LexBASHIR AHMAD MAGREY versus GHULAM QUADIR MIR & ORS.
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BASIDR,AHMAD MAGREY v. GHULAM QUADIR MIR & ORS. December 2, 1976 [H. R. KHANNA AND V. R. KRISHNA IYER, JI.] 297 Jammu and Kashmir RepresentaJion of /he People Act, 1957-S. lOO(l)(d) (iii)-Scope of-Improper reception or improper rejection of votes-When in- validates election-Ground• wt taken in election petitio!'J--lf could be rai3ed in appegf-Ballot fl"pers bore .11itia/3 of Presidinli Officer-Election-If invalid. A B S. !OO(l)(d)(iii) of the JL.lmu & Kashmir Representation of the People Act, 1957 provides that if the High Court is of opinion that the reimlt of the election C in so far u it concerns a returned candidate, 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 E:ourt lihall declare the election of the returned candi- •· dates to be ·rnid. The appellant was declared elected to the State Assembly in the General Elections. Iii. his election petition the respondent, a defeated candidate, contend- ed that improper rejection at the time of counting of .Totes c~t in his favour and improper reception of. Totes at the time of polling in favour of the appellant had D · • materially affected the result and that therefore the appellant's election should be declared Toid. The High Court held that certain votes had been improperly received in favour of the appellant, certain Totes validly polled in favour of the respondent were improperly rejected at the time of counting; and in respect of 550 votes which were found to have been improperly received, the High Court held that the appel- lant was the greatest beneficiary of those Totes although the precise number by which he wu benefited could not be easily ascertained. In appeal, this Court directed the Registrar to 1crutinise the 550 ballot papera to find out aa to how many of those Totes were cast in faTour of the appellant and the other candidates. The result of the investigation showed that the appel- lant had a lead of 38 Totce oTer tho respondent. Allowing the appeal HELD : There is no escape from the eow.clnaiOtl that the election of tho appellant should be upheld. [303HJ ( 1 ) In an election petition founded upon the sround that the result of the election was materially affected by the improper reception or ·rejection of votes, the Court hu first to decide whether certain ballot papers were improprly received or Wet"e improperly rejected. Once that controTersy is resolved, the rest is purely a matter of arithmetical calculation. If the result of arithmetical calcu- lation is that the returned candidate has still a lead over his nearest riTal, his election would not be declared to be Toid on the ground of improper reception or improper rejection of votes. Improper reception or improper rejection of votes can result in invalidating the election only if such improper reception or improper rejection materially affects the result of the election. [303H] In tho instant case, even after excluding all the voteo found to hne bee11. improperly received by the appellant and also giving credit to the respondent for the Totes found by the High Court to have been improperly rejected at the time of countin1, the n~t result still was that the appellant had a lead over the reopondent. E F G (2) Aa it ia not permisaible to widea the ICOPe of an election petition, the respondent could not seek r~lief on grounds which were not taton by him in the H election petition. The respondent could not deriTe any benefit on the irreiula- ritica committed in the conduct of election. The election was aot challenaed on the ground of any irregularity or non-compliance with tlae provision1 of the Constitutioa. or of the .Representation ·of the People Act aor w1e tho election assaned on the lfOUnd of COITUpt practice. [30-4D ~ CJ A !B c D E F G H 298 SUPREME COURT REPORTS [1977] 2 S.C.R. (3) The contention of the respondent that if the ballot papers which bore the initials and not the full signatures of the presiding officer are rejected, the appellant's election should be declared void, is without force. The ballot papers bore the distinguishing marks as required by r. 38 (1). The fa.:t that the retHrn- ing officer did not reject the ballot papers on the ground that they bore only the initials and not the full signatures of the presiding officer showe:d that the return- ing officer was satisfied that the alleged defect was caused by t
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