V V MAHAJAN Vs. S SAVARAN SINGH JOSH

JUDGEMENT

(1.) By this election petition u.s. 81 of the Representation of the People Act, 1951, for short, the Act, Dr. V. V. Mahajan, a nominee of the B.J.P. and a defeated candidate, calls in question the election of Savaran Singh Josh, respondent No. I, a nominee of the Congress-I, to the Metropolitan Council of Delhi from Gandhi Nagar Metropolitan Council constituency No. 30 on the grounds that the result of election, in so far as it concerns the returned candidate had been materially affected by the improper reception, refusal or rejection of votes and reception of votes which were void and on account of non-compliance with the provisions of the Constitution, the Act and the Rules and orders made thereunder. It is further alleged that the result of election in favour of the returned candidate is based "on a mis-count and erronous counting". The election of the returned candidate is sought to be voided on-the aforesaid grounds u/s 100(1) (iii) and (iv) of the Act. The challenge to the election being confined to the legality, validity and propriety of counting, petitioner claims a recount, including re-examination of rejected ballot papers and contends that on a reconsideration, rescrutiny of all the ballot papers, it would be found that the petitioner had polled a majority of valid votes and is entitled to be declared elected to the Council from the said constituency.

(2.) Main contestants at the Poll were the petitioner, and the returned candidate. Respondents 2 and 6 were the other candidates at the election and, - though duly served, had stayed away from the proceedings which have been ex parte as against them. Poll was held on January 5,1983 alongwith the election to the other constituencies. There were in all 58 polling stations in the constituency. Counting of votes took place on February 6, 1983. The returned candidate was declared elected by a margin of 36 votes, the returned candidate having secured 12567 votes as against 12531, said to have been polled by the petitioner: 681 ballot papers were rejected as invalid, The other candidates at the election secured votes which varied from 113 to 258. The petitioner does not challenge the process of eection, other than the counting of voes, compilation and declaration of the result and the principal plea of the petitioner therefore, is for a fresh scrutiny of each of the ballot papers, including the rejected ballot papers, and a fresh compilation and declaration of the result in accordance with law.

(3.) The petition is based on the following grounds :