MOHD SADIQ Vs. RAFIQ HUSSAIN KHAN

JUDGEMENT

(1.) THIS order will dispose of an application dated 15 -5 -1978 filed by the petitioner seeking inspection and recount of ballot papers of Mendhar Assembly Constituency.

(2.) THE applicant is the petitioner in Election Petition No. 2 of 77. He has challenged the election of Shri Rafiq Hussain Khan, respondent No. 1, on various grounds. One of the grounds on which the election has been challenged is that there has been improper reception of void votes in favour of the respondent and illegal rejection of valid votes of the petitioner. It is alleged that some persons who were dead on the date of the poll or were outside the Constituency on the said date are shown to have cast their votes in favour of Respondent No. 1. The details of such persons has been given in Annexures A and B to the petition. It is also alleged that some persons were allowed to cast their votes twice. A further grievance has been made that there has been non -compliance with the provision of the Act and the Rules in the matter of counting and that the result of the election, in so far as it pertains to the returned candidate, has been materially effected by the aforesaid irregularities and illegalities committed in favour of the returned candidate. The allegations were denied by Respondent No. 1 in the written statement and the court vide its order dated January 5, 1978, framed issues Nos 6, 7, 8 and 10 in regard to the aforesaid controversy. These issues are reproduced here for facility of reference.

(3.) MR . R. P. Sethi, learned counsel for the petitioner, has in support of the application for inspection and recount of the ballot papers submitted that respondent No. 1 was declared elected only by a margin of 77 votes and that this closeness of voting by itself was enough to justify a recount. Reference has been made to para 6(b) (c) and (d) of the petition as also to para 8 of the petition wherein the petitioner had made the allegations which have been noticed in the earlier part of this order. It is urged by learned counsel for the petitioner that from the oral evidence lead by the petitioner it has been established that all the persons detailed in Annexure A were dead on the date of poll and that all the persons mentioned in Annexure B were outside the constituency on the said date. It is further urged that from a reference to the marked copy of the relevant Electoral Rolls read with the statement of the Returning Officer, it has been established that some persons out of the list Annexure A and some persons out of the list Annexure B had cast their votes at the election. On this basis it is submitted that the petitioner has made out a prima -facie case for inspection and recount of ballot papers.