HARI VISHNU KAMATH Vs. AHMAD ISHAQUE

JUDGEMENT

(1.) The appellant and respondents 1 to 5 herein were duly nominated for election to the House of the People from the Hoshangabad Constituency in the State of Madhya Pradesh. Respondents 4 and 5 subsequently withdrew from the election, leaving the contest to the other candidates. At the polling the appellant secured 65,201 votes, the first respondent 65,375 votes and the other candidates far less; and the Returning Officer Accordingly declared the first respondent duly elected. The appellant then filed Election Petition No. 180 of 1952 for setting aside the election on the ground 'inter alia' that 301 out of the votes counted in favour of the first respondent were liable to be rejected under Rule 47(1) (c) of Act No. 43 of 1951 on the ground that the ballot papers did not have the distinguishing marks prescribed under Rule 28, and that by reason of their improper reception, the result of the election had been materially affected. Rule 28 is as follows:

(2.) What happened in this case was that voters for the House of the People in polling stations Nos. 316 and 317 in Sobhapur were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People. The total number of votes so polled was 443, out of which 62 were in favour of the appellant, 301 in favour of the first respondent, and the remaining in favour of the other candidates. Now, Rule 47(l)(c) enacts that

(3.) The first respondent contested the petition. He pleaded that the Returning Officer at Sobhapur had rightly accepted the 301: votes, because Rule 47 was directory and not mandatory, and that further the votes had been accepted as valid by the Election Commission, and the defect, if any, had been cured. He also filed a recrimination petition under Section 97 of Act No. 43 of 1951, and therein pleaded 'inter alia' that at polling station No. 299 at Malkajra and at polling station No. 371 at Bammangaon ballot papers intended for use in the State Legislature election had been wrongly issued to voters to the House of the People by mistake of the polling officers, that all those votes had been wrongly rejected by the Returning Officer, and that if they had been counted, he would have got l17 votes more than the appellant. He accordingly challenged the right of the appellant to be declared elected.