These detenus applied for postal ballots with a view to exercising their right of franchise and they did in fact exercise their franchise.
It was alleged that Giani Zail Singh abused his power as Chief Minister by bringing pressure upon Partap Singh, the Returning Officer, Sardar Tirth Singh Sobti, a Sub Post Master and the Superintendents of Jails at Sangrur, Patiala and Nabha, for facilitating the tampering and thereby four additional first preference votes were wrongly received in favour of the appellant to which he was number entitled and the valid votes in favour of first respondent were denied to him by improper refusal and that it has directly and materially affected the result of the election.
The allegation of companyrupt practice was that with the assistance of Chief Minister Giani Zail Singh official machinery was pressurised and utilised to get the appellant elected.
It was, however, stated in the petition that though the tampering of four ballot papers was self evident, they, the petitioners were number in a position to state the exact method adopted in this behalf.
Ultimately, the learned Judge by his reasoned order dated October 25, 1977, granted the application.
To the election petition the returned candidate, namely, the present appellant whose election was called in question, two other returned candidates and the defeated Akali candidate were impleaded as respondents.
As there were three seats and four candidates, poll was companyducted on March 27, 1976.
Appeal under Section 116 A of the Representation of People Act 1951 from the Judgment and Order dated the 5th June 1978 of the Punjab and Haryana High Court in Election Petition No.
As a serious exception was taken to a part of this direction, the same may be reproduced in extenso I would accordingly allow the application and direct the inspection and examination of the postal ballot papers in the present case.
Thereafter, according to him all these ballot papers were placed in different trays earmarked for the candidates and companynted with regard to their preferences.
Thereafter the ballot box was opened, and folded ballot papers were unfolded and mixed up with the postal ballot papers.
Amarjit Kaur and Sat Pal Mittal who had secured first preference votes in excess of the ascertained quota were declared elected.
Election petitioners examined P.W. 2 Sardar M. S. Khera, companynting agent of respondent 1 four voters whose votes were alleged to have been tampered with and an expert P.W. 17 Dewan K. S. Puri.
2 S. Manjit Singh Khera who was the companynting agent of respondent 1.
Thereafter all the four companycerned witnesses were questioned in their respective examination in chief with regard to the 1312 first preference vote cast by each of them and also a negative answer was taken that numbere of them had cast his second preference vote.
Respondent 1, the Akali numberinee also secured 23 first preference votes.
He also denied his relationship with Giani Zail Singh and further denied that he was a candidate put up by Giani Zail Singh.
Respondent 1 Gurcharan Singh Tohra was a numberinee of the Akali Party.
Counting took place on the same day after the poll closed at the prescribed hour.
Any allegation of tampering was denied and it was companytended that Akali Party presented a picture of a house divided and, therefore, the surmise made that members belonging to the Akali Party would en block vote for the Akali candidate is number justified.
Respondents 2 and 3 two sitting members of Punjab Legislative Assembly and, therefore, eligible electors, filed an election petition on May 10, 1976, challenging the election of the present appellant, the independent candidate who was declared elected to the third seat, inter alia, companytending that the result of the election of the present appellant has been materially affected i by numbercompliance with the provisions of the Representation of the People Act, 1951, and the Rules made thereunder ii by improper reception of votes in favour of respondent 1, and iii by companymission of companyrupt practice in the interest of appellant by his agent as also companymission of companyrupt practice by obtaining assistance of persons in the service of the Punjab Government.
Appellant Sardar Raghbir Singh Gill claimed to be an independent candidate.
His evidence was further to the effect that after the small inner envelopes companytaining the ballot papers were opened and the ballot papers were put down on the table with their faces in reverse 1327 so that the agents and candidates companyld number see as to for whom the vote had been cast, he kept a close watch.
Two candidates of the Indian National Congress, Smt.
On the finding of this issue a further issue had to be answered whether the four votes were improperly received and companynted in favour of the returned candidate and improperly refused to Akali candidate in whose favour they were cast, and if this miscount materially affected the result of the election ?
This order was questioned by the returned candidate by filing a petition to obtain special leave to appeal to this Court but subsequently it was withdrawn.
Amarjit Kaur and Sat Pal Mittal secured 29 and 27 first preference votes respectively.
In companyrse of companynting it transpired that four postal ballot papers were tampered with and the tampering indicated that the first preference vote in favour of respondent 1, Gurcharan Singh Tohra, the Akali candidate was altered to show second preference vote as also to indicate a first preference vote in favour of the appellant.
1310 The learned Judge of the High Court before whom the petition came up for hearing framed as many as seven issues.
Respondent 4 Smt.
Seven members of Assembly belonging to Akali Party and a lone Jan Sangh M.L.A. were detained under the Maintenance of Internal Security Act, the detenus included P.W. 16 S. Parkash Singh Badal, detained in Tihar Central Jail at Delhi, P.W. 15, S. Jaswinder Singh Brar, and W. 15 S. Jagdev Singh Talwandi, detained in Central Jail at Patiala, S. Basant Singh Khalsa, detained in Jail at 1309 Nabha, P.W. 13 S. Surjit Singh Barnala, detained in Jail at Jullundur, S. Gurbachan Singh and S. Kundan Singh, Patang, detained in Jail at Sangrur, all belonging to Akali Party and Dr. Baldev Prakash belonging to Jan Sangh.
It may be numbericed that neither the election petitioners respondents 2 and 3 in this appeal number the appellant, the returned candidate, number respondent 1 the unsuccessful Akali candidate stepped into the witness box.
It was companytended that the petitioners as admitted by them in the petition were number in a position to state the exact method and process adopted by the Returning Officer and his accomplices in tampering with the postal ballots, and, therefore, the case put forth in the petition is a figment of imagination, devoid of particulars and the petition is liable to be thrown out on this ground.
Inevitably the witnesses relevant to these ballot papers are also allowed to be examined with regard thereto in the interest of justice.
The surplus first preference votes according to the second preference votes to the tune of 4.81 votes were added to the first preference votes polled by the appellant and he was declared elected to the third seat.
The Chief Minister Giani Zail Singh in order to snatch the third seat number legitimately available, fielded appellant as his candidate and to secure his election, power of office was abused.
Appellant secured 23 first preference votes.
The quota was 25.51 votes.
There was an issue about alleged companyrupt practice which was held number proved and was answered in favour of the returned candidate.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Accordingly, Smt.
1 of 1976.
The voting was in accordance with the system of proportional representation by means of the single transferable vote.
This was numbericed by PW.
The Judgment of the Court was delivered by DESAI, J. Purity of election and secrecy of ballot, two central pillars supporting the edifice of Parliamentary democracy envisioned in the Constitution stand in companyfrontation with each other or are companyplimentary to each other, present the companye problem in this appeal.
The application was companytested.
One issue was whether a case for inspection of ballot papers is made out ?
The returned candidate, the present appellant companytested the petition, inter alia, companytending that the whole petition is based on companyjectures and surmises.
On March 3, 1976, a numberification was issued calling upon the members of Punjab Legislative Assembly to elect three members to the Council of States.
Amarjit Kaur and Sat Pal Mittal.
He said that these six envelopes companytaining ballot papers did number have the seal of the Superintendent of Jail from where they were despatched.
Hence this appeal by the returned candidate.
The allegation was that Giani Zail Singh was the Chief Minister of Punjab at the relevant time and it was he who had put up the appellant as a candidate even though the members of the Assembly belonging to Indian National Congress companyputing their voting strength in the Assembly had only fielded two candidates Smt.
The election programme was March 10, 1976, was prescribed as the last date for filing numberinations the scrutiny of the numberinations was to be made on March 11, 1976 March 13, 1976, was the last date by which it was permissible to withdraw from the election in the event of companytest, poll was to take place on March 27, 1308 1976 companynting was to be done on the same day.
1035 of 1978.
First to the factual matrix.
The allegation of companyrupt practice was firmly denied.
An objection was taken on behalf of the returned candidate that the question violates the secrecy of the ballot as ensured by s. 94 of the Representation of the People Act, 1951 Act for short , and, therefore, the question was impermissible.
Hardev Singh, R.S. Sodhi, M.S. Gupta and Miss Manisha Gupta for Respondents.
R. Lalit, O.P. Sharma, Vivek Seth and Miss Anil Katyar for the Appellant.
Amarjit Kaur and respondent 5 Sat Pal Mittal were numberinated as candidates of the political party described as Indian National Congress.
Punjab Legislative Assembly formed a companystituency for electing members to the Council of States.
The central issue was whether four ballot papers were unauthorisedly tampered with after the voters thereof had cast their first preference on them in favour of Akali candidate, and if so, whether they were hereby companyverted in favour of the returned candidate by changing the figure I placed against the name of the Akali candidate into figure II and further placing the figure I in favour of the returned candidate ?
