RAM SEWAK YADAV Vs. HUSSAIN KAMIL KIDWAI

JUDGEMENT

(1.) At the general elections held in February 1962, five candidates contested the election to the House of the People from the Barabanki single-member constituency. The appellant Ram Sweak Yadav - who will be referred to as "Yadav" - was at the counting of votes found to have secured to highest number of votes and he was declared elected. Hussain Kamil Kidwai - hereinafter called "Kidwai" - who was one of the candidates at the election submitted a petition on April 6, 1962 to the Election Commission for an order declaring the election of Yadav void and for an order that he (Kidwai) be declared duly elected. The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition. In appeal to the High Court of Allahabad the order passed by the Election Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers. With special leave, Yadav has appealed against the order of the High Court.

(2.) The principal grounds set by Kidwai in support of this petition were -

(3.) At the trial before the Tribunal the parties led no oral evidence. In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies between the original and the certified copies of Forms Nos. 16 and 20 and as the original forms were not called for by Kidwai his second ground must also fail. Kidwai claimed that he would be able to establish his case on pleas (1) and (6) from the ballot papers and submitted that an order for inspection of the ballot papers be made and that he be permitted to show from the ballot papers that returning officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes. The Tribunal rejected the application for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interests of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the returning officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing.