WPMS/1025/2022
2022 Latest Caselaw 1509 UK

     IN THE HIGH COURT OF UTTARAKHAND
                           AT NAINITAL
            ON THE 18TH DAY OF MAY, 2022
                              BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
           Writ Petition (M/S) No. 1025 of 2022


BETWEEN:
Nandan Singh.                                          ...Petitioner
     (By Mr. Shobhit Saharia, Advocate)

AND:
Hema Gaira & others.                                ...Respondents
     (By   Mr.   I.D.   Paliwal,   Advocate   for   respondent   no.   1   &
     Mr. Sanjay Bhatt, Advocate for respondent nos. 2 & 3)


                            JUDGMENT

Heard learned counsel for the parties.

2. Petitioner is a returned candidate against whom election petition has been filed by respondent no. 1. In that election petition, the Election Tribunal (learned District Judge, Almora) has passed an order for re-count of ballot papers on 06.05.2022.

3. Petitioner has challenged the said order passed on 06.05.2022. The ground taken in the election petition is that ballet papers were not counted properly and due to irregularities at the time of counting, respondent no. 1 lost election by a thin margin of 3 (three) votes.

4. Returning Officer was examined as witness, who admitted that some ballot papers were rejected as per guidelines of Election Commission and details of such rejected ballot papers were duly entered in the prescribed proforma.

5. It is not in dispute that the Election Tribunal had earlier rejected an application filed by respondent no. 1 for re-counting of ballot papers, vide order dated 05.02.2021, however, rejection of the said application will not come in the way of passing order for re-count at a subsequent stage, as the application was rejected earlier on the ground that evidence was not led, as such enough material was not available to arrive at the satisfaction that re- counting would be needed.

6. It is settled position in law that re-counting of ballot papers cannot be ordered as a matter of course, as in the election process secrecy of ballot is sacrosanct and inviolable, except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out.

7. Hon'ble Supreme Court in the case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & others, reported in (2010) 1 SCC 466 has summarised the legal position on re-count of ballot papers in paragraph nos. 16 & 17 of the judgment, which are reproduced below:-

16. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would depend

upon the facts of each case and no rule of universal application can be laid down.

17. In Suresh Prasad Yadav v. Jai Prakash Mishra, summarising the principles laid down by this Court from time to time in granting prayer for inspection of ballot papers and/or re-counting, a three-Judge Bench of this Court indicated the circumstances in which such a prayer could be considered. Speaking for the Bench, Sarkaria, J. observed as follows: (SCC pp. 824-25, paras 5-6) "5. ... this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the 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 mistakes and fraud in counting, that it can be called almost trickery 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.

6. The court would be justified in ordering a 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."

8. In the case of Chandrika Prasad Yadav v. State of Bihar and others, reported in (2004) 6 SCC 331, Hon'ble Supreme Court has held that an order for inspection/re-count of ballot papers has to be supported by cogent or valid reasons. Paragraph nos. 19, 20 & 21 of the said judgment are reproduced below:-

"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 re-counting could be passed. The said order dated 20-10-2001 being not supported by any cogent or valid reasons could not have been sustained.

20. It is well settled that an order of re- counting of votes can be passed when the following conditions are fulfilled:

(i) a prima facie case;

(ii) pleading of material facts stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and

(iv) an objection to the said effect has been taken recourse to.

21. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting 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 re-counting."

9. In the case of Bhabhi v. Sheo Govind, reported in (1976) 1 SCC 687, Hon'ble Supreme Court has laid down the condition in which a Court can grant inspection of ballot papers. Paragraph 15 of the said judgment is reproduced below:-

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 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."

10. From the law laid down by Hon'ble Supreme Court in the aforesaid judgments, it is apparent that the Election Tribunal has to record a prima facie satisfaction, on the allegations made in election petition and the evidence adduced in support of those allegations, that re-count of ballot papers is absolutely necessary to do complete and effectual justice between the parties. Moreover, such prima facie satisfaction and the material, based on which such satisfaction is arrived at, should be reflected in the order passed by Election Tribunal.

11. However, order passed by learned Election Tribunal falls short of what is required by law. The reason for ordering re-count is given in first 2 paragraphs of the impugned order dated 06.05.2022, which are reproduced below:-

"Today is fixed for judgment. While going through the record, it transpires that the case cannot adequately be decided without recounting of the votes.

From the perusal of record, it appears that the case of the petitioner is based on wrong counting of ballot papers. The allegation of the petitioner is that the votes which were casted in his favour were wrongly rejected and O.P. No. 3 was wrongly declared as winning candidate by the margin of three votes only. In this matter, it is admitted fact that the counting of ballot papers was carried out in the night also. The allegations of the petitioner is that there was no proper arrangement of light at counting center.

12. In the first paragraph, learned Election Tribunal has observed that the case cannot

adequately be decided without re-counting the votes, however, it is silent as regards the material based on which such satisfaction was arrived at. The allegations made in the election petition and the evidence brought on record, based on which prima facie satisfaction of the Election Tribunal was arrived at, has not been indicated.

13. The discretion conferred on Election Tribunal 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 burden would be upon petitioner to make out a case for re-counting of ballot papers.

14. From the impugned order, it is not clear as to whether the election petitioner (respondent no. 1 herein) had been able to discharge her burden.

15. It is settled position in law that narrow margin of votes between returned candidate and election petitioner, by itself would not be sufficient for issuing a direction for re-count.

16. Since the impugned order does not disclose any cogent reason for re-counting of ballot papers, which is necessary, as held in the case of Chandrika Prasad Yadav (Supra), therefore, on this short point alone, the impugned order dated 06.05.2022 is set- aside and the writ petition is allowed.

17. This order, however, will not preclude learned District Judge/Election Tribunal from passing fresh order for re-count of votes, as per law.

(MANOJ KUMAR TIWARI, J.) Arpan