T.H. Musthaffa
Vs. M.P. Varghese & Ors [1999] INSC 367 (23 September 1999)
R.C.Lahoti,
S.R.Babu RAJENDRA BABU, J. :
Elections
were held on April 27,
1996 to the Kerala
Legislative Assembly. The appellant and respondents Nos. 1 to 19 contested in
the said election from Kunnathunadu No.
78
Assembly Constituency. Counting took place on May 8 and 9, 1996. Appellant
secured 49,974 votes, while respondent No. 1 secured 50,034 votes. Thus
respondent No. 1 was declared elected by a margin of 60 votes. Before the declaration
of the result the appellant made an application for recount on several grounds.
The Returning Officer rejected the said application. The appellant filed
another application styled as Review Application which was also rejected. The
appellant, thereafter, filed an Election Petition before the High Court of Kerala.
The High Court dismissed the said Election Petition. Hence, this appeal.
The
principal allegations raised by the appellant in the Election Petition are as
follows :- (i) Votes cast by 36 persons ( a list of names and other particulars
of the said 36 persons was produced as Annexure-5 to the election petition)
voted twice in either the same Constituency of Kunnathunadu or other
constituencies. The votes cast by them are void under Section 62(3) and (4) of
the Act. All the 36 persons have voted for the respondent. (ii) In addition to
the above 36, 17 persons have voted in two polling stations. Their names
appeared in electoral rolls of two polling stations of the same Kunnathunadu
Constituency. A list of the names and other particulars of the said 17 persons
was attached as Annexure-5(a) to the Election Petition. (iii) 12 persons (whose
names and particulars were given Annexure-6) are not voters of this
constituency, their names having been deleted from the final voters list but
they have voted in Polling Station Nos. 195 and 158 taking advantage of the
fact that their names found a place in the original voters list. (iv)
Annexure-7 is a list of the names, addresses etc. of 56 persons who are employees
of Kitex Ltd., an industrial unit in the constituency and who are voters in
Booth Nos. 194, 195 etc. in the constituency. They are natives of far away
places and were not in Kunnathunada Constituency during the election including
the polling day so as to cast their votes due to the long day off of the
factory. However their votes are seen as cast by impersonation. These voters
are invalid under Sec. 62(1) of the Act. (v) About 300 votes are cast in
violation of Rules 39(2)(b) and 56(2)((b) of the Conduct of Election Rules,
1961, in as much as in the polling booths at Puttannoor school and Varikoli
school etc. in Vadavucode-Puthencruz Panchayat about 300 voters voted using an
instrument other than the arrow cross mark stamp prescribed by the Election
Commission. The said votes are invalid. (vi) 5633 votes were wrongly declared
invalid, majority of which were cast in favour of the Election Petitioner, and
(vii) There are various other irregularities in mixing, sorting and bundling of
the ballot papers contrary to Rules and instructions issued by the Election
Commission.
Respondent
No. 1 in the written statement raised certain preliminary points as to non-
compliance of Section 81(3) of the Representation of People Act, 1951
[hereinafter referred to as the R.P. Act]. He also raised objections as to the
manner in which the signature has been put and the verification made in the
petition in violation of Section 83(1) and (2) of the R.P. Act. He contended
that the entire counting process had been conducted legally, regularly and
correctly. He denied the allegation that the Counting Supervisor and the
Counting Assistants were pro-left minded and indulged in manipulations. He
contended that the facilities provided in the Counting Centres were adequate
with full opportunity to the counting agents of the candidates to observe or
scrupulously watch the scrutiny of the ballot papers. He claimed that the
ballot papers in favour of the candidates were accurately bundled with 25
ballots in each of the bundles and not even a single ballot paper of the
appellant was bundled with that of the respondent. He contended that test
checking had been done by the Returning Officer in accordance with the
instructions in the Hand Book. He asserted that there was no impersonation in
voting, or any of them had voted twice either in Kunnathunada Constituency or
elsewhere. On these pleadings 17 issues have been raised. As regards Issues
Nos. 1, 2, 3, 4 and 5 pertaining to preliminary points raised by respondent No.
1, the High Court held that the Election Petition was not liable to be rejected
for non-compliance with Section 86(1) of the R.P. Act and the parties were
directed to go for trial. 67 witnesses were examined on behalf of the
petitioners, while on behalf of respondent No. 1, he examined himself as sole
witness. The learned Judge in the course of the order recorded as under :-
Issues Nos. 7, 8, 9, 10, 11, 12 and 13: Counsel for the petitioner Shri K. Ramakumar
fairly conceded that the petitioner was not successful in his attempt to prove
that more than 60 votes were invalid on account of double voting, voting by
ineligible persons, impersonation, etc. and hence he is not pressing those
issues. According to him, at the most the invalid votes would come to only 54
and as it has not reached 60, the margin by which the first respondent was
declared elected, there is no useful purpose in considering the points which
arise for consideration on the basis of the above issues. So, recording the
submission, the issues are answered against the petitioner.
Thus
the principal issue that remains for consideration is Issue No. 6 and other
issues 14 to 17 are consequential to the finding to be recorded on Issue No. 6.
The
averments contained in the Election Petition are as follows :- Paragraph 2 Upon
such announcement the petitioner who was present at the counting station
submitted a petition requesting a recounting on the basis of several
allegations of manipulations in the sorting and bundling of votes, in the wrong
acceptance of invalid votes polled for the Ist respondent as valid, the
rejection of valid votes polled for the petitioner as invalid, irregularities
committed by the Counting Supervisors and Counting Assistants, the absence of
test checking of the bundles of 25 of all the candidates and several other
grounds which has caused error in the announcement of the number of votes of
each candidate..
Paragraph
4 ..In several instances votes which were invalid as per the instructions
issued by the Election Commission in a pamphlet showing illustrative cases of
valid and invalid papers were honoured in the breach to favour the Ist
respondent.
In the
course of the trial evidence was adduced to the effect that the instrument
supplied by the Election Commission for the purpose of exercising the preference
of a voter is the arrow cross mark rubber stamp in all polling stations but in
two of the polling stations at Varikole school and Koothmannoor school, votes
had been cast by using the instrument meant for the polling officials for
making distinguishing mark of the polling station. Thus a wrong instrument had
been used in these two polling stations. The Returning Officer (P.W. 46)
admitted in his deposition before the High Court that the Polling Officers had,
by mistake, handed over the wrong seal to the voters for exercising their
preference. Reliance was placed on A Pamphlet Showing Illustrative Cases of
Valid and Invalid Postal and Ordinary Ballot Papers issued by the Election
Commission of India in 1996. It is indicated therein as illustrations II and
III in respect of Ordinary Ballot Papers Invalid Cases at pages 24 and 25 to
treat a ballot paper containing a mark not made with instrument supplied to be
treated as invalid and to be put in the doubtful bundle by the Counting Party
and rejected by the Returning Officer. The learned trial Judge adverted to the
pleadings of the case and noticed that there is no plea in the entire election
petition as to using a wrong instrument for the purpose of expressing
preference by the voters so that an instrument to be used for distinguishing
mark of the polling station had been used instead of arrow cross mark rubber
stamp, nor was any reference made to the pamphlet issued by the Election
Commission thereby putting the respondent on notice thereof. The learned Judge,
therefore, found that the pleading was insufficient in election petition to
base a claim to attract Rules 39(2)(b) and 56(2)(b) of the Conduct of Election
Rules, 1961 [for short the Rules]. In the absence of any pleading regarding the
violation of Rules 39(2)(b) and 56(2)(b) of the Rules in the course of the
election petition with reference to the facts alleged therein, no issue could
arise on that aspect of the matter.
The
learned counsel for the appellant submitted that the claim for recount was
based on two grounds. Firstly, violation of Rules 39(2)(b) and 56(2)(b)
inasmuch as in the polling booths at Varikole school and Koothmannoor school
instrument other than the arrow cross mark rubber stamp had not been used
contrary to the one prescribed by the Election Commission and secondly, there
are various other irregularities such as wrong mixing, sorting and bundling of
ballots papers. The pleading raised in the case does not refer to either Rule
39 or 56 of the Rules much less to the pamphlet showing illustrative cases of
valid and invalid postal and ordinary ballot papers issued by the Election
Commission of India, nor any specific allegations are found in the case. The
allegation made in the course of the petition is that there is wrong acceptance
of invalid votes polled for respondent No. 1. It is not made clear as to how
many votes are liable to be rejected for using wrong instrument by the voters
for expressing their preference.
There
is no further indication as to how many of such votes had been polled in favour
of respondent No. 1 so as to materially affect the result of the election. In
the absence of such plea the learned Judge could not have granted the relief of
recount. Therefore, the view taken by the High Court that the pleadings are
insufficient to order recount is perfectly in order. So far as the evidence
that had been adduced in the case is concerned, it need not have been looked at
by the learned Judge in the absence of appropriate pleadings in that regard.
However, Shri E.M.S. Anam, the learned counsel for the appellant, submitted
that the fact that votes in the two polling stations at Varikole school and Koothmannoor
school had been cast by using a wrong instrument was not in dispute and the
evidence of the Returning Officer clearly indicated the use of the wrong
instrument in the two polling stations which amounted to an admission in the
case and, therefore, even in the absence of an appropriate pleading in that
regard the evidence could be looked at. We fail to appreciate this argument. Unless
the appellant had put forth his case in the pleading and the respondents are
put on notice, the respondents cannot make an admission at all and there is no
such admission in the course of the pleadings. If the pleadings did not contain
the necessary foundation for raising an appropriate issue, the same cannot go
to trial. Any amount of evidence in that regard, however excellent the same may
be, will be futile.
Therefore,
the learned counsel is not justified in making the said submission and the same
is rejected. The learned Judge noticed that the appellant, though had raised
objection in this regard in the application for recount, did not reiterate the
same in second application much less any averment is made in the petition. The
learned Judge held, in our view, rightly that there is no pleading in this
regard and the evidence adduced cannot be looked into as no issue thereto
arises. The learned Judge did not, however, rest his decision on that basis but
examined the scope of Rules 39(2)(b) and 56(2)(b) of the Rules. After adverting
to decisions in Hari Vishnu v. Ahmad Ishaque, AIR 1955 SC 233; Manni Lal v. Parmai
Lal, AIR 1971 SC 330; and Era Sezhiyan v. T.R. Balu, 1990 Supp. (3) SCC 22, the
learned Judge came to the conclusion that the Rules are mandatory and held that
when the marking of the ballot papers is made by an instrument other than the
one supplied for the purpose it will invalidate the ballot papers. While
considering question whether the marking of the ballots in this case is made
otherwise than by the instrument supplied for the purpose, the learned Judge
took the view that Rules 39(2)(b) and 56(2)(b) of the Rules should be read with
clause 10F of the Handbook for Candidates under the heading Marking System of
Voting and concluded that a voter has no control over the instrument supplied
to him and when a wrong instrument is handed over to him by the Polling
Officer, he will naturally exercise his preference with the aid of that
instrument and in such cases he cannot be found fault with. The learned Judge
made it clear that the present is not a case where a voter had made use of an
instrument which was not supplied to him for the purpose of marking his
preference, but one where preference was exercised with the instrument supplied
to him for the purpose and, therefore, there is no violation of the Rules in
marking the ballot papers. The learned Judge also took note of the fact that
the evidence of Returning Officer (P.W. 46) discloses that in respect of two
polling stations in question wrong markings were done with a wrong instrument
in the votes polled in favour of almost all the candidates and such mistake was
on the part of the Polling Officers in handing over a wrong instrument for
marking a vote. All the candidates had taken advantage of votes having been
cast in their favour by using a wrong instrument and did not raise any
objection. Therefore, he took those votes to be valid.
On
this analysis of the evidence the learned Judge held that no objection was
taken to the same at the time second petition for recounting. of counting or
even subsequently when the appellant filed Shri E.M.S.Anam, learned counsel for
the appellant, relied on the observations of this Court in Ram Autar Singh Bhadauria
v. Ram Gopal Singh & Ors., 1976 (1) SCR 191, to the effect that once it is
established that the fault specified in Rule 56(2)(a) or (b) of the Rules has
been committed, there is no option left with the Returning Officer but to
reject the faulty ballot paper. He further submitted that even if such defect is
caused by mistake or failure of the polling officer or members of staff, the
Returning Officer was bound to reject the ballot paper on the ground of such
defect. It is no doubt true that at the first blush one is impressed with this
argument appearing to derive support from the observations made in that
decision. However, a closer scrutiny of the said decision will unveil the
spell. The facts in that case reveal that 41 ballot papers were alleged to have
been rejected on the ground that electors choice was expressed through a wrong
instrument. Dealing with this aspect of the matter, this Court observed that
the court had to apply its mind as to whether these facts were sufficient to
attract Rule 56(2)(b) of the Rules and to do so had to consider two questions :
(i) Was the stamping instrument with which these 41 electors marked the ballot
papers, given to them by the Presiding Officer or any member of his staff? (ii)
If so, could these ballot papers be deemed to have been marked with the
instrument supplied for the purpose within the contemplation of Rules 39(2)(b)
and 56(2)(b) ? Although certain observations were made in regard to the
mandatory nature of the provisions of Rules 39 and 56(2)(b), still ultimately
this Court remanded the matter for consideration of these two questions and
stated that if both these issues are answered in the affirmative, then and only
then, the trial Judge may proceed to inspection and recount of these 41 votes
referred to earlier. Therefore, the contention put forth on behalf of the
appellant in this case that the mere fact of certain ballot papers have been
marked with the wrong instrument would not by itself lead to the conclusion
that such ballot papers are liable to be rejected unless the two questions
raised in Ram Autar (supra) to which we have adverted to above are answered. On
the question whether the stamping instrument with which the ballot papers are
marked in the two polling stations are given by the Polling Officer or any
member of his staff, the answer is given by the learned Judge in the
affirmative, on analysis of the evidence and particularly from what has been
stated by the Returning Officer who was examined in the case. Therefore, the
learned Judge proceeded to consider the next question whether such instrument could
have been deemed to have been supplied for the purpose of marking ballot
papers. The learned Judge took the view on the admission made by the Returning
Officer that the said instrument was supplied to the electors for that purpose
by the officers by mistake.
This
question again arose for consideration in the decision of this Court in Era Sezhiyan
v. T.R.Balu (supra), in which this Court again took the view that if the
instrument supplied to the voters, though mistakenly, was other than the one
intended for marking the ballot papers, the instrument must be deemed to have
been supplied by the officers concerned for the purpose of marking the ballot
papers. If we read the relevant Rules 39 and 56(2)(b) of the Rules with the
instructions given at clause 10F in the Handbook for the Candidates it will be
clear that the voter will record his vote by stamping a mark on the ballot
paper with the rubber stamp supplied to him by one of the polling officers. In
this case, admittedly, it is the polling officer who had supplied the
instrument for marking the ballot paper. It is thus clear that the appellant
cannot take advantage of the mistake, if any, in supplying the instrument for
marking the ballot papers.
The
next argument advanced by the learned counsel for the appellant is that the
intention of Rules 39 and 56 of the Rules is to maintain the secrecy in voting
and when the ballot papers are marked with a distinguishing mark by the voters
it would certainly be possible to identify the voters. If the appellant contends
that about 100 voters cast their votes using the wrong instrument, respondent
No.1 would put that figure at 300 in the two polling stations.
The
appellant and respondent No.1 appear to have made only a guess work and have
not laid any foundation in the pleadings or by way of evidence to draw such an
inference. On the other hand, the Returning Officer is categorical in his
testimony that almost all the voters in the two polling stations marked their
votes using the wrong instrument. If all the voters in the two polling stations
had marked in the manner stated by the Returning Officer, and we have no reason
to doubt the correctness of his statement, the whole case, as sought to be set
up by the appellant as to violation of secrecy in voting, falls to ground.
Thus, none of the arguments raised on behalf of the appellant based on Rules 39
and 56 of the Rules are tenable and they stand rejected.
After
adverting to various principles as enunciated by this Court in various
decisions regarding recount, the learned Judge examined the case put forth by
the appellant as to the various irregularities committed in the course of
counting. The first irregularity pointed out is non- observance of the
requirement that 5 per cent of the total number of bundles of valid ballot
papers of different contesting candidates should be counted again at the table
of the Returning Officer by making selection of 5 per cent of ballot papers in
such a manner that it contains bundles pertaining to different contesting
candidates. The evidence of the Returning Officer is to the contrary. The
learned Judge believed him and held that test of checking/random checking
cannot be stated to have been not done. He held that the averments in the
pleadings or evidence as to other irregularities alleged regarding mixing,
sorting and bundling of ballots papers were very vague and no weight could be
attached to the same. Thus, the High Court concluded that the allegations
contained in the election petition and evidence adduced were not sufficient to
warrant recount or inspection of the ballot papers.
The
learned counsel for the appellant in spite of his strenuous efforts is unable
to point out any error in the reasoning or conclusion in the judgment under
appeal as to laying any foundation for recount. Mere smallness of margin of
votes by which the election is decided is irrelevant. Of course, in a given
case on the totality of pleadings and evidence, smallness of margin may gain
importance but not in this case. The pleadings do not indicate the errors made
either with reference to number of ballot papers or table or round in which
such mistakes occurred. Except to make vague statements, the appellant has not
either pleaded or given any testimony through witnesses. Hence the appeal is
liable to be dismissed. In the result, this appeal stands dismissed but in the
circumstances of the case the parties shall bear their respective costs in this
appeal.
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