# BASIDR,AHMAD MAGREY v. GHULAM QUADIR MIR & ORS

- **Citation:** [1977] 2 S.C.R. 297
- **Court:** Supreme Court of India
- **Decided:** 1976-12-02
- **Case number:** Election Petition No. 2 of 1972
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/basidr-ahmad-magrey-v-ghulam-quadir-mir-ors-7038
- **Pages:** 9

## Headnote

BASIDR,AHMAD MAGREY
v.
GHULAM QUADIR MIR & ORS.
December 2, 1976
[H. R. KHANNA AND V. R. KRISHNA IYER, JI.]
297
Jammu and Kashmir RepresentaJion of /he People Act, 1957-S. lOO(l)(d)
(iii)-Scope of-Improper reception or improper rejection of votes-When invalidates election-Ground• wt taken in election petitio!'J--lf could be rai3ed in
appegf-Ballot fl"pers bore .11itia/3 of Presidinli Officer-Election-If invalid.
A
B
S. !OO(l)(d)(iii) of the JL.lmu & Kashmir Representation of the People Act,
1957 provides that if the High Court is of opinion that the reimlt of the election
C
in so far u 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 E:ourt lihall declare the election of the returned candi-
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dates to be ·rnid.
The appellant was declared elected to the State Assembly in the General
Elections. Iii. his election petition the respondent, a defeated candidate, contended that improper rejection at the time of counting of .Totes c~t in his favour and
improper reception of. Totes at the time of polling in favour of the appellant had
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materially affected the result and that therefore the appellant's election should
be declared Toid.
The High Court held that certain votes had been improperly received in favour
of the appellant, certain Totes 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 beneficiary of those Totes although the precise number by
which he wu benefited could not be easily ascertained.
In appeal, this Court directed the Registrar to 1crutinise the 550 ballot papera
to find out aa to how many of those Totes were cast in faTour of the appellant
and the other candidates. The result of the investigation showed that the appellant had a lead of 38 Totce oTer tho respondent.
Allowing the appeal
HELD : There is no escape from the eow.clnaiOtl that the election of tho
appellant should be upheld. [303HJ
( 1 ) In an election petition founded upon the sround that the result of the
election was materially affected by the improper reception or ·rejection of votes,
the Court hu first to decide whether certain ballot papers were improprly
received or Wet"e improperly rejected. Once that controTersy 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 riTal, his
election would not be declared to be Toid on the ground of improper reception
or improper rejection of votes.
Improper reception or improper rejection 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 tho instant case, even after excluding all the voteo found to hne bee11.
improperly received by the appellant and also giving credit to the respondent
for the Totes found by the High Court to have been improperly rejected at the
time of countin1, the n~t result still was that the appellant had a lead over the
reopondent.
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(2) Aa it ia not permisaible to widea the ICOPe of an election petition, the
respondent could not seek r~lief on grounds which were not taton by him in the
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election petition.
The respondent could not deriTe any benefit on the irreiularitica committed in the conduct of election. The election was aot challenaed on
the ground of any irregularity or non-compliance with tlae provision1 of the
Constitutioa. or of the .Representation ·of the People Act aor w1e tho election
assaned on the lfOUnd of COITUpt practice. [30-4D ~ CJ
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298
SUPREME COURT REPORTS
[1977] 2 S.C.R.
(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 re

## Text

BASIDR,AHMAD MAGREY
v.
GHULAM QUADIR MIR & ORS.
December 2, 1976
[H. R. KHANNA AND V. R. KRISHNA IYER, JI.]
297
Jammu and Kashmir RepresentaJion of /he People Act, 1957-S. lOO(l)(d)
(iii)-Scope of-Improper reception or improper rejection of votes-When invalidates election-Ground• wt taken in election petitio!'J--lf could be rai3ed in
appegf-Ballot fl"pers bore .11itia/3 of Presidinli Officer-Election-If invalid.
A
B
S. !OO(l)(d)(iii) of the JL.lmu & Kashmir Representation of the People Act,
1957 provides that if the High Court is of opinion that the reimlt of the election
C
in so far u 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 E:ourt lihall declare the election of the returned candi-
•·
dates to be ·rnid.
The appellant was declared elected to the State Assembly in the General
Elections. Iii. his election petition the respondent, a defeated candidate, contended that improper rejection at the time of counting of .Totes c~t in his favour and
improper reception of. Totes at the time of polling in favour of the appellant had
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materially affected the result and that therefore the appellant's election should
be declared Toid.
The High Court held that certain votes had been improperly received in favour
of the appellant, certain Totes 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 beneficiary of those Totes although the precise number by
which he wu benefited could not be easily ascertained.
In appeal, this Court directed the Registrar to 1crutinise the 550 ballot papera
to find out aa to how many of those Totes were cast in faTour of the appellant
and the other candidates. The result of the investigation showed that the appellant had a lead of 38 Totce oTer tho respondent.
Allowing the appeal
HELD : There is no escape from the eow.clnaiOtl that the election of tho
appellant should be upheld. [303HJ
( 1 ) In an election petition founded upon the sround that the result of the
election was materially affected by the improper reception or ·rejection of votes,
the Court hu first to decide whether certain ballot papers were improprly
received or Wet"e improperly rejected. Once that controTersy 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 riTal, his
election would not be declared to be Toid on the ground of improper reception
or improper rejection of votes.
Improper reception or improper rejection 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 tho instant case, even after excluding all the voteo found to hne bee11.
improperly received by the appellant and also giving credit to the respondent
for the Totes found by the High Court to have been improperly rejected at the
time of countin1, the n~t result still was that the appellant had a lead over the
reopondent.
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(2) Aa it ia not permisaible to widea the ICOPe of an election petition, the
respondent could not seek r~lief on grounds which were not taton by him in the
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election petition.
The respondent could not deriTe any benefit on the irreiularitica committed in the conduct of election. The election was aot challenaed on
the ground of any irregularity or non-compliance with tlae provision1 of the
Constitutioa. or of the .Representation ·of the People Act aor w1e tho election
assaned on the lfOUnd of COITUpt practice. [30-4D ~ CJ
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298
SUPREME COURT REPORTS
[1977] 2 S.C.R.
(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 fa.:t that the retHrning 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 showe:d 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 h~s 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]
CIVIL APPELLATE JURISDICTION: Civil Appeal No .. 317 of 1976.
Appeal from the Judgment and Order dated the 13th February,
1976 of the Jammu & Kashmir High Court in Election Petition No. 2
of 1972.
M. N. Phadke, Altaf Ahined 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 1~72 five
candidates, namely, the appellant and respondents No. 1 to 4, contested
the 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 rej~cted. 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 appellant 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 ~he 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
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BASHIR AHMAD v .. GHULAM QUADIR (Khanna, ].)
3. Drubgham-B-Polling station No. 24
4. Drubgham-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.
. 299
According to the case of the respondent as set. up in the election
petition, the result of. the election was materially affected bec~use of
the improper rejection at the time of counting of t~e votes which h~d
been cast in his favour and by the improper reception of the votes m
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 petition. 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
longer survives.
The election petition was resisted by the appeHant and he denied
the various allegations made by the respondent. He also pleaded that
the allegations in the election petition 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
was 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 Fai:ooqi J. who finaHy decided the
petition and gave the judgme!lt 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 of ballot paper account (Form
No. 16) in respect of the various polling stations and
of the ballot papers relevant thereto;
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sun.•M• COUP.T RllPORTS
,(1977) 2 S.C.R.
( 3) Request for inspection of marked copies of electoral
rolls at polling stations Lassipora, Drubgharn A & B,
Achan, Chandgham, Arihal, Nowpora Pain, Tikam
Batopora, Alaipora."
Prayer under the first and third heads was rejected but that under the
11e.Cond 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 tho 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
papern until they are sorted out b~ 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, 197'4 the learned Judge, on an application mad6 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 WM rejected. Tho followin!! 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 hM been produced.
The Deputy
Registrar will of course see to this and such other discrepancies which may come to his notice, ho will make a separate
note and he will also make a note 0n the envelopt' if he found
the discrepancy."
.
After Wasi-ud-Din J. relinquished his office, tho ca~i wa11 asaigned to,
Jalal-ud-Din J. An application was then made on July 29, 1974 by
the respondent seeking permission to inspect ballot papers and other
documents pertaining to the v11Iious polling stations.
This application
was disposed of by Jalal-ud-Din J. H 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 polling 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 brubgharn from ~rial
No. 013201 to 013800 and 11~so the counterfoili1 of 15 Nowpora.Pain, 2-4 Drubgham B. 46 Chandgham and 51 Alaipora,
the pollirig stations of which the ballot Vftpers have already
been inspected by the petitioner. I, however, do not accede
to the request of the petitioner to inspect electoral roll and
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BASHIR AHMAD v. GHULAM QURDm (Khannq, /.)
301
counterfoils and ionn 16 of the entire constituency. The inspection as ordered will be held by and in presenc~ of the
counsel for the parties. But the Deputy Registrar will see that
neither the candidate nor their ceumd shall. handle the record. The Deputy Registrar will furtller make a separate n?te
and record of the discrepancies found, if any. The inspecuon
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 5?
votes
validly polled in favour of the respondent were 1mproperl~ reiected at
the time of counting. It was further found that 901 votes, mcludmg 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. Details
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 unliler :
"The evidence, however, is not clear as regards the fate of
the remaining 550 such votes. But .having regard to overall
circumstances of the case it will not be unreasonable, to conclude that respondent No. 1 was the greatest beneficiary of
these 550 votes although 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 improperly 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 8 31 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 de-
, claration 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 Septem-
'ber 3,. 1976, we pass.ed an order wherein we referred to the finding of
.the High Court ~at Jt 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 :
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SUPREME COURT REPORTS
[1977] 2 S.C.R.
"Jn our opinion, it is necessary to find out as :a result of
further inspection as to how many of 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 th1!ir counsel
and submit a report to this Court within six weeks from today.
The Registrar may also have to locate the 55 baUot papers referred to in the judgment of the High Court at pages 31-51
of the cyolostyled judgment. He may also, if ftecessa.ry, 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 mi:itters 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 r,eports of the
Registrar taken along with the findings of the High Court may be set
out:
(!) Votes found by the High Court to
have been impro]'.J'erly 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
(5) Valid votes polled by the appellant
(6) Votes which were found to have been
improperly received in favour of the ·
9,079
9,079- 778°=8,3lH
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) Tota 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
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• BASHIR AHMAD v. GHULAM QUADIR (Khanna, /.)
303
(10) Total number of votes thus polled by
the respondent
(11) Valid votes polled by the respondent
(12) Excess of votes validity polled in
favour of the appellant over those of
of the respondent.
8,248+59=8,307
8,307- 44=8,263
38
A
Some votes were found by the Registrar to have been improperly
B
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 appellant 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
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respondent.
The above stand has been controverted by the.
respondent, 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
D
respondent, as mentiond above, chose to argue the case in person.
Perusal of the election petition filed by the respondent shows that
apart from the ground not sub~equeutly 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 tAct 43 of 1951).
According to the ·above prevision, 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 or 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
m favour of the respondent were improperly rejected 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 involve9-. an eleme~t of surmise and conjecture.
To find
out the . exact pos1tton, we directed the Registrar of this Court to
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[1977] i S.C.R.
1>crutiniEe the 550 ballot paper:. 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 candid;ites. The
Registrar thereafter submitted reports and we have already set out
the outcome of those reports taken along with the findings of tile High
Court.
It would appear from the figures 5et out above that, excluding all the votes which were found to have been improperly received
by the appellant and also giving credit to the respondent for 59 voteii
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 the appellant should
be upheld.
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 Qf :irithmetical 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
rejection of votes can result in invalidating an election only if such
improper reception
or improper
rejection materially affects
the
reEult 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 tho appellant was not challenged on the ground of any
irregularity or non-compliance with the provisions of the Constitution
or of the Representation of tho People Act or of any rules or orders
made thereunder.
Nor was tho 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 election 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
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with the findiniJ o! tho Hight Court in this respect.
Lastly; the respondent submiU. th;it 153 ballot papilrs of Lassipora
polling station q1st in favour of th; appellant should be rejected as
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BASHIR AHMAD v. GHULAM QUADIR (Khanna, J.)
305
.they bore the initials and not the full signatures of the presiding officer.
Our attention in this respect \s invited 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 sh.;ill
reject a ballot paper if it does not bear both the n:i~rk and the signatures which it should have borne under the prov1s10llii or ~ub-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 :mch 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 find
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 officer is satisfied that
any. such defect as is mentioned in clause (g) or clau~e (h)
ha~ 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
vot~
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 returmng 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
1ignature~ of the presiding officer would go to show that the returning
officer was satisfied that the alleged defect wa.s caused by th~ 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, therefore, 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 contentions
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
calcula~ions referred to above, it is not necessary to go into
tho~e
contentions.
.
A~ a result of the above, we accept the appeal, set aside
the judgm~nt _of the High Court and dismiss the election petition.
Cross-,
ob3ections filed by the respondent are dismissed.
Looking to all the
bets, we leave the parties to bear their own costs throughout.
J>.B.R.
Appeal allowed.
A
B
c
D
E
F
G
ff