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PUNJAB & HARYANA HIGH COURT
Jawahar Lal Gupta, J.
Santokh Singh Son Of Dilip Singh
Versus
Mohan Singh S/o Kansa Singh
Election Petition No. 14 of 1992,
Decided On : JANUARY 4, 1994
ELECTION LAW - Improper acceptance of nomination paper - Material effect on result of election - Withdrawal of candidature - Improper rejection - Grounds for declaring election void - Improper reception, refusal or rejection of any vote - Non-compliance with provisions of the Act or Rules - Election petition - Rejection of votes - Counting of votes - Excess ballot papers - Burden of proof - Recounting of votes.
Fact of the Case:
The petitioner lost the election to the 13-Ferozepur Parliamentary Constituency held in February, 1992, by a margin of 1296 votes. He challenged the election of the respondent through an election petition, alleging that his request for withdrawal of candidature had been illegally declined by the Returning Officer and it materially affected the election of the respondent. He also alleged that one thousand excess ballot papers were found in the ballot boxes relating to the Fazilka Assembly Segment of the Parliamentary Constituency and that votes polled in his favor were wrongly rejected or considered to have been polled in favor of the respondent.
Finding of the Court:
The court found that the Returning Officer had erred in declining the request of the petitioner for withdrawal of his candidature, but held that the result of the election had not been materially affected in so far as the returned candidate was concerned. The court also found that the petitioner had failed to prove that 1000 excess ballot papers had been found in the ballot boxes or that votes polled in his favor were wrongly rejected or considered to have been polled in favor of the respondent.
Issues: 1. Whether the request of Mr. Nasib Singh for withdrawal of his candidature was illegally declined by the Returning Officer and did it materially affect the election of respondent No. 1? 2. Whether one thousand excess ballot papers in addition to those actually polled were found in the ballot boxes relating to the Fazilka Assembly Segment of the Parliamentary Constituency in the election? 3. Whether the votes as mentioned in paragraph 16 of the petition were wrongly rejected or considered to have been polled in favor of respondent No. 1?
Ratio Decidendi: The court held that the Returning Officer had erred in declining the request of the petitioner for withdrawal of his candidature, but held that the result of the election had not been materially affected in so far as the returned candidate was concerned. The court also found that the petitioner had failed to prove that 1000 excess ballot papers had been found in the ballot boxes or that votes polled in his favor were wrongly rejected or considered to have been polled in favor of the respondent.
Final Decision: The election petition was dismissed.
1. The election to the 13-Ferozepur Parliamentary Constituency was held in February, 1992. The petitioner lost the election to Mr. Mohan Singh, respondent No. 1 by a margin of 1296 votes. He has now questioned the election of the respondent through this election petition.
2. The petitioner avers that he was a candidate of the Congress (I) party. The polling took place on 19/02/1992, and the counting of the ballot papers was done on 20/02/1992. A total of 9 candidates has contested the election. The result was declared on 21/02/1992. The various candidates polled the votes as under:-
1. Sh. Santokh Singh 1,49,607 (Petitioner) Cong. (I) 2. Sh. Mohan Singh s/o Kansa Singh, BSP 1,50,903 3. Sh. Anish Kumar, Janta Dal 9,519 4. Sh. Surjit Kumar, BJP 92,401 5. Sh. Lakhmir Singh Sad (Kabul) 19,791 6. Sh. H. S. Bhullar, Independent 7,867 7. Sh. Daulat Ram, Independent 1,315 8. Sh. Nasib Singh, Independent 1,740 9. Sh. Mohan Singh s/o Iqbal Singh (Independent) 1,424
The petitioner avers that Mr. Nasib Singh, a former Congress man who "had remained as a Deputy Minister and Deputy Speaker in the Giani -ail Singhs Ministry from 1972-77 decided to withdraw the candidature from the Ferozepur Lok Sabha seat". He had given a notice of withdrawal dated 3/02/1992, to the Returning Officer. He had authorised his proposer Mr. Surinder Kumar to deliver the notice of withdrawal. The notice and the authorisation "were handwritten by Shri Nasib Singh himself and handed over to Mr. Surinder Kumar, proposer of Nasib Singh on 5-2-1992." These were delivered to Mr. Suresh Kumar, Returning Officer of the Ferozepur Parliamentary Constituency on 5-2-1992 which was the last date of withdrawal at 11.30 a.m. The Returning Officer raised an objection that the notice of withdrawal was not on the prescribed form and returned it to Mr. Surinder Kumar. Thereupon, Mr. Surinder Kumar took the printed withdrawal form, filled it and delivered it then and there to the Returning Officer at 12.10 a.m. "along with the application of withdrawal of Shri Nasib Singh and authorisation". The Returning Officer, however, declined the request of Mr. Nasib Singh in violation of law. Thereupon, Mr. Nasib Singh sent a registered notice "to the Chief Election Commissioner and Chief Electoral Officer, Punjab, bringing to his notice the said act of the Returning Officer. The notice of withdrawal was in his handwriting and contained all necessary particulars as required under S.37 of the Representation of People Act. He also asked the Chief Electoral Commissioner to delete his name from the list of contesting candidates. "Mr. Nasib Singh did not campaign or canvass and in the return submitted by him only an expenditure of Rs. 501.00- was shown. Out of this Re. 1/- had been spent on the nomination papers and Rs. 500.00 had been deposited as security. According to the petitioner, Mr. Nasib Singh had polled 1740 votes. If the request of Mr. Nasib Singh for withdrawal of candidature had been accepted, these 1740 votes would have been polled in favour of the petitioner and the result of election was thus materially affected due to the improper acceptance of his nomination paper.
3. The petitioner also avers that the Fazilka Assembly Constituency is a part of the 13-Ferozepur Parliamentary Constituency. The counting of votes for the Fazilka Segment of the 13-Ferozepur Parliamentary Constituency and the Fazilka Assembly Constituency was held at the Block Development Office, Fazilka. Mr. Mangat Ram Aggarwal, Sub-Divisional Magistrate was the Returning Officer for the Assembly Constituency and the Assistant Returning Officer for the Parliamentary Constituency. After the second round of counting, the (Asstt.) Returning Officer stopped conveying the round-wise position of votes to the Returning Officer. The petitioner avers that he was sitting in the office of the Returning Officer and asked him about the result from the Fazilka segment. He was informed "that there was a dispute over 1000 vot
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