Summary
The appellant and respondent were candidates for election to the Maharashtra Legislative Assembly.They secured equal number of votes and so the returning Officer drew lots and declared the appellant elected. The respondent filed an election petition alleging, that the identity of 19 voters was disputed by the polling agent of the appellant, that the presiding officer enquired and found that they were electors entered on the electoral roll, that they were then supplied with ballot Papers but were not permitted to insert them into the ballot box after entering their votes, that the presiding officer directed them to hand over to him those ballot papers, that he forwarded them to the returning officer in a sealed envelope, that 18 of them had recorded their votes in favour of the respondent but the returning officer did not count them and that therefore the appellant's election was liable to be declared void. The Election Tribunal dismissed the petition, but on appeal the High Court set aside the election. In the appeal to the Supreme Court, it was contended that : (i) the complaint was based upon a breach of s. 100(1) (d) (iv) of the Representa- tion of the People Act, 1951, and the High Court erred in declaring the election void under s. 100(1) (d) (iii), (ii)
s. 100(1) (d) (iii) contemplates beache of duty by the returning officer and does not cover an improper refusal by the presiding officer, (iii) the Tribunal erred in holding that the appellant could not raise the objection that the 19 voters were not entitled to vote at all without filing a recrimination under s. 97 of the Act; (iv) the power of the presiding officer to disregard errors in the electoral roll is circumscribed by r. 35(4) of the Conduct of Election Rules, 1961, and that under the rule he could overlook only clerical or printing errors and the errors with respect to the 19 voters being in the surnames and father's name, they could not be said to be clerical or printing errors; and (v) the refusal of the 19 votes could not be regarded as an improper refusal of votes affecting the result of the election, because they never became valid votes.HELD : (i) The election petition definitely charged that the presiding officer improperly prevented the 19 voters from inserting the ballot papers into the ballot box. The pleadings were therefore broad enough to cover a case of breach of s. 100(1) (d) (iii). [407 B](ii) The sub-section 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. [412 A-B](iii) In 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. [4O7 E](iv) Errors with regard to surnames or father's name are not mere clerical errors, because a clerical error connotes some error arising from a slip of the pen or some mistake by a clerk or a transcriber in writing or 404copying. But, while under the specific provisions of r.35(4) of the Conduct of Election Rules, 1961, the presiding officer must disregard merely clerical and printing errors in the exercise of his general powers of enquiry under rr.35 and 26 he may disregard other errors if he is satisfied about the identity of the elector. An error or defect in the entry in the electoral roll, 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. The presiding officer being satisfied that the 19 voters were the electors referred to in the relevant entries, and that the surnames and father's name given in them were eroneous and should be disregarded rightly issued ballot papers to them. [411 B, E-F](v) An improper refusal to receive a vote which prevents it from becoming a valid vote and from its being counted in favour of the defeated candidate in whose favour it was cast is an improper refusal of a vote within the meaning of the sub-section. [413 C]In the instance case there was an improper refusal by the presiding officer to receive the 18 votes cast in favour of the respondent. The returning officer rightly refused to count them because, to become a valid vote, the ballot paper must be inserted into the ballot box. Had those votes been properly received, the result of the election would have been different. Since the result of the election was materially affected by the improper refusal, the election of the appellant was rightly set aside. [413 P-H]See the full content of this document
Extract
Shri Shankar Babaji Savant VS. Shri Sakharam Vithoba Salunkhe And Others
PETITIONER: SHRI SHANKAR BABAJI SAVANT Vs.RESPONDENT: SHRI SAKHARAM VITHOBA SALUNKHE AND OTHERSDATE OF JUDGMENT: 09/12/1964BENCH: BACHAWAT, R.S.BENCH: BACHAWAT, R.S.GAJENDRAGADKAR, P.B. (CJ)HIDAYATULLAH, M.SHAH, J.C.SIKRI, S.M.CITATION: 1965 AIR 1424 1965 SCR (2) 403CITATOR INFO : D 1973 SC2077 (5)ACT: The Representation of the People Act (43 of 1951), S. 100 (1) (d) (iii) Scope of-Conduct of Election Rules, 1961, rr 35 and 36-Presiding Officers power to disregard errors in election role-Extent of.JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1964.Appeal by special leave from the judgment and order dated June 26, 1963. of the Bombay High Court in Appeal No. 98 of 1963 from Original Decree.A. V. Viswanatha Sastri, I. B. Dadachanji, O. C. Mathur and Ravinder Narain. for the appellant.P. D. Kamerkar, K. Rajendra Chaudhuri and K. R. Chau- dhuri, for respondent No. 1.D. R. Prem and B. R. G. K. Achar, for respondents Nos. 5 and 6.The Judgment of the Court was delivered by Bachawat, J. 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. ...
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