Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1967 Supreme(SC) 227

SUPREME COURT OF INDIA
J.C. SHAH, S.M. SIKRI AND J.M. SHELAT, JJ.
Dhara Singh, Appellant
Versus
District Judge, Meerut and another, Respondents.
Civil Appeal No. 2232 of 1966,
D /- 18-8-1967.
Advocates Appeared
M/s. S. C. Agarwala, Anil Kumar and Shiva Pujan Singh, Advocates for M/s. Ramamurthi and Co., for Appellant, Mr. B. D. Sharma. Advocate for Respondent No 2.

Advocates:
Anil Kumar, B.D.SHARMA, CO., RAMAMURTHI, S.C.AGRAWAL, SHIV PUJAN SINGH

The District Judge was entitled to go into the question whether ballot paper No. 0045 should have been counted in favour of Pitam Singh or not and the ballot paper was not an "exhausted paper" within the definition given in the Rules.

Headnote:
ELECTION LAW - U. P. KSHETRA SAMITIS (ELECTION OF PRAMUKHS AND UP-PRAMUKHS AND SETTLEMENT OF ELECTION DISPUTES) RULES, 1962 - Rr. 37, 39, 40, 43 AND 44 - INTERPRETATION - SCOPE OF ENQUIRY IN ELECTION PETITION - RETURNED CANDIDATE CAN TAKE ANY DEFENCE TO SHOW THAT HE HAS BEEN VALIDLY ELECTED - DISTRICT JUDGE ENTITLED TO GO INTO THE QUESTION WHETHER BALLOT PAPER SHOULD HAVE BEEN COUNTED IN FAVOUR OF RETURNED CANDIDATE OR NOT - BALLOT PAPER NOT AN "EXHAUSTED PAPER" WITHIN THE DEFINITION GIVEN IN THE RULES.
Fact of the Case:

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 Adhiniyam, 1961 (U. P. Act No. XXXIII of 1961). 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 candidate. Dhara Singh thereupon filed an election petition under the Act and the Rules raising a number of points.
Finding of the Court:

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 that the ballot paper was not an "exhausted paper" within the definition given in the Rules and that Pitam Singh was a continuing candidate and there was a preference recorded for him on ballot paper No. 0045.
Issues: 1. Whether the District Judge had jurisdiction to count ballot paper No. 0045 in favour of Pitam Singh? 2. Whether the District Judge erred in law in counting ballot paper No. 0045 in favour of Pitam Singh?
Ratio Decidendi: 1. The language of the rules here is simple and quite different from the provisions of the Representation of the People Act, 1951, which were interpreted in Jabar Singh v. Genda Lal, 1964-6 SCR 54. Rule 37(a) is wide and no rule prescribes the grounds on which the election of the returned candidate is to be declared void. The returned candidate can take any defence to show that he has been validly elected. 2. The definition of "exhausted paper" in the Rules 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. Therefore, the ballot paper was not an "exhausted paper" within the definition given in the Rules.
Final Decision: The appeal was dismissed.

Judgement

SIKR1, J. :- This appeal by special leave is directed against the Judgment of the Allahabad High Court dismissing the writ petition under Article 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.

2. 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.

3. 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.

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) Before 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 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 finds in respect of any person whose election is called in question by a petition, that his election

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