Case: Dhara Singh Vs. District Judge, Meerut &amp; Anr

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 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 of 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.6. 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 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 v. R. P. Dikshit, AIR 1965 All 454 (FB). According to it the decision of this Court in Jabar Singh v. Genda Lal, 1964-6 SCR 54 = (AIR 1964 SC 1200 ) was not applicable to the facts of the case.7. It has been strongly contended before us by the learned counsel for the appellant that the decision of this Court in 1964-6 SCR 54 = (AIR 1964 SC 1200 ) governs the interpretation of the Rules. In that case, this Court was concerned with the interpretation of Sections 97, 100 (1) (d) and 101 (a) of the Representation of the People Act (43 of 1951) and Rule 57 (1) of the Conduct of Election Rules, 1961. We find that the terms of those Sections are different and, in particular, S. 100 (1) (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 38. 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 Rule 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 Rule 37 (b) or Rule 39.But the learned counsel for the appellant contends that reading Rules 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 candidates 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 Rule 37 (a), read with Rule 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.8. It is not necessary to decide in this case whether AIR 1965 All 454 (FB) 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 or not.9. Coming to the second point, the learned counsel contended that ballot paper No. 0045 was an "exhausted paper" within the definition quoted above. The contention seems to be contrary 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 that District Judge on this point.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is not necessary to set out the findings on other points which are no longer in issue beforeto it the decision of this Court in Jabar Singh v. Genda Lal, 1964-6 SCR 54  = (AIR 1964 SC 1200 ) was not applicable to the facts of thefind that the terms of those Sections are different and, in particular, S. 100 (1) (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 38. 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 Rule 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 Rule 37 (b) or Rule 39.But the learned counsel for the appellant contends that reading Rules 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 candidates 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 Rule 37 (a), read with Rule 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.8. It is not necessary to decide in this case whether AIR 1965 All 454  (FB) 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 orcontention seems to be contrary 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.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 that District Judge on this point.