# IiiiARA SINGH v. DISTRICT JUDGE, MEERUT A ANR

- **Citation:** [1968] 1 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 1967-08-18
- **Case number:** Civil Appeal No. 2232 of 1966
- **Bench:** J. c. SHAH, s. M. Snrn, J.M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/iiiiara-singh-v-district-judge-meerut-a-anr-4114
- **Pages:** 8

## Headnote

Uttar Pradesh Kshettra Samitis and Zilla Parisads Adhinayam
133 of 1961). and Settlement of Election Dispute• Rule•, 1962, rr. 87,
39, 40 and 43, and Schedule II, Instruction 1-Returned CandidateDefences open when election challenged-'~xhamted Paper', meaning of.
Election for the office of Pramul<h .of a blocl< was held under
the provisions of the Uttar Pradesh Kshettra Samitis and Zilla
Parishads Adhihayam, 1961. On one of the ballot papers, the second
respondent had a third preference recorded in his favour and a
second preference in favour of another candidate who was eliminated at one stage. The Returning ·Officer did not count the third
preference in favour of the second respondent and found at the
final counting that the appellant and the second respondent had
secured an equal number of votes. He therefore drew a lot as per
the Instructions in Schedule n and declared the second respondent
duly elected., The
appellant then filed an election. petition on
various grounds ·before the District Judge whO dismissed it, holding that the Returning Officer erred in not crediting the second
respondent with the third preference and that if that was done
there was ni> necessity for drawing lots at all and that the second
respondent should have been· declared elected as a result of the
counting itself. The appellant's writ petition· challenging the District Judge's order was dismissed.
In appeal to this Court he contended that: (1) under.rr. 37 and
39 the trial of an election petition takes place in two. parts; 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, that it was only in the latter case the returned candidate
had the right to claim that ballot papers not already counted in his
favour should be so counted, and that therefore, the District Judge
had no jurisdiction to count the ballot paper containing the third
preference in favour of the second respondent; and (2) the ballot
paper was an 'exhausted paper' within Instruction I (5) of Schedule
Il to the Rules, and that therefore the District Judge erred in law
in counting it in favour of the second respondent.
Held: (!) The District Judge was entitled to go into the question whether the uncounted' tallot paper should have been counted
in favour of the second respondent. [249G]
According to r. 37(a) read with r. 40 which generally applies
the. procedure in the Civil Procedure Code to the trial of election
petitions under the Act, and .r. 43 which deals w\th the j!ndings of
the trial Judge, the returned cand·idate can take any ilefence to
show that he has been validly elected. He could therefore allege
and prove that certain votes should have been counted in his
B
favour. [249E-GJ
·
Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54, explained,
2!3
StiP:l\EliE
OOURT
REPORTS
[1968] 1 s.c.il.
(2) The fact that the ~andidate with the second preference in·
A
the uncounted ballot paper was eliminated at one stage, did not
make the ballot paper an 'exhausted paper' ·nithin the definition in
the Rules. The second respondent was a continuing candidate, as
per the Rules, and th.ere was a preference recorded for him on the
ballot paper and the District Judge was right in holding that it
should have been counted in his favour, by the Returning Officer.
[250A-C]
B

## Text

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IiiiARA SINGH
v.
DISTRICT JUDGE, MEERUT A ANR.
August 18, 1967
[J. c. SHAH, s. M. Snrn AND J.M. SHELAT, JJ.]
Uttar Pradesh Kshettra Samitis and Zilla Parisads Adhinayam
133 of 1961). and Settlement of Election Dispute• Rule•, 1962, rr. 87,
39, 40 and 43, and Schedule II, Instruction 1-Returned CandidateDefences open when election challenged-'~xhamted Paper', meaning of.
Election for the office of Pramul<h .of a blocl< was held under
the provisions of the Uttar Pradesh Kshettra Samitis and Zilla
Parishads Adhihayam, 1961. On one of the ballot papers, the second
respondent had a third preference recorded in his favour and a
second preference in favour of another candidate who was eliminated at one stage. The Returning ·Officer did not count the third
preference in favour of the second respondent and found at the
final counting that the appellant and the second respondent had
secured an equal number of votes. He therefore drew a lot as per
the Instructions in Schedule n and declared the second respondent
duly elected., The
appellant then filed an election. petition on
various grounds ·before the District Judge whO dismissed it, holding that the Returning Officer erred in not crediting the second
respondent with the third preference and that if that was done
there was ni> necessity for drawing lots at all and that the second
respondent should have been· declared elected as a result of the
counting itself. The appellant's writ petition· challenging the District Judge's order was dismissed.
In appeal to this Court he contended that: (1) under.rr. 37 and
39 the trial of an election petition takes place in two. parts; 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, that it was only in the latter case the returned candidate
had the right to claim that ballot papers not already counted in his
favour should be so counted, and that therefore, the District Judge
had no jurisdiction to count the ballot paper containing the third
preference in favour of the second respondent; and (2) the ballot
paper was an 'exhausted paper' within Instruction I (5) of Schedule
Il to the Rules, and that therefore the District Judge erred in law
in counting it in favour of the second respondent.
Held: (!) The District Judge was entitled to go into the question whether the uncounted' tallot paper should have been counted
in favour of the second respondent. [249G]
According to r. 37(a) read with r. 40 which generally applies
the. procedure in the Civil Procedure Code to the trial of election
petitions under the Act, and .r. 43 which deals w\th the j!ndings of
the trial Judge, the returned cand·idate can take any ilefence to
show that he has been validly elected. He could therefore allege
and prove that certain votes should have been counted in his
B
favour. [249E-GJ
·
Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54, explained,
2!3
StiP:l\EliE
OOURT
REPORTS
[1968] 1 s.c.il.
(2) The fact that the ~andidate with the second preference in·
A
the uncounted ballot paper was eliminated at one stage, did not
make the ballot paper an 'exhausted paper' ·nithin the definition in
the Rules. The second respondent was a continuing candidate, as
per the Rules, and th.ere was a preference recorded for him on the
ballot paper and the District Judge was right in holding that it
should have been counted in his favour, by the Returning Officer.
[250A-C]
B
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 P11ja11 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 Ohara Singh,
appellant before us. Ohara 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 Ohara 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 arc as follows:
"37. Relief that may be claimed by the pctitione1· -
A petitioner may claim either of the following declarations-
(n) that the election of the returned candidate is voicJ;
(b) that the election of the returned candidate is void
and that he himself or any other candidate has been
duly elected.
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DHAR.\ SINGH ti. ii'r . .TtrDUF, ~IEERUT (Sikri, J.)
245
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 candi·
date would have been void if he had been the returned
candidate and a petition had been presented calling in
question his election.
40. Procedure-(]) 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 pro·
visions 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 documen·
tary, as he considers necessary;
(el 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. I of .1872) shall be deemed to apply in all respects to the tnal of an election petition.
(3) Before the hearing of an election petition com-
'!lences or befo~e the finul hearing takes place, the pctit~on may be withdrawn by the petitioner or the petitioners, as the '.case may be, by making an application
to the Jud~e requestin~ for the withdrawal of the petition
246
SUPllEldll C0Ull1' llEPORTS
[1968) 1 S,C.R,
and upon the making of such an application the petition
shall stand withdrawn and no further action shall be
taken for its triail.
43. Findings of the Judge-(!) 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 ipvalid 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 than the
returned candidate may be declared to have been elect·
ed-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 candida~e 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 tha~ 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 b:een void
if he had been the returned candidate and a petition had
been presented calling in question his election."
Relevant part of Schedule II to the Rules is as follows:
"Schedule II-Instructions for
the
Determination of
Result.
I. In this Schedule-
(!) 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 num·
ber 2, the expression 'third
preference' the number 3
and so. on;
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llBARA SINtlB V. DT. JUDGE, MllERUT (S1:kri, J.)
247
(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 expressio11 '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
W'e 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 Zita Parishads Adhiniyam,
1961 (U.P. Act No. XXXIII of 1961)-hereinafter referred to as
the Act. At the said election following six persons were the
candidates:
I. Shri Ohara 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 Ohara Singh and Pitam Singh had
obtained equal number of votes and chose to draw a lot, and declared Pitam Singh as the elected candidate. Ohara 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 bf the expression 'next
248
SUPREME COURT REPORl~
[l968j i s.o.n.
available preference' bas already been oiven above.
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Und~r Rule 6(b) the su~ parcels arc to be ~rranged according. to the next available .preferences.
The ballot
paper does not become exhausted as long as there 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 arB
ranged in sub parcels containing the exhausted and
unexhausted ballot papers. The learned counsel for the
petitioner· has contended before Irie 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
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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 · six preferences as
there were six candidates who were seeking election. To
my mind as long as there is any preference in a ballot
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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, lo 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
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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 Ohara 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 continu-
.,
ing candidates Pitam Singh had secured .the larger number of votes."
It is not necessary to set out the findings on other points which
arc no longer in issue before us.
Ohara Singh then filed a writ petition under Art. 226 'Of the·
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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 Hi,gh 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
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Pitam Singh. because Pitam Singh had not· filed any recrimination
in the case in order to claim the benefit of the ballot paper. Tbe
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DIWIA SlNGll V, DT, JUDGE, YEERUT (Sim, J.)
249
High Court was of the view that this was a case of rebuttal and
not tecrimiitation, as : held 'in the Full Bench decision of the
Allahabad High Court in Nathu Ram V; R. P. Dikshit('). According to it the decision of this Coiirt in Jabar SingH v. Genda Lal(')
was not applicable to the facts of the case.
It has been . strongly contended before us by the learned
counsel for the appellant that the. deCision of this Court in Jabar
Singh v. Genda Lal(') governs the interpretation of the Rules. In
that case; this· Court was concerned with the interpretation of ss.
97, HXJ(l)(d) and !Ol(a) of the Representation of the People Act
(43 of'l951) 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. · J()()(l)(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. Jt was these words which were in part relied on
to limit the scope of the enquiry in cases arising under the Representation o~ 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 whicli
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(') 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 o~ 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.l\. 1965 A.I!, 454.
(2) [19641 6 S.C.R. 54.
21l0
SUPREME COURT RJiPORTS
(1968] l &a.a.
to the definition because the definition expressly says that a ballot
.paper on which no further preference is recorded for a continu·
ing 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.
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