Arun Kumar Bose Vs. Mohd. Furkan
Ansari & Ors [1983] INSC 133 (28 September 1983)
MISRA RANGNATH MISRA RANGNATH SEN, AMARENDRA
NATH (J)
CITATION: 1983 AIR 1311 1984 SCR (1) 118 1984
SCC (1) 91 1983 SCALE (2)483
CITATOR INFO :
R 1984 SC 135 (8) F 1985 SC 150 (26,28) D
1986 SC1534 (11) RF 1987 SC 831 (7)
ACT:
Representation of the People Act. 1951-Sec.
81 read with sec. 83(1)(a)-Election Petition to contain concise statement of
facts-Scope of. Sec. 97-When applicable- Recrimination proceedings-Necessity of
making recrimination when additional relief under sec. 101 claimed.
Conduct of Election Rules, 1961-Rule 38(1)
read with rule 56(2)-Interpretation of-Proviso to rule 56(2) when applicable.
Presiding officer absent from place of poll-Did not sign ballot papers-Whether
constitutes failure to sign ballot papers.
HEADNOTE:
The first respondent who lost to the
appellant by 24 votes in the Assembly Elections filed an election petition in
the High Court under s. 81 of the Representation of the People Act, 1951 asking
for the appellant's election to be set aside and for declaration that he should
be declared as the successful candidate. In para 9(i) of the petition the
respondent pleaded that 74 ballot papers cast in his favour were wrongly
rejected on the ground that they did not contain the signature of the Presiding
Officer. The High Court ordered inspection of these ballot papers. The High
Court held that the rejection of these 74 ballot papers for want of the
Presiding Officer's signature was not justified and gave the respondent No. 1
credit of all those votes and on that basis while setting aside the election of
the appellant, declared the first respondent to have been duly elected. Hence
this appeal. The appellant urged that the pleading in para 9(i) of the Election
petition did not amount to a concise statement of the material facts as
required by law; the High Court went wrong in allowing inspection of the ballot
papers; the 74 ballot papers in dispute did not contain the signature of the
presiding officer and were rightly rejected at the counting in view of the
mandatory provision in rule 56(2) of the Conduct of Elections Rules, 1961 and
the High Court's view that in the absence of a prayer for recrimination under
s. 97 of the Act, the appellant was precluded from asking for a recount of the
other rejected ballot papers is not tenable in law.
Dismissing the appeal, HELD: An election
petition is presented in terms of s. 81 of the Act. Section 83 prescribed as to
what the petition should contain. Clause (a) of sub-s. (1) of s. 83 states that
an election petition shall contain a concise statement of the material facts on
which the petitioner relies. In the instant 119 case the number of ballot
papers alleged to have been wrongly rejected has been furnished, the counting
table number has been given, the booth number has also been disclosed and the
ground for rejection has even been pleaded. The only specific detail which was
wanting was the serial number of the ballot papers. This particular was not
available to the election petitioner in spite of attempts made on his behalf.
The Court, therefore, agrees with the High Court that in the facts and
circumstances of the case the pleading in paragraph 9(i) set out the material
facts in a proper way and no defect can be found with it. The High Court had
rightly ordered the inspection of the ballot papers. [126 B-C; H; 127 A; 128
F-G; 127 F] Samant N. Balakrishan etc., v. George Fernandez and Ors, etc.,
[1969] 3 S.C.R. 603 explained and distinguished, Bhabhi v. Sheo Govind and
Ors., [1975] Suppl. S.C.R. 202, referred to.
Rule 38(1) of the Conduct of Election Rules,
1961 provides inter alia that every ballot paper before it is issued to an
elector shall be stamped on the back with a distinguishing mark and shall be signed
in full on its back by the presiding officer. The distinguishing mark can be
put by anyone but the signature has got to be of the presiding officer and
obviously he has to personally do that job. Rule 56(2)(h) provides that the
returning officer shall reject a ballot paper if it does not bear both the
distinguishing mark and the signature as mentioned in sub-rule (1) of rule
38. There is a proviso to sub-rule (2) of
rule 56 which says that where the returning officer is satisfied that any such
defect as is mentioned in 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. The proviso, once it is
applicable is a mandate that the ballot paper is not to be rejected. [129 F-G;
130 G; 129 E-F; 130 E; 131 H] In the instant case the 74 ballot papers in
dispute were rejected because they did not contain the signature of the
presiding officer as required under rule 38(1). To see whether the proviso to
sub-rule (2) of rule 56 was applicable, it has to be found out whether the
absence of the signature of the presiding officer on these ballot papers was on
account of mistake or of his failure. On the submissions at the bar, the
question of mistake does not arise. It was the obligation of the presiding
officer to put his signature on the ballot papers before they were issued to
the voters. Every voter has the right to vote and in the democratic set up
prevailing in the country no person entitled to share the franchise can be
denied the privilege.
Nor can the candidate be made to suffer.
Keeping this position in view the Court is of the definite view that the
present case is one of the failure on the part of the presiding officer, who
had been taken ill on the date of poll and was away from the place of polling
for quite some time, to put his signature on those ballot papers so as to
satisfy the requirement of law. The ballot papers therefore were not liable to
be rejected as the proviso applied and the High Court came to the correct
conclusion in counting these ballot papers and giving credit thereof to the
respondent No. 1. [130 C; F-G; 131 F-H; 130 H; 131 E; H; 132 A] 120 In a case
in which the election petition claims that the election of the returned
candidate is void, and also asks for a declaration that the petitioner himself
or some other person has been duly elected, s. 100 as well as s. 101 of the Act
would apply, and it is in respect of the additional claim for such declaration
that s. 97 comes into play. Section 97(1) thus allows the returned candidate to
recriminate and raise pleas in support of his case that the other person in
whose favour a declaration is claimed by the petition cannot be said to be
validity elected, and these would be pleas of attack and it would be open to
the returned candidate to take these pleas, because when he recriminates, he
really becomes a counter-petitioner challenging the validity of the election of
the alternative candidate. The result of s. 97(1) therefore is that in dealing
with a composite election petition, the Tribunal enquires into not only the
case made out by the petitioner, but also the counter-claim made by the
returned candidate.
That being the nature of the proceedings
contemplated by s. 97(1), it is not surprising that the returned candidate is
required to make his recrimination and serve notice in that behalf in the
manner and within the time specified by s. 97(1) proviso and s. 97(2). If the
returned candidate does not recriminate as required by s. 97, then he cannot
make any attack against the alternative claim made by the petition. [135 A-F]
Kum. Shradha Devi v. Krishna Chandra Pant & Ors., [1982] 3 S.C.C. 389;
Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54 and P. Malaichami v. M. Andi
Ambalam & Ors. [1973] 3 S.C.R. 1016 referred to.
In the instant election petition two reliefs
had been claimed, firstly, for setting aside the election of the returned
candidate, i.e. the appellant, and secondly, for a declaration that the
election petitioner (respondent No. 1) was the duly elected candidate. The
relief claimed was in terms of s. 100(1)(d) (iii) and s. 101(a) of the Act.
Admittedly no application for recrimination
was filed by the appellant. In the absence of a recrimination petition conforming
to the requirement of section 97 of the Act the appellant who happens to be an
advocate and is presumed to know the law, was not entitled to combat the claim
of the election petitioner on the ground that if the remaining rejected ballot
papers had been counted the election petitioner would not have been found to
have polled the majority of the valid votes. [132 D-E; 133 A; 138 C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2618 of 1983.
From the Judgment and Order dated the 18th
January, 1983 of the Patna High Court in Election Petition No. 15 of 1980.
S. Rangarajan, D. P. Mukherjee, G. S.
Chatterjee and R. P. Singh for the Appellant.
S. S. Ray, M. P. Jha and Ms. Mridula Ray for
the Respondents.
121 The Judgment of the Court was delivered
by RANGANATH MISRA, J. This appeal under section 116A of the Representation of
the People Act, 1951 ('Act' for short), is directed against the decision of the
High Court at Patna setting aside the appellant's election to the Bihar
Legislative Assembly from 115 Jamtara Assembly Constituency polling for which
was held on May 31, 1980, and the result of which was declared on June 2,1980.
Sixteen candidates being the appellant and the 15 respondents contested the
election. The appellant was the candidate of the Communist Party of India and
respondent No. 1 was of the Congress (I) Party. At the poll the appellant
received 13336 votes while the respondent No. 1 polled 13312 votes. The
appellant was, therefore, declared elected on the footing that he had received 24
more votes than the respondent no. 1. Respondent no, 2 had polled 13285 votes.
As the election dispute has been confined to the appellant and respondent no. 1
it is not necessary to refer to the other candidates or indicate particulars of
their performance at the election. Respondent No. 1 filed an election petition
under s. 81 of the Act asking for the appellant's election to be set aside and
for a declaration that he should be declared as the successful candidate. In
paragraph 9 of the election petition he pleaded the details of the illegalities
and irregularities committed in the course of counting of ballot papers. It is
not necessary to refer to the other details excepting what was pleaded in
paragraph 9(i) as respondent no. 1 did not press the election petition on those
grounds. The pleading in the sub-paragraph was to the following effect.
"On table No. 10 booth No. 10 (Fukbandi
Primary School) 74 ballot papers of the petitioner were wrongly rejected on the
ground that they did not contain the signature of the Presiding Officer.
Similarly 31 ballot papers of the petitioner were rejected on different tables
on the ground that they do not contain the signature of the Presiding Officer.
The aforesaid ballot papers were rejected by the Assistant Returning Officer
inspite of the objections raised by the petitioner and his counting
agents." It is appropriate to indicate here that the High Court did not
take into account the plea in regard to 31 ballot papers in the absence of
particulars. The appellant in his written statement 122 before the High Court
pleaded that the statements contained in paragraph 9 and its sub-paragraphs
were vague and incorrect. In paragraph 16 of the written statement it was
stated:
"During course of counting no illegality
or irregularity of any kind was committed; rather the same was held in proper,
legal and orderly manner, nor any such imaginary illegality was pointed out or
any objection was raised on behalf of the petitioner." In paragraph 17 it
was further pleaded that "the statement contained in paragraph No. 9(i) of
the election petition is wrong. It is false to say that the ballot papers were
rejected only on the ground of want of signature of the Presiding Officer. The
fact is that the Assistant Returning Officer, who was duly appointed, after
fully applying his mind and finding nearly 95 ballot papers of booth no. 10 to
be spurious and not genuine and after giving cogent, legal and satisfactory
reasons, rejected the ballot papers. The petitioner has suppressed the fact that
besides his 74, 31 ballot papers of other contesting candidates including 3 of
the respondent no. 1 were also rejected for not bearing signature of the
Presiding Officer and the distinguishing mark of the polling station No.
10." In paragraph 18 of the written statement the appellant pleaded that:
"With reference to the contents of
paragraph no. 9(i) of the Election Petition, the respondent no.1 further begs
to submit that counting of ballot papers of booth no. 10 was completed before
12 noon in the very first round and the petitioner secured 3160 votes in that
round while the respondent no. 1 could get only 484 and one Parmanand Mishra
got 1172 votes. Neither the petitioner nor his election agents nor counting
agents, all of whom were present in the counting hall, did raise any objection
at the time of rejection of the ballot papers or for the whole day rather they
accepted the position that those ballot papers were rightly rejected being
spurious and not genuine. However, after announcement of the votes of last
round and conclusion of counting of the votes and completion and submission of
result sheet in Form 20 by the Assistant Returning Officer to the Re- 123
turning Officer, the petitioner having lost the election by a small margin lost
all his senses and like a drowning man catching the last straw, made out a
false case of illegality in counting and thus on 2.6.1980 at 1.50 a.m. for the
first time raised an objection by filing a petition which was frivolous in
nature to count the rejected ballot papers in his favour".
After the evidence of both parties had been
recorded, on February 19, 1982, the learned trial Judge made the following
order:- "Having considered the arguments of learned counsel for the
parties and the materials on the record and in view of the decisions referred
to above, I am satisfied that the petitioner in his election petition has given
adequate statements of material facts on which he relies in support of his case
and has made out prima facie case for inspection of the ballot papers which
have been cast in his favour and rejected.
Without expressing any opinion regarding the
merit of the claim of the parties, I am of the view that in order to decide the
dispute and to do justice between the parties inspection of ballot papers is
necessary.
I, therefore, direct that all those ballot
papers which have been cast in favour of the petitioner and rejected by the
Returning Officer at the time of counting, i.e. 74 of Fukbandi Booth No. 10 and
31 of other booths, should be inspected by learned counsel for the parties in
presence of a responsible officer of the Court." The appellant sought to
challenge this order by moving an application under Article 136 of the
Constitution before this Court but that was rejected. On April 14, 1982, the
learned trial Judge on a petition of the appellant for clarification of the
order dated February 19, 1982, made the following direction:
"In my opinion, there is no ambiguity in
the order passed by this Court on 19.2.82, yet objection has been raised for
which there is no basis. However, learned counsel for the petitioner has
submitted that he would be quite satisfied if only 74 rejected ballot papers
from 124 booth No. 10 Fukbandi booth are inspected. Let inspection of only 74
rejected ballot papers from Booth No. 10 Fukbandi booth be made." The
learned trial Judge after inspection of the ballot papers and upon hearing
counsel for the parties, came to hold that the rejection of these 74 ballot
papers for want of the Presiding Officer's signature was not justified and gave
the election petitioner credit of all those votes. On that basis he came to
hold that the respondent no. 1 had received the majority of the valid votes
polled at the election (the excess being 50) and while setting aside the
election of the appellant, declared the respondent no. 1 to have been duly
elected. This decision is assailed in appeal.
Mr. Rangarajan in support of the appeal has
taken the stand that: (i) the particulars furnished in paragraph 9 of the
election petition were inadequate and fall short of the requirements of the
law; (ii) inspection of the ballot papers should not have been granted and even
on inspection, the 74 ballot papers were not available to be counted in favour
of respondent no. 1; (iii) if inspection was to be granted and credit was to be
given of rejected ballot papers, all the 954 ballot papers should have been
scrutinised and the examination for recount should not have been confined to 74
only; and (iv) the view taken by the learned trial Judge of the High Court that
in the absence of a prayer for recrimination under s. 97 of the Act, the
appellant was precluded from asking for a recount of the other rejected ballot
papers is not tenable in law.
Before entering into an examination of the
tenability of these contentions, it would be proper to take note of the
decision in the case of Jagan Nath v. Jaswant Singh & Ors., of a five Judge
Bench of this Court. Mahajan, C.J. spoke for the Court thus:
"The general rule is well settled that
the statutory requirements of election law must be strictly observed and that
an election contest is not an action at law or a suit in equity but is a purely
statutory proceeding unknown to the common law and that the Court possesses no
common law power." 125 What was said in Jagan Nath's case continues to be
the law binding this Court and in the recent case of Jyoti Basu & Ors. v.
Debi Ghosal & Ors, this Court reiterated the position by saying:
"A right to elect, fundamental though it
is to democracy, is, anomalously enough, neither a fundamental right nor a
Common Law Right. It is pure and simple, a statutory right. So is the right to
be elected. So is the right to dispute an election.
Outside of statute, there is no right to
elect, no right to be elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory limitation. An election
petition is not an action at Common Law, nor in equity. It is a statutory
proceeding to which neither the common law nor the principles of equity apply
but only those rules which the statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts familiar to Common Law and
Equity must remain strangers to Election Law unless statutorily embodied. A
Court has no right to resort to them on considerations of alleged policy
because policy in such matters, as those, relating to the trial of election
disputes, is what the statute lays down. In the trial of election disputes,
Court is put in a straight jacket. Thus the entire election process commencing
from the issuance of the notification calling upon a constituency to elect a
member or members right up to the final resolution of the dispute, if any,
concerning the election is regulated by the Representation of the People Act,
1951, different stages of the process being dealt with by different provisions
of the Act. There can be no election to Parliament or the State Legislature
except as provided by the Representation of the People Act, 1951, and again, no
such election may be questioned except in the manner provided by the
Representation of the People Act. So the Representation of the People Act has
been held to be a complete and self-contained code within which must be found
any right claimed in relation to an election or an election dispute." 126
We are bound by the decision of the larger Bench and we are in agreement with
what has been said in Jyoti Basu's case.
The first question to consider is, whether
the pleading in paragraph 9(i) of the election petition was adequate in view of
the provisions of the Act. Section 94 of the Act provides for secrecy of
voting. Detailed provisions have been made in the Conduct of Election Rules,
1961, to give effect to this wholesome provision contained in s. 94. An
election petition is presented in terms of s. 81 of the Act.
Section 83 prescribes as to what the petition
should contain. Sub-section (1) (a) of s. 83 states that an election petition
shall contain a concise statement of the material facts on which the petitioner
relies. Since there is no allegation of any corrupt practice in this case there
is no necessity to refer to clause (b) of sub-s. (1) of s. 83. Though initially
Mr. Rangarajan had contended that the verification was not in accordance with
law, he has abandoned this contention during the hearing in view of the
statutory form of verification prescribed and the verification in the instant
case conforms to it. According to Mr. Rangarajan the pleading in paragraph 9(i)
does not amount to a concise statement of the material facts.
Appellant's learned counsel has placed
reliance on the observation in Samant N. Balakrishna etc. v. George Fernandez
& Ors. etc., where, with reference to s. 83 of the Act it has been said
that the petition must contain a concise statement of the material facts on
which the petitioner relies and the fullest possible particulars should be
given. Material facts and material particulars may overlap. Balakrishna's case
where Hidayatullah, C.J. made these observations was one where allegations of
corrupt practice had been made and the case came under s. 83(1) (b) of the Act.
Obviously, allegations of corrupt practice being in the nature of a criminal
charge, the Act requires full particulars to be given. The scheme in s. 83(1)
of the Act makes the position very clear. Clause (a) refers to general
allegations and requires a concise statement of material facts to be furnished
while clause (b) referring to corrupt practice requires all details to be given.
Appellant's counsel, therefore, was not entitled to rely upon the proposition
in Balakrishna's case for the present purpose.
So far as averment in paragraph 9(1) of the
election petition is concerned, we find that the number of ballot papers
alleged to have been wrongly rejected has been furnished, the counting table
number has been given, the booth 127 number has also been disclosed and the
ground for rejection has even been pleaded. Respondent No. 1 pleaded that the
particulars of the ballot papers could not be obtained as during counting they
were not shown. His counting agent at table no. 10 has been examined as his
witness No. 3. He has stated:
"The ballot box of Fukbandi booth No. 10
was brought on my table and it was intact. That ballot box contained some
ballot papers which were not bearing signature of the Presiding Officer. I
raised objection in respect of those ballot papers that they should not be
treated as doubtful ballot papers to be sent to the Returning Officer. Counting
Supervisor did not listen to my protest and sent them to the Returning Officer
as doubtful ballot papers. There were 74 such ballot papers." The
Assistant Returning Officer was examined as RW. 4 on behalf of the appellant.
In his evidence he stated that he had rejected some ballot papers of booth no.
10. He again stated that "counting agents of candidates were not allowed
to note down the serial numbers of the ballot papers. In view of the statement
of the counting agent of respondent no.1 and the evidence of the Assistant Returning
Officer there can be no scope to doubt, and in our view the High Court was
right in taking the view, that the particulars of the rejected ballot papers
were not available to the counting agents and, therefore, particulars of the
numbers of the ballot papers had not been given in the election petition. We
agree with the High Court that in the facts and circumstances of the case the
pleading in paragraph 9(1) set out the material facts in a proper way and no
defect can be found with it.
Mr. Rangarajan next canvassed that the High
Court went wrong in allowing inspection of the ballot papers. Reliance was
placed on the decision of this Court in the case of Bhabhi v. Sheo Govind &
Ors., where it has been held that the following conditions were imperative
before the Court could grant inspection or sample inspection of ballot papers:
(1) That it is important to maintain the
secrecy of the ballot which is sacrosanct and should not be allowed 128 to be
violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the
allegations made against the elected candidate must be clear and specific and
must be supported by adequate statement of material facts;
(3) The Court must be prima facie satisfied
on the materials produced before the Court regarding the truth of the
allegations made for a recount.
(4) That the discretion conferred on the
Court should not be exercised in such a way so as to enable the applicant to
indulge in a roving inquiry with a view to fish materials for declaring the
election to be void; and (5) That on the special facts of a given case sample
inspection may be ordered to lend further assurance to the prima facie
satisfaction of the Court regarding the truth of the allegations made for a
recount, and not for the purpose of fishing out materials." We have
already pointed out that the allegations made in paragraph 9(i) of the election
petition were clear and definite. On the facts of the case the plea was
confined to one aspect, viz., for want of the Presiding Officer's signature
with reference to 74 ballot papers cast at a particular booth and counted on a
particular table the same had been rejected. The only specific detail which was
wanting was the serial number of the 74 ballot papers. We have, on the evidence
recorded in the case, come to the conclusion that this particular was not
available to the election petitioner in spite of attempts made on his behalf.
While we agree with the view expressed in
Bhabi's case, on the facts before us we are inclined to think that inspection
had rightly been ordered. Mr. Ray for respondent no.1 pressed before us the
fact that the order of the High Court allowing inspection had been questioned
before the Court and no interference was made. Appellant's counsel on the other
hand contended that as the application under Article 136 of the Constitution
had not been disposed of on merits, this aspect was open to 129 challenges in
regular appeal under s. 116A of the Act. It is unnecessary to refer further to
the consequences of non- interference by this Court on the earlier occasion as
on the facts we are satisfied that the action of the High Court in allowing
inspection is not open to dispute. A number of authorities were cited by Mr.
Rangarajan in support of his contention that inspection should not have been
granted.
Since Bhabhi's case has considered most of
the cases relied upon by Mr. Rangarajan and tests have been laid down to which
reference has been made by us, we see no necessity to independently refer to
and deal with the other cases.
The 74 ballot papers which had been rejected
were placed before us during the hearing. In the election petition it has been
contended that the rejection was only on one ground, viz., absence of the
signature of the Presiding Officer. The appellant in his written statement had
taken the stand that the identifying mark was also wanting. The ballot papers
have been scrutinised by us as also by learned counsel for both the parties.
Mr. Rangarajan has conceded on seeing the ballot papers that each of them bears
the mark. Admittedly none of them contains the signature of the Presiding
officer. Rule 56 of the Conduct of Election Rules; 1961, makes detailed
provision for counting of votes. Sub-rule (2) requires the Returning Officer to
reject a ballot paper when any of the seven infirmities indicated therein is
found. In view of the contentions advanced before us the relevant infirmities
would be as provided in sub-clause (e), i.e. the ballot paper is a spurious one
and (h), i.e. 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. Rule 38(1)
provides:
"Every ballot paper before it is issued
to an elector, and the counterfoil attached thereto shall be stamped on the
back with such distinguishing mark as the Election Commission may direct, and
every ballot paper, before it is issued, shall be signed in full on its back by
the Presiding Officer." There 74 ballot papers cast in favour of the
respondent No. 1 which have been rejected were in two series, 24 in one and 50
in the other. Though the Assistant Returning Officer had stated that according
to him these were spurious, he has in his cross-examination clarified the
position that by spurious' he meant that the ballot 130 papers did not contain
the signature of the Presiding Officer. That these ballot papers were used at
the election in booth no. 10 is not open to doubt in view of the ballot paper
account for this booth. That shows that 810 ballot papers in all had been
received being from serial nos. 006851 to 007660. 424 ballot papers were used
and ballot papers of the same number had been found in the ballot box and duly
accounted for. The numbers of the ballot papers including the 74 in dispute are
covered by the particulars of used ballot papers given in the ballot paper
account which is Ext. 2 in the case. The Presiding Officer himself has proved
this document. The report made by the Returning Officer to the Election
Commission Ext. A also shows that the ballot papers were not spurious. There is
sufficient evidence on record from which it can be concluded that the rejection
of these 74 ballot papers was on account of the fact that they did not contain
the signature of the Presiding Officer as required under rule 38(1). Mr. Rangarajan
is right in his submission that if a ballot paper does not contain the
signature of the Presiding Officer it has got to be rejected at the counting in
view of the mandatory provision in rule 56(2) of the Conduct of Election Rules.
The point for consideration now is whether the proviso which reads as follows
was applicable:
"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".
On the submissions at the Bar, the question
of mistake does not arise. It has to be found out whether these 74 ballot
papers in dispute did not contain the signature of the Presiding Officer on
account of his failure. Rule 38 makes it clear that the distinguishing mark and
the signature of the Presiding Officer have to be put on the ballot paper
before the same is issued to the voter at the booth. The distinguishing mark
can be put by anyone but the signature has got to be of the Presiding Officer
and obviously he has to personally do that job. There is evidence that the
Presiding Officer had been taken ill on the date of poll. He has been examined
as PW2. From his evidence it appears that this was his first experience as a
Presiding officer of a booth. He has stated: "On the day of poll my bowls
was upset and I had visited the pokhra (tank) once on the day of 131 poll and
during that period all the ballot papers were kept on the table. I had not put
my signature on all the ballot papers. I had deputed one of the polling
officers at the booth to watch the ballot papers when I had gone to the pokhra.
For 5 to 10 minutes that I was absent from the polling booth on the day of
poll, I cannot say what had happened during that period." The appellant
had cross- examined this witness and suggested to him that he had gone to
attend to the call of nature three or four times. The appellant's witness No. 2
who was also a candidate at the election (and is a respondent here) has stated:
"I found the Presiding Officer at booth
no. 10 sleeping under a Neem tree at some distance from the booth when I
visited the booth in the noon." Once it is held that the 74 ballot papers
were not spurious, and had been issued to the voters at the booth in the course
of the poll, it would be reasonable to presume that the ballot papers had been
issued to the voters without signatures of the Presiding Officer though the
distinguishing mark had been put. The absence of the Presiding Officer from the
place of poll has clearly been established. Whether it was for 5 to 10 minutes
as deposed by him or it was no three or four occasions as suggested to him in
cross-examination or for a good length of time during which he was having a nap
under a neem tree as deposed to by RW. 2, it is clear that he was away from the
place of polling for quite some time. The polling process must have continued
and voters who came during his absence had obviously been issued these unsigned
ballot papers. If the facts be these, would it not be a case of failure of the
Presiding Officer to put his signatures on the ballot papers is the question
for consideration. It was the obligation of the Presiding Officer to put his
signature on the ballot papers before they were issued to the voters. Every
voter has the right to vote and in the democratic set up prevailing in the
country no person entitled to share the franchise can be denied the privilege.
Nor can the candidate be made to suffer. Keeping this position in view, we are
of the definite view that the present case is one of failure on the part of the
Presiding Officer to put his signature on those ballot papers so as to satisfy
the requirement of law.
The proviso, once it is applicable, has also
a mandate that the ballot paper is not to be rejected. We, therefore, hold that
the ballot papers were not liable to be rejected as the proviso applied and the
High Court, in our opinion, came to the 132 correct conclusions in counting
these ballot papers and giving credit thereof to the respondent no. 1.
The next question for consideration is as to
whether all the ballot papers which were rejected in the constituency should
have been allowed to be inspected and recounted on the basis of inspection or
should the inspection have been confined to 74 ballot papers as done.
This question is connected with the fourth
contention of the appellant's counsel, i.e. whether in the absence of a
recrimination the appellant who was the returned candidate, could claim that
the election petitioner would not succeed for the additional relief as he had
not received the majority of the votes polled at the election. We have already
indicated that the appellant as the elected candidate in his written statement
had pleaded that the counting was in accordance with law and not objectionable.
The effect of such a plea is that the ballot
papers which had been cast in his favour but credit had not been given thereof
had been validly rejected. In the election petition two reliefs had been
claimed, firstly, for setting aside the election of the returned candidate,
i.e. the appellant, and secondly, for a declaration that the election
petitioner (respondent no. 1) was the duly elected candidate. The relief
claimed was in terms of s. 100(1) (d) (iii) and s. 101 (a) of the Act. The
election petitioner had claimed that there was improper rejection of votes cast
in his favour and that he had received a majority of the valid votes at the
election. The Act makes in s. 97 provision for recrimination. Sub-section(1) of
that section which is material reads thus:
"When in an election petition a
declaration that any candidate other than the returned candidate has been duly
elected is claimed, the returned candidate or any other party may give evidence
to prove that the election of such candidate would have been void if he had
been the returned candidate and a petition had been presented calling in
question his election:
Provided that the returned candidate or such
other party, as aforesaid shall not be entitled to give such evidence unless he
has, within fourteen days from the date of commencement of the trial given
notice to the High Court of his intention to do so and has also given the
security and the further security referred to in sections 117 and 118
respectively." 133 Admittedly no application for recrimination was filed.
Mr. Rangarajan has strenuously contended that
keeping the scheme and the purpose of the law in view, in a case of this type
refusal to count the other rejected ballot papers on the plea of non-filing of
a recrimination petition would lead to injustice. We have already indicated the
pronounced view of this Court in Jagan Nath's case which has been followed
throughout and the last in series is the case of Jyoti Basu to which also we
have adverted. There is no scope for equity since the entire gamut of the
process of election is covered by statute. Reliefs as are available according
to law can only be granted. It is true that in Kum. Shradha Devi v. Krishna
Chandra Pant & Ors., it has been observed:
"If the allegation is of improper
rejection of valid votes which is covered by the broad spectrum of scrutiny and
recount because of miscount, petitioner must furnish prima facie proof of such
error. If proof is furnished of some errors in respect of some ballot papers,
scrutiny and recount cannot be limited to those ballot papers only. If the
recount is limited to those ballot papers in respect of which there is a
specific allegation of error and the correlation is established, the approach
would work havoc in a parliamentary constituency where more often we find
10,000 or more votes being rejected as invalid. Law does not require that while
giving proof of prima facie error in counting each head of error must be tested
by only sample examination of some of the ballot papers which answer the error
and then take into consideration only those ballot papers and not others. This
is not the area of enquiry in a petition for relief of recount on the ground of
miscount." These observations came not in a case to which s. 97 of the Act
applied. This Court was considering a case of recount simpliciter. The position
of law as to the imperative necessity of a recrimination in cases as before us
is well settled. A Five Judge Bench in Jabar Singh v. Genda Lal, examined at
length the provisions of s. 100 and s. 97 of the Act. That was a case where the
difference was of two votes and as application had been made asking for reliefs
both 134 under s. 100(1) (d) (iii) as also s. 101. In that background the
question for consideration was whether in the absence of a petition for
recrimination relief could be granted.
Gajendragadkar, J. (as the learned Judge then
was), spoke for himself and three other learned Judges. In the majority
judgment it was held:
"Confining ourselves to clause (iii) of
s. 100(1) (d), what the Tribunal has to consider is whether there has been an
improper reception of votes in favour of the returned candidate. It may also
enquire whether there has been a refusal or rejection of any vote in regard to
any other candidate for whether there has been a reception of any vote which is
void and this can only be the reception of a void vote in favour of the
returned candidate. In other words, the scope of the enquiry in a case falling
under s. 100(1) (d) (iii) is to determine whether any votes have been
improperly cast in favour of the returned candidate or any votes have been
improperly refused or rejected in regard to any other candidate. These are the
only two matters which would be relevant in deciding whether the election of
the returned candidate has been materially affected or not. At this enquiry,
the onus is on the petitioner to show that by reason of the infirmities
specified in s. 100(1) (d) (iii), the result of the returned candidate's
election has been materially affected, and that, incidentally, helps to
determine the scope of the enquiry. Therefore, it seems to us that in the case
of a petition where the only claim made is that the election of the returned
candidate is void, the scope of the enquiry is clearly limited by the
requirement of s. 100(1) (d) itself. The enquiry is limited not because the
returned candidate has not recriminated under s. 97(1); in fact s. 97(1) has no
application to the 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. If the result of the enquiry is in favour
of the petitioner who challenges the election of the returned candidate, the
Tribunal has to make a declaration to that effect, and that declaration brings
to an end the proceedings in the election petition.
135 There are, however, cases in which the
election petition makes a double claim; it claims that the election of the
returned candidate is void, and also ask for a declaration that the petitioner
himself or some other person has been duly elected. It is in regard to such a
composite case that s. 100 as well as s. 101 would apply, and it is in respect
of the additional claim for a declaration that some other candidate has been
duly elected s. 97 comes into play.
Section 97(1) thus allows the returned
candidate to recriminate and raise pleas in support of his case that the other
person in whose favour a declaration is claimed by the petition cannot be said
to be validly elected, and these would be pleas of attack and it would be open
to the returned candidate to take these pleas, because when he recriminates, he
really becomes a counter-petitioner challenging the validity of the election of
the alternative candidate. The result of s. 97(1) therefore, is that in dealing
with a composite election petition, the Tribunal enquires into not only the
case made out by the petitioner, but also the counter-claim made by the
returned candidate. That being the nature of the proceedings contemplated by s.
97(1), it is not surprising that the returned candidate is required to make his
recrimination and serve notice in that behalf in the manner and within the time
specified by s.97(1) proviso and s. 97(2). If the returned candidate does not
recriminate as required by s. 97, then he cannot make any attack against the
alternative claim made by the petition. In such a case, an enquiry would be
held under s. 100 so far as the validity of the returned candidate's election
is concerned, and if as a result of the said enquiry a declaration is made that
the election of the returned candidate is void, then the Tribunal will proceed
to deal with alternative claim, but in doing so, the returned candidate will
not be allowed to lead any evidence because he is precluded from raising any
pleas against the validity of the claim of the alternative candidate.
It is true that s. 101(a) requires the
Tribunal to find that the petitioner or such other candidate for the
declaration of whose election a prayer is made in the election petition has in
fact received a majority of the valid 136 votes. It is urged by Mr. Kapoor that
the Tribunal cannot make a finding that the alternative candidate has in fact
received a majority of the valid votes unless all the votes cast at the
election are scrutinised and counted. In our opinion, this contention is not
well founded. We have already noticed that as a result of rule 57 (now rule
56(6) of Conduct of Election Rules), the Election Tribunal will have to assume
that every ballot paper which had not been rejected under r. 56 constituted one
valid vote and it is on that basis that the finding will have to be made under
s. 101(a). Section 97(1) undoubtedly gives an opportunity to the returned
candidate to dispute the validity of any of the votes cast in favour of the
alternative candidate or to plead for the validity of any vote cast in his
favour which has been rejected;
but if by his failure to make recrimination
within time as required by s. 97 the returned candidate is precluded from
raising any such plea at the hearing of the election petition, there would be
nothing wrong if the Tribunal proceeds to deal with the dispute under s. 101(a)
on the basis that the other votes counted by the returning officer were valid
votes and that votes in favour of the returned, candidate, if any, which were
rejected, were invalid. What we have said about the presumed validity of the
votes in dealing with a petition under s. 101(a) is equally true in dealing
with the matter under s. 100(1)(d)(iii). We are, therefore, satisfied that even
in cases to which s. 97 applies, the enquiry necessary while dealing with the
dispute under s. 101(a) will not be wider if the returned candidate has failed
to recriminate." Ayanagar, J. did take a different view of the matter and
it is on the minority view that strong reliance has been placed by Mr.
Rangarajan. He has even contended that the proposition in minority view was
more appealing and had reminded us that there have been instances where the
minority view lays down the law correctly and in due course is accepted to be
the law of the country. As we shall presently show, the ratio in the majority
opinion is still holding the field and on the plea that the minority view may
some day become the law, relief in the present case cannot be granted. We are
bound by the decision of the larger Bench.
137 This Court in P. Malaichami v. Mr. Andi
Ambalam and Ors. considered this question again. Alagiriswami, J. spoke for the
Bench which heard the appeal. There it had been contended by counsel that in
view of the facts of that case, recrimination and the requirement of s. 97 need
not have been insisted upon. This is how that contention was answered:
"The question still remains whether the
requirements of s. 97 have to be satisfied in this case. It is argued by Mr.
Venugopal that the gravamen of the respondent's petition was breach of many of
the election rules and that he asked for a total recount, a request to which
the appellant had no objection and that there was, therefore, no rule or need
for filing a recrimination petition under s. 97. This, we are afraid, is a
complete misreading of the petition. No doubt the petitioner asked for a
recount of votes. It may legitimately be presumed to mean a recount of all the
votes, but such a recount is asked for the purpose of obtaining a declaration
that the appellant's election was void and a further declaration that the
respondent himself had been elected. This aspect of the matter should not be
lost sight of. Now, when the respondent asked for a recount, it was not a mere
mechanical process that he was asking for. The very grounds which he urged in
support of his petition (to which we have referred at an earlier stage) as well
as the application for recount and the various grounds on which the learned
Judge felt that a recount should be ordered showed that many mistakes where
likely to have arisen in the counting, and as revealed by the instances which
the learned Judge himself looked into and decided....." The ratio of the
decision in Jabar Singh's case was followed and it was stated:
"What we have pointed out just now shows
that it is not a question of mere pleading, it is a question of jurisdiction.
The Election Tribunal had no jurisdiction to go into the question whether any
wrong votes had been counted in favour of the election petitioner, who 138 had
claimed the seat for himself unless the successful candidate had filed a
petition under s. 97. The law reports are full of cases where parties have
failed because of their failure strictly to conform to the letter of the law in
regard to the procedure laid down under the Act and the Rules." Several
decisions were cited before us by Mr. Ray for respondent No. 1 which we think
unnecessary to refer to in view of the clear pronouncements and the state of
the law as indicated by these decisions. In the absence of a recrimination petition
conforming to the requirements of s. 97 of the Act the appellant who happens to
be an Advocate and is presumed to know the law, was not entitled to combat the
claim of the election petitioner on the ground that if the remaining rejected
ballot papers had been counted, the election petitioner would not have been
found to have polled the majority of the valid votes.
For the reasons we have indicated, this
appeal has to be dismissed. In the circumstances we direct the parties to bear
their respective costs throughout.
H.S.K. Appeal dismissed.
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