Judgment

WANCHOO, J. : These appeals on certificates granted by the Punjab High Court arise out of an election to the Council of States by the Punjab Legislative Assembly and will be dealt with together as they arise out of two separate election petition by two persons, challenging the election at the same person.

2. There was an election to the Council of States by the Punjab Legislative Assambly in March 1962. There were a number of candidates for three seats which had to be filled. In the present appeals we are concerned with two candidates, namely, Dr. Anup Singn appellant and Shri Abdul Ghani respondent. Two of the seats were filled by Shri Chaman Lal and Shri Surjit Singh. Though originally their election was also challenged, that is not in dispute now. The position with respect to Dr. Anup Singh and Shri Abdul Ghani on first preference votes (the election being on proportional representation) was that Dr. Anup Singh got 36 votes and Abdul Ghani 35 votes. Thereafter preferences were transferred and Dr. Anup Singh got 36.3 votes andI Shri Abdul Ghani 35 votes. In consequence Dr. Anup Singh was declared elected along with the other two candidates whose election is not now in dispute, This was followed by two election petitions, one by Shri Abdul Ghani and the other by Shri Lachhman Singh. Originally the election of all the three candidates was challenged on a large number of grounds; but eventually the matter was pressed only against the election of Dr. Anup Singh and only on one ground, namely, that certain votes cast in favour of Shri Abdul Ghani had been wrongly rejected and certain votes cast in favour of Dr. Anup Singh were wrongly accepted. This challenge was met by the appellant on two grounds. In the first place he contended that the petitions were liable to be dismised under S. 90(3) of the Representation of the People Act, No. 43 of 1951 (hereinafter referred to as the Act) for non-compliance with S. 81(3). In the second place it was contended that there was no improper rejection of the votes of Shri Abdul Ghani and no improper acceptance of votes of the appellant.

3. These were the two main questions before the tribunal. On the first question, the tribunal decided that the election petitions were maintainable inasmuch as there was substantial compliance with S. 81(3) of the Act. On the second question relating to eight votes which were under challenge, the tribunal held that the three votes in favour of Shri Abdul Ghani were rightly rejected. This decision of the tribunal has been upheld by the High Court and is no longer in dispute before us. As to the five votes in favour of Dr. Anup Singh, it was conceded on behalf of the appellant that one was invalid. Of the remaining four, two were held to be valid and two were held to be invalid on the basis of the decision of the Punjab High Court in Pala Singh v. Natha Singh, 1962-64 Pun LR 1110. Thereafter the tribunal redistributed the votes on the basis of its findings and declared Shri Abdul Ghani elected as on redistribution Dr. Anup Singh received 33.3 votes and Abdul Ghani 35 votes.

4. Thereupon there were two appeals to the High Court by the present appellant and two points were urged on his behalf, namely, (i) that the election petitions should have been dismissed under S. 90(3) of the Act as they did not comply with S. 81(3), and (ii) that the tribunal was wrong in rejecting the two ballot papers. The High Court held that there was substantial compliance with S. 81(3) and therefore the petitions could not be rejected under S.90(3). It further held that one of the two votes in favour of Dr. Anup Singh which the tribunal had invalidated was not invalid. Lastly it held that the second vote rejected by the tribunal was rightly rejected. The final position on this basis was that Dr. Anup Singh got 34.3 votes and Shri Abdul Ghani 35 votes. In consequence the High Court dismissed the two appeals. Then followed two petitions for certificates which were granted; and that