NATHU RAM Vs. R.P. DIKSHIT

JUDGEMENT

(1.) THIS is a petition for certiorari (or any other suitable writ or order) for the quashing of orders passed by an Election Tribunal on 9 -2 -1963 and 17 -8 -1962 in an election petition pending before it. The petitioner, Dr. Jawahar Lal opposite party No. 2, and opposite parties Nos. 3, 4 and 5 contested election for membership of the Uttar Pradesh Vidhan Sabha and the petitioner was declared duly elected as having secured a majority of valid votes. Opposite party No. 2 (who will be referred to as the opposite party, because the other opposite parties, though served with the notice of the petition, have remained absent) filed a petition under Section 81 of the Representation of the People Act challenging the petitioner's election on several grounds including that the result of the election was materially affected by the irregularities committed by the Returning Officer and sought the relief of declarations that the petitioner's election was void and that the opposite party was duly elected as a member and other reliefs with which we are not concerned. Among the irregularities mentioned in paragraph 18 of the petition were counting of a thousand invalid votes in the petitioner's favour, wrongly rejecting many valid votes cast in the opposite party's favour and counting in the petitioner's favour a large number of votes cast in favour of the opposite party and other defeated candidates. No particulars of the votes involvedin these irregularities were given in the petition. The petition was verified on 11 -4 -1962, but the date of its presentation is not known. It was transferred by the Election Commissioner to the Tribunal consisting of Shri R.P. Dikshit, Additional District Judge, Allahabad, in July 1962.

(2.) AN election cannot be called in question except by an election petition presented to the Election Commission within a certain period. An election petition must contain 'a concise statement of the material facts on which the petitioner relies' and 'full particulars of any corrupt practice that the petititioner alleges'. The relief's that can be claimed in an election petition are a declaration that the election of any returned candidate is void and a declaration that the petitioners or any other candidate has been duly elected. On receipt of an election petition the Election Commissioner has to refer it to an Election Tribunal for trial. Every election petition is to be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the C. P. C., to the trial of suits see Sections 80, 81, 83(1)(a), 86 and 90(1). Section 97 lays down that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate may give evidence to prove that - 'the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election : Provided that the returned candidate .... shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.' Every such notice must be accompanied by the statement and particulars required by Section 83 in the case of an election petition. The date fixed for the respondents to appear before the Tribunal and answer the claim or claims made in an election petition is the date of its commencement within the meaning of this provision. Section 100 sets out the grounds for declaring an election to be void and the material provision is Sub -section (1) (d), which is as follows : '(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice ...... or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non -compliance with the provisions ...... of this Act or of any rules or ordersmade under this Act.'

(3.) A reference to Rules made under the Representation of People Act concerning counting of votes is necessary. Rule 57 provides that ballot papers taken out of each ballot box must be arranged in convenient bundles and scrutinized and that the Returning Officer must reject a ballot paper if it bears a mark by which the elector may be identified, or is a spurious ballot paper or has been damaged or mutilated or is an unauthorised ballot paper or does not bear the official mark referred to in Rule 27 (2) or the elector has put in the same ballot box more than one ballot paper, after briefly recording the reasons on it. Rule 58 provides that 'every ballot paper which is not rejected under Rule 57 shall be deemed to be valid and shall be counted' and that the result of the counting of the ballot papers found in each ballot box should be noted down in form 22. Rule 60 deals with scrutiny and rejection of postal ballot papers no cover in form 18C containing a postal ballot paper received by the Returning Officer after the expiry of the time fixed in that behalf must be opened and no vote contained in any such ballot paper must be counted and a postal ballot paper must be rejected for reasons similar to those given above. These rules make it clear that a vote that is received is either accepted as valid or is rejected. A vote cannot be both accepted and rejected. A valid vote must be accepted and can never be rejected. Section 62 of the Act prohibits voting by a person not entered in the electoral roll of the constituency, or by a person subject to certain disqualification's or at a general election in more than one constituency of the same class or more than once in the same constituency or if he is confined in a prison. These prohibited votes cannot be received at all and if a person votes in more than one constituency or votes in the same constituency more than once all his votes are void. This is the position in respect of votes cast through ballot boxes. A postal ballot paper contained in a cover received after the expiry of the prescribed time is not to be received at all. Whether any vote has been improperly received, refused or rejected or whether any void vote has been received within the meaning of Section 100(1)(d)(iii) has to be decided with reference to these provisions. If a void vote or a prohibited vote is received it is a case of improper reception. If a valid vote is rejected it is a case of improper rejecting of a vote. If a cover containing a postal ballot paper is wrongly refused it is a case of improper refusal of a vote.