Ram Autar Singh Bhadauria Vs. Ram
Gopal Singh & Ors [1975] INSC 148 (31 July 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1975 AIR 2182 1976 SCR (1) 191 1976
SCC (1) 43
CITATOR INFO :
D 1976 SC2184 (20) E 1980 SC 206 (23) RF 1980
SC1362 (33) D 1990 SC 838 (10)
ACT:
Representation of the People Act, 1951-Sec.
97, 100(1)(d)(iii)-Conduct of Election Rules 1961-Rule 38 and 56-General
recount and inspection when to be allowed- Recriminatory pleas.
HEADNOTE:
The appellant and respondent no. 1 and other
candidates contested the election from U.P. Legislative Assembly Constituency
(No. 293), Sarsaul. The appellant secured 23626 votes and respondent no. 1
polled 23604, the margin being of 22 votes only.
Respondent no. 1 filed an Election Petition
challenging the election of the appellant inter alia on the ground that the
result of the election so far as the returned candidate was concerned was
materially affected by improper reception and rejection of votes and mistakes
in counting. It was alleged that 41 ballot papers were rejected on the ground
that the electors' choice was expressed through the instrument meant for the
Presiding officer for stamping on the reverse side of the ballot papers. the
particulars of those ballot papers were given in Schedule annexed to the
Election Petition. It was further alleged that some ballot papers were issued
along with the counter foil and were therefore rejected. The appellant in his
written statement denied the allegations and stated that the result of the
election was not materially affected. Respondent no. I did not adduce any
evidence in support of his allegations mentioned above but made an application
before the High Court for scrutiny and recount of the ballot papers. The High
Court allowed the application and directed scrutiny and recount of ballot
papers on the following grounds:
(a) The appellant woo by a very small margin
of 22 votes (b) It was not disputed that a number of ballot papers were
rejected because the polling staff forgot to detach the counter-foils on a
number of ballot papers.
(c) It is also the admitted case or the
parties that a number of ballot papers were rejected because the voters cast
their votes by putting their mark not with the marking instrument issued by the
Election Commission but with the marking or stamping instrument issued for the
use of the Presiding officers.
(d) lt is clear from the petition, written
statement and recriminatory petition filed by the respondent that both parties
pleaded that there was wrong reception rejection and counting of votes.
The appellant filed an appeal by special
Leave against the said order of the Appellate Court.
Allowing the appeal ,
HELD : (1) The returned candidate had not
categorically and specifically admitted the allegations made in the Election
Petition with regard to the improper rejection of the ballot papers. [195F-G]
(2) Since the appellant did not admit the allegations, the court could not
dispense with proof of those facts altogether. [196A-C] (3) The Additional
pleas set up in the written statements were irrelevant to beyond the scope of
the enquiry into the allegations in the Election Petition falling under s.
100(1)(d)(iii) of the Representation of the People Act, 1951. These Additional
pleas were in the nature of recriminatory pleas 192 which could not be
investigated in this Election Petition.
The scope of the enquiry is limited for the
simple reason that what the clause requires to be considered is whether the
election of the returned candidate has been materially affected and nothing
else. [197C-F] (4) The pleas of the returned candidate under s. 97 have to be
tried after declaration has been made under s. 100 of the Act. [197F-G] The
learned judge as in error in ordering general inspection and recount of the
total votes polled at the election, merely because in these Additional Pleas
the returned candidate also had by way of recrimination, complained of wrong
reception and rejection of votes and wrong counting of votes. [198B-C] The High
Court failed to apply its mind to the question, whether if the facts alleged in
the petition were assumed to be correct-a prima facie case for improper
rejection of the so ballot papers-was made out. Rule 38 of the Conduct of
Election Rules, 1961, requires every ballot paper and the counter- foil
attached thereto to be, stamped on the back by the Presiding officer with such
distinguishing mark as the Election Commission might direct.
Rule 56 requires every elector to whom ballot
paper has been issued to maintain secrecy of voting and making a mark on the
ballot paper with the instrument supplied the purpose by the Election
Commission. The object of these rules is to secure not only the secrecy of the
ballot but also to eliminate chances of sharp practices in the conduct of
election. The requirements, are, therefore. mandatory and a defect arising from
their non-observance inexorably entails rejection of the defective ballot
papers. [198D-F; 199G-H] The High Court had to apply its mind as to whether these
facts by themselves were sufficient to attract rule
56. The High court had also to apply its mind
as to whether the facts alleged in the petition, if correct, would fall within
the mischief of rule 56. [200B; 202A-B] Times out of number, this Court has pointed
out that a general scrutiny and recount of the ballot papers should not be
lightly ordered. Before making such as extraordinary order, the Court must be
satisfied that all the material facts. have been pleaded and proved and that
such a course is imperatively necessary in the interests of justice. In the
present case. there was no foundation in the petition for ordering a general
recount. Nor could the Additional Pleas in the written statement of the
returned candidate be taken into account for making an order for general
inspection of the ballots [202C-E] The order of the High Court was set aside.
[203B] The High Court was directed to decide the questions mentioned in this
judgment and, thereafter, decided the application of the Respondent no. 1 for recount
of the specific ballot papers [203B-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 783 of 1975.
Appeal by special leave from the judgment and
order dated the 9th April 1975 of the Allahabad High Court in Application No.
A. 7 ion Petition No. 22 of 1974.
R K. Garg, S. C. Agarwala and V. J. Francis,
for the appellant.
D. Mukherjee and Pramod Swarup, for
respondent No. 1.
The Judgment of the Court was delivered by
SARKRIA J. We have already announced our order in this appeal on the 2nd May
1975. We now proceed to give our reasons therefore.
193 The appellant, Shri Ram Autar Singh
Bhadauria.
Respondent No. 1 Chaudhari Ram Gopal Singh
and Respondents 2 to 11 contested election, as rival candidates from U. P.
Legislative Assembly Constituency (No. 293),
Sarsaul. The poll was held on 24-2-1974. The appellant was declared elected.
The total number of votes polled was 72735. Out of these, the appellant secured
23626 and Respondent 1, his nearest rival polled 23604, the margin being of 22
votes only.
Respondent 1 filed an election petition
challenging the election of the appellant inter alia on the ground (vide para
9(1) of the petition) that the result of the election so far as the returned
candidate was concerned materially affected by improper reception and rejection
of votes and mistakes in counting. It was alleged:
"para 11(a). That in a number of polling
stations, the instruments supplied to the electors for the purposes of stamping
on or near the symbol of the candidate to whom he intends to vote, was seal of
Presiding officer which was meant to be put on the reverse of the ballot
papers. Since the electors were supplied these instruments by the Presiding
officer for marking the ballot papers the electors indicated their choice by
marking in the column of the petitioner with that instrument. There were 41
such ballot papers which were clear votes for the petitioner that were
illegally rejected by the Presiding officer on the ground that the electors'
choice was expressed through the instrument meant for the Presiding officer for
stamping on the reverse side of the ballot papers. Particulars of such ballot
papers are given in Schedule I attached to the Election Petition.
(b) That in a number of polling stations, the
electors were issued ballot papers along with the counter-foil. While issuing
the ballot papers to the electors, the polling staff . deputed there did not
detach the counter foil and the electors after putting seal mark put the ballot
papers along with the counter foil in the ballot box. It was due to the mistake
of the staff deputed at the polling station. The number of some of such ballot
papers are-100976, 100977, 100978, 100979, 100980, 100982, 100983 and 100984.
These ballot papers clearly indicate the votes for the petitioner but they were
illegally rejected on the ground that the identity of the elector can be
established. The reason on which it was rejected was wholly illegal. The
particulars of such bal lot papers are given in Schedule IT attached to this
election petition." In his written statement, the successful candidate
stated:
"65(1). That the contents of paragraph
No. 9(1) of the Election Petition are not admitted. The result of the election
in so far as the answering respondent is concerned has not been materially
affected by any improper reception or 194 rejection, or by wrong arithmetical
and clerical mistake in counting of votes and/or counting and acceptance of
void votes in favour of the answering respondent. In fact no improper reception
or rejection or arithmetical mistake or any clerical mistake was done in favour
of the answering respondent
16. That the contents of paragraph No. 11 (a)
of the petition are wrong and denied. It is wrong to say that 41 ii ballot
papers mentioned in Schedule I or any ballot paper counted in favour of the
respondent No. 1 by marking with the seal of the Presiding officer. It is
admitted that the ballot papers on which unauthorised seal was found were
rejected. Some of these rejected ballot papers may be of the petitioner but
most of them were of respondent No. 1 and other contesting candidates.
17. That the contents of para 11 (b) of the
petition and Schedule II are not admitted as stated.
Only on one polling station, due to the
mistake of the Presiding officer some bal lot papers were issued along with
their counter-foils. The counterfoils did contain the name and signature or
thumb impression of the voters attached to the ballot paper. In these
circumstances such ballot papers were rejected by the Returning officer. It is
submitted that such ballot paper were in respect of all the candidates
including the respondent No. 1.
Further, no such objection was raised at the
time of counting by the Petitioner or his election agent and/or his counting
Agent.
56. That no different criteria was adopted by
the Returning officer in the matter of acceptance or rejection of ballot papers
and the respondent No. 1 maintains that many ballot papers in which the
Electors expressed their choice in favour of the respondent No. 1 by putting
the seal of the Presiding officer as supplied by the Presiding officer, were
wrongly rejected during the counting by the Returning officer." Respondent
1 did not adduce any evidence in support of the allegations extracted above.
But on 24-2-1975, he made an application before the High Court, praying for
scrutiny and recount of the ballot papers. The allegations in para 11(a) and
(b) of the election petition were reiterated in the application. The appellant
in reply filed a counter- affidavit which was substantially a reproduction of
his reply in the written statement.
The learned Judge of the High Court by his
order, dated 9-4-1975, allowed that application and directed scrutiny and
recount of ballot papers on the view that:
(a) The appellant "was declared to have
won by a very small margin of only 22 votes".
195 (b) "lt is not in dispute that a
number of ballot papers were rejected by the Returning officer as invalid because
the polling staff of a particular polling station forgot to detach the
counter-foils of a number of ballot papers. As the counter-foils contained the
identity of the voters, the ballot papers were rejected for no fault of the
voters, but because of negligence or incompetence on the part of the polling
staff".
(c) "It is also the admitted case of the
parties that a number of ballot papers were rejected because the voters cast
their votes by putting their mark not with the marking instrument issued by the
Election Commission but with the marking or stamping instrument issued by the
Election Commission for the use of the Presiding officers. This happened
because instead of the instrument which the polling staff should have given to
a voter to put the mark showing for which candidate he wanted to vote, the
polling staff by mis take handed over to the voter the stamp meant for the
Presiding officer.. to affix on the back of the ballot paper." (d) lt
"The petition, the written statement, the recriminatory petition filed by
the respondent (now appellant) and the reply thereto filed by the petitioner
would show that this is a case in which both parties have pleaded that there
was wrong reception, rejection and u counting of votes." It is against
this order, dated 9-4-75 of the High Court that this appeal has been filed by
the returned candidate after obtaining special leave.
Having heard learned Counsel on both sides,
we are or opinion that the order made by the High Court for a general scrutiny
and re count of all the ballot papers cast at the election, was not justified.
The returned candidate had not categorically
and specifically admitted the allegations made in the election petition with
regard to the improper rejection of the ballot-papers. This will be clear from
a comparative reading of Paragraph 11 (a) and (b) of the petition and the
answers thereto given in the written statement, which have been reproduced
above verbatim. It is to be noted that the reply of the returned candidate to
the contents of the aforesaid sub-paras (a) and (b) starts with a denial or a
non- admission. Such a traverse is then followed by qualified and vague
admissions that some ballot-papers were rejected because they were not marked
with the instrument meant for this purpose, or bore the names or signatures of
the voters on the counter-foils that remained attached to them, owing to the
mistake of the Presiding Officer. After having thus replied to the petitioner's
allegations, the returned candidate said that most of these rejected 196
ballots had been cast for him and not for the petitioner.
This was a counter-assertion which was not,
strictly speaking, relevant to the case set up in the petition.
Mr. Mukherjee, learned Counsel for Respondent
1 (election-petitioner) has drawn our attention to the "Additional
Pleas" in the written statement of the appellant. According to Counsel it
were these pleas, more than anything else, that led to the finding "that
this is a case in which both parties have pleaded that there was wrong
reception, rejection and counting of votes." We will discuss this aspect
of the case a little later.
At this place it will be sufficient to say
that since the returned candidate in his written statement did not specifically
and fully admit all the facts alleged in Paragraph 11 (a) and (b) of the
petition, the Court could not dispense with proof of those facts altogether.
For instance, in reply to the facts alleged in Para 11 (a) of the petition, the
returned candidate did not admit that the instrument with which such rejected
ballot papers were found stamped, was supplied by the Presiding officer. On the
contrary, the reply to sub-para (a) begins with a clear traverse: "that
the contents of paragraph No. 11 (a) of the petition are wrong and
denied". This denial notwithstanding, the learned Judge appears to have
erroneously assumed this fact as admitted by the returned candidate. The
parties being at variance on this material point, this issue of fact was
required to be proved by the party alleging lt.
Now, we come to the finding of the learned
Judge as to the wrong reception and rejection of votes being a common ground
between the parties. We have catalogued this finding as ground (b) which is one
of the four pillars on which the impugned order rests. This ground, according
to Mr. Mukherji, draws particulars support from the "Additional
Pleas" set up in the written statement. We do not propose to over-burden
this judgment by reproducing all that has been stated in Paragraph 47 to 56 of
the written statement under the caption "Additional Pleas". It will
be sufficient to extract some of it by way of sample :
"47. That the Returning officer did not
allow any improper acceptance or rejection against the interest or the
election-petitioner, rather mistakes of improper acceptance and rejection of
ballot papers were done against the interests of the answering respondent.
49. That many ballot papers which bore the
major portion of the stamp mark within the column of the Respondent No. 1 were
wrongly rejected by the Returning officer at the time of counting.
50. That as in the case of the
Election-Petitioner the Ballot Papers in favour of the Respondent No. 1 with
which counterfoils were attached were rejected. In case the Hon'ble Court finds
that similar ballot papers in favour of 197 the election petitioner are to be
accepted, the ballot papers in favour of the Respondent No. 1 in the same
condition should also be accepted and counted as valid votes in favour of the
Respondent No. 1.
51. That many ballot papers containing votes
in favour of the Respondent No. 1.. were wrongly put in the bundles of the
votes in favour of the Election Petitioner.
53..... That the bundles of ballot papers in
favour of the Respondent No. 1 in fact contained more than SO ballot papers and
there was thus wrong counting......
I say that the Respondent No. 1 filed
application before the Returning officer on 27-2-74 but the Returning officer
without considering the submissions made therein rejected it and did not order
for recount." If we may say so with respect, in taking these Additional
Pleas into account, the learned Judge completely misdirected himself. He
overlooked the fact that these Pleas were irrelevant to and beyond the scope of
the enquiry into the allegations in the election-petition falling under s. 100(1)(d)(iii)
of the Representation of the people Act, 1951. These "Additional Pleas"
were in the nature of recriminatory` pleas which could not be investigated in
this election petition. As clarified by this Court in Jabar Singh v. Genda
Lal(1), the scope of the inquiry in a case under s. 100(1) (d) (iii) is 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 the returned candidate had been materially
affected or not. At such an enquiry the burden is on the petitioner to prove
his allegations. In fact s. 97(1) of the Act has no application to a case
falling under s. 100(1) (d) (iii). The scope of the enquiry is limited for the
simple reason that what the clause requires to be considered, is, whether the
election of the returned candidate has been materially affected and nothing
else.
It is true that in a composite election
petition wherein the petitioner claims not only that the election of the
returned candidate is void but also that the petitioner or some other person be
declared to have been duly elected, s. 97 would also come into play and allow
the returned candidate to recriminate and raise counter-pleas in support of his
case, "but the pleas of the returned candidate under s. 97 have to be
tried after a declaration has been made under s. 100 of the Act. The first part
of the enquiry in regard to the validity of the election of the returned
candidate has therefore to be tried within the narrow limits prescribed by s.
100(1) (d) (iii) and the latter part of the enquiry governed by s. 101 (a) will
have to be tried on a broader basis permitting the returned candidate to lead
evidence in support of the please taken by him in his recriminatory petition;
but even in such a case the 198 enquiry. necessary while dealing with the
dispute under s. 101 (a) will not be wider if the returned candidate has failed
to recriminate and in a case of this type, the duty of the Election Tribunal
will not be to count and scrutinise all the votes cast at the election.
Moreover, in the instant case, it is a matter
of controversy to be decided as to whether the recriminatory petition filed by
the appellant is within time or not.
The above being the law on the point, it is
clear that the learned Judge was in error in ordering general inspection and
recount of the total votes polled at the election, merely because in these
Additional Pleas the returned candidate also had by way of recrimination,
complained of wrong reception and rejection of votes and wrong counting of
votes. The pleas at this stage could not be investigated even in the
recriminatory petition filed by the returned candidate. They were beyond the
scope of the enquiry into the petitioner's case which (as set up in Para 11 of
the petition) fall under s. 100(1)(d)(iii) of the Act Further, the High Court
did not properly apply its mind to the question, whether on the facts alleged
in Para 11 (a) and (b) of the petition-assuming the same to be correct-a prima
facie case for improper rejection of The 50 ballot papers referred to therein,
had been made out. In other words, if the defects in these SO ballot papers
were attributable to the mistakes or negligence of the Presiding officer or his
staff, would it take those ballot papers out of the mischief of clauses (a) and
(b) of Rule 56(2) of the Conduct of Election Rules, 1961 Rule 56 runs thus:
"(1) Subject to such general or special
directions, if any, as may be given by Election Commission in this behalf, the
ballot papers taken out of all boxes used in a constituency shall be mixed
together and then arranged in convenient bundles and scrutinised.
(2) The returning officer shall reject a
ballot paper- (a) if it bears any mark or writing by which the elector can be
identified, or (b) if, to indicate the vote, it bears no mark at all or bears a
mark made otherwise than with the instrument supplied for the purpose, or (c)
if votes are given on it in favour of more than one candidate, or (d) if the
mark indicating the vote thereon is placed in such manner as to make it
doubtful to which candidate the vote has been given, or 199 (e) if it is a
spurious ballot paper, or (f) if it is so damaged or mutilated that its
identity as a genuine ballot paper cannot be established, or (g) if it bears a
serial number, or is of a design different from the serial numbers, or, as the
case may be, design, or the ballot papers authorised for use at the particular
polling station, or (h) if it does not bear (both, the mark and the signature)
which it should have borne under the provisions of sub-rule (1) of rule 38;
Provided that where the returning officer is
satisfied that any such defect as is mentioned in clause (g) or clause (h) has
been caused by any mistake or failure on the part of a Presiding officer or
polling officer, the ballot paper shall not be rejected merely on the ground of
such defect;
Provided further that a ballot paper shall
not be rejected merely on the ground that the mark indicating the vote is
indistinct or made more than once, if the intention that the vote shall be for
a particular candidate clearly appears from the way the paper is marked.
(3) to (5): .. .. .. .
(6) Every ballot paper which is not rejected
under this rule shall be counted as one valid vote:
Clauses (a) and (b) of Rule 56(2) are preferable
to Rule 38 which requires every elector to whom ballot paper has been issued
under Rule 38 to maintain secrecy of voting and "to make a mark on the
ballot paper with the instrument supplied for the purpose on or near the symbol
of the candidate for whom he intends to vote." Rule 38 is also relevant.
This Rule requires every ballot paper and the counterfoil attached thereto to
be stamped on the back by the Presiding officer with such distinguishing mark
as the Election Commission may direct.
Every such ballot paper before it is issued
is required to be signed in full on its back by the Presiding officer. Sub-
rule (2) requires that at the time of issuing of ballot paper, the Polling officer
shall on its counterfoil record the electoral roll number of the elector and
obtain his signature or thumb-impression.
The object of these rules is to secure not
only the secrecy of the ballot but also to eliminate chances of sharp practices
in the conduct of elections. Their requirements are therefore mandatory, and a
defect arising from their non-observance inexorably entails rejection of the
defective ballot paper except to the extent covered by the Provisions to Rule
56(2).
200 In the case of 41 ballot papers mentioned
in para 11(a), what happened was that instead of marking those ballot papers
with the instrument supplied for this purpose by the Election Commission the
electors concerned stamped it with the instrument meant to be used exclusively
by the Presiding officer for stamping the counterfoils and lacks of the ballot
papers. The Court had to apply its mind as to whether these facts by themselves
were sufficient to attract Rule 56 2 (b) ? This question would further resolve
itself into two issues: (i) Was the stamping instrument with which these
electors "marked" the ballot papers, given to them by the Presiding
officer cr any member of his staff ? (ii) If so, could these ballot papers be
deemed to have been marked with "the instrument supplied for the
purpose" within the contemplation of Rules 38 and 56(2)(b) ? The first one
was an issue of fact, the determination of which would depend on evidence. The
second issue would arise only on proof of tile first, and involve the question
of interpreting and applying the phrase "instrument supplied for the
purpose". This phrase is capable two interpretations-one narrow and
literal, and the other liberal and contextual. Without there being any proof of
the fact that the stamping instrument was handed over to the 41 electors by the
Presiding officer/Polling officer, a final expression of opinion on our part
would be academic and premature. It will be sufficient to reiterate that the
provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in
this case are mandatory and strict compliance therewith is essential.
Once it is established that the fault
specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no
option left with the Returning officer but to reject the faulty ballot paper.
We would further make it clear that even if any such defect as is mentioned in
clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part
of the Returning officer or Polling Officer, the Returning officer would be
bound to reject the ballot paper on the ground of such defect. That such is the
imperative of Rule 56(2) is clear from the fact that the said clauses (a) and
(b) have advisedly been excluded from the first Proviso to Rule 56(2) which
gives a limited discretion in the matter of rejection to the Returning officer
only where the defect is of a kind mentioned in clauses (g) and (h) of this
sub- rule.
In the view that such Rules relating to the
conduct of elections, are required to be observed strictly, we are fortified by
the ratio of this Court's decision in Hari Vishnu Kamath v. Syed Ishaque and
ors.(1) In That case, voters for the House of the People in Polling Stations
Nos.
316 and 317 in Sobhapur were given ballot
papers with brown bar intended for the State Assembly, instead of ballot papers
with green bar which had to be used for the House of the People. The total
number of votes so polled was 443, out of which, 62 were in favour of the then
appellant, 301 in favour of the first respondent therein and the remaining in
favour of the other candidates. Rule 47(1)(c) of the Conduct of the Election
Rules, 1951 provided that "a ballot paper contained in a ballot-box shall
be rejected if it bears 201 any serial number or mark different from the serial
number or marks of ballot papers authorised for use at the polling station or
the polling booth at which the ballot-box in which it was found, was
used." The election-petitioner contended that in accordance with this
rule, the ballot papers received at the two polling stations, not having the
requisite mark; should have been excluded. The returned candidate pleaded that
the Returning officer had rightly accepted 301 votes because Rule 47 was
directory and not mandatory. It was contended that the electors were not at
fault and that the wrong ballot papers were issued due to the lapse on the part
of the Returning officer and that to reject the votes of the electors for the
failure of the Polling officer to deliver the correct ballot papers under Rule
23 would be to disfranchise them, and that a construction which involve such a
consequence should not be adopted. This Court repelled the contention in these
terms:
"If the word 'shall is thus to be
construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be
proper to construe it in the same sense in Rule 47(1) (c) also. There is
another reason which clinches the matter against the 1st respondent. The
practical bearing of the distinction between a provision which is mandatory and
one which is directory is that while the former must be strictly observed in
the case of the latter it is sufficient that it is substantially complied with.
How is this rule to be worked when the Rule provides that a ballot paper shall
be rejected ? There can be no degrees of compliance so far as rejection is
concerned, and that is conclusive to show that the provision is
mandatory." The above observations are apposite. Judged by the guiding
principle enunciated therein, it can safely be said that the provisions of rule
56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.
It was contended by the learned Counsel for
the respondent before us, that the Provisos to sub-rule (2) of Rule 56 are only
illustrative and not exhaustive, and consequently, the principles underlying these
Provisos would give a discretion to the Returning Officer not to reject a
ballot paper on the ground of a defect caused by mistake or negligence of the
Presiding officer/or Polling officer, notwithstanding that such defect is one
mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2).
This contention is not tenable. The word
'shall' used in the opening Part of sub-rule (2) read in the context of the
general scheme of this Rule shows that it is mandatory.
Sub-rule (5)puts the matter beyond doubt. It
says that "every ballot paper which is not rejected under this sub- rule
shall be counted as one valid vote". Rule 56 is a complete code by itself.
The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the
Returning officer may condone, if those defects are caused by the mistake or
failure of the Polling Staff. The first Proviso is in terms limited to defects
falling under Clause 202 (g) or (h). Neither of these Provisos appears to be
attracted if the A defects is any of the defects mentioned in clauses (a) or
(b).
The learned Judge of the High Court has not
applied his mind as to whether the facts alleged in Paragraph 11(b) of the
petition, if correct, would fall within the mischief of clause (d) of Rule
56(2). This will necessarily require consideration of the issue whether there
has been an infringement if any of the provisions of Rule 38, referable to
clause (a) of Rule 56(2). Another point in this context, for consideration will
be whether the "counterfoil" can be said to be an integral part of
the "ballot paper" so that any writing or marks of identification of
the voter on a counterfoil issued to the voter by mistake, is to be deemed to
be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court
has not at all addressed itself any of these questions.
Times out of number, this Court has pointed
out that a general Scrutiny and recount of the ballot papers should not be
lightly ordered. Before making such an extraordinary order, the Court must be
satisfied that all the material facts have been pleaded and proved and that
such a course is imperatively necessary in the interest of justice. In the case
in hand. the allegations in the election petition (vide Paragraph 11) are
confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no
foundation in the petition for ordering a general recount. Nor could the
Additional Pleas in the written statement of the returned candidate be taken
into account for making an order for general inspection of the ballots, because
investigation of those pleas was beyond the scope of the case alleged in Para
11 of the petition falling under section 100(1) (d) (iii) of the Act.
We have said enough. We will close the
discussion by repeating the note of caution that this Court speaking through V.
Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1).
"A democracy runs smooth on the wheels
of periodic and pure elections. The verdict at the polls announced by the
Returning Officers leads to the formation of Governments. A certain amount of
stability in the electoral process is essential. If the counting of the ballots
are interfered with by too frequent and flippant recounts by courts a new
system is introduced through the judicial instrument. Moreover, the secrecy of
the ballot which is sacrosanct becomes exposed to deleterious prying, if
recount of votes is made easy.
The general reaction, if there is judicial
relaxation on this issue, may well be a fresh pressure on luckless candidates,
particularly when the winning margin is only of a few hundred votes as here, to
ask for a recount Micawberishly looking for numerical good fortune or windfall
of chance discovery of illegal rejection or reception of ballots. This may tend
to a dangerous disorientation which invades the democratic order by injecting
widespread scope for reopening of declared returns, unless the Court restricts
recourse to recount to cases of genuine apprehension of miscount or illegality
or other compulsions of justice necessitating such a drastic step." In the
result we allow the appeal and set aside the order of the High Court for
general scrutiny and recount of the ballot papers. However, the High Court will
have to determine, (after taking such evidence as may be necessary) inter alia,
(i) whether. the instrument which was used for marking the 41 votes (referred
to in the election petition) was supplied to the voters by the Presiding
officer or any other member of his Polling Staff. If on evidence adduced, the
learned Judge finds this issue in the affirmative, the further question to be
considered would be (ii) whether such supply would answer the legal requirement
of "instrument supplied for the purpose" in Rule 56(2) (b). If both
these issues (i) and (ii) are answered in the positive, then and then only he
may proceed to inspection and recount of these votes mentioned in the petition.
Similarly, after considering the legal questions indicated above, he may order
recount of the 9 votes alleged to have counterfoils attached thereto. There appears
to be no justification for ordering a general inspection of the ballots on the
facts of this case.
The learned Judge shall proceed with the
trial of the election petition in the light of what has been said above.
Costs to abide the event in the High Court.
P.H.P. Appeal allowed.
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