K. Sadanandan v. Madhava Menon — 1961 DIGILAW 168 (KER)

Judgment :- 1. This an appeal under S.116A of the Representation of the People Act, 1951. The appeal is directed against the order of the Election Tribunal; Trichur dated the 28th February 1961, in Election Petition No 14 of 1960. 2. The election was to fill three seats in the Council of States. There were seven candidates, the appellant (petitioner) and respondents 1 to 6. Of these, respondents 4, 5 and 6 did not secure any vote at all in the election. Respondents 1, 2 and 3 were declared elected. 3. The petition is directed against the election of the 1st respondent. The contention of the appellant is that he and not the 1st respondent should have been declared elected. There Is no attack as far as the election of respondents 2 and 3 are concerned. 4. The entire controversy centres round two ballot papers, Exts. P7 and P8. The Returning Officer accepted Ext. P7 as valid and rejected Ext. P8 as invalid. According to the appellant the Returning Officer should have rejected Ext. P7 as invalid and accepted Ext. P8 as valid. The Election Tribunal agreed with the Returning Officer and dismissed the petition. 5. Ext. P8 which was rejected by the Returning Officer as invalid contains only the mark X. That mark appears against the name of the appellant and his contention is that as no other mark appears on the ballot paper it should be considered as an effective vote in his favour. 6. R.116(1) (a) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, provides that "a ballot paper shall be invalid on which the figure 1 is not marked", and as the figure I does not appear anywhere in Ext. P8 the action of the Returning Officer in rejecting that ballot paper as invalid was certainly in order and has to be sustained. 7. Ext. P7 contains the figure 1 against the name of the 2nd respondent, the figure 2 against the name of the 3rd respondent and the figure 3 against the name of the 1st respondent There are no markings against the names of either the appellant or respondents, 4, 5 and 6. If those figures were the only entries in the cages against the names of respondents 1, 2 and 3, there would have been no room for controversy. 8. If those figures were the only entries in the cages against the names of respondents 1, 2 and 3, there would have been no room for controversy. 8. After the figures 1, 2 and 3, however, the mark X also appears in the three cages The question for determination is whether the conclusion of the Returning Officer and the Election Tribunal that the mark X after the figures 1, 2 and 3 does not invalidate Ext P7 is correct or not. 9. R.116 [1] [c] of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, provides that "a ballot paper shall be invalid on which the figure 1 and some other figures are set opposite the name of the same candidate". The contention of the appellant is that the mark X appearing after the figures 1, 2 and 3 in Ext. P7 represents the Roman numeral for ten. We find it impossible to accept this contention. As far as we can see the mark represents the St. Andrew's cross, that constant and familiar symbol of selection in democratic institutions. 10. It is also not possible to say that the "other figures" contemplated in R.116 (1)(c) will include anything other than the Indian numerals in the international form That only such numerals are visualised by the rules will also be clear from R.73 and 101. As a matter of fact the Roman numerals made with the letters of the alphabet have no place at all in view of Art.343 [1] of the Constitution which specifically provides that "the form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals." 11. R.116 (1) (d) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956 provides that "a ballot paper shall be invalid on which any mark is made by which the elector may afterwards be identified". The third and final contention of the appellant is that the mark after the figures 1, 2 and 3 in Ext. P7 is a mark of identification and that the ballot paper should be rejected on that ground. 12. The third and final contention of the appellant is that the mark after the figures 1, 2 and 3 in Ext. P7 is a mark of identification and that the ballot paper should be rejected on that ground. 12. It is settled law that a ballot paper is liable to be rejected in such cases only if the mark itself affords an indication of the voter or there is extrinsic evidence from which it can be inferred that it was placed in pursuance of a prior arrangement. This was settled as early as the leading case of Woodward v. Sarsons and Sadler (32 TLR. 36) in which a provision similar to R.116 [1] [d] "If the voter ---- places any mark on the paper by which he may be afterwards be identified, his ballot paper will be void and will not be counted..." ........came up for consideration. See also 4 ELR. 55, a decision of the Election Tribunal, Ludhiana. 13. In the language of Halsbury - 3rd Edition, Vol. 14, page 139 - If "the court comes to the conclusion on locking at the paper that the real thing that the voter has been doing is to try, badly or mistakenly, to give his vote, and make it clear for whom he voted, then these marks should not he considered to be marks of identification unless there is positive evidence of some agreement to show that it was so". Our conclusion on an examination of Ext. P7 is that the voter was apparently under the mistaken impression that it was not enough if he... or she... recorded his order of preference by engrossing the figure 1 against the name of the 2nd respondent, the figure 2 against the name of the 3rd respondent and the figure 3 against the name of the 1st respondent; but that he should also add after those figures the normal symbol of voting under the ordinary system of election. In other words, he was not as familiar as he should have been with the rules for voting under a scheme of proportional representation by the single transferable vote. 14. 12 ELR 184, a decision of the Election Tribunal, Ahamedabad, has been of assistance to us. Many of the arguments advanced before us were also advanced before that Tribunal. 15. In other words, he was not as familiar as he should have been with the rules for voting under a scheme of proportional representation by the single transferable vote. 14. 12 ELR 184, a decision of the Election Tribunal, Ahamedabad, has been of assistance to us. Many of the arguments advanced before us were also advanced before that Tribunal. 15. Our attention was drawn to the difference in the wording of R.57 (2) (a) and 116(1) (d). Under R.57 (2) (a) a ballot paper has to be rejected "if it bears any mark or writing by which the elector can be identified" and under R.116 (1) (d) a ballot paper has to be rejected if "any mark is made by which the elector may afterwards be identified". The emphasis was on the use of the word "can" in R.57 (2) (a) and of the word "may" in R.116 (1) [d]. It is true that the word "can" may indicate that the mark must carry within itself a sufficient power or ability of identification whereas the word "may" may require only a possibility, a probability or a contingency of identification. In either case it is a question of fact to be determined on the evidence on record, and the further and final question for consideration is whether there is any positive evidence to show that the elector who put the mark X in Ext. P-7 did so in pursuance of a previous arrangement. 16. This aspect of the case is dealt with in Para.20 to 26 of the order of the Election Tribunal. In Para.20 it dealt with the averments in the petition and came to the conclusion that the pleadings were "vague and indefinite". In Para.21 to 26 it dealt with the evidence adduced, and said: "I think the vague and indefinite evidence adduced by the petitioner cannot be acted upon to come to a conclusion that the cross marks in Ext. P7 might have been put by any elector under any previous arrangement that he might be identified later on". 17. The evidence to which our attention has been drawn consists of the testimony of Pws.1, 2 and 6 and R.ws.1 and 2. Of these, Pw.1 is the appellant himself. According to him there was a rift in the Praja Socialist Party of which he was a member. 17. The evidence to which our attention has been drawn consists of the testimony of Pws.1, 2 and 6 and R.ws.1 and 2. Of these, Pw.1 is the appellant himself. According to him there was a rift in the Praja Socialist Party of which he was a member. The party decided not to put up an official candidate and to support the candidate of the Muslim League. He, however, decided to stand for election against the party decision, and his proposer was C.G. Janardhanan, a member of the party. His evidence would indicate that the arrangement subsequently made by the party was that C.G. Janardhanan should do something by which his vote can be identified. He says: "Even after the statement of C.G. Janardhanan in Ext. P12 I approached him for his support. Then he told me that unless he issued that statement he would be dismissed from the party and that the party leaders have no faith in him that he would vote for the official candidate and he was even asked to vote to their satisfaction. That is, in a manner convincing them that he voted for the official candidate". 18. According to Pw. 2, another member of the Praja Socialist Party, the arrangement was not confined to any particular member but was general in character and intended to apply to all the members of the Assembly from the Praja Socialist Party. The following questions and answers will make the position clear: These questions and answers are part of the witness's examination in chief. 19. When it comes to Pw.6, a member of the Muslim League, the arrangement was neither confined to C.G. Janardhanan as spoken to by Pw.1 nor general as spoken to by Pw. 2 but directed against one Antony D' Cruz, a member of the Praja Socialist Party. He speaks of a talk with some of the important leaders of the Praja Socialist Party on the day before the election and continues as follows: 20. The evidence of Pws.1, 2 and 6 would indicate that the best evidence on the existence of an agreement, if there was one, would have been that of the members of the "rebel" group of the Praja Socialist Party like C.G. Janardhanan, Joseph Chazhikkadan and Antony D'Cruz. None of them has been examined in this case. 21. Rw.1 is a member of the Muslim League and the 2nd respondent. None of them has been examined in this case. 21. Rw.1 is a member of the Muslim League and the 2nd respondent. He categorically denied the existence of any such arrangement and said: "I was the sponsored official candidate of the Muslim League. To my knowledge no member of my party or any member of the P. S. P. has entered into such arrangement. That allegation is completely false". 22. Rw. 2 is the President of the Kerala State Muslim League. He was equally definite and categorical as Rw.1 regarding the non-existence of any prior arrangement. He was asked: 23. The Election Tribunal has chosen to accept the denials of Rws.1 & 2 and has refused to find any prior arrangement on the basis of the evidence of Pws.1, 2 and 6. We have been taken through the entire testimony of these five witnesses and we are not prepared to say that the conclusion reached by the Election Tribunal should be reversed or modified. 24. No other point which has any material bearing on the result of the election or this appeal was urged or arises for consideration. And in the light of what is stated above the appeal must fail and has to dismissed. We do so. The appellant will pay the costs of the 1st respondent, advocate's fee Rs. 250/-.