DEVCHAND Vs. RAGHURAJSINGH

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner seeks a writ of certiorari to quash the order in an election petition under Rule 43 of the Rules framed under the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972.

(2.) THE petitioner and the respondent No.1 were the only contestants for the election of membership of Krishi Upaj Mandi Samiti, Khurai from ward No.8. The petitioner's symbol was 'Taraju' while that of the respondent No.1 was 'bullock'. The polls were held on 25.12.1975 and 26.12.1975 was fixed as the date for counting. In the counting. 4 votes were rejected out of which two were found to be blank. 38 votes were cast in favour of the respondent No.1 and 37 votes were found in favour of the petitioner. Before the return had been signed, the petitioner applied for are -count contending that the two votes polled in his favour were improperly rejected. The respondent No.1 did not object to the recount but stated that the recounting should confine itself to mere enumeration of the votes and the Returning Officer should not go into the question of the validity of the votes already rejected. The Returning Officer acting under Rule 37 of the rules framed under Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 permitted a recount. He found that if the ballot papers Nos. 38 and 59 cast in favour of the respondent No.1 were accepted, there was no reason why ballot papers numbering 35 and 41 should be rejected as all the four votes were tainted with the same imperfection, if it could be called so. Since, in, his opinion, ballot papers No. 35 and 41 were improperly rejected, he accepted them with the result that the total number of votes in favour of the petitioner was enhanced by two votes making his total to 39. The Returning Officer thereafter filled in the return and declared the petitioner elected.

(3.) THE respondent No.2 who heard the election petition held that under Rule 37, it was not competent for the Returning Officer to have scrutinized the validity of the rejected votes in the recounting done. In his opinion the Returning Officer's job was restricted to the enumeration of votes and to mistakes in such enumeration but he could not either reject or accept any ballot paper which was previously rejected in the counting under Rule 36. The respondent No.2, however, did not give any decision on the question whether or not the votes as alleged by the petitioner were improperly rejected in the counting in the first instance.