GANESH NAGARAO RAUT DUDHAGAONKARversusRAJANI SHANKARRAO SATAV AND ORS.

           GANESHNAGARAORAUTDUDHAGAONKAR                                          A
                                      v.
              RAJANI SHANKARRAO SATAV AND ORS.

                           DECEMBER 9, 1998

  [DR. A.S. ANAND, CJ., M. SRINIVASAN AND M.B. SHAH, JJ.]                         B

      Election-Counting-Exhausted ballot paper-Treatment of-Ballot
papers marked in favour of eliminated candidates and not containing any
preference in favour of any of the continuing candidates-Held, Such ballot
papers were rightly declared as exhausted and not counted in favour of any        C
of continuing candidates-Conduct of Election Rules, 1961, Rules 75(3),
71(/), 71(8) and 74.

      There were in all 424 Councillors of the Municipal Council and Zilla
Parishad who comprised the constituency for election. As per the Conduct
of the Election Rules, 1961, the quota for election was fixed by dividing total   D
number of votes by two adding one to it. The total number of votes being 424,
the quota in the present case worked out to be 212+1=213. None of the
contesting candidates secured the required quota of213 votes and, therefore,
none could be declared elected at the conclusion of the counting in the first
round. Two candidates, respondents Nos. 3 and 4 who did not secure even a         E
single preference vote, were excluded in the first round itself. While out of
the remaining candidates, who were excluded in the subsequent round of
counting, respondent No.I was declared elected, while the appellant was the
unsuccessful candidate.

       In the Election Petition filed by the appellant before the High Court,     F
a plea was raised by the appellant that preferance recorded on the ballot
papers of the excluded candidates were also required to be counted in favour
of tl\e appellant. 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        G
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 transferred
voted while respondent No. I secured 9 votes, out of the transferred votes on
the unexhausted ballot papers. But the High Court dismissed the petition.
Hence this appeal.                                                                H
                                     463
    464                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A           Dismissing the appeal, this Court

           HELD: J.1. The Conduct of Election 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 contested candidate and that credit be given to the concerned candidate
B   of the value of the ballot papers in his parcels. Rules 75(3) details the
    procedure when at the end of the counting no candidate can be declared
    elected having obtained the requisite quota. [465-G-H; 466-AI

          1.2. The observations made by the High Court are completely in accord
    with the scheme of the Rules contained in Chapter 7 of the Conduct of
C   Election Rules, 1961 and particularly of Ruic 75(3) read with Rules 71(1)
    and 71(8) of the Conduct of Election 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 the ballot paper has
    already been exhausted since either further preference was not in favour of
D   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
E   candidates. [467-A-B-C[

          Dattatraya Eknath lanke v. Re111rning Officer, Amravati and Ors., AIR
    (1986) Born. 354. approved.

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12571 of
F   1996.

          From the Judgment and Order dated 12.3.96 of the Bombay High Court
    in E.P. No. I of 1994.

            A.M. Khanwilkar for the Appellant.
G
            U.U. Lalit and Ms. Aprajita Singh for the Respondents.

            The Judgment of the Court was delivered by

         This appeal under Section 116-A of the Representation of the People
H   Act. 1951 calls in question the judgment and order made by the High Court
                   G.N.R. DUDHAGAONY.AR v. R.S. SATAV                        465
of Judicature at Bombay (Aurangabad Bench) dated 12th March, 1996. Since,            A
the controversy in this appeal only centres around Issue No. 2, which 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 Jrd, 4th, 5th         B
       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.                                             c
       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. I was declared elected.          D
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
Elections 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 + I = 213. None of the               E
contesting candidates secured the requisite quota of 213 Notes 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              F
No. I 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 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,         G
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 I 961. 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 H
    466                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A 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:

B         "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;

C          (b) examine all the ballot papers in his parcels and sub-parcels, arrange
           the unexhausted papers ip sub-parcels according to the next available
           preferences recorded thereon for the continuing candidates, count the
           number of papers in each such sub-parcel and credit it to the candidate
           for whom such preference is recorded, transfer the sub separate sub-
           parcel to that candidate, and make a separate sub-parcel of all the
D          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
E   Officer had transferred 30 votes to the appellant and respondent No. I 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. I secured 9 votes, out of the transferred votes on the
F   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
G          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 given to any continuing
           candidate, which obviously c3nnot be since at that time only election
H          petitioner and returned candidate were continuing candidates."
                   G.N.R. DUDHAGAONKAR v. R.S. SAT AV                     467

       The observations made by the learned single Judge of the High court        A
are completely in accord with the scheme of the 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     B
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      C
recorded on those ballot papers was in favour of the eliminated candidates.

     In Dattatraya Eknath Lanke v. Returning 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:                                                                D
             "Thus, a 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 preferences only due to unpredictable chance
         of some one being eliminated at a particular count, but that cannot be   E
         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       F
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 counted 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.                                                                  G
     This appeal, therefore, fails and is dismissed. There shall, however, be
no order as to costs insofar as this appeal is concerned.

R.K.S.                                                      Appeal dismissed.