Jitendra Bahadur Singh Vs. Krishna
Behari & Ors  INSC 176 (13 August 1969)
13/08/1969 HEGDE, K.S.
CITATION: 1970 AIR 276 1970 SCR (1) 852 1969
SCC (2) 433
CITATOR INFO :
E 1972 SC1251 (16) E 1973 SC 215 (9) RF 1973
SC 581 (1) RF 1973 SC2077 (2) F 1975 SC 283 (45) R 1975 SC 403 (7) RF 1975 SC
693 (9) RF 1975 SC2117 (4,7) E 1980 SC 206 (19) RF 1980 SC1362 (33)
Election--Petition for setting aside
election--Application for scrutiny of ballot papers--When can be ordered.
The first respondent, an elector, challenged
the election of the appellant to the Lok Sabha. He alleged inter alia, in the
election-petition that: (1) only one counting agent of the defeated candidate
was permitted at each table where three persons were counting simultaneously,
and hence, it was impossible 'for the counting agent to detect the wrong acts
of the counting staff who had adopted an attitude hostile to the defeated
candidate; and (2) several votes of the defeated candidate were improperly
rejected ignoring the protests of the election agent of that candidate, while
invalid votes and votes of the defeated candidate were counted in favour of the
appellant. The Schedule to the petition gave some figures of such improper
rejection and improper acceptance. In the verification to the petition it was
stated that the allegations were made on the basis of information 'received
from the workers and the counting agents of the defeated candidate and that the
election-petitioner believed the information to be correct.
It was however not stated in the petition who
the workers were and what was the basis of their information. No written
objection was flied during the counting, either to the acceptance or the
rejection of any vote, nor was any such application made for a recount.
Before the trial of the election-petition the
election- petitioner filed an application for permission to. inspect the
packets. of ballot papers containing the accepted as well as rejected votes of
the candidates. In the affidavit in support of the petition he averred that on
one of the days of counting. he was the counting agent of the defeated
candidate and had personal knowledge of Such improper rejection and acceptance.
No other affidavit of persons who could have had personal knowledge of the
matter was flied.
The High Court allowed the application and
permitted scrutiny solely on the basis of the allegations in the election
petition and the affidavit in support of the application seeking scrutiny.
In appeal to this Court,
HELD.: In view of the importance of
maintaining the secrecy of the ballot papers, scrutiny can only be ordered if
the election-petition contains an adequate statement of the material facts on
which the petitioner relies, that is, the material facts disclosed must afford
an adequate basis the allegations; and, the election tribunal must be prima
facie satisfied that in order to decide the dispute and to do complete justice
between the parties inspection of the ballot papers is necessary. [855 G-H; 856
A] In the present case, the High Court stated that it was so. satisfied on the
mere statement of 'some figures in the petition and affidavit. It also did not
give any reason in support of its satisfaction as to the need for inspection.
[857 G-H] (1) The petitioner had not stated
that any. of the counting agents appointed by the defeated candidate or his
election agent, in accordance 853 with the rules, had been refused admission to
the place of counting. Therefore, the allegation that enough number of counting
agents were not permitted was not supported by any statement of material facts.
[857 B-C] (2) Similarly, with regard to the rejection of the votes polled in
favour of the defeated candidate, under the rules, before a vote is rejected
the agents of the candidates must be permitted to examine the concerned ballot
paper, and therefore, the serial numbers of the concerned ballot papers could
have been noted. The election petition, however, is silent as to the inspection
and notes of the ballot papers and other material facts such as raising
objections and asking for a 'recount. [857 C-E] Therefore, the scrutiny of the
ballot papers was sought on the basis of mere assertions and allegations which
were neither accompanied by a statement of material facts nor were they
supported by any evidence; and hence, the High Court should have rejected the
application for scrutiny.
[857 F] Ram Sewak Yadav v. Hussain Kamil
Kidwai,  6 S.C.R.
238 and Dr. Jagjit Singh v. Giani Kartar
Singh, A.I.R. 1966 S.C. 773, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1483 of 1958.
Appeal by special leave from the judgment and
order dated May 21, 1968 of the Allahabad High Court, Lucknow Bench in Civil
Misc. Applications Nos. 41 (E) and 42(E) of 1968 in Election Petition No. 7 of
C.B. Agarwala, V.P. Joshi and S.S. Khanduia,
for the appellant.
G.N. Dikshit, R.N. Dikshit and O.P. Saini,
for respondents Nos. 1 and 9.
The Judgment of the Court was delivered by
Hegde, J. This appeal by special leave is directed against the order made by
Sahgal, J. on May 21, 1968, permitting the 1st respondent, an elector
challenging the validity of the election of the appellant to Lok Sabh'a from
15, Shahabad Parliamentary Constituency in the general election held in 1967,
to inspect the packets of ballot papers containing the accepted as well as the
rejected votes of the candidates.
In the election in question as many as 10
persons contested. The appellant, the Jan Sangh nominee was the successful
candidate. The 9th respondent, Shri Nevatia Rameshwar Prasad, the Congress
nominee was his nearest rival. In the election petition, the petitioner not
only wants the appellant's election to. be held void, he also wants that the
9th respondent should,, be declared elected.
The election of the appellant has been
challenged on various grounds, with most of which we are not at present
We are only concerned with the allegations
relating to the irregularity in the scrutinising and counting of votes.
The 854 averments relating thereto are, found
in paragraphs 13 and 14 of the election petition. They are as follows:
(1) only one counting agent was permitted at
each table whereas three persons were doing the counting work simultaneously
and it was impossible for one man to look into and detect the wrong acts of
three persons at the same time.
Under this head it was further mentioned that
the counting staff was from amongst the government servants who had gone on two
months strike before the election and during the elections they had adopted
hostile attitude towards the congress candidates and had made efforts to bring
about their defeat;
(2) the bundles of votes of either candidates
were neither properly made nor properly scrutinised;
(3) about 5,000 votes of the congress
candidates were improperly rejected ignoring the protests of Mr. Malhotra, the
election agent of the congress nominee;
(4) invalid votes were counted in favour of
the returned candidate. The votes of the congress candidates were counted for
the returned candidate.
In Sch 'E' certain figures showing the
alleged improperly rejected as well as accepted votes pertaining to.
certain booths are mentioned. It also shows
the number of votes of the congress nominee counted as the votes of the
returned candidate. Neither the petition nor the Schedule discloses the basis
for arriving at those figures.
The election petitioner is neither the
candidate nor his election agent. In the election petition, it was not stated
that he was even the counting agent. In the verification appended to the
election petition, it was averred that the allegations contained in paragraphs
12 to 15 of the election petition were believed by the petitioner to be true on
the basis of the information received from the workers of the congress nominee
and others which means that the allegations made by him in_paragraphs 13 and 14
of the election petition were based on hearsay information. He does not and he
could not vouchsafe their accuracy though he claims to have believed the
information given to him to be correct. Similarly in the verification appended
'E', the election petitioner stated that he
has given the information contained in that Schedule on the basis of the
information received from the counting agents of the congress nominee. Neither
in the election petition nor in the Schedule he mentioned that the counting
agents had given him the information in question on the basis of any record
made by them.
855 In the affidavit filed by the petitioner
in support of his application seeking permission to inspect the ballot papers,
he went one step further. Therein he averred that on one of the days when the
counting was going on, he acted as one of the counting agents for the congress
Hence he claims to have personal knowledge of
the rejection of some valid votes 'and the acceptance of some invalid votes. No
affidavit of either the congress nominee or his election agent or any of the
persons who could have had personal knowledge of the matter was filed in
support of that application. No. oral evidence has been taken in the case till
now. The returned candidate has denied the allegations referred to earlier. It
is true that some of the defeated candidates in their written statements have
lent support to the ,allegations made by the election petitioner. The reason
for the same is obvious. But even they have not filed any affidavit in support
of the concerned allegations. Solely on the basis of the averments made in the
election petition and the facts sworn to in the affidavit filed by the election
petitioner in support of his application seeking scrutiny of the ballot papers,
the trial court had issued the impugned direction.
Before proceeding to. consider the material
in support of the impugned order, it is necessary to mention that it is not the
case of the election petitioner that any written objection had been filed
during the counting either to the acceptance or to the rejection of any vote.
In the petition, it is averred that "the Returning Officer on being
pointed out by the election 'agent of respondent No. 9, Shri P.C. Malhotra,
said his decision was final and can be questioned through Election
Petition". Evidently this averment relates to the objections said to have
been taken by Shri Malhotra in respect of the orders made by the returning
officer as to the validity. of some of the votes.
Apart from the fact that the allegation in
question. is very vague and lacking in details, not even an affidavit of Shri
Malhotra has been filed in support of that allegation.
Admittedly no application was made to the
returning officer for recounting the votes. We have to examine the facts of
this case bearing in mind these circumstances.
The importance of maintaining the secrecy of
ballot papers and the circumstances under which that secrecy can be violated
has been considered by this Court in several cases.
In particular we may refer to the decisions
of this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and ors. (1) and Dr. Jagjit
Singh v. Giani Kartar Singh(2). These and other decisions of this Court 'and of
the High Courts have laid down certain basic requirements to be satisfied
before an election tribunal can permit the inspection of ballot papers. They
(1) that the petition for setting aside the
election must contain an adequate statement of the material facts on which the
peti- (1)  6 S.C.R. 238. (2) A.I.R. 1966 S.C. 773.
856 tioner relies in support of h/s case and
(2) the tribunal must be prima facie satisfied that k1 order to decide the
dispute and to do complete justice between the parties, inspection of the
ballot papers is necessary.
The trial court was of the opinion that if an
election petitioner in his election petition gives some figures 'as to the
rejection of valid votes and acceptance of invalid votes, the same must be
considered as an adequate statement of material facts. In the instant case
apart from giving certain figures whether true or imaginary, the petitioner has
not disclosed in the petition the basis on which he arrived at those figures.
His bald assertion that he got those figures from the counting agents of the
congress nominee cannot afford the necessary basis. He did not say in the
petition who those workers were and what is the basis of their information ? It
is not his case that they maintained any notes or that he examined their notes,
if there were any. The material facts required to be stated are those facts
which can be considered 'as materials supporting the allegations made. In other
words they must be such facts as to afford a basis for the allegations made in
the petition. The facts stated in paragraphs 13 and 14 of the election petition
and in Schedule 'E' are mere allegations and are not material facts supporting
those allegations. This Court in insisting that the election petitioner should
state in the petition the material facts was referring to a point of substance
and not of mere form.
Unfortunately the trial court has mistaken
the form for the substance. The material facts disclosed by the petitioner must
afford an adequate basis for the allegations made.
The learned trial judge while deciding the
point in issue overlooked certain important circumstances. The election
petition is silent as regards certain important aspects. This omission has
bearing on the point to be decided. The allegation that the returning officer
did not permit the appellant more than one counting 'agent for each counting
table is an extremely vague allegation. It is not the election petitioner's
case that the congress nominee had appointed more than one counting agent for
any counting table but the returning officer did not accept their appointment.
Under s. 47 of the Representation of People Act, 1951, a contesting candidate
or his election agent may appoint in the prescribe manner one or more persons
but not exceeding such number as may be prescribed by the rules, to be present
as his counting agent or agents at the counting of votes and when any such
'appointment is made notice of the appointment shall be given in the prescribed
manner to the returning officer. Rules framed under that Act prescribe the
number of counting agents that a candidate may appoint.
The form of the notice required to be given
trader s. 47 of the Act is given in the rules. The appointment of the counting
agents 857 is to be made in the prescribed forms in duplicate, one copy of
which is to be forwarded to the returning officer while the other copy should
be made over to. the counting agent.
Rules also provide that no counting agent
shall be admitted into the place fixed for counting unless he has delivered to
the returning officer the second copy of the instrument of his appointment
after duly completing and signing the declaration contained therein. The
petitioner did not state in the election petition that any of the counting
agents appointed by the congress candidate or his election agent in accordance
with the rules had been refused admission to the place of counting. Hence the
allegation that the returning officer did not permit enough number of counting
agents to be appointed is not supported by any statement of facts necessary to
be stated. In other words the material facts relating to the allegations made
have not been stated.
Now coming to the rejection of the votes
polled in favour of the congress nominee, under the rules before a vote is
rejected the agents of the candidates must be permitted to examine the
concerned ballot paper. Therefore it was quite easy for them to note down the
serial number of the concerned ballot papers. The election petition is silent
as to the inspection of the ballot 'papers or whether the counting agents had
noted down the serial numbers of those ballot papers or whether those agents
raised any objection relating to the validity of those ballot papers;
if so who those agents are and what are the
serial numbers of the ballot papers to which each one of them advanced their
objections. These again are the material facts required to be stated.
As seen earlier the allegations made in the
election petition are purported to have been rounded on the information given
by others. No one takes direct responsibility for those allegations. No oral
evidence was given in support of them, not even affidavits were filed in
support of the allegations. The scrutiny of ballot papers was sought on the
basis of assertions which were neither accompanied by a statement of material
facts nor supported by any evidence.
The trial court correctly came to the
conclusion that before an order of inspection of the ballot papers can be made
it must be prima facie satisfied that in order to decide the dispute and to do
complete justice between the parties, inspection of the ballot papers is
necessary. It did say that it was so satisfied but it gave no reasons
whatsoever as to how it came to be satisfied. A judge can be satisfied only on
the basis of proof and not on the basis of mere allegations. There is
absolutely no proof in this case to. support the allegations on the basis of
which the scrutiny of the ballot papers was prayed for. The trial court did not
mention in its order even a single reason in support of its satisfaction as to
the need for 858 inspecting the ballot papers. Every judicial order must be
based on reasons and those reasons must be disclosed in the older itself.
Unfortunately the learned trial judge had overlooked the importance to be
attached to the secrecy of the ballot papers.
We have earlier referred to the principles
enunciated by this Court to be followed before ordering the scrutiny of ballot
papers. The legal position in England is the same as in this country. In fact
our election, law is patterned on the basis of the English Election Law. In
Halsbury's Laws of England (Vol. 14 at page 310, paragraph 559), it is
"The usual practice is for an
application for a recount to. be made by summons to. a judge on the Rota for
the trial of parliamentary election petitions before the trial on an affidavit
showing the grounds on which the application is based. A recount is not granted
as of right, but on evidence of good grounds for believing that there has been
a mistake on the part of the returning officer." In Rogers on Elections
(Vol. II at p. 199) it is observed that an application for recount should be
made by summons supported by affidavits showing grounds. Fraser in his Law of
Parliamentary Elections and Election Petitions observes at p. 222:
"A strong case must be made on affidavit
before an order can be obtained for inspection of ballot papers or counter
Even before the Representation of the People
Act, 1951 was enacted the law in this country relating to. inspection of ballot
papers was as stated earlier. The election tribunals in this country have
refused to permit the scrutiny of ballot papers unless there was prima facie
evidence in support of the allegations made in the election petition--see Tanjore,
N.M.R. (Hammond's Election Cases 673); Punjab North Case (Hammond's Election.
Cases 569), Karnal Mohammadan Constituency Case (2 Doabia 235 );Karnal (South)
General Constituency Case (2,Doabia 80); Chingleput Case (Hammond's Election
Cases 307); see also R. Swaminath's Case (2, E.L.R. 51); Seshaiah v. Koti Reddi
(3, E.L.R. 39) and Lakshumanayya v. Rajam Aiyar (58 M.L.J. 118).
For the reasons mentioned above we allow this
appeal and set aside the order made by the learned trial judge. He with now
proceed with the trial of the case in accordance with law. The 1st respondent,
the election petitioner shall pay the costs of the appellant in this appeal.
V.P.S. Appeal allowed.