Document Fragment View

Matching Fragments

------------------------------------------------------------
Inasmuch as the difference of votes between the returned and loosing candidate was only 137 votes, the High Court came to the conclusion that 844 votes were void and that there was "no room for doubt even taking into account the demonstrable trend the pattern of voting that the election result, has been materially affected by reception of void votes."

Counsels for the parties have not disputed, in this appeal, the facts as enumerated hereinabove though there may be discrepancy regarding the number of defective votes of one or two, but the same is not material at this stage. What is contended on behalf of the appellant is that the High Court has misconstrued the provisions of Section 62 of the Act and that it wrongly presumed that about 844 votes were void. It was contended that no evidence had been led by the respondent to show as to which of the persons had voted twice because on a correct interpretation of Section 62 of the Act, only those votes would be regarded as void where a person has voted more than ones. Lastly. it was submitted that before setting aside the election, the High Court ought to have come to a definite conclusion that reception of void votes had materially affected the election. This could only have been done by identifying and then excluding the void votes and recounting the valid votes but because the High Court had not done t the election of the appellant could not have been set-aside on the presumption that void votes had been received by him which had materially affected the results.

It was submitted by Mr. Mittal learned counsel for the respondent that looking at the analysis of the votes polled at polling Station Nos. 5,6,21 and 28 it was evident that some persons must have voted more than once, as it was not in dispute that there was the aforesaid defect in the voters electoral rolls. He further contended that an application had been filed by the respondent before the High Court for inspection of the ballot papers and it was preyed therein that the record should be scrutinized in order to ascertain as to how many void votes had been accepted. This application was not allowed by the learned Judge, who also did not accept the request of the respondent's counsel, at the time of arguments, that the ballot papers should be summoned and the Registrar of the Court should be asked to examine them and give a report after excluding the void votes. The High Count did not adopt this course presumably because. it came to the conclusion that having regard to the narrow margin of victory and the large number of void votes which had been cast. the respondent had been able to establish that the election result was materially affected by the improper reception of void votes.

The respondent, in the present case, had been successful in showing. at least mathematically, that a large number of void votes had been polled. It is, however, not known as to in whose favour the void votes were cast. Once this stage had been reached where the Court was satisfied that large number of void votes had been counted, then the High Court ought to have examined the ballot papers and ascertained as to which specific votes were void and should then have excluded them from consideration and re-counting should have been done thereafter. The respondent apparently being conscious of this, had filed a miscellaneous application before the High Court contending that the ballot papers should be examined and scrutnised in order to find cut the void votes which had been accepted and to ascertain as to how those said votes the affected the outcome of the election. The High Court chose not to pass any order on this application. The High Court has noted in its judgment that the learned counsel for the respondent had submitted on the conclusion of the recording of evidence that record of the ballot papers should be summoned and, in order to preserve the secrecy, the Ragistrar of the Court should be asked to submit his report on going through the ballot papers with regard to the casting of the void votes. The High Court unfortunately, neither allowed the said application of the respondent nor accepted the said contention of the respondent's counsel.

Once the High Court was convinced, and it was evident from the facts on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes ant then re- counted the void votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned candidates. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been materially affected and that the same should be set- aside.