PETITIONER:
BASHIR AHMED MAGREY
Vs.
RESPONDENT:
GHULAM QUADIR MIR & ORS.
DATE OF JUDGMENT02/12/1976
BENCH:
KHANNA, HANS RAJ
KRISHNAIYER, V.R.
CITATION:
1977 AIR 231 1977 SCR (2) 297
1977 SCC (1) 285
ACT
Jammu and Kashmir Representation of the People Act,
1957--S. 100(1)(d) (iii)---Scope of--improper reception or
improper rejection of votes--When invalidates
election--Grounds not taken in election petition--If could
be raised in appeal--Ballot papers bore initials of Presid-
ing Officer--Election--If invalid.
HEADNOTE
100(1) (d)(iii) of the Jammu & Kashmir Representation of
the People Act, 1957 provides that if the High Court is of
opinion that the result of the election in so far as it
concerns a returned candidate, has been materially affected
by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, the High Court
shall declare the election of the returned candidates to be
void.
The appellant was declared elected to the State Assembly
in the General Elections. In his election petition the
respondent, a defeated candidate, contended that improper
rejection at the time of counting of votes cast in his
favour and improper reception of votes at the time of poll-
ing in favour of the appellant had materially affected the
result and that therefore the appellant’s election should be
declared void.
The High Court held that certain votes had been improp-
erly received in favour of the appellant, certain votes
validly polled in favour of the respondent were improperly
rejected at the time of counting; and in respect of 550
votes which were found to have been improperly received, the
High Court held that the appellant was the greatest benefi-
ciary of those votes although the precise number by which he
was benefited could not be easily ascertained.
In appeal, this Court directed the Registrar to scruti-
nise the 550 ballot papers to find out as to how many of
those votes were cast in favour of the appellant and the
other candidates. The result of the investigation showed
that the appellant had a lead of 38 votes over the respond-
ent.
Allowing the appeal
HELD: There is no escape from the conclusion that the
election of the appellant should be upheld. [303H]
(1) In an election petition founded upon the ground that
the result of the election was materially affected by the
improper reception or rejection of votes, the Court has
first to decide whether certain ballot papers were
improperly received or were improperly rejected. Once that
controversy is resolved, the rest is purely a matter of
arithmetical calculation. If the result of arithmetical
calculation is that the returned candidate has still a lead
over his nearest rival, his election would not be declared
to be void on the ground of improper reception or improper
rejection of votes. Improper reception or improper rejec-
tion of votes can result in invalidating the election only
if such improper reception or improper rejection materially
affects the result of the election. [303H]
In the instant case, even after excluding all the votes
found to have been improperly received by the appellant and
also giving credit to the respondent for the votes found by
the High Court to have been improperly rejected at the time
of counting, the net result still was that the appellant had
a lead over the respondent.
(2) As it is not permissible to widen the scope of an
election petition, the respondent could not seek relief on
grounds which were not taken by him in the election peti-
tion. The respondent could not derive any benefit on the
irregularities committed in the conduct of election. The
election was not challenged on the ground of any irregulari-
ty or non-compliance with the provisions of the Constitution
or of the Representation of the People Act nor was the
election assailed on the ground of corrupt practice. [304D &
C]
298
(3) The contention of the respondent that if the ballot
papers which bore the initials and not the full signatures
of the presiding officer are rejected, the appellant’s
election should be declared void, is without force. The
ballot papers bore the distinguishing marks as required by
r. 38(1). The fact that the returning officer did not
reject the ballot papers on the ground that they bore only
the initials and not the full signatures of the presiding
officer showed that the returning officer was satisfied that
the alleged defect was caused by the mistake or failure on
the part of the presiding officer. There can be no doubt
that the mistake occurred because of the mistake or failure
of the presiding officer. The first proviso to r. 56(2) of
the Rules provides that where the returning officer is
satisfied that any defect mentioned in cl. (g) or cl. (h) of
this Rule has been caused by any mistake or failure on the
part of a presiding officer or polling officer, the ballot
paper shall not be rejected merely on the ground of such
defect.
[305B-C]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 317 of 1976.
Appeal from the Judgment and Order dated the 13th Febru-
ary, 1976 of the Jammu & Kashmir High Court in Election
Petition No. 2 of 1972.
M.N. Phadke, Altaf Ahmed and Veerappa for the
Appellant.
Ghulam Quadir Mir (In person) for Respondent
No. 1.
Ex parte for Respondents 2-5.
The Judgment of the Court was delivered by
KHANNA, J. During the general elections held in March
1972 five candidates, namely, the appellant and respondents
No. 1 to 4, contested tile election for the Jammu & Kashmir
State Legislative Assembly from Rajpura constituency. There
was a sixth candidate, namely, Mohamed Abdullah Sheikh,
respondent No. 5, but his nomination paper was rejected. The
appellant secured 9,079 votes and was declared elected.
Respondent No. 1 was the nearest rival and he secured 8,248
votes. Respondents 2 to 4 secured 1,340, 1,126 and 1,217
votes respectively. 2,034 votes were declared invalid at the
time of counting. After the declaration of the result of
the election, respondent No. 1 filed election petition out
of which the present appeal arises. Two prayers were made in
the election petition: (1) that the election of the appel-
lant be declared to be void; and (2) that respondent No. 1
be declared to have been duly elected. The High Court
accepted the first prayer and declared the election of the
appellant to be void. The second prayer that respondent No.
1 be declared to have been duly elected was not granted. The
present appeal has been filed by the appellant against the
judgment of the High Court insofar as it has declared his
election to be void. Cross-objections have been filed by
respondent No. 1 and it has been prayed on his behalf that
he be declared to have been duly elected.
The election petition was founded on the
following three grounds:
(1 ) Improper rejection of the nomination
paper of respondent No. 5.
(2) Improper rejection of the votes which had
been cast in favour of respondent No. 1
(hereinafter referred to as the respondent);
and
(3) Improper reception of the votes in favour
of the appellant on the day of polling at the
following polling stations:
1. Lassipora--Polling station No. 49
2. Nowpora Pain--Polling station No. 50
299
3. Drubgham-B--Polling station No. 24 4.
Drubgham-A--Polling station No. 23
4. Drugbham-A--Polling station No.23
5. Aliaipora--Polling station No. 51
6. Chandgham--Polling station No. 46
7. Arihal--Polling station No. 35, and
8. Tikan Batapora--Polling station No. 26.
According to the case of the respondent as set up in the
election petition, the result of the election was materially
affected because of the improper rejection at the time of
counting of the votes which had been cast in his favour and
by the improper reception of the votes in favour of the
appellant on the day of polling. Giving particulars in
respect of the third ground, namely, that there was improper
reception of votes in favour of the appellant on the day of
polling, the respondent stated that the total number of
votes at Lassipura (polling station No. 49) was 824. All
those votes were shown to have ben polled, although 162
voters registered in that area did not cast their votes.
The figure of 162 included 16 persons who were dead before
the date of polling. Electoral numbers of those 162 voters,
including 16 dead persons, were also mentioned in the peti-
tion. The votes of 162 persons were thus stated to have
been improperly received. Similar allegations were made in
respect of Nowpora Pain (polling station No. 50), Drubgham
B (polling station No. 24), Drubgham A (polling station No.
23), Alaipora (polling station No. 51), Chandgam (polling
station. No. 46), Arihal (polling station No. 35) and Tikan
Batapora (polling station No. 26).
We may add at this stage that the first ground, namely,
that relating to the improper rejection of the nomination
paper of respondent No. 5, was not pressed at the trial of
the election petition, and as such no 1onger survives.
The election petition was resisted by the appellant and
he denied the various allegations made by the respondent.
He also pleaded that the allegations in the election peti-
tion were vague, indefinite and uncertain. Objection was
also raised regarding the maintainability of the petition on
the grounds that it had not been properly verified and there
war misjoinder of parties.
The petition was initially heard by Wasi-ud-Din J. It
thereafter came up for hearing before Jalal-ud-Din J.
Ultimately, it came up for hearing before Mufti Baha-ud-Din
Farooqi J. who finally decided the petition and gave the
judgment under appeal.
During the pendency of the petition, orders were made on
three occasions for inspection of the ballot papers. The
first order was made by Wasi-ud-Din J. on August 13, 1973.
The learned Judge, considered the prayer for inspection of
ballot papers under three heads:
"(1) Request for inspection of ballot papers
which were rejected at the time of counting;
(2) Request for inspection a ballot paper
account (Form No. 16) in respect of the var-
ious polling stations and of the ballot papers
relevant thereto;
300
(3) Request for inspection of marked
copies of electoral rolls at polling stations
Lassipora, Drubgham A & B, Achan, Chandgham,
Afthal, Nowpora Pain, Tikam Batopora, Alaipo-
ra."
Prayer under the first and third heads was rejected but that
under the second head was allowed to the extent of the
inspection of form No. 16 in respect of Lassipora, Nowpora
Pain, Drubgham B, Drubgham A, Alaipora, Chandgham, Arihal
and Tikan Batopora polling stations. Inspection of a few
ballot papers, of which the numbers were specified, relating
to some of the polling stations was allowed. On November 2,
1973 the learned Judge amplified his previous orders in
these words:
"My order as it stands should be read to
Clearly signify which I am amplifying here
also that the sorting of the ballot papers
will be done by the Deputy Registrar but in
the presence of the learned counsel for both
the parties. The learned counsel for the
parties will not be allowed to handle the
ballot papers until they are sorted out by the
Deputy Registrar and after this is done, the
respective learned counsel for the parties can
handle and inspect the ballot papers."
On June 13, 1974 the learned Judge, on an application made
by the respondent, allowed inspection of ballot papers of
two more polling stations, viz., Chandgham and Alaipora.
The respondent also made prayer for leave to inspect the
ballot papers of other polling stations, but the prayer in
that behalf was rejected. The following directions were
further issued by the learned Judge:
"The petitioner has also made a prayer
that the Deputy Registrar be given directions
to ascertain if the 34 series of two inspected
polling stations Nos. 24 and 50 are not mixed
in the fourth trunk which has been produced.
The Deputy Registrar will of course see to
this and such other discrepancies which may
come to his notice, he will make a separate
note and he will also make a note on the
envelope if he found the discrepancy."
After Wasi-ud-Din J. relinquished his office, the case was
assigned to Jalal-ud-Din J. An application was then made on
July 29, 1974 by the respondent seeking permission to in-
spect ballot papers and other documents pertaining to the
various polling stations, This application was disposed of
by Jalal-ud-Din J. as per order dated January 6, 1975 in
these words:
"I, therefore, allow the application of
the petitioner for inspection of ballot papers
in respect of four veiling stations, namely,
26 Tikan Batapora from serial No. 015051 to
15700, 35 Arihal-A from serial No. 020901 to
021550, 49 Lassipora from serial No. 031051 to
031900, 23 Drubgham from serial No. 013201 to
013800 and also the counterfoils of 15 Nowpora
Pain, 24 Drubgham B. 46 Chandgham and 51
Alaipora, the polling stations of which the
ballot papers have already been inspected by
the petitioner. 1, however, do not accede to
the request of the petitioner to inspect
electoral roll and
301
counterfoils and from 16 of the entire con-
stituency. The inspection as ordered will be
held by and in presence of the counsel for
the parties. But the Deputy Registrar will see
that neither the candidate nor their counsel
shall, handle the record. The Deputy Registrar
will further make a separate note and record
of the discrepancies found, if any. The
inspection will be held during vacation on a
date to be fixed by the Deputy Registrar."
In the judgment under appeal the learned Judge held that 59
votes validly polled in favour of the respondent were im-
properly rejected at the time of counting. It was further
found that 901 votes, including 28 votes of dead voters,
were improperly polled.. Out of 901 votes, 351 votes were
found to have been polled in favour of the appellant. De-
tails of those 351 votes were as under:
Alaipora polling station No. 51
200
Arihal polling station No. 35
51
Takin Batapora P.S. No. 26
100
Regarding the remaining 550 votes, the learned Judge found
that the evidence was not clear, and observed as under:
"The evidence, however, is not clear as
regards the fate of the remaining 550 such
votes. But having regard to overall circum-
stances of the case it will not be unreasona-
ble to conclude that respondent No. 1 was the
greatest beneficiary of these 550 votes al-
though the precise number by which he was
benefited out of those votes may not be easily
ascertainable. To these circumstances may be
added the circumstance that 59 votes validly
polled in favour of the petitioner were im-
properly rejected at the time of counting, as
held by me before. The cumulative effect of
these circumstances is that the respondent No.
1 was able to get an undue advantage of no
less magnitude and may be, even greater than
that reflected in his declared success over
the petitioner by 831 votes. In this view it
must be held that the result of the election,
insofar as respondent No. 1 is concerned, was
materially affected by the improper rejection
of votes in favour of the petitioner at the
time of counting and the improper reception of
votes on the day of poll and that his election
must be declared to be void. But that should
not entitle the petitioner to a declaration
that he was duly elected as the total number
of the votes improperly received in favour of
respondent No. 1 on the date of poll could not
be exactly worked out. The prayer for such
declaration must be rejected."
In the result, the election of the appellant was declared to
be void. The prayer of the respondent for a declaration that
he be declared to have been elected was rejected.
When this appeal came up for hearing before this Court on
September 3, 1976, we passed an order wherein we referred to
the finding of the High Court that it cannot be said as to
who was the beneficiary of the 550 votes which were found to
have been improperly polled. We thereafter stated in that
order:
302
"In our opinion, it is necessary to find
out as a result of further inspection as to
how many d those 550 votes were in favour of
the appellant, and how many, in favour of
respondent No. 1 and the other contesting
candidates. For this purpose, we depute the
Registrar (Judicial) of this Court to make an
inspection in the presence of the parties and
their counsel and submit a report to this
Court within six weeks from today. The Regis-
trar may also have to locate the 55 ballot
papers referred to in the judgment of the High
Court at pages 31-51 of the cyclostyled judg-
ment. He may also, if necessary, refer to the
reports of the Deputy Registrar of the High
Court. The appeal should be put up for further
hearing as soon as the report is ready."
The Registrar of this Court thereafter submitted his report
dated September 15, 1976. The Registrar dealt with most of
the matters but in respect of some of the matters he sought
further directions. Necessary directions were thereafter
issued by this Court on September 17, 1976. As a result of
those directions, the Registrar had to scrutinise 571
ballot papers in all instead of 550 votes. The final report
of the Registrar is dated September 24, 1976. The result of
the reports of the Registrar taken along with the findings
of the High Court may be set out:
(1) Votes found by the High Court to
have been improperly received in
favour of the appellant
351
(2) Votes which were found to have been
improperly received in favour of the
appellant as per the first report of the
Registrar
286
(3) Votes which were found to have been
improperly received in favour of the
appellant as per the second report of
Registrar.
141
Total
778
(4) Total number of votes polled by the
appellant as per the results of the
election
9,079
(5) Valid votes polled by the appellant
9,079-778=8301
(6) Votes which were found to have been
improperly received in favour of the
respondent as per the first report
25
(7) Votes which were found to have been
improperly received in favour of the
respondent as per the second report
19
Total
44
(8) Total votes polled by the respondent
as per the result of the election
8,248
(9) Votes validly polled in favour of the
respondent which were found by the
High Court to have been improperly
rejected at the time of counting
59
303
(10) Total number of votes thus polled by
the respondent
8,248+59=8,307
(11) Valid votes polled by the respondent
8,307- 44=8,263
(12) Excess of votes validity polled in
favour of the appellant over those of
of the respondent.
38
Some votes were found by the Registrar to have been im-
properly received in favour of respondents 2 to 4, but it is
not necessary to set out those votes.
In appeal before us Mr. Phadke on behalf of the appel-
lant has urged that in view of the final picture as it
emerges from the reports of the Registrar, the appeal should
be allowed and the election petition be dismissed as the
appellant secured more valid votes than the respondent.
The above stand has been controverted by the respond-
ent, who has argued the case in person. At an earlier
hearing we requested Mr. Gambhir to argue the case amicus
curiae in view of the fact that the respondent was not
represented by counsel. The respondent thereafter stated
that he Would like the matter to be argued by counsel of his
own choice. Mr. Shaukat Hussain thereafter appeared on
behalf of the respondent. At the final hearing the respond-
ent, as mentioned above, chose to argue the case in person.
Perusal of the election petition filed by the respondent
shows that apart from the ground not subsequently pressed of
the improper rejection of the nomination paper of respondent
No. 5, the only ground on which the respondent challenged.
the election of the appellant was the improper reception of
votes in favour of the appellant and the improper rejection
of the votes cast in favour of the respondent.
This ground is based upon sub-clause (iii) of clause (d) of
sub-section (1) of section 108 of the Jammu and Kashmir
Representation of the People Act, 1957 (Act 4 of 1957)
corresponding to sub-clause (iii) of clause (d) of sub-
section (1) of section 100 of the Representation of the
People, Act 1951 fact 43 of 1951). According to the above
provision, if the High Court is of the opinion that the
result of the election, in so far as it concerns a returned
candidate, has been materially affected by the improper
reception, refusal or rejection of any vote of the reception
of any vote which is void, the High Court shall declare the
election of the returned candidate to be void. Keeping the
above provision in view, we may now turn to the facts of the
present case. The High Court found that 351 votes had been
improperly received in favour of the appellant. The High
Court further found that 59 votes which had been validly
polled i.n favour of the, respondent were improperly reject-
ed at the time of counting. In addition to. that, the High
Court found that 550 votes had been improperly received, but
it was not possible on the material on record to find out as
to who was the beneficiary of those votes. The High Court
all the same was inclined to believe that the appellant must
have been the major beneficiary of those 550 votes. This
necessarily involved an element of surmise and conjecture.
To find out the exact position, we directed the Registrar of
this Court to
304
scrutinise the 550 ballot papers in question and to make a
report as to how many of those votes were cast in favour of
the appellant and how many in favour of the respondent and
the other candidates. The Registrar thereafter submitted
reports and we have already set out the outcome of those
reports taken along with the findings of the High Court.
It would appear from the figures set out above that, exclud-
ing all the votes which were found to have been improperly
received by the appellant and also giving credit to the
respondent for 59 votes which were found by the High Court
to have been improperly rejected at that time of counting,
the net result still is that the appellant has a lead of 38
votes over the respondent. There is, therefore, no escape
from the conclusion that the election of tile appellant
should be upheld. In an election petition founded upon the
ground that the result of the election was materially af-
fected by the improper reception or rejection of votes, the
court has first to decide whether certain ballot papers were
improperly received or were improperly rejected. Once ,that
controversy is resolved, the rest is purely a matter of
arithmetical calculation. If the result of arithmetical
calculation is that the returned candidate has still a lead
over his nearest rival, his election would not be declared
to be void on the ground of improper reception or improper
rejection of votes. Improper reception or improper rejec-
tion of votes can result in invalidating an election only if
such improper reception or improper rejection materially
affects the result of the election.
In the course of his arguments, the respondent has
submitted that a number of improprieties were committed in
the conduct of election and therefore the election of the
appellant be declared to be void. Although it does appear
from the material on record to which our attention was
invited by the respondent that irregularities were committed
in the conduct of the election, the respondent cannot
derive any benefit on that account. As already mentioned,
the respondent sought to challenge the election of the
appellant only on the ground of improper reception and
improper rejection of certain votes. The election of the
appellant was not challenged on the ground of any irregular-
ity or non-compliance with the provisions of the Constitu-
tion or of the Representation of the People Act or of any
rules or orders made thereunder. Nor was the election of
the appellant assailed on the ground of being vitiated by
corrupt practice. As it is not permissible to widen the
scope of an election petition beyond the grounds actually
set up in the election petition, the respondent cannot seek
relief on grounds which were not taken by him in the elec-
tion petition.
It has also been urged by the respondent that the
number of votes which were improperly received was larger
than that found by the High Court. Nothing cogent has,
however, been brought to our notice in support of the above
submission to induce us to interfere with the finding of the
High Court in, this respect.
Lastly, the respondent submits that 153 ballot papers of
Lassipora polling station cast in favour of the appellant
should be rejected as
305
they bore the initials and not the full signatures of the
presiding officer. Our attention in this respect is invit-
ed to clause (h) of rule 56(2) of the Jammu and Kashmir
Conduct of Election Rules, 1965, according to which the
returning officer at the time of counting shall reject a
ballot paper if it does not bear both the mark and the
signatures which it should have borne under the provisions
of sub-rule (1) of rule 3 8. According to sub-rule (1 ) of
rule 3 8, every ballot paper shall before issue to elector,
be stamped by such distinguishing mark as the Election
Commission may direct, and be signed in full on its back by
the presiding officer. It is not disputed that the ballot
papers in question bore the distinguishing mark. The only
contention of the respondent, as already mentioned, is that
the ballot papers in question bore the initials and not the
full signatures of the presiding officer. In this respect we
find that no express ground on that score was set up by the
respondent in the election petition. This apart, we that
the matter is covered by the first proviso to sub-rule (2)
of rule 56 which reads as under;
"Provided that where the returning offi-
cer is satisfied that any such defect as is
mentioned in clause (g) or clause (h) has been
caused by any mistake or failure on the part
of a presiding officer or polling officer,
the ballot paper shall not be rejected merely
on the ground of such defect."
The above proviso which is based upon the principle that a
vote validly cast should not be excluded from consideration
because of the mistake or omission of the presiding or
polling officer, makes it plain that where the returning
officer is satisfied that any defect mentioned in clause (h)
has been caused by the mistake or failure on the part of a
presiding officer or polling officer, the ballot paper shall
not be rejected merely on the ground of such defect. The
fact that the returning officer in the present case did not
reject the ballot papers in question on the ground that they
bore only the initials and not the full signatures of the
presiding officer would go to show that the returning offi-
cer was satisfied that the alleged defect was caused by the
mistake or failure on the part of the presiding officer:
There can indeed be hardly any doubt on the point that the
defect referred to by the respondent occurred because of the
mistake or failure of the presiding officer. We, there-
fore, see no cogent ground to exclude from consideration 153
ballot papers polled in favour of the appellant.
Before we conclude, we may observe that some other con-
tentions were also advanced on behalf of the appellant. In
view of the fact that the appeal in any case has to be
allowed because of the arithmetical calculations referred to
above, it is not necessary to go into those contentions.
As a result of the above, we accept the appeal, set aside
the judgment of ,the High Court and dismiss the election
petition. Crossobjections filed by the respondent are
dismissed. Looking to all the facts, we leave the parties
to bear their own costs throughout.
P.B.R. Appeal al-
lowed.
306