Case Note & Summary
The appeal arose from an election petition challenging the election of the appellant to the Maharashtra Legislative Assembly from the Mahad Constituency. The appellant and the respondent were candidates who secured an equal number of valid votes; the returning officer drew lots and declared the appellant elected. The respondent filed an election petition alleging that the presiding officer at the polling station in Village Turveh Khurd improperly prevented 19 voters from inserting their ballot papers into the ballot box. On polling day, those 19 voters intended to vote for the respondent, but the appellant's polling agent challenged their identity. The presiding officer, after enquiry, was satisfied that the voters were electors entered on the electoral roll and supplied them with ballot papers. The voters marked their preferences but were not allowed to insert the ballot papers into the ballot box; instead, the presiding officer directed them to hand over the marked ballot papers, which he kept in a sealed envelope and forwarded to the returning officer. The returning officer did not count these ballot papers because they were not taken out of the ballot box. Scrutiny showed that 18 voters had cast votes in favour of the respondent and one in favour of another candidate. The Election Tribunal dismissed the petition, but the Bombay High Court allowed the appeal and declared the appellant's election void under Section 100(1)(d)(iii) of the Representation of the People Act, 1951. The appellant then appealed to the Supreme Court by special leave. The main legal issues were whether the High Court could declare the election void under Section 100(1)(d)(iii) when the petition alleged breach of Section 100(1)(d)(iv); whether that provision covers improper refusal by a presiding officer at polling or only improper rejection by the returning officer at counting; whether the respondent could dispute voter identity without filing a recrimination under Section 97; the scope of the presiding officer's power to disregard errors in the electoral roll under Rules 35 and 36 of the Conduct of Election Rules, 1961; and whether prevention of insertion of ballot papers constituted improper refusal of votes affecting the result even though those ballot papers never became valid votes. The appellant argued that the complaint was based on Section 100(1)(d)(iv) only, that the presiding officer's action was outside Section 100(1)(d)(iii), that identity could not be challenged without recrimination, that surname and father's name errors were not clerical or printing errors, and that the 19 votes could not be considered valid votes. The Court held that the pleadings were broad enough to cover Section 100(1)(d)(iii); that the provision covers improper refusal by a presiding officer at polling; that in an enquiry under that provision, the respondent can dispute identity without recrimination; that while surname and father's name errors are not mere clerical errors, the presiding officer under general powers of enquiry may disregard other errors upon being satisfied of identity; and that a ballot paper must be inserted into the ballot box to become a valid vote. The Court reasoned that the presiding officer's refusal to allow insertion was an improper refusal to receive votes, and the returning officer correctly refused to count those ballot papers. Because 18 of those votes would have been in favour of the respondent, the result of the election was materially affected. Accordingly, the Supreme Court upheld the High Court's decision, dismissed the appeal, and affirmed that the appellant's election was void.
Headnote
A) Election Law - Improper Refusal of Votes - Scope of Section 100(1)(d)(iii) - Representation of the People Act, 1951, Section 100(1)(d)(iii) - The election petition alleged that the presiding officer improperly prevented 19 voters from inserting ballot papers into the ballot box. The Court held that the sub-section covers not only improper rejection of votes by a returning officer at counting but also improper refusal of a vote by the presiding officer at polling. The High Court was correct in declaring the election void under this provision because the pleadings were broad enough (Paras 407 B, 412 A-B). B) Election Law - Identity of Voters - Recrimination Under Section 97 - Representation of the People Act, 1951, Sections 97, 100(1)(d)(iii) - In an enquiry under Section 100(1)(d)(iii) regarding improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of voters without filing any recrimination under Section 97. The Court examined the evidence and found that the 19 voters were identical with the electors referred to in the relevant entries in the electoral roll despite errors in surnames and father's name (Para 407 E). C) Election Law - Powers of Presiding Officer - Disregarding Errors in Electoral Roll - Conduct of Election Rules, 1961, Rules 35, 36 - Errors with regard to surnames or father's name are not mere clerical errors under Rule 35(4). However, under the general powers of enquiry under Rules 35 and 36, the presiding officer 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; the elector may satisfy the presiding officer that he is the person to whom the entry relates. Here the presiding officer was satisfied and rightly issued ballot papers (Para 411 B, E-F). D) Election Law - Valid Vote Requirement - Ballot Paper Insertion into Ballot Box - Conduct of Election Rules, 1961, Rules 39, 44, 47, 56, 57, 64 - A ballot paper must be inserted by the elector into the ballot box to become a valid vote. The returning officer rightly refused to count 19 ballot papers that were not taken out of the ballot box. However, an improper refusal to receive a vote which prevents it from becoming a valid vote and from being counted in favour of the defeated candidate is an improper refusal of a vote within the meaning of Section 100(1)(d)(iii) (Para 413 C). E) Election Law - Material Effect on Election Result - Voiding Election - Representation of the People Act, 1951, Section 100(1)(d)(iii) - Since 18 out of 19 ballot papers were cast in favour of the respondent and had those votes been properly received, the result of the election would have been different. The improper refusal materially affected the election result. The High Court's order setting aside the election was upheld and the appeal dismissed (Para 413 P-H).
Issue of Consideration
Whether the improper refusal by the Presiding Officer to permit 19 voters to insert their ballot papers into the ballot box amounted to improper refusal of votes under Section 100(1)(d)(iii) of the Representation of the People Act, 1951, thereby rendering the election void; and incidental questions regarding scope of provision, identity disputes, and powers of presiding officer under election rules.
Final Decision
Appeal dismissed; Supreme Court upheld High Court order declaring appellant's election void under Section 100(1)(d)(iii) of Representation of the People Act, 1951, and dismissed the remaining claim of respondent to be declared elected.
Law Points
- Section 100(1)(d)(iii) of Representation of the People Act
- 1951 covers improper refusal of votes by presiding officer
- improper refusal need not be by returning officer
- identity of voters can be disputed without recrimination under Section 97
- presiding officer's power to disregard errors in electoral roll under Rules 35 and 36 of Conduct of Election Rules
- 1961 not limited to clerical or printing errors
- a ballot paper must be inserted into ballot box to become valid vote
- improper refusal to receive vote that prevents valid vote and affects result voids election
