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PETITIONER: SHYAM SUNDER

       Vs.

RESPONDENT: SATYA KETU & ORS.

DATE OF JUDGMENT: 05/10/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR  923            1967 SCR  (1) 752

ACT: Representation  of the People Act, ss. 98, 116-A, 120,  122- Whether appeal under s. 116-A required to be accompanied  by ’decree  of  election  tribunal-whether  tribunal  to   pass ’decree’ or memorandum of costs. Conduct of Election Rules, 1961, r. 73(2)-First,  preference in  ballot  paper indicated by Roman numeral  1  instead  of Arabic  numeral-Whether  ballot paper valid-Whether  use  of words ’1’ or ’one’ after numeral ’1’ invalidates vote.

HEADNOTE: In an election to a seat to the U.P. Legislative Council  in accordance with the system of proportional representation by means  of  single  transferable  vote,  the  respondent  was declared  elected.  The appellant, who was also a  candidate challenged the election by an election petition.  He alleged that certain ballot papers counted in favour of  the respondent were invalid, because in violation of r. 73(2) of the  Conduct  of Election Rules, 1961, they bore  the  Roman numeral  I  instead of the Arabic numeral  1.  The  Election Tribunal upheld the contention.  The respondent appealed  to the  High  Court  and in that appeal the  appellant  took  a preliminary objection that the appeal should be dismissed as it  was  not accompanied by a copy of  a  decree  containing details  of  cost directed to be prepared by  the  Tribunal. The  High  Court  dismissed the  preliminary  objection  and allowed the appeal. In appeal to this Court, HELD : (i) The High Court rightly dismissed the  preliminary objection; in an appeal to the High Court under s. 116-A  of the  Representation  of the People Act, 1951, -all  that  is necessary to be filed is a copy of judgment of the  Tribunal and no more. [758 E] There is no provision in Part VI of the Act for the  passing of  a  decree: by the Election Tribunal.  Section  98  which refers to the decision of the Tribunal provides in  specific terms  that  the  Tribunal  shall  make  an  order  at   the conclusion  of  the trial and indicates the three  types  of orders that the Tribunal is entitled to make.  Section 116-A provides for an appeal not from a decree of the tribunal but from  an  order  passed by it, under s.  98.   What  may  be

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prepared  on  the basis of an order for costs  passed  by  a tribunal would be a memorandum of costs and not a  ’decree’. The fact that under s. 90(1) an election has to be tried  as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits does not mean that a decree should be prepared by the Tribunal in the same manner as a decree is prepared by a civil court  at the end of the trial of a suit. [756 B, H; 757 C] Rule  2 in Chapter XIV-A of the Rules of the Allahabad  High Court  with  respect  to appeals  from  orders  of  election tribunal  is also in accordance with the scheme of  the  Act and  does not require a copy of any decree to be filed  with the appeal. [758 B] (ii)Rule 73(2) of the Conduct of Election Rules, 1961  does not  require that the figure 1 must be marked in the  Arabic form.  Where figure 1 is marked on the ballot paper, whether it be in one form or other including the Roman form, that is in full compliance with the rule, and the ballot paper would not be invalid in the circumstances. [758 H; 759 G] 753 Any  other  word like "st" after the Roman figure I  or  the word  "one’ in brackets thereafter would not invalidate  the vote  for  the figure "I" would show the  first  preference. [759 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 204 of 1966. Appeal from the judgment and decree dated March 10, 1965  of the Allahabad High Court in F.A. No. 213 of 1964. G.   N. Dikshit, for the appellant. R.   K. Garg and S. C. Agarwal, for the respondent. The Judgment of the Court was delivered by Wanchoo,  J. 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.   Total number 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 a 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 invalid  votes  had  been counted in favour  of  Satya  Ketu inasmuch ballot papers on which figure I 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  Elections 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. Thus the main question for decision before the Election Tri- bunal (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

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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 I 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 peti- 754 tion  and declared the election of Satya  Ketu,  respondent, void  and further declared the appellant to be duly  elected from that constituency. Satya  Ketu  then  went in appeal to  the  High  Court,  and his  .Contention was that the Tribunal 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  over- ruled  the  preliminary objection and held that no  copy  of decree was .necessary in view of the provisions of s. 98 and s. 11 6-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  I would make the ballot paper on which  the  ’Roman numeral  I  was written invalid.  It  therefore  counted  as valid votes which bore the Roman numeral 1. 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. The first contention on behalf of the appellant is that  the appeal before the High Court was not maintainable as a  copy of  the decree was not filed along with the judgment of  the Tribunal.   It  appears that a direction was  given  by  the Tribunal to the effect that a decree containing the  details of  cost  should  be prepared, though  no  such  decree  was actually prepared at any time.  The question that falls  for decision  therefore  is whether a decree is required  to  be prepared in accordance with the judgment of the tribunal  in an election petition, and if so, whether it is necessary  to file a copy of such decree along with a copy of the judgment of  the tribunal when -filing on appeal under s. II  6-A  of the Act. It  is  necessary for this purpose to  examine  briefly  the scheme  of  the  Act  with  respect  to  election  petitions contained  in Part VI thereof. That part begins with  s.  79 which defines certain words in -the context of Parts VI, VII and  VIII.  Section 80 provides that no ,election  shall  be called in question except by an election petition  presented in  accordance with the provisions of Part VI.   Section  81 provides  for presentation of petitions before the  Election Commission, s. 82 for parties to the petition and s. 83  for contents of the petition.  Section 84 provides for relief to be claimed by the petitioner, s.   85  for procedure by  the Election Commission on receipt of an 755 election  petition  and s. 86 for  appointment  of  election

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tribunals  and  reference  of  election  petitions  to   the tribunal.   Section 88 provides for the place of trial,  and then comes s. 90 which provides for the procedure for trial. Sub-section (1) thereof lays down that- "Subject to the provisions of this Act and of any rules made thereunder  every  election petition shall be tried  by  the tribunal,  as nearly as may be, in accordance with the  pro- cedure applicable under the Code of Civil Procedure,1908  (5 of 1908) to the trial of suits." Sections 91 to 97 provide for certain other matters to which reference  is  unnecessary.   Section 98  provides  for  the decision of the tribunal, and lays down that- "At the conclusion of the trial of an election petition  the tribunal shall make an order- (a)  dismissing the election petition; or (b)  declaring  the election of all or any of  the  returned candidates to be void or (c)  declaring  the election of all or any of  the  returned candidates to be void and the petitioner or any other candi- date to have been duly elected;" It  is unnecessary to refer to ss. 99 to 116  which  provide for  certain matters.  Then comes S. II 6-A  which  provides for  appeals  against orders of  election  tribunals.   Sub- section (1) thereof lays down- An  appeal  shall lie from every order made  by  a  tribunal under  section  98 or section 99 to the High  Court  of  the State  in  which the Tribunal is situated."  Subsection  (2) thereof provides that- "The  High  Court shall, subject to the provisions  of  this Act,  have the same powers, jurisdiction and authority,  and follow  the same procedure, with respect to an appeal  under this  Chapter  as  if  the appeal were  an  appeal  from  an original decree. passed by a civil court situated within the local limits of its civil appellate jurisdiction." Section  120  provides for costs and lays  down  that  costs including  pleaders’ fees shall be in the discretion of  the tribunal.   Section 122 provides for execution of orders  as to costs and lays down that "any order as to costs under the provisions of this Part may be produced before the principal civil  court  of  original jurisdiction  within  the,  local limits  of  whose jurisdiction any person directed  by  such order  to pay any sum of money has a place of  residence  or business,  or where such place is within a presidency  town, before the court of small causes having jurisdiction  there, and such court 756 shall execute the order or cause the same to be executed  in the  same manner and by the same procedure as if it  were  a decree for the payment of money made by itself in a suit." It will be seen from this brief review of the provisions  of Part  VI of the Act that there is no provision  therein  for passing a decree by the election tribunal.  Section 98 which refers  to  the decision of the tribunal  says  in  specific terms  that  the  tribunal  shall  make  an  order  at   the conclusion  of  the trial and indicates the three  types  of orders  that the tribunal is entitled to make.  If  the  Act intended  that  tribunals  shall pass a  decree,  there  was nothing  to prevent the legislature from saying so in  terms in  s. 98.  Further s. 120 lays down that costs will  be  in the  discretion of the tribunal, and s. 122 shows  that  any order  as to costs shall be executed as if it were  a  money decree.   Now  if the Act intended that there  should  be  a decree  following  the judgment of an election  tribunal  it would not have been necessary to say in s. 122 that an order passed  by  the  tribunal with respect  to  costs  shall  be

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executed as if it were a money decree of a civil court.   It may be that the Tribunal in this case passed an order to the effect  that a decree for costs be prepared; but the use  of the  word  "decree" by the Tribunal was in  our  opinion  an error and what may be prepared on the basis of an order  for costs  passed by a tribunal would be a memorandum  of  costs which  can  be executed, if necessary, under s. 122  of  the Act.   Therefore,  when the Tribunal ordered that  a  decree containing the details of costs should be prepared all  that it means is that a memorandum of costs should be prepared in case  any party wanted it for purposes of execution under  s 122 of the Act.  Further it is not disputed that there is no provision  in  any  rule  framed  under  the  Act  for   the preparation  of a decree by the election tribunal.  What  is urged is that under s. 90(1), an election petition has to be tried  as nearly as may be in accordance with the  procedure applicable under the Code of Civil Procedure to the trial of suits and that, it is urged, necessarily means that a decree should  be prepared by the tribunal in the same manner as  a decree prepared by a civil court at the end of the trial  of a  suit.   We are of opinion that this conclusion  does  not follow from the language of s. 90. In the first place, s. 90 begins with the words "subject to the provisions of this Act and of any rules made thereunder", and in the next place, it enjoins that the procedure for the trial of suits should  be followed as nearly as may be.  Therefore the scheme of  Part VI with respect to election petitions and their trial  shows that  it  is not necessary to draw up a decree at  all,  and that  is undoubtedly so as we have already indicated  above. The  fact  that the trial has to be in accordance  with  the procedure  laid down for the trial of suits would not  bring in  those provisions of the Code of Civil  Procedure,  which require  the  preparation of a decree at the  conclusion  of trial  of  a suit, for s. 90(1) itself  indicates  that  the procedure should be as nearly as may be of the Code of Civil Procedure.  We 757 are  therefore of opinion that in view of the provisions  of the  Act  it is unnecessary to prepare a  decree  after  the conclusion  of  the trial of an election  petition;  section 90(1)  would not make those provisions of the Code of  Civil Procedure   which  require  the  preparation  of  a   decree applicable  to  the trial of an election petition,  for  the Code  of Civil Procedure has to be applied to such trial  as nearly  as may be and subject to the provisions of the  Act. Further we have no doubt that preparation of a decree is not necessary  after the conclusion of the trial of an  election petition. Let us then turn to s. I 16-A of the Act to see if there  is anything  in  that section which requires the  filing  of  a decree  along  with copy of the judgment  of  the  tribunal. Section 116-A inter alia provides for appeals against orders made by a tribunal, under s. 98, We have already referred to the  fact  that s. 98 does not speak of a  decree.   Section 116-A  provides for an appeal not from a decree of the  tri- bunal but from an order passed by it inter alia under s. 98. It  is true that sub-s. (2) of s. II 6-A lays down that  the High  Court shall follow the same procedure with respect  to such  an  appeal  as if the appeal were an  appeal  from  an original  decree passed by a civil court.  But that  in  our opinion  does  not mean that a copy of decree  is  necessary before  an  appeal under s. 116-A is maintainable,  for  the simple  reason  that  the scheme of the Act  shows  that  no decree  is necessary to be prepared by the tribunal  at  all and the appeal under s. 116-A (1) is also from an order  and

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not from a decree.  In this connection we may refer to s. 96 of the Code of Civil Procedure which provides for an  appeal from  an original decree.  That section inter alia  provides that  an  appeal shall lie from every decree passed  by  any court   exercising  original  jurisdiction  to   the   court authorised to hear appeals from the decisions of such court. It  will be seen that s. 96 of the Code of  Civil  Procedure provides for appeal from a decree in a suit, and that is why it  is  necessary  to prepare a decree;  the  same  is  also provided  in s. 33 of the Code of Civil Procedure  which  in terms  lays  down that "the court, after the case  has  been heard,  shall  pronounce judgment, and on  such  judgment  a decree shall follow".  We have no corresponding words in ss. 98  and  116-A  of the Act, and that shows that  it  is  not necessary to prepare a decree at the conclusion of the trial of an election petition and in consequence no copy of decree is  necessary to be filed when an appeal is filed  under  s. 116-A of the Act. In  this connection our attention is drawn to the  rules  of the  Court, 1952, framed by the Allahabad High  Court  under Art.  225 of the Constitution, relating to appeals.  Rule  8 of  Chap.   IX inter alia lays down that the  memorandum  of appeal shall be accompanied by a copy of the decree  against which the appeal is directed and a copy of the judgment upon which  such decree is founded.  This rule is  in  accordance with what the Code of Civil Procedure requires.  But Chapter XIV-A of the Rules of the Court was framed 758 by  the  Allahabad High Court specifically with  respect  to appeals from orders of election tribunals, and r. 2  thereof lays   down  that  every  memorandum  of  appeal  shall   be accompanied  by a certified copy of the order against  which the  appeal  is  directed, This is in  accordance  with  the scheme  of  the  Act, for the  Act  contemplates  an  appeal against an order of the election tribunal under s. 116-A  of the Act.  Further r. 14 of Chap.  XIV-A makes it clear  that other rules relating to first appeals contained in  Chapters IX, X, XI, XII and XIII will apply subject to the provisions of Chap.  XIV-A.  Therefore so far as the Rules of Court are concerned,  they do not provide for filing of a copy of  the decree  and  rightly  so, for no decree is  required  to  be prepared  at  the  conclusion of the trial  of  an  election petition by the tribunal. Reference  is also made to O.XLI r. I of the Code  of  Civil Procedure, which provides that a memorandum of appeal  shall be  accompanied by a copy of the decree appealed  from  and, unless  the  appellate  court dispenses  therewith,  of  the judgment  on which it is founded.  That rule however  cannot apply in full in the case of an appeal from an order of  the election  tribunal in an election petition, for, if the  Act does  not contemplate the framing of a decree and  does  not provide for an appeal from a decree, that part of O.XLI r. I which  requires the filing of a copy of the decree  appealed from, cannot in the very nature of things apply to an appeal under s. 116-A of the Act.  We are therefore of opinion that in  an  appeal under s. 116-A, all that is necessary  to  be filed  is  a copy of the judgment of the  tribunal,  and  no more.  The preliminary objection therefore fails. Coming  now to the merits of the appeal, the whole  argument of the appellant is based on r. 73(2) of the Rules, which is in these terms :- "(2) A ballot paper shall be invalid on which- (a)  the figure I is not marked; or (b)  the figure I is set opposite the name of more than  one candidate or is so placed as to render it doubtful to  which

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candidate it is intended to apply; or (c)  the  figure I and some other figures are  set  opposite the name of the same candidate; or (d)  there  is any mark or writing by which the elector  can be identified." What is contended is that r. 73(2)(a) requires that figure I must  be  marked  on the ballot paper, and if  that  is  not marked,  the  ballot  paper  would  be  invalid.   That   is undoubtedly  so.   But the rule does not say that  figure  I which  has  to be marked must be marked in what  are  called Arabic numerals or the International form of 759 Indian  numerals.  If that was the intention we should  have found  it  specifically mentioned in the rule.  It  is  true that  in r. 73(2) (a), the figure I is shown in the form  of Arabic  numeral,  but  that  does not  mean  that  the  rule intended  that  figure  1 on the ballot paper  can  only  be marked in the Arabic form and in no other.  It would in  our opinion  not  be right to read cl. (a) as laying  down  that figure I has to be marked in Arabic notation and if that  is not  so, the ballot paper would be invalid.  It seems to  us that what the rule provides is that the ballot paper has  to be   marked  with  figure  I  to  show   first   preference. Therefore,  if there is figure 1, first preference would  be shown irrespective of whether the figure was put down in the form of Arabic numerals or in any other form.  So long as it is  clear that figure I is marked on the ballot  paper,  the ballot paper would be valid and it is only when figure I  is not marked at all in any form whatsoever that it can be said that  the ballot paper is invalid.  We may mention that  the view we are taking has, now been made clear beyond doubt  by the addition of an Explanation to s. 73(2), which reads thus :- "The figures referred to in clauses (a), (b) and (c) of this sub-rule  may be marked in the international form of  Indian numerals or in Roman form or in the form used in any  Indian language, but shall not be indicated in words." We are of opinion that this must have been the intention  of the  rule as it stood before the Explanation was added,  for the marking of figure I on the ballot paper was necessary to indicate the first preference without which the ballot paper would  be  invalid.   If first preference  is  indicated  by marking the figure I in one form or other, that would in our opinion  be  in full compliance with r. 73(2) (a),  and  the ballot  paper would not be invalid.  It is only if figure  I is not marked at all in any form that the ballot paper would be invalid under r. 73(2)(a).  We agree with the High  Court that marking of figure I in Roman form is in full compliance with  r. 73(2) (a).  To say that Roman figures are  composed of  letters of the alphabet is in our opinion no  answer  to the argument, for it is well known how figures are marked in Roman form, and there is no dispute as to the Roman form  of the figure 1. We are therefore of opinion, where figure I is marked  on  the ballot paper, whether it be in one  form  or other  including the Roman form, that is in full  compliance with the rule, and the ballot paper would not be invalid  in the circumstances. Then it is urged that besides the Roman figure 1, some other words  were added in some cases.  Even if that were  so,  we are  of  opinion  that  r.  73(2)  (a)  would  not   justify declaration  of  a ballot paper as invalid so  long  as  the figure  I  is marked.  If any other word is put  down,  like "st", after the Roman figure I or the word "one"’ 760 in  brackets thereafter, that would not invalidate the  vote

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for  the  figure  "I"  would be  there  to  show  the  first preference,  and  those  words  can  be  ignored.   We   are therefore  of opinion that the view taken by the High  Court is correct. The  appeal  fails  and  is  hereby  dismissed  with  costs. R.K.P.S. Appeal dismissed. 761