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PETITIONER: GANESH NATORAO RAUT DUDHAGAONKAR

       Vs.

RESPONDENT: RAJANI SHANKARRAO SATAV & ORS.

DATE OF JUDGMENT:       09/12/1998

BENCH: M.Srivivasan, M.B.Shah

JUDGMENT:

       This   appeal   under   Section   116-A    of    the Representation of the People Act, 1951 calls in question the judgment  and  order made by the High Court of Judicature at Bombay (Aurangabad Bench) dated 12th March, 1996. Since, the controversy in this reads thus:

               "Whether the petitioner  proves  that  the            Returning  Officer  was  in error in declaring 71            ballot papers, referred to  in  para  12  of  the            petition as exhausted and he should have taken in            consideration   the   3rd,   4th,   5th  and  6th            preference  indicated  in  those  ballot  papers,            allegedly casted in favour of the petitioner?"

we  need to refer only to such of the facts as are necessary for consideration of the findings recorded  by  the  learned single Judge in the impugned order on that issue.

       The  Returning  Officer  declared  the final list of contesting candidates on 26th May, 1994  after  scrutinising the nomination papers, on the last date fixed for withdrawal of candidature.    The election was held on 15th June, 1994. The counting of votes commenced on 17th June,  1994  in  the morning  and  the  result  was  declared  on  the  same day. Respondent No.  1 was declared elected.  There were  in  all 424  Councillors of the Municipal Council and Zilla Parishad who comprised the constituency for the election.  As per the Conduct of Election Rules, 1961, the quota for  election  is fixed  by  dividing  total number of votes by two and adding one to it.  The total number of votes being 424,  the  quota in  the present case worked out to 212 + 1 = 213 None of the contesting candidates secured the  requisite  quota  of  213 Votes  and, therefore, none could be declared elected at the conclusion of  the  counting  in  the  first  round.     Two candidates, i.e., respondents 3 and 4 herein, did not secure even  a  single  preference  vote  and, therefore, they were excluded in the first round itself.  Out  of  the  remaining candidates,  respondents  2,5,6  and  7  came to be excluded during the  counting  in  the  subsequent  rounds.     While respondent  No.1 was declared elected, the appellant was the unsuccessful candidate.

       In the Election Petition challenging the election of the returned candidate, the plea raised  on  behalf  of  the appellant was that preferences recorded on the ballot papers

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in  favour  of the excluded candidates were also required to be counted in favour of the appellant and that had the  same been  so  counted,  the  appellant  would have been declared elected. The learned single judge of the High Court did  not agree and dismissed the election petition.

       We have heard learned counsel for the parties.

       The Conduct of Elections Rules  1961,  provides  for the manner of counting and in Rule 74, it lays down that the ballot papers should be arranged in parcels according to the first  preference,  recorded  for  each  of  the  contesting candidate  and  that  credit  be  given  to  the   concerned candidate  of the value of the ballot papers in his parcels. Rule 75(3) details the procedure when  at  the  end  of  the counting   no  candidate  can  be  declared  elected  having obtained the requisite quota.  That sub-rule reads thus:

          "Rule  75,(3)  :  If, at the end of any count, no            candidate can be declared elected, the  returning            officer shall -

          (a)  exclude from the poll the candidate who up            to  that  stage has been credited with the lowest            value;

          (b)  examine  all  the  ballot  papers  in  his            parcels and sub-parcels, arrange the  unexhausted            papers  in  sub-parcels  according  to  the  next            available preferences recorded  thereon  for  the            continuing candidates, count the number credit it            to  the  candidate  for  whom  such preference is            recorded transfer the sub separate sub-parcel  of            all the exhausted papers; and

          (c)  see   whether   any   of   the  continuing            candidates has, after such transfer  and  credit,            secured the quota."

       The  learned  single  Judge  of the High Court found that the Returning Officer had transferred 30 votes  to  the appellant  and  respondent  No.  1  on the basis of the next available preferences recorded  on  the  unexhausted  ballot papers.  Rest  of  the  ballot  papers were found exhausted, meaning thereby that there was no preference cast in  favour of  any  of  the  continuing candidates. The break-up of the transferred votes was that the appellant  secured  21  votes while   respondent  No.  1  secured  9  votes,  out  of  the transferred votes on  the  unexhausted  ballot  papers.  The learned  single  Judge  dealing with this aspect of the case observed:

          "Firstly, whenever a second preference was  given            in  favour  of the petitioner, those votes (21 in            Nos.)  have  already  been  transferred  to   the            petitioner.  9  votes  were  transferred  to  the            Respondent  No.  3  Other  ballot  papers  become            exhausted  ballot papers since further preference            was not in favour of any continuing candidate  or            there  was  no further preference cast at all. It            is not the case of  petitioner  that  second  and            further  preference  in  these  ballot papers was

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          given  to   any   continuing   candidate,   which            obviously  cannot  be  since  at  that  time only            election petitioner and returned  candidate  were            continuing candidates."

       The observations made by the learned single Judge of the  High  court are completely in accord with the scheme of the rules contained in Chapter 7 of the Conduct of Elections Rules contained in Chapter 7 of  the  Conduct  of  Elections Rules,  1961 and particularly of Rule 75 (3) read with Rules 71(1) and 71(8) of the  Conduct  of  Elections  Rules  which define "exhausted"  and  "unexhausted" ballot papers.  It is only such a ballot paper which can be transferred, which has not been exhausted.  Where a ballot paper has  already  been exhausted  since either further preference was not in favour of  any  continuing  candidate  or  there  was  no   further preference  cast  at  all,  any  preference recorded on such ballot papers could not be  transferred  to  any  candidate. The  71  votes  which the appellant claims to get counted in his favour fell in that category and were  rightly  declared as  "exhausted" and were not counted in favour of any of the continuing candidates because preference recorded  on  those ballot papers was in favour of the eliminated candidates.

       In Dattatraya  Eknath  Lanke Vs.  Returining Officer Amravati and Ors.  AIR 1986  Bombay  354  dealing  precisely with  the  scope  of Rule 75 (3) of the Conduct of Elections Rules, it was held by the learned single Judge of the Bombay High Court:

       "Thus,  ballot  paper  on  which   further            preference is recorded in favour of an eliminated            candidate   is   also   an  exhausted  paper  and            therefore  becomes  a   non-transferable   paper.            Undoubtedly  this  involves wastage of additional            preference only due to  unpredictable  chance  of            some  one being eliminated at a particular count,            but that cannot be helped."

       The above observations which were relied upon by the learned single Judge in the present case stand scrutiny  and are  based  on a correct interpretation of Rule 75(3) of the Conduct of Elections Rules.  The learned single Judge of the High  Court,  therefore,  neither  fell  in  any  error  nor mis-interpreted Rule 75(3) of the Conduct of Elections Rules to  find  that  counting had been properly done and 71 votes rightly  excluded  from  being  contend  in  favour  of  the appellant.  Despite  a  vigorous  attempt  made  by Mr.  A M Khanwilkar, learned counsel for the appellant,  we  are  not persuaded to take a contrary view.

       This  appeal,  therefore,  fails  and  is dismissed. There shall, however, be no order as  to  costs  insofar  as this appeal is concerned.