This is a writ petition under Arts. 226 and 227 of the Constitution by one Brij Sunder Sharma (hereinafter referred to as the petitioner) whose election to the Rajasthan Legislative Assembly from the Bundi Constituency was challenged by Shri Ram Dutt, respondent No. 1 (hereinafter referred to as the respondent) by the election petition, challenging on order of the Election Tribunal Kota directing a recount of the ballot papers.

2. The election was contested by five candidates and the result of the counting was as follows—

(1) Shri Brij Sunder Sharma ... ... ... 8849

(2) Shri Ram Dutt ... ... ... 8821

(3) Shri Ram Chandra ... ... ... 4661

(4) Shri Ranglal ... ... ... 2360

(5) Shri Ravi Datta ... ... ... 782

3. The Returning Officer rejected 1032 ballot papers as invalid. The petitioner, who secured 28 votes more than the respondent, was declared elected. The respondent challenged the election on the petitioner inter alia on the ground that about 100 valid votes cast in his favour were improperly rejected by the Returning Officer, that a number of invalid votes were wrongly counted in favour of the petitioner, that mistakes were made in sorting the ballot papers with the result that votes cast in his favour were counted in favour of the petitioner and that in consequence the result of the election was materially affected. It was asserted in the election petition that it was not physically possible for the petitioner or his election and counting agents to note the particulars of such ballot papers and that their full particulars will be furnished after an inspection of the ballot papers for which permission of the Tribunal will be sought. A prayer was made for general scrutiny and recount. It was alleged that most of the officers entrusted with the work of the counting were under the influence of the petitioner. It was stated that he was a Minister in the Rajasthan Government from 1952 to 1957. It was mentioned that two applications for recount (Ex. 1 and 2) were made by him to the Returning Officer but they were improperly rejected.

4. The above allegations were denied by the petitioner in his written statement. It was contended that it was not physically impossible for the respondent or his election and counting agents to note the particulars of the ballot papers improperly rejected, improperly accepted or improperly sorted and that para 9 of the petition containing the allegations about them should be struck off for want of particulars. It was also asserted that there was no provision of law under which the respondent was entitled to make an inspection of the ballot papers. It was alleged that the respondent or his agents did not raise any objection with regard to the above matters during counting and the two applications for recount were rightly rejected by the Returning Officer.

5. The Tribunal framed the following issues on this part of the case of the respondent—

11(A) Whether the counting officers had declared about 100 ballot papers cast in favour of the petitioner as doubtful invalid votes and reserved them for final checking by the Returning Officer?

11(B) Whether the Returning Officer did not check up the aforesaid votes inspite of application by the petitioner, the certified copy of which is Ex. 1 and if so, with what effect?

11(C) Whether neither the petitioner nor any of his agents raised any objection to therejection of any of the ballot paper at the time of counting and with what effect?

11(D) Whether in the absence of any particulars regarding the alleged wrongly rejected 100 ballots, the allegations contained in para 9(a) of the petition cannot be enquired into and the para is liable to be struck off?

12(A) Whether the scrutiny was done by 30 officers and their assistants detailed for work with the Returning Officer?

12(B) Whether it was physically impossible for the petitioner, his election and counting agents to know and note the particulars of improperly accepted votes in favour of respondent No.1?

(12) Whether any votes we

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