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
MN 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 9079 votes and was declared elected
Respondent No 1 was the nearest rival and he secured 8248 votes
Respondents 2 to 4 secured 1340 1126 and 1217 votes respectively
2034 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 No23 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 PS 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 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 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 9079 5 Valid votes polled by the appellant 9079 7788301 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 8248 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 8248598307 11 Valid votes polled by the respondent 8307 448263 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 in 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 562 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
PBR Appeal al lowed


Summary:
1001 diii 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 381
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 562 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