RAM AUTAR SINGH BHADAURIA versus RAM GOPAL SINGH AND OTHERS

Citation: [1976] 1 S.C.R. 191 · Decided: 31-07-1975 · Supreme Court of India · Bench: V.R. KRISHNA IYER
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Judgment (excerpt)

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ll/\\I t\UTAR Sl:S-Gll BllADAURIA 
RA:\! t.Gl'AL Sll\GH AND OTHERS 
July 31, 1975 , 
191 
l\'. R. KRISIL'<A IYER, R. S. SARKARIA A:--:D A. ·C. GUPTA; JJ.] 
·-Reprt"se11tation of the Pwple .A.ct. 1951-St"c. 97. lOO(l)(d).(iii)-Cond'uct 
of £.l,ction Rule!>" 1961-Rule _38 atul 55--Genera/ rtcaunr and if!Spcclion l~'irch 
to je. ofl,O)!t;ed-Rtc~inii11atol'y pleas. · 
The appellant and respondent no. 1 :i.n<l vther candidates contested the 
e:IC1:tio11 from U.P. Lc~isiati\·e-Asscmbly Constituency (No. 293), SarsauI. The 
~:rpeliant sccw-ed 23626 votes ::ind respondent no. 1 polled 23604. the margin 
be:mg of 22 \'ores only. 
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Rtspondent no. 1 filed an Ele:tion Petition ·challenging the election of the 
.ippellant inter al!a on the ground that the rtsuit of the election so far a9 th.: 
returned candi<latc \l:a'i concerned \\o·a.s materially affected by improper reception 
and rejection of votes and mistakes in counting. ·It '\Vas alleged that 41 ballot 
papers were rejedcd on the ground· that the electors.' choice : Vl<K expressed 
through the jnstrumont meant for the Presiding. Officer· for stamping on the 
reveriie side of the ballot papers .• The pani:ulars of those ballot papers \Vere 
given in Schedule annexed to the Election Petition. It was further alleged 
that some ballot papers v.rcre issued 3long \\:ith the counter foil and y,·ere there· 
fore rejected. The appellant in his v.Titten statement denied the allcgatie>ns and · 
~tatcd that the result of the election· was not materially affected. 
Respg.ndent 
ua. 1 did not adduce any e\·idencc in support of bis allegations mentioned abo-1e. 
but m3de an application before the Jligh Court for scrutiny and recount of the 
baliot papers. 
The lligh Court. allo\1;ed the application anJ .directed s;rutin_y 
acd recount of ballot papers on the follo\\·ing grounds : 
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(a) The appt"Jlant \\'On by a very smaJI martin ~f :!:! \'Otes. 
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(b) It \\"aS not dhputed that a number of ballot papers 
\Verc. .n:jcc<.c:d 
because the rolling staff forgot to detach the counter-foils on a number of 
b~llot parers. 
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(c) It is. also the admitted case of the panics that a number of ballot papers 
\\.ere rejected because the voters cast their votes by putting their mark not -with 
the marlin; instrument is.sued by the Election CommJ'...sion 
but 
y,·ith 
the 
rr:.arking or 5tJ.mping instrument issued for the use of the Presiding Otli:ers. 
(J) It is clear from the petition, \~Titte~ st.t.te~C~t·--and recriminatory petition 
fi!ed by the respondent that both par Jes pleadc<l that there v.·as \\·rong reception, 
!~ejection and counting of \'Otes. 
The appellant filed ~to appeal by special leave a;ainst the ·said order of the 
Appet!a:e Court. 
AUov.-icg the apre.al, 
· 1tr.LD·. (1) The returned c•ndiJai:.e had not categorio.;ally and specific•iJly 
Mlmitted the allet,ations made in the Ekction Petition \\1th regard to the. 
improper rejection of the ballot papers. [195F-OJ 
(2) Siace the· .app(llailt did not lldmit thC alle~tionS, the court c·ould Dot 
dispense v.'ith proof of tho~ facts altogether. [196 .. 1\·CJ 
(3) The .'\dditional pleas set up in the v;7irten statements vwcre irrelevaat 
· 1.u auJ beyond the ·scope of the enquiry __ into the alle~i0!13 in tbe EJt.ction 
l'cti~M fallina und<r s. lOO(l)(d)(iii) of the Repmtnta!loa. o.f the Peof!~ 
A~t, 1951. Tuescr .-\dJit~oaal plea~ y;·ero in the nature .of rccnmwatory , p1~ 
192 
SUPREME COURT REPORTS 
(1976] 1 S.C.R. 
which could not be investigated in thi::i Elecjon Petition. The scope of the 
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enquiry is limited for the simple reason that what the clause requires to be 
considered is whether the election of the returned candida"~ has been materially 
affucted and nothing else. [197C-F'.) 
(4) The pleas of the returned candidate under s. 97 have to be tried after 
a declaration has been made under s. 100 of the Act. [197F-0] 
Tue learned Judge as in error in ordering general inspe~~ion and recount 
of the total votes polled at the election, merely because in these Additional 
Pleas the returned candidate also had by way of recrimination, complained 
of wrong reception and rejection of votes and wrong counting of votes. 
[198B-CJ 
The High Court failed to apply its mind to the question, whether if the fa.cts 
alleged in the petition were assumed to be correct-a Prima facie case for 
improper rejection of the 50 ballot papers-was made out. Rule 38 of the 
Conduct of Election Rules, 1961, requires
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