B.DAYAL,J. - (1.) THIS is a writ petition under Article 226 of the Constitution by Sri Satya Ketu who was a returned candidate for a seat in the U.P. Legislative Council from Rohilkhand Graduate Constituency. An election petition was filed by Sri Shyam Sunder challenging the election of Sri Satya Ketu and apart from praying that the election of respondent No. 1 Satya Ketu be declared void also prayed that the petitioner Shyam Sunder be declared to be duly elected.
(2.) IN the election petition he made allegations that some invalid votes had been counted in favour of Sri Satya Ketu. In his written statement in paragraph 4 Sri Satya Ketu alleged as follows: 'That in case in the opinion of this Hon'ble Court it is found that any rule of voting and marking of ballot papers was contravened by the electors as a result of which certain ballot papers are to be rejected, then the same rule and principle should be applied to all the ballot papers whether cast in favour of the petitioner or any other candidate so that justice may be done to all parties concerned and a fair result of the election be arrived at ............ The clear purport of this pleading was that if the Election Tribunal came to the conclusion, that some votes cast in favour of Sri Satya Ketu were invalid, on account of some rule having been violated and the Returning Officer having ignored that rate in counting votes then similarly votes cast in favour of the election petitioner Sri Shyam Sunder should also be rejected and if that was done the mult would be that the result of the election would not be altered and Sri Satya Ketu who had obtained the majority votes and had succeeded in election would still remain the successful candidate. By this allegation be was merely defending his election. It was not the intention of this allegation to say that if upon a correct counting of valid votes it was found that Sri Satya Ketu had not received the majority of votes and that the election petitioner Sri Shyam Sunder had in fact succeeded in obtaining the majority of votes yet no declaration as prayed for the election petition should, be granted in favour of Sri Shyam Sunder on the basis of some allegations of corrupt practice or other illegality, making bis election void. At the trial the election petitioner applied for inspection of the voting papers,in order to be able to supply particulars about invalid votes counted in favour of Sri Satya Ketu. This inspection was permitted but at the time of inspection the election petitioner merely opened and scrutinised the ballot papers which had been put in a packet as being valid votes cast in favour of Sri Satya Ketu and also the exhausted votes. He did not open and did not see the votes which had been placed in a packet as valid votes cast in favour of Shyam Sunder with the result that the respondent did not have the chance Of seeing those votes also. This inspection was finished on the 28th January 1963. On the very next day 29th January, 1963, Sri Satya Ketu applied that he should be permitted to inspect all the ballot papers in order to be able to know how many invalid votes were cast in favour of the election petitioner and to bring them before the notice of the Tribunal. The Tribunal considered this application on 12th February, 1963, and disallowed inspection of ballot papers other than those which had been inspected by the election petitioner. The reason which appealed to the learned Tribunal was that respondent No. 1 Sri Satya Keta had not filed any recriminatory notice under Section 97 of the Representation of the People Act and consequently had no right to challenge any votes that had been counted in favpur of the election petitioner. The Tribunal thought that decision of this Court which was on all fours on the point reported in Lakshmi Shanker v. Kunwar Sripal Singh, 22 Ele LR 47 was not binding upon the Tribunal because later two decisions of the Supreme Court had taken a different view and the Tribunal, therefore, thought itself free not to follow the decision of this Court. Against that order the present writ petition has been filed by Sri Satya Ketu and the contention of learned counsel for the applicant is that the Tribunal was bound by the decision of this Court, that the Supreme Court decisions do not touch the matter and there is an apparent mistake in the judgment of the Tribunal whereby it considered itself free not to follow the decision of this Court. The learned counsel has also contended that the case reported in 22 Ele LR 47 (All) (supra) has been rightly deckled and the Tribunal was wrong in refusing inspection of the voting papers which had been counted as valid votes in favour of the election petitioner.
(3.) WE have heard learned for the parties at length on the question whether the respondent to an election petition can challenge the votes recorded in favour of the election petitioner otherwise than by giving a notice under Section 97 of the Representation of the People Act. The view taken by the Division Bench of this Court in Lakshmi Shanker's case, 22 Ele LR 47 (All) was that a respondent had a right to challenge the validity of the votes counted in favour of the election petitioner if the purpose of the challenge merely ware to indicate that the result of the election will not be affected even though some invalid votes had been counted in favour of the successful candidate because of invalid votes also having been counted in favour of the election petitioner. According to that Division Bench case Section 97 only applied to those cases where the respondent did not merelywish to defend his own election and show that the election remained valid but wanted further to show that although his election may be void the election of the election -petitioner also was invalid. Thus a clear distinction was made between a defence raised in order to defend his own title and an attack on the election petitioner's right to be elected. We need not repeat the reasons which have been elaborated by the learned Judges in that case. Suffice it to say that we respectfully agree with the conclusions arrived at in that case.;