# SHYA:\1 Sl:NDF.R v. SA.TYA KETU & ORS

- **Citation:** [1967] 1 S.C.R. 752
- **Court:** Supreme Court of India
- **Decided:** 1966-10-05
- **Case number:** Civil Appeal No. 204of1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shya-1-sl-ndf-r-v-sa-tya-ketu-ors-3910
- **Pages:** 9

## Headnote

SHYA:\1 Sl:NDF.R
v.
SA.TYA KETU & ORS.
October 5, 1966
(K. N. WA:-!CHOO, J.M. SHELAT AND G. K. MrrrER, JJ.).
Representation of the People Act, ss. 98, 116-A, 120, 122-Whetlier
apf.et.:l umler J. 116--A required to he acco1npanied by 'decree of election
tribunal-whether tribunal to pass 'decree' or memorandum of co1ts.
Conduct of Election Rules, 1961, r. 73(2)-First preference in ballot
paper indicated by Rontan numeral I in.rreacl of Arabic nu1neral-Whether ballot paper valid-Whether use of words '1' or 'one' after numeral
'1' invalidates vote.
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 li>y 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 O:>nduct of Election
Ru!.,, 1961, they bore the Roman numeral I
instead of the Arabic
numeral I. The Election Tribunal upheld the contention. The respon.
dent 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
accompanted 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) Tho 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 the
judgment of the Tribunal and no more.
[758 El
There is no provision
in Part VI of the
Act for the passing of a
decree by the Election Tribunal.
Section 98
\vhich refers to the decision of the Tribun:tl provide:l in specific terms th:tt the Tribun;il shall make
an order at the conclusion of the trial and indicates ~he th:-ce tvpes ot
orders that the Tribunal is entitled to make.
Section 116-A provides for
an appeal noJ from a decree of the tribunal but from an order passed
by it, under s. 98.
What may be 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 he in accordance with the procedure applicable under
the Code of Civil Procedure to the trial of suits docs not mcao that a
decree should be prcP.ared 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 CJ
Rule 2 in Chapter XIV-A of the Rules of the AllahahaJ High Court
with respect to appeals from orders of clc;::l'.oil trihunal is al~o in accordance with the scheme of the Act and docs not require a copy of
any
decree to be filed with the appeal.
(758 BJ
(ii) Ruic 73(2) of the Conduct of Election Rules, 1961 do°'
not
require that the figure I must be marked in the Arabic form.
Where
fi!!Ure 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. (158 H;
759 G]
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SHYAM SUNDER v. SATYA KETU (Wanchoo, /.)
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 HJ

## Text

SHYA:\1 Sl:NDF.R
v.
SA.TYA KETU & ORS.
October 5, 1966
(K. N. WA:-!CHOO, J.M. SHELAT AND G. K. MrrrER, JJ.).
Representation of the People Act, ss. 98, 116-A, 120, 122-Whetlier
apf.et.:l umler J. 116--A required to he acco1npanied by 'decree of election
tribunal-whether tribunal to pass 'decree' or memorandum of co1ts.
Conduct of Election Rules, 1961, r. 73(2)-First preference in ballot
paper indicated by Rontan numeral I in.rreacl of Arabic nu1neral-Whether ballot paper valid-Whether use of words '1' or 'one' after numeral
'1' invalidates vote.
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 li>y 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 O:>nduct of Election
Ru!.,, 1961, they bore the Roman numeral I
instead of the Arabic
numeral I. The Election Tribunal upheld the contention. The respon.
dent 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
accompanted 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) Tho 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 the
judgment of the Tribunal and no more.
[758 El
There is no provision
in Part VI of the
Act for the passing of a
decree by the Election Tribunal.
Section 98
\vhich refers to the decision of the Tribun:tl provide:l in specific terms th:tt the Tribun;il shall make
an order at the conclusion of the trial and indicates ~he th:-ce tvpes ot
orders that the Tribunal is entitled to make.
Section 116-A provides for
an appeal noJ from a decree of the tribunal but from an order passed
by it, under s. 98.
What may be 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 he in accordance with the procedure applicable under
the Code of Civil Procedure to the trial of suits docs not mcao that a
decree should be prcP.ared 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 CJ
Rule 2 in Chapter XIV-A of the Rules of the AllahahaJ High Court
with respect to appeals from orders of clc;::l'.oil trihunal is al~o in accordance with the scheme of the Act and docs not require a copy of
any
decree to be filed with the appeal.
(758 BJ
(ii) Ruic 73(2) of the Conduct of Election Rules, 1961 do°'
not
require that the figure I must be marked in the Arabic form.
Where
fi!!Ure 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. (158 H;
759 G]
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SHYAM SUNDER v. SATYA KETU (Wanchoo, /.)
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 HJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 204of1966.
Appeal from the judgment and decree dated March 10, 1965
of the Allahabad High Court in F.A. No. 213of1964.
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 4 7 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 Satva 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 f11vour were valid votes and therefore prayed that the
petition should be dismissed.
Thus the main question for decision before the Election Tribunal (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 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 I. 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 I. It thus came to the conclnsion that 491 votes cast
in favour of Satya Ketu were invalid. It therefore allowed the peti-
754
SUPREME COURT llEPOllTS
[1967] I S.C.R.
tiorr 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 ands. 116-A of the Representation of the People Act; No. 43of1951, (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 1 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 I. 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. 116-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 th11t 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,
10. SS for procedure by the Election Commission on receipt of an
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SHYAM SUNDER v. SATYA KETU (Wanchoo, I.)
755
election petition and s. 86 for appointment of election 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 procedure 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 candidate to have been duly elected;"
It is unnecessary to refer to ss. 99 to 116 which provide for
certain matters, Then comes s.116-A which provides for appeals
against orders of election tribunals. Sub-section(!) 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." Sub:.
section (2) thereof provides that-
"The High Court shall, subject to the provisions of this
Act, have •he 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
SUPREME COURT llBPOllTS
[1967] I S.C.R.
shall execute the order or cause the same to be executed in the same
A
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 ins. 98.
Furthers. 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 ins. 122 that an order passed by the tribunal
with respect to costs shall be 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 Tribum1l
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 docs 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
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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
H
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
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SHYAM SUNDER v. SAl'YA KETU (Wanchoo, I.)
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 1s not necessary after the conclusion of
the trial of an election petition.
Let us then turn to s. 116-A of the Act to see if there is anything
in that section which requires the filing of a decree along »<ith 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 tribunal but from an order passed by it inter alia under s. 98. It is true
that sub-s. (2) of s. 116-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 not from a decree. In this connection
we may refer to s. 96 of the Code of Civil Proceclure 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, aud on such jμdgment 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 tiled 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
SUPREME COURT REPORTS
[1967) l S.C.R.
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 arc 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 1 is not marked; or
(b) the figure 1 is set opposite the name of more than
one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or
(c) the figure 1 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 1 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 1 which has to be marked must be marked
in what are called Arabic numerals or the International form of
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SHYAM SUNDER v. SATYA KETU (Wanchoo, I.)
75 9
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 thatthe rule intended that figure I 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
Is
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 1 to
show first preference. Therefore, if there is figure I, 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
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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 orinRomanform or in theform usedin 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 1 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
1 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 ofletters 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 I. 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 th~ circumstances.
Then it is urged that besides the Roman figure I, some other
word5 were added in some cases. Even if that were so, we.are of
opinion that r. 73(2) (a) would notjustify declaration of a ballot
paperasinvalid 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
SUPRl!MI! COURT REPORTS
[ 1967] 1 s.c.R:
in brackets thereafter. that would not invalidate the vote for the
A
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 bv the High Court is correct.
The appeal fails and is hereby dismissed with costs.
R.K.P.S.
Appeal dismissed.
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