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IN THE HIGH COURT OF ALLAHABAD
Jagdish Sahai and R. N. Sharma, JJ.
KIDWAI HUSAIN KAMIL - Appellant
Versus
YADAV RAM SEWAK - Respondents
First Appeal 11 Of 1963
Decided On : 07/23/1963
ELECTION LAW - ELECTION PETITION - INSPECTION OF BALLOT PAPERS - DISCRETION OF TRIBUNAL - PRINCIPLES - REPRESENTATION OF THE PEOPLE ACT, 1951, SEC. 83, 92, 100(1)(D), RULE 93.
Fact of the Case:
The appellant, Kidwai Husain Kamil, filed an election petition challenging the election of Yadav Ram Sewak to the Lok Sabha from the Bara Banki Parliamentary Constituency. The main ground of the petition was that a large number of ballot papers had been declared invalid by the returning officer, though, in fact, they were valid and that the returning officer committed an error in not accepting a large number of tendered votes which should have been accepted. The Election Tribunal dismissed the petition without allowing inspection of the ballot papers or scrutinizing them itself.
Finding of the Court:
The court held that the Tribunal erred in refusing to allow the inspection of the ballot papers and connected documents. The court observed that the law is that an election petition can be presented on the ground that votes had been wrongly received or wrongly rejected, or that any vote was void. In other words, when such allegations are made, the matter is justiciable and it is the duty of the Tribunal to adjudicate in respect of that matter. Allegations like these can best be proved by placing the particular ballot-papers which, according to a party, have been wrongly received or wrongly rejected or which are void. It is not possible to do so unless an inspection is allowed.
Issues: 1. Whether the Tribunal was justified in refusing to allow the inspection of the ballot papers and connected documents? 2. Whether the allegations made in the election petition were justiciable?
Ratio Decidendi: 1. The court held that the Tribunal erred in refusing to allow the inspection of the ballot papers and connected documents. The court observed that the law is that an election petition can be presented on the ground that votes had been wrongly received or wrongly rejected, or that any vote was void. In other words, when such allegations are made, the matter is justiciable and it is the duty of the Tribunal to adjudicate in respect of that matter. Allegations like these can best be proved by placing the particular ballot-papers which, according to a party, have been wrongly received or wrongly rejected or which are void. It is not possible to do so unless an inspection is allowed. 2. The court held that the allegations made in the election petition were justiciable. The court observed that the allegations made in the election petition were that a large number of ballot papers had been declared invalid by the returning officer, though, in fact, they were valid and that the returning officer committed an error in not accepting a large number of tendered votes which should have been accepted. These allegations, if proved, would have entitled the appellant to a declaration that the election of the respondent was void.
Final Decision: The court allowed the appeal, set aside the order passed by the Election Tribunal dismissing the election petition filed by the appellant and remanded the case to the Election tribunal, Lucknow, for retrial.
( 1 ) THIS is an appeal directed against the order passed by the Election Tribunal, Lucknow, on the 2nd of March, 1963, dismissing the election petition filed by the appellant, Kidwai Husain kamii (Husain Kamil Kidwai ). The Bara Banki Parliamentary Constituency No. 30 (hereinafter referred to as the Constituency) consists of the following five U. P. Legislative Assembly constituencies:-148 nawabganj. 1. 149 Kursi. 2. 150 Bhitauti, 3. 170 Sariu. 4. 171 Tarabganj. 5. In the last general election the appellant Kidwai was a candidate from the constituency on congress ticket. Opposed to him were Yadav Ram Sewak (Ram Sewak Yadav) on the Socialist party ticket, Sri Kishna Das on the Jan Sangh ticket, Krishna Behari on the Swatantra Party ticket, and Autar on the Communist Party ticket.
( 2 ) THE counting of the votes took place between the 26th of February and 28th of February, 1962. Yadav Ram Sewak was declared elected. The number of votes secures by each of the candidates is as follows: kidai Husain Kamil 76,224. (1) (Congress-Petitioner)Yadav Ram Sewak 76,545. (2) (Socialist-respondent no. 1)Sri Krishna Das (Jan 33,602. (3) Sangh-respondent no. 2 ). Krishna Behari 18,971. (4) (Swatantra Party respondent No. 3)Autar 13,134. (5) (Communist-responden t No. 4)
( 3 ) THE petitioner Kidwai presented the election petition giving rise, to this appeal before the election Commission on 10th of April, 1962. The Election Commission constituted a Single member Tribunal presided over by Sri S. Malik for deciding this petition. The election petition which is dated the 6th of April, 1962, was published in the Gazette nf India dated the 5th of May, 1962. On the 1st of June, 1962, it was received by Sri S. Malik, (at present District Judge, lucknow) for decision. Several grounds were taken in the petition including those relating to corrupt practice on the part of Yadav ram Sewak, the respondent No. 1 the main ground however, was that a large number of ballot papers had been declared to be invalid by the returning officer, though, in fact, they were valid and that the returning officer committed an error in not accepting a large number of tendered votes which should have been accepted. It was also alleged in the petition that there was a discrepancy in the total number of votes in form No. 16 prepared by the presiding officer and form no. 20 prepared by the returning office, that there were glaring mistakes in totalling up of the figures and that a large number or votes, which were polled in his favour, were not so counted and many of them were counted erroneously in favour of the respondent No. 1. ection Commission on 10th of April, 1962. The Election Commission constituted a Single member Tribunal presided over by Sri S. Malik for deciding this petition. The election petition which is dated the 6th of April, 1962, was published in the Gazette nf India dated the 5th of May, 1962. On the 1st of June, 1962, it was received by Sri S. Malik, (at present District Judge, lucknow) for decision. Several grounds were taken in the petition including those relating to corrupt practice on the part of Yadav ram Sewak, the respondent No. 1 the main ground however, was that a large number of ballot papers had been declared to be invalid by the returning officer, though, in fact, they were valid and that the returning officer committed an error in not accepting a large number of tendered votes which should have been accepted. It was also alleged in the petition that there was a discrepancy in the total number of votes in form No. 16 prepared by the presiding officer and form no. 20 prepared by the returning office, that there were glaring mistakes in totalling up of the figures and that a large number or votes, which were polled in his favour, were not so counted and many of them were counted erroneously in favour of the respondent No. 1.
( 4 ) A written statement was filed on behalf of Yadav Ram Sewak (hereinafter referred to as the contesting
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