ASH OK v. RAJENDRA BHAUSAHEB MULAK

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A of Section 100 (1) (d) (iii) and (iv), the petition was rightly dismissed. In the matter of T.H. Musthaffa Vs. M.P. Varghese (Supra), this Court relying upon the ratio of this Court in Jabar Singh Vs. Genda Lal, (1964) SCR 54, it was held that the scope of the enquiry in a case under Section 100 (1) (d) (iii) is B to determine whether any votes had been improperly cast in favour of the returned candidate or any votes had been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant for deciding whether the election of a returned candidate had been c materially affected or not. But, in view of the facts of this case where the petitioner has failed to disclose as to whether the alleged improper reception of 14 or 5 votes were cast in favour of which candidate, it is clear that the election petition failed to disclose material particulars in this regard so as to give rise to a cause of action apart from the fact that no objection was 0 . raised at the time of actual polling.

21Copy pinpoint21. I thus find substance in the view taken by the High Court in the impugned judgment, that the election petitioner herein has only pointed out a possibility of result of election being different if 14 or 5 votes were to be excluded from counting. The High Court appears to be correct in my view while stating that the case of the petitioner is not that the said votes reveal that they were in favour of respondent - Rajendra or not in favour of petitioner - As.hok. But the objection is only that those votes ought not to have been taken into consideration while counting the votes. As already stated in absence of identification of those votes which are alleged to have been cast by the voters in the company of another person, it would be difficult to identify them so as to infer as to which are the votes which ought not to have been reckoned for counting by declaring them invalid. In that event even if the petitioner's election petition were to be allowed, the entire trial would result into an exercise in futility leading the controversy nowhere. It is in view of this inevitable consequence that I hold that the election petition filed by the petitioner indicates absence of 'material particulars' which

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materially affected the result of the election so as to entertain A a challenge to the same. To contend that the alleged breach of secrecy would render the entire election result as void so as to order for a repoll in spite of absence of any objection by the defeated candidates or his representative in this regard at the time of polling would be an outrageous contention in my view B which is fit to rejected outright. Fortunately, this is not even the contention of the petitioner and rightly so, as he has confined his challenge only to the extent of challenging the validity of 5 or 14 votes alleging breach of secrecy, which materially affected the election result. This contention is extremely fragile c and hence has no force for the reasoning recorded hereinbefore.

22Copy pinpoint22. I am, therefore, conclusively of the view that the impugned judgment and order of the High Court is not required to be interfered with and the election petition was rightly held D to be fit for rejection for want of material facts and material particulars which could materially affect the result of the election.

ORDER E In view of conflicting views expressed by ui;, we refer this matter to a three Judge Bench for resolving the conflict. The Registry shall place the record before Hon'ble the Chief Justice of India for constituting an appopriate Bench: B.B.B. Matter referred to Larger Bench.