NATHURAM MIRDHA Vs. GORDHAN SONI

JUDGEMENT

(1.) This is an appeal against the order of Jagat Naryan J., of the High Court of Rajasthan dismissing the appellants election petition against respondent 1 (the returned candidate ). The petition was for recount of the ballot-papers and for a declaration of the election of respondent 1 to be void if on such recount it were to be found that respondent 1 had not secured a majority of valid votes. The petition was first heard in August 1967 and was dismissed. The appellant thereupon appealed to this Court and this Court by its judgment dated May 3, 1968 set aside the said order of dismissal ordered recount and remanded the case to the High Court. The High Court accordingly conducted tbe recount scrutinising the ballot-papers for ascertaining whether any of the 1300 and odd disputed ballot-papers had been improperly received in favour of respondent 1 and once again dismissed the petition holding that even after the recount the appellant had failed to establish that the said disputed ballot-papers were improperly counted in favour of respondent 1. The High Court farther held that in order to make out a case that the said ballot-papers had been improperly received and such reception had materially affected the result of the election the said ballot-papers were tampered with after the result of the election had been announced and during the six days that they remained in the charge of respondent 2, the Returning. Officer, and that such tampering could only have been committed at the instance of the appellant and with the connivance of respondent 2. This appeal disputes the aforesaid conclusions of the High Court.

(2.) The High Courts judgment was challenged before us on two grounds: (1) that the High Court was not justified in going into the question of tampering, firstly, as it was not canvassed at the first hearing, no particulars thereof had been given in the replication of respondent 1 and therefore no finding thereon was given and, secondly, because the question was beyond the scope of the said order of remand which was an order for recount simpliciter, and (2) on merits, it was urged that the finding was hot justified as it was based on no evidence and rested only on conjectures and speculations.

(3.) Before we proceed to consider these contentions we may first set out certain facts and also what took place during the hearing of the petition both before and after the remand. The appellant at the time of the election and the counting of votes was the Minister of Agriculture in Rajasthan Government. The contest was a straight one between him and respondent 1. The polling took place on February 15, 1967 and the counting was made on February 22, 1967. According to the result announced respondent 1 and the appellant secured 23169 and 22458 votes respectively, the difference being only 711. The counting took place in the Municipal Hall at Merta. There were in all 83 polling stations in Merta constituency. Ballot-papers Pertaining to one polling station were counted at one table. There were seven such tables. They were first sorted out in three steel trays, in one of them were kept valid ballot-papers in favour of the appellant, in the second the valid ballot-papers of respondent 1 and in the third the doubtful ballot-papers for scrutiny. The ballot-papers in each tray were then made into bundles of 50 each and the doubtful ballot-papers were made into a separate bundle. The bundles of each kind then were lied together into one bigger bundle. The three bigger bundles, i. e. one of valid votes for the appellant, the second of valid votes for respondent 1 and the third of doubtful votes, were then placed before respondent 2 for final scrutiny and counting. This counting was done by a supervisor flanked by two assistants who sat opposite to respondent 2. As the counting of one polling station was completed respondent 2 used to announce the figures of valid votes polled by each of the two candidates and also the figure of rejected votes. Before counting was resumed in the morning of February 22, 1967 the appellants election agent, one Ajmera filed an application for a recount of ballot papers so far counted complaining that the method of counting and checking adopted by the supervisors was defective and .therefore mistakes were apprehended. On this application respondent 2 passed an order that counting had already started and that if Ajmera so. desired he could apply for recount after the counting was over. Accordingly Ajmera submitted another application requesting a recount in all of . 24 polling stations. Respondent 2 rejected this application stating that the application was unreasonable. Respondent 1 also had on that day filed an application for recount of ballot-papers of 8 polling stations therein specified. That too was rejected on the ground that the allegations made therein were wrong and that the counting had been properly done.