RAM HARSH MISRA Vs. SUKHAD RAJ SINGH

JUDGEMENT

(1.) THIS election petition has been filed by Ram Harsh Misra to challenge the election to the U. P. Legislative Assembly from Constituency No. 148 known as Mahsi Constituency District Bahraich that was held on 26-2-1974. This election was contested by the petitioner and the respondents Nos. 1 to 9. The respondent No.1 Sukhadraj Singh having secured the largest number of votes i.e.. 16486 was declared elected. The petitioner lagged behind him by 33 votes having secured 16453 valid votes.

(2.) THE election has been challenged mainly on the around that the courting of votes was not done properly. It was alleged that the size of the counting tables was small and when ten counting agents one of each candidate and three members of the courting staff sat around it there was great overcrowding. It was not possible for the counting agents to watch the ballot papers closely and see if they were being properly sorted out and kept correctly in the trays meant for each candidate. The counting was also done hurriedly. The counting was done in five rounds. The total number of rejected ballot papers was 2039 and the rejection was also done in a mechanical manner. The counting of first and second rounds had been completed at about 4.30 P. M. and 7 P. M. respectively and thereafter the third round of counting was completed at about 11 P. M. The fourth and fifth rounds were taken together and their counting was completed at about 5 A. M. When the second round of counting was about to close, the light was fading and there was inadequate lighting arrangement. The counting continued in that fading light also in spite of protest being made that in that light even the marks of seal on the ballot papers were not distinctly visible and as such counting should be postponed, But the Returning Officer did not pay any heed to this protest. The respondent No. 1 himself had moved an application complaining about fading light but even then no action was taken by the Returning Officer. This gave an opportunity to the counting staff to bundle out and count the ballot papers in their own manner recklessly, negligently and carelessly. When in that fading light the petitioner's agent asked a number of times to show him a particular ballot paper, the counting staff did not agree but asked him to go to the Returning Officer who in his turn said that the counting was being done by the counting staff and not by him and it was not possible for him to go and supervise the counting being done at all the fourteen tables every time. In spite of these heavy odds, the Petitioner was leading all other candidates including he respondent No. 1 in the first three rounds and he was fully convinced of the fact that had the counting taken place in the proper manner in accordance with the rules after giving due opportunity to his agents his lead in those three would have been by more 100 votes than what was actually counted by the counting staff. The petitioner further alleged that the counting staff which had mostly been drawn from the consolidation department attached to the Settlement Officer (Consolidation) was favourably inclined towards the Jan Sang candidate the respondent No. 1. In the fourth round the petitioner's lead was reduced while in the fifth round the petitioner was made to lose. It was further alleged that on table No. 11 the number of ballot papers counted in favour of the petitioner as valid votes was 262 but that was entered as 162 in the result sheet which was however detected by the petitioner's counting agent immediately and on his protest that this had been done deliberately, it was corrected. This fact would be evident from a perusal of Form No. 20. The petitioner who had after the counting had started, gone back to his house as he was not keeping fit, received a message sent by his agents that serious irregularities were being committed and efforts were being made by the counting staff to bring about his defeat and to bring about the success of respondent No. 1 by hook or crook. The petitioner then went to the counting Pandal in the early morning of 28-2-1974 before the result of fourth and fifth rounds was declared. By that time the petitioner could not collect all the information regarding the other rounds from his counting agents and so he moved an application before the Returning Officer for recounting of fourth and the fifth rounds. The Returning Officer invited objections from the respondent No. 1 who filed some objections in writing. After some talk between the agents of the respondent No. 1 and the counting staff, the respondent No. 1 was persuaded to withdraw his objection and then his application for recounting was allowed In this recount which was confined to fourth and the fifth rounds some mistakes were found as a result of which the majority secured by the respondent No. 1 was reduced by two votes. By that time the, petitioner learnt about the irregularities committed in the counting in other rounds also and on seeing that some mistakes had been committed in the counting of fourth and the fifth rounds, he moved an application for a total recount which was rejected by the Assistant Returning Officer on account of threats held out by the Jan Sangh candidate and his agents and supporters that if that application was allowed they would use violence. On the basis of the oral objections that were raised by the petitioner's counting agents but were overruled by the counting staff and the Returning Officer the petitioner gave some rough figures about improper rejection of valid votes in his favour and the improper acceptance of invalid votes in favour of respondent No. 1.

(3.) THE petition was contested by the respondent No. 1 who denied most of these allegations and alleged that the counting had been done properly and in accordance with the rules and there had been no irregularity or illegality in the counting votes. He also took some technical pleas about the validity of the election petition which will be evident from the issues framed in this case. These issues were as follows: