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PETITIONER: ERA SEZHIYAN

       Vs.

RESPONDENT: T.R. BALU AND ORS.

DATE OF JUDGMENT01/03/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. KULDIP SINGH (J)

CITATION:  1990 AIR  838            1990 SCR  (1) 767  1990 SCC  Supl.  322     JT 1990 (1)   392  1990 SCALE  (1)377

ACT:     Representation of the People Act, 1951/Conduct of  Elec- tion Rules 1961: Sections 60 and 100/Rules 30, 31 37A,  39A, 56  &  70--Rajya Sabha election--Ballor  paper  marked  with green ink while blue ball point pen kept in voting booth for use  by voter--Voting in violation of election  rules--Hence ballot paper rightly rejected: mark not place in the  column earmarked for marking the preference but placed opposite the name of the candidate: intention of the voter clearly  indi- cated-Hence ballotpapers rightly accepted.

HEADNOTE:     Election of six Members to the Rajya Sabha by the elect- ed  Members of the Tamil Nadu Legislature Assembly was  held in June 1986. The appellant and respondent nos. 1 to 7  were the  eight candidates in the field. Respondent Nos. 1  to  6 were declared duly elected and the appellant was declared as having  lost the election. The appellant thereupon filed  an election petition which was dismissed by the High Court.     Before  this  Court it was contended on  behalf  of  the appellant that: (1) the first preference vote in his  favour in which the first preference was marked on the ballot paper in green ink had been wrongly rejected on the ground that it was marked otherwise than with the article supplied for  the purpose,  i.e., the ball-point pen with blue ink  which  had been  kept  in the voting booth; and (2)  the  three  ballot papers  indicating  the first preference in  favour  of  the first  respondent, which did not contain the figure  ’I’  in the  space  intended for marking the said figure,  had  been wrongly accepted. In support of the first contention it  was argued  that: (1) the expression "article supplied  for  the purpose"  used  in Rule 39A(2)(b) and Rule 73(2)(e)  of  the Conduct  of  Election Rules, 1961, was misconstrued  by  the High  Court;  (2) in the context of the  election  law,  the instructions contained in the hand-books, and the  procedure followed  in respect of the election to Lok Sabha and  State Assemblies,  the expression "article supplied for  the  pur- pose"  should be interpreted as meaning "actually given"  or "handed  over", and as such the ball-point pen  for  marking the  preference should have been personally handed  over  to the voter with instructions to use it for marking his  pref-

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erence; (3) the mistake in the present case, namely, marking 768 of  the preference with green ink on the ballot  paper,  had occurred  because no bail-point pen was handed over  to  the voter  concerned; and (4) the fundamental rule  of  election law  is that effect should be given to the intention of  the voter  and this could be done only by treating the  vote  as valid. Dismissing the appeal, this Court,     HELD:  (1)  There is a material  difference  between  an election  to Lok Sabha or a Legislative Assembly which is  a direct election with one constituency for each seat and only the vote is to be cast, and an election to Rajya Sabha which is  an  indirect election with the  preferential  system  of voting.  This  difference has to be taken  into  account  in interpreting  the relevant words used in the Rules  relating to an election. [779D-E]     (2)  Rule  39A(2)(b)  read with Rule  37A(2)(a)  of  the Conduct  of Election Rules 1961 prescribes that at an  elec- tion in a council an elector in giving his vote shall  place on his ballot paper the figure ’I’ in the space opposite the name  of  the candidate for whom he wishes to  vote  in  the first  instance with the article supplied for  the  purpose. Further, Rule 73 which is directly applicable to the  count- ing  of votes at elections by Assembly  Members,  prescribes that  if  on  the ballot paper there is  any  figure  marked otherwise  than with the article supplied for  the  purpose, the ballot paper shall be invalid. [777H; 778A; D]     (3) The High Court was right in interpreting the expres- sion  "article supplied for the purpose" in  Rule  39A(2)(b) and  Rule  73(2)(e) of the Election Rules as  meaning  "made available  for the purpose" or "provided for  the  purpose." [778E]     Ram  Utar  Singh Bhaduria v. Ram Gaopal  Singh  &  Ors., [1976] 1 SCR 191 distinguished.     (4)  The  difference in the case of an election  to  the Rajya  Sabha makes it wholly unnecessary that the  Presiding Officer  or  the Polling Officer should hand over  to  every votor individually a hall-point pen to mark his vote and  it is enough if the article for marking the preference, namely, bail-point pen, is provided to the voter to use the same for marking his preference or if the pen is placed in such a way as to make it clear that the marking of the preference is to be done with that pen and instructions given to use that pen for marking the preference. [779H; 780A-B] (5)  It  is not enough for the vote to be valid that  it  is possible 769 to gather the intention of the voter to vote for a  particu- lar  candidate. When the law prescribes that  the  intention should be expressed in a particular manner, it can be  taken into account only if it is so expressed. [777E-G]     Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors.,  [1955] 1 SCR 1104, refterred to.     (6)  Assuming that the voter in this case had  expressed his intention clearly by marking the figure 1 in green  ink, he  did  so in violation of the express  provisions  of  the Rules  which have a statutory force and hence no effect  can be given to that intention. [778D]     (7) Clause (a) of sub-rule (2) of Rule 37A only provides that the voter shall place on his ballot paper the figure  1 in the space opposite the name of the candidate for whom  he wishes to vote in the first instance. It is significant that this  rule does not specifically say that the figure 1  must be placed in the column earmarked for marking the preference

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but  only requires that the figure 1 should be placed  oppo- site the name of the candidate. [781D-E]     (8) In the case of the three first preference votes cast in  favour  of  respondent No. 1 the figure  1  was  clearly marked  opposite  the name of respondent no.  1,  being  the candidate concerned, as required by the express provision of the said Rule 37A, and the intention of the voter was clear- ly to cast the first preference in favour of respondent  No. 1. [782E]     S. Sivaswami v. V. Malaikannan & Ors., [1984] 1 SCR 104, referred to.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No.  1577 (NCE) of 1987.     From  the  Judgment and Order dated 24.4.  1987  of  the Madras High Court in Election Petition No. 1 of 1986.     Ram  Jethmalani, Ms. Rani Jethmalani and M.G.  Ramachan- dran for the Appellant.     R.K. Garg, S. Padmanabhan, K. Raj. Choudhary, R.  Mohan, K. Chandrashekharan, R. Ayyam Perumal, V. Krishnamurthy,  S. Thananjayan,  K.V. Vijaya Kumar, A.V. Rangam and V.R.  Kari- thi˜ kayan for the Respondents. 770 The Judgment of the Court was delivered by     KANIA,  J. This is an appeal from a judgment  and  order delivered by a learned Single Judge of the Madras High Court on  April 24, 1987 dismissing an election petition filed  by the  appellant.  The  appellant herein  was  the  petitioner before the High Court and the respondents nos. 1 to 8 herein were  arraigned  as  respondents in the same  order  in  the election  petition. The dispute pertains to the election  of six Members to the Rajya Sabha by the elected Members of the Tamil  Nadu Legislative Assembly. The election was held,  as scheduled,  on June 28, 1986. The appellant and  respondents nos. 1 to 7 were the eight candidates in the field, all  the nominations having been found valid. The 8th respondent  was the Returning Officer. The polling took place, as scheduled, on June 28, 1986 and, immediately thereafter, the ballot box was  opened and the votes were sorted out. The election  was under the preferential system of voting and the  particulars of  the  first  preferences votes cast and  secured  by  the candidates are as follows: Candidates                               First    Preference Votes 1. Appellant                               33 2. 1st Respondent                         35 3. 2nd Respondent                         31 4. 3rd Respondent                         33 5. 4th Respondent                          32 6. 5th Respondent                          34 7. 6th Respondent                          34 8. 7th Respondent                         nil     Out  of the 33 first preference votes cast in favour  of the  appellant,  one ballot paper was rejected  by  the  8th respondent,  the Returning Officer, on the ground  that  the said  ballot  paper was marked by the voter  otherwise  than with  the article supplied for that purpose. It may be  men- tioned  here that the first preference was indicated on  the said ballot paper by a ball-point pen with green ink whereas in  the  ball point pen kept along with the ballot  box  had blue  ink.  The working result sheets of the  counting  were prepared and announced by the 8th

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771 respondent.  The  particulars  of the  said  working  result sheets are as follows: 1. Appellant                               3219 2. 1st Respondent                          3301 3. 2nd Respondent                          3270 4. 3rd Respondent                          3300 5. 4th Respondent                          3301 6.  5th Respondent                   3301 7.  6th Respondent                   3301     In consequence, respondents nos. 1 to 6 were declared as duly  elected and the appellant was declared as having  lost the election.     It  is submitted by learned counsel for  the  appellant, that  (1) the first preference vote in his favour  in  which first preference was indicated on the ballot paper in  green ink  was wrongly rejected. The rejection of the said  ballot paper  by the Returning Officer was duly objected to by  the appellant at the time of counting. The said ballot paper  is hereinafter referred to as "the said rejected ballot paper". If  the  said  rejected ballot paper had  been  received  as valid, the appellant would have the proportionate number  of preference votes and would have been declared elected.     The  second contention raised by the appellant was  that three  ballot papers which did not contain the figure  1  in the  space intended for marking the said figure should  have been  rejected  and the same were  wrongly  accepted.  These ballot  papers  had been used for casting  first  preference votes in favour of the first respondent and if the same  had been rejected, first respondent would not have been  elected and in his place the appellant would have been elected. Both the mistakes according to the appellant materially  affected the result of the election.     Before  going into the controversy raised before us,  we may  note the relevant provisions of the Election  Law.  The election  petition was filed under Chapter-II of the  Repre- sentation  of the People Act, 1951 (hereinafter referred  to as "the said Act"). Section 59 of the said Act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed. We are not 772 concerned  here with the special procedure for  voting  pro- vided  in certain cases provided for under section 60   said Act. Section leo of the said Act deals with the grounds  for during  elections  to be void. The relevant portion  of  the said section reads thus: "100(1) Subject to the provisions of sub-section (2) if  the High Court is of opinion-- (a) x                       x                       x (b) x                        x                        x (c) That any nomination has been improperly rejected; or (d)  that the result of the election, in so far as  it  con- cerns a returned candidate, has been materially affected-- (i) by the improper acceptance or any nomination, or (ii)  by any corrupt practice committed in the interests  of the  returned candidate by an agent other than his  election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv)  by any non-compliance with the provisions of the  Con- stitution  or  of this Act or of any rules  or  orders  made under this Act, the  High Court shall declare the election of  the  returned candidate to be void".     Conduct of Election Rules, 1961 (referred to hereinafter

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as  "the Election Rules") came into force on 25th of  April, 1961.  Rule 30 of the Election Rules prescribes the form  of the  ballot papers. Rule 31 of the Election  Rules  provides for  arrangements at polling stations. Sub-rule (3) of  Rule 31 runs as under: "(3)  the  returning officer shall provide at  each  polling station  a sufficient number of ballot boxes, copies of  the relevant part of the electroal roll, ballot papers,  instru- ments for stamping the distinguishing mark on ballot 773 papers  and  articles, necessary for electors  to  mark  the ballot papers."     Rule 39 of the Election Rules deals with the maintenance of secrecy of voting by electors within polling stations and the  voting procedure. The material portion of sub-rule  (2) of that rule runs as follows: "(2) The elector on receiving the ballot paper shall  forth- with-- (a) proceed to one of the voting compartments: (b)  there make a mark on the ballot paper with the  instru- ment  supplied for the purpose on or near the symbol of  the candidate for whom he intends to vote."     Rule  70 lays down rules for the conduct of  polls.  The portion  of  Rule 70 material for the purposes of  the  case runs as follows: "(a) x              x              x              x (b)  to every election in a council unless voting by  postal ballot  has been directed in the whole of that  constituency under clause (b) of rule 68, subject to the following modifications, namely: (i) clause (a) of sub-rule (1) of rule 31 shall not apply to an election by assembly members; (ii)  in lieu of rules 37 to 40, the following  rules  shall apply: 37A.  Method of voting. (1) Every elector has only one  vote at  an  election irrespective of the number of seats  to  be filled. (2) An elector in giving his vote-- (a)  shall  place on his ballot paper the figure  1  in  the space opposite the name of the candidate for whom he  wishes to vote in the first instance; and 774 (b) may, in addition, place on his ballot paper the figure 2 or the figures 2 and 3 or the figures 2, 3 and 4 and so  on, in  the space opposite the names of the other candidates  in the order of his preference. 38A. x              x              x              x 39A.  Maintenance  of secrecy of voting by  electors  within polling station and voting procedure--(1) Every elector,  to whom a ballot paper has been issued under rule 38A or  under any  other provision of these rules, shall maintain  secrecy of  voting within the polling station and for  that  purpose observe the voting procedure hereinafter laid down. (2)  The elector on receiving the ballot paper shall  forth- with- (a) proceed to one of the voting compartments; (b) record his vote in accordance with sub-rule (2) of  rule 37A with the article supplied for the purpose. (c) fold the ballot paper so as to conceal his vote; (d) insert the folded paper in the ballot box; and (e) quit the polling station: (It  is not necessary to quote the rest of Rule 39A for  the purposes of this Judgment)     It  was submitted by learned counsel for  the  appellant that the express on "article supplied for the purpose"  used

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in  Rule 39A(2)(b) and Rule 73(2)(e) of the  Election  Rules was misconstrued by the High Court. It was submitted by  him that in the context of the election law and the instructions contained in the hand-books to which reference will be  made that  expression should be interpreted as meaning  "actually given" or "handed over". In this regard, reference was  made to instructions given to the Presiding Officer in respect of elections  to Lok Sabha and State Assemblies.  The  relevant instructions  in the said hand-book provide that the  proce- dure  followed in respect of the election to Lok  Sabha  and State Assemblies is that the Polling Officer or 775 Polling Assistant must give the rubber stamp properly  inked to  the voter before he proceeds into the voting  booth  for marking  his choice and the Polling Officer or  Polling  As- sistant must take back the said rubber stamp from the  voter after he comes out from the voting both having cast his vote and  then hand it over to the next voter and so on.  It  was urged  that  the same procedure should  have  been  followed mutatis matandis in the case of an election to the  Legisla- tive Council like the one in question before us, and if this were done, it would imply that the ball-point pen for  mark- ing  the preference should have been personally handed  over to  the  voter with instructions to use it for  marking  his preference.  This argument is not worthy of  acceptance.  As pointed  out by the High Court, the nature of the  elections to the Lok Sabha and the State Assemblies is different  from that  of elections to a Legislative Council or  Rajya  Sabha and  this difference has to be taken into account in  inter- preting the relevant words used in the rules relating to  an election. The election to Lok Sabha and the State Assemblies is  a direct election on the basis of a single  member  con- stituency where the voter has only one choice whereas in the case of an election to the Rajya Sabha, the said election is by  members of the Legislative Assemblies of the States  and the election is an indirect election conducted on the  prin- ciple  of proportional representation by means of  a  single transferable vote. In the case of elections to the Lok Sabha and  State Assemblies, a rubber stamp with arrow  cross-mark is  provided with which the voter has to make a mark on  the symbol  of the candidate of his choice in the ballot  paper. Many of the voters are not familiar with the election proce- dure  and it is in these circumstances that the  requirement has been provided that a rubber stamp containing the  cross- mark properly inked should be handed over to each voter with instructions to use the same for marking his vote or choice. In the case of the election to the Rajya Sabha or a Legisla- tive  Council,  the  situation is  entirely  different.  The number of voters is limited. One could assume that they  are reasonably  familiar with the procedure of voting;  and  the article  supplied for marking the preference is  a  fountain pen  or  ball-point pen. In these  circumstances,  there  is hardly  any  warrant  for requiring that  the  procedure  of handing over personally to each voter the article for  mark- ing  his  preference should be followed and  it  is  quite/’ adequate if the article for marking the preference,  namely, the fountain pen or ball-point pen is made available in  the voting booth with clear instructions that the same should be used  in  marking the preference. It must also be  borne  in mind that there is no express rule or instruction in connec- tion  with the elections to the RaRajya Sabha by Members  of the  State Assemblies or elections to the Legislative  Coun- cils of States which specifically requires that the arti- 776 cle for marking the preference should be handed over to each

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voter  personally. In these circumstances, in our view,  the High Court was right in interpreting the expression "article supplied  for  the  purpose"  in  Rule  39A(2)(b)  and  Rule 73(2)(e)  of the Election Rules as meaning  "made  available for the purpose" or "provided for the purpose". Reliance was placed by learned counsel for the appellant on the  decision of this Court in Ram Utar Singh Bhaduria v. Ram Gopal  Singh & Ors., [1976] 1 SCR 191 and particularly, the  observations at page 200 of the said report. We are of the view that that decision  as well as the other decisions in this  connection cited before us are in connection with the elections to  the Lok Sabha or the State Assemblies and have no application to an indirect election like the election to the Rajya Sabha by Members of State Assemblies.     Rule  56  of the Election Rules deals with  counting  of votes.  The material portion of sub-rule (2) of Rule  56  of the Election Rules runs as follows: "56.  Counting of Votes. (1) The ballot papers taken out  of each ballot box shall be arranged in convenient bundles  and scrutinized. (2) The returning officers shall reject a ballot paper-- (a) x                      x (b)  If it bears no mark at all or, to indicate the vote  it bears a mark elsewhere than on or near the symbol of one  of the candidates on the face of the ballot paper or, it  bears a mark made otherwise than with the instrument supplied  for the purpose, or  ....  "     Rule  73  deals with the scrutiny of opening  of  ballot boxes  and  packets of postal ballot  papers.  The  material portion of sub-rule (2) of Rule 73 runs as follows: "(2) a ballot paper shall be invalid on which-- (a) the figure 1 is not marked; or (b)  the figure 1 is set opposite the name or more than  one candidate or is so placed as to render it doubtful to  which candidate it is intended to apply; or 777 (c) x                      x                      x (d) x                       x                       x (e)  there  is  any figure marked otherwise  than  with  the article supplied for the purpose."     It  would now be convenient to deal with the first  con- tention of the learned counsel for the appellant. As we have already  pointed  out, the said rejected  ballot  paper  was rejected  on  the ground that it was marked  otherwise  than with an article supplied for the purpose. As we have already pointed out, the figure 1 indicating the first preference in the said ballot paper was marked in green ink whereas in the ball-point pen kept in the voting booth with the ballot box, the  ink used was blue. The returning officer took the  view that  the  said marking of preference in green  ink  clearly established  that  it was done with a bail-point  pen  other than  the one which was supplied for marking the  preference and  hence the vote was invalid. It was urged by Shri  Jeth- malani  in  this  connection that although  the  marking  of preference  was done in green ink, there was no  doubt  that the  intention of the over concerned was to give  the  first preference  vote to the appellant. It was submitted  by  him that  the  fundamental rule of election law is  that  effect should be given to the intention of the voter and this could be done only by treating the vote as valid, as the intention of  the voter was quite clear. Mr. Jethmalani may  be  right when  he contends that the intention of the voter  could  be clearly  gathered  and it was to cast the  first  preference vote  for the appellant. However, it is not enough  for  the vote to be valid that it is possible to gather the intention

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of  the voter to vote for a particular candidate as  pointed out  by the Constitution Bench of this Court in the  leading case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and Others, [1955]  1  SCR  1104 at page 1132. This Court  held  that  ( 1132): "But  when the law prescribes that the intention  should  be expressed  in  a  particular manner, it can  be  taken  into account  only if it is so expressed. An intention  not  duly expressed is, in a court of law, in the same position as  an intention not expressed at all."     In the present case Rule 39(2)(b) which is applicable to the election petition before us clearly prescribes that  the vote  must be cast by the voter in accordance with the  said sub-rule  (2)  of Rule 39 of the Election  Rules,  with  the article  supplied for the purpose. Rule 39A(2)(b) read  with Rule 37A(2)(a) prescribes that an elector in giv- 778 ing his vote shall place on his ballot paper the figure 1 in the  space  opposite the name of the candidate for  whom  he wishes  to vote in the first instance with the article  sup- plied for the purpose. Hence, unless the ball-point pen kept with  the  ballot box is not to be regarded as  the  article supplied  for marking the preference, the intention  of  the elector in the present case cannot be given effect to as  it was  expressed in a manner inconsistent with the  provisions in  the rules. Clause (b) of sub-rule (2) of Rule 56 of  the Election  Rules provides inter alia that if a  ballot  paper contains  a mark made on it otherwise than with the  instru- ment  supplied for the purpose, the returning officer  shall reject  the said ballot paper. Rule 73 is included  in  Part VII  of  the  Election Rules and that Part  applies  to  the counting  of votes at elections by Assembly members.  Clause (e) of sub-rule (2) of Rule 73 of the Election Rules set out earlier that a ballot paper shall be invalid on which  there is  any figure marked otherwise than with the  article  sup- plied for the purpose. Rule 73 is directly applicable to the case  of the election in question and as aforesaid  it  pre- scribes  that  if on the ballot paper there  is  any  figure marked  otherwise  than with the article  supplied  for  the purpose,  the ballot paper shall be invalid.  Assuming  that the  voter in this case had expressed his intention  clearly by marking the figure 1 in green ink, he did so in violation of the express provisions of the Rules which have a statuto- ry force and hence no effect can be given to that intention.     It  was next argued in this connection that the  expres- sion "article supplied for the purpose" as used in the  said Rules 39A(2)(b) and 73(2)(e) was misconstrued by the Presid- ing  Officer and the High Court in the present case. It  was submitted  by  learned counsel for the appellant  that  Rule 56(2)(b)  was not complied with by making a  ball-point  pen available in the polling compartment near the ballot box for the  use of the electors in marking their preference as  law required  that  the Polling Officer should  personally  hand over  the bali-point pen to the voter before he proceeds  to the  voting booth with instructions to mark  his  preference with  that  ball-point  pen. He referred  to  the  hand-book dealing  with the procedure prescribed in elections  to  the Lok  Sabha and to the Legislative Assemblies  and  submitted that  the said procedure was applicable mutatis mutandis  to elections  to the Rajya Sabha and the Legislative  Councils. It was urged by him that the second proviso to clause (e) of sub-rule (2) of Rule 73 of the Election Rules provides  that if  the returning officer is satisfied that any such  defect as  is mentioned in the said clause has been caused  by  any mistake  or  fault on the part of the Presiding  Officer  or

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Polling  Officer,  the ballot paper shall  not  be  rejected merely on the ground of the said defect. It was contended by him that the Polling Officer was bound to hand over to 779 each  voter individually the ball-point pen to be  used  for marking  his  preference on the ballot paper.  He  submitted that  the duty of the Polling Officer was to hand  over  the ball-point pen to the voter to use the same for marking  his preference  and it was also his duty to take back  the  said pen from the voter after he has cast his vote and given  the same  to  the next voter. He urged that merely  providing  a bail-point  pen  for voting did not  constitute  substantial compliance  with Rule 39A(2)(b) or Rule 73(2)(e).  He  urged that the mistake in the present case, namely, marking of the preference with green ink on the ballot paper, had  occurred because  no bail-point pen was handed over as  aforesaid  to the  voter concerned. We are unable to accept  this  submis- sion. The procedure followed in an election to the Lok Sahba or the State Assembly is to give to the voter a rubber stamp for  voting with an arrow mark properly inked with  instruc- tions to use the same for voting before the voter enters the voting  compartment to put his mark against the name of  the candidate for whom he desires to vote and to take the rubber stamp  back from the voter when he comes out of  the  voting compartment  and to repeat this process for every voter.  In the first place, it must be noticed that there is no rule or standing order requiring the Presiding Officer or to  follow this procedure in the case of an election to the Rajya Sabha or  Legislative  Council  of a State. There  is  a  material difference between an election to Lok Sabha or a Legislative Assembly  which is a direct election with  one  constituency for each seat and only vote is to be cast and an election to Rajya Sabha which is an indirect election with the preferen- tial  system  of voting. Sub-rule (2) of Rule  39  which  is applicable  to  such an election to a  Legislative  Assembly provide  that the elector on receiving the ballot paper  has to  make  a  mark on the ballot paper  with  the  instrument supplied for the purpose on or near the symbol of the candi- date for whom he intends to vote. It is only in the case  of an election like this that it becomes necessary to provide a rubber stamp properly inked to the voter to mark his prefer- ence.  It must be remembered that in such an election  case, the number of voters or electors is extremely large and many of  them might be unfamiliar with the voting  procedure.  An election to the Rajya Sabha, on the other hand, is an  indi- rect election with multiple candidates’ constituency and the system  of  voting followed is the  preferential  system  of voting.  Rule 37A of the Election Rules which is  applicable to such an indirect election by virtue of the provisions  of Rule  70 provides that an elector in giving his  vote  shall place on his ballot paper figure 1 in the space opposite the name  of  the candidate for whom he wishes to  vote  in  the first  instance. This difference in the case of an  election to  the  Rajya Sabha makes it wholly  unnecessary  that  the Presiding Officer or the Polling Officer should hand over to 780 every  voter individually a bail-point pen to mark his  vote and  it  would quite wholly be adequate if the  article  for marking the preference, namely, a ball-point pen, is provid- ed  to the voter to use the same for marking his  preference or  if the pen is placed in such a way as to make  it  clear that  the marking of the preference is to be done with  that pen  and instructions given to use that pen for marking  the preference. The evidence of the returning officer, which has been accepted by the High Court is to the effect that  there

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were  two  voting compartments in the polling booth  and  in each of them a ball-point pen with blue ink was kept as soon as  an  elector  went into the polling  booth,  one  Polling Assistant  gave  him his identity slip and  another  Polling Assistant  gave to the elector printed copies of  Rules  37A and 39A of the Election Rules and a copy of the  guidelines. Then  the  elector  went to the first  Polling  Officer  who obtained  his  signature in the counter-foil of  the  ballot paper  and  instructed the elector that he should  mark  his preference on the ballot paper with the article kept for the purpose  inside  the  voting  compartment.  Another  Polling Officer  gave  the ballot paper to the voter and  again  in- structed him to go into the voting compartment and mark  the ballot  paper with the article kept there for that  purpose, fold the ballot paper before coming out and put in into  the ballot box in front of the Polling Officer. In the light  of this  evidence, we are of the view that the  ball-point  pen with blue ink kept in the voting compartment for marking the preference must be regarded as the article supplied for that purpose, namely, the purpose of the voter marking his  pref- erence  on  the ballot paper. It was  submitted  by  learned counsel for the appellant that it was possible that a  voter might  have used his own pen if the pen kept in  the  voting compartment  was not working and such a vote cannot  be  re- garded as invalid. We are not concerned with a case of  that kind  here as there is no evidence that in any  voting  com- partment  the ball-point pen kept there was not working.  It was  next urged that if a voter had used another  ball-point pen, that is, other than the one kept in the voting compart- ment containing the blue ink, it would not have been  possi- ble  to  find  out that the preference marked  with  such  a bail-point pen had been used for marking the preference  and not  the  pen supplied. This is of no  relevance  here.  The possibility  that in a given case a breach of the rules  may be  difficult to detect cannot lead to the  conclusion  that the  mandatory  requirement that preference  on  the  ballot paper  must  be  marked with the article  supplied  for  the purpose  should be regarded as not binding in law.  We  are, therefore, of the view that the said ballot paper was right- ly rejected by the returning officer and the arguments urged by learned counsel for the appellant in that contention must be rejected. 781     The  next point is regarding the three first  preference votes cast in favour of respondent no. 1 which were accepted by  the returning officer as stated earlier. In  respect  of these  three  votes,  the figure 1 is  marked,  not  in  the right-hand column opposite the name of respondent no. 1, but in the left-hand column containing the name of candidate and opposite the name of respondent no. 1. The appellant  unsuc- cessfully  objected  to the validity of these  three  ballot papers on the ground that the first preference had not  been marked  in the space provided for that purpose opposite  the name  of the candidate concerned, namely, respondent no.  1, as  required  by Rule 37A(2). It was  submitted  by  learned counsel for the appellant that the returning officer as well as  the  High Court were in error in holding that  the  said three  ballot papers were valid. We propose to discuss  this controversy  very shortly because we are in  full  agreement with  the reasoning and conclusions given by the High  Court in  its impugned judgment in coming to the  conclusion  that the returning officer was justified in rejecting the  objec- tions preferred by the appellant to the said three votes and holding  that the same were valid. The relevant  portion  of Rule  37A(2) of the Election Rules has already  been  quoted

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earlier.  Clause (a) of sub-rule (2) of that Rule only  pro- vides  that  the voter shall place on his ballot  paper  the figure i in the space opposite the name of the candidate for whom he wishes to vote in the first instance. it is signifi- cant  that  this  rule does not specifically  say  that  the figure 1 must be placed in the column earmarked for  marking the preference but only requires that the figure 1 should be placed  opposite the name of the candidate. Sub-rule (4)  of Rule 71 which is a definition runs as follows: "71(4):  ’first preference’ means the figure 1 set  opposite the  name  of  a candidate; ’second  preference’  means  the figure 2 set opposite the name of a candidate; ’third  pref- erence’ means the figure 3 set opposite the name of a candi- date, and so on;"     It  is significant that in this sub-rule also  there  is nothing to indicate that the preference must be indicated in the  column reserved for that purpose, the only  requirement being that the figure 1 should be written opposite the  name of the candidate. Similarly, sub-rule (2)(b) of Rule 73 only lays  down that if the figure 1 is set opposite the name  of more  than  one candidate or is so placed as  to  render  it doubtful  to  which candidate it applied, the  ballot  paper would  be  invalid. Sub-rule 12) of Rule 73 deals  with  the invalidity of ballot papers and that subrule nowhere  states that merely by reason of the preference being 782 marked  in the wrong column, if the marking is opposite  the name  of the candidate concerned, the ballot paper shall  be rendered  invalid. It is true that the column in  which  the preference  should  have been marked and intended  for  that purpose  was the column on the righthand side of  the  first column  where the name of the candidate was to be  put;  but there is no express provision to the effect that unless  the preference is marked in the correct column, the ballot paper would be invalid. In such a situation, the principle enunci- ated by this Court in several judgments and reiterated in S. Sivaswami v.V. Malaikannan & Ors., [1984] 1 SCR 104 that the primary  task of the Court in a case where the  question  is whether  the  ballot paper is invalid is  to  ascertain  the intention  of the voter, must be applied. In that case,  the Court  held that the ballot paper shall not be  rejected  as invalid  if it is reasonably possible to gather  a  definite indication from the marking so as to identify the  candidate in  favour of whom the vote had been intended to  be  given. This, of course, is subject to the rule that before a ballot paper  is  accepted as valid the ballot paper  must  not  be invalid under any other express provision and the  intention of  the  voter must not be expressed in a  manner  which  is contrary  tO  or totally inconsistent with the  manner  pre- scribed  under  the said Act or the Election Rules  for  ex- pressing  the same. In the case of the said, three votes  in question, the figure 1 was clearly marked opposite the  name of  respondent  no.  1, being the  candidate  concerned,  as required  by the express provision of the said Rule 37A  and the  intention  of the voter was clearly to cast  the  first preference  in favour of respondent no. 1. In these  circum- stances,  the  ballot papers were rightly  accepted  by  the returning officer as valid and the High Court was  justified in coming to the conclusion to which it has arrived.     In the result, the appeal fails and is dismissed. Howev- er,  considering  the facts and circumstances of  the  case, there will be no order as to costs. R.S.S.                                          Appeal  dis- missed. 783

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