Judgment

DWIVEDI, J.:- The appellants, Laxminarayan and Marotrao. filed an election petition challenging the election of Jambuwantrao Dhote to the Lok Sabha from 21 Nagpur Parliamentary Constituency. There were five candidates in the run. Dhote was on. He was elected. The poll was on April 18, 1971. Dhote obtained 1,25,665 votes. The next highest votes were obtained by Rikhabchand Sharma. He polled 1,23,615 votes.

2. The election was challenged on diverse grounds. There were as many as 13 issues. The record of evidence is voluminous. The judgment of the High Court runs to 244 pages. The High Court decided all the issues against the appellants. Hence this appeal.

3. Sri Phadke, counsel for the appellants, has not covered the whole ground again; he has confined his arguments to issues 2,4,5,8 and 9. Thus the scope of inquiry is much narrower in the appeal.Issue No. 2:

4. Section 100 of the Representation of the People Act, 1951 (hereinafter called the Act) specifies the grounds on which the election of a returned candidate may be set aside According to S. 100 (1) (d) (iii) the election may be set aside if the result of the election of the returned candidate has been materially affected by the improper reception, refusal or rejecting of any vote or the reception of any vote which is void. Section 100 (1) (d) (iv) provides that the election may be set aside if the result of the election of the returned candidate has been materially affected by any non compliance with the provisions of the Constitution or of the Act or of any Rules or Orders made under the Act.

5. Paragraphs 14, 15 and 16 of the election petition allege facts in respect of this issue. According to paragraph 14, votes were counted in the Y.M.C.A. hall on April 19, 1971. There were no proper arrangements for admission of the candidates and their counting agents at the count. A large number of people had entered into the Hall. The counting was not complete on the said date. There was some counting on the day following, that is, on April 20, 1971. The counting when completed revealed that 3,46,093 votes were polled in all. J. B. Dhote received 1,25,665 votes; R. C. Sharma, 1,23,615; 7425 votes were rejected votes.

6. Paragraph 15 states that at the end of the counting R. C. Sharma made an application to the Returning Officer claiming recount of votes. The Returning Officer directed that all votes cast in favour of J. B. Dhote and R. C. Sharma as well as all the rejected votes should be recounted. He did not order that the votes of other candidates also should be recounted. Paragraph 16 states that after the recount it was declared that 3,46,079 votes were polled in all. The total of J. B. Dhote came down to 1,25,550; of R. C. Sharma to 1,23,493. The number of rejected votes went up to 7,597.

7. It is further alleged that the recount showed that 14 votes were missing, that many rejected votes were counted as valid and that there is a difference in the aggregate of different candidates.

8. Paragraph 15 then sums up:

"It is, therefore, clear that the votes have not been properly counted as valid or invalid, without a proper scrutiny required under the law. This has very much materially affected the result of the election. In fact the recount should have been for the entire votes cast in the election.

9. Paragraph 16 states that it was necessary to count all the votes as there was no proper recount by the Returning Officer. The recount itself shows that many rejected votes were counted as valid and many valid votes were rejected. The tendered votes were not counted and 14 votes were missing.

10. The plea in paragraph 16 that valid votes have been counted as invalid and invalid votes as valid would not include the plea that many valid votes of R. C. Sharma and other candidates have been counted as valid for Dhote. It was accordingly not necessary to recount the votes of candidates other than Dhote and R. C. Sharma. The recount of the rejected votes and of the votes of these two cand