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PETITIONER: DHARA SINGH

       Vs.

RESPONDENT: DISTRICT JUDGE, MEERUT & ANR.

DATE OF JUDGMENT: 18/08/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHAH, J.C. SHELAT, J.M.

CITATION:  1968 AIR  227            1968 SCR  (1) 243  CITATOR INFO :  D          1976 SC2184  (20)

ACT: Uttar Pradesh Kshettra Samitis and Zilla Parisads  Adhinayam (33  of  1961), and Settlement of Election  Disputes  Rules, 1962,  rr. 37, 39, 40 and 43, and Schedule  II,  Instruction 1--Returned    Candidate--Defences   open   when    election challenged--’Exhausted Paper’, meaning of.

HEADNOTE: Election for the office of Pramukh of a block was held under the  provision  of the Uttar Pradesh  Kshettra  Samitis  and Zilla  Parishads  Adhinayam,  1961.  On one  of  the  ballot papers,  the  second  respondent  had  a  third   preference recorded in his favour and a second preference in favour  of another  candidate  who was eliminated at  one  stage.   The Returning  Officer  did not count the  third  preference  in favour  of  the  second respondent and found  at  the  final counting  that the appellant and the second  respondent  had secured  an equal number of votes.  He therefore drew a  lot as  per  the Instructions in Schedule II  and  declared  the second respondent duly elected.  The appellant then filed an election  petition  on various grounds before  the  District Judge  who dismissed it, holding that the Returning  Officer erred in not crediting the second respondent with the  third preference and that if that was done there was no  necessity for  drawing  lots  at all and that  the  second  respondent should  have  been  declared  elected as  a  result  of  the counting itself.  The appellant’s writ petition  challenging the District Judge’s order was dismissed. In appeal to this Court he contended that: (1) under rr.  37 and 39 the trial of an election petition takes place in  two parts;  first,  to judge whether  the  returned  candidate’s election  is  void  and then to  decide  whether  any  other candidate should be declared to be duly elected, that it was only in the latter case the returned candidate had the right to  claim  that  ballot papers not already  counted  in  his favour  should  be  so  counted,  and  that  therefore,  the District  Judge  had no jurisdiction to  count  the  ballot paper  containing  the  third preference in  favour  of  the second   respondent;  and  (2)  the  ballot  paper  was   an

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’exhausted paper’ within Instruction 1(5) of Schedule II  to the  Rules, and that therefore the District Judge  erred  in law in counting it in favour of the second respondent. Held:  (1) The District Judge was entitled, to go  into  the question  whether  the uncounted’ ballot paper  should  have been counted in favour of the second respondent. [249G] According  to  r.  37(a) read with  r,  40  which  generally applies  the  procedure in the Civil Procedure Code  to  the trial  of election petitions under the Act, and r. 43  which deals  with  the findings of the trial Judge,  the  returned candidate  can  take any defence to show that  he  has  been validly  elected.  He could therefore allege and prove  that certain  votes  should  have been  counted  in  his  favour. [249E--G] Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54, explained.243 244 (2)  The fact that the Candidate with the second  preference in  the uncounted ballot Paper *as eliminated at one  stage, did  not make the ballot paper-an ’exhausted  paper’  within the  definition in the Rules.  The second respondent  was  a continuing  candidate,  as per the Rules,  and,there  was  a preference  recorded  for him on the ballot paper  arid  the District fudge was right in holding that it should have been counted in his favour, by the Returning Officer. [250A-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2232 of 1966. Appeal  by special leave from the judgment and  order  dated July,22,  1965  of the Allahabad High Court in  Civil  Misc. Writ Petition No. 75 of 1964. S.   C. Agarwala, Anil Kumar and Shiva Pujan Singh, for  the appellant. B. D. Sharma, for respondent No. 2. The Judgment of the Court was delivered by Sikri,  J. This appeal by special leave is directed  against the judgment of the Allahabad High Court dismissing the writ petition  under Art. 226 of the Constitution filed by  Dhara Singh,  appellant before us.  Dhara Singh had prayed, for  a writ,  order  or  direction  in  the  nature  of  certiorari quashing  the  judgment  of  the  District  Judge,   Meerut, dismissing  the  election  petition  filed  by  Dhara  Singh challenging  the  election of Pitam Singh to the  office  of Pramukh, Block Jani, on July 8, 1962. Two  points were raised before us: first, that the  District Judge had no jurisdiction to count ballot paper No. 0045  in favour of Pitam Singh and that the returned candidate had no right to claim that ballot papers not already counted in his favour  should  be so counted-, and secondly, that,  at  any rate,  the  District Judge erred in law in  counting  ballot paper No. 0045 in favour of Pitam Singh. The  relevant  statutory  provisions  are  as  follows:  The election is governed by the provisions of the U.P.  Kshettra Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of  Election  Disputes) Rules, 1962-hereinafter  called  the Rules.  Rules 37, 39, 40, 43 and 44 are as follows:               "37.   Relief  that  may  be  claimed  by  the               petitioner  A petitioner may claim  either  of               the following declarations--               (a)   that   the  election  of  the   returned               candidate is void;               (b)   that   the  election  of  the   returned               candidate  is void and that he himself or  any               other candidate has been duly elected.

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245               39.   Recrimination when seat claimed--When in               an  election petition a declaration  that               any   candidate   other  than   the   returned               candidate  has been duly elected  is  claimed,               the returned candidate or any other party  may               give  evidence to prove that the  election  of               such candidate would have been void if he  had               been the returned candidate and a petition had               been   presented  calling  in   question   his               election.               40.   Procedure-(1) Except so far as  provided               by  the Act or in these Rules,  the  procedure               provided in the Civil Procedure Code. 1908, in               regard to suits, shall in so far as it is  not               inconsistent with the Act or any provisions of               these Rules and it can be made applicable,  be               followed  in  the  hearing  of  the   election               petitions: Provided that-               (a)   any  two  or  more  election   petitions               relating  to the election of the  same  person               may be heard together;               (b) The Judge shall not be required to  record               or to have  recorded the evidence in full  but               shall  make  a  memorandum  of  the   evidence               sufficient  in his opinion for the purpose  of               deciding the case;               (c)   the  Judge  may,  at any  stage  of  the               proceedings,  require the petitioner  to  give               further  cash security for the payment of  the               costs incurred or likely to be incurred by any               respondent;               (d)   for  the purpose of deciding  any  issue               the   Judge   shall  be  required   to   order               production  of  or  to receive  only  so  much               evidence, oral or documentary, as he considers necessary;               (e)  no  appeal  or revision shall  lie  on  a               question  of fact or law against any  decision               of the Judge;               (f)   the Judge may review his decision on any               point  on  an application  being  made  within               fifteen days from the date of the decision, by               any   person  considering  himself   aggrieved               thereby,               (g)   no  witness  or other  person  shall  be               required to state for whom he has voted at  an               election.               (2)   The  provisions of the  Indian  Evidence               Act,  1872 (Act No.1 of 1872) shall be  deemed               to  apply in all respects to the trial  of  an               election petition.               (3)   B  fore  the  hearing  of  an   election               petition commences or before the final hearing               takes  place the petition may be withdrawn  by               the petitioner or the petitioners, as the case               may be, by making an application to the  Judge               requesting for the withdrawal of the petition 246               and upon the making of such an application the               petition shall stand withdrawn and no  further               action shall be taken for its, trial.               43.   Findings  of the Judge-(1) If the  Judge               after  making  such inquiry as  he  deems  fit

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             finds in respect of any person whose  election               is called in question by a petition, that  his               election  was  valid  he  shall  dismiss   the               petition  as  against such  person  and  award               costs at his discretion.               (2)   If the Judge finds that the election  of               any person was invalid he shall either-               (a)   declare  a casual vacancy to  have  been               created,   or               (b)   declare  another candidate to have  been               duly  elected  and in either  case  may  award               costs at his discretion. 44.  Grounds  on which a candidate other thin  the  returned candidate may be declared to have been elected-If any person who  has  lodged an election petition has,  in  addition  to calling in question the election of the returned  candidate, claimed a declaration that he himself or any other candidate has  been duly elected and the Judge is of the opinion  that in  fact the petitioner or such other candidate  received  a majority of the valid votes, the Judge shall after declaring the  election of the returned candidate to be void,  declare the  petitioner or such other candidate as the case may  be, to have been duly elected: Provided  that the petitioner or such other candidate  shall not be declared to be duly elected if it is proved that  the election  of such candidate would have been void if  he  had been  the  returned  candidate  and  a  petition  had   been presented calling in question his election." Relevant part of Schedule 11 to the Rules is as follows: "Schedule II--Instructions for the Determination of Result. 1. In this Schedule- (1)  the   expression  ’continuing  candidate’   means   any candidate not elected and not excluded from the poll at  any given     time; (2) the   expression  first preference’ means the  number  1 set  opposite  the  name of any  candidate’  the  expression ’second  preference’  similarly  means  the  number  2,  the expression ’third preference’ the number 3 and so on; 247               (3)   the    expression    ’next     available               preference’  means  the second  or  subsequent               preference  recorded in consecutive  numerical               order for a continuing candidate,  preferences               for candidates already excluded being ignored;               (4)   the expression ’unexhausted paper’ means               a  ballot paper on which a further  preference               is recorded for a continuing candidate;               (5)   the expression ’exhausted paper’ means a               ballot paper on which no further preference is               recorded for a continuing candidate;  provided               that  a paper shall be deemed to be  exhausted               in any case in which-               (a)   the  names  of two  or  more  candidates               whether continuing or not are marked with  the               same   figure.  and  are  next  in  order   of               preference; or               (b)   the name of the candidate next in  order               of  preference whether continuing or  not,  is               marked by a number not following consecutively               after some other number on the ballot paper or               by two or more numbers." The  relevent  facts  are that election for  the  office  of Pramukh  of Block Jani was held on July 8, 1962,  under  the provisions  of  Uttar  Pradesh  Kshettra  Samitis  and  Zila Parishads  Adbiniyam,  1961 (U.P. Act No. XXXIII  of  1961)-

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hereinafter  referred to as the Act.  At the  said  election following six persons were the candidates: 1.   Shri Dhara Singh 2.   Shri Pitam Singh 3.   Shri Mahabir Singh 4.   Shri Sham Singh 5.   Shri Kalloo Singh 6.   Shri Budh Singh After  following the instructions contained in Schedule  II, the Returning Officer found that Dhara Singh and Pitam Singh had obtained equal number of votes and chose to draw a  lot, and  declared Pitam Singh as the elected candid-ate.   Dhara Singh thereupon filed an election petition under the Act and the  Rules raising a number of points.  The District  Judge, who  heard  the election petition, held that  the  Returning Officer made a mistake in not crediting Pitam Singh with the third  preference  in ballot paper No. 0045.   The  District Judge held:               "The only point that has to be seen is whether               this   third  preference  should   have   been               credited   to   Pitam  Singh  or   not.    The               definition of the expression ’next 248               available, preference’ has already been  given               above,Under Rule’ 6(b) the sub parcels are  to               be  arranged according to the" next  available               preferences.The  ballot  paper  does   hot                             become   exhausted  as  long  as  ther e  is   a               preference  recorded  in it for  a  continuing               candidate.   Pitam  Singh  was  a   continuing               candidate  when  the  ballot  papers  cast  in               favour  of Shiam Singh,were to be arranged  in               sub  parcels  containing , the  exhausted  and               unexhausted   ballot  papers.    The   learned               counsel  for  the  petitioner has  contended               before me that the third preference could  not               have  been credited in favour of  Pitam  Singh               inasmuch as the second preference in favour of               Mahabira  had not been utilised as he was  the               first to be excluded on the basis of the first               preference  votes and his contention  is  that               the  third  preference cannot  be  taken  into               consideration.  This contention to my mind has               no force.  Under the scheme of the counting as               provided  in  the instructions a  voter  could               have given his  preference in the present case               upto  to  six preferences as  there  were  six               candidates  who were seeking election.  To  my               mind  as long as there is any preference in  a               ballot  paper  which has  not  been  exhausted               according to the rules that preference has  to               ’be   taken  into  consideration  and  to   be               credited,.  to  the  continuing  candidate  in               whose     favour    the’    preference     is.               Consequently, to my mind the Presiding Officer               was  in  error  when, he  did  not  count  the               preference  in favour of Pitam Singh  recorded               in the ballot paper No. 0045.  Crediting  this               preference  to Pitam Singh, we find  that  the               total number of votes which he obtained  comes               to  20  as against the total number of  19  in               favour  of Dhara Singh on the  third  counting               Thus,  in  this case to my mind there  was  no               necessity for drawing the lots and Pitam Singh

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             should  have  been declared as  elected  as  a               result  of counting itself as there were  only               two  continuing  candidates and out  of  these               continuing candidates Pitam Singh had  secured               the larger number of votes." it is not necessary to set Out the findings on other ’points which are no longer in issue before us. Dhara Singh then filed a writ petition under Art. 226 of the Constitution  challenging  the  declaration  given  by   the Returning  ’Officer  and  the order of  the  District  Judge referred  to above.  The High Court held that  the  District Judge  was  correct in allotting ballot paper  No.  0045  to Pitam  Singh.  The High Court also repelled the  contention that  the  District  Judge was not  entitled  to  take  into account  ballot  paper No. 0045, and to award  it  to  Pitam Singh, because Pitam Singh had, not filed any  recrimination in  the  case in order to claim the benefit  of  the  ballot paper.  The 249 High Court was of, the view that this was a case of rebuttal and not recrimination, as held in the Full Bench decision of the   Allahabad High Court in Nathu Ram v.  R.P.  Dikshit(1) According to it the decision of this Court in Jabar Singh v. Genda Lal(2) was not applicable to the facts of the case.     It has been strongly contended before us by the  learned Singh  v. Genda Lal(2) governs the, interpretation  of  the Rules.   In that case, this Court was, concerned,  with  the interpretation  of  ss.97,  100(1)(d)  and  101(a)  of   the Representation of the People, Act  (43 of 1951) and r. 57(1) of,  the, Conduct of Election Rules, 1961. We find that  the terms of those sections are different and, in particular, s. 100(1)(d) is materially different because it uses the  Words "that the result of the election; in so far as it concerns a returned  candidate, has been materially affected" which  do not  occur in rr. 37 and 39.  It was these words which  were in part relied on to limit the scope of the enquiry in cases arising  under the Representation of, the People  Act.   But the  language  of  the  rules  here  is  simple  and   quite different.  It would be noticed that r. 37(a) is wide and no rule  prescribes  the grounds on which the election  of  the returned candidate is to be declared void.  In this case  we are  not concerned with r. 37(b) or r. 39.  But the  learned counsel  for the appellant contends that reading rr. 37  and 39  together  it  is clear that the trial  of  the  election petition  takes place in two compartments; first,  to  judge whether the returned candidate’s election is void and, then, to decide whether any other candidate should be declared  to be duly elected.  He says that it is only in the latter case that  any  recrimination can be made under r.  39.   We  are unable  to agree with this contention.  It seems to us  that according  to  r. 37(a), read with r. 40, which  except  for certain  sections,  applies  the  procedure  in  the   Civil Procedure Code, the returned candidate can take any  defence to show that he has been validly elected.  If the petitioner in  the  election petition can allege and prove  that,  some votes  cast  in favour of the returned candidate  should  be rejected,  there  is no reason why  the  returned  candidate should  not be able to allege and prove that  certain  votes should have been counted in his favour.  Rule 43 which deals with the findings of the Judge also shows that the suggested limitation on his jurisdiction does not exist. It is not necessary to decide in this case whether Nathu Ram v.   R.   P.  Dikshit(1)  was  correctly  decided  or   not. Accordingly,we hold that the District Judge was entitled  to go  into the question whether ballot paper No.  0045  should

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have been counted in favour of Pitam Singh or not. Coming  to  the second point, the learned  counsel  contends that  ballot paper No. 0045 was an "exhausted paper"  within the  definition  quoted above.  The contention seems  to  be contrary (1) A.I.R. 1965 All, 454. (2) [1964] 6 S.C.R. 54, 250 to the definition because the definition expressly says that a  ballot paper on which no further preference  is  recorded for a continuing candidate shall be an exhausted paper.   On the  facts,  of  this case, Pitam  Singh  was  a  continuing candidate  and  there was a preference recorded for  him  on ballot  paper No. 0045.  But the learned counsel  says  that this  was  a third preference and the second  preference  on this  paper was for Mahabir Singh who was eliminated at  one stage.  Now, the fact that Mahabir Singh was eliminated does not  make  the ballot paper an exhausted  paper  within  the definition given in the Rules.  We agree with the conclusion of the District Judge on this point. In the result the appeals fails and is dismissed.  Under the circumstances there will be no order as to costs. V.P.S.                          Appeal dismissed. 251