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Allahbad High Court
S.S.DHAVAN,K.B.ASTHANA
Hukam Singh - Appellant
Versus
Banwari Lal Bipra - Respondent
Decided On : 05/15/1964
Representation of the People Act - Election Petition - Grounds for setting aside election - Miscount of votes - Recount - Scrutiny of ballot papers - Agreed statement of parties - Legality - Reopening of agreed statement - Inspection of election records - Discretion of Tribunal - Material prejudice.
Fact of the Case:
The appellant, Hukam Singh, filed an election petition challenging the election of the respondent, Banwari Lal Bipra, to the Uttar Pradesh Assembly. The appellant alleged that there was a miscount of votes, that the counting of votes was not done according to law, and that the Returning Officer had illegally rejected valid votes cast in favor of the appellant. The Tribunal dismissed the petition, holding that the appellant had failed to prove the allegations of miscount and that the Returning Officer had not acted illegally in rejecting the votes.
Finding of the Court:
The High Court allowed the appeal, holding that the Tribunal erred in dismissing the petition. The Court held that the appellant had made out a prima facie case for a recount of the votes, and that the Tribunal should have allowed the appellant to recheck all the counted ballot papers of the constituency. The Court also held that the Tribunal erred in rejecting the appellant's challenge to the validity of the votes counted in favor of the respondent, as the respondent had not filed a recrimination petition as required by Section 97 of the Representation of the People Act.
Issues: 1. Whether the appellant had made out a prima facie case for a recount of the votes? 2. Whether the Tribunal erred in rejecting the appellant's challenge to the validity of the votes counted in favor of the respondent?
Ratio Decidendi: 1. Yes, the appellant had made out a prima facie case for a recount of the votes. The appellant had alleged that there was a discrepancy of 51 votes between the number of ballot papers found in the bag pertaining to the respondent and the figure given in the ballot paper account. The Tribunal erred in ignoring this discrepancy and in relying on the presumption that the forms relating to the progress of the counting were rightly and regularly prepared. 2. Yes, the Tribunal erred in rejecting the appellant's challenge to the validity of the votes counted in favor of the respondent. The respondent had not filed a recrimination petition as required by Section 97 of the Representation of the People Act, and therefore could not attack the validity of the votes cast in favor of the appellant.
Final Decision: The High Court allowed the appeal and remanded the case to the Tribunal for trial in the light of the observations made in the judgment. The Tribunal was directed to order a recount of all the votes in the constituency and to scrutinize and examine the validity of the questioned ballot papers.
ASTHANA, J. : This is an appeal under S. 116-A of the Representation of the People Act from the judgment of Sri H.K. Sinha, District Judge of Agra appointed as Tribunal under that Act to try an election petition filed by Hukam Singh, appellant questioning the election of Banwari Lal Bipra respondent No. 1, who was elected to the Uttar Pradesh Assembly from 364 Fatehabad Constituency in Agra district in the general elections held in February 1962. The appellant was one of the contesting candidates and so were the other respondents impleaded in this appeal. The roll was taken on the 19th February 1962. As a result of the counting; of votes Banwari Lal Bipra respondent No. 1 obtained 10,988 votes and Hukam Singh appellant obtained 10,939 votes. Thus there was a difference of 47 votes only between the appellant and respondent No. 1, the other contesting candidates obtaining far lesser number of votes. Accordingly Banwari Lal Bipra respondent No. 1, was declared elected. Appellant Hukam Singh then filed an election petition calling in question the election of Banwari Lal Bipra respondent No. 1, on various grounds based on Ss. 100 and 123 of the Representation of the People Act and also prayed that after declaring the election of Banwari Lal Bipra to be void he may be declared to have been duly elected.
2. We are not concerned in this appeal with the case of the parties challenging the election on charges of corrupt practice under S. 123 of the Act and therefore it would not be necessary to mention the pleadings of the parties in respect of those charges. What we are concerned with are the grounds under Ss. 100(d)(III) and (IV) of the Act questioning the election and the grounds under S. 101 of the Act on the basis of which the appellant prayed to be declared to have been elected. The averments in paragraph 6 of the petition constituted the pleas questioning the election grounded on S. 100 of the Act. The grounds which were detailed and amplified in sub-paragraph A related to impersonation. It was alleged that the votes were received of electors who were dead or who did not actually come to vote and the votes were cast in their names by persons impersonating them. As the Tribunal found that the petitioner was not able to prove impersonation and that finding has not been challenged in this appeal before us we are not called upon to consider that finding and the evidence given by the parties on that question. The main points which fall for consideration in this appeal concern the grounds made out on the averments made in sub-para B of para 6 of the petition. It would be convenient at this stage to reproduce the contents of this sub-paragraph which are as follows :-
"(i) Counting of votes was not done according to law.
(ii) Counting of votes was done in the court-room of the S. D. M. Fatehahad who was also the Returning Officer of the said constituency. The room was very small in size and in a part of that room were huddled together twelve tables with three chairs each for sealing the person who assisted the Returning Officer in the counting. Around these tables and chairs were placed benches for seating the agents of nine contesting candidates. It was all confusion and there was no proper opportunity for the candidates and their agents to watch the counting, as a result of which there was wrong counting of votes and the petitioner who had secured the largest number of valid votes was not declared to be elected and respondent No. 1 was wrongly and illegally declared to be elected.
(iii) Counting of votes which began on 26th February, 1962, proceeded continuously till about 1 A.M. on the twenty-seventh February and was begun again from about 11 A.M. on 27th February, 1962, and continued till late in the evening of the same day as a result of which votes could not be correctly counted and the petitioner who had polled the largest number of votes was not declared to be-elected and respondent No. 1 was wrongly and illegally declared t
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