Vadivelu
Vs. Sundaram & Ors [2000] INSC 509 (10 October 2000)
R.C.Lahoti,
K.G.Balakrishna
Balakrishnan,
J.L.I.J The appellant
contested the election for the post of President of Vannavalkudi Village Panchayat,
Pudukkottai District in Tamil Nadu. The respondent nos. 1, 2 & 3 were also
the candidates for the same election. The polling took place on 12.10.96 and
the votes were counted on 14.10.96.
The
1st respondent, Sundaram secured 1011 votes and the appellant Vadivelu secured
1010 votes and the 1st respondent was declared elected. The other respondents
had secured only lesser number of votes. The appellant filed an Election
Petition under Rule 122 of the Tamil Nadu Panchayats (Elections) Rules, 1995 before
the District Judge, Pudukkottai, challenging the election of the 1st
respondent. In the Election Petition, the appellant contended that certain
irregularities were committed while the counting of votes was made. According
to the appellant, the names of the dead persons were not deleted from the
electoral roll and the first respondent took advantage of this, and despite the
objection raised by the agents of the appellant, impersonation had taken place
at the time of polling. The appellant also alleged that at the time of
counting, a number of valid votes polled in favour of the appellant were
treated as invalid by the Returning Officer and though the appellant's agents
raised objection, the Returning Officer did not pay heed to it. The appellant
further alleged that the counting officers had no knowledge as to which was
valid vote and which was invalid one. The counting was done in a hasty manner
and the agents of the appellant were not allowed to closely peruse the ballot
papers. Certain ballot papers contained thumb impression, but they were
rejected as invalid votes. The appellant filed a petition before the Returning
Officer for recounting of votes, but that prayer was not allowed and on the
above grounds, the appellant filed Election Petition for setting aside the
election of the 1st respondent.
The
1st respondent filed counter affidavit denying the allegations in the Election
Petition. The 1st respondent contended that the allegations in the Election
Petition are vague and insufficient to set aside the election. He contended
that no material particulars are furnished in the Election Petition and only
bald allegations have been made and, therefore, the Election Petition was
liable to be dismissed. The 1st respondent also alleged that the appellant had
not given any particulars regarding inclusion of names of dead persons in the
electoral roll. According to the 1st respondent, there was no irregularity or
illegality in the counting of votes.
Four
witnesses were examined on the side of the appellant. On the respondent's side,
RW1 and RW2 were examined. The Election Tribunal held that no details were
available as to how many votes were secured by the appellant-Election
Petitioner and the 1st respondent after the first round of counting and that
the appellant had filed an application for recount before the Returning
Officer.
Therefore,
the Election Tribunal ordered re-count of votes and an Advocate-Commissioner
was appointed for recounting of votes and he submitted a detailed commission
report. On re-count made by the commissioner, the appellant had secured 1002
votes and the 1st respondent, Sundaram, had secured 975 votes. Based on the
report of the Commissioner, the Election Tribunal declared the
appellant-Vadivelu as the person elected as President of the District Panchayat
and the Election Petition was accordingly allowed.
Aggrieved
by the order of the Election Tribunal, the 1st respondent, Sundaram, filed a
Revision Petition before the Hon'ble High Court, Madras under Article 227 of the Constitution of India. The learned
Single Judge held that the Election Tribunal was not justified in ordering the
recount of votes as the appellant had not made out a prima facie ground for
recounting. The learned Single Judge held that the Election Petition is bereft
of any material facts and only vague allegations have been made and the
appointment of the Commissioner for recounting of votes was illegal and
incorrect and, therefore, without jurisdiction.
The
Revision was allowed and it was held that the Election Petition would stand
dismissed with costs. Aggrieved by the above facts, the present appeal is
filed.
We
heard the appellant's Counsel Ms. Indu Malhotra and the Counsel for the 1st
respondent, Mr. R.
Sundaravardan.
The main contention urged by the appellant's Counsel is that the learned Single
Judge seriously flawed in holding that the Election Petition did not contain
the necessary pleadings for seeking recount of the votes. The appellant's
Counsel also contended that the 1st Respondent had never raised any objection when
the Commissioner was appointed by the Election Tribunal and the Commissioner
had correctly conducted the recounting of votes and declared the appellant
elected. The Counsel for the 1st respondent contended that the Election
Tribunal should not have ordered re-count of votes and there was no foundation
in the pleadings raised in the Election Petition. It was urged by the Counsel
for the 1st respondent that the Election Petition itself was liable to be
dismissed for want of necessary pleadings.
It was
also argued by the counsel for the 1st respondent that the Commissioner, who
conducted the recounting, wrongly rejected 31 ballot votes cast in favour of
the 1st respondent and according to the Counsel, in view of the Proviso to Rule
63 of the Tamil Nadu Panchayat's (Election) Rules 1995, the Commissioner should
have treated those votes as valid votes even though they did not contain the
distinguishing mark of the polling station. Counsel for the 1st respondent
further argued that the Election Petitioner had filed the application for
recount before the Returning Officer after the declaration of the result of the
election and the failure to file a proper application for recount before the
Returning Officer would disentitle the Election Petitioner from making a similar
prayer before the Election Tribunal.
The
main arguments of Counsel on either side centered round the question whether in
the instant case the Election Tribunal was justified in ordering a recount. The
circumstances under which a recount could be ordered have been considered by
this Court in various decisions. A survey of at least some of the cases would
be of much assistance to know how this Court made pronouncements on this legal
question in the settings of various factual background.
In
Satyanarain Dudhani vs. Uday Kumar Singh and Others 1993 (Supp.) 2 SCC 8, it
was held 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. Only when the High Court is satisfied on the basis of material facts
pleaded in the petition and supported by the contemporaneous evidence, that the
recount can be ordered. When there was no contemporaneous evidence to show any
irregularity or illegality in the counting, ordinarily, it would not be proper
to order re-count on the basis of bare allegations in the Election Petition.
In
Jitendra Bahadur Singh vs. Krishna Behari and Others, AIR 1970 SC 276, the
election-petitioner, who claimed to be a counting agent filed Election Petition
alleging that there was irregularity and illegality in the counting of votes.
The learned Single Judge, who was trying the Election Petition permitted the
petitioner to inspect the packets of the ballot papers containing the accepted
as well as the rejected votes of the candidates. This Court, while allowing the
appeal, held that the basic requirements to be satisfied before the Election
Tribunal can permit the inspection of ballot papers are that (1) the petition
for setting aside the election must contain an adequate statement of material
facts on which the petitioner relies in support of his case and (2) the
Tribunal must be prima facie satisfied that in order to decide the dispute and
to do complete justice between the parties, inspection of ballot papers is
necessary. The material facts required to be stated are those facts, which can
be considered as materials supporting the allegations made. In other words,
they must be such facts as to afford a basis for the allegations made in the
petition.
In D.
P. Sharma vs. Commissioner and Returning Officer and Others 1984 Supp. SCC 157,
allegations were made in the Election Petition that there was discrepancy
between the total number of ballot papers issued and ballot papers taken out
and counted from the ballot boxes. This Court held that the discrepancies
alleged in the statements prepared under Rule 45 and 56 of the Conduct of
Election Rules, 1967 do not make out a case for directing a re-count of votes
especially when the discrepancy is marginal and insignificant. In Para 4 of the
said Judgment, it was held that in order to obtain re-count of votes, a proper
foundation is required to be laid by the Election Petitioner indicating the
precise material on the basis of which it could be urged by him with some
substance that there has been either improper reception of invalid votes in
favour of the elected candidate or improper rejection of valid votes in favour
of the defeated candidate or wrong counting of votes in favour of the elected
candidate, which had in reality been cast in favour of the defeated candidate.
and
Others (1989) 1 SCC 526 is a case where the petitioner contested the election
for the post of President of a Panchayat in Tamil Nadu. In the election, the
1st respondent was declared elected and the petitioner challenged the election
on the ground that while counting, the Returning Officer had wrongly treated
some valid votes cast in favour of the petitioner as invalid votes and certain
invalid votes were treated as valid votes which were cast in favour of the 1st
respondent and that the Returning Officer had not permitted the petitioner's
agents to have scrutiny of the ballot papers at the time of counting. The
Tribunal after recording the evidence of all candidates and the Assistant
Returning Officer ordered re-count of votes.
On
recounting of votes, it was found that there was no difference in the number of
votes secured by the petitioner but insofar as the 1st respondent was concerned
he had secured only 528 votes as against 649 votes he was originally held to
have secured. 121 votes cast in his favour had been found to be invalid votes.
Based on the figures of the re-count, the Election Petitioner was declared duly
elected as he had secured 28 votes more than the 1st respondent on recount.
This order was challenged by the 1st respondent in Civil Revision Petition
before the High Court. The learned Single Judge allowed the Revision Petition
and held that the Tribunal had erred in ordering a recount of the votes when
the petitioner had not made out a prima facie case for an order of recount of
votes cast.
This
Order was challenged before this Court. This Court held in para 13 of the said
Judgment as under:- "Thus the settled position of law is that the
justification for an order for examination of ballot papers and recount of
votes is not to be derived from hindsight and by the result of the recount of
votes. On the contrary, the justification for an order of recount of votes
should be provided by the material placed by an Election Petitioner on the
threshold before an order for recount of votes is actually made. The reason for
this salutary rule is that the preservation of the secrecy of the ballot is a
sacrosanct principle which cannot be lightly or hastily broken unless there is
prima facie genuine need for it. The right of a defeated candidate to assail
the validity of an election result and seek recounting of votes has to be
subject to the basic principle that the secrecy of the ballot is sacrosanct in
a democracy and hence unless the affected candidate is able to allege and
substantiate in acceptable measure by means of evidence that a prima facie case
of a high degree of probability existed for the recount of votes being ordered
by the Election Tribunal in the interests of justice, a Tribunal or court should
not order the recount of votes." In Ram Sewak Yadav vs. Hussain Kamil
Kidwai (1964) 6 SCR 238, this Court held that an order for inspection of ballot
papers can be granted under the following circumstances:
"An
order for inspection may not be granted as a matter of course : having regard
to the insistence upon the secrecy of the ballot papers, the court would be
justified in granting an order for inspection provided two conditions are
fulfilled :
(i)
that the petition for setting aside an election contains an adequate statement
of the material facts on which the petitioner relies in support of his case;
and (ii)The Tribunal is prima facie satisfied that in order to decide the
dispute and to do complete justice between the parties inspection of the ballot
papers is necessary But an order for inspection of ballot papers cannot be
granted to support vague pleas made in the petition not supported by material
facts or to fish out evidence to support such pleas. The case of the petitioner
must be set out with precision supported by averments of material facts.
To
establish a case so pleaded an order for inspection may undoubtedly, if the
interests of justice require, be granted. But a mere allegation that the
petitioner suspects or believes that there has been an improper reception,
refusal or rejection of votes will not be sufficient to support an order for
inspection." In S. Raghbir Singh Gill vs. S.Gurcharan Singh Tohra &
Ors. 1980 Supp. SCC 53, in paragraph 31 of the Judgment, it was held as under:
"True,
re-count cannot be ordered just for the asking.
A
petition for re-count after inspection of the ballot papers must contain an
adequate statement on material facts on which the petitioner relies in support
of his case and secondly the Tribunal must be prima facie satisfied that in
order to decide the dispute and to do complete justice between the parties an
inspection of the ballot papers is necessary. The discretion conferred in this
behalf should not be exercised in such a way so as to enable the applicant to indulge
in a roving inquiry with a view to fishing out materials for declaring the
election void." In R. Narayanan vs. S. Semmalai and Others (1980) 2 SCC
537, the Election Petitioner challenged the election on the ground that there
were a number of errors in the counting of votes and that the electoral roll
itself was inaccurate. The petitioner sought for re- count of votes.
The
High Court ordered a re-count holding that although there was no clear evidence
of any irregularity in counting in the first two rounds, there was a
possibility of the counting staff being completely exhausted in the third round
which may have led to erroneous sorting and counting of votes. In ordering a
re-count the High Court was also influenced by the fact that the margin of the "returned
candidate" was only 19 votes. The Order of the High Court was challenged
before this Court. This Court reversed the order passed by High Court and after
referring to various decisions on this point, it was held as under:- "The
court would be justified in ordering re-count of the ballot papers only where:
(1)
The Election Petition contains an adequate statement of all the material facts
on which the allegations of irregularity or illegality in counting are founded;
(2) On
the basis of evidence adduced such allegations are prima facie established,
affording a good ground for believing that there has been a mistake in
counting; and (3) The court trying the petition is prima facie satisfied that
the making of such an order is imperatively necessary to decide the dispute and
to do complete and effectual justice between the parties." In M.R.
Gopalakrishnan vs. Thachady Prabhakaran and Others 1995 Supp. (2) SCC 101, the
Election Petitioner alleged that the counting was not done in a congenial
atmosphere. The allegation was that counting was held in a small hall and there
were several tables and chairs and counting agents of all the candidates along
with other officials were present in the hall; therefore, it became very
crowded and sorting out of the bundles of the ballot papers was done hastily
and, therefore, it was not possible for the agents of the petitioner to
carefully keep track of the process of sorting-out and it was alleged that the
Returning Officer rejected many votes as invalid in spite of the protest made
by the petitioner. On these allegations, the petitioner sought for re-count of
votes. That prayer was rejected by the High Court and the same was challenged
before this Court. After referring to the various decisions, it was held that
the demand of the defeated candidate for re-count 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 re-count, no
tribunal or court would be justified in directing a re-count.
The
result of the analysis of the above cases would show that this Court has
consistently taken the view that re-count of votes could be ordered very rarely
and on specific allegation in the pleadings in the election petition that
illegality or irregularity was committed while counting. The petitioner who
seeks re-count should allege and prove that there was improper acceptance of
invalid votes or improper rejection of valid votes. If only the Court is
satisfied about the truthfulness of the above allegation, it can order re-count
of votes. Secrecy of ballot has always been considered sacrosanct in a
democratic process of election and it cannot be disturbed lightly by bare
allegations of illegality or irregularity in counting.
But if
it is proved that purity of elections has been tarnished and it has materially
affected the result of the election whereby the defeated candidate is seriously
prejudiced, the Court can resort to re-count of votes under such circumstances
to do justice between the parties.
In the
instant case, the appellant in his Election Petition alleged in paragraphs 5
and 6 of the Election Petition as under: "............. The wrong
electoral roll was utilized by the Presiding Officer. The appellant and his
agents strongly protested against the wrong electoral roll. The dead persons
names were not deleted from the electoral roll, and other Panchayat Villagers
names were in the electoral roll. The 1st respondent utilized the same.
The
appellant and his agent strongly objected but the Presiding Officer, has not
taken any care about the electoral roll and impersonation. The said votes
polled in favour of the 1st respondent are void and therefore has to be
excluded.
While
counting of votes, the appellants and his agents represented these facts and
requested the counting officers and the Returning Officers both orally and in
writing to reject these votes polled by these persons. But they refused to
consider the said objections. Their such acts are illegal
..........................................................
The
Counting Officers wantonly put the appellant's valid votes to invalid vote box.
The appellant's valid votes were added in the invalid votes. The appellant and
his agents strongly objected but the Counting Officers and Returning Officers
did not care about the objections. The Counting Officers counted the votes in
favour of 1st Respondent.
"Furthermore,
the Counting Officers did not know which is valid vote and which is invalid
vote. During the polling votes, the Booth Officers received the thumb
impression from some voters and gave the ballot papers. The thumb impression
ink marks available in the ballot papers. The same votes were rejected and put
into the invalid votes.
The
Counting Officers were newly appointed. They were not properly counting the
votes. The Counting Officers were counting the votes very fast and they had not
shown the ballots to the agents, even when they raised objection. The Counting
Officers threatened the Appellant's agent and told him that they are supreme
authority for counting votes.
...............................
Finally, the Returning Officer announced that the 1st Respondent had secured
1011 votes. Appellant secured 1010 votes. The difference is only one vote. More
than 100 votes were added in the invalid votes by the Counting Officers. Some
invalid votes were included to the 1st Respondent which were void and which
ought to have been rejected. The Counting Officers and the Returning Officers
had not seen the intention of the voters in the ballot." From the above
pleadings, it is evident that the appellant has not set forth material facts or
particulars required for re-count of votes. To justify his contention that
there was irregularity or illegality in the counting, except making some
general and bald allegations, no other details are given. Though an allegation
is made that electoral roll contained the names of dead persons, that the 1st
respondent took advantage of the same, and that some persons had impersonated
and cast votes in his favour, no details are given as to who committed such
irregularity.
The
appellant has also not mentioned as to how many such votes had been cast in
favour of the 1st respondent. So also, the appellant has not alleged the nature
of the illegality or irregularity said to have been committed by the counting
officers. How and in what manner there was improper acceptance of invalid votes
and improper rejection of valid votes also is not explained by the appellant.
In short, the Election Petition is bereft of all details and the appellant,
while examined as PW 1, could not supplement anything by way of evidence.
The
appellant has contended that an application for re-count was made by him before
the Returning Officer. Rule 66 of the Tamil Nadu Panchayats (Elections) Rules,
1995 states that after the completion of counting and recording in Form 22 the
total number of votes polled by each candidate under sub-rule (2) of rule 64,
the Returning Officer shall announce the same. After such announcement, and
before the declaration of the result of the election, a contesting candidate or
in his absence, his election agent may apply in writing to the Returning
Officer for a recount of all or any of the votes already counted stating the
grounds on which he demands such recount. Sub-rule (2) of Rule 66 further says
that on such application being made, the Returning Officer shall decide the
matter and may allow the application in whole or in part, or may reject it in
toto if it appears to him to be frivolous or unreasonable.
Therefore,
an application for recount shall be made before the declaration of the result
of the election, but after the completion of the counting, when such result is
entered in part II of Form 20. This form is to be signed by the Counting
Supervisor and the Returning Officer.
The
appellant-Election Petitioner in this case has not stated as to when did he file
the application for re-count.
He has
stated that he had given an application to the Returning Officer for recounting
of votes and the request for recounting was not accepted. At the time of the
evidence also, the appellant has not stated as to when did he file the
application. In cross-examination, he stated that at about 10.00 p.m. on 14.10.1996, it was announced through loud speaker
that the 1st respondent was elected and he denied the allegation that the
application for re-count was made at 11.45 p.m. The 1st respondent was examined as RW 1. He deposed that the result of
the election was declared at 10.30 p.m. and
in all probability, the appellant filed an application for re-count after the
result of the election was declared. Therefore, the application for re-count
was not filed in accordance with Rule 66 of the Tamil Nadu Panchayats
(Elections) Rules, 1995.
It is
all the more important to note that the appellant sought to set aside the
election of the 1st respondent and in the Election Petition urged the grounds
under Section 259(2)(d)(iii) & (iv) of the Tamil Nadu Panchayats Act, 1994
and the relevant provision is to the following effect:- "259. Grounds for
declaring elections to be void.
(1)
Subject to the provisions of sub-section (2), if the District Judge is of the
opinion (a) XXXXXX (b) XXXXXX (c) XXXXXX (d) that the result of the election in
so far as it concernes a returned candidate has been materially affected --
(i)-(ii) XXXX (iii) by the improper acceptance or refusal of any vote or reception
of any vote which is void; or (iv) by the non-compliance with the provisions of
this Act or of any rules or orders made thereunder, the court shall declare the
election of the returned candidate to be void." But in the Election
Petition, the appellant has not stated that by the alleged improper acceptance
or refusal of any vote or reception of any vote, which is void, or by the
alleged non-compliance with the provisions of the Act or of any rules or orders
made thereunder, the result of the election of the 1st respondent had been
materially affected.
The
appellant was examined as PW 1. At the time of the evidence also, he had not
stated that because of the alleged illegality or irregularity, the result of
the election had been materially affected. Grounds under Section 259(2) could
successfully be urged only if it is proved that the election of the returned
candidate had been materially affected.
The
Counsel for the 1st respondent contended that the Commissioner while counting
postal ballot papers illegally rejected 31 votes cast in favour of the 1st
respondent on the ground that these ballot papers did not contain the signature
of the Presiding Officer. Three votes cast in favour of the appellant also were
rejected by the Commissioner on the same ground. The Commissioner held the view
that Rule 63(1)(h) of the Tamil Nadu Panchayat(Election) Rules, 1995 requires
that the postal ballot paper shall contain the signature of the Presiding
Officer as well as the distinguishing mark of the polling station. The procedure
for issuance of postal ballot papers is given under Rule 51, which says that
before any ballot paper is delivered to an elector, the Presiding Officer shall
sign his name in full on the back of each ballot paper and affix the
distinguishing mark of the polling station.
The
relevant portion of Rule 63 of Tamil Nadu Panchayat(Election) Rules, 1995 reads
as follows:- "63. Rejection of ballot papers. (1) A ballot paper shall be
rejected.- (a)-(g) XXXXXX (h) if it does not bear both the distinguishing mark
and/or the signature of the Presiding Officer which it should have borne under
the provisions of sub-rule (1) of rule 51 or the words "elector on
election duty" under sub-rule(1) of rule 52, or (i) XXXXXX 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, the ballot paper shall not be rejected merely on
the ground of such defect.
XXXXXX"
The rejected ballot paper did not contain the signature of the Presiding
Officer, though it contained the distinguishing mark of the polling station.
Rule 63(1)(h) dealing with rejection of ballot papers provides that in order to
reject ballot papers it should be one not bearing "both the distinguishing
mark and/or the signature of the Presiding Officer". Therefore, a
harmonious construction of Rule 51 and 63 would show that in order to reject a
postal ballot paper, the same should have lacked both the features, viz; the
signature of the Presiding Officer as well as the distinguishing mark of the
polling station. In the instant case, it is evident that due to some mistake or
inadvertence, the Presiding Officer did not sign these ballot papers. The
absence of signatures under the circumstances could not invalidate the ballot
paper, which bore the distinguishing mark of the polling station.
Therefore,
the Commissioner went wrong in declaring these votes as invalid. That apart, it
may be noted that had these votes been treated as valid by the Commissioner,
even on re-count, the 1st respondent would have secured the highest number of
votes.
The
appellant-Election Petitioner could not make out a case for re- count of votes.
He filed the application for re-count before the Returning Officer only after
the declaration of result and that was rightly rejected by the Returning
Officer. The appellant had no case that the illegality or irregularity, if any,
committed had materially affected the result of the election. Taking all the
aspects into consideration, we are of the view that the learned Single Judge
was perfectly justified in holding that the Election Tribunal erred in
appointing a Commissioner and ordering the re-count of votes. The Counsel for
the appellant contended that the powers of the Revisional Court are not as wide as the powers of the Appellate Court and,
therefore, the learned Single Judge should not have set aside the order passed
by the Election Tribunal. We do not find any force in this contention. When
there is error of jurisdiction or flagrant violation of the law laid down by
this Court, by exercising the revisional powers, the court can set aside the
order passed by the Tribunal to do justice between the parties. The illegality
committed by the Election Tribunal has been corrected by the Revisional Order.
We find no merit in the present appeal and the same is dismissed.
Having
regard to the facts and circumstances, there will be no order as to costs.
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