Mahendra
Pal Vs. Shri Ram Dass Malanger & Ors [2002] Insc 100 (1 March 2002)
M.B.
Shah & B.N. Agrawal Shah, J.
This
appeal under Section 116-A of the Representation of the People Act, 1951
(hereinafter referred to as "the Act") is filed against the final
judgment and order dated 4.5.2001 passed by the High Court of Himachal Pradesh
at Shimla in Election Petition No.1 of 1998.
The
election petition was filed by the appellant for setting aside the election of
respondent No.1. It is submitted that the appellant contested the election as a
candidate sponsored by the Indian National Congress while respondent No.1
contested the election as candidate sponsored by the Bhartiya Janta Party.
Appellant secured 11,657 votes and respondent No.1 secured 11,660 votes. Therefore,
respondent No.1 was declared elected by a margin of three votes only. It was
alleged that the said election result was vitiated because of improper
reception of invalid votes in favour of respondent No.1 and improper rejection
of valid votes in favour of appellant. It was also contended that many
irregularities were committed during the course of counting which had
materially affected the result of election insofar as the returned candidate is
concerned. It was pointed out that total number of ballot papers which were
shown to have been distributed were 35310, but after counting the votes, ballot
papers as per Form 20-A were shown to be 35318, which indicated that eight
votes which had been counted in excess had been illegally counted in favour of
the returned candidate.
Firstly
it is to be stated that election petition filed by the appellant was rejected
on preliminary issue namelyelection petition lacks in material facts and
particulars and do not furnish a cause of action, as alleged. That order was
challenged before this Court in Civil Appeal No.4085 of 1998 and this Court
allowed the appeal by judgment and order dated 27.10.1999 {reported as Mahendra
Pal v. Ram Dass Malanger and others, [(2000) 1 SCC 261]}, by holding that
election petition did contain an adequate statement of material facts on which
the allegations of irregularities and illegalities in counting were founded.
The Court, therefore, directed the designated Judge to decide the election
petition afresh on merits expeditiously.
Learned
counsel for the appellant relied upon the observations of this court in said
appeal [in paragraphs 30 and 31] and contended that the High Court ought to
have granted application for recount of the votes. The said observations read
thus: - "30. In the present case, it is not disputed, as indeed it cannot
be, that in Form 20-A, Ex.P-2, it is recorded that the total number of votes
found in the ballot boxes of 82 polling stations pertaining to this
constituency were 35,310 whereas a perusal of the statement of "roundwise
detailed result of counting", certified copy whereof is Ex.P-3, records
that the total number of valid and rejected votes counted for the purpose of
declaring the result were 35,318. A difference of 8 votes had been projected in
Annexure P-2 and Annexure P-3. The margin of difference between the votes
polled by the election petitioner and the returned candidate, in the present
case, was only 3 votes. Unless a satisfactory explanation was furnished during
the trial about the discrepancy, there would be need to inspect the ballot
papers to clarify doubts regarding the excess counting of 8 votes, allegedly in
favour of the returned candidate. This was also necessary to dispel doubts
about the allegations of irregularity in counting. Had the Returning Officer,
instead of rejecting the application for re-count made a test check, soon after
the declaration of result, he could have silenced the scepticism and removed
all doubts but since that was not done, the learned Designated Judge ought to
have considered the matter in its correct perspective.
31.
Indeed, re-count of ballot papers cannot be ordered just for the asking but it
is equally well settled that while maintenance of secrecy of ballot is
sacrosanct, maintenance of purity of election is equally important."
Undisputedly, after remand of this matter, the appellant was required to lead
necessary evidence. The appellant has not examined any witness to establish
that eight ballot papers which were found to be in excess in ballot boxes of 82
polling stations, were unauthorisedly added by someone. No such exercise was
undertaken by the appellant. There was no reason for the appellant not to
examine the Returning Officer or such other officer who was at the relevant
time Counting Supervisor. In support of his case, it is true that the appellant
has examined PW1 Kamlesh Kumar Pant, Deputy Commissioner-cum-District Election
Officer. However, he has stated that he was not the Returning Officer at the
time when the elections of State Assembly were held in February, 1998. No
questions were asked to him whether there was any mistake in total number of
35310 original forms 16-A or original forms 20-A prepared by the Returning
Officer. On the contrary, he has stated that two tendered votes which were
recorded were not reflected in polling booth nos.10 and 78.
Similarly,
one tendered vote was also not reflected in Ex.P.83. He has also produced on
record original consolidated statement of counting of votes, wherein total
number of votes counted (valid and rejected) were 35318. He has also clarified
that he was not present at the time of counting and he cannot identify the
signatures of the officers on the documents which were produced on record.
Thereafter, the appellant has not examined any other witnesses in support of
his case except examining himself.
In his
deposition, appellant has stated that he was personally present at the time of
counting; there were six tables for counting of votes and all ballot boxes
pertaining to 82 polling booths were brought to the hall; after separating the
ballot papers, counting of the total ballot boxwise was carried out and
thereafter form 16-A was prepared. It was his say that the staff deployed for
counting of votes of the Parliamentary Constituency had also crossed over to
the tables set up for counting of votes of Assembly Constituency. The other
persons who were working in the offices had also entered the counting hall and
to that he had objected but his protest was not acceded to by the Returning
Officer. It is his say that it appeared to him that some bungling might have
taken place during such time resulting into the difference in total number of
votes by eight in order to favour respondent no.1. He has also produced on
record a copy of application for the purpose of recounting of votes given to
the Returning Officer. In cross-examination, he has admitted that he had
appointed two polling agents each in all the booths and that he had received
complaint from polling agents only in respect of three fake votes having been
cast i.e. one each at polling booth no.10, 76 and 78.
He
admits that he was not remembering as to who were his polling agents at booth
number 10. He also admits that no written complaint was made by him to the
authorities with regard to the fake votes having been cast at booth no.10.
Similar is the statement for booth nos.76 and 78. He also admitted that he has
not stated aforesaid facts in his election petition or in the rejoinder. He
pertinently admitted that no objection was raised by him with the Returning Officer
during the course of any of the counting and the fact regarding the differences
of votes was also not mentioned by him in his application for re-counting. It
is his say that he had come to know about the difference of votes only after he
had obtained the certified copy of the various statements and that he claimed
re-counting only on the ground of small margin of victory of respondent no.1.
No other irregularity in the counting was pointed out by him in such counting.
Further, it is admitted by him that he has not filed any complaint against any
member of election staff either before or after declaration of result.
Finally,
he also admitted that all the votes polled were counted in six rounds in
presence of his counting agents and during the course of counting no objection
was made by him with regard to number of votes found in each bundle either less
or more. He denied the suggestion that total number of votes polled and found
in counting were 35318 and a mistake was committed in mentioning a total as 35310
in Ex.P.83.
As
against this, respondent has led his evidence and stated that counting was in
accordance with set procedure and no objection or complaint was made by any of
the candidates during the course of counting. There was no dispute with regard
to the correctness of the note prepared by the counting staff. It is his say
that the appellant filed application for recounting after about half an hour of
counting and that was rejected by the Returning Officer there and then after
due consideration by a detailed order.
From
the aforesaid evidence, it cannot be held that there was any irregularity or
illegality in counting of votes. The appellant has not even stated in his
deposition that eight ballot papers were illegally inserted at the time of
counting of votes. It is for the appellant to establish his case of
irregularities or illegalities in counting of votes.
If
there is no evidence, in our view, the High Court rightly rejected the
application for recounting.
However,
learned counsel for the appellant submitted that as there was discrepancy of
eight ballot papers issued as per form 16-A and votes polled, it should be held
that this was a fit case for recounting, particularly in the present case where
difference of votes secured by the appellant and respondent was only by three
votes.
In our
view, this submission cannot be accepted. Section 100 (1)(d)(iii) of the
Representation of the People Act, 1951 inter alia provides that in such cases
petitioner has to establish
(a) election
has been materially affected;
(b) by
the improper reception, refusal or rejection of any vote or the reception of
any vote which is void.
From
the evidence on record, there is nothing even to suggest that there was
reception of any invalid or void vote. No foundation or evidence is led by the
appellant that there was improper reception, refusal or rejection of any vote
nor there is any submission made by him that any vote which was void was taken
into consideration in favour of the respondent.
The
law on this aspect is well settled. While dealing with similar contention, this
Court in R. Narayanan v. S. Semmalai and others [(1980) 2 SCC 537] held that
election, being a technical matter, the authorities choose experienced persons
to do the counting and took every possible care to see that the members of the
staff do not commit any error. Moreover, the relief of re-counting cannot be
accepted merely on the possibility of there being an error. The Court observed,
"it is well settled that such allegations must not only be clearly made but
also proved by cogent evidence." The Court also held that the margin by
which the appellant succeeded was very narrow. This was undoubtedly an
important factor to be considered but would not by itself vitiate the counting
of votes or justify re- counting by the court. Thereafter the Court referred to
earlier decisions and held (in para-26) thus:
"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."
The
aforesaid law is well settled and it does not require further elaboration. In
D.P. Sharma v. Commissioner and Returning Officer and others [1984 (Supp.) SCC
157] the Court dealt with the discrepancy as regards finding of less ballot
papers from the ballot boxes than what had been issued and used by the voters
as well as the discrepancy which pertains to finding of excess ballot papers
from the ballot boxes over and above those which had been issued and used by
the voters and on the facts of that case observed that these discrepancies are
insignificant in character and could be safely attributed to accidental slip or
clerical or arithmetical mistakes that must have been committed at the time of
counting and preparation of the statements in Forms 16 and 20. The Court
pertinently further observed that these discrepancies by themselves do not make
out a case for directing a recount of votes and that it is well established
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. In P.K.K. Shamsudeen v. K.A.M. Mappillai
Mohindeen and others [AIR 1989 SC 640] this Court in para 15 held that an order
of recount of votes must stand or fall on the nature of the averments made and
the evidence adduced before the order of recount is made and not from the
results emanating from the recount of votes.
In Satyanarain
Dudhani v. Uday Kumar Singh and others [1993 Supp. (2) SCC 82] this Court
observed that an order of recount cannot be granted as a matter of course and
unless the High Court is satisfied on the basis of material facts pleaded in
the petition and supported by contemporaneous evidence, recount cannot be
ordered. Similarly, in Vadivelu v. Sundaram and others [(2000) 8 SCC 355], this
Court (in para 16) held that re-count of votes could be ordered very rarely and
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 allegation, it can
order re-count of votes. 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
V.S. Achuthanandan v. P.J. Francis and another [(2001) 3 SCC 81], the Court
held that the election petitioner cannot be permitted to make out a case for
re-count of ballot papers on a ground for which there is no foundation laid by
him, not even a whisper, in the pleadings and which does not appear to have a
ring of truth, even prima facie.
In
view of the aforesaid discussion, as the appellant has not led any evidence or
laid foundation stating that there was improper reception of vote in favour of
the respondent or improper rejection of any vote which were in his favour, and
that he has not raised any objection at the time of counting of votes on the
basis of so-called excess of 8 ballot papers, the High Court rightly refused to
re- counting of votes. The discrepancy of 8 ballot papers could be attributed
to accidental slip or clerical or arithmetical mistakes which might have been
committed at the time of preparation of the statements in Forms 16 and 20.
In the
result, the impugned order passed by the High Court does not call for
interference in this appeal. The appeal is, therefore, dismissed with costs
throughout.
J.
(M.B.
SHAH) J.
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