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SUPREME COURT OF INDIA
P.N. BHAGWATI, A.C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.
Beli Ram, Appellant
Versus
Nand Kumar and others, Respondents.
Civil Appeal No. 1318 of 1975,
D/- 2-12-1976,
Advocates Appeared
M/s. R. K. Garg, S. C. Agrawal, V. J. Francis and Mr. R. K. Bhalgorta, Advocates, for Appellant; M/s. E. C. Agrawala and M. M. L. Srivastava, Advocates, for Respondents.
Jammu & Kashmir Representation People Act, 1957 - Section 123 - Rule 56 Jammu & Kashmir Conduct of Election Rules 1965 - Claim was negatived by High Court - Elections - General Elections to Jammu & Kashmir Legislative Assembly took place - There were four candidates who stood for election from Assembly Constituency- One was appellant and other three were respondents appellant was a candidate set up by Indian National Congress while respondent was an independent candidate supported by Socialist Party poll was and counting of votes took place - It was found that appellant had secured votes as against votes secured respondent votes secured respondent and 800 secured by respondent appellant was accordingly declared as duly elected by Returning Officer petition in High Court of Jammu & Kashmir for declaring election of appellant void on various grounds set out in petition- Court shall refer to these grounds a little later when court examine arguments advanced on behalf of parties- Suffice it to state for present that some of grounds taken in petition found favour with High Court and by a judgment High Court allowed petition and set aside election of appellant- It may be pointed out that 1st respondent also claimed in petition that he should be declared elected but this claim was negatived by High Court on ground that there was no material on basis of which such an order could be made –Held, Court agree with reasoning which prevailed with High Court in reaching this conclusion- Court are also of view that High Court was right in not acceding to application respondent for recount of votes in court respondent did not make out any case for recount of votes and High Court was justified in turning down his request in that behalf - Court find as a result of aforesaid discussion that highest only following votes counted in favour appellant eleven votes in respect voters nine votes cast Sharma and five votes cast of Ram Amrita Sharma- This means that total number of votes counted favour of appellant would be liable to be reduced by not more - But difference between votes polled by appellant and respondent as found by Returning Officer was and therefore even if difference were reduced by result of election would not affected since appellant would still have secured highest number of votes election of appellant cannot in circumstances be set aside as invalid were reasons why court allowed appeal and dismissed election petition filed by respondent for setting aside election of appellant- Court may add that peculiar circumstances of present case court would make no order as to costs but court direct that amount of Rupees payable to work done by him pursuant to our order shall payable by appellant and if that amount has not already been paid to Registrar it shall be payable out of security deposit of appellant lying in Court and if any part of this amount has been paid by respondent will be entitled reimburse himself in respect of same out of security deposit made by appellant amount paid for bringing record of case to New Delhi in compliance with order of this Court will also have to be paid by appellant and same may be deducted out of amount of security deposit - Order accordingly
Judgment
BHAGWATI, J. - We passed an order on 29th April, 1976 (sic) (May 7, 1976?) allowing this appeal and dismissing the election petition filed by the 1st respondent for setting aside the election of the appellant. We now proceed to give our reasons for making that order.
2. The General Elections to the Jammu & Kashmir Legislative Assembly took place in March 1972. There were four candidates who stood for election from the Naushera Assembly Constituency. One was the appellant and the other three were the respondents. The appellant was a candidate set up by the Indian National Congress, while the 1st respondent was an independent candidate supported by the Praja Socialist Party. The poll was held on 8th March, 1972 and the counting of votes took place on 12th March, 1972. It was found that the appellant had secured 8563 votes as against 8512 votes secured by the 1st respondent, 1570 votes secured by the 2nd respondent and 800 secured by the 3rd respondent. The appellant was accordingly declared as duly elected by the Returning Officer.
3. The first respondent filed a petition in the High Court of Jammu & Kashmir for declaring the election of the appellant void on various grounds set out in the petition. We shall refer to these grounds a little later when we examine the arguments advanced on behalf of the parties. Suffice it to state for the present that some of the grounds taken in the petition found favour with the High Court and by a judgment dated 25th September, 1975 the High Court allowed the petition and set aside the election of the appellant. It may be pointed out that the 1st respondent also claimed in the petition that he should be declared elected, but this claim was negatived by the High Court on the ground that there was no material on the basis of which such an order could be made. The appellant being aggrieved by the order made by the High Court setting aside his election preferred the present appeal in this Court under Section 123 of the Jammu & Kashmir Representation of the People Act, 1957.
4. The first ground on which the High Court set aside the election of the appellant was that there was a sudden change in the polling booth in Hathal village at the last moment without obtaining the previous approval of the Election Commission and this change was not properly publicised and made known to the people with the result that a large number of voters whose number exceeded fifty could not exercise their franchise and that materially affected the result of the election in so far as it concerned the 1st respondent. The argument which found favour with the High Court was that the change of polling booth was made in violation of Section 36 of the Jammu & Kashmir Act and the Conduct of the Election Rules and Instructions issued under the Jammu & Kashmir Act and there was thus non-compliance with the provisions of the Jammu & Kashmir Act and the Rules and Orders made thereunder and this non-compliance materially affected the result of the election by preventing a large number of voters from casting their votes in favour of the 1st respondent and hence the election of the appellant was void under Cl. (iv) of S. 108 (1) (d) of the Jammu & Kashmir Act. This argument, if valid, would be sufficient to support the judgment of the High Court and we must, therefore, examine it closely to see whether it is well founded.
5. It is necessary to state a few facts in order to appreciate whether this argument is sustainable or not. The evidence on record clearly shows that the polling booth for Hathal village was agreed to be located at the house of Ram Saran and after obtaining the consent of Ram Saran, his house was shown as the place of the polling booth in the approved list published on 5th February, 1972. Then a change was made on 27th February 1972, and the polling booth was shifted from the house of Ram Saran to that of Sarban Singh. But this change created a certain amount of confusion because Sarban Singh has two houses in Hath
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