R. Narayanan Vs. S. Semmalai & Ors
 INSC 172 (6 September 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1980 AIR 206 1980 SCR (1) 571 1980
SCC (2) 537
CITATOR INFO :
RF 1980 SC1362 (33) R 1989 SC 640 (12)
Representation of the People Act,
1951-Recount-When could be ordered by the Court.
The appellant and the respondent, among a few
others, were candidates in the elections to the State Assembly in which the
appellant was declared elected. The respondent, in his election petition in the
High Court, alleged that the appellant's election was void under s.
100(1)(d)(iii) and (iv) of the Representation of the People Act, 1951 on the
ground that there were numerous errors in the counting of votes as a result of
which number of votes were wrongly rejected or wrongly accepted and prayed for
ordering of recounting because the margin by which the appellant succeeded was
extremely narrow, coming to about nine votes.
He also prayed that he might be declared
elected under s. 101 of the Act.
The High Court ordered recount of votes and
after recount held the respondent to be duly elected under s. 101 of the Act.
Allowing the appeal
HELD: This is not a case in which a recount
should have been ordered by the High Court. [586C]
1. The relief of recounting cannot be
accepted merely on the possibility of there being an error. The allegations in
the election petition must not only be clearly made out but should also be
proved by cogent evidence. The High Court has held that the respondent has not
established any specific instance of erroneous sorting and that the allegations
made in the pleadings and the evidence were general. Even so it accepted the
respondent's case on such insufficient and infirm evidence. [578F-G]
2. The narrow margin by which a candidate has
been declared elected, though an important factor, would not by itself vitiate
the counting of votes or justify an order of recount by the Court. [579E] In
the instant case the grounds taken by the respondent impugning the election
were vague. No case for recount had been made out by him. [580B]
3. It is well settled that a court would be
justified in ordering a recount of the ballot papers only where (1) the
election petition contains an adequate statement of all the material facts on
which the allegations of irregularity or of illegality in counting are founded,
(2) on the basis of evidence adduced such allegations are prima facie
established, affording a good ground for believing that there has been a
mistake in counting and (3) the court trying the petition is prima facie
satisfied that the making of such an order is imperatively necessary to decide
the dispute and to do complete and effectual justice between the parties.
[585H] 572 Bhabhi v. Sheo Govind & Ors.,  Supp. SCR 202;
Ram Sewak Jadav v. Hussain Kamil Kidwai &
Ors.,  6 SCR 238; Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC
723; Jitendra Bahadur Singh v. Krishna Behari & Ors.,  1 SCR 852;
Baldev Singh v. Teja Singh Swatantar & Ors.,  3 SCR 381; Ram Autar
Singh Bhadauria v. Ram Gopal Singh & Ors.,  1 SCR 191; Beliram
Jai Beharilal Khachi & Anr.,  4 SCR
417; Chanda Singh v. Choudhary Shiv Ram Verma, (C. A. No.1185 of 1973 decided
on 20-12-1974); referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 524 of 1978.
Appeal under Article 116-A of the R.P. Act,
1951 from the Judgment and Order dated 27-2-1978 of the Madras High Court in
Election Petition No. 7/77.
AND Civil Appeal No. 588 of 1978.
Appeal by Special Leave from the Judgment and
Order dated 15-2-78 of the Madras High Court in Recrimination Petition
Unnumbered but with D. No. 12962/77.
A. K. Sen, K. Parasaran, P. N. Ramalingam, R.
Srinivasan and A. T. M. Sampath for the Appellant.
Y. S. Chitale, T. N. C. Srinivasa
Vardacharya, K. Jayaram and K. Ram Kumar, for Respondent 1 in CA 524/78.
The Judgment of the Court was delivered by
FAZAL ALI, J. Civil Appeal No. 524 of 1978 has been filed by the appellant R. Narayanan
who was the respondent before the High Court and in short would be referred to
as the appellant. Civil Appeal No. 588 of 1978 has been filed by the appellant
after obtaining special leave from this Court and is directed against that part
of the order of the High Court which refused to entertain the recrimination
petition filed by the appellant. The election petitioner before the High Court
for the purpose of brevity will hereafter be referred to as the respondent.
Both the appellant and the respondent
contested the election held on 11-5-1977. The appellant who was a Congress
candidate with the symbol of calf and cow wheras the respondent was put forward
as a candidate of the All India Anna Dravida Munnetra Kazhagam and contested
with the symbol of "Two Leaves". There were 14 candidates in all
whose nominations were found valid but out of them 7 withdrew. The appellant
and respondents No. 1 to 6 before the High Court remained in the field as
contesting candidates. The res- 573 pondent filed an election petition in the
High Court under sections 81 and 84 of the Representation of the People Act,
1951 (hereinafter referred to as the Act) for a declaration that the election
of the appellant to the 85 Taramangalam Assembly Constituency of the Tamil Nadu
Legislative Assembly was void under section 100(1) (d)(iii) and (iv) of the Act
and further prayed that he may be duly declared to be elected under section 101
of the Act. The other candidates who were in the field lost the election and
could not be elected.
The sheet anchor of the case of the
respondent was that there were number of errors in the counting of votes as a
result of which number of votes were wrongly rejected or wrongly accepted. It
was also alleged that the electoral roll was inaccurate as it contained the
names of number of persons who were already dead who had supposed to have cast
their votes. The main relief sought by the respondent was that a re-count
should be ordered particularly because the margin by which the appellant
succeeded was extremely narrow being only 19 votes and if the postal ballots
are included then the difference would be only 9 votes. A number of allegations
were made regarding the errors in the counting of votes. The appellant denied
all the allegations made by the respondent in his election petition and after
filing his written statement sought a petition for recrimination on the ground
that a number of persons had impersonated as the appellant as a result of which
the respondent got a number of wrong votes; otherwise the margin would have
become larger. The High Court however found that the petition for recrimination
was time barred, and, therefore, could not be entertained. The learned Judge
who heard the election petition rejected the recrimination petition which is the
subject matter of Civil Appeal No. 588 of 1978. In the view that we take in
this case, it is not necessary for us to give any pronouncement regarding the
validity of the order of the Judge rejecting the recrimination petition.
The counting of votes took place at St.
Mary's Girls High School, Mettur on 14-6-1977. The initial counting commenced
at 11 a.m. and ended at 3 a.m. on the 15th June, 1977. The counting is alleged
to have been done in three rounds. After the counting was over the respondent
filed an application before the Returning Officer for a re-count on the ground
that there were a number of counting errors due to the shortage of staff and
the tables on which votes were counted, paucity of light and the fact that the
counting staff became absolutely exhausted and tired. The Returning Officer
rejected the prayer of the respondent for re-count and went ahead with the
declaration of the results.
574 The appellant's case was that there was
sufficient space in the hall in which the counting took place and the polling
agents of all the candidates were present when the counting was done and none
of them raised any objection when the counting was actually done. It was also
alleged that there were sufficient number of tube lights in the hall and that there
was no question of there being any opportunity of committing mistakes in
counting. All the ballot papers were opened in the presence of the counting
agents including the counting agent of the respondent and kept in the box which
contained the ballot papers of the candidates concerned. The allegation of the
respondent that some outsiders including one Perumal were also allowed to enter
the ball when the counting was going on was also denied by the appellant.
The learned Judge after taking evidence of
both the parties rejected most of the allegations made by the respondent but
accepted the allegation that there were some counting errors at two tables,
that there was paucity of light and that the counting staff was completely
tired and exhausted, during the third round.
We would, therefore, briefly summaries the
allegations made by the respondent in his election petition in order to show
whether the allegations were clear and specific.
In para 7 of the election petition the
respondent alleged that the counting of votes was not done properly or with due
care and diligence, but was often hurried through amidst much noise and
interruption and disturbance. It was also alleged that the lighting in the hall
was poor and insufficient and there was much scope for error and there were
numerous errors in the counting throughout and specially in the third round. It
was also complained that there were only 24 tables and counting was done in
three rounds and the third round took place near about the mid- night and lasted
till 3 a.m. It was also said that as the margin of votes secured by the
respondent and the appellant was only 19 this was the result of grave
irregularities and illegalities and errors in the counting. A perusal of para 7
of the election petition clearly shows that all the allegations made by the
respondent were extremely vague, no particulars were given either of the
segments in which the voting was counted or number of tables which contained
the errors by the counting officers, no complaint was made to the Counting
Officers by the agents of the respondent when the counting was being done and
which according to the respondent was defective or faulty. The narrow margin
was attributed to grave 575 irregularities and illegalities. The statement of
the respondent in para 7 on this point may be quoted thus :- "The result
announced was neither true nor correct. It was the result of grave
irregularities and illegalities and errors in the counting. In the
circumstances the Returning Officer ought to have allowed and carried out a
re-count of the votes under Rule 63(3) of the Conduct of Election Rules,
In para 8 it was alleged that the appellant
was a Councillor and a former Chairman of the Mecheri Panchayat Union and the
counting staff consisted largely of the members of the staff of the aforesaid
union who owed their employment to the appellant. It was also alleged that the
counting staff did not remain seated but was moving about.
The appellant's brother who was the central
agent was moving about among all the tables all the time talking and
disturbing. Despite these serious allegations no complaint was made to the
counting staff at the spot by the respondent or his agent. It was further
alleged that several outsiders particularly one Perumal who was a contractor
for the Salem Steel Plant and treasurer of the Taluk Congress Committee, Mettur
constantly remained in the hall and were talking to the Returning Officer.
Thus, though not expressly but by implication, the respondent seemed to suggest
that the Returning Officer was influenced by Perumal.
Para 9 of the election petition is also
frightfully vague the relevant portion of which runs thus:- "The counting
was particularly faulty and unsatisfactory and defective during the 3rd round
and at tables No. 8 to 10, 13".
It was also alleged that Srinivasan was
consistently talking to Selvaraj during the counting. Several allegations
appear to have been made in paragraph 9 also regarding the influence exercised
by the appellant's brother Srinivasan but no complaint regarding this matter
was made to anybody and we shall presently show that even in the application
which the respondent filed before the Returning Officer most of the allegations
made by the respondent in the election petition are conspicuously absent.
In para 11 it was also stated that there was
no proper supervision of the counting staff nor a proper check up at all. There
was no test check or re-check of the votes by the Returning Officer.
Similarly, a number of vague allegations
regarding the manner and the time of counting were made in the petition.
The learned Judge after taking evidence and
hearing counsel for the parties dis-believed the case of the respondent almost
in its entirety but accepted just a fragmentary portion of the case of the
respondent. So far as the fact that the counting staff was sleepy or was
physically exhausted, this matter was not even mentioned in the petition. The
High Court after examining the contention of the parties, framed the following
preliminary issues in the case :
"(1) Should there be a scrutiny and
re-count of the ballot papers as claimed by the election petitioner ? (2) Is
the election of the returned candidate, the first respondent, liable to be
declared to be void ? (3) Is the election petitioner entitled to a declaration
that he himself has been duly elected ? and (4) To what relief ?" As
already indicated, the Court after framing the issues rejected the
recrimination petition filed by the appellant.
On the important allegation made by the
respondent at the time of counting Perumal was present and disturbing the
counting staff, it was disbelieved and the learned Judge observed as follows :
"After analysing the evidence of these
witnesses in this regard, I am inclined to take the view that Perumal's presence
inside the counting hall has not been established." Similarly, the
allegation that outsiders were allowed to enter the half was also disbelieved
thus :- "Even in the petition for recount there is no allegation that
unauthorised persons were allowed entry into the counting hall and that it has
affected the result of the counting. I have to therefore hold that there is no
violation of Rule 53 of the Conduct of Election Rules, 1961 as alleged by the
The ground that there was no test check or
proper scrutiny of doubtful votes was also rejected by the learned Judge and he
held that these allegations were not established.
Regarding the allegation that the appellant
was going round the hall openly announcing that a few votes were required for winning
the election was not proved. The learned Judge observed thus :
"I am, therefore, of the view that there
is no truth in the allegation made against R. W. 1 that he was going round the
hall by openly announcing that only a few votes were required by the first
respondent for winning the election".
577 Regarding the paucity of light the Judge
found that there were 7 tube lights and the complaint of the respondent that
there was no sufficient light to enable the counting staff to do their work was
clearly an after-thought. In this connection, the learned Judge observed as
follows :- "After analysing the evidence adduced on this aspect, I am of
the view that this complaint is purely an afterthought. If really the lighting
was poor, not only the petitioner but all the other candidates would have
complained even at the first instance to the Returning Officer".
Similarly, the allegation regarding the noise
and disorder alleged to have prevailed in the counting hall, the Judge held
that there was no acceptable evidence to prove these allegations.
Another serious allegation of partiality was
made by the respondent that most of the counting staff was directly connected
with the appellant was also disbelieved and the Judge observed thus :
"Even if the facts alleged by the
petitioner that some of the counting staff owed their appointment to the first
respondent and that they were working in the Panchayat Union Council in which
the first respondent was the Chairman are true, it will not automatically
amount to proof of the allegation of partiality. It has been pointed out time
and again by the Supreme Court that to tarnish the counting staff with bias or
partiality is easy for any party who challenges the election of a returned
candidate and that the Court should be reluctant to lend quick credence to the
mud of partiality slung at counting officials by desperate and defeated
candidates." The only ground which appears to have been accepted by the
learned Judge was that although there was no clear evidence of any irregularity
having been committed in the first two rounds there was a possibility that the
staff was completely exhausted and this may have led to erroneous sorting and
counting of votes. This was because, according to the learned Judge, the staff
started its work at 11 a.m.
on 14-6-77 and continued to work without rest
till about 3 a.m. on 15-6-77. They were provided with lunch in the afternoon of
14-6-77. It was also found by the judge that the counting staff was not
supplied with food in the night but was provided with tea at only 7 p.m. In
this connection, the learned Judge observed as follows :- "The next ground
urged by the petitioner is that the counting staff were sleepy, exhausted and
not alert during 578 the third round which was started after mid-night and
completed at 3 A.M. the next day and that as such there is definite possibility
of erroneous sorting and counting of votes during that round. Almost all the
petitioner's witnesses have deposed that the counting staff who began their
work of preliminary counting at 11 A.M. on 14-6-1977 continued to work without
any rest upto 3 A.M. the next day, that they were provided with lunch only on
the afternoon of 14-6-1977, that the counting staff were not supplied with food
during the night that they were provided with only tea at 7 p.m.
and therefore the counting staff were
completely exhausted and sleepy especially after midnight and that they were
not as vigilant and alert as they were during the first and second rounds of
counting. All the first respondent's witnesses also admitted that the counting
staff were not provided with food in the night but they were merely supplied
with tea at 7 P.M. and that they carried on the counting without any break till
the next day. Though the petitioner has not
established any specific instance of erroneous sorting and counting of votes
during the third round, general allegations have been made in the pleadings as
well as in the evidence adduced on behalf of the petitioner. There appears to
be considerable force in the submission of the petitioner in this regard".
In the first place the finding itself is
based purely on speculation. It is obvious that election being a technical
matter the authorities choose experienced persons to do the counting and take
every possible care to see that the members of the staff do not commit any
error. Moreover, the relief of re-counting cannot be accepted merely on the
possibility of their being an error. It is well-settled that such allegations
must not only be clearly made but also proved by cogent evidence. The Judge
himself holds that the respondent has not established any specific instance of
erroneous sorting and that the allegations made in the pleadings as well as in
the evidence are general yet he accepts the case of the respondent on such
insufficient and infirm evidence. Moreover, it would appear from the evidence
of P.W. 23 the witness for the respondent that the first round started at 5
p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended
at 11.30 p.m. and the third round started at 12 mid-night and ended at 2 a.m.
The witness was asked in cross-examination
whether he had complained to the counting staff at the spot and the witness
admitted that when he pointed out 579 the mistake it was rectified by the
counting staff. From the timings of the rounds it appears that there were
sufficient intervals between the three rounds, and, therefore, the question of
the staff being tired and exhausted did not arise. This finding of the learned
Judge, therefore, is against the weight of evidence and cannot be legally
supported. Moreover, as we have already pointed out that re- count should be
ordered not on possibility of errors but when the matter is proved with
Similarly, the learned Judge speculates that
there must have been lot of physical exertion and observed thus :- "It is
not possible to exclude the possibility of physical exertion on the part of the
counting staff especially after midnight when the third round of counting took
place. Having regard to the minimal difference in votes it has become necessary
to find out whether the third round of counting was carried on by the counting
staff properly. In the nature of things it is not possible to assume that all
the 72 persons were alert and attended to the process of counting with such
keenness as it deserved".
This finding is also based on pure
speculation and cannot be maintained.
Lastly, the learned Judge was greatly
influenced by the fact that the margin by which the appellant succeeded was
very narrow. This was undoubtedly an important factor to be considered but
would not by itself vitiate the counting of votes or justify re-counting by the
We would like to mention here that in fact
the respondent had made an application before the Returning Officer for
re-count but the actual application filed by the respondent has not been
produced for the reasons best known to the respondent. It appears from Annexure
II which is a certified copy of the order of the Returning Officer that three
grounds were taken before the Returning Officer by the, respondent. In the
first place, he expressed his suspicion that the votes would have been mixed
relating to Narayanan (Congress) and other candidates; (ii) that many votes
polled in his favour had been rejected, (iii) Postal ballots have been rejected
without sufficient reasons. It may thus be pertinent to note that Dr. Chitale,
learned counsel for the appellant's main plank of argument was that there was
overwhelming evidence to show that there were several counting errors at Tables
2, 3, 7, 9, 12, 15, 17, 8, 10, 13 particularly stress was laid on Tables 2, 4,
6, 8, 9, 10 and 13.
580 It was also said that despite protests
being made by the respondent's agents to the polling staff no action was taken
at all. Indeed, if this was so then we should have accepted such an allegation
being made prominently in the application given by the respondent to the
Returning Officer. The absence of any such allegation in the application of the
respondent before the Returning Officer clearly shows that this allegation was
clearly an after-thought and, therefore, no implicit reliance can be placed on
the oral evidence by the respondent before the court. It would thus be seen
that all the three grounds taken by the respondent before the Returning Officer
were absolutely vague and could not make out a case for re-counting by the
Returning Officer much less by the court. It may be relevant to note that in
the application filed by the respondent the question that the appellant
succeeded by a narrow margin was also not mentioned. On this application the
Returning Officer passed the following order:- "Under the above
circumstances he requested that a recount may be ordered and justice rendered.
The candidate, his election and counting agents were watching the process of
counting and no objection or complaint was raised by any of them during the
course of counting regarding any mistakes. The suspicion expressed by him that
many of the votes relating to him would have been included in the votes
relating to Narayanan and other candidates, is without basis and hence not
correct. All the doubtful votes were scrutinised by me in the presence of
candidates and their agents and orders passed. His version that many of the
votes in his favour were rejected is not correct since the scrutiny was done in
their presence. He has not made any specific mention about the round or table
to be recounted. The petitioner has requested recount in general of all the
votes polled for all candidates under the presumption that his ballot papers
would have been mixed up in other bundles.
His petition is frivolous and unreasonable.
This part of his request is therefore rejected." The law on the subject is
absolutely clear and while the learned Judge had relied on some of the
decisions of this Court he has failed to apply them correctly to the facts and
circumstances of this case. On the question of re- count as far back as in the
case of Ram Sewak Jadav v. Hussain Kamil Kidwai & Ors.(1) this Court pointed
out as follows :- 581 "But the Election Tribunal is not on that account
without authority in respect of the ballot papers. In a proper case where the
interests of justice demand it, the Tribunal may call upon the Returning
Officer to produce the ballot papers and may permit inspection by the parties
before it of the ballot papers." "An order for inspection may not be
granted as a matter of course; having regard to the insistence upon the secrecy
of the ballot papers, the Court would be justified in granting an order for
inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an
election contains an adequate statement of the material facts on which the
petitioner relies in support of his case; and (ii) the Tribunal is 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.
But an order for inspection of ballot papers
cannot be granted to support vague pleas made in the petition not supported by
material facts or to fish out evidence to support such pleas. The case of the
petitioner must be set out with precision supported by averments of material
facts. To establish a case so pleaded an order for inspection may undoubtedly,
if the interests of justice require, be granted. But a mere allegation that the
petitioner suspects or believes that there has been an improper reception,
refusal or rejection of votes will not be sufficient to support an order for
"Therefore a candidate who seeks to
challenge an election on the ground that there has been improper reception
refusal or rejection of votes at the time of counting, has ample opportunity of
acquainting himself with the manner in which the ballot boxes were scrutinized
and opened, and the votes were counted. He has also opportunity of inspecting
rejected ballot papers, and of demanding a re-count. It is in the light of the
provisions of s. 83(1) which require a concise statement of material facts on
which 582 the petitioner relies and to the opportunity which is defeated
candidate had at the time of counting, of watching and of claiming a recount
that the application for inspection must be considered".
To the same effect is a later decision of
this Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh.(1) In the
case of Jitendra Bahadur Singh v. Krishna Behari & Ors.(2) this Court
observed as follows:- "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
"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".
In Halsbury's Laws of England (Vol. 14 at
page 310 paragraph 599), it is observed:
"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".
583 Similarly, Fraser in his Law of
Parliamentary Elections and Election Petitions at p. 222 observed thus:-
"A strong case must be made on affidavit before an order can be obtained
for inspection of ballot papers or counterfoils".
In the case of Baldev Singh v. Teja Singh
Swatantar (Dead) & Ors.(1) Krishna Iyer, J. speaking for the Court observed
as follows:- "Disingenuous averments do not promote prospects of judicial
recount and will be dismissed as devices to comply with requirements suggested
in some ruling or other".
"Where the margin of difference is
minimal, the claim for a fresh count cannot be summarily brushed aside as
futile or trumpery".
"If formal defects had been misconstrued
at some table as substantial infirmities, or vice versa, resulting in wrongful
reception or rejection, the sooner it was set right the better, especially when
a plea for a second inspection had been made on the spot.
Many practical circumstances or legal
misconceptions might honestly affect the legal or arithmetical accuracy of the
result and prestige or fatigue should not inhibit a fresh, may be partial,
check. Of course, baseless or concocted claims for recount or fabricated
grounds for inspection or specious complaints of mistakes in counting when the
gap is huge are obvious cases of frivolous and unreasonable demands for
recount. Malafide aspersions on counting staff or false and untenable
objections regarding validity of votes also fall under the same category. We
mean to be illustrative, not exhaustive, but underline the need, in appropriate
case, to be reasonably liberal in re- check and re-count by Returning Officers.
After all, fairness at the polls must not only be manifest but misgiving about the
process must be erased at the earliest. Indeed, the Instructions to Officers
are fairly clear and lay down sound guidelines".
Reliance was placed by the High Court on an
observation of Krishna Iyer, J. in this case that where the margin of
difference is minimal the claim for the fresh poll cannot be summarily brushed
aside. In the first place, this observation was really meant for the Returning
Officer because at the time when request for re-count to 584 the Returning
Officer is made the electoral process is still continuing and if there are any
counting errors they can be rectified before the election process is complete.
This however cannot apply to the Court while dealing with an election petition
because if a re-count is ordered at that stage then the electoral process has
to be restarted afresh.
In our country the election is an extremely
expensive process and unless very clear case for recount is made out the
candidates should not be put to unnecessary trouble and expense. Moreover, in
the case of Ram Autar Singh Bhadauria v. Ram Gopal Singh & Ors.(1) this
Court to which Krishna Iyer, J. himself was a party observed:
"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) fell under s.100(1) (d) (iii) of the Act".
Similarly in the case of Chanda Singh v.
Choudhary Shiv Ram Verma(2) this Court observed as follows:- "A democracy
runs smooth on the wheels of periodic and pure elections. The verdict at the
polls announced by the Returning Officers lead 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 585 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 case of Beliram Bhalaik v. Jai
Beharilal Khachi and Anr.(1) this Court again reiterated the same principles in
the following words:- "A whimsical and bald statement of the candidate
that he is not satisfied with the counting is not tantamount to a statement of
the "grounds" within the contemplation of Rule 63(2). The application
was thus not a proper application in the eye of law. It was not supplemented
even by an antecedent or contemporaneous oral statement of the author or any of
his agents with regard to any irregularities in the counting. It was liable to
be rejected summarily under sub-rule (3) of Rule 63 also".
"Although no cast-iron rule of universal
application can be or has been laid down, yet from a breadroll of the decisions
of this court two broad guidelines are discernible; that the court would be
justified in ordering a recount or permitting inspection of the ballot papers
only where (i) all the material facts on which the allegations of irregularity
or illegality in counting are founded, are pleaded adequately in the election
petition, and (ii) the Court/Tribunal trying the petition is prima facie
satisfied that the making of such and order is imperatively necessary to decide
the dispute and to do complete and effectual justice between the parties".
Finally, the entire case law on the subject
regarding the circumstances under which re-count could be ordered was fully
summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind
& Ors. (2) to which one of us (Fazal Ali, J.) was a party and which may be
extracted thus:- "The Court would be justified in ordering a recount of
the ballot papers only where:
(1) The election petition contains an
adequate statement of all the material facts on which the allegations of irregularity
or illegality in counting are founded;
586 (2) On the basis of evidence adduced such
allegations are prima facie established, affording a good ground for believing
that there has been a mistake in counting; and (3) The court trying the
petition is prima facie satisfied that the making of such an order is
imperatively necessary to decide the dispute and to do complete and effectual
justice between the parties." Thus, on a consideration of the principles
deduced from the authorities mentioned above and the evidence led in this case
by the parties, we are satisfied that this was not a case in which a re-count
should have been ordered by the learned Judge.
For these reasons, Civil Appeal No. 524 of
1978 is allowed with costs throughout and the order passed by the High Court
setting aside the election of the appellant and declaring the respondent to be
elected is hereby quashed. In this view of the matter no order need be passed
in Civil Appeal No. 588 of 1978 in view of the order passed by us in Civil Appeal
No. 524 of 1978.
P.B.R. Appeal allowed.