DESAI, C.J. - (1.) THIS is a petition for certiorari (or any other suitable writ or order) for the quashing of orders passed by an election Tribunal on 9-2-1963 and 17-8-1962 in an election petition pending before it. The petitioner, Dr. Jawahar Lal opposite party No. 2, and opposite parties Nos. 3, 4 and 5 contested election for membership of the Uttar Pradesh Vidhan Sabha and the petitioner was declared duly elected as having secured a majority of valid votes. Opposite party No. 2 (who will be referred to as the opposite party, because the other opposite parties, though served with the notice of the petition, have remained absent) filed a petition under Sec. 81 of the Representation of the People Act challenging the petitioners election on several grounds including that the result of the election was materially affected by the irregularities committed by the Returning Officer and sought the relief of declarations that the petitioners election was void and that the opposite party was duly elected as a member and other reliefs with which we are not concerned. Among the irregularities mentioned in paragraph 18 of the petition were counting of a thousand invalid votes in the petitioners favour, wrongly rejecting many valid votes cast in the opposite partys favour and counting in the petitioners favour a large number of votes cast in favour of the opposite party and other defeated candidates. No particulars of the votes involved in these irregularities were given in the petition. The petition was verified on 11-4-1962, but the date of its presentation is not known. It was transferred by the Election Commissioner to the Tribunal consisting of Shri R.P. Dikshit, Additional District Judge, Allahabad, in July 1962.
(2.) AN election cannot be called in question except by an election petition presented to the Election Commission within a certain period. An election petition must contain "a concise statement of the material facts on which the petitioner relies" and "full particulars of any corrupt practice that the petitioner alleges". The reliefs that can be claimed in an election petition are a declaration that the election of any returned candidate is void and a declaration that the petitioners or any other candidate has been duly elected. On receipt of an election petition the Election Commissioner has to refer it to an Election Tribunal for trial. Every election petition is to be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the C.P.C., to the trial of suits; see Secs. 80, 81, 83(1)(a), 88 and 90 (1). Sec. 97 lays down that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate 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 : Provided that the returned candidate .... shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so and has also given the security and the further security referred to in Sees. 117 and 118 respectively." Every such notice must be accompanied by the statement and particulars required by Sec. 83 in the case of an election petition. The date fixed for the respondents to appear before the Tribunal and answer the claim or claims made in an election petition is the date of its commencement within the meaning of this provision. Sec. 100 sets out the grounds for declaring an election to be void and the material provision is Sub-Sec. (1)(d), which is as follows :- "(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice ...... or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vole which is void, or (iv) by any non-compliance with the provisions ...... of this Act or of any rules or orders made under this Act." Every petitioner must enclose with the election petition a Government treasury receipt showing a deposit of Rs. 2,000/- as security for the costs of the petition, vide Sec. 117. A Tribunal has the power under Sec. 118 to call upon the petitioner to give such further security for costs as it may direct. Section 101 empowers a Tribunal in a casein which the petitioner has in addition to calling in question the election of a returned candidate claimed a declaration that he himself or any other candidate has been duly elected, to declare, after holding the election of the returned candidate to be void, the petitioner or such other candidates as the case may be, to have been duly elected, if it is of opinion "(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes". These are the relevant provisions of the Act. The Tribunal started the hearing of the election petition and called upon the petitioner and the other defeated candidates to appear and answer the opposite partys claims made in his election petition. The date fixed by it for their appearing and answering the claims is not known. The petitioner appeared before the Tribunal as respondent No. 1 and filed a written statement answering the claims made by the opposite party. He denied the allegations made in the election petition about the irregularities and that the result of his election was materially affected by them even if they were committed. He took the following pleas :- "41 (a) That the contents of para 18 of the petition and its sub-paragraphs are vague and the particulars of non-compliance of the provisions of" Representation of the People Act and the rules framed thereunder have not been detailed and are liable to be struck off." "41(b) That the counting clerks.... have counted the votes cast for the respondent and other candidates and also invalid votes as votes cast for the-petitioner, they rejected valid votes cast for the answering respondent as invalid and also counted valid votes cast for the answering respondent as votes-cast for the petitioner and other respondent...... In this way the petitioner and his agent succeeded in illegally increasing the votes of the petitioner and. decreasing those of the answering respondent from, what they actually were." On 16-8-1962 the petitioner applied under Order-VI, rule 16 for the deletion of paragraphs 11, 12, 14; 15 and 17 of the petition on the ground that they were unnecessary, vague and indefinite and tended.. to harass the petitioner and prejudice the trial of the election petition. The Tribunal by its order dated 17-8-1962 dismissed this application and this is one order that is sought to be quashed. The Tribunal allowed the ballot papers to be inspected by the-parties in September 1962. On 14-12-1962 the opposite party made an application under Rule XVII of Order VI for amendment of this election petition by adding paragraphs 18(d)(i), 18(d)(ii) and 18(d)(iii) containing three lists, (1) of invalid votes wrongly counted as valid votes cast in the petitioners favour, (2) of valid votes cast in the opposite partys favour but wrongly rejected by the Returning Officer and (3) of valid votes cast in the opposite partys favour but wrongly counted in the petitioners favour. This application was allowed by the Tribunal on 14-12-1962 and the petitioner was ordered to file another supplementary written statement to the amendment. The petitioner filed a supplementary written statement on 1-1-1963, adding three similar lists in respect of votes counted in the opposite partys favour. The opposite party objected to his adding these lists and on 24-1-1963 the Tribunal dismissed his objection. On 28-1-1963 it suo motu revised its order dated 24-1-1963 and fixed 6-2-1963 for the hearing of the opposite partys objection. On 9-1-1963 it passed the other impugned cider deleting paragraphs 4, 5, 6 and 8 of the supplementary written statement; filed by the petitioner on the ground that the allegations contained in them amounted to recrimination and were barred by time, because they were admittedly made after more than fourteen days from the date of the commencement of the trial.
(3.) A reference to Rules made under the Representation of People Act concerning counting of votes is necessary. Rule 57 provides that ballot papers taken out of each ballot box must be arranged in convenient bundles and scrutinized and that the Returning Officer must reject a ballot paper if it bears a mark by which the elector may be identified, or is a spurious ballot paper or has been damaged or mutilated or is an unauthorised ballot paper or does not bear the official mark referred to in Rule 27(2) or the elector has put in the same ballot box more than one ballot paper, after briefly recording the reasons on it. Rule 58 provides that "every ballot paper which is not rejected under rule 57 shall be deemed to be valid and shall be counted" and that the result of the counting of the ballot papers found in each ballot box should be noted down in form 22. Rule 60 deals with scrutiny and rejection of postal ballot papers; no cover in form 18C containing a postal ballot paper received by the Returning Officer after the expiry of the time fixed in that behalf must be opened and no vote contained in any such ballot paper must be counted and a postal ballot paper must be rejected for reasons similar to those given above. These rules make it clear that a vote that is received is either accepted as valid or is rejected. A vote cannot be both accepted and rejected. A valid vote must be accepted and can never be rejected. Section 62 of the Act prohibits voting by a person not entered in the electoral roll of the constituency, or by a person subject to certain disqualifications or at a general election in more than one constituency of the same class or more than once in the same constituency or if he is confined in a prison. These prohibited votes cannot be received at all and if a person votes in more than one constituency or votes in the same constituency more than once all his votes are void. This is the position in respect of votes cast through ballot boxes. A postal ballot paper contained in a cover received after the expiry of the prescribed time is not to be received at all. Whether any vote has been improperly received, refused or rejected or whether any void vote has been received within the meaning of S. 100(1)(d)(iii) has to be decided with reference to these provisions. If a void vote or a prohibited vote is received it is a case of improper reception. If a valid vote is rejected it is a case of improper rejecting of a vote. If a cover containing a postal ballot paper is wrongly refused it is a case of improper refusal of a vote.;