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PETITIONER: SHRI SHANKAR BABAJI SAVANT

       Vs.

RESPONDENT: SHRI SAKHARAM VITHOBA SALUNKHE AND OTHERS

DATE OF JUDGMENT: 09/12/1964

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1965 AIR 1424            1965 SCR  (2) 403  CITATOR INFO :  D          1973 SC2077  (5)

ACT: The  Representation of the People Act (43 of 1951),  S.  100 (1)  (d) (iii) Scope of-Conduct of Election Rules, 1961,  rr 35  and 36-Presiding Officers power to disregard  errors  in election role-Extent of.

HEADNOTE: The appellant and respondent were candidates for election to the  Maharashtra  Legislative  Assembly.They  secured  equal number  of votes and so the returning Officer drew lots  and declared  the  appellant elected.  The respondent  filed  an election  petition alleging, that the identity of 19  voters was disputed by the polling agent of the appellant, that the presiding officer enquired and found that they were electors entered on the electoral roll, that they were then  supplied with  ballot  Papers but were not permitted to  insert  them into  the  ballot box after entering their votes,  that  the presiding  officer directed them to hand over to  him  those ballot  papers,  that  he forwarded them  to  the  returning officer  in a sealed envelope, that 18 of them had  recorded their  votes in favour of the respondent but  the  returning officer   did  not  count  them  and  that   therefore   the appellant’s  election was liable to be declared  void.   The Election  Tribunal dismissed   the petition, but  on  appeal the High Court set aside the election.  In the appeal to the Supreme Court, it was contended that : (i) the complaint was based upon a breach of s. 100(1) (d) (iv) of the Representa- tion  of the People Act, 1951, and the High Court  erred  in declaring the election void under s. 100(1) (d) (iii),  (ii) s.  100(1)  (d)  (iii) contemplates beache of  duty  by  the returning officer and does not cover an improper refusal  by the  presiding officer, (iii) the Tribunal erred in  holding that the appellant could not raise the objection that the 19 voters  were  not entitled to vote at all without  filing  a recrimination under s. 97 of the Act; (iv) the power of  the presiding officer to disregard errors in the electoral  roll is  circumscribed  by r. 35(4) of the  Conduct  of  Election

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Rules, 1961, and that under the rule he could overlook  only clerical  or printing errors and the errors with respect  to the 19 voters being in the surnames and father’s name,  they could not be said to be clerical or printing errors; and (v) the  refusal  of the 19 votes could not be  regarded  as  an improper  refusal  of  votes affecting  the  result  of  the election, because they never became valid votes. HELD : (i) The election petition definitely charged that the presiding  officer improperly prevented the 19  voters  from inserting  the  ballot  papers into  the  ballot  box.   The pleadings  were  therefore broad enough to cover a  case  of breach of s. 100(1) (d) (iii). [407 B] (ii) The  sub-section covers not only an improper  rejection of votes by a returning officer at the time of counting, but also an improper refusal of a vote by the presiding  officer at the time of polling. [412 A-B] (iii)     In an enquiry under s. 100(1)(d)(iii) with  regard to improper refusal of votes, the respondent to the election petition  is entitled to dispute the identity of the  voters without filing any recrimination under s.97. [4O7 E] (iv) Errors with regard to surnames or father’s name are not mere clerical errors, because a clerical error connotes some error  arising from a slip of the pen or some mistake  by  a clerk or a transcriber in writing or 404 copying.   But,  while under the specific provisions  of  r. 35(4) of the Conduct of Election Rules, 1961, the  presiding officer  must disregard merely clerical and printing  errors in  the exercise of his general powers of enquiry under  rr. 35  and 26 he 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.  It is still open to him to satisfy the presiding  officer at the polling station that he is  really the  elector  to  whom the  entry  relates.   The  presiding officer being satisfied that the 19 voters were the electors referred  to in the relevant entries, and that the  surnames and father’s name given in them were eroneous and should  be disregarded rightly issued ballot papers to them. [411 B, E- F] (v)  An improper refusal to receive a vote which prevents it from  becoming  a valid vote and from its being  counted  in favour of the defeated candidate in whose favour it was cast is  an improper refusal of a vote within the meaning of  the sub-section. [413 C] In  the instance case there was an improper refusal  by  the presiding officer to receive the 18 votes cast in favour  of the  respondent.  The returning officer rightly  refused  to count them because, to become a valid vote, the ballot paper must be inserted into the ballot box.  Had those votes  been properly  received,  the result of the election  would  have been  different.   Since  the result  of  the  election  was materially affected by the improper refusal, the election of the appellant was rightly set aside. [413 P-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1964. Appeal  by special leave from the judgment and  order  dated June 26, 1963. of the Bombay High Court in Appeal No. 98  of 1963 from Original Decree. A.   V.   Viswanatha Sastri, I. B. Dadachanji, O. C.  Mathur and Ravinder Narain. for the appellant. P.   D. Kamerkar, K. Rajendra Chaudhuri and K. R. Chau-

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dhuri,    for respondent No. 1. D.   R. Prem and B. R. G. K. Achar, for respondents Nos. 5 and 6. The Judgment of the Court was delivered by Bachawat,  J.  Shankar Babaji Savant  and  Sakharam  Vithoba Salunkhe  were  candidates for election to  the  Maharashtra Legislative  Assembly  from the Mahad  Constituency.   There were  four  other  candidates  in  the  field.   Savant  and Salunkhe  got  equal  number  of  valid  votes.   The  other candidates  got  much lesser votes.  The  Returning  Officer drew lots and declared Savant duly elected.  Salunkhe  filed an  election petition claiming that the election  was  void, and  that  he,  having received the majority  of  the  valid votes.  should  be  declared  duly  elected.   The  Election Tribunal  at Alibag dismissed the petition.  On appeal,  the Bombay  High Court declared that the election of Savant  was void, and dismissed the rest of the claim made by  Salunkhe. Savant                             405 now  appeals  by  special leave.  The  High  Court  rejected Savant’s  preliminary contention that the first  appeal  was not  maintainable  on  account of  non-compliance  with  the provisions  of s. 119A of the Representation of  the  People Act, 1951.  This contention is no longer pressed before us. The complaint of Salunkhe that the Returning Officer  impro- perly  received  and counted in favour of  Savant  a  postal ballot paper with the writing "Shankar Babaji Savant" on its back  instead of rejecting it on the ground that it  bore  a writing  by  which  the  elector  could  be  identified   is concluded by the concurrent finding of fact that the elector could  not be identified by the writing on the back  of  the ballot  paper.  The particular complaint of Salunkhe  is  no longer pressed, and may be left out of consideration. The  major  complaint  of  Salunkhe  was  that  Kolhe,   the Presiding Officer for the polling station at Village  Turveh Khurd,  improperly prevented 19 voters from inserting  their ballot  papers  into the ballot box.  On  the  polling  day, those  19 voters wanted to vote in favour of Salunkhe.   The polling  agent of Savant challenged those voters,  disputing their  identity.  For each challenge he deposited a  sum  of Rs.  2 in cash with Kolhe.  On enquiry, Kolhe was  satisfied that  all  the  19  voters  were  electors  entered  on  the electoral roll, and the challenges as to their identity were not established.  The voters were then supplied with  ballot papers,  and they duly entered their votes on those  papers. They  then  wanted to insert their ballot  papers  into  the ballot  box,  but Kolhe did not permit them to  do  so,  and instead, directed them to hand over those papers to himself. On  taking possession of the ballot papers, Kolh  kept  them inside a sealed envelope and forwarded them to the Returning Officer.   Salunkhe  succeeded in  establishing  this  major complaint.   The Election Tribunal and the High  Court  have concurrently found that. in the circumstances, the Presiding Officer wrongfully took possession of the ballot papers, and thus prevented the voters from inserting those ballot papers into the ballot box.  None of the ballot papers was returned by the voters to the Presiding Officer under R. 41(2) of the Conduct  of  Election  Rules.  1961.   All  the  19   voters indicated their preferences on the ballot papers before they were  taken  possession  of by  the  Returning  Officer.   A scrutiny of the ballot papers shows that 18 voters  recorded their  votes on their ballot papers in favour  of  Salunkhe, and  one  recorded his vote in favour of a  candidate  other than  Savant  and  Salunkhe.  The  ballot  papers  were  not tampered with after they were taken possession by the

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406 Presiding  Officer.  The Returning Officer received  the  19 ballot  papers  inside the sealed envelope, but he  did  not count  them, as they were not taken out of the  ballot  bax. The  question  is whether, in the  circumstances,  Sanvant’s election is liable to be declared void. The charge of Salunkhe that the Returning Officer improperly refused to count these 19 votes cannot be sustained.  The 19 ballot papers were not valid votes.  They never went  inside the  ballot  box.  Rules 39, 44, 47, 56, 57 and  64  of  the Conduct  of  Election  Rules, 1961  show  that  the  elector casting  his  vote  must insert the ballot  paper  into  the ballot  box, at the close of the polling the  ballot  papers contained in the ballot box are transmitted by the Presiding Officer  to the Returning Officer in sealed covers or  bags; the  ballot papers taken out of the ballot box  are  finally scrutinised by the Returning Officer, those not rejected are counted as valid votes and the candidate to whom the largest number of valid votes had been given is declared elected  by the  Returning Officer.  All these provisions indicate  that in  order to become a valid vote the ballot paper  recording the  vote  must be inserted by the elector into  the  ballot box.   In the circumstances, the Returning  Officer  rightly refused to count the 19 ballot papers as valid votes. The Election Tribunal held that the election of Savant could not  be  set  aside  under  s.  100  (1)  (d)  (iv)  of  the Representation of the People Act, 1951 on the ground of  the failure  of the voters to insert the ballot,papers into  the ballot box in accordance with R. 39(1)(e) of the Conduct  of Election  Rules, 1961.  This conclusion is correct, but  the High  Court rightly pointed out that the  Election  Tribunal was in error in focussing its attention on the provisions of s. 100(1) (d) (iv) of the Representation of the People  Act, 1961  and  R. 39 of the Conduct of Election Rules.   The  19 voters  did  not voluntarily refrain  from  inserting  their ballot  papers  into the ballot box.  The High  Court  found that by refusing to allow them to insert those ballot papers into  the  ballot  box,  the  Presiding  Officer  improperly refused to receive their votes and this improper refusual of votes  was  a ground of declaring the election  to  be  void under  s.  100(1)  (d) (iii) of the  Representation  of  the People   Act,  1951.   Mr.  Viswanatha  Sastri   strenuously challenged this Finding. Mr.  Sastri  contended that the issues before  the  Election Tribunal  as also the memorandum of appeal before  the  High Court show that the complaint of Salunkhe was based upon the breach 407 of s. 100 (1) (d) (iv) and not upon the breach of s. 100 ( 1 ) (d) (iii), and the High Court was in error in making out a new  case for Salunkhe.  We are not inclined to accept  this argument.   All  the  relevant  facts are  set  out  in  the election petition.  The petition definitely charged that the Presiding  Officer improperly prevented the 19  voters  from inserting  the  ballot  papers into  the  ballot  box.   The pleadings  are  broad enough to cover a case  of  breach  of s.100(1)(d)(iii). Mr. Sastri next contended that there was no improper refusal of votes, because the 19 voters were not entitled to vote at all.   He argued that the 19 voters were not identical  with the  electors  referred to in the relevant  entries  in  the electoral roll.  In this connection, he rightly pointed  out that  the  Election Tribunal erred in  holding  that  Savant could   not   raise   this  objection   without   filing   a recrimination  under  s.  97 of the  Representation  of  the

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People  Act,  1951  and also that the High  Court  erred  in assuming  that  the  objection as to the  indentity  of  the voters  was not raised at the polling on behalf  of  Savant. We  find  that the objection was distinctly  raised  by  the polling  agent  of Savant.  We also think that  the  enquiry under s. 100(1)(d)(iii) is outside the purview of s. 97.  On an  enquiry  under  s.  100 (1) (d)  (iii)  with  regard  to improper  refusual of votes, the respondent to the  election petition  is entitled to dispute the identity of the  voters without  filing any recrimination under s. 97.  In  view  of this  erroneous  approach of the Election Tribunal  and  the High  Court, Mr. Sastri justifiably asked us to examine  the evidence on this point.  We have examined the evidence  with the  assistance of Mr. Sastri, and on such  examination,  we are  satisfied  that the 19 voters are  identical  with  the electors  referred  to  in  the  relevant  entries  in   the electoral roll.  The names of the 19 voters and the names of the electors shown in the relevant entries are as follows : Name of Elector as appearing in the electoral roll (1) 1.   Utekar Nanu Daulat 2.   Dalvi Babaji Sitaram 3.   Malakar Anandibai Pitambar 4.   Malakar Maalti Ramachandra 5.   Dalvi Rajaram Ramachandra 6.   Malakar Parshuram Ranchod 7.   Dalvi Ramchandra Tukaram 8.   Dalvi Sakharam Shakar 9.   Dalvi Muktabai Govind 10.   Dalvi Bhagubai Ramchandra 11.  Dalvi Shantabai Shankar 12.  Dalvi Parvati Shankar 13.  Dalvi Muktabai Babaji 14.  Dalvi Ramabai Pandurang Name of voter (2) Utekar Nanu Ganpat. Utekar Babaji sitararm. Shet Anandibai Pitambar. Shet Malati Ramachandra. Utekar Rajaram Ramchandra. Shet Parsram Rauchhod. Utekar Ramachandra Tukaram. Utekar Sakhram Shankar Utekar Muktabai Govind Utekar Bhagubai Ramchandra Utekar Shantabai Utekar Parvati Shankar Jadhav Muktabai Babaji Utekar Ramabai Sup./65-10      408      (1) 15. Dalvi Draupadibai Arj nn   Utekar Drdupadibai Arjuna 16. Dalvi Krishnabai Babaji    Utekar Krishnabai Babaji 17. Dalvi Sitabai Jivaji       Utekar Sitabai Jivaji 18. Dalvi Ganpat Dagdu         Utekar Ganpati Dagdu 19. Dalvi Sittram Babaji       Utekar Sitaram Babaji In  the  first  item, the father’s  name  appearing  in  the electol  roll  is "Daulat", and that given by the  voter  is "Ganpat".   In the rest of the items, there is a  difference in  the  surname appearing in the electoral  roll  and  that given  by  the voter; in some "Dalvi" appears  in  place  of "Utekar",  in some ... Shet" in place of "Malakar",  in  one

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"Jadhav"  in  place of "Dalvi".  In item  1  1  additionally "Shankar",  the name of the voter’s husband, appears in  the electoral  roll,  but at the polling station, the  voter,  a Hindu woman, refrained from giving her husband’s name.   The other parts of the voters’ names as also their age and house numbers  tally  with  those given in the  entries.   At  the polling, no other person claimed to be the elector  referred to  in  any of the entries.  The Police Patel  on  the  spot identified  the  19 voters as the electors  referred  to  in those entries.      In  all  these circumstances,  we  think that the identities of the    voters   are    satisfactorily established, and the surnames and the father’s name given in the  entries  are merely inaccurate  descriptions  of  those voters. Mr.  Sastri then contended that the power of  the  Presiding Officer to disregard errors is circumscribed by r. 35(4)  of the Conduct of Election Rules, 1961, that under that rule he could  overlook  only clerical or printing  errors  and  the errors  in  this case could not be said to  be  clerical  or printing errors.  The High Court held that under R. 35(4) of the  Conduct of Election Rules, the Presiding Officer  could overlook merely clerical or printing errors, that the  error in  the  father’s  name of the first  voter  ,could  not  be regarded as merely clerical or printing error and the ballot paper  was wrongly issued to him.  But the High  Court  also held that the errors in the surnames of the other 18  voters were  merely  clerical  errors and the  ballot  papers  were rightly issued to them.  Mr. Sastri challenged this finding. He  contended  that  the errors could  not  be  regarded  as clerical  errors.   We  think  that  he  is  right  in  this contention.   A clerical error connotes some  error  arising from a slip of the pen or some such thing, some mistake by a clerk or a transcriber in writing or copying.  We are unable to  say that the errors with regard to the surnames  or  the father’s name were merely clerical errors.  But the question still  remains  whether the Presiding Officer  could,  apart from R 34(4), disregard errors other than merely clerical or printing 409 errors.   Mr.  Sastri  submitted  that  the  power  of   the Presiding Office in this respect was circumscribed by R. 3 5 (4)  and  he  could  not reject  errors  other  than  merely clerical   or  printing  errors.   He  contended  that   the electoral roll was conclusive with regard to the name of the elector,  an  elaborate  procedure  is  prescribed  by   the Representation of the People Act, 1950 and the  Registration of  Electors Rules, 1960 for correction of an entry  in  the electoral roll and any mistake in the name appearing in  the entry  could be corrected only by recourse to the  machinery prescribed  therein,  and  at the time of  the  polling  the Presiding  Officer could overlook only clerical or  printing errors.   Our  attention was drawn to the fact that  in  our electoral  law  there is no provision  corresponding  to  s. 39(5) of the English Representation of the People Act,  1949 (12  & 13.  Geo. 6, c. 68), which provides that no  misnomer or  inaccurate description of any person or place  named  in the  register of parliamentary electors and other  documents shall affect the full operation of the document with respect to that person or place in any case where the description of the  person or place is such as to be  commonly  understood. In  view of the elaborate argument of Mr. Sastri.  we  shall briefly  examine  the  scheme of our electoral  law  on  the subject. Part  III  of  the Representation of  the  People  Act  1950 provides for the preparation of electoral rolls for assembly

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constituencies.   Sections 21 to 25 of this Act provide  for the  preparation  and yearly revision  of  electoral  rolls, correction of entries therein, inclusion of names of persons whose  names  are  omitted  and  for  applications  to   the electoral  registration  officer  in  this  behalf  and  for appeals  from his orders.  In particular, s. 22(a)  provides for correction of any entry which is erroneous or  defective in  any particular.  Rules 10 to 27 of the  Registration  of Electors  Rules,  1960 provide for the  publication  of  the draft  roll, lodging of claims and objections in respect  of the draft roll, disposal of those claims and objections  and consequential  orders and appeals, final publication of  the rolls  and  the  procedure for  correction  of  entries  and inclusion  of names on applications under ss. 22 and  23  of tile Representation of the People Act, 1950.  Rule 13(3) and Form  No. 8 show that a person to whom an entry relates  may ask   for   correction  of  any  incorrect   particular   or particulars in the entry.  Rules 22(2), 23 and 26 show that, on  final  publication, the roll together with the  list  of amendments  made  by the registration  officer  becomes  the electoral roll of the constituency, subject to such  further amendments  as  may  be  necessary to  give  effect  to  any subsequent  order  disposing  of claims  and  objections  or direct- 410 ing  correction of entries and inclusion of names.   Section 2(e)  of  the Representation of the People Act,  1951  shows that  an  elector in relation to a constituency  must  be  a person  whose name is entered in the electoral roll of  that constituency for the time being in force.  Section 62 (1) of this  Act provides that no person who is not, and except  as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.  Section  27 of  the Act imposes upon the Presiding Officer at a  polling station the duty to see that the poll is fairly taken.  Part IV  of  the  Conduct of Election Rules,  1961  provides  for voting in Parliamentary and Assembly Constituencies.   Rules 35, 36, 37 and 38 provide for the identification of electors at  the  polling station, disposal of  challenges  to  their identity,  safeguards  against   personation  and  issue  of ballot  papers  to  the electors.   Rule35(1)  empowers  the Presiding Officer to employ such persons as he thinks fit to help  in the identification of the electors.  Rule 3  5  (2) provides  that as each elector enters the  polling  station, the  Presiding  Officer shall check the elector’s  name  and other  particulars with the relevant entry in the  electoral roll  and  then call out the serial number, name  and  other particulars  of  the elector.  Rule 35(4) provides  ,hat  in deciding the right of a person to obtain a ballot paper  the Presiding Officer shall overlook merely clerical or printing errors in an entry in the electoral roll, if he is satisfied that such person is identical with the elector to whom  such entry relates.  Rule 36 provides for a summary enquiry  into a  challenge of the identity of any person claiming to be  a Particular  elector.   Rule  36 (2) (b)  provides  that  the Presiding  Officer  shall  read the relevant  entry  in  the electoral roll in full and ask him whether he is the  person referred  to in that entry.  Rule 36(3) shows that  evidence may be given by the challenger and the person challenged  on the question of identity and the Presiding, Officer may  put to  the  person challenged any questions necessary  for  the purpose  of establishing his identity.  Rule 36(4)  provides that  if after the enquiry, the Presiding Officer  considers that  the challenge is not established, be shall  allow  the

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person  challenged  to vote, and if he  considers  that  the challenge   is  established,  he  shall  debar  the   person challenged from voting. This  brief  survey of the electoral law  reveals  that  the elective  franchise of a citizen is a valuable  right.   The elector  is  entitled to the inclusion of his  name  on  the electoral roll so that he may vote at the election.  If  the entry in the electoral roll relating to him is erroneous  or defective in any material particular, he may 411 obtain correction of the error or defect by recourse to  the machinery provided in the Representation of the People  Act, 1950  and the Registration of Electors Rules, 1960.  In  the absence of such a correction he runs the risk of a challenge at the polling station and may be debarred from voting if he fails to establish his identity.  But the error or defect in the  entry does not disqualify the elector from voting.   It is still open to him to satisfy the Presiding Officer it the polling  station that he is really the elector to  whom  the entry relates.  Rule 35(4) of the Conduct of Election Rules, 1961  makes  it  obligatory  on  the  Presiding  Officer  to overlook  merely  clerical  or  printing  errors  if  he  is satisfied about the identity of the elector.  But the  power of the Presiding Officer to disregard errors in the entry is not  rigidly  circumscribed by r. 35(4).  Rules  35  and  36 confer upon the Presiding Officer was satisfied ample  power of  enquiry  into the identity of the elector.  If  on  such enquiry  he  is satisfied that the claimant  is  really  the elector referred to in the entry and some parts of the entry are incorrect or erroneous descriptions of the claimant,  he may disregard those errors and issue the ballot paper to the claimant.   We are not inclined to construe Rules 35 and  36 narrowly  and to hold that his power to disregard errors  in the  entry  on  such an enquiry is  limited  to  overlooking merely  clerical or printing errors.  In our opinion,  under the  specific  provision R. 35(4) he must  disregard  merely clerical  and  printing errors, and in the exercise  of  his general  powers  of enquiry under Rules 35 and  36,  he  may disregard other errors if he is satisfied about the identity of the elector.  In the instant case, the Presiding  Officer was satisfied that the 19 voters were the electors  referred to in the relevant entries and the surnames and the father’s name given in them were erroneous and should be disregarded. In  the circumstances, we hold that the ballot  papers  were rightly issued to all the 19 voters.  We think that on  this point  no  distinction can be made between an error  in  the father’s name and an error in the surname of the elector. In  the above discussion, we have purposely  refrained  from referring to s. 36 of the Representation of the People  Act, 1951 and sub-ss. (44) and (7) thereof. as we do not  propose to  consider  the  effect of a  misnomer  or  an  inaccurate description  of a candidate in a nomination paper.  In  this case, we are concerned with the question of the effect of an error in the name of the elector on the elector roll, on the right of the elector to vote at the election. Mr.   Sastri  next  contended  that  s.  100(1)  (d)   (iii) contemplates  breaches of duty by the Returning Officer  and the improper refusal 412 of  a  vote by the Presiding Officer at  a  polling  station cannot be considered to be a breach of s. 100 (1) (d) (iii). This  contention must be rejected.   Section  100(1)(d)(iii) covers  not  only  an  improper  rejection  of  votes  by  a Returning  Officer  at  the time of counting,  but  also  an improper  refusal of a vote by the Presiding Officer at  the

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time  of polling.  We have no doubt that Kolhe’s conduct  in not  allowing the 19 voters to place their ballot papers  in the  ballot box amounts to improper refusal of votes  within the meaning of s. 100 (1) (d) (iii). Mr. Sastri next contended that an improper refusal of  votes contemplated  by  s. 100(1)(d)(iii) must  mean  an  improper refusal  of  valid votes and as the 19 ballot  papers  never became  valid  votes, their refusal cannot  be  regarded  as improper  refusal  of  votes affecting  the  result  of  the election  under  s.  100(1)(d) (iii).  In  support  of  this argument,  he strongly relied on the following  observations of Venkatarama Aiyar, J. in Hari Vishnu Kamath v. Syed Ahmed Ishaque and others(1) :               "The  expression ’the result of the  election’               in  section 100 (1) (c) must, unless there  is               something   in   the  context   compelling   a               different interpretation, be construed in  the               same  sense  as in section 66,  and  there  it               clearly  means the result on the basis of  the               valid votes......               It is argued with great insistence that as the               object  of the Election Rules is  to  discover               the intention of the majority of the voters in               the choice of a representative, if an  elector               has  shown  a clear intention to  vote  for  a               particular candidate, that must be taken  into               account under section 100(8) (c), even  though               the vote might be bad for non-compliance  with               the formalities.  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 Kamath’s case(1), ballot papers not bearing the requisite marks were received and counted as valid votes in breach  of the   mandatory   provisions   of   R.   47(1)(c)   of   the Representation  of  the  People (Conduct  of  Elections  and Election  Petition)  Rules, 1951, and this Court  held  that votes  received  in  breach of R. 47 (1) (c)  could  not  be regarded  as  valid votes and must be disregarded  and  only valid votes could be counted for declaring the (1)  [1955]  S.C.R.1104, 1131 and 1132. 413 result of an election.  The complaint in that case was  that there was an improper reception of votes, and the Court  was concerned only with the question whether invalid votes could be counted for declaring the result of the election, and the observations  of Venkatarama Aiyar, J. must be read in  that context.  The court was not there considering the case of an improper  refusal  of  votes.  A vote  which  is  improperly refused  is a vote, though not a valid vote.  From the  time when  the elector marks his vote on the ballot  paper  until the vote is counted by the Returning Officer, the voting  is one  continuous  process.   An improper refusal  of  a  vote affects the election in two ways.  It prevents the vote from becoming a valid vote and from its being counted as a  valid vote in the favour of the defeated candidate in whose favour the  vote  was given.  It also affects the election  of  the returned  candidate, because if the votes were received,  he might  not have been returned at all.  It follows  that  the High Court rightly took into account the improper refusal of the  19  votes for the purpose of ascertaining  whether  the election  of  Savant is void.  But the 19  votes  not  being

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valid  votes  could  not be looked at  for  the  purpose  of declaring that Salunkhe got the majority of the valid votes. The High Court rightly refused to declare that Salunkhe  had received the majority of valid votes, and there is no cross- appeal by Salunkhe before us. Out  of the 19 votes which the Presiding Officer refused  to receive,  18  votes were cast in favour  of  Salunkhe.   The remaining  one vote was cast in favour of a candidate  other than  Savant and Salunkhe.  Savant alleged that  two  ballot papers  and  27  or 29 postal  ballot  papers  were  wrongly rejected  and should have been counted in his  favour.   The High  Court  has  found that one ballot  paper  was  wrongly rejected,  and should have been counted in his favour.   The High Court rejected the rest of his charge, and they are  no longer pressed before us.  We find that Savant and  Salunkhe got equal number of valid votes.  There was improper refusal to  receive 18 votes cast in favour of Salunkhe.  There  was also  improper  rejection  of one vote  cast  in  favour  of Savant.   Had the 18 votes cast in favour of  Salunkhe  been received,  the  result  of  the  election  would  have  been otherwise.  We thus find that the result of the election was materially  affected  by the improper refusal  of  of  those votes.   The  High Court, therefore, rightly  declared  that Sanvant’s election was void. In the result, the appeal fails and is dismissed with costs.