MAHENDRA PAL Vs. RAM DASS MALANGER

JUDGEMENT

(1.) The petitioner and respondents No. 1 to 7 contested the election to the 9th Himachal Pradesh Legislative Assembly from 33 Kutlehar Assembly Constituency. The petitioner was a Congress candidate, while respondent No. 1 was a candidate of Bhartiya Janta Party. Respondents No. 2 to 7 were either independent candidates or belonging to other political parties. Polling was held on 28.2.1998. The counting of votes took place on 3.3.1998. Respondent No. 1 was declared elected. He secured 11,660 votes as against 11,657 secured by the petitioner. There was thus a margin of only three votes.

(2.) The election of respondent No. 1 has been assailed by the petitioner by virtue of the present petition preferred under Sections 80 and 81 read with Sections 100 and 101 of the Representation of People Act, 1951 (hereinafter referred to as the Act) by contending that irregularities were committed during the counting of the votes. The following reliefs have been sought by the petitioner: (a) Recounting of votes; (b) Inspection of postal, tendered and rejected votes; (c) Setting aside the election of respondent No. 1 and declaring the same as void; and (d) Declaring the petitioner as elected from 33 -Kutlehar Assembly Constituency to the Himachal Pradesh Assembly. 3, The averments as to irregularities alleged to have been committed during the course of counting and for making out a case for recounting of votes, are contained in paras 10 to 13 of the petition, which read as under : "10. That the counting staff after opening the ballot boxes on the tables, took out and separated the ballot papers for the Assembly Constituency as well as for the Parliamentary Constituency. After separating the votes, the votes taken out from each ballot box were counted without determining the same candidate wise. Then the number of the ballots taken out were entered in Form 20 -A under Rules 56 -b(7) of the Conduct of Election Rules, 1961. As per the Form 20 -A, certified copy of which is added herewith as Annexure P/2, the total number of ballot papers polled from all the polling stations of the Assembly Constituency were shown as 35,310, while the votes actually counted from all these polling stations were shown as 35,318, which is evident from the statement Round -wise detailed result of counting, a certified copy of which is added as Annexure P/

(3.) Thus 8 votes more were counted than actually taken out from the ballot boxes for the Kutlehar Assembly Constituency. This cannot happen in any circumstances unless there is irregularity in the counting and this difference of votes clearly shows that the counting was not properly done and has materially affected the election of the respondent No. 1. These irregularities and illegalities were committed during the counting in favour of the respondent No. 1 by the members of the counting staff.