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P.H Pujar v. Dr. Kanthi Rajashekhar Kidiyappa And Others
Factual and Procedural Background
The appellant was declared elected to the Karnataka Legislative Assembly from the Bagalkot Assembly Constituency. Respondent 1, who lost by 138 votes, filed an election petition under Section 81 of the Representation of the People Act, 1951, challenging the result on the grounds of (i) improper reception, refusal or rejection of votes and (ii) non-compliance with statutory provisions falling under Section 100(1)(d)(iii) and (iv) of the Act.
A total of 88,353 votes were polled. The final tally showed 40,418 votes for the appellant and 40,280 for Respondent 1, with 3,872 ballot papers rejected as invalid and 59 ballot papers allegedly missing. Counting was conducted in two adjacent halls overseen separately by Returning Officer T. B. Koli and Additional Assistant Returning Officer N. P. Patil.
The High Court framed six issues concerning alleged procedural irregularities and ultimately set aside the appellant’s election, directing a complete recount after proper scrutiny. The Supreme Court stayed that order pending appeal, allowing the appellant to sit in the Assembly without voting rights.
Legal Issues Presented
- Whether the Returning Officer failed to record the total number of ballot papers in Part II of Form 16 before counting commenced, contrary to Rule 55-B of the Conduct of Elections Rules, 1961.
- Whether 59 ballot papers were missing at the final count without adequate explanation.
- Whether 3,872 ballot papers were wrongly rejected without giving Respondent 1’s counting agents a reasonable opportunity for inspection under Rule 56-B.
- If Issue III is answered affirmatively, whether inspection of the rejected ballot papers should be permitted to determine their validity and beneficiary.
- Whether counting of votes was conducted in accordance with the Election Rules.
- Whether any established irregularity materially affected the election so as to render the appellant’s election void.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court concurred with the High Court’s finding that significant irregularities occurred in judging “doubtful” ballot papers:
- The two officials supervising counting applied inconsistent criteria. Returning Officer Koli counted a ballot if any part of the voting mark fell within the candidate’s column, whereas Officer Patil rejected ballots unless more than 50% of the mark was within a candidate’s column.
- Such rejections contravened Election Commission instructions (Handbook for Returning Officers, Ch. XIV-B, para 24(m)) and the second proviso to Rule 56-B(2), both of which direct that a ballot should not be rejected merely because the mark is faint, smudged, or partially within a column if the voter’s intention is clear.
- Given that Respondent 1 lost by only 138 votes while 3,872 ballots were rejected, the Court considered that a limited recount focused on these rejected ballots was necessary to ascertain the true result.
The Court deferred consideration of the alleged 59 missing ballots and the broader legality of setting aside the election until after the recount report is received.
Holding and Implications
ORDER: The Court directed the Registrar of the Karnataka High Court to conduct a recount of the 3,872 rejected ballot papers, in the presence of counsel or representatives of both parties, following all applicable rules and Election Commission guidelines, and to submit a report to the Supreme Court by 30 November 2001.
Implications: The appellant’s status as a member of the Assembly remains provisional; he may participate but not vote. The final determination of the election’s validity—and any consideration of the 59 allegedly missing ballots—will depend on the outcome of the recount. No new legal precedent was announced; the order primarily enforces existing statutory and regulatory standards governing ballot validity.
Y.K Sabharwal, J.— The appellant was elected as a Member of the Karnataka Legislative Assembly. His election has been called in question by Respondent 1 who was defeated by a margin of 138 votes. In the petition filed by Respondent 1 in the High Court under Section 81 of the Representation of the People Act, 1951 (for short “the Act”), a declaration was sought that the election of the appellant was void on the grounds of improper reception, refusal or rejection of votes as also for non-compliance with the provisions of the Act, the Rules and the orders made thereunder as set out in sub-clauses (iii) and (iv) of clause (d) of sub-section (1) of Section 100 of the Act.
2. In all, 88,353 votes were polled. At the final counting, it was found that the appellant had secured 40,418 votes and the election petitioner (Respondent 1 herein) had secured 40,280 votes. The ballot papers rejected as invalid were 3872. According to Respondent 1, 59 ballot papers were also found to be missing.
3. The counting of the votes was conducted in two halls which were adjacent to each other. The Returning Officer T.B Koli was in charge of Hall No. 1 whereas Additional Assistant Returning Officer N.P Patil was in charge of Hall No. 2. They have been examined by the High Court as PW 7 and PW 8 respectively. One of the allegations of Respondent 1 in the election petition is that the number of ballot papers rejected could have been counted in his favour and that his counting agents were not provided with appropriate opportunity to inspect the ballot papers that had been rejected by the Returning Officer. The following issues were framed:
“(I) Whether the Returning Officer had failed to make entries of the total number of ballot papers found in the boxes brought from the polling stations in Part II of Form 16 before the counting was commenced, under Rule 55-B of the Conduct of Elections Rules, 1961, and the entries were straight away made in Form 20, declaring the election result?
(II) Whether it is a fact that in total, 59 votes were found to be missing at the final counting without any cogent explanation for the same?
(III) Whether the petitioner proves that the Returning Officer had rejected 3872 ballot papers without affording a reasonable opportunity of inspection to the counting agents of the petitioner as provided under Rule 56-B of the Conduct of Elections Rules, 1961?
(IV) If the answer to Issue III is found to be in the affirmative, then whether the rejected ballot papers are permitted to be inspected by the petitioner and the respondents for determination as to whether rejection was proper, and if not, then do the ballot papers found to be in order have to be taken into account and for whose benefit?
(V) Whether the petitioner proves that the counting of the votes was not done in accordance with the Rules?
(VI) Whether any of the grounds pleaded by the petitioner, if proved, can be held to have materially affected the impugned elections so as to declare the election of the 1st respondent to be void?”
4. The High Court has answered Issue I in favour of the appellant and the other issues against him. The election of the appellant has been set aside by the impugned judgment. The declaration of election has been held to be void and the High Court has directed the Returning Officer to re-count the ballot papers after properly scrutinizing the same and then declare the result of the election by following the mandatory provisions of law and the directions/instructions issued by the Election Commission.
5. The returned candidate is in appeal before us. During the pendency of the appeal, the operation of the impugned judgment and order has been stayed subject to the condition that the appellant may participate in the proceedings of the Assembly but he will not be entitled to vote on any resolution or bill.
6. One of the grievances of Respondent 1 as set out in the election petition was that 3872 ballot papers were illegally rejected as invalid by the Returning Officer though a number of ballot papers could have been counted in his favour and further that his counting agents were not provided with an opportunity to inspect the ballot papers which were rejected by the Returning Officer. On appreciation of the evidence, the High Court has observed that the Additional Assistant Returning Officer (PW 8) according to his own statement had rejected all doubtful ballot papers where he found swastik mark to be less than 50% in the candidate area. The High Court has concluded that clearly the Returning Officers had rejected even such doubtful ballot papers as invalid where they had possibly found faint undecipherable thumb impression or faint smudge impression on the ballot papers left inadvertently by the elector. Further, observing that the Assistant Returning Officer (PW 8) had rejected all doubtful ballot papers where swastik mark was found to be less than 50% in the candidate area, the High Court held that the Election Commission had clearly directed that the ballot paper should not be rejected only on the ground that the mark is only partially within the column of one candidate and the rest of the mark is in blank area which has been referred to as the shaded area by the Returning Officer in his deposition. The rejection was held to be wrong.
7. Para 24(m) of Chapter XIV-B of the Handbook for Returning Officers issued by the Election Commission provides not to reject any ballot paper simply because
“there is a faint undecipherable thumb impression or faint smudge impression on the ballot paper left inadvertently by the elector on the ballot paper while handling it because of the presence of some ink on his thumb which was put thereon for the purpose of obtaining his thumb impression on the counterfoil of the ballot paper”.
The second proviso to sub-rule (2) of Rule 56-B of the Conduct of Elections Rules stipulates that:
“Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.”
Thus, clearly the main object seems to be to find the intention of the voter and where the intention of the voter to vote for a particular candidate is evident from the way the ballot paper is marked by him, it shall not be rejected merely on the ground stated in the aforequoted proviso.
8. We have heard Mr Venugopal, learned counsel for the appellant and find no infirmity in the conclusion drawn by the High Court that infirmities have been committed by the Returning Officer in taking decision in respect of the doubtful ballot papers. The decision on the doubtful ballot papers had been taken by the two Returning Officers supervising counting in the two counting halls. The Returning Officer T.B Koli (PW 7) stated that if voting sheet (sic seal) was found partially in the candidate area and partially in the shaded area, then it was counted in favour of a particular candidate but the other Returning Officer, N.P Patil (PW 8) adopted a different standard. He deposed that if more than 50% of the voting seal was found to be in the shaded area, such ballot papers were rejected but if more than 50% of the voting seal was found to be in the column of a particular candidate, he allowed such vote to be counted in his favour. He deposed to have rejected the ballot papers on finding a voting seal less than 50% in the column of any candidate.
9. The election petitioner was defeated by a margin of 138 votes. The total number of ballot papers declared invalid was 3872. We agree with the conclusion of the High Court that infirmities were committed by the Returning Officer in this regard. The High Court has issued the following directions for re-counting of the ballot papers:
“For the above reasons, in order to do justice between the parties, re-counting appears to be imperative. Accordingly, I set aside the declaration of election of the 1st respondent to the Karnataka Legislative Assembly Election from 213, Bagalkot Assembly Constituency held on 5-9-1999 as void and direct the Returning Officer to re-count the ballot papers after properly scrutinizing the same and then declare the result of the election by following the mandatory provisions of law and the directions/instructions issued by the Election Commission.”
10. In our view, for the present only 3872 ballot papers deserve to be re-counted after proper scrutiny. After this exercise, it would be known as to how many of the said ballot papers deserve to be rejected and how many deserve to be accepted and in whose favour. Accordingly, we direct the Registrar of the Karnataka High Court to re-count the 3872 ballot papers in the presence of the counsel for the appellant and Respondent 1, and/or presence of parties or their representative. The re-counting shall be conducted as per the provisions of the relevant rules, regulations, instructions and guidelines. This exercise shall be completed and report sent to this Court by 30-11-2001.
11. In view of the aforesaid directions, for the present, we are not expressing any opinion on the aspect of 59 missing ballot papers and on the legality of direction in the impugned judgment for re-count of all ballot papers after proper scrutiny and also about the legality of direction declaring as void the declaration of the election in question. These aspects, if necessary, would be examined on receipt of the report of the Registrar. The matter shall be listed a week after the receipt of the report from the Registrar of the Karnataka High Court.
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