ASTHANA,J. - (1.) JUDGEMENT This is an appeal under S. 116-A of the Representation of the People Act from the judgment of Sri H.K. Sinha, District Judge of Agra appointed as Tribunal under that Act to try an election petition filed by Hukam Singh, appellant questioning the election of Banwari Lal Bipra respondent No. 1, who was elected to the Uttar Pradesh Assembly from 364 Fatehabad Constituency in Agra district in the general elections held in February 1962. The appellant was one of the contesting candidates and so were the other respondents impleaded in this appeal. The roll was taken on the 19th February 1962. As a result of the counting; of votes Banwari Lal Bipra respondent No. 1 obtained 10,988 votes and Hukam Singh appellant obtained 10,939 votes. Thus there was a difference of 47 votes only between the appellant and respondent No. 1, the other contesting candidates obtaining far lesser number of votes. Accordingly Banwari Lal Bipra respondent No. 1, was declared elected. Appellant Hukam Singh then filed an election petition calling in question the election of Banwari Lal Bipra respondent No. 1, on various grounds based on Ss. 100 and 123 of the Representation of the People Act and also prayed that after declaring the election of Banwari Lal Bipra to be void he may be declared to have been duly elected.
(2.) WE are not concerned in this appeal with the case of the parties challenging the election on charges of corrupt practice under S. 123 of the Act and therefore it would not be necessary to mention the pleadings of the parties in respect of those charges. What we are concerned with are the grounds under Ss. 100(d)(III) and (IV) of the Act questioning the election and the grounds under S. 101 of the Act on the basis of which the appellant prayed to be declared to have been elected. The averments in paragraph 6 of the petition constituted the pleas questioning the election grounded on S. 100 of the Act. The grounds which were detailed and amplified in sub-paragraph A related to impersonation. It was alleged that the votes were received of electors who were dead or who did not actually come to vote and the votes were cast in their names by persons impersonating them. As the Tribunal found that the petitioner was not able to prove impersonation and that finding has not been challenged in this appeal before us we are not called upon to consider that finding and the evidence given by the parties on that question. The main points which fall for consideration in this appeal concern the grounds made out on the averments made in sub-para B of para 6 of the petition. It would be convenient at this stage to reproduce the contents of this sub-paragraph which are as follows :- "(i) Counting of votes was not done according to law. (ii) Counting of votes was done in the court-room of the S. D. M. Fatehahad who was also the Returning Officer of the said constituency. The room was very small in size and in a part of that room were huddled together twelve tables with three chairs each for sealing the person who assisted the Returning Officer in the counting. Around these tables and chairs were placed benches for seating the agents of nine contesting candidates. It was all confusion and there was no proper opportunity for the candidates and their agents to watch the counting, as a result of which there was wrong counting of votes and the petitioner who had secured the largest number of valid votes was not declared to be elected and respondent No. 1 was wrongly and illegally declared to be elected. (iii) Counting of votes which began on 26th February, 1962, proceeded continuously till about 1 A.M. on the twenty-seventh February and was begun again from about 11 A.M. on 27th February, 1962, and continued till late in the evening of the same day as a result of which votes could not be correctly counted and the petitioner who had polled the largest number of votes was not declared to be-elected and respondent No. 1 was wrongly and illegally declared to be elected. (iv) Only two counting agents were permitted to be present on behalf of the petitioner at the time of counting of votes while counting of votes was called on separately on twelve different tables, though in the same room because of which it was physically impossible for the petitioners counting agents to watch the counting at the different counting tables. Consequently, counting of votes was not properly done and the result of counting announced by the Returning Officer was wrong. At least one counting agent must have been permitted at each counting. table. As such, there was in fact, denial to the petitioner of his light to watch the counting of votes. If sufficient number of counting agents were allowed to be present on behalf of the petitioner at the time of counting of votes, the result of counting would have shown that the petitioner and not the respondent No. 1 secured the largest number of votes and the petitioner and not the respondent No. 1 would have been declared to have been elected. (v) Counting of votes was wrongly and illegally done as several valid votes of the petitioner were counted as valid votes of respondent No. 1 and other respondents. Consequently, the petitioner who had, in fact, secured the largest number of votes could not be declared to be elected and the respondent No. 1 was wrongly and illegally declared to be elected. (vi) Counting of votes was incorrectly done inasmuch as several valid votes cast in favour of the-respondents other than respondent No. 1 were counted as valid votes of respondent No. 1 who way thus-illegally declared to be elected. In fact, the respondent No. 1 had got lesser votes than this petitioner. Had there not been such incorrect counting the, petitioner and not respondent No. 1 would have been declared to have been duly elected. (vii) Several invalid votes of respondent No. 1 as well as other contesting candidates including the petitioner were counted as valid votes of respondent No. 1 whose number of votes thus got inflated and who was thereby illegally declared to be elected. If these invalid votes had been rejected, the petitioner and not the respondent No. 1 would have been declared elected. (viii) Several of the valid votes of the petitioner were illegally rejected and had they not been so rejected, the petitioner and not the respondent no. 1 would have been declared elected. (ix) The petitioner brought to the notice of the Returning Officer the aforesaid illegalities and irregularities orally as well as by means of a written application, but the Returning Officer turned a deaf ear to the petitioners complaint and did not even-entertain the petitioners application and for supposed reasons summarily rejected the prayer of the petitioner for recount of votes. The petitioner then again renewed his prayer by means of an application written in haste for a recount of votes but this application of the petitioner was also rejected by the-Returning Officer arbitrarily and illegally in contravention of rule 63 of the Conduct of Elections Rules, 1961. The reasons assigned by the Returning Officer to reject the application of the petitioner are unjust and unsubstantial and he has manifestly failed to appreciate the difference between recounting and accounting. Had the Returning Officer accepted the prayer of the petitioner for a recount of votes, the result would have showed that the petitioner and not the respondent no. 1 had polled the largest number of valid votes and the petitioner and not respondent no. 1 would have been declared elected. (x) The Returning Officer in contravention of the Provisions of Rule 53(3) of the Conduct of Election Rules, 1961 did not allow the counting agents of the petitioner to watch the counting at any particular counting table or group of counting tables and instead directed them to sit in a corner on a bench and watch the counting from there. Thus the counting agents of the petitioner were not at all afforded any opportunity to watch the counting. Consequently, the counting of votes was wrong ad respondent no. 1 was wrongly declared elected. (xi) The Returning Officer in accordance with the provisions of Rule 53(2) of the Conduct of Election Rules, 1961 was bound to permit the presence of the counting agent at the counting table and to allow the counting agent to inspect the paper seal or such other seal as might have been affixed on the ballot boxes and to satisfy himself that it was intact. By not allowing the presence of the counting agent of the petitioner at the counting table the Returning Officer denied him the opportunity to do so. As such, it cannot be said that the ballot boxes were intact and had not been tampered with. The ballot papers taken out from such ballot boxes and counting of votes on that basis led to wrong announcement of result and the respondent no. 1 was wrongly declared elected. (xii) The Returning Officer failed to allow the counting agent of the petitioner a reasonable opportunity to inspect the ballot papers before rejecting them, as provided in rule 56(3) of the Conduct of Election Rules, 1961, and consequently several of the valid ballot papers containing valid votes of the petitioner were rejected illegally. Accordingly, the counting of votes was wrong and the respondent no. 1 was wrongly declared elected. Had the counting agent of the petitioner been afforded such opportunity, several of the valid votes of the petitioner would not have been rejected and the petitioner and not the respondent no. 1 would have been declared. (xiii) The Returning Officer failed to record on every ballot paper of the petitioner which he rejected the grounds of rejection in the requisite form and as such the rejection of those ballot papers was illegal and those votes should have been counted as the valid votes of the petitioner. Had those votes been counted as the valid votes of the petitioner, the petitioner and not the respondent no. 1 would, have been declared elected. (xiv) Shri J.P. Garg, Tahsildar, Fatehabad, was hostile to the petitioner because the petitioner had led agitation against him and had also made complaints against him. He was, however, permitted to be present at the time of counting of votes and to take part in the supervision of the counting of votes and as a result of which also the counting of votes was not fairly done and the petitioner was wrongly not declared elected." It is not necessary to mention the allegations in sub-paragraph C as it appears from the record that the grounds in that sub-paragraph were withdrawn by the petitioner. In his written statement Banwari Lal Bipra respondent No. 1 traversed all the allegations made by the petitioner including the allegations made in sub paragraph B of the petition. It was pleaded that the allegations in those paragraphs were vague and lacked specification and deserved to be struck off. It was denied that there was wrong counting or that the petitioner secured the highest number of votes. It was denied that the counting was not properly done or that there was any necessity to allow more than two agents for each candidate. It was denied that any votes cast for the petitioner were counted as votes for other contesting candidates. It was denied that any votes cast for other contesting candidates were counted in favour of respondent no. 1. It was denied that any invalid votes either of the respondent no. 1 or any other contesting candidates were counted as valid votes in favour of the respondent no. 1. It was also denied that any illegality or irregularity was committed by the Returning Officer. It was further pleaded that there was no contravention of Rule 53(3) of the Conduct of Election Rules and there was no prohibition or limitation upon the movement of the counting agents of the various candidates and they were free to watch the counting that took place. It was asserted that full opportunity was given to the candidates and their counting agents to see the ballot papers which were rejected and the counting was correct and no valid votes of the petitioner were rejected. It was further denied that the Returning Officer failed to record on every ballot paper of the petitioner which he rejected, the grounds of rejection. The allegation that Sri. J.P. Garg, Tahsildar was hostile to the petitioner was denied.
(3.) THE Tribunal on the pleadings of the parties in respect of the averments in sub-paragraph B of the petition framed issues numbers 2, 3, 4 and 5 which are as follows :- 2. Were the valid votes of the petitioner and the respondent No. 1 rejected by the Returning Officer ? If so, their number and its effect ? 3. Were invalid votes counted as valid votes for the petitioner or respondent No. 1 ? If for their number and its effect ? 4. Were valid votes cast for the petitioner and respondent No. 1 wrongly counted as votes respectively for first respondent and the petitioners or other respondents or vice versa ? If so, their number and its effect ? 5. Were votes cast in favour of the petitioner not counted at all ? If so, their number ? ;