Sheo Chand vs Sada Nand and Others

R.S. Narula, J.

Election to the Gram Pan-chayat of village Dhabi Kalan Tehsil Fatehbad, District Hissar, was held on the 29th of December, 1963. Sheo Chand petitioner and Mange Ram respondent No. 2 contested the election. After the counting of the votes result was declared showing that the petitioner had secured 332 votes as against respondent No. 2 for whom 317 votes were stated to have been polled. On January 13, 1934, respondent No. 2 filed an election petition for setting aside the election of Sheo Chand petitioner. A copy of the election petition has been filed as Annexure ''A'' to the writ petition in this case. Following allegations contained in paras 4(a) and (b) and 7 of the election petition are relevant for the disposal of this writ petition:

(a) That the Returning-cum-Presiding Officer has not complied with the provisions of Rules 31 and 34 of the Gram Panchayat Election Rules I960 in the matter of counting of votes. He did not allow proper opportunity to the petitioner and his agent Shri Manohar Lal Advocate, Fatehabad to inspect the ballot boxes and their seals before the counting was begun. Nor did he correctly deal with the ballot papers taken out of the ballot box of the respondent. He did not reject many ballot papers which were liable to be rejected under Rule 34 of the Gram Panchayat Election Rules 1960 from the ballot papers of the respondent. He has not correctly contend the votes polled for the petitioner and The respondent. The Presiding Officer cum-Returning Officer was favoring the respondent quite out of way. The respondent had started a Modern Agricultural Farm in the Sabha Area and the Presiding Officer being an official of the Agricultural Department was very much connected with the respondent. The Returning-cum-Presiding Officer kept the petitioner and his agent quite away from the place of counting and has wrongly counted the votes to the best of information receive I by the petitioner. According to the petitioner''s information the votes of the petitioner have been declared less than real number found in the box and the votes for the respondent have been declared a figure above the real one. This wrong declaration about the counting of valid votes for the petitioner and the respondent has materially affected the result. As a matter of fact the petitioner secured the majority over the respondent. The votes be recounted in accordance with the provisions of the Gram Panchayat Election Rules 1960 and the exact figures entered into the return prepared by the Presiding Officer may also be verified. If as a result of recounting it is found that the petitioner has a majority then a declaration be granted to the effect that the petitioner has been duly elected as a Sarpanch instead of the respondent after setting aside his election as declared by the Presiding Officer.

(b) That the Presiding-cum-Returning Officer did not allow the following electors present at the place fixed for the poll before it was closed to have their votes recorded in favour of the petitioner. These persons had been scared away by the respondent''s supporters at his instance while they were coming to vote along with the father of the petitioner at about 3 P. M. when the respondent''s supporters made an assault upon the petitioner''s father and these voters, who had arrived at the place fixed for poll just in time before the close of poll by other roads (List of names).

That the respondent himself and his agent Shri Ram Singh son of Amin Lal Jat, a near collateral of the respondent with the respondent''s consent have been guilty of the corrupt practice of making an ''appeal to the Jat and Kumhar electors, members of the Gram Sabha Dhabi Kalan to refrain from voting for the petitioner on the ground of caste and to vote for him as per particulars below :

(a) That the respondent is a Jat by caste and the petitioner is a Mahajan. The village Dhabi Kalan is inhabited by about hundred families of Jats and sixty families of Bagri Kumhars. There are only 3 or 4 families of Mahajans in this village. The respondent was very much annoyed with the petitioner''s father, who was a Panch of the out-going Panchayat and with whom the respondent and his brother had some criminal litigation. He had started his compaign against the petitioner''s father on the ground of caste long before the election programme was published. On the evening of 28th he called the Panchayat of all male voters of the Jat and Kumhar Baradaries at his Nohra at about 7.30 P.M. and there made a fervent appeal himsel and through his agent Shri Ram Singh son of Amin Lal, Jat, a near relation of his, who has also acted as his polling agent under his written authority the next day at the poll, to all those present in the Panchayat to vote for him as he was one of them and had Mood relation with all of them, being their own kith and kin belonging to their own caste and as the petitioner was a petty Bania, who was out to control the whole village inhabited by Jats and Kumhars. He and his agent both asked all present in the Panchayat to refrain from voting for the petitioner on the ground that if the petitioner was elect d as their Sarpanch they would stand belittled in the eyes of all the neighbour villages inhabited by the Jats. He described the Bagri Jats to be the Jats in fact, as being of the same origin as the Jats were, though named differently because of the adoption of a special profession by their ancestors different from their Jat brothers. This appeal on the basis of caste was knowingly made by the respondent and his agent for prejudicially affecting the election of the petitioner.

The material part of these allegations was denied in the written statement of Sheo Chand petitioner dated 29th February 1964, of which a copy has been filed as annexure ''B'' to the writ petition. On the pleadings of the parties the prescribed authority Who was the Illaqa Magistrate, Fatehabad, framed as many as 10 issues in the trial of the election petition. Out of these, issues Nos. 1, 2, 4, and 5 alone are relevant for the purpose of deciding this petition and are reproduced below :

(1) Has there been any non-compliance with any provision of the Gram Panchayat Election Rules 1960 in the matter of counting of votes and the counting has not been correctly done as alleged in para 4(a) of the petition and to what effect ?

(2) Has the presiding officer committed any irregularity by way of not allowing the electors mentioned in para 4(b) of the petition to exercise their votes and to what effect ?

(4) Has the corrupt practice of making an appeal to the Jat and Kumhar electors on the ground of caste as alleged in para 7(a) been committed in this election ?

(5) Has the corrupt practice of promoting or attempting to promote the feeling of hatred between different classes, citizens of India on the ground of caste as alleged in para 8 of the petition been committed in this election ?

On 25th May 1964 the Ilaqa Magistrate passed an order to the effect that the votes polled for each candidate would be counted after the recording of evidence.

By an order dated 16th November, 19S4 the Deputy Commissioner directed the transfer of the trial of the said election petition from the Court of the Ilaqa Magistrate Fatehabad to the Court of Shri Hari Ram, Ilaqa Magistrate, Hissar. Against this order of transfer dated 16th November, 1964, a writ petition (Civil Writ No. 4462 of 1964) was filed in this Court which was allowed on 3rd January 1965 and the order of transfer of the case was set aside. Shri Hari Ram thereupon passed a formal order in the case on 30th January, 1965, directing the parties to appear before the Sub Divisional Officer, Fatehabad, on 1st February, 1965. The parties appealed on that date before the S.D.O. Fatehabad, but the presiding officer of the Court was not present and the Reader of the Court recorded an order, which has been reproduced in para 13 of writ petition. The order contained a direction to the effect that the case would come up before the S.D.O. at Badopul on 2nd February, 1965. Admittedly the parties appeared before the prescribed authority on the adjourned date. It is the case of the petitioner that his counsel was not present on that date because the petitioner thought that it was a date fixed only for further proceedings when merely a date would be fixed for the trial of the election petition. The order recorded in this case on that date does show that Sheo Chand petitioner was not represented by counsel at that time and was present only in person though Mange Ram respondent was present along with his Advocate. It is not disputed that the evidence of Sheo Chand petitioner was recorded by the S.D.O. on that date and that in fact recounting of the votes was done by the prescribed authority on that date in the presence of the parties. It has also to be taken as correct that on recounting of the votes, it was found that Sheo Chand petitioner had polled only 322 votes whereas Mange Ram respondent had got 327 votes. The petitioner thereupon filed a writ petition in this Court impugning the recounting of votes by the prescribed authority. This writ petition (Civil Writ No. 430 of 1965) was, however, dismissed in limine as premature on 25th February, 1965. Thereupon the S.D.O. Fatehabad heard final argument., in the election petition and adjourned the same for orders" on two other dates and ultimately gave his judgment dated 16th March, 1965, copy of which is annexure ''C'' attached with the writ petition which is the impugned order in the instant case.

According to the petitioner the written judgment was not ready with the Magistrate on 16th March, 1965 and the Magistrate went to the length of saying that the election petition was being accepted and the election of Sheo Chand petitioner was being set aside and that Mange Ram respondent No. 2 was being declared as the elected candidate in place of Sheo Chand. The last part of the oral order is, however, admittedly not to be found in the written judgment. In fact this allegation seems to have been made to support the allegation that the written judgment of the prescribed authority was not ready when he pronounced the order on 16th March 1965. Since no allegation of personal bias or mala fides has been pressed before me it is wholly unnecessary for me to go into that matter. Copy of the judgment is stated to have been applied for on the very day and this petition was filed after obtaining the same. The prayer for quashing and setting aside the impugned order of respondent Mo. 1 has been pressed before me on three grounds. The first relates to issues Nos. 4 and 5, the second to issue No. 2 and the third to issue No. 1, out of the issues framed by the prescribed authority. It was in fact on findings of these issues that the election petition was accepted by the S.D.O. Fatehabad and the election of the petitioner was set aside by him.

Shri Anand Swaroop, learned counsel appearing for the petitioner, has first referred to the finding on issue No. 4. The allegation relating to the same contained in para 7 (a) of the election petition has already been reproduced above. The finding of respondent No. 1 on that issue may now be quoted verbatim-

There is sufficient evidence on record to show that a meeting was held where in an appeal was made for votes on grounds of caste. There is no independent evidence to deny this fact. Hence this issue is decided in favour of the petitioner.

It is evident that respondent No. 1 has not recorded any finding as to the person who made an appeal for votes on the ground of caste. All that he has found on this issue is that such appeal was in fact made in connection with the election in question. In an earlier part of the judgment the learned Magistrate has discussed the evidence produced by the parties and referred in some details to the statements of P.Ws. 5, 6 and 10 in connection with the allegation of such an appeal having been made. The learned Magistrate has no-where stated that there was any evidence on the record on which he could rely to hold that it was the returned candidate or his agent or anybody with his Consent who had made any such appeal. The relevant ground on which an election can be set aside is contained in section 13-0 (1) (b) of the Punjab Gram Panchayat Act (as amended in 1362) and is in the following words :

13-0 (1) If the prescribed authority is of the opinion-

(a) * * * * *

(b) that any corrupt practice has been committed by the elected person or his agent or by any other person with the consent of the elected person or his agent.

Corrupt practices have been enumerated u/s 13-U of the Act and the corrupt practices in question is defined in sub-section (3) of that section as follows

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols or the use of or appeal to national symbols, such as the national flags or the national emblem, for the furtherance of the "prospects of the election of that candidate or for prejudicially affecting the election of any candidate".

It is contended by Shri Anand Swaroop that before the election of the petitioner could be set aside on the ground covered u/s 13 U (3) it was imperative for the Ilaqa Magistrate to record a finding to the effect that corrupt practice in question had been committed either by Sheo Chand petitioner himself who was the elected person, or by his agent or by some other person with the petitioner''s consent or with the consent of his agent. Admittedly no such finding has been recorded by the prescribed authority. An error of law in the impugned order is patent on the face of the record so far as this aspect of the matter is concerned. Elections have not to be lightly interfered with and can be set aside only within the four corners of the grounds provided for in the relevant statute or rules. In this view of the matter the finding of respondent No. 1 on issue No. 4 cannot be sustained and has to be set aside and quashed. The finding on issue No. 5 fails with the finding on issue No. 4.

The next attack on the impugned judgment of respondent No. 1 has been made by the learned counsel for the petitioner against his finding, on issue No. 2. It would be convenient to set out again the finding of the Tribunal on this issue in his own words:

There is sufficient evidence on record to show that certain persons were not allowed to exercise their right of vote even when they had reached the polling station. The difference as announced by the Presiding Officer being only of fifteen votes, the "refusal to allow 15/16 persons to exercise their right of vote has certainly affected the result of the polling. This issue too is decided in favour of the petitioner.

It is not disputed that in order to set aside an election on the allegation covered by issue No. 3, it is necessary for the prescribed authority to come to the conclusion that the result of the election had been materially affected as required by section 13-0 (1) (d) (ii) of the Act which is reproduced below :

13-0 (1) If the prescribed authority is of the opinion-

(d) that the result of the election, in so far as it concerns the elected person, has been materially affected-

(i) * * * *

(ii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void.

It is argued that no such proper finding has been expressly recorded by the learned Magistrate.

Mr. G. C. Mittal, appearing for the respondent has, however, urged that the finding is clearly given in the order and it should be presumed that the Magistrate had came to the necessary finding about the result having been materially affected as he would not have set aside the election without having come to such a finding. In this case the Magistrate has recorded a clear finding to the effect that the refusal to allow 15 or 16 persons to exercise their right to vote has certainly affected the result of the polling. "Affected the result of polling" can, in the circumstances of this case, be equated to ''''materially affected the result of the election".

The real attack of Mr. Anand Swaroop against the fin ling on this issue is to the effect that the mere fact that certain votes had been wasted in the sense that the persons entitled to cast those votes had not been allowed to do so. cannot form the basis of the finding to the effect that the result of the election had been materially affected. It would have to be shown that so many of the wasted votes would have been cast in favour of one particular candidate, as would have reversed the result of the election. This contention is based on the dictum of their Lordships of the Supreme Court in Vashit Narain Sharma Vs. Dev Chandra and Others, . The relevant part of the ratio of the judgment contained in paras 5 and 9 thereof has been summarized in head note (a) of the A.I R. report and is to the following effect:

The words the result of the election has been materially affected indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.

It cannot be held that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. Should the petitioner fail to aduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.

The law laid down by the Supreme Court as reproduced above is definitely in favour of the petitioner. I, therefore, accept this contention of Mr. Anand Swaroop and set aside the finding of respondent No. 1 on issue No 2 on the ground that the error of law is apparent on the face of the record inasmuch as he has held that the mere refusal to allow 15 or 16 persons to exercise their right to vote has affected the result of the election without giving finding as to how it has been so affected. This could have been done if 15 or 16 voters, who were refused opportunity to cast their votes, had come forward in the witness-box at the trial of the election petition and had stated that they had come to cast their votes for the defeated candidate but were not allowed to poll their votes. If such statements had been recorded and believed by the Magistrate he could possibly have in law come to the conclusion which has been recorded by him. But without doing so, he had no jurisdiction to set aside the election on that ground.

Mr. Mittal has asked me to go through the evidence on the record and give decision to the effect that on that evidence the requisite finding could be returned by the Magistrate. This is not the scope of the proceedings under Article 226 of the Constitution. If a finding is given by a Tribunal which is not supported by any evidence, the finding will not be sustained by this Court. If however. no finding at all is given by a Tribunal on a vital matter in a case, it is not for this Court to go through the record in order to arrive at that finding. Therefore, the contention of Mr. Anand Swaroop relating to issue No 2 also succeeds.

This leaves for consideration the contention of the learned counsel for the petitioner to the effect that the finding of the prescribed authority on issue No. 1 is also vitiated: by an error of law patent on the face, of the record and is otherwise without jurisdiction. In order to appreciate the contention raised by the learned counsel on this point, it will he convenient to analyze the allegation relating to the corrupt practice, which forms the subject matter of issue No. 1. The allegation, as contained in para 4(a) of the election petition can be analyzed into following four sub-allegations:

(i) That the provisions of Rules 31 and 34 of the Gram Panchayat Election Rules, 1960 (hereinafter referred to as Election Rules) have not been complied with (Rule 31(2) lays down the procedure which has to be followed by the presiding officer for counting of votes after the close of the poll. It requires that counting should be done in the presence of the candidates or their polling agent and further requires that opportunity should be granted to candidates or their polling agents to inspect the ballot-boxes and their seals etc. and also to inspect ballot papers which are thought to be liable to be rejected. Rule 34 lays down the circumstances in which a ballot paper contained in a ballot box is liable to be rejected).

The allegation made is that the Returning-cum-presiding Officer did not allow proper opportunity to the petitioner and his agent Shri Manohar Lal Advocate, Fatehabad to inspect the ballot boxes and their seals before the counting was begun. This is the precise allegation made in the first part of the charge relating to the alleged violation of rules 31 and 34 of the Election Rules

(ii) That the Presiding Officer did not correctly deal with the ballot papers taken out of the ballot boxes of Mange Ram respondent.

The precise allegation under this charge is that the Presiding Officer did not reject many ballot papers which were liable to be rejected under rule 34 of the Election Rules. No reference has however, been made to any particular ballot paper or any particular rule of the Election Rules.

(iii) That the Presiding Officer did not correctly count the votes polled for Sheo Chand petitioner and those polled for Mange Ram respondent.

(iv) Sheo Chand petitioner had started a Modern Agricultural Farm in the Sabha Area and the Presiding Officer being an official of the Agricultural Department was very much connected with the petitioner Sheo Chand and was therefore favouring him quite out of the way.

The findings recorded on the above items forming the subject-matter of issue No. I by the prescribed authority may now be set down.

(i) No finding was given regarding the allegation of Sheo Chand petitioner not having been allowed proper opportunity to him or to his agent Shri Manohar Lal Advocate to inspect the ballot boxes and their seals before the counting was begun. The first allegation, therefore, was not proved.

(ii) No finding at all was recorded by the prescribed authority about the allegation of ballot papers taken out of the ballot boxes of Sheo Chand not having been correctly dealt with. The prescribed authority did not record any finding to the effect that the presiding officer failed to reject any ballot paper polled by Sheo Chand which was liable to be rejected under Rule 34 of the Election Rules.

(iii) The allegation regarding presiding officer having favoured Sheo Chand petitioner was also not proved as there is no finding to that effect in the impugned order.

(iv) The finding on this point is contained in the impugned order in the following words:

There is ample evidence on record to show that the counting was not properly done. Proper procedure for counting was not observed. The Presiding Officer revenue took away the official papers with him and did not send the sheet containing the signatures to the authorities along with other material.

*****

Moreover there is a discrepancy in the statement of R.W. 4 Shri Diwedi and Sheo Chand respondent. Shri Diwedi maintained that he counted the votes himself whereas according to Sheo Chand three to four persons were counting the votes. Moreover the counting of votes shows that in fact Mange Ram and Sheo Chand got 327 and 322 votes respectively against 317 and 332 votes as announced by the Presiding Officer. All these have affected the results materially. I, therefore, decide this issue in favour of the petitioner.

The first contention pressed by Shri Anand Swaroop on behalf of the petitioner in respect of the finding on this issue is that the prescribed authority had no jurisdiction to recount the votes polled for the petitioner against the contesting respondent as there is no provision in the Election Rules which authorizes the prescribed authority to do so. The learned counsel for the parties appearing on both sides state that there is no express provision in the Election Rules which authorizes the prescribed authority as such to recount the votes polled by the rival candidates in an election which forms the subject-matter of an election petition before such authority.

Mr. Mital the learned counsel for the contesting respondent, however, argues that even in the absence of an express power, authority to recount votes must be implied as the same is inherent in the powers conferred on the prescribed authority to try an election petition. He has referred me to section 13-1 of the Act which confers on the prescribed authority the powers which are vested in a Court under the CPC when trying a suit in respect of various matters including specifically ''discovery and inspection''. I regret. I am not able to agree with this contention. ''Discovery and inspection'' are terms of art in relation to the CPC and have to be read according to their meaning and import discernible from Order XI, Rules 12 and 15 of the Code. Discovery can be prayed for and granted against the opposite party and has nothing to do with the records which are already before the Tribunal. Similarly, inspection under Rule 15 or Rule 18 of Order XI has reference to documents or inspection or order for inspection and document in the possession or power of the opposite party and has nothing to do with the inspection of documents contained in sealed cover and lying with the Tribunal or preserved on account of certain statutory requirements. I, therefore, do not think that the learned counsel for the respondent is correct in calling in aid the provision of section 13-I(a) of the Act in this respect. Section 13-G of the Act, however, provides that an election petition under the Act has to be tried by the prescribed authority, as nearly as may be; in accordance with the procedure applicable under the CPC subject to the provisions of the Act and of the Election Rules. It is, therefore, clear that though the provisions of Order XI Rules 12, 15 and 18 may have nothing to do with a situation like this, it is obvious that the Court or the prescribed authority has power to allow inspection of any document which is on the record of a case which is being tried by that Court or Tribunal. The circumstances under which Such inspection should or should not be allowed, would depend upon the facts of each case. It may, nevertheless, be borne in mind that the more physical production of documents or production of the sealed boxes as required by the statutory provision, would not make them part of the judicial record of the case and it would depend on the facts of each case whether the prescribed authority may or may not allow inspection of the ballot papers to any party. This would largely depend upon the nature of allegation made in a particular case in relation to the ballot-paper in question

Mr. Mital has relied in this connection on a judgment of the Supreme Court in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, wherein it was observed at page 1251 as follows:

In this case, on an oral request made by Kidwai all the allot papers in sealed boxes were lodged with the Election Tribunal. Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection, because he had tendered the sealed boxes of ballot papers in evidence, and on that account all the ballot papers were part of the record. The Tribunal rightly rejected this plea for by the mere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice.

The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers: that power is clearly implicit in sections 100 (1) (d; (iii),.01, 102 and rule 93 of the Conduct of Election Rules, 1981. This power to order inspection of the ballot papers which is apart from 0.11 CPC may be exercised, subject to the statutory restrictions about the secrecy of the be lot paper prescribed by sections 94 and 128(1).

Reliance on the other hand is placed by Mr. Anand Swaroop on the following observation of their Lordships of the Supreme Court in the same judgment:

The Court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition rot supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

It is significant to note that in Ram Sewak''s case the Supreme Court was not dealing with the precise question, which is involved in the instant case, i.e. the question of the authority of an Election Tribunal to recount votes in the absence of any statutory provision authorizing the same. It only dealt with the question whether in a fit case inspection of the ballot papers could or could not be granted to the parties the election petition and the circumstances under which such an inspection could be allowed. Mr. Anand Swaroop has sought support from the observations made in the Supreme Court judgment and suggested that even if recounting of ballot-papers can be ordered, by terming such a course some kind of inspection, the same could not be allowed by the Tribunal in the instant case as the allegations made by Mange Ram respondent in the election petition were beautifully vague in so far as his objection leading to the recounting of ballot-papers was concerned. The learned counsel has urged that Mange Ram should have stated as to what was the error in the counting of the votes and as to how many votes of Mange Ram and other contestants had been credited to the account of Sheo Chand petitioner. Mr. Mital on the other hand argues that, in the nature of things it may be impossible to make an allegation of this kind in such precise terms. Section 13-D(1) of the Act requires that an election petition shall contain concise statement of the material facts on which the petitioner relies and that such a petition must be set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The allegation which is now the subject-matter of the dispute does not relate to the Commission of corrupt practice, but all the same clause (a) of section 13-D(1) of the Act requires that the petition shall contain concise statement of all the material facts on which the petitioner relies must be given in the election petition. The only precise allegation made in para 4(a) of the Election petition was that the presiding officer did not correctly count the votes polled for the petitioner and the respondent. This sweeping allegation very much resembles the kind of allegation that had. been made in the Supreme Court case relating to illegal rejection or reception of votes.

Mr. Anand Swaroop has further relied on a Division Bench decision of this Court (D. Falshaw C.J. and Grover J.) in F. A. O. 3-E of 1964 in the matter of Giani Kartar Singh v. Jagjit Singh F.A.O. 3 E of 1964, where it was held on facts and circumstances of that case that no such case had been made out for allowing inspection and for recounting of votes said to have been cast in favor of Dr. Jagjit Singh after an elaborate scrutiny by the Tribunal itself. In that case recounting had been done by the Election Tribunal. In the judgment of Grover J. in that case occurs the following observation on which Mr. Anand Swaroop has strongly relied-

It would have been necessary to examine and scrutinize 235 votes which had been rejected by the Tribunal on the ground they had not been marked by means of the instrument provided for the purpose and to find out how many out of them contained such marks as clearly showed the intention of the voters to vote in favour of the appellant. All these votes were not liable to be rejected. However, it was found altogether unnecessary to do all this in view of the decision that the Tribunal was clearly in error in allowing inspection and making a recount of the votes polled by the appellant. In this view of the matter, the decision of the Tribunal that Dr. Jagjit Singh had polled 73 more votes than the appellant cannot be sustained and must be set aside.

Even in that case the direct question was not of the authority of the Tribunal to recount votes. The question arose on account of an allegation to the effect that certain votes had been improperly rejected or received. If there is such an attention there is no way to decide the question of illegal rejection or reception of votes except to recount them, but it is extremely doubtful whether in view of the elaborate method of counting votes prescribed by the rules, the Election Tribunal can be asked to recount votes merely on a vague allegation of a mistake in counting, particularly when no such objection is taken at the time of the counting by the presiding officer as in the instant case. The prescribed authority declined to receive in evidence the alleged paper bearing signatures of the parties. The reference to the contents of that paper in the judgment of the authority cannot therefore be justified in law. This is also an error of law apparent on the face of the impugned order.

Mr. Mital, the learned counsel for the respondent, has taken an objection to the effect that the petitioner cannot be allowed to raise this point for the first time in the writ petition as he had not taken it in his defence before the prescribed authority either in the written statement or at the time of the hearing of the arguments by the prescribed authority in the election petition. Mr. Mital has argued that if such an objection had been taken at that time, even at the stage of written statement permission to amend the petition would have been granted.

It is further pressed that in spite of The fact that specific order was passed on 25th May, 1964, to the effect that the votes would be recounted after the close of the evidence, no objection in this respect appears to have been raised by Sheo Chand petitioner before the prescribed authority and therefore this objection cannot be allowed to be raised here. In reply to this Mr. Anand Swaroop states that no appeal or revision against the order of 25th May, 1934, lay to any court and that the petitioner did not waive his right to raise this objection. In fact he had pressed this matter in Civil Writ No. 430 of 1965 which was dismissed as premature and, therefore, he is entitled to raise the objection at this stage after the decision of the election petition. The only permissible ground on which the election petition of Mange Ram respondent was accepted by the prescribed authority in this case was that the counting of votes had not been properly done. In the circumstances of the case I do not think that the petitioner has waived his right to raise that objection by his conduct referred to by the learned counsel for the contesting respondent. Once this objection is allowed to be raised, it is obvious that there shall be an express provision allowing the proscribed authority to take upon itself over again the functions of the presiding officer to recount votes in order to set aside an election. No special circumstances for adopting such a course has been made out in the instant case. Moreover the action of the prescribed authority in relation to recounting of votes on vague allegation of the kind made in this case wholly without jurisdiction. The other findings of the prescribed authority on issue No. 1 would not justify the setting aside of the election. This contention of Mr. Anand Swaroop therefore succeeds and the impugned finding on issue No. 1 is also quashed.

In the result, this petition is allowed and the impugned order of the prescribed authority setting aside the election of Sheo Chand petitioner is quashed. There will be no order as to costs of the proceedings in this Court.