CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2232 of 1966. Appeal by special leave from the judgment and order dated July,22, 1965 of the Allahabad High Court in Civil Misc. Writ Petition No. 75 of 1964. S. C. Agarwala, Anil Kumar and Shiva Pujan Singh, for the appellant. B. D. Sharma, for respondent No. 2. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition under Art. 226 of the Constitution filed by Dhara Singh, appellant before us. Dhara Singh had prayed, for a writ, order or direction in the nature of certiorari quashing the judgment of the District Judge, Meerut, dismissing the election petition filed by Dhara Singh challenging the election of Pitam Singh to the office of Pramukh, Block Jani, on July 8, 1962. Two points were raised before us: first, that the District Judge had no jurisdiction to count ballot paper No. 0045 in favour of Pitam Singh and that the returned candidate had no right to claim that ballot papers not already counted in his favour should be so counted-, and secondly, that, at any rate, the District Judge erred in law in counting ballot paper No. 0045 in favour of Pitam Singh. The relevant statutory provisions are as follows: The election is governed by the provisions of the U.P. Kshettra Samitis (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1962-hereinafter called the Rules. Rules 37, 39, 40, 43 and 44 are as follows:
"37. Relief that may be claimed by the
petitioner A petitioner may claim either of
the following declarations--
(a) that the election of the returned
candidate is void;
(b) that the election of the returned
candidate is void and that he himself or any
other candidate has been duly elected.
39. Recrimination when seat claimed--When in
an election petition a declaration that
any candidate other than the returned
candidate has been duly elected is claimed,
the returned candidate or any other party may
give evidence to prove that the election of
such candidate would have been void if he had
been the returned candidate and a petition had
been presented calling in question his
election.
40. Procedure-(1) Except so far as provided
by the Act or in these Rules, the procedure
provided in the Civil Procedure Code. 1908, in
regard to suits, shall in so far as it is not
inconsistent with the Act or any provisions of
these Rules and it can be made applicable, be
followed in the hearing of the election
petitions: Provided that-
(a) any two or more election petitions
relating to the election of the same person
may be heard together;
(b) The Judge shall not be required to record
or to have recorded the evidence in full but
shall make a memorandum of the evidence
sufficient in his opinion for the purpose of
deciding the case;
(c) the Judge may, at any stage of the
proceedings, require the petitioner to give
further cash security for the payment of the
costs incurred or likely to be incurred by any
respondent;
(d) for the purpose of deciding any issue
the Judge shall be required to order
production of or to receive only so much
evidence, oral or documentary, as he considers necessary;
(e) no appeal or revision shall lie on a
question of fact or law against any decision
of the Judge;
(f) the Judge may review his decision on any
point on an application being made within
fifteen days from the date of the decision, by
any person considering himself aggrieved
thereby,
(g) no witness or other person shall be
required to state for whom he has voted at an
election.
(2) The provisions of the Indian Evidence
Act, 1872 (Act No.1 of 1872) shall be deemed
to apply in all respects to the trial of an
election petition.
(3) B fore the hearing of an election
petition commences or before the final hearing
takes place the petition may be withdrawn by
the petitioner or the petitioners, as the case
may be, by making an application to the Judge
requesting for the withdrawal of the petition
and upon the making of such an application the
petition shall stand withdrawn and no further
action shall be taken for its, trial.
43. Findings of the Judge-(1) If the Judge
after making such inquiry as he deems fit
finds in respect of any person whose election
is called in question by a petition, that his
election was valid he shall dismiss the
petition as against such person and award
costs at his discretion.
(2) If the Judge finds that the election of
any person was invalid he shall either-
(a) declare a casual vacancy to have been
created, or
(b) declare another candidate to have been
duly elected and in either case may award
costs at his discretion. 44. Grounds on which a candidate other thin the returned candidate may be declared to have been elected-If any person who has lodged an election petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is of the opinion that in fact the petitioner or such other candidate received a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate as the case may be, to have been duly elected: Provided that the petitioner or such other candidate shall not be declared to be duly elected if it is proved that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election." Relevant part of Schedule 11 to the Rules is as follows: "Schedule II--Instructions for the Determination of Result. 1. In this Schedule(1) the expression ’continuing candidate’ means any candidate not elected and not excluded from the poll at any given time; (2) the expression first preference’ means the number 1 set opposite the name of any candidate’ the expression ’second preference’ similarly means the number 2, the expression ’third preference’ the number 3 and so on;
(3) the expression ’next available
preference’ means the second or subsequent
preference recorded in consecutive numerical
order for a continuing candidate, preferences
for candidates already excluded being ignored;
(4) the expression ’unexhausted paper’ means
a ballot paper on which a further preference
is recorded for a continuing candidate;
(5) the expression ’exhausted paper’ means a
ballot paper on which no further preference is
recorded for a continuing candidate; provided
that a paper shall be deemed to be exhausted
in any case in which-
(a) the names of two or more candidates
whether continuing or not are marked with the
same figure. and are next in order of
preference; or
(b) the name of the candidate next in order
of preference whether continuing or not, is
marked by a number not following consecutively
after some other number on the ballot paper or
by two or more numbers." The relevent facts are that election for the office of Pramukh of Block Jani was held on July 8, 1962, under the provisions of Uttar Pradesh Kshettra Samitis and Zila Parishads Adbiniyam, 1961 (U.P. Act No. XXXIII of 1961)hereinafter referred to as the Act. At the said election following six persons were the candidates: 1. Shri Dhara Singh 2. Shri Pitam Singh 3. Shri Mahabir Singh 4. Shri Sham Singh 5. Shri Kalloo Singh 6. Shri Budh Singh After following the instructions contained in Schedule II, the Returning Officer found that Dhara Singh and Pitam Singh had obtained equal number of votes and chose to draw a lot, and declared Pitam Singh as the elected candid-ate. Dhara Singh thereupon filed an election petition under the Act and the Rules raising a number of points. The District Judge, who heard the election petition, held that the Returning Officer made a mistake in not crediting Pitam Singh with the third preference in ballot paper No. 0045. The District Judge held:
"The only point that has to be seen is whether
this third preference should have been
credited to Pitam Singh or not. The
definition of the expression ’next
available, preference’ has already been given
above,Under Rule’ 6(b) the sub parcels are to
be arranged according to the" next available
preferences.The ballot paper does hot
become exhausted as long as ther e is a
preference recorded in it for a continuing
candidate. Pitam Singh was a continuing
candidate when the ballot papers cast in
favour of Shiam Singh,were to be arranged in
sub parcels containing , the exhausted and
unexhausted ballot papers. The learned
counsel for the petitioner has contended
before me that the third preference could not
have been credited in favour of Pitam Singh
inasmuch as the second preference in favour of
Mahabira had not been utilised as he was the
first to be excluded on the basis of the first
preference votes and his contention is that
the third preference cannot be taken into
consideration. This contention to my mind has
no force. Under the scheme of the counting as
provided in the instructions a voter could
have given his preference in the present case
upto to six preferences as there were six
candidates who were seeking election. To my
mind as long as there is any preference in a
ballot paper which has not been exhausted
according to the rules that preference has to
’be taken into consideration and to be
credited,. to the continuing candidate in
whose favour the’ preference is.
Consequently, to my mind the Presiding Officer
was in error when, he did not count the
preference in favour of Pitam Singh recorded
in the ballot paper No. 0045. Crediting this
preference to Pitam Singh, we find that the
total number of votes which he obtained comes
to 20 as against the total number of 19 in
favour of Dhara Singh on the third counting
Thus, in this case to my mind there was no
necessity for drawing the lots and Pitam Singh
should have been declared as elected as a
result of counting itself as there were only
two continuing candidates and out of these
continuing candidates Pitam Singh had secured
the larger number of votes." it is not necessary to set Out the findings on other ’points which are no longer in issue before us. Dhara Singh then filed a writ petition under Art. 226 of the Constitution challenging the declaration given by the Returning ’Officer and the order of the District Judge referred to above. The High Court held that the District Judge was correct in allotting ballot paper No. 0045 to Pitam Singh. The High Court also repelled the contention that the District Judge was not entitled to take into account ballot paper No. 0045, and to award it to Pitam Singh, because Pitam Singh had, not filed any recrimination in the case in order to claim the benefit of the ballot paper. The High Court was of, the view that this was a case of rebuttal and not recrimination, as held in the Full Bench decision of the Allahabad High Court in Nathu Ram v. R.P. Dikshit(1) According to it the decision of this Court in Jabar Singh v. Genda Lal(2) was not applicable to the facts of the case.
It has been strongly contended before us by the learned Singh v. Genda Lal(2) governs the, interpretation of the Rules. In that case, this Court was, concerned, with the interpretation of ss.97, 100(1)(d) and 101(a) of the Representation of the People, Act (43 of 1951) and r. 57(1) of, the, Conduct of Election Rules, 1961. We find that the terms of those sections are different and, in particular, s. 100(1)(d) is materially different because it uses the Words "that the result of the election; in so far as it concerns a returned candidate, has been materially affected" which do not occur in rr. 37 and 39. It was these words which were in part relied on to limit the scope of the enquiry in cases arising under the Representation of, the People Act. But the language of the rules here is simple and quite different. It would be noticed that r. 37(a) is wide and no rule prescribes the grounds on which the election of the returned candidate is to be declared void. In this case we are not concerned with r. 37(b) or r. 39. But the learned counsel for the appellant contends that reading rr. 37 and 39 together it is clear that the trial of the election petition takes place in two compartments; first, to judge whether the returned candidate’s election is void and, then, to decide whether any other candidate should be declared to be duly elected. He says that it is only in the latter case that any recrimination can be made under r. 39. We are unable to agree with this contention. It seems to us that according to r. 37(a), read with r. 40, which except for certain sections, applies the procedure in the Civil Procedure Code, the returned candidate can take any defence to show that he has been validly elected. If the petitioner in the election petition can allege and prove that, some votes cast in favour of the returned candidate should be rejected, there is no reason why the returned candidate should not be able to allege and prove that certain votes should have been counted in his favour. Rule 43 which deals with the findings of the Judge also shows that the suggested limitation on his jurisdiction does not exist. It is not necessary to decide in this case whether Nathu Ram v. R. P. Dikshit(1) was correctly decided or not. Accordingly,we hold that the District Judge was entitled to go into the question whether ballot paper No. 0045 should have been counted in favour of Pitam Singh or not. Coming to the second point, the learned counsel contends that ballot paper No. 0045 was an "exhausted paper" within the definition quoted above. The contention seems to be contrary (1) A.I.R. 1965 All, 454. (2) [1964] 6 S.C.R. 54, to the definition because the definition expressly says that a ballot paper on which no further preference is recorded for a continuing candidate shall be an exhausted paper. On the facts, of this case, Pitam Singh was a continuing candidate and there was a preference recorded for him on ballot paper No. 0045. But the learned counsel says that this was a third preference and the second preference on this paper was for Mahabir Singh who was eliminated at one stage. Now, the fact that Mahabir Singh was eliminated does not make the ballot paper an exhausted paper within the definition given in the Rules. We agree with the conclusion of the District Judge on this point. In the result the appeals fails and is dismissed. Under the circumstances there will be no order as to costs. V.P.S. Appeal dismissed.