1. This petition relates to the election of two members to the Legislative Council of the State of Mysore from the Bangalore (Local Authorities) Constituency in May 1956. There were five candidates for the election, i.e., the present petitioner and the present respondents 1 to 4. The Petitioner and Respondent 2 were declared elected, thereupon Respondent 1 filed an election petition under Section 81 of the Representation of the People Act, 1951, calling in question the election of the petitioner and Respondent 2.
An election tribunal was constituted for the trial of the election petitioner. Two points were urged in support of the petition : firstly, that the Returning Officer erred in ruling out 61 votes on the ground that the signatures of the voters were not duly attested as the attestor was not a gazetted officer of the Mysore Government or of the Central Government as required by law, and secondly, that as the numbers entered on the several envelopes in which the ballot papers were placed did not agree with the numbers on the respective ballot papers as required by Rule 92 (2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, all the votes were invalid.
The petitioner (present Respondent 1) sought a declaration that he himself was duly elected or in the alternative a declaration that the election of Respondents 1 and 2 (present Petitioner and present Respondent 2) was void. The first contention did not find favour with the tribunal. The second contention was upheld and the tribunal declared that the election of the present Petitioner and present Respondent 2 was void.
2. This decision is challenged on various grounds. It is urged that the mistake, if any, in the numbers on the ballot papers not agreeing with the numbers on the respective envelopes was caused by the Returning Officer himself, and Rule 92 (2) does not apply to such a case. It is not disputed that the numbers borne on the ballot papers were not entered on the respective envelopes and that the serial numbers of the voters in the voters' list were entered on the envelopes.
We find nothing in the language of Rule 92 (2) to differentiate between a mistake committed by the Returning Officer and that committed by a voter. It cannot therefore be said that Rule 92 (2) does not apply to such a case. The real question for consideration, therefore, is whether such a mistake is of a material character or not.
The learned Advocate for the Petitioner argues that the mistake is not of a material character and as Section 100(2)(c) of the Representation of the People Act, which is the provision applicable to the case on hand, requires that the result of the election should have been materially affected by the improper reception or refusal of the votes in question and as the intention of the voters could clearly be gathered from the votes, the votes should not have been rejected. But Rule 92 (2) specifically provides that such a ballot paper shall be invalid.
As pointed out by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque : 1SCR1104 , the expression 'the result of the election' in Section 100(1)(c) and Section 100(2)(c) must, unless there is something in the context of its interpretation, be construed in the same sense as in Section 66, i.e., on the basis of the valid votes.
When the provision itself renders the vote invalid such a vote cannot be taken cognisance of and no question of gathering the intention of the voter can arise. As remarked by the Supreme Court in the above mentioned decision there can be no degree of compliance so far as rejection is concerned and it is conclusive to show that the provision is mandatory. We therefore find no force in this contention urged on behalf of the Petitioner.
3. It is next urged that under Section 84 of the Representation of the People Act, 1951, the Petitioner could claim only one of the declarations enumerated under that section and that alternative reliefs could not be claimed, as has been done in the case on hand. Reliance is placed on the decision reported in Brijendra Swarup v. Election Tribunal, Luck-now : AIR1955All129 , and on the language of Section 84 as it stands after the recent amendment.
There are no doubt some observations in (S) AIR 1935 All 129 (R) and Brijendra Swarup v. Election Tribunal, Lucknow : AIR1956All111 , which lend support to the Petitioner's contention.. But we see nothing in the language of Section 84 itself which precludes 'claiming alternative reliefs. It is' not suggested that cumulative reliefs were asked for or were granted. Nor can it be necessarily inferred from the circumstance that Section 84 has been amended that the Section as it stood before amendment precluded the claiming of alternative reliefs.
We may in this connection refer to the decision reported in V. K. John v. G. Vasantha Pai, (S) AIR 1956 Mad 85 (D), in which it has been held that though the tribunal can grant only one relief the election petition may pray for more than one relief. As observed in that decision, Section 81 permits an election petition on one or more of the grounds specified in Sub-sections 1 and 2 of Section 100 and Section 101 and from this it follows that it is open to the Petitioner to seek alternative reliefs.
4. It may further be observed that this contention was not urged before the election tribunal. The contesting party had therefore no opportunity of meeting it or, assuming that there was substance in the contention, of amending the election petition. The present Petitioner cannot properly be allowed to canvass this contention at this stage either under Article 226 or Article 227 of the Constitution.
5. We thus find no substance in this petition. It is accordingly dismissed with the costs of the contesting Respondents (Advocate's fee Rs. 100/-.
6. Petition dismissed.