Case Brief: Kalyan Singh Chouhan v C.P. Joshi

FACTS:
A notification under Section 30 of the Representation of People Act, 1951 was issued by Election Commission for holding elections to constitute 13th Legislative Assembly for the State of Rajasthan including the election scheduled for Nathdwara Legislative Assembly No. 176. The appellant as well as the respondent filed their nominations and were candidates of recognised National Parties. The poll was held on 4.12.2008. During the process of polling, there had been allegations/ challenges at various booths that at least 10 votes alleged to have been cast by imposters and thus, 10 tendered votes were cast under Rule 42 of the Conduct of Election Rules, 1961. The counting of votes took place on 8.12.2008 and the appellant (BJP) secured 62216 votes, while Shri C.P. Joshi (INC) secured 62215 votes. At the request of the election agent, a recounting took place under Rule 63 of the Rules 1961. However, the result remained the same and, thus, the appellant was declared duly elected by a margin of one vote.
The respondent filed an election petition before the High Court of Rajasthan under Sections 80, 81, 100(1)(d)(iii) and Section 100(1)(d)(iv) of 1951 Act, inter alia, alleging that:
(i) Smt. Kalpana Kunwar and Smt. Kalpana Singh (wife of Petitioner) were one and the same person, but her name was registered at two places in the electoral rolls of the constituency and hence she had cast two votes in the election;
(ii)   Six (6) tendered votes cast in the election must be counted and the six (6) votes originally polled against the tendered votes must be rejected.
However, the application filed by the appellant contesting the respondent’s petition has been dismissed by the High Court vide impugned judgment and order. Hence, this appeal.
ISSUE FOR CONSIDERATION:
Whether the result of the election has been materially affected?
ARGUMENTS BY THE APPELLANT:
The learned counsel submitted that all 10 tendered votes have to be recounted. In view of the fact that there was margin of only one vote, the law requires that all the tendered votes be counted. In order to fortify his submission, reliance was placed on the judgment of Dr. Wilfred D’Souza v. Francis Menino Jesus Ferrao, wherein it had been directed that all the tendered votes have to be counted.
ARGUMENTS BY THE RESPONDENT:
The respondents, however, had vehemently opposed the appeal contending that the principles of equity and concept of substantial justice cannot be pressed into service in the present case. The Court cannot permit a party to lead evidence unless an issue has been framed on the controversy and an issue cannot be framed unless there are actual pleadings in respect thereof. The pleadings in the instant case related only to the 6 tendered votes and an issue has been framed only to that extent. Therefore, it is not permissible to take into consideration all 10 tendered votes. It was further put forth that the ratio of the case of Wilfred D’Souza has no bearing in the case at hand.
HELD:
It was observed by the apex Court that the election petitioner/respondent has claimed only that there has been irregularity/illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act, 1951. Further, the judgment in Wilfred D’Souza’s case has distinguishable features than the case at hand. That was a case wherein a Recrimination Petition under Section 97 of the Act 1951 had been filed. In the instant case, there was no such claim made by the parties. An application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. However, there was no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents.
It was, therefore, held by the Court that the appeal lacked merit and was accordingly dismissed.