Bashir Ahmed Magrey Vs. Ghulam Quadir
Mir & Ors [1976] INSC 312 (2 December 1976)
KHANNA, HANS RAJ KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION: 1977 AIR 231 1977 SCR (2) 297 1977
SCC (1) 285
ACT:
Jammu and Kashmir Representation of the
People Act, 1957--S. 100(1)(d) (iii)---Scope of--improper reception or improper
rejection of votes--When invalidates election--Grounds not taken in election
petition--If could be raised in appeal--Ballot papers bore initials of Presiding
Officer--Election--If invalid.
HEADNOTE:
100(1) (d)(iii) of the Jammu & Kashmir
Representation of the People Act, 1957 provides that if the High Court is of
opinion that the result of the election in so far as it concerns a returned
candidate, has been materially affected by the improper reception, refusal or
rejection of any vote or the reception of any vote which is void, the High
Court shall declare the election of the returned candidates to be void.
The appellant was declared elected to the
State Assembly in the General Elections. In his election petition the
respondent, a defeated candidate, contended that improper rejection at the time
of counting of votes cast in his favour and improper reception of votes at the
time of polling in favour of the appellant had materially affected the result
and that therefore the appellant's election should be declared void.
The High Court held that certain votes had
been improperly received in favour of the appellant, certain votes validly
polled in favour of the respondent were improperly rejected at the time of
counting; and in respect of 550 votes which were found to have been improperly
received, the High Court held that the appellant was the greatest beneficiary
of those votes although the precise number by which he was benefited could not
be easily ascertained.
In appeal, this Court directed the Registrar
to scrutinise the 550 ballot papers to find out as to how many of those votes
were cast in favour of the appellant and the other candidates. The result of
the investigation showed that the appellant had a lead of 38 votes over the
respondent.
Allowing the appeal
HELD: There is no escape from the conclusion
that the election of the appellant should be upheld. [303H] (1) In an election
petition founded upon the ground that the result of the election was materially
affected by the improper reception or rejection of votes, the Court has first
to decide whether certain ballot papers were improperly received or were
improperly rejected. Once that controversy is resolved, the rest is purely a
matter of arithmetical calculation. If the result of arithmetical calculation
is that the returned candidate has still a lead over his nearest rival, his
election would not be declared to be void on the ground of improper reception
or improper rejection of votes. Improper reception or improper rejection of
votes can result in invalidating the election only if such improper reception
or improper rejection materially affects the result of the election. [303H] In
the instant case, even after excluding all the votes found to have been
improperly received by the appellant and also giving credit to the respondent
for the votes found by the High Court to have been improperly rejected at the
time of counting, the net result still was that the appellant had a lead over
the respondent.
(2) As it is not permissible to widen the
scope of an election petition, the respondent could not seek relief on grounds
which were not taken by him in the election petition. The respondent could not
derive any benefit on the irregularities committed in the conduct of election.
The election was not challenged on the ground of any irregularity or
non-compliance with the provisions of the Constitution or of the Representation
of the People Act nor was the election assailed on the ground of corrupt
practice. [304D & C] 298 (3) The contention of the respondent that if the
ballot papers which bore the initials and not the full signatures of the
presiding officer are rejected, the appellant's election should be declared
void, is without force. The ballot papers bore the distinguishing marks as
required by r. 38(1). The fact that the returning officer did not reject the
ballot papers on the ground that they bore only the initials and not the full
signatures of the presiding officer showed that the returning officer was
satisfied that the alleged defect was caused by the mistake or failure on the
part of the presiding officer. There can be no doubt that the mistake occurred
because of the mistake or failure of the presiding officer. The first proviso
to r. 56(2) of the Rules provides that where the returning officer is satisfied
that any defect mentioned in cl. (g) or cl. (h) of this Rule has been caused by
any mistake or failure on the part of a presiding officer or polling officer,
the ballot paper shall not be rejected merely on the ground of such defect.
[305B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 317 of 1976.
Appeal from the Judgment and Order dated the
13th February, 1976 of the Jammu & Kashmir High Court in Election Petition
No. 2 of 1972.
M.N. Phadke, Altaf Ahmed and Veerappa for the
Appellant.
Ghulam Quadir Mir (In person) for Respondent
No. 1.
Ex parte for Respondents 2-5.
The Judgment of the Court was delivered by
KHANNA, J. During the general elections held in March 1972 five candidates,
namely, the appellant and respondents No. 1 to 4, contested tile election for
the Jammu & Kashmir State Legislative Assembly from Rajpura constituency.
There was a sixth candidate, namely, Mohamed Abdullah Sheikh, respondent No. 5,
but his nomination paper was rejected. The appellant secured 9,079 votes and
was declared elected.
Respondent No. 1 was the nearest rival and he
secured 8,248 votes. Respondents 2 to 4 secured 1,340, 1,126 and 1,217 votes
respectively. 2,034 votes were declared invalid at the time of counting. After
the declaration of the result of the election, respondent No. 1 filed election
petition out of which the present appeal arises. Two prayers were made in the
election petition: (1) that the election of the appellant be declared to be
void; and (2) that respondent No. 1 be declared to have been duly elected. The
High Court accepted the first prayer and declared the election of the appellant
to be void. The second prayer that respondent No.
1 be declared to have been duly elected was
not granted. The present appeal has been filed by the appellant against the
judgment of the High Court insofar as it has declared his election to be void.
Cross-objections have been filed by respondent No. 1 and it has been prayed on
his behalf that he be declared to have been duly elected.
The election petition was founded on the
following three grounds:
(1 ) Improper rejection of the nomination
paper of respondent No. 5.
(2) Improper rejection of the votes which had
been cast in favour of respondent No. 1 (hereinafter referred to as the
respondent);
and (3) Improper reception of the votes in
favour of the appellant on the day of polling at the following polling
stations:
1. Lassipora--Polling station No. 49
2. Nowpora Pain--Polling station No. 50 299
3. Drubgham-B--Polling station No. 24 4.
Drubgham-A--Polling station No. 23
4. Drugbham-A--Polling station No.23
5. Aliaipora--Polling station No. 51
6. Chandgham--Polling station No. 46
7. Arihal--Polling station No. 35, and 8.
Tikan Batapora--Polling station No. 26.
According to the case of the respondent as
set up in the election petition, the result of the election was materially
affected because of the improper rejection at the time of counting of the votes
which had been cast in his favour and by the improper reception of the votes in
favour of the appellant on the day of polling. Giving particulars in respect of
the third ground, namely, that there was improper reception of votes in favour
of the appellant on the day of polling, the respondent stated that the total
number of votes at Lassipura (polling station No. 49) was 824. All those votes
were shown to have ben polled, although 162 voters registered in that area did
not cast their votes.
The figure of 162 included 16 persons who
were dead before the date of polling. Electoral numbers of those 162 voters,
including 16 dead persons, were also mentioned in the petition. The votes of
162 persons were thus stated to have been improperly received. Similar
allegations were made in respect of Nowpora Pain (polling station No. 50),
Drubgham B (polling station No. 24), Drubgham A (polling station No. 23),
Alaipora (polling station No. 51), Chandgam (polling station. No. 46), Arihal
(polling station No. 35) and Tikan Batapora (polling station No. 26).
We may add at this stage that the first
ground, namely, that relating to the improper rejection of the nomination paper
of respondent No. 5, was not pressed at the trial of the election petition, and
as such no 1onger survives.
The election petition was resisted by the
appellant and he denied the various allegations made by the respondent.
He also pleaded that the allegations in the
election petition were vague, indefinite and uncertain. Objection was also
raised regarding the maintainability of the petition on the grounds that it had
not been properly verified and there war misjoinder of parties.
The petition was initially heard by
Wasi-ud-Din J. It thereafter came up for hearing before Jalal-ud-Din J.
Ultimately, it came up for hearing before
Mufti Baha-ud-Din Farooqi J. who finally decided the petition and gave the
judgment under appeal.
During the pendency of the petition, orders
were made on three occasions for inspection of the ballot papers. The first
order was made by Wasi-ud-Din J. on August 13, 1973.
The learned Judge, considered the prayer for
inspection of ballot papers under three heads:
"(1) Request for inspection of ballot
papers which were rejected at the time of counting;
(2) Request for inspection a ballot paper
account (Form No. 16) in respect of the various polling stations and of the
ballot papers relevant thereto;
300 (3) Request for inspection of marked
copies of electoral rolls at polling stations Lassipora, Drubgham A & B,
Achan, Chandgham, Afthal, Nowpora Pain, Tikam Batopora, Alaipora." Prayer
under the first and third heads was rejected but that under the second head was
allowed to the extent of the inspection of form No. 16 in respect of Lassipora,
Nowpora Pain, Drubgham B, Drubgham A, Alaipora, Chandgham, Arihal and Tikan
Batopora polling stations. Inspection of a few ballot papers, of which the
numbers were specified, relating to some of the polling stations was allowed.
On November 2, 1973 the learned Judge amplified his previous orders in these
words:
"My order as it stands should be read to
Clearly signify which I am amplifying here also that the sorting of the ballot
papers will be done by the Deputy Registrar but in the presence of the learned
counsel for both the parties. The learned counsel for the parties will not be
allowed to handle the ballot papers until they are sorted out by the Deputy
Registrar and after this is done, the respective learned counsel for the
parties can handle and inspect the ballot papers." On June 13, 1974 the
learned Judge, on an application made by the respondent, allowed inspection of
ballot papers of two more polling stations, viz., Chandgham and Alaipora.
The respondent also made prayer for leave to
inspect the ballot papers of other polling stations, but the prayer in that
behalf was rejected. The following directions were further issued by the
learned Judge:
"The petitioner has also made a prayer
that the Deputy Registrar be given directions to ascertain if the 34 series of
two inspected polling stations Nos. 24 and 50 are not mixed in the fourth trunk
which has been produced.
The Deputy Registrar will of course see to
this and such other discrepancies which may come to his notice, he will make a
separate note and he will also make a note on the envelope if he found the
discrepancy." After Wasi-ud-Din J. relinquished his office, the case was
assigned to Jalal-ud-Din J. An application was then made on July 29, 1974 by
the respondent seeking permission to inspect ballot papers and other documents
pertaining to the various polling stations, This application was disposed of by
Jalal-ud-Din J. as per order dated January 6, 1975 in these words:
"I, therefore, allow the application of
the petitioner for inspection of ballot papers in respect of four veiling
stations, namely, 26 Tikan Batapora from serial No. 015051 to 15700, 35
Arihal-A from serial No. 020901 to 021550, 49 Lassipora from serial No. 031051
to 031900, 23 Drubgham from serial No. 013201 to 013800 and also the
counterfoils of 15 Nowpora Pain, 24 Drubgham B. 46 Chandgham and 51 Alaipora,
the polling stations of which the ballot papers have already been inspected by
the petitioner. 1, however, do not accede to the request of the petitioner to
inspect electoral roll and 301 counterfoils and from 16 of the entire constituency.
The inspection as ordered will be held by and in presence of the counsel for
the parties. But the Deputy Registrar will see that neither the candidate nor
their counsel shall, handle the record. The Deputy Registrar will further make
a separate note and record of the discrepancies found, if any. The inspection
will be held during vacation on a date to be fixed by the Deputy
Registrar." In the judgment under appeal the learned Judge held that 59
votes validly polled in favour of the respondent were improperly rejected at
the time of counting. It was further found that 901 votes, including 28 votes
of dead voters, were improperly polled.. Out of 901 votes, 351 votes were found
to have been polled in favour of the appellant. Details of those 351 votes were
as under:
Alaipora polling station No. 51 200 Arihal
polling station No. 35 51 Takin Batapora P.S. No. 26 100 Regarding the
remaining 550 votes, the learned Judge found that the evidence was not clear,
and observed as under:
"The evidence, however, is not clear as
regards the fate of the remaining 550 such votes. But having regard to overall
circumstances of the case it will not be unreasonable to conclude that
respondent No. 1 was the greatest beneficiary of these 550 votes although the
precise number by which he was benefited out of those votes may not be easily
ascertainable. To these circumstances may be added the circumstance that 59
votes validly polled in favour of the petitioner were improperly rejected at the
time of counting, as held by me before. The cumulative effect of these
circumstances is that the respondent No.
1 was able to get an undue advantage of no
less magnitude and may be, even greater than that reflected in his declared
success over the petitioner by 831 votes. In this view it must be held that the
result of the election, insofar as respondent No. 1 is concerned, was
materially affected by the improper rejection of votes in favour of the
petitioner at the time of counting and the improper reception of votes on the
day of poll and that his election must be declared to be void. But that should
not entitle the petitioner to a declaration that he was duly elected as the
total number of the votes improperly received in favour of respondent No. 1 on the
date of poll could not be exactly worked out. The prayer for such declaration
must be rejected." In the result, the election of the appellant was
declared to be void. The prayer of the respondent for a declaration that he be
declared to have been elected was rejected.
When this appeal came up for hearing before
this Court on September 3, 1976, we passed an order wherein we referred to the
finding of the High Court that it cannot be said as to who was the beneficiary
of the 550 votes which were found to have been improperly polled. We thereafter
stated in that order:
302 "In our opinion, it is necessary to
find out as a result of further inspection as to how many d those 550 votes
were in favour of the appellant, and how many, in favour of respondent No. 1
and the other contesting candidates. For this purpose, we depute the Registrar
(Judicial) of this Court to make an inspection in the presence of the parties
and their counsel and submit a report to this Court within six weeks from
today. The Registrar may also have to locate the 55 ballot papers referred to
in the judgment of the High Court at pages 31-51 of the cyclostyled judgment.
He may also, if necessary, refer to the reports of the Deputy Registrar of the
High Court. The appeal should be put up for further hearing as soon as the
report is ready." The Registrar of this Court thereafter submitted his
report dated September 15, 1976. The Registrar dealt with most of the matters
but in respect of some of the matters he sought further directions. Necessary
directions were thereafter issued by this Court on September 17, 1976. As a
result of those directions, the Registrar had to scrutinise 571 ballot papers
in all instead of 550 votes. The final report of the Registrar is dated
September 24, 1976. The result of the reports of the Registrar taken along with
the findings of the High Court may be set out:
(1) Votes found by the High Court to have
been improperly received in favour of the appellant 351 (2) Votes which were
found to have been improperly received in favour of the appellant as per the
first report of the Registrar 286 (3) Votes which were found to have been
improperly received in favour of the appellant as per the second report of
Registrar.
141 Total 778 (4) Total number of votes
polled by the appellant as per the results of the election 9,079 (5) Valid
votes polled by the appellant 9,079-778=8301 (6) Votes which were found to have
been improperly received in favour of the respondent as per the first report 25
(7) Votes which were found to have been improperly received in favour of the
respondent as per the second report 19 Total 44 (8) Total votes polled by the
respondent as per the result of the election 8,248 (9) Votes validly polled in
favour of the respondent which were found by the High Court to have been
improperly rejected at the time of counting 59 303 (10) Total number of votes
thus polled by the respondent 8,248+59=8,307 (11) Valid votes polled by the
respondent 8,30744=8,263 (12) Excess of votes validity polled in favour of the
appellant over those of of the respondent.
38 Some votes were found by the Registrar to
have been improperly received in favour of respondents 2 to 4, but it is not
necessary to set out those votes.
In appeal before us Mr. Phadke on behalf of
the appellant has urged that in view of the final picture as it emerges from
the reports of the Registrar, the appeal should be allowed and the election
petition be dismissed as the appellant secured more valid votes than the
respondent.
The above stand has been controverted by the
respondent, who has argued the case in person. At an earlier hearing we
requested Mr. Gambhir to argue the case amicus curiae in view of the fact that
the respondent was not represented by counsel. The respondent thereafter stated
that he Would like the matter to be argued by counsel of his own choice. Mr.
Shaukat Hussain thereafter appeared on behalf of the respondent. At the final
hearing the respondent, as mentioned above, chose to argue the case in person.
Perusal of the election petition filed by the
respondent shows that apart from the ground not subsequently pressed of the
improper rejection of the nomination paper of respondent No. 5, the only ground
on which the respondent challenged.
the election of the appellant was the
improper reception of votes in favour of the appellant and the improper
rejection of the votes cast in favour of the respondent.
This ground is based upon sub-clause (iii) of
clause (d) of sub-section (1) of section 108 of the Jammu and Kashmir Representation
of the People Act, 1957 (Act 4 of 1957) corresponding to sub-clause (iii) of
clause (d) of subsection (1) of section 100 of the Representation of the
People, Act 1951 fact 43 of 1951). According to the above provision, if the
High Court is of the opinion that the result of the election, in so far as it
concerns a returned candidate, has been materially affected by the improper
reception, refusal or rejection of any vote of the reception of any vote which
is void, the High Court shall declare the election of the returned candidate to
be void. Keeping the above provision in view, we may now turn to the facts of
the present case. The High Court found that 351 votes had been improperly
received in favour of the appellant. The High Court further found that 59 votes
which had been validly polled in favour of the, respondent were improperly
rejected at the time of counting. In addition to. that, the High Court found
that 550 votes had been improperly received, but it was not possible on the
material on record to find out as to who was the beneficiary of those votes.
The High Court all the same was inclined to believe that the appellant must
have been the major beneficiary of those 550 votes. This necessarily involved
an element of surmise and conjecture.
To find out the exact position, we directed
the Registrar of this Court to 304 scrutinise the 550 ballot papers in question
and to make a report as to how many of those votes were cast in favour of the
appellant and how many in favour of the respondent and the other candidates.
The Registrar thereafter submitted reports and we have already set out the
outcome of those reports taken along with the findings of the High Court.
It would appear from the figures set out
above that, excluding all the votes which were found to have been improperly
received by the appellant and also giving credit to the respondent for 59 votes
which were found by the High Court to have been improperly rejected at that
time of counting, the net result still is that the appellant has a lead of 38
votes over the respondent. There is, therefore, no escape from the conclusion
that the election of tile appellant should be upheld. In an election petition
founded upon the ground that the result of the election was materially affected
by the improper reception or rejection of votes, the court has first to decide
whether certain ballot papers were improperly received or were improperly
rejected. Once ,that controversy is resolved, the rest is purely a matter of
arithmetical calculation. If the result of arithmetical calculation is that the
returned candidate has still a lead over his nearest rival, his election would
not be declared to be void on the ground of improper reception or improper
rejection of votes. Improper reception or improper rejection of votes can
result in invalidating an election only if such improper reception or improper
rejection materially affects the result of the election.
In the course of his arguments, the
respondent has submitted that a number of improprieties were committed in the
conduct of election and therefore the election of the appellant be declared to
be void. Although it does appear from the material on record to which our
attention was invited by the respondent that irregularities were committed in
the conduct of the election, the respondent cannot derive any benefit on that
account. As already mentioned, the respondent sought to challenge the election
of the appellant only on the ground of improper reception and improper
rejection of certain votes. The election of the appellant was not challenged on
the ground of any irregularity or non-compliance with the provisions of the
Constitution or of the Representation of the People Act or of any rules or
orders made there under. Nor was the election of the appellant assailed on the
ground of being vitiated by corrupt practice. As it is not permissible to widen
the scope of an election petition beyond the grounds actually set up in the
election petition, the respondent cannot seek relief on grounds which were not
taken by him in the election petition.
It has also been urged by the respondent that
the number of votes which were improperly received was larger than that found
by the High Court. Nothing cogent has, however, been brought to our notice in
support of the above submission to induce us to interfere with the finding of
the High Court in, this respect.
Lastly, the respondent submits that 153
ballot papers of Lassipora polling station cast in favour of the appellant
should be rejected as 305 they bore the initials and not the full signatures of
the presiding officer. Our attention in this respect is invited to clause (h)
of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965,
according to which the returning officer at the time of counting shall reject a
ballot paper if it does not bear both the mark and the signatures which it
should have borne under the provisions of sub-rule (1) of rule 3 8. According
to sub-rule (1 ) of rule 3 8, every ballot paper shall before issue to elector,
be stamped by such distinguishing mark as the Election Commission may direct,
and be signed in full on its back by the presiding officer. It is not disputed
that the ballot papers in question bore the distinguishing mark. The only
contention of the respondent, as already mentioned, is that the ballot papers
in question bore the initials and not the full signatures of the presiding
officer. In this respect we find that no express ground on that score was set
up by the respondent in the election petition. This apart, we that the matter
is covered by the first proviso to sub-rule (2) of rule 56 which reads as
under;
"Provided that where the returning officer
is satisfied that any such defect as is mentioned in clause (g) or clause (h)
has been caused by any mistake or failure on the part of a presiding officer or
polling officer, the ballot paper shall not be rejected merely on the ground of
such defect." The above proviso which is based upon the principle that a
vote validly cast should not be excluded from consideration because of the
mistake or omission of the presiding or polling officer, makes it plain that
where the returning officer is satisfied that any defect mentioned in clause
(h) has been caused by the mistake or failure on the part of a presiding officer
or polling officer, the ballot paper shall not be rejected merely on the ground
of such defect. The fact that the returning officer in the present case did not
reject the ballot papers in question on the ground that they bore only the
initials and not the full signatures of the presiding officer would go to show
that the returning officer was satisfied that the alleged defect was caused by
the mistake or failure on the part of the presiding officer:
There can indeed be hardly any doubt on the
point that the defect referred to by the respondent occurred because of the
mistake or failure of the presiding officer. We, therefore, see no cogent
ground to exclude from consideration 153 ballot papers polled in favour of the
appellant.
Before we conclude, we may observe that some
other contentions were also advanced on behalf of the appellant. In view of the
fact that the appeal in any case has to be allowed because of the arithmetical
calculations referred to above, it is not necessary to go into those contentions.
As a result of the above, we accept the
appeal, set aside the judgment of ,the High Court and dismiss the election
petition. Cross objections filed by the respondent are dismissed. Looking to
all the facts, we leave the parties to bear their own costs throughout.
P.B.R. Appeal allowed.
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