IMPORTANT POINT
The High Court was clearly in error in directing the recount of the votes and setting aside of the election in the case.

JUDGMENT

Y.K. Sabharwal, J.-The appellant was elected as a Member of the Karnataka Legislative Assembly by a margin of 138 votes. The total votes polled were 88,353. At the final counting it was found that the election petitioner (respondent No.1 herein) secured 40,280 votes whereas the appellant secured 40,418 votes. The ballot papers rejected as invalid were 3872.

2. Respondent No. 1 who was defeated by a margin of 138 votes challenged the election of the appellant in a petition filed 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. According to respondent No. 1, 59 ballot papers were also found to be missing. One of the allegations of respondent No.1 in the election petition was that the number of ballot papers rejected could have been counted in his favour and his counting agents were not provided with any opportunity to inspect the ballot papers that had been rejected by the Returning Officer.

3. In all, six issues were framed. One of the issues was "whether the petitioner proves that the counting of the votes was not done in accordance with the rules?"

4. The election of the appellant was set aside by the impugned judgment holding the declaration of the election to be void. The High Court while so holding directed the Returning Officer to recount the ballot papers after properly scrutinizing the same and directed him to declare the result of the election by following the provisions of the law and the directions/instructions issued by the Election Commission.

5. In this appeal preferred by the returned candidate, after hearing learned counsel for the parties this Court in terms of the order dated August 7, 2001, directed that for the present only 3872 ballot papers deserve to be recounted after proper scrutiny. The directions for recount of the said ballot papers were issued. The recounting was directed to be conducted by the Registrar of the Karnataka High Court and the report sent to this Court thereafter. The Court, at that stage, did not express any opinion either on the aspect of 59 missing ballot papers or on the legality of the direction in the impugned judgment of the High Court for recount of all ballot papers after proper scrutiny and also about the legality of the direction declaring as void the declaration of election in question. In the said order, it was noticed that these aspects, if necessary, would be examined on receipt of the report of the Registrar.

6. The recount has been conducted by the Registrar (Judicial) of High Court of Karnataka and report submitted. From the report it appears that on opening the trunks and the sealed packets containing the rejected ballot papers it was found that mere were in all 3858 ballot papers considered as rejected and not 3872. On recount of the said ballot papers it was found that 42 were clearly polled in favour of the appellant whereas 22 were clearly found polled in favour of respondent No.1 In respect of 36 ballot papers considering the placement of the seal by the voter it was reported that the said number of 36 rejected ballot papers also deserve to be counted in favour of the appellant and for the same reason 61 ballot papers deserve to be counted in favour of respondent No.1 Thus, out of the rejected ballot papers, 78 votes were found in favour of the appellant and 83 in favour of respondent No.1 In this way the margin of the defeat of respondent No.1 stands reduced by 5 votes. If respondent No.1 is given the benefit of 14 ballot papers found less in the rejected bundles wherein instead of 3872, the ballot papers found were 3858 and is further given the benefit of missing