S.S.SANDHAWALIA,J. - (1.) WHETHER the infraction of a single statutory rule (i. e. Rule 3 (k) of the Bar Council of Punjab and Haryana Election Rules, 1968} would invalidate the whole of the election held in accordance with the system of proportional representation by means of a single transferable vote in a multiple member constituency is the significant question which falls for determina-tion by this Full Bench.
(2.) THE salient facts arc not in dispute and it is only on marginal matters that the parties are at some variance. It, therefore, suffices to first notice the admitted position on facts on the basis of which the primary arguments have been addressed. Bhup Singh petitioner, an Advocate and a member of the High Court Bar Association at Chandigarh was a candidate for election to the Bar Council of Punjab and Haryana. The said Council is constituted of 20 members. The method of election thereto is by a single transferable vote from amongst the voters in the electoral roll prepared in ac-cordance with the Bar Council of Punjab and Haryana Election Rules 1968 (hereinafter re- ferred to as the Rules ). According to the published programme after the completion of the necessary preliminaries the polling was held on the 28th of July at Chandigarh and later on the 30th of July 1975 at various district head quarters. Respondent No. 2, the Secretary of the Bar Council was appointed as the Returning Officer for the election and the counting of votes commenced in the Bar Council's office at Chandigarh on the 9th of August, 1975, at 10 A. M. The Returning Officer after complying with Sub-clause (a) of Rule 26 arranged the voting papers in separate parcels for each of the candidates according to first preferences recorded thereon and thereafter credited each of the candidates with the value of the papers in his respective parcels. One of the candidates in the election, namely, Shri Jagdev Sharma polled 47 first preference votes whilst in the same process the petitioner was found originally to have secured 57 first preference votes though later this figure was corrected to 64. Whilst this process of sorting and arranging all parcels of first prefer-ence votes was yet continuing, some person from outside the Counting Hall brought five ballot-papers which he had picked up from outside the Counting Hall and produced them before the Returning Officer. All these ballot-papers bore first preferences in favour of Jagdev Sharma. It was thereupon discovered that the parcel containing the first preference votes in favour of Jagdev Sharma was missing along with all the ballot-papers therein which had been earlier recorded in his favour. The Returning Officer thereafter informed the candidates or their agents present in the Counting Hall about this fact and it being already 10 P. M. at night it was decided that the matter would be taken up on the following day. A first information report regarding the theft of the ballot-papers was lodged with the police but it is the common case that the abstracted ballot-papers were never traced nor the persons responsible therefor identified, On the 10th of August, 1975, the Returning Officer decided to discontinue the counting and to refer the matter to the Bar Council of Punjab and Haryana. In the meantime the election material including the parcels etc. were all placed in the strong room of the High Court with the permission of the Hon'ble the Chief Justice. The Bar Council of Punjab and Haryana (respondent No. 1), decided that the Returning Officer should proceed in the matter in accordance with law. However, because of the absence from Chand-digarh of Mr. J. N. Kaushal, the then Advocate-General, Haryana, the counting could only be resumed two and a half months later, that is, on the 25th of October, 1975. The date of the counting, was duly published in the daily 'tribune' on the 19th of October, 1975, and an intimation of the date was also sent to all the 64 candidates. On the resump-tion of the counting on the date above-mentioned, the petitioner was not himself present either personally or through an agent but it is the admitted case that Shri J. N. Kaushal, Advocate-General Haryana and many other candidates or their agents attended the same.
(3.) IN the process of counting, Shri Jagdev Sharma was eliminated in the 18th count and thereupon the Returning Officer declared his decision to treat the 42 stolen votes polled in favour of Shri Jadgev Sharma to be exhausted votes under Rule 3 (k) of the Rules. It is the case of the respondent Bar Council that none of the candidates or their agents who were present at that time raised any objection to the same and the counting thereafter proceeded and continued till the 26th of October, 1975, on which date the petitioner also came to be present at 5. 30 P. M. It was only in the early hours of the morning of the 27th of October, 1975, that the result was completed and the list of candidates, so elected, was prepared and submitted by the Returning Officer to the Advocate-General , Haryana for verification and subsequent publication in the gazette in accordance with Rule 33. Twenty candidates, namely, respondents Nos. 3 to 22 were declared elected. The petitioner was not one of the successful candidates.;