M.R. Gopalakrishnan Vs. Thachady
Prabhakaran & Ors [1994] INSC 667 (13 December 1994)
FAIZAN UDDIN (J) FAIZAN UDDIN (J) ANAND, A.S.
(J)
CITATION: 1995 SCC Supl. (2) 101 JT 1995 (1)
202 1994 SCALE (5)192
ACT:
HEADNOTE:
FAIZAN UDDIN, J.:
1.
This
appeal under Section 116-A of the Representation of People Act, 1951
(hereinafter referred to as the Act) has been directed against the judgment of
the High Court of Kerala dismissing the Election Petition of the appellant
whereby he had challenged the election of respondent No. 1 as a member of
Kerala Legislative Assembly from constituency No. 104 Kayamkulam, and for a
further declaration that the appellant was duly elected for the said seat for
which the election was held on 12.6.1991 and the result of which was declared
on 16.6.1991.
2.
In
all there were eight candidates in the field i..
the appellant and respondents No. 1 to 7 who
contested the said election for the Legislative Assembly seat from 104
Kayamkulam constituency. The appellant was a candidate fielded by the Communist
Party of India (Marxist). The respondent No. 1 herein was the candidate
sponsored by the Indian National Congress which was a constituent party of the
United Democratic Front. The total number of votes polled in the said election
were 97,969 out of which 1,375 were rejected as invalid votes and 96,594 votes
were received as valid votes. At the end of the final counting which took place
on June 16, 1991 the result was declared and the respondent No. 1 was returned
as a 205 successful candidate by a margin of 33 votes against his nearest
rival, the petitioner/appellant herein. The main contest was between the
appellant and the respondent No. 1.
The appellant had polled 46,649 votes while
the respondent No. 1 had polled 46,682 votes and thus the respondent No. 1 had
won the election by a margin of 33 votes over his nearest rival, the
petitioner/appellant herein and, therefore, he was declared elected.
1.
2.
3.
The
appellant challenged the election of the returned candidate respondent No.-. 1
herein by filing an Election Petition under the relevant provisions of the Act,
in the High Court of Kerala on several grounds. It was alleged by the appellant
that the counting of votes for the Legislative Assembly Constituency as well as
counting of votes for the Kayamkulam segment of Mavelikara Parliamentary
Constituency both took place simultaneously in the same hail which was of the
size of 80 x 20 feet and as there were several tables and chairs in the said
counting hall and the counting agents of all the candidates and other officials
were present in the hall, it became crowdy and the sorting out of bundles of
ballot papers was done hastily and, therefore, it was not possible for the
counting agents of the petitioner/ appellant to carefully keep a track of the
process of sorting out. It was, therefore alleged that a reasonable opportunity
was not given to the appellant's agents to note and satisfy themselves that the
bundles were really of the candidates for whom the votes were cast or the
correctness of the ballot papers in each bundle. It was alleged that the
Returning Officer rejected the votes as invalid inspite of the protest by the
petitioner/appellant's election agent.
The petitioner/appellant's election agent
made an application for recount 'alleging specific irregularities in the
counting but the same was unreasonably rejected by the Returning Officer and
the respondent No. 1 was declared elected. It has been further alleged that on
17.6.91 the petitioner/ appellant submitted an application 10 the District
Collector, Alapuzha for recounting and the election agent of the petitioner/
appellant had also sent an application to the Chief Election Officer pointing
out the irregularities in the counting. The petitioner/appellant further
alleged that several postal ballots were rejected without valid reason and the
votes cast in favour of the appellant were treated as invalid and in many
polling stations the figure in the ballot paper account did not tally.
4.
The
petitioner/appellant further made allegations that several persons had cast
their votes by committing acts of impersonation, in place of the real and
genuine voters. The appellant also alleged that 32 voters had cast their votes
twice in the same constituency as their names were entered in the electoral
roll in more than one place and that 18 persons had voted in more than one
constituency the details of which were given in Annexure IV and V annexed with
the Election Petition. It was therefore alleged that the result of the election
had been materially affected in so far as the returned candidate is concerned.
5.
The
petitioner/appellant also made allegations against respondent No. 1 for
committing corrupt practices in the said election by publishing news item in
the Malayala Manorma Daily dated 18.8.91 with a view to create an impression in
the mind of the voters of the constituency that the petitioner/appellant was
indulging in undesirable activities to secure the release of convicts who were
undergoing life imprisonment for the purpose of making use of their services in
the election. The appellant also alleged that with a view to prejudice the
election prospects of the appellant a pamphlet was published and circulated in
the constituency which contained false statement to the knowledge of respondent
No. 1 and his election agent. The petitioner/appellant alleged that a news item
was published on 7.6.91 in Malayala Manorma Daily followed by an election
pamphlet which was widely circulated in the Kayamkulam Assembly Constituency
the contents of which were false and designed to prejudice the minds of muslim
voters in the constituency as there was a number of muslim voters in Wards No.
7, 9 and 10. The petitioner/appellant alleged that due to the distribution of
said pamphlet he lost large number of votes. The appellant also alleged that
another pamphlet was also published after the death of Shri Rajiv Gandhi
mentioning that the workers of the appellant had destroyed the photos'of Shri
Rajiv Gandhi and burnt Bhagwat Gita, Holy Quran and Holy Bible. The petitioner/appellant
alleged that this pamphlet was published after 23.5.91 and prior to 12.6.91
with the consent and knowledge of respondent No. 1 with a view to prejudice the
minds of the voters of the constituency against the petitioner/appellant.
6.
The
Petitioner/appellant further alleged in the Election Petition that out of the
total number of 1280 postal ballots, 246 postal ballots were rejected by
violat- ing Rule 27(1) and Rule 54-A of the Conduct of Election Rules. The
petitioner/appellant alleged that his election agent requested the Returning
Officer to count all the postal ballots but the Returning Officer illegally
rejected 246 postal ballots and the request for recount of those 246 ballot
papers was also rejected without assigning any reason for such rejection. On
these grounds the appellant prayed for declaration of the election of
respondent No. 1 as void and to declare the petitioner as duly elected
candidate for the said constituency.
7.
The
returned candidate respondent No. 1 contested the Election Petition filed
against him by controverting all the adverse allegations. The respondent No. 1
pleaded that the Returning Officer had afforded adequate opportunity to the
election agents and counting agents of the candidates to carefully watch the sorting
out of the ballot papers and the Chief Election Agent of the
Petitioner/appellant was present throughout the process of counting. But as
there were no irregularities nobody raised any objection regarding the sorting
out or counting of votes. The respondent No. 1 pleaded that on the demand of
the election agent of the appellant a second round of counting of votes of
certain polling stations was done but no fault was noticed. He has pleaded that
246 postal ballots were rejected for valid reasons and no illegality was
committed by the Returning Officer in the matter of dealing with postal
ballots. The respondent No. 1 further pleaded that no person had cast any vote
by committing acts of impersonation as alleged by the appellant in his election
petition. The respondent No. 1 emphatically denied that Annexure VII and VIII
were published by him or by any one with either his consent and knowledge or'
that of his election agent. He asserted that his election agents were in no way
concerned or associated with the a leged publication of Annexure VII and 207
VIII. He also refuted the allegation of publication of Annexure IX and X either
with his consent or knowledge or that of his election agent.
8.
The
respondent No. 1 while refuting the allegations made against him and his
election agent filed a recrimination petition under Section 97 of the Act
alleging that the petitioner/appellant himself was guilty of committing corrupt
practice as defined in Section 123 of the Act. He alleged that one M.R.
Rajasekharan was the election agent of the petitioner/appellant who was also
the Secretary of the Election Committee and it was he who printed and published
a notice under the caption (English version) "Elect the candidate of Left
Front", the copies of which were distributed in various parts of the
constituency on 10.5.91. He further alleged that another notice was published
on 7.6.91 by the election agent of the appellant under the caption (English
version) "let the devotees of Shri Narayana think". The said two
notices were filed by the respondent No. 1. as Annexure 'A' and 'B' alongwith
the recrimination petition. Annexure 'A' contained an appeal to the muslim
community to vote for L.D.F. candidate and Annexure 'B' contained an appeal to
voters belonging to Ezhuva community which according to the respondent No. 1
amounted to corrupt practice as defined under Section 100 read with sub-section
(3) of Section 123 of the Act. The respondent No. 1 further made allegations of
double voting by some voters while names of some voters appeared in
neighbouring constituency as well. On these allegations in the recrimination
petition the respondent No. 1 submitted that even if the appellant had been
declared elected his election would have been void on the aforesaid grounds.
9.
The
High Court framed necessary issues on the aforesaid pleadings and after the
evaluation of the evidence adduced by the parties and taking into 'account the
material on record held that there was no irregularity in the counting of votes
which may have materially affected the result of the election; that the
rejection of the postal ballot. papers was for valid reasons; that it is clear
from the evidence that as and when the petitioner's agent raised any objection
regarding the counting there was checking and rechecking and according to the
evidence of Returning Officer. PW 16 at least 40 per cent of the ballot papers
were subjected to test checking but no difference was found in such test
checking and. therefore. in the absence of any specific irregularity pointed
out by the petitioner/ appellant's agent regarding the counting. P.W 16 was
justified in rejecting the request for recount and as such no case was made out
for directing recount; that the petitioner/appellant had failed to establish
that the pamphlets Ext. P 158 and Ext.P 159 were printed and published with the
consent and knowledge of the respondent No. 1 and that the alleged publication
do not fail within the purview of corrupt practice as envisaged under sub-
section (4) of Section 123 of the Act; that the petitioner/ appellant had
failed to prove that annexures VIII. IX & X i.e. Ext. P 161. Ext. P 162 and
Ext. P 157 were printed.
published and circulated by the respondent
No. 1 or his election agent or by any other person with their consent and
knowledge; that the petitioner also failed to prove that four persons had cast
votes by impersonation as alleged in para 4 of. the election petition. However.
the High Court on issue No. 8 with regard to the petitioner/appellant's al- 208
legation of double voting by 32 voters recorded the finding that Seethabhai
Sanjivan, PW 2 had cast two votes in respect Of electoral roll No. 051419, Ext.
P 7 and No. 048734 Ext. P 9 and, therefore, both were declared as void. The
High Court also recorded the finding that voter No. 375 and voter No. 1271 in
the electoral roll-relate to the same person Achuthan Sukumaran, PW 3 and
Achuthan had cast his vote in Kayamkulam constituency against voter No. 1271 in
Ext P 5 and that some one else had cast his vote against voter No. 375 in Ext,
P 8 which the High Court declared to be void.
Similarly the High Court further recorded the
finding that Pulikkandathil Sujatha Achuthan, voter No. 376 in Ext. P 8 is the
same whose name appears in the polling station No. 43 as well as polling station
No. 45 and, therefore, one vote has been declared as void. The High Court also
held that voter No. 1221 in Ext. P 15 and voter No. 143 in Ext. P 16 is one and
the same person Sagar Yunus Kunju, PW 5 and that someone had cast the vote On
behalf of PW 5 against voter No. 143 in Ext. P 16 and, therefore, one vote
against P 16 has also been declared void. The High Court also held that
Madhavan Neelakanthan, PW 11 had cast two votes in the same constituency (Ext.
P 43 and Ext. P 44) and, therefore, both have been declared void. The High
Court also declared one vote of PW 12 to be void. It was also found that the
name of Kunjumuthu @ Kunju, PW 13 and Anjali Siril Kunju Muthu @ Muthu is one
and the same person whose name appeared in polling station No. 7 as well as in
polling station No. 35, who .had cast vote at both the places and, therefore,
both the votes are declared void. The High Court also found that one vote of PW
27 cast against counterfoil No. 001475 (Ext. P 89) was liable to be declared
void. Similarly it was found that Madhuradha Krishnan, PW 29 had cast his vote
twice and, therefore, both the votes against counterfoil No. 041933 (Ext. P 97)
and counterfoil No. 090465 (Ext. P 98) were also declared void. One vote of
Radhakrishnan Kunju, PW 30 was also declared as void as his name appeared in
two polling stations and he had cast his vote only in one polling station while
someone else had cast the vote at the other polling station by impersonation.
Similarly one vote of Suresh Kumar Dasappan Pillay, PW 31 was also declared
void for the same reasons. The High Court also found that Abdul Rasheed Ayyar
Kunju, PW 32 had cast his vote twice in the same constituency and, therefore,
both the votes are declared void. Thus under issue No. 8 the High Court found
in all 20 votes to be void. The High Court therefore, took the view that since
the improper reception of 20 votes did not materially affect the result of
election of the returned candidate as it only reduced the margin from 33 to 13
by reason of which the election of the returned candidate respondent No. 1
herein cannot be declared to be void.
Consequently, the question of declaration of
the petitioner as the returned candidate did not arise. Since the High Court
found that even after giving a discount of 20 improperly received votes, the
election of respondent No. 1 could not be cancelled or declared void and,
therefore, it dismissed the election petition. The High Court did not consider
it necessary to go into the allegations and grounds raised by the respondent
No. 1 against the petitioner/appellant in his recrimination application filed
under Section 97 of the Act and the evidence adduced in support of the same.
10.
Though
Shri P.S. Poti, learned senior counsel appearing for the petitioner/ appellant
assailed all the findings recorded by the High Court in dismissing the election
petition but his main attack was that:
(i) The counting was not cOnducted legally
and properly and in a congenial atmosphere by reason of which the Returning
'Officer ought not to have rejected the application for recount and that in any
case the prayer made to that effect in the election petition should not have
been rejected by the High Court in view of the facts and circumstances
mentioned in para 4 and 7 of the election petition.
(ii) Out of the total No. of 1280 postal
ballots, the Returning Officer rejected 246 ballot papers and, out of these
246, 24 postal ballot in Ext. P 54 series only were rejected giving reasons in
accordance with Rule 54(A)(4) of the Conduct of Election Rules, 1961 while 222
ballot papers of Ext. P 55 series were rejected without any endorsement for
such rejection which is clearly repugnant to the mandatory provisions contained
in Rule 54 (A)(4) and, therefore, this reason alone was sufficient . to hold
that the result of the election was materially affected as according to the
appellant there were valid postal ballots in favour of the appellant amongst
those which were improperly rejected and;
(iii) That invalid votes were counted in
favour of the returned candidate respondent No. 1 and out of the total rejected
votes of 1375 quite a large number of valid votes in favour of the appellant
were rejected which materially affected the result of the election.
11.
In
order to appreciate the first contention advanced by the learned counsel for
the appellant and referred to above it has to be seen whether the appellant has
pleaded material facts and laid adequate foundation for a direction for
inspection and recount. In this regard learned counsel for the appellant
submitted that the pleadings with regard to the material facts for a direction
for recount arc contained in paras 4 and 7 of the election petition. Briefly
stated the allegations made in para 4 of the election petition arc that the
counting of 104, Kayamkulam Assembly Constituency as well as the counting of
Parliamentary election was simultaneously don in a Hall which had a length of
80 feet and width of 20 feet which was insufficient to properly accommodate the
stag of the Returning Officer and the assistants as wIl as the counting staff,
candidates and their counting agents by reason of which various irregularities
wre either consciously committed by the counting staff or occurred on account
of the hurried sorting out and putting the ballot papers into different
compartments of the candidates or the compartments meant for the doubtful votes
while bundling up the ballot papers of respective candidates into bundles of 50
each. It is stated that it was difficult for the agents of the petitioner/ appellant
to carefully keep track of the sorting out or identifying the voters mark on
the ballot papers before they were put into different compartments. It has been
further alleged that a partisan attitude of the counting officers and
supervisors was visible. The counting agents of the petitioner raised objection
on several occasions and Shri M.R. Rajesekharan, election agent of the
petitioner/appellant mentioned these facts to the Returning Officer who told
him that it was up to the counting agents to watch the process and the whole
count- 210 ing is to be done without delay as the result has to be declared as
early as possible. It is further alleged in the same para 4 of the petition
that as the petitioner was aware-of several specific irregularities at the
counting and the fact that the Returning Officer himself had rejected several
votes as invalid over ruling the protest of the petitioner's election agent
that they were the votes polled by the petitioner, so the petitioner's election
agent made an application for recount of the votes but the Returning Officer
rejected the application without any justification and unilaterally declared
the first respondent as elected by a margin of 33 votes despite vehement
protest of the petitioner's election agent. His pleadings contained in para 7
of the election petition relate to the allegation about casting of several
votes by impersonation giving the names of four persons who were alleged to
have voted for the persons whose name appeared in the electoral roll in polling
booths No. 15, 30 and 3. According to the learned counsel for the appellant
these. facts in addition to the fact that 222 postal ballots were rejected
contrary to the mandatory rule constituted material facts for direction for
inspection and recount of all the ballot papers. But on a careful and critical
examination of the facts and the evidence on record we find that they speak
contrary to the allegations referred to above in the petition which shall be
discussed in the paras hereinafter.
12.
We
shall first discuss the evidence relating to the alleged irregularities said to
have been committed during the counting. Shri M.Siraj Kunju, PW 16, District
Planning Officer was the Returning Officer of 104, Kayamkulam Assembly
Constituency for the general election held on June 12, 1991. He deposed that
the Chief Election Agents of various candidates were sitting near him
(Returning Officer). There were two independent observers deputed by the
Election Commission who visited the Counting Hail. He also stated that the
election agent of the petitioner/appellant wanted recounting of the entire
ballot papers but as he had not specifically requested in respect of rejection
of any ballot paper in a particular polling station he did not allow the
application for recount. But on demand by the Chief Election Agent of the
petitioner the entire ballot papers of polling booths No.96 to 111 were counted
twice. He also stated that he himself had supervised the second counting in
respect of some of the tables and his Assistant Returning Officers supervised
in respect of other tables. He further deposed that before a final decision was
taken in the application for counting, he consulted the officials who were
Incharge of the preparation of the final sheets whether there was any mistake
and he himself checked the result sheets. He stated that during the time of
counting the actual number of votes secured by each candidate was shown in the
Display Board and this was being done till the counting was over but nobody
raised any objection. A perusal of the evidence of the Returning Officer, PW 16
will go to show that no question in cross'examination on behalf of the
appellant was directed against the alleged uncongenial atmosphere in the
counting hail or any difficulty in the sorting out or putting the ballot papers
in different compartments or in the bundles of different candidates. No
question was also directed that the agents felt any difficulty in carefully
keeping the track on the sorting out or identifying process or regarding the indifferent
attitude of the counting staff. No question was also put to the Rturning
Officer that proper opportunity 211 to the appellant's agents was not afforded
with regard to the verification of marks made by the voters on the ballot
papers.
13. It is no doubt true that M.R.
RaJasekharan, PW 98, election agent of the Petitioner/appellant made an
application on 16.6.91 purporting to have been made at 10.35 PM to the
Returning Officer for recount. The said application which is Ext. P 207 reads
as under:- EXT. P.207 From M.R. Rajsekharan, Election agent of Shri MR
Gopalakrishnan.
104. Kayamkulam Assembly Constituency.
To The Returning Officer, 104. Kayamkulam
Assembly Constituency.
Respected Sir, It is understood to me that
them are irregularities in the counting of votes. which began from 8-15. today
morning.
of many polling station of 104. Kayamkulam
Assembly Constituency and also I have doubt about the counting of Postal
Ballots and also votes are not tailing with the records.
In addition to this that many number of votes
have been unauthorisedly and illegally declared invalid and so that entire
votes of this station may be subjected to recount.
otherwise it will cause irrepa-. rable loss
to me and to my candidate.
Hence it is requested that the result of this
station may be announced only after the recount is conducted. Yours faithfully.
Sd/- 10.35 PM M.R. RAJASEKHARAN Harripad,
16-6-1991.
Plain reading of this application will go to
show that it is written In most vague terms without specifying any
irregularities whatsoever which according to the petitioner/appellant were
committed during the course of counting.
14. The apPellant M.R. Gopalakrishnan who
appeared as PW 100 himself made an application Ext. p 211 on 19.6.91 three days
after the declaration of result to the Chief Electoral Officer. Trivendrum for
recount which is reproduced hereunder :.
EXT. P. 211 From:
M.R. Gopalakrishnan, Candidate 104.
Kayamkulam Assembly Constituency, KAYAMKULAM.
To The Chief Electoral Officer, 1991 Assembly
Elections, TRIVENDRUM.
SUB: Rejection of application for recounting
and re- verification of Postal Ballot Papers. Request for re- counting and
reverification.
Sir, I was a candidate for the Assembly
Election in 104 Kayamkulam Constitu- 212 ency. My opposite candidate Shri
Thachadi Prabhakaran was declared for 33 votes by the Returning Officer.
Knowing that there was irregularities and
illegality in the matter of counting, my chief Agent has placed an application
for re-counting.
The Returning Officer has declared hundreds
of invalid votes as valid in favour of Shri Thachady Prabhakaran. My valid
votes have been declared as invalid.
About 300 postal ballot papers have been
declared by the Returning Officer as invalid votes.
For the reasons stated above, I request you
to be good enough to take urgent steps to re-count the ballots as soon as
possible.
Yours faithfully, Sd/- (MR. Gopalakrishnan)
Kayamkulam, 19-6-1991 Copy to: Chief Election Commission, New Delhi.
A cursory look at this application will go to
show that no specific allegation with regard to any particular irregularity in
the counting was made but vague application for recounting was submitted. Not
only this but M.R.
Rajasekharan, PW 98 the election agent of the
appellant again made an application on 21.6.91 to the Chief Electoral Officer,
Thiruvanthapuram requesting for recount of the votes of 104, Kayamkulam
Assembly Constituency. The said application Ext. P.208 is reproduced herein
below.
From:
M.R. RAJASEKHARAN, Election Agent of M.R. Gopalakrishnan,
Kayamkulam.
To The Chief Electoral Officer State of
Kerala, Thiruvananthapuram.
Sub: Assembly Election - Counting of Votes of
104 Kayamkulam Assembly Constituency at Haripad - Irregularities recount- ing
and Verification request re- garding Sir,.
I was Election Agent of Shri M.R.
Gopalakrishnan, a candidate of 104 Kayamkulam Assembly Constituency. The
counting of the votes of the Constituency was held at Govt.
H.S. for Girls, Haripad on 16-6-1991. After
the counting of votes, having doubts and having noticed specific irregularities
in the counting, before the declaration of the results I gave in writing a
request to the Returning Officer for recounting of votes on reasonable grounds.
But, to the surprise of all present, the Returning Officer, unilaterally
declared Shri Thachady Prabhakaran elected by 33 votes, under out vehement
protest. Against this arbitrary decision of the Returning Officer the candidate
filed a petition to the District Collector Alleppey.
The immediate rejection of our demand for
recounting of votes was illegal and against rules. Our demand for recounting
was based on the following grounds :-
1. A good number of postal ballots 213 were
rejected without valid reason.
2. Votes which were valid in our favour were
counted as invalid.
3. In many booths, the ballots in the box did
not tally with the statement.
4. Many counting Officers were the relatives
and partymen of the U.D.F. Candidate and they Purposefully helped the U.D.F.
Candidate.
5. The conjection in the counting Hall, the
frequent outbursts of impatience and protest of the counting officers prevented
the peaceful counting.
For the above reasons I request you to be
good enough to take steps for the recounting of votes of 104, Kayamkulam, for
which I shall be grateful to you.
Yours faithfully, Sd/- (M.R. Rajasekharan)
Kayamkulam, 21-6-1991 In this application it may be noted that the
irregularities pointed out in paras 1 to 5 of the application were not
mentioned in the earlier two applications Ext. P 207 and Ext. P 211. This
clearly goes to show that the irregularities pointed out in this latter
application are only after thought and not based on any true facts. If in fact
any of the irregularities of the kind alleged in paras 4 and 7 of the election
petition or those as mentioned in the applications dated 21-6.- 1991 were in
fact committed, then why these irregularities were not pointed out to the
Returning Officer or to any of the ob- servers when they visited the 'counting
hall when counting was going on. No complaint about any irregularity or about
the uncongenial atmosphere of the hall was reported either orally or in writing
to the Returning Officer or to any official connected with the affairs of the
counting during the course of counting on 16-6-1991.. In these facts and
circumstances it is difficult to accept the allegations that the atmosphere of
Counting Hall was not congenial or there was any difficulty in the counting due
to the size of the hall or any irregularities were committed as alleged by the appellant
in the election petition. In these facts and circumstances the High Court is
fully justified in taking the view that no case for a direction for recount was
made out.
15. It may be pointed out here that the true
legal position in the matter of allowing or disallowing a request for recount
is no longer in doubt but well settled. That the Tribunal or the Court trying
an election petition has power to direct inspection and recount of votes if the
material facts and particulars are pleaded and adequate grounds are found to
exist for directing such recount in the interest of justice is now well
settled. While doing so, however, the provisions contained in Section 94 of the
Act may not be ignored but the same be given due weight and consideration
before directing inspection and recount.
Section 94 of the Act directs that 'secrecy'
of voting not to be 'infringed'It directs that no witness or other person shall
be required to disclose for whom he has voted at an election particularly in
view of the statutory rules which provide adequate safeguard for proper conduct
of the counting and for testing the validity or invalidity of the ballot
papers. The rules relating to counting of votes in parliamentary and assembly
constituencies are contained in Part IV of the Conduct or Elec- 214 tion Rules,
1961 hereinafter referred to as the election rules. Rule 51 provides for the
time and place for the counting of votes. Rule 52 relates to the appointment of
counting agents and revocation of such appointments while Rule 53 makes
provision for admission of counting officers and counting assistants as may be
appointed to assist the Returning Officer in the counting; persons authorised
by the Election Commission; public servants on duty in connection with the
election and; candidates, their election agents and counting agents; fixing the
place for counting. Further Rule 54 contemplates that the Returning Officer
shall apprise all persons present in the counting hall the provisions of
Section 128 which relate to the maintenance of secrecy of voting. Rule 55 deals
with scrutiny and opening of the ballot boxes after the same are inspected by
the counting agents present at the particular table with regard to the seal
which may be affixed thereon to satisfy themselves that they are in tact. In
addition to this the Returning Officer himself has to satisfy that none of the
ballot boxes have been tampered with and in the event the Returning Officer is
satisfied that any ballot box has in fact been tampered with he shall refrain
from counting the ballot papers contained in that box and take steps in
accordance with Rule 58 of the Act. Further Rule 56 provides the mode of
counting, scrutiny and rejection of the ballot papers if found to be invalid
for any reasons pointed out in the said rule. Rule 56. also makes provision for
raising of objections with regard to any ballot paper and deal with it in
accordance with law. From this elaborate procedure right from the point of
opening of the ballot box up to the stage of sealing the ballot papers after
the counting is over, it is evidently clear that the rule and procedure of
counting provide the candidates and their, counting agents sufficient and
adequate opportunity to see and examine and raise objections, if any, in
respect of any ballot paper with regard to its validity or otherwise and it is
only after objections, if any, the ballot paper is admitted as valid or invalid
as the case may be. Not only this but even after the completion of the process
of counting a provision is made in Rule 63 to make a demand to the Returning
Officers for recount of the votes either wholly or in part stating the grounds
on which the demand for such recount is made. It is only after the compliance
of this elaborate procedure that the Returning Officer prepares the result
sheet in form 20 and declares the result.
16. After a cursory glance of the relevant
provisions discussed above it is thus evidently clear that the rules provide
adequate opportunity to a candidate, his election agent and counting agent to
have a watch over the counting process before the result is declared and if
they raise any objection as to the validity or otherwise of any ballot paper
and if the said objection is improperly rejected, the candidate his counting
and election agent are wII informed of the nature of the objection that was
raised with regard to the ballot paprs and make a concise statement of material
facts in the election petition in relation thereto. It is for hiss reasons that
this Court has repeatedly held that the secrecy of the vote has to be
maintained and a demand of recount should not ordinarily be granted unless the
election petitioner makes out a prima facie case with regard to the errors in
the counting and is able to show that the errors are of such magnitude that the
result of the election of the 215 returned candidate is materially affected.
The election petitioner, in order to seek an order of recount, has to place
material and make out a prima facie case on the threshold and before an order
of recount is actually made.
The demand of a defeated candidate for
recount of votes has to be considered keeping in view that secrecy of the
ballot is sacrosanct in a democracy and, therefore, unless the election
petitioner is able not only to plead and disclose the material facts but also
substantiate the same by means of evidence of reliable character that there
existed a prima facie case for the recount, no Tribunal or Court would be
justified in directing the recount.
17. This Court in Bhabhi v. Sheo Govind and
others [ 1976 (1) SCC 687 ] while dealing with the question of direction for
inspection and recount, on a close and careful consideration of various
authorities of This Court laid down certain guidelines and conditions which are
imperative before a court can grant inspection of the ballot papers.
The said conditions and guidelines are set
out below :- "1. That it is important to maintain the secrecy of the
ballot which is sacrosanct and should not be allowed 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 statements 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 Court must come to the conclusion
that in order to grant prayer for inspection it is necessary and imperative to
do full justice between the parties;
5. 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
6. 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." In a recent
decision in Satyanarayan Dudham v. Uday Kumar Singh [ 1993 Supple (2) SCC 82 ]
this Court again reiterated the similar view by observing that the secrecy of
the ballot papers cannot be permitted to be tinkered lightly and an order of
recount cannot be granted as a matter of course. It is only when the High Court
is satisfied on the basis of material facts pleaded in the petition and
supported by the contemporaneous evidence that rcount can be ordered. When
there is no contemporaneous evidence to show any irregularity or illegality in
the counting, ordinarily it would not be proper to order recount on the basis
of bare allegations in the election petition.
18. As discussed in the foregoing paras, in
the present case, there is no any specific instance or allegation in the
petition with regard to any particular irregularity and the meagre and vague
allegations that have been made are not supported by any contemporaneous
evidence making out a prima facie case for recount and, therefore, the
Returning Officer as well as the 216 High Court were fully justified in
rejecting the demand for recount.
19. This brings us to the second ground of
attack advanced by the learned counsel for the appellant with regard to the
rejection of 246 postal ballot papers of Ext. P 55 series which are alleged to
have been rejected without any endorsement and without assigning any reason for
such rejection in violation of the mandatory provisions contained in Rule
54(A)(4) of the election rules which according to the learned counsel for the
appellant materially affected the result of the election. It was submitted that
since the rejection of postal ballot papers was improper, keeping in view the
low margin between the appellant and the returned candidate respondent No. 1
herein, the High Court should have allowed the prayer of recount. As against
this Shri Joseph, learned counsel appearing for the respondent No. 1 submitted
that the mere fact of non-recording of reasons could not lead to the inference
that the result of the election has been materially affected nor could it justify
recount, without proper pleadings,, and material facts being furnished in the
election petition. He submitted that the case' of the petitioner/ appellant was
not that his valid postal ballots had been wrongly rejected or that the invalid
postal ballots of the returned candidate had been improperly accepted from Ext.
P 55 series and, therefore, the omission on the part of the Returning Officer
to endorse the reasons for rejecting the postal ballots on the grounds which
were otherwise valid, would be of no consequence. However, after very lengthy
arguments advanced by the learned counsel for the parties on this point, Shri
Poti, learned senior counsel for the appellant made an application on 13.9.94
in this Court which was taken on Board, praying that the postal ballot papers
(Ext. P 55 series) be subjected to inspection by this Court in view of the
narrow margin of votes between the appellant and the returned candidate
respondent No. 1.
Learned counsel for the respondent No. 1 was
good enough and fairly recorded his 'No Objection' to the prayer made on behalf
of the appellant in the aforesaid application. We, therefore, with a view to do
complete justice between the parties and to satisfy our judicial conscience,
since the finding of the High Court was not clear as to whether or not the
rejected postal ballot papers Ext. P 55 series had been subjected to any
inspection or scrutiny when the Returning Officer PW 16 was being examined in
the Court, granted the prayer of the counsel for the appellant and the inspection
of the postal ballot papers, Ext. P 55 series was conducted by us in the Court
in the presence of learned counsel for the parties who also Participated in the
process of inspection. On inspection of the postal ballot papers Ext. P 55
series we found that except a few postal ballot papers from the said series
where incomplete declaration forms had been filed, the details whereof are
given, the other postal ballot papers did not include any declaration form at
all as required by Rule 54-A, in the outer cover. The longer outer cover
contained only a small cover containing the ballot paper itself. After
inspecting more than half of the ballot papers we did not deem it necessary to
inspect all the 246 ballot papers as the learned counsel for the parties conceded
that no further exercise was necessary to inspect the postal ballot papers of
Ext. P 55 series because the rejection of the ballot papers by the Returning
Officer were found to be in order by us in the Court in the presence of 217 the
counsel for the parties in the random sample inspection of more than 150 postal
ballots of Ext. P 55 series and the same were found to have been rightly
rejected. The postal ballot papers in which the declaration forms were found
alongwith the smaller cover containing the ballot papers reveal the following
position:
1. P.55 (176) All the entries in the
declaration form are totally blank.
2. P.55 (181) The entries in the declaration
form are totally blank.
3. P.55 (165) The declaration form in the
outer cover is totally blank.
4. P.55 (161) The declaration form is totally
blank.
5. P.55 (160) The declaration form is totally
blank.
6. P.55 (159) The declaration form is totally
blank.
7. P.55 (154) and P.55 (156) The larger cover
contains two small envelopes,containing ballot papers of Assembly and
Parliamentary Constituencies, but no declaration form at all.
8. P.55 (86) Does not even have a let alone
the declaration form.
9. P.55 (92) There is no declaration form and
instead along with the small cover, Form 13-D, containing instructions for the
guidance of electors has been enclosed in the outer cover.
Faced with the aforesaid situation, Shri
Poti, learned counsel for the appellant candidly submitted that in view of the
result of the inspection carried out by us in the Court he was not in a
position to support his submissions that the postal ballot papers had been
wrongly rejected by the Re- turning Officer. Thus this ground of attack also
fails.
20.We now come to the third ground advanced
by the learned counsel for the appellant that invalid votes were counted in
favour of the returned candidate respondent No. 1 and that out of the total
rejected votes of 1375, quite a large number of valid votes in favour of the
appellant were rejected, which materially affected the result of the election.
Learned counsel for the respondent submitted that the appellant has not set
forth the concise statement of material fact with regard to the allegation of
counting invalid votes in favour of the respondent No. 1 nor has given any particulars
of such invalid votes which are alleged to have been counted in favour of
respondent No. 1 He also submitted that similarly there are no particulars with
regard to the rejection of valid votes in favour of the appellant nor number of
such votes in order to support the allegation that such rejection of valid
votes in favour of the appellant materially affected the result of the
election. In our opinion there is no substance in these submissions made by the
learned counsel for the appellant.
In fact the appellant has neither pleaded the
details and the number of such invalid votes which were counted in favour of
respondent No. 1 nor has given the particulars of the number of such valid
votes in favour of die, appellant which were wrongfully rejected during the
course of counting. This apart, the Returning Officer, Supervisors and other
officials were also present in the counting hall throughout the process of
counting and the observers also visited the counting hall, 218 but neither the
appellant nor any of his counting agents pointed out or objected either orally
or in writing that invalid votes were counted in favour of the respondent No. 1
or valid votes in favour of the appellant were rejected.
The evidence of the Returning Officer, PW 16
clearly goes to show that no such complaint was made by any one during the
course of counting. In these facts and circumstances it is difficult to accept
the allegations made by the appellant which seem to be only an after thought
and without any evidence or material to support the same.
21. Learned counsel for the appellant,
however, submitted that having regard to the size of counting hall which was
packed and uncongenial atmosphere prevailing therein as stated earlier it was
not possible for the petitioner/appellant or his agents to watch, over-see and
check the ballot papers so that they could take note of the particulars of
ballot papers which were not correctly placed in the respective bundles of the
candidates in whose favour the votes were cast or the particulars of those
votes which were rejected as invalid though the same were otherwise valid and,
therefore, it was not possible for the, petitioner/appellant to make a mention
or plead any more facts and particulars beyond those already stated in paras 4 and
7 of the petition. After giving our anxious consider- ation to the submissions
made above, we are unable to persuade ourselves to accept the same. In the
earlier part of this judgment, we have already discussed the evidence and
material on record and found ,.,,at there is absolutely no basis to show that
there prevailed any kind of confusion or irregularity in the counting which
could have disabled the appellant or his agents from watching the process of
counting. As said above no such grievance was ever advanced by the appellant or
his agents at the time of counting either orally or in written to the Returning
Officer or to the observers or to any member of the counting staff deputed for
the purpose. The applications for recount were made only after the counting was
over and the result was declared and that too with vague allegations. This
submission has no merit and the same is accordingly rejected.
22.. Learned counsel for the appellant lastly
contended that the election of respondent No. 1 was liable to be declared void
and cancelled on the ground of corrupt practice under sub-section 3(A) of
Section 123 of the Act as the respondent No. 1 tried to promote the feelings of
enmity and hatred between different communities of the constituency by publication
and distribution of the pamphlets Annexures VI, VII, VIII, IX and X which are
marked as Ext. P 158, Ext. P 159, Ext. 162, Ext. 161 and Ext. 157. In this
connection it may be pointed out that the High Court has minutely and
critically examined the evidence adduced by the parties which has been
discussed at length in paras 22 to 37 of judgment and the High Court has
recorded the conclusion that the appellant had failed to establish that these
pamphlets were published or distributed by respondent No. 1 or his agent or any
other person with the consent of the respondent No. 1 or his election agent.
Learned counsel for the parties took us through the entire evidence on the
point and after analysing the same we find ourselves in agreement with the view
taken by the High Court. It has been the consis- tent practice of this Court
not to interfere, with the findings on the questions of fact unless there is
some grave or palpable 219 error in the appreciation of evidence on the basis
of which the finding were arrived at by the Tribunal/High Court. In the present
case after scrutinising the evidence adduced by the parties we find no error or
infirmity much less grave or palpable which may call for any interference with
the finding. We are, therefore, unable to accept the submissions, made by the
learned counsel for the appellant on this count also.
23. In view of the foregoing discussion and
the conclusions recorded by us, even if we accept the submissions of learned
counsel for the appellant that further 9 votes in favour of Respondent No. 1
should also have been rejected for double voting by the said nine voters as
pointed out by him, although there is no sound basis for the same, yet it would
only reduce the margin from 13 to 4 without materially affecting the result of
the election.
24. Thus even after giving all the possible
discounts the election of respondent No. 1 cannot be set aside or declared void
as he still remains a winner' In view of these facts and circumstances it would
be a futile exercise to go into the question of recrimination petition made by
the respondent No. 1 making certain allegations against the
petitioner/appellant. We, therefore, decline to examine the same.
25. For the reasons stated above the appeal
fails and is hereby dismissed with costs. Costs quantified at Rs.5000/-.
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