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

1. 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.

Reasoning:
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.