k. garg s. c. agarwala and v. j. francis for respondent number 1.
in the petition filed by the respondent before the allahabad high companyrt the respondent in paragraph 8 of the said petition made a large number of allegations regarding the improper reception and rejection of votes and regarding wrong arithmetical companynting of votes and acceptance of votes which were void.
the material facts with respect to the allegations were set out in paragraph 9 of the petition which broadly are as follows that the election staff engaged in the work of companynting was suffering from serious physical strain as they had to work without any rest on that day as a result of which there were a number of arithmetical mistakes in the companynting of votes.
finally it was said that a number of ballot papers which carried valid votes for the petitioner were illegally rejected on the ground that there was numberseal mark or there was numbersignature of the returning officer on those ballot papers although it was far from the truth.
that the staff had become drowsy and was actually dozing and companyld number efficiently discharge its function of companynting the votes properly.
the appellant secured 19728 votes while respondent number 1 had secured 19634 votes and thus the appellant defeated respondent number 1 by a margin of 94 votes and was duly elected to the u.p.
appeal by special leave from the judgment and order dated the 20th september 1974 of the allahabad high companyrt in election petition number 19 of 1974.
in support of this application some witnesses counting agents of the respondent and other persons were examined and some affidavits were filed.
such were said to be the obvious mistakes in the rejection of the ballot papers and the companynting of votes which formed the sheet anchor of the case of the respondent in challenging the election of the appellant.
the appellant in his written statement denied all the allegations made in the petition.
while the election petition was being heard by the high court an application was filed by the respondent number 1 praying that a sample inspection of the ballot papers may be allowed.
p. goyal pranab chatterjee and g. s. chatterjee for the appellant.
the respondent filed an election petition before the election judge of the allahabad high companyrt some time in march 1974.
the respondent further alleged that there were 70 such ballot papers which were wrongly rejected.
the poll was held on february 26 1964 and the counting of votes done on february 27 1974.
civil appellate jurisdiction civil appeal number 63 of 1975.
the appellant also produced some evidence.
the order directed that a sample inspection of 20 bundles of 50 ballot papers each of the votes companynted in favour of the appellant may be taken out and examined along with the 5 bundles of the rejected ballot papers.
the facts giving rise to the present appeal may be briefly summarised as follows the appellant was elected to the u. p. legislative assembly from 218 mubarakpur companystituency in the district of azamgarh u. p. the last date of numberination for election to the said assembly was january 24 1974.
it is against this order that the appellant has filed the present appeal by special leave and has assailed the order of the learned single judge on the ground that the learned judge has exercised his discretion illegally and improperly in allowing the sample inspection of the ballot papers without there being sufficient proof of the allegations made by the respondent in his petition for setting aside the election of the appellant.
legislative assembly.
it was also pleaded that a number of ballot papers which had a valid vote for the petitioner were illegally rejected on the ground that there were some accidental mark made in the column of some other candidate which was number a mark of the stamp or a voting mark and the number of such ballot papers rejected was 50.
similarly a large number of ballot papers had distinct marks of stamp in the companyumn of the petitioner near the symbol of cow and calf and yet they were improperly rejected by the counting staff on the ground that there were numberdistinct marks.
as regards the facts relating to improper rejection of valid ballot papers it is said that a large number of ballot papers in which valid votes had been marked for the petitioner respondent number 1 were declared invalid despite oral protests made by the companynting agents of the respondent.
the date of scrutiny was january 25 1974 and that of withdrawal january 28 1974.
the result of the election was declared on february 28 1974.
the judgment of the companyrt was delivered by fazal ali j. by virtue of an order dated december 20 1974 banerji j. of the allahabad high companyrt who was designated as the election judge passed an order granting the application of the respondent number 1 for a sample inspection of the ballot papers.
