereupon the appellant filed an election petition claiming that a declaration be made that the election of Satya Ketu was void and that the appellant was duly elected from this constituency. The basis of the appellant's claim was that in valid votes had been counted in favour of Satya Ketu inasmuch as ballot papers on which figure 1 was not marked were counted as valid when they should have been counted as invalid in view of R. 73 (2) of the Conduct of Election Rules 1961 (hereinafter referred to as the Rules). Satya Ketu contended in reply that all the votes counted in his favour were valid votes and, therefore, prayed that the petition should be dismissed.

(2.) Thus the main question for decision before the Election Tribunal (hereinafter referred to as the Tribunal) was whether votes which should have been declared invalid in view of the provision of R. 73 (2) of the Rules had been counted as valid in favour of Satya Ketu. The Tribunal scrutinised the ballot papers and divided them into a number of categories. It held that certain ballot papers bore the Roman numeral I instead of the Arabic numeral 1. It, therefore, held that ballot papers marked with the Roman numeral 1 were invalid under R. 73 (2) of the Rules as they did not bear the Arabic figure 1. It thus came to the conclusion that 491 votes cast in favour of Satya Ketu were invalid. It, therefore, allowed the petition and declared the election, of Satya Ketu respondent void and further declared the appellant to be duly elected from that constituency.

(3.) Satya Ketu then went in appeal to the High Court, and his contention was that the Tribuna1 was wrong in holding that ballot papers which had been marked by Roman numeral I were invalid. He, therefore. contended that 491 votes rejected by the Tribunal were validly cast and the petition should have been dismissed. The appellant on the other hand contended that the Tribunal's view was correct. In addition, the appellant raised a preliminary objection, namely, that the appeal should be dismissed as it was not accompanied by a copy of the decree. The High Court overruled the preliminary objection and held that no copy of decree was necessary in view of the provisions of S. 98 and S. 116-A of the Representation of the People Act, No. 43 of 1951 (hereinafter referred to as the Act). On the merits it held that R. 73 (2) did not mean that preference expressed by writing down the Roman numeral I in place of the Arabic numeral 1 would make the ballot paper on which the Roman numeral I was written in valid. It, therefore, counted as valid votes which bore the Roman numeral I. Thus out of 491 votes which were declared invalid by the Tribunal, the High Court was of the view that 460 votes were valid and as Satya Ketu had won by 47 votes and would still win by 16 votes, it allowed the appeal and dismissed the petition. The present appeal has been filed by the appellant with a certificate granted by the High Court.