KUNDAN SINGH Vs. KABUL SINGH

JUDGEMENT

(1.) AT the election to the Punjab Legislative council held in April, 1968, 5 candidates contested the election from Hoshiarpur local Authorities Constituency. The last date for the filing of the nomination papers was 12th of March, 1968. The date for the scrutiny of these papers was 13th of March, 1968; and the last date of withdrawal was 16th of March, 1968. The actual polling took place on the 7th of April 1968; The date for the scrutiny of these papers was 13th of March, 1968; and the last date of withdrawal was 16th of March, 1968. The actual polling took place on the 7th of April, 1968; and the result was declared on the 8th of April, 1968. The candidates, who contested who contested the election, were- Kundan Singh, petitioner; Kabal Singh, respondent No. 1; Didar Singh, respondent No. 2; Mian Mohinder Singh, respondent No. 4; Kabal Singh, respondent No. 1 was declared elected. This led to the present petition by Kundan Singh on the 13th of May, 1968, to this Court, for an order declaring the election of Kabal Singh void and for an Order that the Kundan Singh void and for an Order that the Kundan Singh be declared duly elected. On the 2nd of August 1968, Kabul Singh filed a Recriminatory Petition under Section 97 read with Section 101 of the Representation of the People Act, 1951. (After setting out the grounds and the issues in the election petition and the recriminatory petition, his Lordship disposed of the issues arising in the election petition except issue No. 1 against the petitioner. The order then proceeded: In view of my not deciding issue No. 1 and leaving it to be decided by a larger Bench, the papers of this case will now be laid before my Lord the Chief Justice for constituting a Fill Bench as early as possible to settle that issue. I may mention that in case issue No. 1 is decided in favour of the respondent and against the petitioner, it will not be necessary to send back the case for final orders. In that event, the petition will stand dismissed with costs which are assessed at Rs. 250. But in case issue No. 1 goes against the respondent and in favour of the petitioner, it will then be necessary to try the recriminatory petition filed by the respondent. OPINION OF THE FULL BENCH Shamsher Bahadur, J.

(2.) THE single question emerging out of the order of reference of Mahajan J. for determination of this Full Bench is whether the order for inclusion of the voter Hari Singh by the Electoral Registration Officer of 5th of April, 1968, falls within the ambit and scope of his authority when 12th March, 1968, was the last date for making nominations in view of the inhibition laid down in sub-section (3) of Section 23 of the Representation of the People Act, 1950 (hereinafter called the Act') that "no direction for the inclusion of a name in the electoral roll of a constituency shall be given After the last date for making nominations for an election in that constituency".

(3.) THERE is no dispute on facts. A notification of the Punjab Government of 5th of March, 1968, called upon the Hoshiarpur Local Authorities Constituency to the Punjab Legislative Council to elect a member. The last date for filing nominations was 12th March, 1968. Scrutiny was to take place on 13th March, and the last date for withdrawal was 16th of march, 1968. The polling took place on 7th of April, 1968, and consequent on the counting which took place on 8th of April, 1968, the Deputy Commissioner of Hoshiarpur as the Returning Officer announced the result. The number of votes in the constituency is not very large as is clear from the votes cast. 22 votes having been rejected, the counting took place only with respect to the remaining 358 valid votes. Both the petitioner Kundan Singh, and the returned candidate Kabul Singh, the first respondent, secured 169 first preference votes. The three other candidates, with whom we are not concerned, secured nominal number of such votes. In the second count, the first respondent got three votes and the petitioner two. The returned candidate having secured a lead of one vote was declared successful