Judgement

SARKARIA, J.:- We have already announced our order in this appeal on the 2nd May 1975.* We now proceed to give our reasons therefor.

* reported in 1975 U. J. (SC) 496.

2. The appellant, Shri Ram Autar Singh Bhadauria, Respondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2 to 11 contested election, as rival candidates from U. P. Legislative Assembly Constituency (No. 293), Sarsaul. The poll was held on 24-2-1974. The appellant was declared elected. The total number of votes polled was 72735. Out of these, the appellant secured 23626 and Respondent 1, his nearest rival polled 23604, the margin being of 22 votes only.

3. Respondent 1 filed an election petition challenging the election of the appellant inter alia on the ground (vide para 9 (1) of the petition) that the result of the election so far as the returned candidate was concerned materially affected by improper reception and rejection of votes and mistakes in counting. It was alleged:

"Para 11 (a). That in a number of polling stations, the instruments supplied to the electors for the purposes of stamping on or near the symbol of the candidate to whom he intends to vote, was seal of Presiding Officer which was meant to be put on the reverse of the ballot papers. Since the electors were supplied these instruments by the Presiding Officer for marking the ballot papers the electors indicated their choice by marking in the column of the petitioner with that instrument. There were 41 such ballot papers which were clear votes for the petitioner that were illegally rejected by the Presiding Officer on the ground that the electors choice was expressed through the instrument meant for the Presiding Officer for stamping on the reverse side of the ballot papers. Particulars of such ballot papers are given in Schedule I attached to the Election Petition.

(b)That in a number of polling stations, the electors were issued ballot papers along with the counterfoil. While issuing the ballot papers to the electors, the polling staff deputed there did not detach the counter-foil and the electors after putting seal mark put the ballot papers along with the counter-foil in the ballot box. It was due to the mistake of the staff deputed at the polling station. The number of some of such ballot papers are- 100976, 100977, 100978, 100979, 100980, 100982, 100983 and 100984. These ballot papers clearly indicate the votes for the petitioner but they were illegally rejected on the ground that the identity of the elector can be established. The reason on which it was rejected was wholly illegal. The particulars of such ballot papers are given in Schedule II attached to this election petition."

4. In his written statement, the successful candidate stated:

"15 (1). That the contents of paragraph No. 9 (1) of the Election Petition are not admitted. The result of the election in so far as the answering respondent is concerned has not been materially affected by any improper reception or rejection, or by wrong arithmetical and clerical mistake in counting of votes and/ or counting and acceptance of void votes in favour of the answering respondent. In fact no improper reception or rejection or arithmetical mistake or any clerical mistake was done in favour of the answering respondent".

16. That the contents of paragraph No. 11 (a) of the petition are wrong and denied. It is wrong to say that 41 ballot papers mentioned in Schedule I or any ballot paper counted in favour of the respondent No. 1 by marking with the seal of the Presiding Officer. It is admitted that the ballot papers on which unauthorised seal was found were rejected. Some of these rejected ballot papers may be of the petitioner but most of them were of respondent No, 1 and other contesting candidates.

17. That the contents of para 11 (b) of the petition and Schedule II are not admitted as stated. Only on one polling station, due to the mistake of the Presiding Officer some ballot papers were issued along with their counter-foils. The cou