BASIDR,AHMAD MAGREY v. GHULAM QUADIR MIR & Ors.

The figure of 162 included 16 persons who were dead before the date of polling. Electoral numbers of those 162 voters, including 16 dead persons, were also mentioned in the petition. The votes of 162 persons were thus stated to have been improperly received. Similar allegations were made in respect of Nowpora Pain (polling station No .. 50), Drubgham B (polling station No. 24), Drubgham A (polling station No. 23), Alai pora (polling station No. 51), Chandgam (polling station No. 46), Arihal (polling station No. 35) and Tikan Batapora (polling station No. 26). We may add at this stage that the first ground, namely, that relating to the improper rejection of the nomination .paper of respondent No. 5, was not pressed at the trial of the election petition, and . as such no longer survives. The election petition was resisted by the appeHant and he denied the various allegations made by the respondent. He also pleaded that the allegations in the election petition were vague, indefinite and uncer tain.

Objection was also raised regarding the maintainability of the petition on the grounds that it had not been properly verified and there was misjoinder of parties. F The petition was initially heard by Wasi-ud-Din J. It thereafter came up for hearing before Jalal-ud-Din J. Ultimately, it came up for hearing before Mufti Baha-ud-Din Fai:ooqi J. who finaHy decided the petition and gave the judgme!lt under appeal. During the pendency of the petition, orders were made on occasions for inspection of the ballot papers. The first order was made by Wasi-ud-Din J. on August 13, 1973. The learned Judge considered the prayer· for inspection of ballot papers under three heads : . "(1) Request for inspection of ballot papers which were re jected at the time of counting; (2) Request for inspection of ballot paper account (Form No. 16) in respect of the various polling stations and of the ballot papers relevant thereto; G H A 300 sun.•M• COUP.T RllPORTS ,(1977) 2 S.C.R. ( 3) Request for inspection of marked copies of electoral rolls at polling stations Lassipora, Drubgharn A & B, Achan, Chandgham, Arihal, Nowpora Pain, Tikam Batopora, Alaipora.

" Prayer under the first and third heads was rejected but that under the 11e.Cond head was allowed to the extent of the inspection of form No. 16 in respect of Lassipora, Nowpora Pain, Drubgham B; Drubgham A, Alaipora, Chandgham, Arihal and Tikan Batopora polling stations. Inspection of a few ballot papers, of which the numbers were specified, relating to some of the polling stations was allowed. On November 2, 1973 the learned Judge amplified his previous orders in these words : "My order as it stands should be read to clearly signify which I am amplifying here also that the sorting of tho ballot papers will be done by the Deputy Registrar but in the pre sence of the learned counsel for both the parties. The learned counsel. for the parties will not be allowed to handle the ballot papern until they are sorted out b~ the Deputy Registrar and after this is done, the respective learned counsel for the parties can handle and inspect the ballot papers.

" On June 13, 197'4 the learned Judge, on an application mad6 by the respondent, allowed inspection of ballot papers of two more polling stations, viz., Chandgham and Alaipora. The respondent also made prayer for leave to inspect the ballot papers of other polling stations, but the prayer in that behalf WM rejected. Tho followin!! directions were further issued by the learned Judge : "The petitioner has also made a prayer that the Deputy Registrar be given directions to ascertain if the 34 series of two inspected polling stations Nos. 24 and 50 are not mixed in the fourth trunk which hM been produced. The Deputy Registrar will of course see to this and such other discrepan cies which may come to his notice, ho will make a separate note and he will also make a note 0n the envelopt' if he found the discrepancy. " . After Wasi-ud-Din J. relinquished his office, tho ca~i wa11 asaigned to, Jalal-ud-Din J. An application was then made on July 29, 1974 by the respondent seeking permission to inspect ballot papers and other documents pertaining to the v11Iious polling stations.

This application was disposed of by Jalal-ud-Din J. H per order dated January 6, 1975 in these words : "I, therefore, allow the application of the petitioner for inspection of ballot papers in respect of four polling stations. namely, 26 Tikan Batapora from serial No. 015051 to 15700, 35 Arihal-A from serial No. 020901 to 021550. 49 Lassipora from serial No. 031051 to 031900, 23 brubgharn from ~rial No. 013201 to 013800 and 11~so the counterfoili1 of 15 Now pora. Pain, 2-4 Drubgham B. 46 Chandgham and 51 Alaipora, the pollirig stations of which the ballot Vftpers have already I, however, do not accede been inspected by the petitioner. to the request of the petitioner to inspect electoral roll and BASHIR AHMAD v. GHULAM QURDm (Khannq, /.) 301 counterfoils and ionn 16 of the entire constituency. The ins pection as ordered will be held by and in presenc~ of counsel for the parties. But the Deputy Registrar will see that neither the candidate nor their ceumd shall. handle the re cord.

The Deputy Registrar will furtller make a separate n?te and record of the discrepancies found, if any. The inspecuon will be held during vacation on a date to be fixed by Deputy Registrar. " In the judgment under appeal the learned Judge_ held that 5? votes validly polled in favour of the respondent were 1mproperl~ reiected at the time of counting. It was further found that 901 votes, mcludmg 28 votes of dead voters, were improperly polled. Out of 901 votes, 351 votes were found to have been polled in favour of the appellant. Details of those 351 votes were as under: '~ Alaipora polling station No. 51 Arihal polling station No. 35 Takin Batapora P.S. No. 26 200 51 100 Regarding the remaining 550 votes, the learned Judge found that the evidence was not clear, and observed as unliler : "The evidence, however, is not clear as regards the fate of the remaining 550 such votes. But .having regard to overall circumstances of the case it will not be unreasonable, to con clude that respondent No.

1 was the greatest beneficiary of these 550 votes although the precise number by which he was benefited out of those votes may not be easily ascertainable. To these circumstances may be added the circumstance that 59 votes validly polled in favour of the petitioner were impro perly rejected at the time of counting, as held by me before. The cumulative effect of these circumstances is that the res pondent No. 1 was able to get an undue advantage of no less magnitude and may be, even greater than that reflected in his declared success over the petitioner by 8 31 votes. In this view it must be held that the result of the election, insofar as res pondent No. 1 is concerned, was materially affected by the im proper rejection of votes in favour of the petitioner at the time of counting and. the improper reception of votes on the day of poll and that his election must be declared to be void. But that should not entitle the petitioner to a declaration that he was duly elected as the total number of the votes improperly received in favour of respondent No.

1 on the date of poll The prayer for such de- could not be exactly worked out. , claration must be rejected. " , In the result, the election of the appellant was declared to be void. The prayer of the respondent for a declaration that he be declared to have been elected was rejected. · · When this appeal came up for hearing before this Court on Septem 'ber 3,. 1976, we pass.ed an order wherein we referred to the finding of .the High Court ~at Jt cannot be, said as to who was the beneficiary of the 550 votes which were found to have been improperly polled. We thereafter stated in that order : "Jn our opinion, it is necessary to find out as :a result of further inspection as to how many of those 550 votes were in favour of the appellant, and how many, in favour of respon dent No. 1 and the other contesting candidates. For this pur pose, we depute the Registrar (Judicial) of this Court to make an inspection in the presence of the parties and th1!ir counsel and submit a report to this Court within six weeks from today.

The Registrar may also have to locate the 55 baUot papers re ferred to in the judgment of the High Court at pages 31-51 of the cyolostyled judgment. He may also, if ftecessa.ry, refer to the reports of the Deputy Registrar of the High Court. The appeal should be put up for further hearing as soon as the report is ready. " The Registrar of this Court thereafter submitted his report dated Sep tember 15, 1976. The Registrar dealt with most of the~ matters but in respect of some of the mi:itters he sought further directions. Necessary directions were thereafter issued by this Court on September 17, 1976. As a result of those directions, the Registrar had to scrutinise 571 ballot papers in all instead of 550 votes. The final report of the Regis trar is dated September 24, 1976. The result of the r,eports of Registrar taken along with the findings of the High Court may be set out: (!) Votes found by the High Court to impro]'.J'erly received have been favour of the appellant (2) Votes which were found to have been improperly received in favour of the appellant as per the first report of the Registrar (3) Votes which were found to have been improperly received in favour of the appellant as per the second report of Registrar.

Total (4) Total number of votes polled by the appellant as per the results of the election (5) Valid votes polled by the appellant (6) Votes which were found to have been improperly received in favour of the · respondent as per the first report (7) Votes which were found to have been improperly received in favour of the respondent as per the second report Total 25 19 44 351 286 141 778 9,079 9,079- 778°=8,3lH H· (8) Tota votes polled by the respondent as per the result of the election {9) Votes validly polled in favour of the respondent which were found by the High Court to have been improperly rejected at the time of counting 8,248 59 • • y • BASHIR AHMAD v. GHULAM QUADIR (Khanna, /.) 303 (10) Total number of votes thus polled by the respondent (11) Valid votes polled by the respondent (12) Excess of votes validity polled in favour of the appellant over those of of the respondent. 8,248+59=8,307 8,307- 44=8,263 A 38 Some votes were found by the Registrar received in favour of respondents 2 to 4, but it is not necessary to set out those votes. to have been improperly B '.

The above stand has been controverted by In appeal before us Mr. Phadke on behalf of the appellant has urged that in view of the final picture as it emerges from the reports of the Registrar, the appeal should be allowed and the election peti- tion be dismissed as the appellant secured more valid votes than the C respondent. the. respondent, who has argued the case in person. At an earlier hear- ing we requested Mr. Gambhir to argue the case amicus curiae in view of the fact that the respondent was ·not represented by counsel. The respondent thereafter stated that he would like the matter to be argued by counsel of his own choice. Mr. Shaukat Hussain there- after appeared on behalf of the respondent. At the final hearing the D respondent, as mentiond above, chose to argue the case in person. in favour of Perusal of the election petition filed by the respondent shows that apart from the ground not sub~equeutly pressed of the improper re jection of the nomination paper of respondent No.

5, the only ground on which the respondent challenged the election of the appellant was the improper reception of votes in favour of the appellant and the rejection of improper the votes cast pondent. This ground is based upon sub-clause (iii) of clause ( d) of sub-section (1) of section 108 of the Jammu and Kashmir Repre sentation of the People Act, 1957 (Act 4 of 1957) corresponding to sub-clause (iii) of clause ( d) of sub-section (1) of section 100 of the Representation of the People, Act 1951 tAct 43 of 1951). Accord ing to the ·above prevision, if the High Court is of the opinion that 'the result of the election, in so far as it concerns a returned candi date, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, the High, Court shall declare the election of the returned candidate to be void. Keeping the above provision in view, we may now turn to the facts of the present case.

The High Court found that 351 votes had been improperly received in favour of the appellant. The _High Court further found that 59 votes which had been validly polled m favour of the respondent were improperly rejected at the time of In addition to that, the High Court found that 550 votes counting. had been improperly received, but it was not possible on the material on record to find out as to who was the beneficiary of those votes. The High Court all the. same was inclined to believe that the appellant must have been the major beneficiary of those 550 votes. This necessarily involve9-. an eleme~t of surmise and conjecture. To find out the . exact pos1tton, we directed the Registrar of this Court • ... -~ SUPREME COURT REPORTS [1977] i S.C.R. 1>crutiniEe the 550 ballot paper:. in question and to make a report as to how many of those votes were cast in favour of the appellant and how many in favour of the respondent and the other candid; ites.

The Registrar thereafter submitted reports and we have already set out the outcome of those reports taken along with the findings of tile High Court. It would appear from the figures 5et out above that, exclud ing all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 voteii which were found by the High Court to have been improperly reject ed at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent. There is, therefore, no escape from the conclusion that the election of the appellant should In an election petition founded upon the ground that the be upheld. result of the election was materially affected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected.

Once ;that controversy is resolved, the rest is purely a matter Qf :irithmeti If the result of arithmetical calculation is that the cal calculation. returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper recep tion or improper rejection of votes. Improper reception or improper rejection of votes can result in invalidating an election only if such improper reception or improper reEult of the election. rejection materially affects In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the conduct of election and therefore the election of the appellant be declared to be void. Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were com mitted in the conduct of the election, the respondent cannot derive any benefit on that account.

As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes. The election of tho appellant was not challenged on the ground of any irregularity or non-compliance with the provisions of the Constitution or of the Representation of tho People Act or of any rules or orders made thereunder. Nor was tho election of the appellant assailed on the ground of being vitiated by corrupt practice. As it is not per missible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him· in the election peti tion. • • It has also been] urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court. Nothing cogent has, however, been brought to our notice in support of the above submission to induce us to interfere H with the findiniJ o! tho Hight Court in this respect. • Lastly; the respondent submiU. th; it 153 ballot papilrs of Lassipora polling station q1st in favour of th; appellant should be rejected as y .they bore the initials and not the full signatures of the presiding offi cer.

Our attention in this respect \s invited to clause (h) of rule :56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting sh.;ill reject a ballot paper if it does not bear both the n:i~rk and the sig natures which it should have borne under the prov1s10llii or ~ub-rule (1) of rule 3 8. According to sub~rule (1) of rule 3 8, every ballot paper shall before issue to elector, be stamped by :mch distinguishing mark as the Election Commission may direct, and be signed in full on.its back It is not disputed that the ballot papers in by the presiding officer. ·question bore the distinguishing mark. The only contention of respondent, as already mentioned, is that the ballot papers in question bore the initials and not the full signatures of the presiding officer. In this respect we find that no express ground on that score was set This apart, we find up by the respondent in the election petition. that the matter is covered by the first proviso to sub-rule (2) of rule '56 which reads as under ; "Provided that where the returning officer is satisfied any. such defect as is mentioned in clause (g) or clau~e (h) ha~ been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.

" The above proviso which is based .upon the principle that a vot~ validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returmng officer is satisfied that any defect men tioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full 1ignature~ of the presiding officer would go to show that the returning officer was satisfied that the alleged defect wa.s caused by th~ mistake or failure on the part of the presiding officer. There can indeed be .hardly any doubt on the point .that the defect referred to by the res pondent occurred because of the mistake or failure of the presiding offi cer.

We, therefore, see no cogent ground to exclude from considera tion 153 ballot papers polled in favour of the appellant. Before we conclude, we may observe that some other contentions In view of the fact were also advanced on behalf of the appellant. that the appeal in any case has to be allowed because of the arithmetical calcula~ions referred to above, it is not necessary to go into tho~e contentions. . A~ a result of the above, we accept the appeal, set aside m~nt _of the High Court and dismiss the election petition. ob3ections filed by the respondent are dismissed. bets, we leave the parties to bear their own costs throughout. the judg Cross-, Looking to all the J>.B.R. Appeal allowed. f I