S SHARAFUDDIN AHMED Vs. SHAMSUL HUQ

JUDGEMENT

(1.) This is a. petition by the defeated candidate in Mahomedan constituency Taltolla, Ward No. 14, who polled 304 votes. The respondent who was elected, polled 312 votes, and his election was published in the Calcutta gazette on 4 April.

(2.) A preliminary question has been argued by way of demurrer, namely whether the petitioner is entitled to a recount and by a recount is meant not merely the counting of votes to check the arithmetic of the returning officer, but a scrutiny as well to review his finding as to the validity of the ballot papers. In the earlier paragraphs of the petition it is alleged that the appointment of the returning officer was open to objection and that he was guilty of malpractices. The first three grounds have been abandoned, but Mr. Bose for the petitioner states that he abandoned ground 3 so far as it related to the appointment of the returning officer, but did not intend to abandon his contention that the returning officer had been a party to divers mal-practices and breaches of the relative rules. In ground 11 further charges have been made against the returning officer that he improperly refused certain votes. Ground 11, sub-para. 2 has been abandoned. Sub-paras. 3 and 4 purport to be particulars of improper refusal of votes. They are in fact vague allegations that the returning officer did not allow the inspection contemplated by the rules and that the returning officer did not observe what the petitioner alleges to be the established practice of placing the ballot papers face upwards on the table. The petition is supported by an affidavit of Syed Mohammed Yusuf who states that six ballot papers, (presumably those referred to in ground 11, sub-para. 1 of the petition) which were valid and in favour of the petitioner, were improperly rejected and that the returning officer refused to give the petitioner or his representative reasonable opportunity to inspect the ballot papers and refused to recount them when requested to do so. These apparently constitute the alleged malpractices and the breaches of the rules on which the petitioner still seeks to rely.

(3.) Two questions have been argued: (1) whether relief by way of a recount is contemplated by the Calcutta Municipal Act and (2) if such relief is permissible, do the facts alleged justify a recount? There is no doubt that the Calcutta Municipal Act does not contain any provision which enables an unsuccessful candidate to claim the seat, and so far as I have been able to discover from the decided cases both in England and in India, a recount is always coupled with scrutiny and the right to recrimination, on the result of which the unsuccessful candidate may be declared duly elected. It is equally clear that the English Acts and Rules dealing with elections, and the various Indian Acts of a similar nature to which my attention has been directed, other than the Calcutta Municipal Act, give the unsuccessful candidate the right to claim the seat if the circumstances justify it.