Dave, J. - (1.) THIS is an appeal under sec. 19 (2) of the Rajasthan Town Municipalities Act (No 23 of 1951) which will hereinafter be referred to as Act No 23, against the order of the learned District Judge, Jodhpur dated the 31st May, 1958, dismissing the appellant's election petition.
(2.) IT is common ground between the parties that the election of Municipal Board Phalodi was held on 1st of August, 1957, and the result was declared on the next day, i. e. 2nd of August, 1957. The appellant and the respondent both contested the election from Ward No. 4. From that ward the total number of votes polled was 414. Out of them 25 votes were declared invalid. Out of the remaining 389 votes, 192 were recorded in favour of the appellant and 197 in favour of the respondent got only 5 votes more than the appellant and he was declared elected. On the 6th of August, 1957, the appellant presented an election petition under sec. 19 of Act No. 23 m the court of the learned District Judge, Jodhpur. It was stated by him that out of 25 votes which were declared invalid only 8 votes should have been so declared and that the rest 17 votes were wrongly declared invalid. According to him, 13 out of these 17 votes are in his favour and 4 of them are in favour of the respondent and that the mistake in declaring them invalid would appear from their bare perusal. It was prayed by him that careful scrutiny and computation of the said invalid votes should be made and the appellant should be declared as duly elected,in place of the respondent, The appellant deposited a sum of Rs. 50/- as a security for costs as required by law. The respondent contested this application on several grounds. It was urged that the election officer had adopted certain guiding principles for determining the validity or invalidity of votes, and that Shri Devi Prasad, who was the agent of the candidates belonging to the party of Majdoor Sangh to which the appellant also belonged,had raised no objection to act upon those principles. Shri Devi Prasad was also the counting agent of the appellant and the appellant was thus estopped from challenging the correctness of the principles which were adopted before the counting was commenced. It was asserted that the allegations made by the appellant were vague and an election petition could not be sustained on such vague allegations. It was further urged that the appellant or his agent did not get his objection recorded on the ballot papers; nor was their condition noted at that time. The ballot papers were kept in boxes without any seal. It was further alleged that the appellant persuaded the returning officer to reopen the ballot boxes on 4. 8. 57 in the Tehsil office. The respondent expressed a suspicion that the petitioner (appellant) and his agent having induced the returning officer to reopen the ballos boxes the votes may have been tampered with, and that the appellant had thus forfeited his right to claim the counting by his conduct. The respondent proceeded to allege that the appellant had been guilty of corrupt practices himself as mentioned in schedule A filed with his written statement and therefore he could not be declared elected. It was also urged that the election petition was not properly verified and that the returning officer who was a necessary party was not impleaded and so the application was not maintainable. The learned District Judge framed 7 issues, but he took up only the following 4 of them for his decision, since they were purely legal issues: - (1) Whether the allegations contained in para 2 of the election petition are vague and cannot sustain an election for recounting. (4) Whether the election petition is bad in law for want of verification? (5) Whether the returning officer is a necessary party to the petition? (6) Whether the non-petitioner can make a prayer for recrimination? It appears from the decision of the learned Judge that issue No. 5 was not passed by the appellant at the time of arguments. Regarding issue No. 4 it was observed by the learned Judge that verification of the petition was necessary, but it was only a curable irregularity and therefore he gave 30 days' time to the appellant to make the verification according to law. Issue No. 6 was decided by the learned Judge in favour of the respondent, but it was held that the petition could not be dismissed on that issue, since the occasion for leading evidence about recrimination did not arise till then. The application was dismissed only by deciding issue No. 1 against the appellant. It was held by the learned Judge that the appellant had stated nothing beyond making vague allegations and that there was nothing in the petition itself as to how and in what manner 13 votes, which according to the appellant should have been declared valid in his favour, were invalidated. He referred to some case law on the point and came to the conclusion that the application on such vague allegations was not maintainable. It appears from his judgment that the appellant's learned counsel sought permission to file an affidavit or make his allegations a little elaborate, but the learned Judge observed that he saw no reason why a further opportunity should be given to him to improve upon a position which was not conceived at the time when the matter was brought to the court and therefore he turned down that request and dismissed the election petition with costs. Learned counsel for the appellant has strenuously urged that the learned District Judge has committed a mistake in relying upon certain remarks made by the various tribunals in cases arising under the Representation of the People Act No. 43 of 1951 which will hereinafter be referred to as Act No. 43. It is contended that the provisions of sec. 19 (3) (a) and (b) of Act No. 23 are very different from the provisions of sec. 100 of Act No 43 and, therefore, in the first instance, the learned Judge ought not to have relied upon cases arising under the later Act. It has been further argued that even the remarks made by the tribunals in cases arising under Act No. 43 have not been properly applied by the learned Judge to the present case. According to learned counsel, the allegations made by the appellant were not vague. It was clearly stated by him that 13 votes which should have been declared valid in his favour but which were wrongly declared invalid should be scrutinized again. He also stated that 4 votes should be similarly declared valid in favour of the respondent and that if the votes are then computed the petitioner would be found to have got 205 votes as against 201 votes in favour of the respondent and he should be declared elected. Learned counsel for the respondent has urged with equal vehemence that the appellant could not have a recounting of votes merely for asking, that he should have alleged as to why he thought that 17 out of 25 votes which were declared invalid were valid, that he should have given more particulars and should have also made out a prima facie case by supporting his application by affidavit or otherwise, that an application on vague allegations like those made by the appellant was not maintainable and it was rightly dismissed by the learned Judge. I have given due consideration to these arguments and also to the view expressed by the learned District Judge and I think that the learned Judge has committed a mistake of law in not confining himself to the interpretation of sec. 19 of Act No. 23 and in allowing himself to be misled by the observations made by certain tribunals while considering the applications under Act No. 43. It further appears that he has not rightly appreciated the remarks made in the context of the facts of the particular cases in which the remarks were made. Before discussing the question whether the application was not maintainable on account of vagueness, it may be pointed out that the learned Judge had given 30 days' time in the earlier part of his judgement to allow the appellant to make a proper verification of his application but it appears that he forgot this fact while dictating the later part of his judgment. It is clear from the last but one paragraph of his judgment that the appellant's learned counsel requested him that he should be permitted to file an affidavit or make his allegations a little more elaborate in order to satisfy the court, that he had a strong prima facie case and that 13 votes which could go in his favour were wrongly declared invalid, but the learned Judge did not allow this opportunity on the ground that it was too late and the appellant could not be permitted to improve his position. It may be observed that this remark is inconsistent with the permission which he had given earlier while dealing with issue No 4. When he was prepared to allow the appellant 30 days' time for the mere purpose of verifying the application, there was little reason for not allowing him to file a separate affidavit to support that petition and to give better particulars within the same time. It was incorrect to presume before the appellant had given better particulars, that he was trying to improve his position. The appellant had made only one allegation to the effect that out of 25 votes which were declared invalid 13 votes in his favour and 4 votes in the respondent's favour ought to have been declared valid and that the election officer had committed a mistake in invalidating the above 17 votes. If the learned Judge wanted himself to be satisfied as so why the appellant considered seventeen votes to be valid before proceeding with the case further, there was no reason for refusing permission to the appellant to give better particulars when he was allowed 30 days' time only for verifying the election petition Such a step could not be prejudicial to the respondent. The learned Judge has thus obviously not exercised his discretion judicially while dealing with issue No. 1 Now coming to sec. 19 of Act No. 23, it would be proper to reproduce below sub-sec. (3) of sec. 19, because the entire argument hinges on its interpretation: - " (3) (a) The Judge, if satisfied that a candidate has, within the meaning of sub-sec. (4 , committed any corrupt practice for the purpose of the election, shall declare the candidate disqualified both for the purpose of that election and of such fresh election as may be held under sub-sec. (2) and shall set aside the election of such candidate if he has been elected. (b) If in any case to which clause (2) does not apply, the validity of an election is in dispute between two or more candidates, the Judge shall, after a scrutiny and computation of the votes recorded in favour of each such candidate, declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected: Provided that for the purpose of such computation no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it. " It is clear from the perusal of clause (a) that it enjoins upon the Judge that if he is satisfied that a candidate has committed a corrupt practice for the purpose of the election he must declare him disqualified both for the purpose of that election and of a fresh election which may be held under sub-sec. (2) and he should set aside the election of the candidate if he has been elected. In the present case the respondent's election is not challenged on account of the commission of any corrupt practice on his part and therefore this provision does not come into play. The application out of which this appeal arises has been filed under clause (b ). Clause (b) lays down that if in any case to which clause (a)does not apply, the validity of the election is in dispute between two or more candidates, the Judge should make a scrutiny and computation of the votes recorded in favour of each such candidate and then declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected. There is a further proviso to sub-sec. (b) which lays down that if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining a vote, then that vote shall not be reckoned as valid for the purpose of computation referred in sub-clause (b ). The corresponding relevant provision of sec. 100 of Act No. 43 may also be noted here: - "100 (2) Subject to the provisions of sub-sec. (3), if the Tribunal is of opinion: - (a) that. . . . . . . . the result of the election has been materially affected by any corrupt or illegal practice, or (b ). . . . . . . . . . . . . . or (c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the. . . . reception of any vote which is void;. . . . the Tribunal shall declare the election of the returned candidate to be void". It is obvious that the language of sub-sec. 19 (5) of Act No. 23 is different from that of sec. 100 of Act No. 45 and the former sub-section should be interpreted as it stands. It is clear that sec. 100 of Act No. 43 does not contemplate a recount for mere asking and a petitioner has to allege and satisfy a tribunal that there was an improper reception and refusal or rejection of any vote or reception of any vote which was void. Sub-sec. 3 (b) of Sec. 19 of Act No. 23 should be interpreted as it stands. It is wider in scope and it shows that if the validity of an election is disputed and if that matter is not covered by clause (a) of sub-sec. 19 (3), then the Judge has to scrutinize and compute the votes recorded in favour of each such candidate. In M. Lakshumanayya vs. S. Rajam Ayyar (1) the election of a certain candidate under the Madras District Municipalities Act was challenged on the ground that the chairman, who conducted the election, had shown undue partiality and counted votes in favour of the successful candidate which ought to have been rejected. A recount was made in that case. A revision application was filed against the decision of the Judge and it was urged that he had ordered recount in the circumstances which did not give him jurisdiction. It was observed by the learned Judge who decided that revision application as follows - "it is quite clear that the learned subordinate Judge was under no misconception as to what at any rate the English Law was, and applied his mind to the question whether or not a recount should be granted it need hardly be said that from the nature of the case, proof that the count at the election was wrong cannot be given before the recount takes place. Usually nothing more can be alleged than cause to suspect the original count. An overstrict insistence that an application should be supported by evidence of miscounting is therefore unwarrantable". It seems that this decision was brought to the notice of the learned District Judge in the present case, but he distinguished it by saying that in that case the petition was supported by an affidavit and there was an allegation that the chairman had shown partiality. To my mind, the fine distinction which is sought to be brought out by the learned Judge has little basis to stand. In the present case also the appellant had made a clear allegation that the election officer had wrongly invalidated 13 votes which were recorded in his favour. The only difference is that the petition in the Madras case (1) was supported by affidavit of the petitioner himself, while in the present case the petitioner omitted to file an affidavit. It is however clear from the decision of the learned Judge himself that the petitioner was prepared to file an affidavit. He was also prepared to give further particulars and satisfy the Judge and when the Judge himself had given him 30 days' time to verify the petition, there was little sense in not permitting him to the file required affidavit. It would also appear from the observation made in Madras case that proof about the allegation that the count was wrong can hardly be given before the recount actually takes place and that an overstrict insistence that the application should be supported by the evidence of miscounting is therefore unwarrantable. It is urged by respondent's learned counsel that the appellant's agent being present at the time to the rejection of votes, the appellant could be in a position to say for what reasons the votes were invalidated. It is true that the appellant could give a general idea regarding the alleged mistake committed by the election officer in invalidating the votes, but it would be too much to expect from him that be should give particulars about each vote which was invalidated. It may be pointed out that r. 34 of the Rajasthan Town Municipal Election Rules, 1951, requires that it is the duty of the returning officer, after the counting of votes is completed, to seal up in separate packets, the counterfoils of ballot papers, the tendered ballot papers, the ballot papers which he has admitted as valid and those which he has rejected as invalid, the list prescribed by r. 30 "the tendered votes list" and then he must record on each packet a description of its contents and the date of the election to which it relates. He is further required to forward all the packets mentioned above to the District Magistrate. Then r. 38 of the said Rules provides that the District Magistrate must retain the said packets for one year. It further provides that so long as the packets are in the custody of the District Magistrate, they would not be opened and their contents shall not be inspected or produced except under the order of the election court having jurisdiction. It is thus crystal clear that once the packets are sealed up after the counting is over, nobody can have a look at them, because they cannot be opened except under the order of the election court having jurisdiction. In such circumstances, the appellant could not obtain a c py, even if he wants, of the votes which are invalidated. It is too much to expect from him that he should remember the details as to why each vote was rejected and then give his reason for considering it valid. The validity or invalidity of the votes contained in the sealed packet showing them rejected as invalid can be better known only when the packet is opened before the court concerned. The insistence of the learned Judge on details being furnished by the appellant under these circumstance was therefore unjustified in my opinion. It may next be pointed out that the language of sec. 19 (3) of Act No. 23 of this State is exactly the same as that of sec. 23 (3) (a) and (b) of the Bombay District Municipal Act, 1901. In Samsher Khan Mohamad Khan vs. Jafarali Ahmedali Sayad (2) an election petition was filed before the District Judge, Kaira who raised, an issue whether he had jurisdiction to entertain the application in the absence of specific allegations of corrupt practice on the part of or by opponent No. 1 and he decided it in the negative. When the matter came before a division bench of the Bombay High Court it was observed that it was difficult to understand how the learned Judge had arrived at the conclusion that in exercising his jurisdiction under sub-sec. (3) (b) of sec. 22 it was necessary for him to be satisfied that a corrupt practice had been committed. It was observed that "whereas under cl. (a) in order to exercise his power the Judge must be satisfied that a corrupt practice has been committed, in cases falling under cl. (b) what the Judge has got to do is to scrutinize and compute the votes recorded and come to a conclusion from that scrutiny and computation as to which candidate was duly elected" Sec. 22 of the Bombay District Municipal Act of 1901 also came to be considered in Chanabaasappa Shivappa vs. Garupadappa Murigappa (3 ). In that case also a contention was raised that a prima facie case must in the first instance be made out before a Judge can order a scrutiny and recounting. It was held after analysing the wordings of sec. 22 that there was nothing therein to support the above contention. It was observed that "the said sub-section does not say that the petitioner must allege that the votes have been invalidly cast in favour of the other candidates and such invalid votes have been received and that he must make out a prima facie case that such votes were in fact cast before scrutiny can be ordered. " It may be pointed out that the present case is a much stronger one, because here the petitioner had alleged in unmistakable terms that 13 votes which should have been counted in his favour were wrongly declared invalid. Learned counsel for the respondent has referred to the following observation made in the Indian Election Cases by H. S. Doabia at page 87: - "it is well settled law that not candidate is, as a matter of right, entitled to such a recount or scrutiny merely for the asking. It is a matter of discretion for the Court, and the petitioner has to make and prove specific grounds which will satisfy the Court that the return was not accurate and that the count and scrutiny are called for in the interests of justice. " This was a quotation given by the tribunal from the Chingleput case. It may be observed that the tribunal was considering over a matter arising out of an election for the legislative assembly. It has already been observed above that sec. 19 (3) of Act No. 23 should be interpreted as it stands an extraneous considerations based on the language of other laws should not be imported. Moreover, this is not a case in which it can be said that the appellant wanted a recount for mere asking. He wanted recount of only 25 votes because he thought that 13 votes cast in his favour were declared invalid wrongly. It may be further pointed out that the tribunal itself in the above case had referred to the following observation appearing in the Punjab North (M) 124 Case (Hammond's Indian Election Cases 1936, Page 569), but it was only distinguished and not dissented from. It is to be remembered that the respondent Bahawal Bakhsh in the present instance had very narrow majority, viz. of three votes only over the petitioner. In England when the majority is a narrow one, a recount is granted almost as a matter of course. . . . . . . . . " In the present case also the respondent had a majority of only 5 votes and so even on the reasoning of the Punjab North (M) 1924 Case, referred above, the learned District Judge ought not to have been reluctant in having a recount. Learned counsel for the respondent has also referred to a similar observation appearing at page 238 of the same book, but it does not help him for the reasons given above. The decision of the learned District Judge on issue No. 1, therefore, cannot be maintained and it seems proper that the case be sent back to him with direction to proceed in the matter and decide the election petition according to law.
(3.) LEARNED counsel for appellant insists that the matter should be decided by this Court. This prayer is contested by learned counsel for the respondent and in my opinion rightly too. It will be for the learned District Judge to scrutinize the rejected votes and decide as to how many of them were wrongly declared invalid. LEARNED counsel for the respondent has urged that the relief for recounting should not be given to the appellant because the ballot papers were not kept sealed. The packets were reopened on 4th August, 1957, and the papers have been tampered with. It would suffice to say that this Court cannot presume that all these allegations are correct. It will be open to the respondent to show to the learned District Judge whether the packets were not sealed and whether the papers have been tampered with if any. Learned counsel for the appellant has also urged that the decision of the learned Judge about issue No. 6 is wrong and should be set aside. It is contended by him that there is no provision for recrimination in Act No. 23. It is true that there is no separate provision in the name of recrimination as such as it appears in sec. 97 of Act No. 43, but the proviso to sub-sec. (3) (b) of sec. 19 of Act No. 23 makes it quite clear that if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining a vote, then no such vote shall be recorded as valid for the purpose of computation. This issue has been rightly decided by the learned District Judge against the appellant. The appellant's prayer in this behalf is therefore rejected, but since he succeeds on the decision of issue No. 1, his appeal is allowed and the decision of the learned District Judge on issue No. 1 is set aside. The case be sent back to him with direction to proceed in the matter and decide the election petition on merits according to law. In view of the partial success of both the parties, they are left to beat their own costs in this Court. .;