LexARUN KUMAR BOSE versus MOHD. FURKAN ANSARI & OTHERS
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ARUN KUMAR BOSE
v
MOHD. FURKAN ANSARI & OTHERS
September 28, 1983
[AMARENDRA NATH SEN AND RANGANATH MISRA; JJ.j
Representation of the People Act. 195/.'-Sec. 81 read with sec. 83(l)(a)-
E/ectlon Petiti'on to contain concise~statement of facts-Scope of. Sec. 97-When
app/iccible-Recrimination ptoceedings-Necessity of making recriinination when
additional relief under sec. JOI claimed.
.
.
Conduct of Election Rules, 1961-Rule 38(1) read wiih rule 56(2)--
lnterpretation. of-Proviso to rule 56(2) ·when applicable.
Presiding officer
absent from /,!ace of poll-Did not sign ballo't, papers- ~Vhether constitutes
failure to Sign ballot papers.
•
The first respondent who Jost to the appellant by 24 votes in the
Assembly Elections filfd an election petition in the High Court under s.- 81
. of the Rep._resentatiOn of the People Act, 1951 asking for the appellant's election
to be set aside and for declaration that he shouJ~ be declared as the successful
candidate. In para.9(i) of the petition the respondent pleaded that 74 ballot
papers cast in his favour were wrongly rejected on the_ ground that they did not
contain the signature of the Presiding Officer. The High Court ordered inspe-
ction of these ballot papers. The High Court held, that the rejection of these
74 ballot papers'for want of the Presiding, Olficer's signature was not justified
and gave' the respondent No. 1 credit of all .those Votes and on that basiS .
while setting aside the election of the appellant, declared the first respondent
· · to ha-Ve
bee~ duly elected. Hence this appeal. The appellant urged that
: the ple3:aing in para 9(i) of the Election Petition did not amount to a concise
staterqent of the material facts as required by·Jaw; the High Court· went wrong
in allowing inspection of the biillot papers; the 74 ballot papers in dispute did
not contain the signature of.the presiding officCr and· were right1y rejected at
· the·counting in view of the mandatory proVision in rule 56(2) of the Conduct
of Elections Rules, 1961 and the High Court's view that in the absence of a
· prayer for recrimination under s. 97 of·the Act, 'the appellant was precluded
from asking for a recount of the other rejected ballot papers is not !enable in
law.
Dismissing the appeal,
-HELD : An election petition is presented in tertns of s. 81 of the Act.
Sectfoll 83 prescrib~ as to what the Petition sho~ld contain. Clause (a) ot
sub-s. (1) of s. 83 ·states that an etection petition shall contain a concise
·statement of the material facts on which the petitioner relies. In the insta,nt
A.It. lloSB v. M.F. ANSARi
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t:ase the number of ballot papers alleged to have been wrongly rejected has
been furnished, the counting table number has been given, the booth number
has also been disclosed~and the ground for rejection has even been pleaded.
The only specific detail which ·was-wanting was the serial number of the ballot
pap~rs. , This particular-was not available to the election petitioner in spite of
attempts made on his behalf. The Court, therefore, agrees with the High Court
that in-the facts and circun1stances of the case- the pleading in paragraph 9(i)
set out the material facts in a proper way and no defect can be,...found with it.
The High Court had rightly ordered the inspection of the ballot papers.
[126 B-C; H; 127 A; 128 _F-G; 127 F]
Samaftt N. BalakriShan etc.; v. George Fernandez and Ors. etc., [1969] 3
S.C.R. 603 explained and distinguished,
Bhabh; v. Sheo Govind and Ors., [1975} Suppl. S.C.R. 202, referred to.
Rule.38(1) of the Conduct of Election Rules, 1961 provides inter alia
th'at every ballot paper before i~ .is issued to an elector shall be stamped on the
back with a distiaguishing' 1nark and shall be signed in full On its back by the
presiding officer. The disiinguishing mark ·can be put by anyone but the
signature has got to be of tr.-e p'residing officer and obviously, he has to
personally do that job.
Rule 56{2)(h) provides that the relurning officer
shall rejcet a· ballot paper if it does not bear both the fdisti~guishing mark and
the signature as mentioned in sub-rule (1) of rule 38. There is a proviso to
sub-rule (2) of rule 56 which says that when: the returning officer is satisfied.
that any such defect as i§ mentioned iri clause (h) has been caused by any
mistake or failure on the part of a presiding officer or polling otlicer, the ballot
paper shall not be~rejected Excerpt shown. Read the full judgment & AI analysis in Lexace.