- (1.) THIS election petition has been filed by Ram Harsh Misra to challenge the election to the U. P. Legislative Assembly from Constituency No. 148 known as Mahsi Constituency District Bahraich that was held on 26-2-1974. This election was contested by the petitioner and the respondents Nos. 1 to 9. The respondent No.1 Sukhadraj Singh having secured the largest number of votes i.e.. 16486 was declared elected. The petitioner lagged behind him by 33 votes having secured 16453 valid votes.
(2.) THE election has been challenged mainly on the around that the courting of votes was not done properly. It was alleged that the size of the counting tables was small and when ten counting agents one of each candidate and three members of the courting staff sat around it there was great overcrowding. It was not possible for the counting agents to watch the ballot papers closely and see if they were being properly sorted out and kept correctly in the trays meant for each candidate. The counting was also done hurriedly. The counting was done in five rounds. The total number of rejected ballot papers was 2039 and the rejection was also done in a mechanical manner. The counting of first and second rounds had been completed at about 4.30 P. M. and 7 P. M. respectively and thereafter the third round of counting was completed at about 11 P. M. The fourth and fifth rounds were taken together and their counting was completed at about 5 A. M. When the second round of counting was about to close, the light was fading and there was inadequate lighting arrangement. The counting continued in that fading light also in spite of protest being made that in that light even the marks of seal on the ballot papers were not distinctly visible and as such counting should be postponed, But the Returning Officer did not pay any heed to this protest. The respondent No. 1 himself had moved an application complaining about fading light but even then no action was taken by the Returning Officer. This gave an opportunity to the counting staff to bundle out and count the ballot papers in their own manner recklessly, negligently and carelessly. When in that fading light the petitioner's agent asked a number of times to show him a particular ballot paper, the counting staff did not agree but asked him to go to the Returning Officer who in his turn said that the counting was being done by the counting staff and not by him and it was not possible for him to go and supervise the counting being done at all the fourteen tables every time. In spite of these heavy odds, the Petitioner was leading all other candidates including he respondent No. 1 in the first three rounds and he was fully convinced of the fact that had the counting taken place in the proper manner in accordance with the rules after giving due opportunity to his agents his lead in those three would have been by more 100 votes than what was actually counted by the counting staff. The petitioner further alleged that the counting staff which had mostly been drawn from the consolidation department attached to the Settlement Officer (Consolidation) was favourably inclined towards the Jan Sang candidate the respondent No. 1. In the fourth round the petitioner's lead was reduced while in the fifth round the petitioner was made to lose. It was further alleged that on table No. 11 the number of ballot papers counted in favour of the petitioner as valid votes was 262 but that was entered as 162 in the result sheet which was however detected by the petitioner's counting agent immediately and on his protest that this had been done deliberately, it was corrected. This fact would be evident from a perusal of Form No. 20. The petitioner who had after the counting had started, gone back to his house as he was not keeping fit, received a message sent by his agents that serious irregularities were being committed and efforts were being made by the counting staff to bring about his defeat and to bring about the success of respondent No. 1 by hook or crook. The petitioner then went to the counting Pandal in the early morning of 28-2-1974 before the result of fourth and fifth rounds was declared. By that time the petitioner could not collect all the information regarding the other rounds from his counting agents and so he moved an application before the Returning Officer for recounting of fourth and the fifth rounds. The Returning Officer invited objections from the respondent No. 1 who filed some objections in writing. After some talk between the agents of the respondent No. 1 and the counting staff, the respondent No. 1 was persuaded to withdraw his objection and then his application for recounting was allowed In this recount which was confined to fourth and the fifth rounds some mistakes were found as a result of which the majority secured by the respondent No. 1 was reduced by two votes. By that time the, petitioner learnt about the irregularities committed in the counting in other rounds also and on seeing that some mistakes had been committed in the counting of fourth and the fifth rounds, he moved an application for a total recount which was rejected by the Assistant Returning Officer on account of threats held out by the Jan Sangh candidate and his agents and supporters that if that application was allowed they would use violence. On the basis of the oral objections that were raised by the petitioner's counting agents but were overruled by the counting staff and the Returning Officer the petitioner gave some rough figures about improper rejection of valid votes in his favour and the improper acceptance of invalid votes in favour of respondent No. 1. The petitioner prayed for a total recount and rescrutiny of the ballot papers and as a result thereof to declare him as duly elected after declaring the election of the respondent No, 1 as void.
(3.) THE petition was contested by the respondent No. 1 who denied most of these allegations and alleged that the counting had been done properly and in accordance with the rules and there had been no irregularity or illegality in the counting votes. He also took some technical pleas about the validity of the election petition which will be evident from the issues framed in this case. These issues were as follows: "1. Whether the size of the counting table was too small to allow the counting agents of the candidates to look into the work of sorting, counting, accepting and rejecting of ballot papers and their bundling etc? 2. Was an objection to this effect taken by the petitioner at the very beginning of the counting as alleged in Para. 15 of the petition ? If not, is he entitled to take this objection in the election petition ? 3. Whether any unauthorised persons entered the counting pandal after 12.30 P. M. as alleged by the petitioner in para. 21 of the petition ? If so, its effect ? 4. Whether at the close of the second round of counting when the light became dim on account of setting of the sun the counting was continued in that dim light before artificial light was provided, and whether that artificial light was not sufficient to allow the ballot papers to be seen distinctly as alleged by the petitioner in paras 22 to 24 of the petition ? If so, its effect ? 5. (a) Whether the counting in fourth and fifth rounds was practically taken together as alleged in para. 19 of the petition ? If so, its effect? (b) whether no objection on this score was taken by the petitioner at that time ? If so, its effect? 6. Whether on table No. 11 in the fourth round 262 ballot papers were counted in favour of the petitioner as valid votes but that was entered in the result sheet as 162 votes which was subsequently corrected on a protest being made by the petitioner's agent to the Returning Officer? If so, its effect on the petition? 7. Whether on the partial recounting made on the application of the petitioner four votes originally counted as valid votes in favour of the petitioner and six votes originally counted as valid votes in favour of respondent No. 1 were found to be invalid votes and rejected as such ? Can an inference be drawn from this fact that the entire recounting suffered from such mistakes ? 8. Whether after the petitioner moved a second application for total recount any threats were held out by the Jan Sangh agent and supporters as alleged in para 35 of the petition? 9. Whether the second recount application of the petitioner was wrongly rejected by the Returning Officer? 10. Whether any valid votes cast in favour of the petitioner were wrongly rejected. or wrongly counted as votes in favour of the other candidates as alleged in paras. 37 to 39 of the petition ? 11. Whether about hundred invalid votes were wrongly credited to respondent No. 1 as valid votes as alleged in para. 38 of the petition ? 12. Whether the result of the election has been materially affected by the above stated irregularities, if any? 13. Whether it is a fit case for general scrutiny and recounting as has been alleged by the Petitioner ? 14. Does the petition suffer from the defect of not containing a concise statement of material facts on which the petitioner relies as required by Section 83 (1) (a) of the Representation of the People Act ? If so, is the petition liable to be rejected on this ground ? 15. Whether the petition was hot validly presented by the petitioner in accordance with the provisions contained in Section 81 of the Representations of the People Act ? 16. Whether the copy of the Election Petition served on respondent No. 1 was not attested by the petitioner under his own signature to be a true copy of the petition as required by Section 81 (3) of the Act ? If so, its effect?" ;