LexDHARA SINGH versus DISTRICT JUDGE, MEERUT & ANR.
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..\ ! A B c D E ' G IiiiARA SINGH v. DISTRICT JUDGE, MEERUT A ANR. August 18, 1967 [J. c. SHAH, s. M. Snrn AND J.M. SHELAT, JJ.] Uttar Pradesh Kshettra Samitis and Zilla Parisads Adhinayam 133 of 1961). and Settlement of Election Dispute• Rule•, 1962, rr. 87, 39, 40 and 43, and Schedule II, Instruction 1-Returned Candidate- Defences open when election challenged-'~xhamted Paper', mean- ing of. Election for the office of Pramul<h .of a blocl< was held under the provisions of the Uttar Pradesh Kshettra Samitis and Zilla Parishads Adhihayam, 1961. On one of the ballot papers, the second respondent had a third preference recorded in his favour and a second preference in favour of another candidate who was elimi- nated at one stage. The Returning ·Officer did not count the third preference in favour of the second respondent and found at the final counting that the appellant and the second respondent had secured an equal number of votes. He therefore drew a lot as per the Instructions in Schedule n and declared the second respondent duly elected., The appellant then filed an election. petition on various grounds ·before the District Judge whO dismissed it, hold- ing that the Returning Officer erred in not crediting the second respondent with the third preference and that if that was done there was ni> necessity for drawing lots at all and that the second respondent should have been· declared elected as a result of the counting itself. The appellant's writ petition· challenging the Dis- trict Judge's order was dismissed. In appeal to this Court he contended that: (1) under.rr. 37 and 39 the trial of an election petition takes place in two. parts; first, to judge whether the returned' candidate's election is- void and then to decide whether any other candidate should be declared to be duly elected, that it was only in the latter case the returned candidate had the right to claim that ballot papers not already counted in his favour should be so counted, and that therefore, the District Judge had no jurisdiction to count the ballot paper containing the third preference in favour of the second respondent; and (2) the ballot paper was an 'exhausted paper' within Instruction I (5) of Schedule Il to the Rules, and that therefore the District Judge erred in law in counting it in favour of the second respondent. Held: (!) The District Judge was entitled to go into the ques- tion whether the uncounted' tallot paper should have been counted in favour of the second respondent. [249G] According to r. 37(a) read with r. 40 which generally applies the. procedure in the Civil Procedure Code to the trial of election petitions under the Act, and .r. 43 which deals w\th the j!ndings of the trial Judge, the returned cand·idate can take any ilefence to show that he has been validly elected. He could therefore allege and prove that certain votes should have been counted in his B favour. [249E-GJ · Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54, explained, 2!3 StiP:l\EliE OOURT REPORTS [1968] 1 s.c.il. (2) The fact that the ~andidate with the second preference in· A the uncounted ballot paper was eliminated at one stage, did not make the ballot paper an 'exhausted paper' ·nithin the definition in the Rules. The second respondent was a continuing candidate, as per the Rules, and th.ere was a preference recorded for him on the ballot paper and the District Judge was right in holding that it should have been counted in his favour, by the Returning Officer. [250A-C] B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2232 of 1966. Appeal by special leave from the judgment and order dated July 22, 1965 of the Allahabad High Court in Civil Misc. Writ Petition No. 75 of 1964. S. C. Agarwala, Anil Kumar and Shiva P11ja11 Singh, for the appellant. B. D. Sharma, for respondent No. 2. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition under Art. 226 of the Constitution filed by Ohara Singh, appellant before us. Ohara Singh had prayed for a writ, order or direction in the nature of certiorari quashing the judgment of the District Judge, Meerut, dismissing the election petition filed by Ohara Singh challenging the election of Pitam Singh to the office of Pramukh, Block Jani, on July 8, 1962. Two points were raised before us: first, that the District Judge h
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