JABARSINGH Vs. GENDALAL

JUDGEMENT

(1.) THE question of law which this appeal has raised for our decision is in relation to the nature and scope of the enquiry contemplated by Sections 97, 100 and 101 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). The Appellant Jabar Singh and the Respondent Genda Lal, besides five others, had contested the election to the Madhya Pradesh Assembly on behalf of the Morena Constituency No. 5. This election took place on February 27, 1962: In due course, the scrutiny of recorded votes took place and counting followed on February 27, 1962 As a result of the counting, the Appellant was shown to have secured 5671 votes, whereas the Respondent 5703 votes. It is not necessary to refer to the votes secured by the other candidates. After the result of the counting was thus ascertained, the Appellant applied for recounting of the votes and thereupon, re -counting followed as a result of which the Appellant was declared elected having defeated the Respondent by 2 votes. The recounting showed that the Appellant secured 5656 votes and the Respondent 5654. Thereafter the Respondent filed and election petition from which the present appeal arises. By his petition the Respondent challenged the validity of the Appellants election on the ground of improper reception of votes in favour of the Appellant and improper rejection of votes in regard to himself. The Respondent urged before the Tribunal either for the restoration of the result in accordance with the calculations initially made before recounting, or a re -scrutiny of the votes by the Tribunal and declaration of the result according to the calculations which the Tribunal may make. His prayer was that the Appellant's election should be declared to be void and a declaration should be made that the Respondent was duly elected.

(2.) THE Election Tribunal found that 10 ballot papers in favour of the Respondent had been improperly rejected and 4 had been improperly accepted in favour of the Appellant. That led to a difference of 12 votes and the position of the votes was found to be the Respondent 5664 and the Appellant 5652 votes.

(3.) THE Tribunal rejected the Respondent's contention and held that in order to consider the relief which the Respondent had claimed in his election petition it was necessary for it to decide whether the Respondent had in fact received a majority of votes under Section 101 of the Act, and so, her re -examined the ballot papers of the Respondent as welt as the Appellant and came to the conclusion that 22 ballot papers cast in favour of the Respondent had been wrongly accepted. The result was that the Respondent had, in fact, not secured a majority of votes. As a consequence of these findings, the Tribunal declared that the election of the Appellant was void and refused to grant a declaration to the Respondent that he had been duly elected.