R.S. Narula, J. - (1.) THE validity and legality of the order of the Election Commission, dated March 15, 1971, allowing Iqbal Singh, Respondent No. 3 to inspect the rejected and the counted ballot -papers polled in favour of Gurdas Singh Badal, Petitioner, the successful candidate at the mid -term poll held on March 5, 1971. in respect of the Fazilka Parliamentary Constituency, has been called in question in this writ petition by the abovementioned returned candidate on the following grounds: (1) The amendment made in Rule 93 of the Conduct of Election Rules, 1961, on and with effect from March 31, 1962, empowering the Election Commission to order inspection of unused and used ballot -papers and the marked copy of the electoral roll etc., is ultra vires Article 327 of the Constitution as the said Article has to be read subject to the provisions of Article 324; (2) The impugned amendment of Rule 93 is ultra vires Article 329(b) of the Constitution as it empowers the Election Commission to permit a step in the process of election being called in question otherwise than by way of an election petition; (3) Even if the power vested in the Election Commission to allow inspection is constitutional and valid, the said power can be exercised only in the circumstances and only subject to those limitations which apply to the jurisdiction of a Court or Tribunal to allow inspection under the same rule. In other words the jurisdiction of the Election Commission under Rule 93 is co -extensive with and not larger or wider than that of a Court under that rule. The impugned order passed in this case by the Election Commission does not satisfy the positive and negative tests laid down by the Supreme Court in that behalf and is, therefore, liable to be struck down; (4) The power conferred on the Election Commission under Rule 93 is permitted to be exercised only subject to the proviso to that rule and not otherwise. No order passed by the Election Commission under Rule 93 would be valid if it is not supported by any reasons. In order to sustain the validity of the order for inspection, it must be shown that the reasons given by the Election Commission (to satisfy the requirements of the proviso to Rule 93) are germane to the purposes of allowing the inspection; (5) The order impugned in the present case is not supported by any reasons, inasmuch as merely stating that the allegations made in the application for inspection, if true, would be serious, is no reason in the eye of law. Even otherwise the record produced by the Election Commission shows complete non -application of mind of the Commission to the matter in controversy; and (6) The impugned order is also liable to be quashed as it has been passed in violation of the principles of natural justice and the order seriously prejudices and eclipses the constitutional right of the Petitioner to continue as a member of the Lok Sabha.
(2.) BEFORE dealing with the abovementioned contentions, notice may at this stage be taken of the relevant facts which have led to the filing of this petition. Polling for the mid -term election from the Fazilka Parliamentary Constituency took place on March 5,1971. This Constituency is comprised of eight Assembly Constituencies. Though there were eight candidates at the election, the real contest was between the Petitioner on the one hand, and Respondent No. 3 on the other. The Deputy Commissioner. Ferozepore, who was the District Election Officer, for the Constituency in question, had been appointed as the Returning Officer. On an application of the third Respondent, the Election Commission had appointed Shri R. D. Sharma, Under Secretary, as an Observer for this Constituency. It is not disputed that he toured the Constituency extensively during the polling and also supervised the counting. He also entertained and adjudicated upon a verbal complaint made by the third Respondent. A copy of the Observer's report, dated March 12, 1971, and decision - on the complaint of the third Respondent is Annexure 'C to the petition.
(3.) VOTES were counted from the 10th to the 12th of March, 1971, the last day having been devoted to the counting of postal ballots only. On the conclusion of the count, the result of the election was declared on March 12, 1971, showing that the Petitioner had secured 1,52,653 votes as against 1,47,277 votes polled by Respondent No. 3. At the conclusion of the count and before the declaration of its result, the contesting Respondent made an application (Annexure 'A" to the writ petition) to the Returning Officer wherein he prayed for a recount on various grounds. After hearing both sides, the application was reject ted by the order of the Returning Officer (copy Annexure 'B') on the same day. Thereupon the Petitioner was declared elected. On March 15, 1971, the contesting Respondent made an application to the Election Commission (Copy Annexure R - -X to the return of the contests Respondent) wherein he prayed for being allowed inspection of all (sic) ballot -papers ire all the eight Assembly segments and other rele(sic) election -records which may be open to inspection in order to (sic) him to seek his legal remedy in the appropriate Court by was (sic) election petition. He prayed for an immediate order being passed on the application to avoid any possible mischief. On that application, Shri S. P. Sen Varma, Election Commission, passed an order on the same day which is reproduced below: The allegations made in the application by S. Iqbal Singh, if true, are no doubt serious. I think an inspection of the documents mentioned in Sub -rule (1) of Rule 93 of the Conduct of Election Rules, 1961, may be allowed. In the first place, the used and unused ballot -papers may be inspected and after such inspection if the Applicant demands an inspection of the marked copy of the electoral roll, then inspection of that document may also be allowed. A formal order may be drawn up in accordance with the proviso to Rule 93(1) and detailed instructions and directions may be given to the District Election Officer. Under Secretary, Shri R. D. Sharma, who was sent as an observer from the Commission at the time of the counting of the ballot -papers in Fazilka Parliamentary Constituency may proceed to Ferozepore and remain present at the time of inspection.;