IMPORTANT POINT
Recounting instructions of 3872 rejected ballot papers in the light of proper scrutiny as per Chapter XIV-B of the Hand Book for Returning Officers issued by the Election Commission and as per provisions of Election Rules, Regulations, Instructions and Guidelines by High Court are correct and do not need any interference.

Headnote:Representation of People Act, 1951-Section 81-Election petition of respondent 1 against appellant-Allowed on ground that rejected 3872 Ballot Papers are not according to directions issued by Election Commission-Recounting of those in accordance with Election Commission s guidelines ordered by High Court-Whether correct? (Yes)-Dispute about missing 59 ballot papers left open-Matter to be taken up on receipt of report of Registrar of Karnataka High Court by 30.11.2001.
Held : In our view, for the present only 3,872 ballot papers deserve to be recounted 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 recount the 3,872 ballot papers in the presence of the counsel for the appellant and respondent No. 1, and/or presence of parties or their representative. The recounting shall be conducted as per the provisions of the relevant Rules, Regulations, Instructions and Guidelines. This exercise shall be completed and report sent of this Court by 30th November, 2001. 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 recount of all ballot papers after proper scrutiny and also about the legality of direction declaring as void the declaration of 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 Karnataka High Court. (Paras 10 and 11)

ORDER

Y.K. Sabharwal, J.-The appellant was elected as a member of Karnataka Legislative Assembly. His election has been called in question by respondent No. 1 who was defeated by a margin of 138 votes. In the petition filed by respondent No. 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 of 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 No. 1 herein) had secured 40,280 votes. The ballot papers rejected as invalid were 3,872. According to respondent No. 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 No. 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 No. 16 before the counting was commenced, under Rule 55-B of the Conduct of Elections Rules, 1961, and the entries were straightaway made in Form No. 20, declaring the elections 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 3,872 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 Election Rules, 1961?

(iv) If the answer to Issue No. 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 determinations as to whether rejection was proper, and if not, then 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 No. 1 favour of the appellant and 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 recount 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 grievance o

Click Here to Read the rest of this document