In The Matter Of An Application ... vs The Writ Petition Involves ...
2023 Latest Caselaw 1481 Ori

                   ORISSA HIGH COURT : C U T T A C K

                            WP(C) NO.3735 OF 2023

      In the matter of an application under Articles 226 & 227 of the Constitution of India.
AFR
      Rabinarayan Das                                         : Petitioner

                                           -Versus-

      State of Odisha & ors.                                 :   Opp.Parties


      For Petitioner                       :      M/.P.K.Rath, K.K.Mohapatra,
                                                  A.Mohanty & A.Behera, Advs.

      For O.Ps.1 to 4                      :       Mr.S.Ghosh, AGA

      For O.P.5                            :      Mr.S.R.Pati, Adv.


                              CORAM :
                              JUSTICE BISWANATH RATH

               Date of Hearing : 09.02.2023 & Date of Judgment : 17.02.2023

      1.      The Writ Petition involves seeking setting aside of the impugned

      order dated 18.1.2023 passed in Election Petition No.4/22 by the Civil

      Judge (Jr.Divn.), Kujanga appearing at Annexure-1.


      2.      Order involves allowing the prayer of the Election Petitioner for

      re-counting of votes involving election for the post of Sarapanch of

      Hansura Grama Panchayat, Kujanga with further prayer for making

      available of the ballot box containing the ballot papers of the above

      Constituency for recounting purpose on 10.2.2023. By operation of the
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                                       // 2 //




interim direction of this Court on the closure of the proceeding for

delivery of judgment, the recounting process has been halted awaiting

judgment of this Court.


3.     Factual background involving the case is O.P.2 herein effected

Notification No.246 notified for election to the Offices of the Panchayati

Raj Institutions in the State to be conducted as per the fixed schedule

therein. Such Notification was published by the Election Officer on

13.1.2022 fixing filing of nomination to 17-21.1.2022, scrutiny of

nomination was scheduled to be held on 22.1.2022, publication of final

list of candidates was fixed to 25.1.2022, date of polling was fixed to

16/18//20/22/24 of February, 2022 for respective Constituencies and also

fixing the date of counting of votes and declaration of result from 26-28

February, 2022. Pleading discloses, the Petitioner and O.P.5 filed their

respective nominations to contest the post of Sarapanch of Hansura

Grama Panchayat. The Petitioner was assigned with "Sun" as ballot

symbol and O.P.5 was "Book (open)" as the ballot symbol. Pleading

further discloses, there was total number of votes polled 2090. As per the

result, the Petitioner got 821 votes and O.P.5 got 820 votes, resultantly

the Petitioner was declared as the successful return candidate by O.P.4,

the Election Officer on 2.3.2022. O.P.5 being aggrieved as the defeated

candidate brought Election Petition No.4/22 with the following relief :-

                                                               Page 2 of 28
                                       // 3 //




             "That on the facts and circumstances the Petitioner prays
       for the following reliefs :-
       i)    Let this Hon'ble Court/Tribunal be pleased to declare the
              election of Respondent No.-1 to the Office of

Sarapanch, Hansura Gram Panchayat as void and be set aside ;

ii) Let an order be passed for recounting of votes under direct supervision of this Hon'ble Tribunal;

iii) Let the Hon'ble Court be pleased to declare the return candidate on the basis of such recounting;

iv) Let the cost of the E.P. decreed in favour of the petitioner and against the Respondents.

v) Let the Hon'ble Court be pleased to allow such other relief(s), pass such other order(s) as deemed fit and proper in the facts and circumstance of the case for the ends of justice."

The present Petitioner having received notice in the Election

Petition on his appearance filed written statement on 23.4.2022. Petitioner

refuted all the statements, contentions and the allegations taken up by

O.P.5, the present Petitioner through the Election Petition. Copy of the

written statement appears at Annexure-3. During pendency of the

Election Petition, O.P.5, the Election Petitioner filed an Application for

re-counting of votes on 9.5.2022. This Application was rejected on the

premises of not being maintainable at that stage of the matter. Annexure-

5 discloses the rejection of such Application at that stage for appearing to

be a request at pretrial stage and also in absence of the hearing of the

winning candidate therein. It is after closure of evidence, it appears, by

// 4 //

order dated 4.2.2023 there has been allowing of the Application dated

18.1.2023 at the instance of O.P.5 directing therein the Election Officer to

produce the ballot box containing ballot papers while also directing the

re-counting of the votes to take place on 10.2.2023 resulting filing of the

Writ Petition.

4. Mr.P.K.Rath, learned counsel for the Petitioner taking this Court

through the provisions of Rules 48, 49, 50 & 51 of the Orissa Grama

Panchayat Rules read together with Form-8A attempted to demonstrate

that there is requirement of recording of result of counting of ballot

papers in respect of Membership Grama Panchayat in Form-8 and the

Presiding Officer to announce the votes polled by each contesting

candidate. Then for the provision at Rule-49, the Presiding Officer shall

next proceed to count the ballot papers relating to the Office of Sarapanch

of the Grama Panchayat. Through Rule-50, there is mandating

preparation of Form-8A on the result of counting the ballot papers in the

ballot box relating to Office of Sarapanch authorizing the Presiding

Officer also thereafter to announce the votes pooled by each of the

contesting candidates. Taking this Court to Rule-51, Mr.Rath, learned

counsel for the Petitioner contended, immediately after closer of

counting, the Presiding Officer shall prepare separate bundles of all the

papers, reports and unused ballot papers in respect of polling for the

// 5 //

office of Sarapanch. Mr.Rath, learned counsel for the Petitioner then

taking this Court to the disclosures in the Election Petition in the attempt

to establish recounting of votes by the Election Petitioner, the objection in

the written statement by the return candidate and the reasoning in

allowing such Application contended, there was failure by the Civil

Judge, the Election Tribunal in appreciating the allegations properly and

there has been misreading of the evidence. It is on the premises that there

is no specific allegation through Paragraphs-5, 9 & 10 of the pleading in

the Election Petition, Mr.Rath, learned counsel for the Petitioner taking

this Court to the impugned order reading through the same contended, the

sole reasoning in allowing the recounting by the Election Tribunal

appears to be through the evidence of O.P.1, the Petitioner herein in

Paragraph-23 therein, the Petitioner himself attempted to have no

objection in the event the counting is done by the Court. Mr.Rath then

taking this Court to the evidence of the Petitioner herein, the return

candidate contended, there has been misunderstanding of the statement of

the return candidate in Paragraph-23 of his evidence. Reading through

Paragraph-23 therein Mr.Rath attempted to submit that the Petitioner had

never intended consenting recounting of votes.

Taking this Court to the decisions in Ram Sewak Yadav vrs.

Hussain Kamil Kidwai & ors. : AIR 1964 SC 1249, Hem Raj vrs. Ramji

// 6 //

Lal & anr. : (1975) 4 SCC 671, Chanda Singh vrs. Choudhary Shiv

Ram Verma & ors. : (1975) 4 SCC 393, R.Narayanan vrs. S.Semmalai

& ors. : (1980) 2 SCC 537, P.K.K. Shamsudeen vrs. K.A.M. Mappillai

Mohindeen & ors. : (1989) 1 SCC 526, Jitu Patnaik vrs. Sanatan

Mohakud & ors.: (2012) 4 SCC 194, and Pitambara Das vrs. Ranjan

Kumar Behera & anr. : 2013 (II) OLR 44, Mr.Rath, learned counsel for

the Petitioner submitted, looking to the settled position of law through all

these decisions, there is absolutely no scope for recounting particularly in

the given circumstance. Further taking through the above decisions and

reading through the same, Mr.Rath, learned counsel for the Petitioner

contended, there is no material fact pleaded by the Election Officer giving

thereby any reference to any specific rejection with respect of particular

booth number and contended, for the settled position of law, unless there

is clear demonstration through the allegations of illegal rejection of votes

from the candidate side for illegal counting of votes in favour of the

return candidate, as set down by different pronouncements herein above,

there was no question of getting into recounting. While not disputing that

the Petitioner being the elected candidate has received 821 votes and the

defeated candidate being the Election Petitioner received 820 votes and

there is a third candidate receiving 418 votes, further there is rejection of

votes numbering 31 and that the total polling of votes is 2090. Mr.Rath,

// 7 //

learned counsel for the Petitioner claimed, there has been wrong

appreciation of the factual aspect as well as the legal aspect involved

herein thereby the impugned order becomes defective and

consequentially, the same should be interfered with and set aside.

5. In his opposition, Mr.S.R.Pati, learned counsel for O.P.5 in his

strong objection to the contentions raised by Mr.Rath and claims of the

Petitioner reading through the averments on material facts in Paragraphs-

9 & 10 of Election Petition No.4/22, evidence in corroboration of same

by the Election Petitioner, evidence of the counting of the Agent of the

Election Petitioner and Point Nos.22 & 23 of the evidence of the return

candidate attempted to submit that there has been not only an established

claim requiring recounting but there has been also evidence corroborating

such allegations and thus, there is a justified direction for recounting by

the Election Tribunal in requiring no interference in the same. Mr.Pati in

his submission while not disputing the provision at different Rules being

placed by the learned counsel for the Petitioner contended, there has been

scrupulous following of these provisions in the election procedure but

however there has been lacunae in so far as total counting of votes in

respect of Booth No.9 there by showing the counting of votes less than

the actual casting of votes. Similarly, there has been specific allegation so

far illegal rejection of five votes casted in favour of O.P.5 therein.

// 8 //

Keeping in view the admitted fact that there have been hardly 31 rejected

votes, the direction for re-counting of votes be maintained at least at least

to the above extent. Mr.Pati, learned counsel for O.P.5, the Election

Petitioner further attempted to read through the decisions in Suresh

Prasad Yadav vrs. Jai Prakash Mishra & ors. : AIR 1975 SC 376,

Chandrika Prasad Yadav vrs. State of Bihar & ors. : AIR 2004 SC 2036

and Narayan Chandra Nayak vrs. Harish Chandra Jena & two ors. :

2009 (Supp.-I) OLR-513, Reading through all the decisions, Mr.Pati,

learned counsel for O.P.5 attempted to satisfy the case of O.P.5 that there

has been a case for O.P.5 also satisfied through all the above decisions.

Mr.Pati to satisfy his stand and the case of O.P.5 through the pleading as

well as through the evidence also filed a copy of the election dispute, the

evidence of P.W.1, evidence of the Counting Agent of the Election

Petitioner and the evidence of the return candidate along a Memo

submitted on 9.2.2023 taken on Record.

6. Considering the rival contentions of the Parties and keeping in

mind the dispute involved herein, further keeping in view the settling of

position on the dispute involved herein to be discussed in detail herein

below, this Court proceeds to find the pleadings on the allegation of

recounting at the threshold in Election Petition No.4/22. This Court here

// 9 //

finds, the Election Petition by way of pleading appears through

Paragraphs-7, 9 & 10 reads as follows :-

"7. That so far Hansura G.P. is concerned, there are 2665 numbers of electors/voters as pre finally published voter list 2021. For polling of votes for office of Sarapancha the Gram Panchayat was divided in to 13 Booths. As per schedule programme the polling of votes was conducted. The petitioner engaged agents duly authorized as per Rules. The Respondent also engaged agents at different booths.

9. That counting of votes was conducted on dt.26.02.2022. The petitioner has engaged his agents as per rules. During counting the counting officer counted in total 2090 votes. More particularly in respect of Booth No-9 the votes counted is total 133 as against the total polling stated by the agents and polling officer to be 132 i.e. there was variation of one number of Ballot/vote.

10. That during counting in the counting hall the authorities for any oblique reason and intention accepted some ballots which ought to be declared rejected counted in favour of returned candidate. Some valid votes cast in favour of the petitioner was declared rejected in spite of objection raised by the agents of petitioner. More than five votes which have been stamped on the symbol of "Book" in ballot and was to be counted in favour of petitioner was declared rejected merely because there was some ink mark elsewhere. After counting is over it could be learnt that the petitioner has got one vote less from the respondent No-1. The election officer published the result of counting and the candidates are shown to have secured the votes and the total vote, votes rejected are as follows :-

       Total vote                                     2090


       Alok Malik (Petitioner)             Book       820




                                        // 10 //





       No-1)

       Gourang Charan Das                   Fish        418

This Court here observes, in the above pleadings, the election

dispute cannot be construed to have no material facts to discard it

outright.

Similarly, looking to the objection of the Petitioner through the

written statement at Annexure-3, this Court finds, the Petitioner

answering Respondent therein has the following objection to the

pleadings in Paragraphs-7 to 11 reads as follows :-

"7. That, at the outset the Respondent No.1 humbly submits that he is the elected Sarapanch of Hansura Gram Panchayat, Kujang and he was duly declared to be elected by the Election Officer, Respondent No.2. The Respondent No.1 secured highest votes amongst other candidates. So there is no ground to challenge the same at this stage. Therefore, the election petition is not maintainable and the same is liable to be dismissed.

8. That, from a bare perusal of the election petition filed by the petitioner, it appears that grounds taken in the election petition by the petitioner against the election of Respondent No.1 is totally false, baseless and the petitioner is put to strict proof of the same.

9. That, the averments/statements made in paragraph-1 to 5 there is no need to comment as the same are matters of record.

10. That, so far as the allegations and the grounds made in the paragraph-6 is concerned, the Respondent No.1 most humbly submits that then said allegation and grounds are totally false,

// 11 //

baseless and the petitioner is put to strict proof of the same. It is wrong to say that the respondent No.1, return candidate has used three four wheeler vehicle i.e. OD 21 C 7908 (Magic) OD 05 AP 3903 (Magic) & OR 26A 4036, by gaining over the respondent No.2 and his staff, while the petitioner was permitted to us two vehicles only for his campaign. Besides this the return candidate indulged in various corrupt practices like giving cash and gift, kinds etc. for influencing the voters to cast vote in his favour through his wife Rashmi Rekha Das who happens to be a contractor under the work under State and it is needless to mention here that he arranged processions violating the S.O.P. notified by government for restricting out breaking of Covid-19, on the plea that he is member of ruling party. In spite of bringing the facts to the notice of Respondent No.2 he did not take any action.

As a matter of fact the respondent No.1 has never violated any Rule or SOP of the State govt. with regard to breaking of COID- 19 guidelines and further he has never violated any rule for using three four wheeler vehicles for his election campaigning purpose. The Respondent No.1 is not the member or support of ruling party and he has also never indulged in any various corrupt practice as alleged by the petitioner. Rather the petitioner is the supporter of ruling party for which the present ruling party local MLA has made Campaign and the petitioner also spent huge amount of money in various corrupt practice to elect him has Sarapanch of Hansura G.P. under Kujang Block.

Therefore, the above mentioned election petition is liable to be dismissed in limene.

11. That, the allegations and the grounds made in Paragraph- 7 to 10 of the petition are totally false and baseless. The Respondent No.1 has lawfully and duly been declared elected by the B.D.O. cum election Officer/Respondent No.2 following due procedure of law. While at the end of counting of votes in different booths, it is found that the petitioner had got 820 votes whereas the Respondent No.1 had got 821 no. of votes and the person of 'Fish' symbol had got 418 no. of votes and 31 no. of votes are rejected votes out of total 2090 votes. On serious objection of the agents of the petitioner, regarding the votes of word No.9 the votes for Ward No.9 which had been already kept after counting, the same was again recounted in the presence of

// 12 //

both side agents and official engaged there for counting and after such recounting again the petitioner got 820 no. of votes and the Respondent No.1 got 821 no. of votes. It is further submitted that the said recounting was done in presence of all the agents of the petitioner as well as the Respondent No.1 and the concerned authorities. Thereafter the Respondent No.1 was duly and lawfully declared elected by issuing certificate of election on 26.02.2022 and further declared as Sarapanch vide Notification No.862 dt.02.03.2022. Therefore, the allegations and the grounds made in the aforesaid paragraphs by the petitioner are totally false and baseless, hence the above mentioned election petition is liable to be dismissed. "

7. Coming to the evidence part, O.P.5 has produced the copy of the

evidence of the Election Petitioner, P.W.1, Counting Agent of the

Election Petitioner, P.W.3, dated 16th August, 2022 and the evidence of

the Petitioner being the return candidate, O.P.W.1, also available through

the written note submitted by the learned counsel for O.P.5. This Court

here takes only the evidence relevant for the purpose of considering the

respective witnesses. So far as P.W.1 there are multiple Paragraph-6,

which being relevant taken down herein below :-

"6. That, I engaged my agents in the booths so also the respondent no.1 engaged his agents. And as per the statistics of presiding officers and agents total 2089 votes casted their votes and the ballots were used and the counting of votes was conducted on 26.2.2022 I engaged my agents and during the counting the counting officer counted total 2090 votes, particularly in respect of booth No.9 as 133. Whereas it is stated by the agents and polling officer it is 132.

6. That, in the counting hall the counting authority with oblique intention accepted some ballots which ought to be declared rejected, counted the same in favour of the respondent no.1 and some valid votes caste in my favour, was declared rejected in spite of objection raised by my agents. And apart that

// 13 //

more than five votes which have been stamped on the symbol 'book' (open) which is my symbol and the same ought to be counted in my favour were declared rejected merely because there was some ink mark elsewhere. After counting it was learnt that I have got one less vote than the respondent no.1 and the election officer declared the result as total vote-2090.

       Petitioner - Book (open)       820.
       Respondent no.1 sun-           821.
       Gourang Ch. Das (fish)         418.
       Rejected-                      31."

From the evidence of the Agent (P.W.3), this Court finds,

Paragraphs-4, 6 & 7 being relevant taken down herein below :-

"4. That, the petitioner was allotted his symbol as "Book" (open) whereas the respondent no.1 was allotted his symbol as "SUN" The respondent no.1 by practicing fraud and corrupt so also by gaining over the respondent no.2 and his staff managed to get success in the last panchayat election.

6. That, I was engaged as agent in the counting hall, wherein the counting officer counted total votes as 2090 and particularly in respect of booth no.9 as 133 as against the total polling stated by the agents, polling officer to be 132 as such there is variation of one number of vote/ballot.

7. That, apart the above facts in counting hall the counting officer with oblique intention accepted some ballots which ought to be declared rejected and counted same in favour of the returned candidate/respondent no.1. But on the other hand some valid votes casted in favour of the petitioner were declared rejected in spite of objection raised by me and other agents engaged by the petitioner. So also more than five votes which have been duly stamped on the symbol of Book (open) in the ballot which were to be counted in favour of the petitioner were declared rejected merely because there were some ink mark elsewhere. And respondent no.2 declared as petitioner got 820 valid votes. Respondent no.1 got 821 valid votes, Gourang Das got 418 votes and 31 votes were rejected. So immediately we the agents approached the counting officer so also respondent no.2 recounting but the same was refused for which the petitioner sent

// 14 //

the objection through Regd. Post to the respondent no.2 and to the Collector, Jagatsinghpur. But no result thereafter published the result on 2.3.2022 declaring the respondent no.1 as elected and refused for recounting them sent objection through Regd. Post."

Similarly, coming to the evidence of O.P.W.1, the return

candidate, the Petitioner herein, cross-examination in Paragraphs-22 & 23

reads as follows :-

"22. It is not a fact that the petitioner could have been won the election if the 5 nos. of valid votes which was declared rejected which has been stamped on the symbol of khola bahi and if would have been counted in favour of the petitioner. So also the vote counted in respect of booth no.9 was 132 instead of 133 as valuation of 1 number of vote.

23. I have no objection if the counting of the said result is done again through the court."

8. Reading the pleadings taken note herein above involving

requirement of recounting, corroboration through the aforesaid evidence

and the response of O.P.W.1 through his cross-examination through

Paragraphs-22 & 23, this Court finds, there remains no doubt even though

the Election Petitioner could not be in a position to make out a case for

complete recounting of votes at least makes out a case for considering the

recounting to the extent keeping in view the allegation in Paragraphs-7 &

9 taken note herein above.

9. To add to this, in Paragraph-9 of the Election Petition, which has

been quoted herein above, there is clear pleading at least in respect of

// 15 //

Booth No.9, total votes polled are 132 but the votes counted appearing to

be 133. Reading through the pleadings of the Election Petitioner in

Paragraph-10 also quoted above, this Court finds, there has been specific

allegation on rejection of more than five votes involving symbol, Book

(open) allotted to the defeated candidate. Above two pleadings while also

keeping in view that there is difference of votes hardly remaining one, for

the opinion of this Court, if the papers involving counting of votes in

respect of Booth No.9 are perused and votes of this Booth are recounted

and simultaneously, there is checking of rejected votes numbering 31,

keeping in view the pleas in Paragraph-10 and such ballots must have

been kept in separate seal cover, if gone through to find the truthfulness

in the allegation in the Election Petition in Paragraphs-9 & 10, the

purpose of recounting can be resolved.

10. This Court here finds, Rule-51 of the Orissa Grama Panchayats

Election Rules, 1965 mandates, preparation of separate bundles of all the

papers, reports and unused ballot papers. Rule-50-B mandates, after the

result of voting is ascertained candidate-wise and entered in Part II of

Form No.7-B and Form No.8, the Presiding Officer shall seal the units

with his seal and seals of the candidates or their election agents to ensure

that the result of voting recorded in such unit is not obliterated and the

unit retains the memory of such result. Then Sub-Rule (3) of Rule-50-B

// 16 //

mandates, the Presiding Officer shall after close of counting, prepare

separate bundles of all papers, reports and results of counting for the

office of Sarpanch and membership of the Grama Panchayat. Rule-51

mandates, there is authorisation to the Presiding Officer to prepare

separate bundles of all the papers in respect of polling for the office of

Sarpanch and polling for the membership of the Grama Panchayat and

forwarding two packets duly sealed to the Election Officer for the local

area. Rule-56 declares, there should be safe custody of documents

relating to election proceeding received from the Presiding Officer until

and unless, there is direction by the Competent Court for destroying the

same.

11. This Court here before going for final outcome wants to take note

of the decisions on the above aspects, which run as follows :-

(I) Dr. Jagjit Singh vs Giani Kartar Singh and others : AIR 1966 (S.C.) 773 here the Hon'ble apex Court attending to the scope of Tribunal in case of recounting observed as follows:

"33.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 and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers.

But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the

// 17 //

petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind. An application made for the inspection of 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. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable."

(II) Shri Shashi Bhushan vs Prof. Balraj Madhok and others, AIR 1972 SC 1251 - 1972 SCR (2) 177

"18.The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge. We think that a general inspection should not be permitted, until there is satisfactory proof in support of those allegations. For finding out whether there is any basis for those allegations, it would be sufficient if some ballot papers say about 600 out of those polled by each of the returned candidates are selected from different bundles or tins in such a way as to get a true picture. He may also select about 200 ballot papers cast in favour of the election petitioners for comparison. All the selected ballot papers at the first instance be examined by the learned Judge with the assistance of the Counsel for the parties as well as the parties. If the learned Judge comes to the conclusion that the matter should be further probed into, he may take evidence on the points in issue including evidence of expert witnesses. Thereafter it is open to him to direct or not to direct a general inspection of the ballot papers. But in doing so he will take care to maintain the secrecy of the ballot."

(III) Suresh Prasad Yadav vs Jai Prakash Mishra and others, AIR 1975 SC 376

"5.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

// 18 //

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 fool- proof. 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 SC378 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.

27. Any other interpretation of Rule 93 and its scope would make it difficult, if not altogether impossible, for the Returning Officer to perform the various functions and duties enjoined by the rules at the stage of Counting. This will be clear from a reference to the other Rules. Take for instance R. 56 which requires that the ballot papers shall first be taken out from the boxes used in a constituency and mixed together and then arranged in convenient bundles and scrutinised. Sub-rule (2) of Rule 56 further requires inter alia that if a ballot paper does not bear any mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub-rule (1) of Rule 38, it shall be rejected by the Returning Officer. To perform this duty, it would be absolutely necessary for the Returning Officer to inspect such ballot papers. Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38 (l). The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein.

29. In the light of the above discussion, the conclusion is inescapable that tile act of the Returning Officer in opening the packet, and in inspecting and counting the unused ballot-papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules."

(IV) In Bhabhi v. Sheo Govind : 1976 (1) SCC 687- Para-15, here the Hon'ble apex Court in the case of claim for recounting has formulated grounds as follows:-

"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

// 19 //

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 secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."

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."

(V) R. Narayanan v. S. Semmalai, (1980) 2 SCC 537

"17. Lastly, the learned Judge was greatly influenced by the fact 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."

(VI) P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526

11. In Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964 SC 1249 : (1964) 6 SCR 238 : 26 ELR 14] this Court has set out the circumstances when an order for inspection of ballot papers can be ordered in the following terms: (SCR pp. 244-45) "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

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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."

12. In R. Narayanan v. S. Semmalai [(1980) 2 SCC 537 : (1980) 1 SCR 571] the same principle has been reiterated. That was a case where the difference of votes between the candidate declared elected and his nearest rival, who filed an election petition was only 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. Even so this Court after referring to a number of decisions and Halsbury's Laws of England and Fraser on Law of Parliamentary Elections and Election Petitions held that without there being an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and such averments being backed by acceptable evidence and the court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed.

13. 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

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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."

(VII) Mahant Ram Prakash Dass v. Ramesh Chandra & ors. : (1999) 9 SCC 420 - Considering irregularity in vote process Supreme Court held in para-13.

"13. A candidate or his agent has an opportunity to ask for re-count at two stages: the first, before election result is finally declared, and the second, by way of election petition before the High Court. An application under Rule 63(2) of the Conduct of Elections Rules is to be given immediately after the votes secured by each of the candidates is announced under Rule 63(1), but such an application cannot be given after the candidate is declared elected under Rule 64. If an application is made under Rule 63(2) the Returning Officer shall decide the matter either by allowing the application in whole or in part or may reject it in its entirety, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefor. The application for re-count should contain valid precise grounds on which the re-count is asked for. When the rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and if such objection is rejected improperly, it would afford a basis for re-count in an election petition. The secrecy of the vote has to be maintained and demand for re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of the victory margin by itself may not be a sufficient ground for re-count. However, if a prima facie case is made out as to error in counting, a small margin by which the returned candidate succeeded in the election assumes significance, inviting re-count."

(VIII) In Jeet Mahinder Singh Vrs. Harmindar Singh Jasi : (1999) 9 SCC 386, the success of a candidate who has won an election should not be lightly interfered with. Any person seeking such interference must strictly confirm to the requirements of the law.

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(IX) Chandrika Prasad Yadav vs State of Bihar and others, AIR 2004 SC 2036

"19.The learned Munsif despite having opined that an order for inspection of ballot papers cannot be granted to support vague pleas and not supported by material facts but failed to point out as to which averments made by the appellant could be accepted as disclosing material facts, on the basis whereof an order for recounting could be passed. The said order dated 20-10-2001 being not supported by any cogent or valid reasons could not have been sustained.

21.The requirement of maintaining the secrecy of ballot papers must also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting.

24.The order of the learned Munsif did not satisfy the statutory requirements.

26.Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is availed of by the Election Petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the Election Petitioner as to why such statutory remedy was not availed of, the Election Tribunal my consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out.

32.For the reasons aforementioned, we are of the opinion that the judgment of the High Court does not call for any interference. The appeal as also the contempt petition are accordingly dismissed. No costs."

(X) Jitu Patnaik v. Sanatan Mohakud, (2012) 4 SCC 194 "50. We now revert back to the pleadings set out in Para 7(D) as analysed above. There is no averment that the election petitioner or any of his polling agents had perused the register of voters maintained in Form 17-A. The basis of the knowledge that the register of voters maintained in Form 17-A records that 1091 voters came to vote is not disclosed at all. Moreover, there is no pleading that 1091 voters who came to vote at Booth No. 179 in fact voted. There is no merit in the contention of Mr. Mukul Rohatgi that the facts stated in Para 7(D) with regard to Form 17-A shall be established at the trial after Form 17-A is summoned by the Court. We are afraid that such fanciful imagination of proof at the trial cannot be a substitute of the pleading of material facts

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about the total number of voters who came to vote and in fact voted at Booth No. 179.

51. The averment that in Form 17-C, certified copy, it has been deliberately shown as 772 making a deliberate suppression of 319 votes hardly improves the pleading in the election petition. There is no averment that the election petitioner or his agents challenged Part II of Form 17-C before the authorities. At least, there are no facts pleaded concerning that.

52. There is no pleading that there was any challenge by the election petitioner or his agents in respect of the counting figure in Form 20. The only pleading is that the illegality has been deliberately committed by the counting personnel while recording the counting figure in Form 20 with respect to Booth No. 179. There is, thus, no disclosure of material facts in respect of the challenge to the correctness of Form 20 and Form 17-C.

53. The pleading of material facts with regard to suppression of 319 votes in Para 7(D) is also incomplete as it has not been disclosed as to who suppressed 319 votes; who was the counting agent present on behalf of the election petitioner at the time of counting; how 319 votes were suppressed and why re-counting was not demanded. Moreover, there is no express pleading as to how the result of the election has been materially affected by less counting of 319 votes."

(XI) Pitambara Das v. Ranjan Kumar Behera & anr., 2013 (2) OLR

"5. After hearing Learned Counsel for the parties & on perusal of the pleadings of the parties, the depositions of the witnesses & the impugned order, it appears that the Court below has not taken into consideration the lack of material facts & particulars in pleadings of the Opp. Party No. 1 regarding interchange of votes of the Petitioner & Opp. Party No. 1 by the Election Officer. Law is well settled that material facts are to be specifically pleaded & to fortify the said pleadings the parties should, have adduced evidence also to that effect & without pleadings the evidence should be discarded, The materials facts being the basic facts, neither the same have been pleaded by Opp. Party No. 1 to prove his cause of action nor did the Court below discuss the same. Though Opp. Party No. 1 has not alleged regarding corrupt practice adopted by Election Officer but has stated that the Election Officer has interchanged the votes received by Opp. Party No. 1 to that of the Petitioner, which has not been proved by him during trial. Further the plea of Opp. Party No. 1

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that the Court below has not recorded properly the deposition of the witnesses is not acceptable as he has not drawn attention of the Court below by filing application to correct the error occurred in recording of depositions of the witnesses.

In the case of Chanda Singh v. Choudhary Shiv Ram Verma reported in (1975) 4 SCC 393 : AIR 1975 SC 403, the Supreme Court has held that it is easy for any party who divorces means from ends to tarnish the counting staff with bias. When the challenger belongs to the party in power, it needs hardly to say that a heavy strain is thrown on the strength of the moral fiber of the election staff whose fearless integrity is a guarantee of purity of the whole process but whose fortunes, before & after elections, may be cast with a political government whose key men may sometimes take disturbingly keen interest in the outcome of elections & election petitions.

In the case of Narayan Chandra Nayak v. Harish Chandra Jena reported in 2009 (Supp.-I) OLR 513 this Court held that recounting can be permitted in exceptional circumstances where the Court comes to the conclusion that the Election Petitioner is not seeking a roving & fishing enquiry. He has pleaded the material facts & adduced evidence in support of his case & the return candidate fail to rebut the same."

(XII) Chandeswar Saw vrs. Brij Bhushan Prasad & ors. : (2020) 12 SCC 70 (Paragraphs-15 & 17)

"15. The question is : whether material facts to justify an order of recount of votes has been clearly pleaded and the same have been proved by the appellant / election petitioner in the present case? That issue has been analysed by the Election Tribunal extensively, as is evident from the analysis made by it, which commenced to the learned single Judge. Since the appellant had substantiated the allegation made in the election petition and the Election Tribunal being convinced about the said claim proceeded to issue order of recount. No fault can be found with that approach of the Election Tribunal nor it is possible to suggest that the Election Tribunal or the learned single Judge was not conscious about the necessity to substantiate the allegation about the serious irregularities committed by the officials during the counting.

17. A priori, we have no hesitation in concluding that the Division Bench has interfered with the well-reasoned judgment and order passed by the Election Tribunal, which was justly upheld by the learned single Judge, directing recount of votes. It appears that after the recount, the appellant / election petitioner has secured 95 excess valid votes, more than the valid votes secured by respondent No. 1. That has reinforced the challenge set up by the appellant that the officials had committed serious

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irregularities bordering on intentional manipulation of the valid votes secured by the appellant. As a result, we have no hesitation in upholding the order of recount of votes, as passed by the Election Tribunal (dated 11.10.2018) and justly upheld by the learned single Judge (vide order dated 6.3.2019), in the facts of the present case."

Principle through the above decisions appears to be laying down, there

should be no affecting to the sanctity and purity in the ballots, there are

instances allowing recounting when there is allegation build, established and/or

proved and rejected wherever parties alleging there is wrong in counting. It is

never complete ruling out of request for recounting and whenever allowed, it is

based on establishment of allegation alone. This Court wants to add further to

the above settled principle saying election involved here involves democratic

establishment and mandate of people cannot be thwarted at the cost of

administration of justice. The case at hand involves keeping of candidate away

by slightest margin of one vote (1 vote this side and/or that side) here is going

to make a huge difference and such situation clearly warrants at least

recounting to the extent directed herein.

In Jagan Nath Vrs. Jaswant Singh (1954) SCR 892 and

Gajanan Krishnaji Bapat & anr. Vrs. Dattaji Reghobaji Meghe & ors. (1995)

5 SCC 347 - Application for recount if made on false events, such petition

should be rejected.

12. In course of considering the settled position of law in the case at hand,

this Court also took three other decisions viz. Shri Jitendra Bahadur Singh

Vrs Shri Kirshna Behari and Others 1969 (2) SCC 433, Satyanarain

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Dudhani Vrs Uday Kumar Singh and Others 1993 Supp.II SCC 82 and

Mahender Pratap Vrs. Krishan Pal and Others (2003) 1 SCC 390 but all these

decisions since did not help much all these decisions are left out of discussions.

13. All the decisions taken note herein above laying down the cardinal

principle that while keeping in view ,there should be no affecting to the sanctity

and purity in the ballots but there are instances allowing recounting when there

is allegation build, established and/or proved and rejected wherever parties

alleging there is wrong in counting. Thus it is never a complete ruling out of

request for recounting and whenever allowed, it is based on establishment of

allegation alone. This Court wants to add little to the above settled principle

saying election involved here involves democratic establishment and mandate

of people cannot be thwarted at the cost of administration of justice. The case at

hand involves keeping out a candidate by slightest margin of one vote and

single vote this side or that side makes a huge difference.

14. It is keeping in view the long list of settled position of law, many

of which speaking, there may be a contingency of recounting only in case

of satisfactory pleading and evidence to the extent of allegation at the

same time. Some of the decisions go to speak, there should always be

kept in mind the extent of need of recounting should be confined to the

extent of allegations and if established. This Court looking to the factual

scenario and the establishing of the case involved herein finds no harm in

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examining the ballot papers strictly keeping in view the pleading in

Paragarphs-9 & 10 of the Election Petition.

15. In the circumstance, this Court finds, even though this Court is not

satisfied with the direction of the Election Tribunal to recounting of the

entire ballots, it will be appropriate if the direction is modified to the

extent restricting the counting to the extent of allegations in Paragraphs-9

& 10, while keeping in view that there is difference of margin of one vote

in between the winning candidate and the defeated candidate. This Court

accordingly, while disapproving the direction for whole recounting by the

Tribunal modifies direction dated 4.2.2023 in Election Petition No.4/22 to

the extent while keeping in view the ballot papers as well as the

documents relating to election having been reached the Office of the

Election Tribunal, the recounting may be confined to 31 rejected votes

keeping in view the allegation in Paragraph-10 of the Election Petition

and so far as the allegation in Pararaph-9 of the Election Petition, this

issue can be resolved only by scrutinizing the papers relating to votes

polled and votes counted in respect of Booth No.9 and counting of ballot

papers in respect of Booth No.9 alone. Counting process be completed by

20th of February, 2023.

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16. The Writ Petition succeeds to the above extent and in the partial

modification of the impugned order, vide Annexure-1, but in the

circumstance, there shall be no order as to cost.

17. Registry is directed to communicate this judgment to the Civil

Judge (Jr.Divn.), Kujanga forthwith.

...............................

(Biswanath Rath, J.)

Orissa High Court, Cuttack.

The 17th February, 2023/M.K.Rout, A.R.-cum-Sr.Secy.