Moti Lal vs Incharge Distt. ...
2013 Latest Caselaw 6591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

	Reserved
 
Writ Petition No.4908 (M/S) of 2011
 
Moti Lal							          ... Petitioner
 
Versus
 
Incharge District Judge/Additional District Judge,                   ... Opp. Parties
 
Court No.2, Pratapgarh and others
 
--------------
 
Hon'ble S.S. Chauhan, J.

This writ petition has been filed for quashing of the orders dated 6.8.2011and 28.7.2011passed by the opposite parties no.1 and 2 respectively.

The facts leading to the present dispute, are that election of Gram Pradhan of Gram Panchayat Pure Birbal was held on 22.10.2010 in which eight candidates including the petitioner contested for the post of Gram Pradhan. Result of the said election was declared on 30.10.2010 and the petitioner was declared successful with 303 votes and one Santosh Kumar stood second with 301 votes, as a consequence of which the Assistant Returning Officer/Election Officer issued a certificate to the petitioner declaring him to be the Gram Pradhan of Gram Panchayat, Pure Birbal. Feeling aggrieved with the aforesaid action, Santosh Kumar preferred an Election Petition on 1.12.2010 before the Sub-Divisional Magistrate, Lalganj, Pratapgarh praying therein that election result of the aforesaid Gram Panchayat may be declared invalid and with a further prayer for recounting of votes and thereafter declaring the opposite party no.5 as new Pradhan. During the pendency of the aforesaid election petition, Santosh Kumar also preferred Writ Petition bearing no.12485(MB) of 2010 before this Court and this Court vide order dated 22.12.2010 was pleased to dispose of the said petition with a direction to the prescribed authority to decide the election petition within a period of one year in accordance with law. This Court also directed that if any application for recounting of votes is moved, the same shall also be decided within a period of six months. Thereafter, Assistant Returning Officer/Election Officer vide letter dated 18.2.2011 submitted a detailed reply to the Sub-Divisional Magistrate in the election petition denying all the allegations made in the election petition. In para 6 of the reply, it has been stated that total 1227 votes were polled and out of 1227 votes, 1154 votes were valid and the remaining 73 votes were invalid, as such the allegation of Santosh Kumar that 75 votes were illegally rejected is incorrect. It was further stated by the Assistant Returning Officer in his reply that any vote polled in favour of any candidate was not rejected by him nor under any pressure whatsoever and no illegality has been committed in the counting process. In para 7 of the reply, it was also stated that no application for recounting was ever made by Sri Santosh Kumar during or after the counting process. It was further stated that since Sri Santosh Kumar was defeated in the aforesaid election, as such due to disappointment, the aforesaid election petition was preferred by him. Petitioner also filed his written statement before the Sub-Divisional Magistrate. Thereafter, statements of Santosh Kumar and Harish Kumar (agent of Santosh Kumar) were recorded on 23.7.2011 and the statement of Rudra Narain Mishra (agent of the petitioner) was recorded on 25.7.2011.

The Sub-Divisional Magistrate after considering the entire material on record and also the statements of the witnesses, passed an order on 28.7.2011 by means of which he admitted the election petition and directed for recounting of votes on the ground that the election symbol of the petitioner and Santosh Kumar were side by side, as such there must have been some irregularity in the counting process; secondly since the difference of votes secured by both the parties is only of two votes, as such if the statement of Santosh Kumar is construed to be true, then the election result would be materially affected and lastly that both the sides in their statements have alleged that their valid votes were declared as invalid, which were in their favour. Feeling aggrieved with the aforesaid order, petitioner preferred a revision before the revisional authority, which too was dismissed on 6.8.2011 as not maintainable. Hence this petition.

Submission of counsel for the petitioner is that recounting application was not maintainable and the election petition ought to have been decided. It is also submitted that there was no evidence to support the case for recounting and the ground to set aside the election is different from the recounting. He has further submitted that the parameters and the legal requirements for recounting were not fulfilled by the election petitioner, so no recounting could have been ordered by the Sub-Divisional Magistrate. The evidence is lacking in this regard and on the basis of pleadings in the election petition and the evidence adduced in support of it, no case for recounting was made.

In support of his contention, counsel for the petitioner has relied upon the following cases:-

Bhabhi vs. Sheo Govind and others, (1976) 1 SCC 687;

S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra and others, 1980 (Supp.) SCC 53;

Ram Adhar Singh vs. District Judge, Ghazipur and others, 1985 UPLBEC 317 (FB) ;

Vadivelu vs. Sundaram and others, (2000) 8 SCC 355;

P.H. Pujar vs. Kanthi Rajashekhar Kidiyappa and others, (2002) 3 SCC 742 ;

Shiv Shanker Chauhan vs. Amla and others, 2009 (27) LCD 52 ;

R. Narayanan vs. S. Semmalai and others, (1980) 2 SCC 537 ; and

Smt. Sushma Devi vs. State of U.P. and others, 2008 (26) LCD 919.

Counsel for the opposite parties, on the other hand, has submitted that all the ingredients for recounting were fulfilled and the evidence was also led in support of recounting. The Sub-Divisional Magistrate after considering the pleadings in the election petition and the evidence on record, which was led in support of the pleadings, came to the conclusion that recounting was necessary so as to ascertain as to whether the result was properly declared after counting. An objection regarding recounting was raised by the agent of opposite party no.5, but his objection was turned down and recounting was not made though there was gross bungling in the counting and for recounting a FXA message was sent to the Election Commissioner and a registered letter was also sent on 1/2.11.2010. He further submits that it is wholly wrong to say that no prayer was made for recounting, but in fact every effort was made for recounting looking to the gross bungling done in the counting, but his attempt failed in spite of the best efforts made by the agent of opposite party no.5. It has also been submitted that a specific case has been set up in the election petition that there was irregularity and illegality in the counting of ballot papers and the objection of agent of opposite party no.5 was over ruled. The pleading in regard to recounting is complete as it has specifically been stated in para 5 of the election petition that 38 votes were treated as invalid votes on account of some confusion in the seal, which was not clear and in some of the ballot papers, the thumb impression has been appended instead of seal. Out of the total 75 ballot papers, which were declared invalid, mostly it contained the votes of opposite party no.5. The rules applicable for recounting were not followed and if those 38 invalid votes are counted properly and scrutinized, then opposite party no.5 has to be declared as elected. The evidence in support of the aforesaid pleading has also been adduced and the witnesses, namely, opposite party no.5 and his agent Harish Kumar have specifically proved the case for recounting. In the aforesaid background, it has been submitted that there is no illegality in the order passed by the Sub-Divisional Magistrate and recounting is justified in the facts and circumstances of the case.

I have heard counsel for the parties and perused the record.

The argument of the counsel for the petitioner has to be considered in the context of the law propounded by the apex Court as well as by this Court in various cases, which are as follows:-

In the case of Bhabhi (supra) the apex court while considering the question for recounting held as under :-

" 5. Before, however, dealing with the order passed by the learned Judge it may be necessary to refer to a number of authorities of this Court on the circumstances under which an inspection of the ballot papers, or for that matter a sample inspection, can be allowed. In the case of Ram Sewak Yadav (supra) the matter was considered at great length and this Court pointed out that an order for inspection could not be granted as a matter of routine but only under special circumstances and observed as follows :

"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 believe, that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."

6. Two years later in Dr. Jagjit Singh's case (supra) this Court observed on the facts of that case that the discretion to allow inspection of ballot papers should not be used in such a way so as to make a roving or fishing inquiry in order to discover materials for declaring the election void.

In this connection, this Court made the following observations :

"The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the, Tribunal can order the inspection of the ballot boxes................... An application made for the inspection at ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void."

7. In Jitendra Bahadur Singh's case (supra) the order of the Election Judge granting inspection of the ballot papers was reversed by this Court because the Court thought that the learned Judge had not followed the essential conditions laid down before granting the prayer for inspection of the ballot papers. In that case the Court held that the allegations were vague and indefinite, no material fact was pleaded and further that the petitioner was present at the time of counting and yet he did not take any objection regarding the illegal rejection of the votes. In this connection Hegde, J., speaking for the Court laid down the following principles:

(1) that the petition for setting aside the election must contain an adequate statement of the 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 the ballot papers is necessary.

The cases of Ram Sewak Yadav and Dr. Jagjit Singh mentioned (supra) were referred to and relied upon by Hegde, J., in his judgment.

10. In the case of Sumitra Devi (supra), Mathew, J., after reviewing the previous authorities of this Court, held as follows :

"In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection."

11. In S. Baldev Singh v. Teja Singh Swatantar (dead) & Ors(1) Krishna Iyer, J., remarked as follows :

"Coming to the facts of this case, we have already indicated that no good grounds for a Court order for inspection and recount, particularly after the Sherpur experiment, exist. Although we are free to admit that an imaginative Returning Officer might have quietened the qualms and silenced the scepticism of the appellant by a test check or partial recount, proceeding to a full recount if serious errors were found, we are inclined to agree with the High Court, there being no reason to reverse its elaborately discussed conclusions, and the relief of recount was rightly rejected."

12. In Beliram Bhalaik v. Jai Beharl Lai Kachi and Anr.(1) Sarkaria J., speaking for the Court, observed as follows :

"Since an order for a recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter of course. Although no cast iron rule of universal application can be or has been laid down, yet, from a beadroll of the decisions of this Court, two broad guidelines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal 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."

13. In Suresh Prasad Yadav v. Jai Prakash Mishra & Ors.(2) while summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers, the Court adumberated the circumstances in which a prayer for inspection of ballot papers could be considered and observed as follows :

"Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is twofold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost foolproof. Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus The Court would be justified in ordering a recount 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."

These principles were reiterated in Chanda Singh v. Ch.Shiv Ram Varma and others,(1) where speaking for this Court, Krishna Iyer, J., observed thus

"On all hands, it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. We would only like to stress that in the whole process, the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity,propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer. We may even say that no winning candidate should be afraid of recount and, conditions as they are, a sceptical attitude expecting the unexpected may be correct, informed of course by the broad legal guidelines already set out."

14. Lastly in Ch.Manphul Singh v. Ch. Surinder Singh(2) the Court upheld the order of the High Court allowing inspection of ballot papers because the High Court had given a finding that the evidence of the witnesses was sufficient to prove the allegation of impersonation, in that case. The Court further held that the High Court did not act arbitrarily in granting the prayer for inspection.

15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers :

(1) That it is important to maintain the of the ballot which is sacrosanct and should not be allowed to be violated on, vague and indefinite allegations;

(2) That before inspection is allowed, the allocations 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.

If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.

16. In the instant case we find that the learned Judge while passing the order of sample inspection made no attempt to apply the principles mentioned above to the facts of the present case. What is more important is that the Court actually noticed some of the important decisions of this Court which we have discussed and yet it did not try to test the principles laid down on the touchstone of the allegations and the material facts pleaded by the respondent. Another error into which the learned Judge had fallen was that he did not realise that by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void a course which has been expressly prohibited by this Court, because it sets at naught the electoral process and causes a sense of instability and uncertainty amongst the duly elected candidates. Thirdly, while the learned Judge has observed that the Court must be prima facie satisfied regarding the truth of the materials, but it did not choose to record its satisfaction on the application of the respondent at all and has readily accepted the suggestion of the respondent for sample inspection on the ground that it was necessary for the ends of justice. Such an approach, in our opinion, is legally erroneous. While indicating in his order that both the parties had produced some affidavits before him in support of their pleas, the learned Judge has not at all tried to appreciate or consider the evidence in order to find out whether it was worthy of credence. In the absence of any such finding it was not open to the learned Judge to have passed an order for sample inspection just for the asking of the respondent.

17.Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. in the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under r. 63 of the Conduct of Election Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under r. 63 of the Conduct of Election Rules, 1961. Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as our's where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate ,over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidates The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds."

The apex Court considering the evidence of the said case and the pleadings of the parties and the material adduced in support of their case, came to the conclusion that prima facie case for recounting was not made out, but rather by allowing sample inspection he had provided an opportunity to the respondent to indulge in a roving inquiry in order to fish out materials to justify his plea in order to declare the election to be void.

In the case of S. Raghbir Singh Gill (supra), the apex Court held as under:-

" 31. It was, however, contended that apart from the prohibition enacted in s. 94 ensuring secrecy of ballot, the order dated October 25, 1977, is erroneous and unsustainable on facts disclosed in the petition and the evidence recorded till the date of the order. It was contended that the allegations in this behalf in the election petition are vague and wholly devoid of particulars. Says, Mr. Mridul, that virtually the petitioners themselves confess this position when they say that they were hardly in a position to make any specific assertion, a fact demonstrably established, that the election petitioners were not in a position to state the exact method and process adopted by the returning officer and his associates in tampering with the postal ballot. Undoubtedly, in para 18 of the petition the election petitioners have said that they are not in a position to state the exact method and process adopted by the returning officers and his accomplices to tamper with the postal ballots. This is in substance a petition for recount. True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers 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. Only on the special facts of a given case sample inspecting 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. This is well settled by a catena of decisions. (see Jitendra Bahadur Singh v. Krishna Behari & Ors.,(1) Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav & Ors.,(2) Bhabhi v. Sheo Govind & Ors.,(3) Ram Autar Singh Bhadauria v. Ram Gopal Singh & Ors.,(4) and R. Narayanan v. S. Semmalai & Ors(5).

32. The petitioners aver in the petition that the returning officer in collaboration and conspiracy with the Superintendents of Jails and under the directions of Giani Zail Singh the then Chief Minister, to help the present appellant, tampered with the postal ballots and changed four of them to this extent that they should be considered and counted as first preference votes for the appellant instead of respondent 1, the unsuccessful candidate. There is also an assertion that when the postal ballot papers were sorted out for the purpose of counting, M. S. Khera. P.W. 2, the counting agent of respondent 1 found to his dismay that the four postal ballot papers were tampered with and the manner in which the tampering appeared to have been done has also been set out in the petition. It was also stated that there was overwriting and there were interpolations in the ballot papers inasmuch as what was originally first preference vote was made to appear second preference and the first preference vote was indicated in favour of the appellant. It was alleged that the counting agent M.S. Khera and his companions objected to receiving the four tampered postal ballot papers in favour of the appellant. This shows that there were sufficient allegations in the election petition about the tampering of four postal ballot papers. Undoubtedly, the method employed in tampering being hatched in and carried out in secrecy may not be known or may not come to light but the result of tampering became manifest as soon as the postal ballot papers were taken out of the envelopes and sorted out for counting. Coupled with this one must remember that eight electors being members of the Legislative Assembly had voted by postal ballot. Those who opted for postal ballot papers were detenus detained under the Maintenance of Internal Security Act. Who they were was known to every one inasmuch as seven of them belonged to Akali Party and one was a member of Jan Sangh. Their political alignments were known. Therefore, when the postal ballot papers were opened and the counting agent of Akali candidate respondent 1 found that four out of eight postal ballot papers appeared to have been tampered with it was easy for him to deduce that the four voters belonging to Akali Party, if the ballot disclosed a true state of affairs, had cast their votes in favour of the appellant, a candidate opposed to the official Akali candidate. Simultaneously a mere glance at those tampered postal ballot papers would show that the tampering was rather crude and no expertise was necessary to form an opinion that these four postal ballot papers were tampered. And these allegations have been made in the petition. A petition for a recount on the allegation of miscount or error in counting is based upon not specific allegation of miscounting but errors which may indicate a misconduct and recount becomes necessary. When it is alleged that postal ballot papers were tampered with, the implication in law is that those postal ballot papers have been wrongly received in favour of a candidate not entitled to the same and improperly refused in favour of the candidate entitled to the same, and this is a miscount and recount is necessary. In the very nature of things the allegation can be not on each specific instance of an error of counting or miscount but broad allegations indicating error in counting or miscount necessitating a recount.

46. Section 100(1)(d)(d)(iii) comprehends a situation where the result of an election in so far as it concerns a returned candidate has been materially affected by improper reception, or improper refusal of any vote or the reception of any vote which is void. The objective 'improper' qualifies not only the word 'reception' but also the word 'refusal'. When a vote is received by the Returning Officer at the time of counting it implies two things, that it is not only received as a valid vote but that the valid vote is cast in favour of one of the contesting candidates at the election. Similarly, when it is said that there is improper refusal of any vote it implies again two things, viz., a vote which ought to have been accepted as valid vote has been improperly refused as an invalid vote, or there is an improper refusal to accept the vote in favour of a particular candidate. On a pure grammatical construction of the relevant clause it cannot be gainsaid that an improper reception of any vote or an improper refusal of any vote implies not only reception or refusal of a vote contended to be invalid or valid, as the case may be, but consequent reception in favour of any contesting candidates at the election which would simultaneously show the vote being refused in counting to any other candidate at the election. The expression `refusal' implies `refuse to accept' and the expression `reception' implies `refuse to reject'. Apart from the setting and the context in which the clause finds its place, in its interpretation it is to be borne in mind that it seeks to specify one of the grounds for declaring an election to be void. In this situation the expressions `improper reception' and `improper refusal' have to be interpreted as would carry out the purpose underlying the provision contained in s. 100."

In the case of Ram Adhar Singh (supra), this Court after considering the various judgments of the apex Court, held as under:-

" 19. Applying the principle with regard to inspection of ballot paper enunciated by the Supreme Court in cases arising under the Representation of People Act to an election petition dealt with under the provisions of the U.P. Panchayat Raj Act, there is no escape from the conclusion that before an authority hearing the election under the said Act can be permitted to look into or to direct inspection of the ballot papers, following two condition must co exist:-

(1)that the petition for setting aside an election contains the grounds on which the election on the respondent is being questioned as also summary of the circumstances alleged to justify the election being questioned on such ground; and

(2)the authority is, prima fcie, satisfied on the basis of the materials produced before it that there is ground for believing the existence of such ground and that making of such an inspection is imperatively necessary for deciding the dispute for doing complete justice between the parties.

It, therefore, follows that in the absence of any specification with regard to the ground on which the election of the responder is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground, it is not open to the authority dealing with an application under Section 12-C of the U.P. Panchayat Raj Act, either to look into or direct inspection of ballot papers merely on the ground that it feels that it would be in the interest of justice to look into or permit inspection of the ballot papers. In the context, such satisfaction has necessarily to be based on specific averments made in and the materials indicated in the election petition which could, prima facie, satisfy the authority about the existence of the ground on which the election is sought to be questioned."

In the case of Vadivelu (supra), the apex Court held as under:-

" 7. 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.

8. 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.

9. 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.

10. 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.

11. P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen 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."

12. 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."

13. 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."

14. 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.

16.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 case of P.H. Pujar (supra), the apex Court held as under:-

" 13. In Vadivelu v. Sundaram & Ors. [(2000) 8 SCC 355] this Court speaking through one of us, Balakrishnan, J., considered the question whether recount was justified or not, the circumstances under which it could be ordered, on a survey on some of the earlier decisions held that the recount of votes could be ordered very rarely and on specific allegations in the pleading in the election petition that illegality or irregularity was committed while counting. The petitioner seeking recount should allege and prove that there was improper acceptance of votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the said allegations it can order recount 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 and 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 recount of votes under such circumstances to do justice between the parties. In T.H. Musthaffa vs. M.P. Verghese & Ors. [(1999) 8 SCC 692] upholding the view taken by the High Court that the pleadings are insufficient to order recount, it was noticed that the pleadings raised in the case did not refer to either Rule 39 or Rule 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 are there any specific allegations found in the case and the allegation made in the course of the petition that there is wrong acceptance of invalid votes without clarifying as to how many votes were liable to be rejected for using wrong instrument by the voters by expressing their preference, it was said in absence of such plea, the learned judge could not have granted the relief for recount. It was further said that in this view, the evidence could not be looked at in this regard in absence of appropriate pleadings. The Court said "unless the appellant had put fourth his case in the pleadings 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 will be futile."

14. The recount of the votes cannot be ordered in a casual manner. It cannot be ordered only because the margin of defeat is meagre. For seeking recount, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The recount cannot be ordered on the ipse dixit of the election petitioner. It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties.

15.As already stated in the present case, the main and rather the only ground on which the recount was sought and was allowed by the High Court was the non-filling of the check memos by the Counting Supervisors and directions given in that behalf to the said supervisors by the Returning Officers - an aspect in respect whereof there are no pleadings and no material facts. Therefore, the High Court was clearly in error in directing the recount of the entire assembly votes and in setting aside of the election of the petitioner simultaneously even before the start of the recount. The view of the High Court is clearly unsustainable."

In the case of Shiv Shanker Chauhan (supra), this Court held as under:-

"17. In the case of Nimhan's case (supra), the Supreme Court held that there must be clinching evidence before the recounting of the votes is ordered. Further, this Court finds that the authority has allowed the election petition and thereafter directed the recounting of the votes. This is not permissible. Once the election petition is allowed, nothing further remains to be done, and therefore, no direction for recounting of the votes could be issued. The authority, if it finds that recounting was required to be done, must pass an order before allowing the election petition."

In the case of R. Narayanan (supra), the apex Court held as under:-

" 16. The only ground which appears to have been accepted by the learned Judge was that although there was no clear evidence of any irregularity having been committed in the first two rounds there was a possibility that the staff was completely exhausted and this may have led to erroneous sorting and counting of votes. This was because, according to the learned Judge, the staff started its work at 11 a.m. on 14-6-77 and continued to work without rest till about 3 a.m. on15-6-77. They were provided with lunch in the afternoon of 14-6-77. It was also found by the judge that the counting staff was not supplied with food in the night but was provided with tea at only 7 p.m. In this connection, the learned Judge observed as follows :-

"The next ground urged by the petitioner is that the counting staff were sleepy, exhausted and not alert during the third round which was started after mid-night and completed at 3 A.M. the next day and that as such there is definite possibility of erroneous sorting and counting of votes during that round. Almost all the petitioner's witnesses have deposed that the counting staff who began their work of preliminary counting at 11 A.M. on 14-6-1977 continued to work without any rest upto 3 A.M. the next day, that they were provided with lunch only on the afternoon of 14-6-1977, that the counting staff were not supplied with food during the night that they were provided with only tea at 7 p.m. and therefore the counting staff were completely exhausted and sleepy especially after midnight and that they were not as vigilant and alert as they were during the first and second rounds of counting. All the first respondent's witnesses also admitted that the counting staff were not provided with food in the night but they were merely supplied with tea at 7 P.M. and that they carried on the counting without any break till 3 A.M. the next day. Though the petitioner has not established any specific instance of erroneous sorting and counting of votes during the third round, general allegations have been made in the pleadings as well as in the evidence adduced on behalf of the petitioner. There appears to be considerable force in the submission of the petitioner in this regard".

In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take 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 their being an error. It is well-settled that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific instance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of P.W.23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11.30 p.m. And the third round started at 12 mid-night and ended at 2 a.m. The witness was asked in cross-examination whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that re-count should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observed thus :-

"It is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find out whether the third round of counting was carried on by the counting staff properly. In the nature of things it is not possible to assume that all the 72 persons were alert and attended to the process of counting with such keenness as it deserved".

This finding is also based on pure speculation and cannot be maintained.

26. Finally, the entire case law on the subject regarding the circumstances under which re-count could be ordered was fully summarised and catalogued by this Court in the case of Bhabhi v. Sheo Govind & Ors. (2) to which one of us (Fazal Ali, J.) was a party and which may be extracted thus:-

"The Court would be justified in ordering a recount 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."

A coordinate Bench of this Court in the case of Smt. Sushma Devi (supra) has held that the ballot papers cannot be summoned under Order 13 Rule 10 CPC as there was no material placed in the application to show that the summoning of the ballot papers was necessary for the purpose of giving evidence. Merely because evidence was required to be led, the original documents, namely, the ballot papers could not be summoned nor could such a method be adopted for the inspection of the ballot papers while allowing a witness to give his evidence. Unless the defeated candidate is able to substantiate by means of evidence that a prima facie case existed for the inspection of the ballot papers, the ballot papers cannot be summoned merely on the ground that evidence was required to be given and that the production of documents was necessary for the purpose of evidence.

Upon consideration of the various case laws quoted herinabove, this Court has to see as to whether the pleading in regard to recounting were complete or not and whether the specific pleading required for recounting as contemplated under law was there in the election petition or not. The election petitioner i.e. opposite party no.5 has specifically stated in para 5 of the election petition that 38 votes were treated as invalid on account of some confusion in the seal, which was not clear and in some ballot papers thumb impression has been appended in stead of seal and out of 75 ballot papers, which were declared invalid, mostly it contained the votes of opposite party no.5. Specific plea has been raised by the opposite party no.5 and specific reason for rejection has also been indicated in contrast to the acceptance. Opposite party no.5 has specifically stated that these ballot papers could not have been rejected as they are valid and they were improperly rejected. The purpose of pleading in an election petition is to make other party aware of the charge which he has to reply. In the case in hand, the charges were very clear and the pleading is very specific and, therefore, the evidence which has been led in support of the claim, was to be scrutinized by the Court. The prescribed authority scrutinized the evidence led by opposite party no.5 and his counting agent and he also called for reply of the Assistant Returning Officer, who replied that no recounting has taken place at any point of time. The witness of the petitioner, namely, Rudra Narain Mishra, however, has stated in the court that recounting had taken place at the instance of the agent of opposite party no.5. The aforesaid statement of the witness of the petitioner, therefore, does not inspire confidence as none of the witnesses i.e. opposite party no.5 or his election agent or the Assistant Returning Officer in his reply have stated that no recounting took place and neither there is any document on record nor it was proved that any recounting had taken place. The question of recounting and the evidence adduced in support of it has been scrutinized by the prescribed authority and it has been found that it was sufficient to order for recounting.

An argument has been advanced by the counsel for the petitioner that there is no finding in regard to pleading and the evidence.

The Court has perused the order passed by the prescribed authority and at pages 37 and 38 of the paper book, the prescribed authority has considered the evidence and has recorded a finding that 38 votes were declared invalid in which either there was seal or thumb impression and it has been specifically stated that counting was not done in a proper manner and 38 votes were rejected illegally. Opposite party no.5 also made complaints on 1.11.2010 and 2.11.2010 to the Additional District Magistrate and on 2.11.2010 by registered post, so from the very beginning opposite party no.5 was not satisfied with the counting and he has raised protest time and again before the authorities, but his request was not considered and no recounting was done at any point of time. Therefore, the pleading in regard to recounting and the evidence led in support of it, was sufficient to order for recounting. It was also found by the prescribed authority that names of the petitioner and opposite party no.5 were adjoining in the ballot papers and so there were chances of mistake in the counting. Both the witnesses have stated that counting was not done in a proper manner. The evidence of agent of petitioner i.e. Rudra Narain Mishra does not inspire confidence and is not credit worthy and the Court finds consistency in the evidence of opposite party no.5 and his counting agent. The counting agent of opposite party no.5, Harish Kumar has specifically stated in his examination-in-chief that 10 ballot papers were such in which the seal was appended before the election symbol and there was sign of thumb before another election symbol and 28 ballot papers were such where the seal was appended before the election symbol, but the same were not clear. Thus, a specific statement has come by the election agent of opposite party no.5, who was present in the counting and a person who is in the knowledge of specific facts, can only prove that fact. Since opposite party no.5 was not present at the time of recounting, therefore, whatever information furnished to him, that has been stated by him, but so far the factum of proving the request for recounting is concerned, that has been specifically stated in the statement that security personnel turned him out of the gate and he made a request for recounting, but that was not entertained and it was said by the authorities that they will not continue with the recounting for the entire night. In the cross-examination, he has stated that he made a request with the authorities to do recounting in respect of Booth No.2, but that was not done. It was also stated that he gave an application to one of the officers, but he did not listen to the witness though there was specific statement in the examination-in-chief in regard to 38 votes, but no question was asked in the cross-examination regarding that specific statement and neither in the cross-examination the petitioner could make out anything which may throw any doubt in respect of the rejection of 38 votes. Apart from it, specific finding has been recorded by the prescribed authority in regard to the evidence and the same has been considered, therefore, there is no illegality in the order passed by the prescribed authority for recounting and the revisional order as well.

I find no merit in this petition. It is accordingly dismissed.

October 25th , 2013

Rao/-