Appeal No 2232 of 1966
Appeal by special leave from the judgment and order dated July22 1965 of the Allahabad High Court in Civil Misc
Writ Petition No 75 of 1964
section 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 article 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 UP 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
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 candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election
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 Act No1 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 246 and upon the making of such an application the petition shall stand withdrawn and no further action shall be taken for its trial
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
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
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 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 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 UP 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 248 available preference  has already been given aboveUnder Rule  6b 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 Singhwere 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 article 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 249 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 vs RP Dikshit1 According to it the decision of this Court in Jabar Singh vs Genda Lal2 was not applicable to the facts of the case
It has been strongly contended before us by the learned Singh vs Genda Lal2 governs the interpretation of the Rules
In that case this Court was concerned with the interpretation of ss97 1001d and 101a of the Representation of the People Act 43 of 1951 and r 571 of the Conduct of Election Rules 1961
We find that the terms of those sections are different and in particular section 1001d 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 37a 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 37b 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 37a 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 vs R P Dikshit1 was correctly decided or not
Accordinglywe 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 AIR 1965 All 454
2   250 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
VPS Appeal dismissed


Summary:
Election for the office of Pramukh of a block was held under the provision of the Uttar Pradesh Kshettra Samitis and Zilla Parishads Adhinayam 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 II 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 no 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 15 of Schedule II to the Rules and that therefore the District Judge erred in law in counting it in favour of the second respondent
Held 1 The District Judge was entitled to go into the question whether the uncounted  ballot paper should have been counted in favour of the second respondent
249G According to r 37a 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 with the findings of the trial Judge the returned candidate can take any defence to show that he has been validly elected
He could therefore allege and prove that certain votes should have been counted in his favour
249E G Jabar Singh vs Genda Lal   explained243 244 2 The fact that the Candidate with the second preference in the uncounted ballot Paper as eliminated at one stage did not make the ballot paper an exhausted paper  within the definition in the Rules
The second respondent was a continuing candidate as per the Rules andthere was a preference recorded for him on the ballot paper arid the District fudge was right in holding that it should have been counted in his favour by the Returning Officer
250A C