(1) This appeal is from the order of the Election Tribunal, Hyderabad dismissing the Election Petition No. 357/1962 filed by the appellant questioning the election of the 2nd respondent herein (S. Malkonda Reddy) and praying that the election of respondents 1, 2 or any other respondent be declared void and the appellant be declared duly elected to one of the ten seats of the Andhra Pradesh Legislative Council.
(2) The appellant was one of the 13 candidates duly nominated to contest for one of the ten seats in the biennial election to the Andhra Pradesh Council by the members of the legislative Assembly which was held on 25-6-1962. The election to these seats was based on the principle of proportional representation by a single transferable vote. The process involved is elaborate and the task of the Returning Officer particularly is rather arduous, the principle underling the system being that it is not sufficient that every citizen should have the vote but he should also be assured of the greatest possible freedom and effectiveness in its use.
This system gives ample scope to the electors to take part as freely and fully as possible in the selection of their own representatives by choosing between candidates on personal as well as party grounds with the assurance that all or nearly all the votes cast by them are made effective by being passed on as may be necessary from the candidate they have marked '1' to the candidate they have marked '2' and so on. It is therefore legitimate to expect that the total result will reflect the opinion of all or nearly all the voters. One characteristic feature of this system is that in this form of representation the successful candidate is elected not b a majority of votes but by a quota that quota being one vote more than the number obtained by dividing the total number of valid votes by one more than the number of seats to be filled. This is popularly known as Droop quota. The detailed procedure to be followed in this behalf has been laid down in Rr. 76 to 83 of the Conduct of Election Rules, 1961.
Accordingly, the Returning Officer after scrutiny and arrangement of valid ballot papers in parcels as per rules 73 and 74 counted and recorded the valid votes which totalled to 290, their paper value according to the rules being 2900. He then determined the requisite quota for election as 2637. He found that seven of the candidates in the very first count had secured the requisite quota and more. They were declared elected. As the votes in excess of their quota could not be wasted but had to be transferred to the continuing candidated according to the next available preference as recorded on the ballot papers, he then considered the question of transfer of surplus votes. Largest surplus secured by a candidate had to be dealt with first. As three successful candidates had to their credit the largest equal surplus, the order in which this was to be dealt with was determined by lot. Accordingly he first death with Brahmavya's (Respondent No. 3) surplus votes, then Pallam Raju's (since dead) and then Abu Yusuf's (respondent No. 4). Thereafter, he dealt with the other surplus in the order of magnitude. Of course lots had to be cast in relation to Goutam Venkatasetty also who had obtained equal points i.e., 2700. As a result of the transfer of surplus votes, Bendi Kurmana got elected in the second count itself as he shot past the required quota. His surplus votes were distributed on the 9th count amongst the continuing candidates. At this stage, it appeared from the position of the value of votes to the credit of each continuing candidate that Kaloji Nrayanarao (respondent No. 10) had no chance of election as they were lowest on the poll. Therefore, they were excluded as per the rules and their votes were distributed among the continuing candidates, as a result of which Sudhakararao was declared elected.
The only candidates then left in the field were Malkonda Reddy and the appellant. There was only one seat to be filled in. The appellant had 2434 points whereas the 2nd respondent had secured 2,555 points. Of course none of them had requisite quota. So the remaining one seat had to go to the candidate who had obtained majority of votes Respondent NO. 2 as between the remaining contestants was such a candidate. He was therefore, declared elected and the appellant was declared not elected. Dissatisfied with the way in which election was declared, the appellant filed his election petition praying that the election of respondents 1 and 2 or other respondents be declared void and he be declared duly elected. He also prayed for a fresh scrutiny and recount of the ballot papers.
(3) The main grounds on which these requests were made were that the Returning Officer had committed several irregularities and mistakes in scrutiny counting and in the distribution of surplus votes. His complaint was that no adequate opportunity was given to the candidates or their agents to see the ballot papers, that the classification of valid and invalid votes was not rightly done. Most of the ballot papers which ought to have been declared invalid were wrongly received as valid. There were other irregularities besides. It was averred that consequently the result of the election was materially affected. He complained also of corrupt practice committed at the election by the candidate S. Malkonda Reddy in that the latter had actively canvassed within the prohibited area of the polling booth contravening the provisions of section 130 of the Representation of the people Act.
(4) The Election Tribunal in view of the allegations of the parties raised eight issues which are to the following effect:-
1.(a) Whether the Returning Officer accepted any ballot paper which did not contain the figure (1) as prescribed by Rule 73 (2)(a) of the Conduct of Election Rules, 1961? If so whether the result of the election has been materially affected?
(b) Whether Rule 73 (2) (a) is a mandatory provision and if so, whether the instructions or clarifications issued by the Election Commission have any binding force?
2. Whether the averments contained in paragraph 9 of the petition are true? If so, what is its effect on the result of the election?
3. Whether the Returning Officer committed errors and irregularities as stated in paragraphs 3 to 8 of the petition and has the result of the election been materially affected by reason of such errors and irregularities?
4. Whether the petitioner is entitled to a recount and scrutiny?
5. Whether the election of the 1st and 2nd or any other respondent is void?
6. Whether the Returning Officer if s necessary or proper party to these proceedings.
7. Is the petitioner entitled to be declared to be duly elected?
8. To what relief is the petitioner entitled?
Three witnesses were examined on each side. On the question of corrupt practice viz., that Sri Malkonda Reddy had actively canvassed in contravention of Section 130 within the prohibited area of the polling booth by whispering into the ear of one of the voters, the Tribunal held that there was absence of substantial or conclusive proof in this behalf and that at any rate the evidence adduced fell for short of the proof necessary to hold that the said respondent had committed an election offence. On the other main question whether recount should be ordered having regard to the irregularities or mistakes alleged to have been committed, the Tribunal observed that both on principle and authority, no candidate can claim as of right recount and scrutiny unless he makes out a prima facie case of good grounds for believing that either there was in fact a mistake committed by the Returning Officer or that there is cause to suspect the calculation of votes and the distribution of ballot papers.
On the evidence brought on record the Tribunal believed the case of the petitioner that the Returning Officer had declared that all papers not containing the international Indian numerals would be invalidated and proceeded with the scrutiny on that assumption but later made a second declaration to the effect that those which contained mark 'x' alone would be invalidated and all others would be declared valid. As a result it entertained the view that certain ballot papers which might contain marks or figures in contravention of Rule 73 (2) which is mandatory in nature, might have been included in the valid papers. On this basis and also because there was a close fight between the appellant and Sri Malkonda Reddy, there being a difference of only 1-21 votes, it was inclined to believe that the appellant had made out a prima facie case to justify the order or recount. It did not however accept the contention that there has been any mistake in following the procedure relating to the distribution of surplus votes. Nor did it come to the definite conclusion that there was a contravention of Rule 73(2). All that it had held was that scrutiny and then recount was expedient to ensure due compliance of Rule 73(2) which is imperative and unless that is done issue No. 1 cannot be fully and satisfactorily decided. Then the Tribunal proceeded with the work of scrutiny having decided other issues in the case. This work was undertaken in the presence of the parties and in the light of the objection raised as to the validity of the papers. The Returning Officer was also present.
(5) The disputed ballot papers were found to be only ten in number. Out of those, three ballot papers marked C. C and E contained the figure (1) mark in this manner: 1. Three ballot papers marked F, G and H contained Roman figures, I, II and III instead of International Indian figures. The ballot paper marked J contained Urdu numeral (2). The ballot paper marked K contained the figure I which was scored out and the Arbic figure (2) was put by the side instead. In one ballot paper maked L, figure 2 had inverted commas added on both sides. The ballot paper marked M contained marking of figures 1, 2, 3,4 etc. in the column where the names of the candidates are found and not in the space bearing the heading 'mark order of preference', and figure 4 was in the form of Telugu numeral.
(6) The Tribunal came to the conclusion that but for the ballot papers F, G and H wherein Roman figures were employed and ballot paper marked J where figure (2) is marked in Urdu and ballot paper M where figure 4 is marked probably in Telugu, all other ballot papers are valid.
After holding so by its order dated 25-6-1963, a fresh count was made of the votes polled by the candidates, keeping in view the Rules 76 to 83. A chart was prepared and certified to be correct by the Returning Officer. Just before the declaration of the result of the election the appellant again prayed for recount for the reason that some mistake had occurred in the process of recounting. He was asked by the Tribunal to put forward his objections in the form of an affidavit. The appellant in the affidavit took exception to the fresh lot drawn at the time of recount for transfer of surplus votes of Sri Abu Yusuf, Sri G. Brahmayya and Sri Pallam Raju on the ground that this step was unwarranted having regard to the fact that such lot was already drawn by the Returning Officer at the time of previous counting and the recount did not affect the strength of their valid votes. His contention was that the fresh lot varied the order in which the surplus of the said three elected candidates was to be dealt with and in fact has materially affected the result of the election so as far as he was concerned. It may be noted at this stage that whereas according to previous lot Brahmayya's surplus votes were dealt with first, as a result of the fresh lot precedence was given to Pallamaraju's surplus votes.
The second objection which found favour with the Tribunal was that Bendi Kurmanna's surplus was dealt with even before the surplus votes of some of the candidates declared in the first count were transferred to the continuing candidates and this was a clear contravention of the rules. The third ground raised was that since several mistakes were detected at the time of recount which of course were rectified then and there, it is likely that there may be found still some more mistakes of the same nature and hence recount is necessary. The Tribunal by its order dated 6-8-1963 rejected this and the first mentioned objection for the reasons shown. However, on account of the mistake committed while dealing with Sri Bendi Kuramanna's surplus votes it directed that this error in recounting should be rectified from the stage where it had crept in.
Accordingly the process of counting and transfer of surplus votes was taken up as from the fifth count and was completed in accordance with the rules in the presence of the parties and their advocates and a chart was prepared showing the position of the vote secured by the candidates before and after the transfer of surplus votes and this statement was certified to be correct by the Returning Office. As a result of this recount also, the appellant could not be declared to be elected. Then again an objection was raised by the appellant that during the process the lot had to be cast afresh as between Govindarajulu and Ramachandrayya who had polled equal votes and that since that was not done recount must be ordered. The Tribunal rejected this objection by its order dated 10-8-1963 on the ground that it was not a fresh recount. As a result, the Election Petition was dismissed by the order dated 13-8-1963. The appellant therefore, has come up to this Court challenging the correctness of the decision of the Tribunal.
(7) Though the grounds raised covered all the objections referred to above, the arguments were confined to only some of them. The finding on corrupt practice was not canvassed Evidently, there is no scope for challenging the finding having regard to the state of evidence. Even the identity of the voter in whose ear Sri Malkonda Reddy is said to have whispered is not satisfactorily established. We agree with the conclusion reached by the TY>T the corrupt practice alleged is not satisfactorily established as such. Needless to say that the trial in election petition is a quasi criminal trial and unless there is clear, precise and cogent evidence to bring home the charge, it cannot be accepted. That is what is held by this Court in Narsimhareddy v. Bhoomaji, : AIR1959AP111 . That is also the view of the Madras High Court in Kandaswami v. S.B. Adityan, : AIR1960Mad170 . To the same effect is the compelling authority of the Supreme Court in Harischandra Bajpai v. Triloki Singh, : 1SCR370 .
(8) The main grounds urged in this appeal relate to the mistake and the irregularities in recounting and also scrutiny. It is contended as was done before the Tribunal that when the lots were drawn at the time of the original counting itself in relation to surplus votes of the three candidates declared elected in the first count, no fresh lot should have been cast at the stage of the recount when the position of those candidates was exactly the same as at the time of original counting. It is alternatively contended that if drawing of fresh lots was necessary at the time of recount, the same method ought to have been resorted to in relation to Sri Govindarajulu and Sri Ramchandrayya when a further check up was ordered. It was further contended that the so-called check-up was indeed in the nature of recount which could not be continued only from a particular stage. At any rate failure to cast lot in relation to the aforementioned two candidates has materially affected the result of the election. As regards scrutiny, it is alleged that the five ballot papers out of the disputed ten were improperly received even though they contravened the mandatory provisions of Rule 73 (2) and this is sufficient to declare the election to be void.
(9) We first take up the objection relating to scrutiny. The question is whether the Tribunal has erred in holding that five out of the ten disputed ballot papers were not invalid yI(tm) doubt pointed out onbehalf of the respondent that even the five other papers which have been invalidated ought to have been declared valid. But we do not think it necessary to discuss elaborately that question though a casual reference even to these papers may be found necessary while dealing with the question raised by the appellant. We deem it meet to confine our attention as far as possible only to the five ballot papers which were held valid. The relevant provision which must be noticed in this behalf is contained in Rule 73 (2) of the Conduct of Election Rules which reads thus:
(2) A ballot paper shall be invalid on which-
(a) the figure 1 is not marked; or
(b) the figure 1 is set opposite the name of more than one candidate or so placed as to render it doubtful to which candidate it is intended to apply; or
(c) the figure 1 and some other figures are set opposite the name of the same candidate; or
(d) there is any mark of writing by which the elector can be identified.'
This provision both in form and essence is mandatory, concerned as it is with the ballot paper and particularly with the act to be done by the voter himself. As observed in Ackers v. Howard (1886) 2 TLR 484 at p. 485 the statutory provisions in general are directory where the thing is to be done by an officer but are mandatory where it is to be done by the voter. Besides the words used in the rule is 'shall' showing that it is imperative. So them if it is not obeyed in full it would necessarily follow that the thing is not done as required by the Act, with the result that the ballot paper shall be held invalid as that in terms is enjoined by the rule. The rule, it may be noticed, contemplates four types of cases which render the ballot paper invalid. Firstly, it may be case where the figure (1) is not marked at all. Such a ballot paper would be of no value at all. Secondly, though figure (1) is marked it may be found opposite the names of more than one person or in such a manner as to render it doubtful to which candid English Dictended to apply. The ballot paper will then be void for uncertainty. Thirdly, in addition to figure (1) some other figures may be set opposite the name of the same candidate leading to confusion. That again would show uncertainty and indecision of the elector. Lastly some further mark or written may be made which may give an indication about the identity of the elector. That would obviously constitute can did breach of the secrecy of voting which is the essence of voting by ballot. These are the several cases which render the ballot papers invalid. The rules regulating proportional representation by a singly transferable vote as embodied in Chapters VI and VII do not contemplate any other type of case which per se renders the ballot paper invalid. Of course Rule 37 which finds place in Chapter VI provides for additional figures to be placed in the ballot paper but it leaves the matter to the discretion of the voter. Failure to make figures 2,3,4 etc.., will not therefore, invalidate the ballot paper. Rule 73 being the express rule in Chapters VI and VII dealing with invalidity, the ballot paper shall be ignored only if it is within the mischief of sub-rule (2) of Rule 73. Further Rule 73 (2) is in terms exhaustive of all the causes which invalidate the ballot papers. So then, while pronouncing on the invalidity of a ballot paper, we ought to adhere to the clear language of that sub-rule (2) and its necessary implications. Its scope cannot extend beyond what its language permits. In the instant case, as already noticed, out of the ten disputed ballot papers marked, C,D,E,F, G, H, J, K, L and M the criticism against the ballot papers C, D and E is that he figure (1) marked in paper C opposite the name of Shri Sudhakararao and in D opposite the name of Sri Bendi Kurmanna and in E opposite the name of Sri Abu Yusuf appears to be a Roman figure I rather than an International Indian numeral as enjoined to be used by Art. 343 of the Constitution of India. To our mind, this is a distinction without much diffeloan either bjection is to the form rather than to the figure itself and it is raised by invoking Art. 343 of the Constitution of India which it is urged qualifies or supplements the provision in question.
(10) It must be remembered that all that Rule 73(2)(a) contemplates is that figure (1) must be marked. It does not specify further that this figure should be in the form of particular type of numerals nor does it state that the size and shape of the figure must exactly be the same as it is marked in the rule itself. While construing a penal provision we cannot read into it certain other words or provision unless the language in terms or by necessary implication so warrants. The provision does not in terms refer to Art. 343 nor does it contain specific direction as to the form of the numeral to be used. It may nevertheless be legitimate to think that the recognised or approved forms of numerals at all events must be used. The recognised form of numerals is not of only International Indian numerals. In fact the form of figure (1) as may be seen in the Hindi version of the rules is not that of International Indian numeral but it is of Devanagari numeral. It is obvious shape of the figure as on the figure itself which should be a recognised numeral and should be so marked as not to be mistaken for any figure other than (1). Article 343 which is concerned with the official language of the Union while providing in sub-cl. (1) for the International form of Indian numerals to be used, under proviso to sub-cl. (2) states that the President may authorise the use of Devanagari form of numerals as well for any official purposes. Thus the Articles contemplates the use of both forms of numerals for certain official purposes. If the election process is to be regarded as the official purpose, evidently the recognised numerals to be used for that purpose would be International form of Indian numerals and also Devanagari form of numerals if that is permitted.
It is not the case of the respondent that in C, D and E and seveses to which used are other than the International Indian numerals. It is however contended on behalf of the appellant that figure (1) marked looks more a Roman figure in that the line at the head extends to the right side as well. But a perusal of figure (1) used at various places in the published edition of the Conduct of Elections Rules itself would show that though that figure is intended to be marked in the form of International Indian numeral and is accompanied y figures which are evidently of the form of International Indian numeral, has the line at the top extended to the right which, if the contention of the appellant has to prevail, must be a Roman Figure I. Instances of this nature may be found at pages 360, 361, 362, 366 and 367 etc., where the line at the head is extended to the right side in the same way as is seen in the line at the bottom. Merely because the line at the head on the left of figure (1) is extended to the right to any extent in the figure (1) cannot be necessarily held as Roman figure. That is so even if the said lines do not fully touch the head or bottom and it is possible to presume that that might have been done to render it impossible for any addition thereto or alterations therein without being detected. Judged thus, the figure (1) so used in ballot papers C, D, and E cannot be said to be essentially a Roman numeral nor it is liable to be mistaken for any other figure C, D and E ballot papers therefore, are not within the mischief of Rule 73(2) of the rules. Perhaps of the lines above and below forming the top and bottom of figure (1) had been so designed as to come within the mischief of Cls. (b), (c) and (d) of Rule 73(2) the ballot papers would have been invalid.
But that is not the complaint here. The only complaint is that the figure (1) appears to be more a Roman numeral rather than the International Indian numeral rather than the International Indian numeral. But as already observed, the question cannot be decided on mere imperfections in or tendencies of the form of tt actually by what it was intended to be and this intention may as well be inferred from the intrinsic evidence contained in the ballot paper itself. When we look to the other figure used in the paper it would be obvious that the author intended to use only International Indian numerals in the ballot paper. The figures 2, 3, 4, 5 and 6 bear ample testimony to the same. It is on this basis that the Tribunal held that the objection raised is without merits. In the absence of specific directions in Rule 73(2) we are clearly of the view that when the figure (1) is infact marked in the ballot papers about which there can be no dispute, the ballot paper cannot be invalidated on the ground that the figure marked is not in full accord with the form and shape of the International Indian numeral. The ballot paper as held in Cirencester Division case, (1893) 4 OM and H 194 must be interpreted liberally and it is not every departure from the rules that would render the voting invalid. Effect must needs be given to any mark on the face of the paper which clearly indicates the intention of the voter.
Evidently imperfection of form is of little consequence when the intention of the voter is obvious. Penal clauses should be strictly construed and unless the defect complained of clearly falls within the mischief of the rule, that will not be hit thereby. The Tribunal was right in holding that there was no infringment of Rule 73(2) and the ballot papers C, D and E are valid. It may be further noted here that in none of these three ballot papers neither the appellant nor the respondent Sri Malkonda Reddy got any vote.
(11) The two other ballot papers in relation to which the objection was taken as having been improperly received are ballot papers K and M. The objection with regard to K is that the figure (1) originally marked was struck off and figure (2) was put in the column concerned. The voter in this paper his first preference to P. Pullareddy and entered mark (1) as against his name. Then he wanted to give hons to the Serence to Sudhakararao. Instead of putting figure (2) against his name he put figure (1) forgetfully and then he scored this figure (1) effectively and put the correct figure (2) by the side legibly. Thus the scoring became inevitable on account of his carelessness this figure (1) as scored makes the ballot paper void for uncertainty, nor does it violate the principle of secrecy of voting which is of the essence of voting by ballot. It does not in any manner offend the salutary principle is an accidential mistake which was immediately corrected by effectively scoring it. That is indeed permissible so long as it is not within the mischief of sub-cls. (b), (c) and (d) of Rule 73(2).
When the scoring is effective, sub-cls. (b) and (c) cannot be attracted at all. Besides, it is not every additional mark or writing made on the ballot paper that can bring the case within the mischief of Cl. (d). The terms of the said sub-clause are categorical that in order to attract that provision the mark must be a mark by which the voter can be identified. Either it should be itself afford an indication of the voter or should appear from the evidence that the mark was placed in pursuance of a prior arrangement. It cannot even be said that this mark standing alone can lead to the identification of the voter. On the other hand, it shows that the figure (1) struck off was mistakenly entered. The effective striking thereof further shows the clear intention of the elector to give second preference to that person against whom the mark was made. Mistakes of this nature, in fillingup the ballot papers, are not uncommon. When they are innocent and not a device for the elector's identification no invalidity can possibly be attached to the ballot paper. Needless to stress here that in determining the invalidity of the ballot paper we ought to adhere to the language of the provision which says that the mark must be a mark by which the voter can be identified.
(12) There remains the ballot paper L. The objection in regard to thiith the rulenverted comma was added on both sides of the figures 1 and 2 and that would serve as an indication for the identification of the voter. This contention is not supported by any evidence intrinsic. There is no evidence of pre-agreement either. It is well settled that unless the mark itself affords and indication of the voter or there is positive evidence from which it can be inferred that it was placed in pursuance of prior arrangement no invalidity can be attached to the ballot paper. It is unnecessary to cite authorities on this point. It may be sufficient to refer to the case K. Sadananadan v. Madhava Menon : AIR1962Ker68 decided by the Kerala High Court which refers to some such authorities. We are of the view that ballot paper L was rightly accepted. We may further observe that out of these five ballot papers only in ballot paper L.S. Malkonda Reddy got a vote. In others neither the appellant nor Malkonda Reddy got any.
(13) The respondent make grievance of the fact that the Tribunal did not receive the other five disputed ballot papers also which did not contravene Rule 73(2) of the Conduct of Election Rules, 1961. As already notices, the ballot papers in question could be held invalid only if they were within the mischief of Rule 73(2). Rule 73(2)(a) renders the ballot paper invalid if the figure (1) is not marked. All the ballot papers marked F, G, H, J and M bear the mark of figure 1, though of course with regard to F, G and H it is said that figure (1), marked therein is the Roman figure and not the International Indian numeral.
Obviously enough, in the ballot paper F figure (1) by its appearance is not at all Roman to any extent, but since in that paper as also in papers G and H the other figures marked are Roman numerals, the Tribunal considered that the elector intended to use only the Roman figures. These papers were rejected on that score. As to the other two papers which are rejected there was no dispute t all with regard to the marking of figure (1). They were rejected because ind the conse paper J the figure 2 was Urdu figure and in ballot paper M, the figure 4 was Telugu figure. Rule 37-A which relates to the method of voting says that every elector may in addition to figure (1) may place on his ballot paper the figures (2) and (3), or figures, 2, 3 and 4 and so on in the space provided for the other candidates in the order of preference.
Thus this rule providing for marking of additional figure is not mandatory. It is not imperative thus on the part of the voters to make additional figure. It is left wholly to their discretion. So then, even if any of these additional figures were not entered, the ballot papers would not have been rendered invalid. The same consequence must follow if the figures marked are not in the form of International Indian numerals, unless of course the way in which they are marked brings them within the mischief of (b), (c) and (d) of Rule 73(2). The matter does not appear to have been considered in that light. However we think it unnecessary to enter into discussion in that behalf as that will not in any event swing the balance in favour of the appellant.
(14) Now we take up the other objection of the appellant which is concerned with the question of recounting. As notices already this request is based on three grounds. Firstly, the Tribunal committed a mistake in casting fresh lots with regard to the surplus votes of the three candidates declared elected on the first count, at the time of recounting. Secondly, assuming that was the correct procedure surplus votes of Govindarajulu and Ramchandrayya should have been similarly dealt with where the counting for the third time was being done and thirdly since at any rate there is likelihood of more mistakes having been committed than what were discovered and rectified at the time of recounting, a further recount was necessary. It is not easy to see how these pleas constitute valid grounds for getting the relief of recounting. A scrutiny of recount cannot be granted for the mere askance. It can be allowed neithe State Govter of right nor as a matter of course. It is left to the discretion of the Returning Officer or the Tribunal, as the case may be albeit it is a discretion to be exercised not arbitrarily but on principles of justice, equity and good conscience. By a long chain of authorities it is firmly established that this discretion can be exercised only on good grounds made out by evidence for believing that there has been a mistake on the part of the Returning Officer. The party praying has to make out a prima facie case an satisfy the Tribunal that the return was not accurate and that a scrutiny and recount are necessary in the interests of justice. That is what has been laid down in Stepheney's case., 40 Malley and Hardcastle 34. To the same effect was the view of this Court in Mohan Reddy v. Narayan Reddy, : AIR1964AP190 when it observed that a recount is not granted as of right, but only on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer. A party therefore cannot ask for recount on the off chance of his being able to detect mistakes. As observed in : AIR1964AP190 .
'the proceedings before the Tribunal cannot be converted into a forum fishing out any possible defects regarding which no objection was raised before the Tribunal, or in the election petition and the same principle should apply in the case of scrutiny.'
In fact that the statutory rule providing for recounting imposes limitations on the right of the party to apply for recounting and makes it abundantly clear that the question of recount is discretionary with the returning officer. The relevant rule i.e. Rule 82 reads thus:
'(1) Any candidate or, in his absence his election agent or counting agent may, at any time during the counting of the votes, either before the commencement or after the completion of any transfer of votes (whether surplus or otherwise), request the returning officer to re-examine and re-cGovernment hers of all or any candidates ( not being papers et aside at any previous transfer as finally dealt with), and the returning officer shall forthwith re-examine and re-count the same accordingly.
(2) The returning officer may in his discretion re-count the votes either once or more than once in any case in which he is not satisfied as to the accuracy of any previous count;
Provided that nothing in this sub-rule shall make it obligatory on the returning officer to re-count the same votes more than once.'
According to this rule a candidate or his agent can make a request for recount during the counting of votes, but such request is limited to papers which are not set aside at any previous transfer as finally dealt with; in other words, if the papers have been transfered to the respective parcels they will not be re-opened. Further, if the request is not made during the counting of votes as specifically provided in the rule, the returning officer is not bound to re-examine and re-count the votes. So then, if the returning officer has declared the result, any mistake can only be rectified by the Tribunal on an election petition. Sub-rule (2) further lays down that recount is discretionary with the returning officer. If he thinks that there has been error in counting he can recount the votes before he declares the result. It is open to the returning officer to recount the votes even more than once if he is not satisfied as to the accuracy of the previous count but however, it is not obligatory on him to recount more than once. It follows therefore, that a candidate, or his election or counting agent may remain present during the counting of the votes and require the returning officer to have the votes re-examined or recounted but the returning officer may refuse to do so if in his opinion the request is unreasonable. What holds true in the case of returning officer may be equally applicable, to the Tribunal as well when an election petition is filed.
As observed by the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque, : 1SCR1104 the jurisdiction of a Tribunal is co-extentive with that of the returning officer. The Tribunal can therefore, if satisfied, direct re-count and if still dissatisfied with the accuracy of the recount on finding that some mistake has been committed, it can as well direct recount from the stage where the mistake had been committed.
That is what the Tribunal had done as it clear from the facts already narrated. On the first occasion when the Tribunal was satisfied that the appellant had made out a case and raised reasonable grounds it directed scrutiny and recount. In fact it undertook the task of scrutiny and recount in the presence of the parties and the returning officer. It resolved the dispute in relation to the ten ballot papers during the scrutiny. Then, after arrangement of valid ballot papers in parcels, it started fresh counting, which was inevitable as in consequence of scrutiny. The number of total valid votes polled was affected and the requisite quota for election of a candidate likewise underwent a change. No doubt the total votes polled by Shri Abu Yusuf, Shri G. Brahmayya and Shri Pallamraju remained constant even after recount; fresh lot under the rules was nevertheless unavoidable specially because the quota itself had varied. The appellant having requested for scrutiny and recount cannot make a grievance if the result went against him unless the rules regulating recount were not adhered to. The course adopted by the Tribunal was indeed was warranted by rule 79. It may be remembered that under R. 71 (2) conunting means-
'(a) all the operations involved in the counting of the first preferences recorded for candidates; or
(b) all the operations involved in the transfer of the surplus of an elected candidate; or
(c) all the operations involved in the transfer of the total value of votes of an excluded candidate;
When it is clear that the surplus of the elected candidates which was to be taken in order of magnitude and in case of equality into a Goveecided by lot for determining which surplus should be dealt with first, the Tribunal had no other alternative but to resort to lot for purposes of counting within the meaning of R. 71 (2)(b). The plea of the appellant as against this cannot be tenable. Before the result of the recount was declared, it seems the appellant who kept quiet till the end had informed the Tribunal that he would request the Tribunal for re-count. At the instance of the Tribunal he even filed an affidavit referring to the mistake committed in the case of counting. That mistake related to the transfer of surplus votes secured by Bendi Kurmanna (who got the requisite quota in second count) which was effected before the surplus of the other candidates elected in first count was dealt with. This was indeed a clear contravention of the rules. The Tribunal therefore, directed counting from the stage the defect had crept in Ramachandrayya and Govindarajulu were the candidates who had to their credit the next best quota in order of magnitude. They had polled 2800 votes each. Their surplus had to be dealt with immediately after the transfer of first three candidates was effected. No other person could step in between. The lot was in fact cast at the time of count. Therefore, the same lot was taken as a guide for the transfer of surplus votes secured by them.
The appellant took exception to this course. His contention is that a fresh lot ought to have been cast. The Tribunal rejected this contention on the ground that the appellant could not show any rules which would declare that a fresh lot was necessary. We think that the Tribunal is right in holding that the lot drawn at the time of recount was sufficient for the purpose and no fresh lot was necessary, specially when at the time of previous count the only mistake committed was that the surplus of these two persons was not transferred first. This transfer could have been effected only by lots which were already drawn. So, there was no necessity of fresh lot to be cast. Further thatcation, and continuation of recount and not a fresh recount as the Tribunal has observed. It cannot therefore, be said that there has been any contravention of any rule in doing so.
(15) The third objection relates to the fact that since various mistakes were discovered at the time of recount which the parties were vigilant enough to find them out, there might still be some more mistakes and for that purpose recount was necessary. It cannot be disputed that there were indeed some mistakes pointed out at the time of recounting in relation to the placing of ballot papers and all these were rectified at the very moment. The recount was done in the presence of the parties and the parties as may be seen, were vigilant enough. The appellant cannot point out any specific mistakes that might have been committed in recount, in order to satisfy that there were grounds for directing recount. We do not think that the Tribunal was wrong in rejecting their request. After as well as we have already pointed out, the recount is not a matter of right and the returning officer is not bound to recount more than once unless he is satisfied that there has been inaccuracy in counting. The Tribunal too, unless satisfied, that there was inaccuracy, could not direct recount. In these circumstances all the three objections raised by the appellant fail. That being the case, the appeal also must fail.
(16) It may be noticed that the appellant in his election petition had prayed not only for recount and scrutiny of the ballot papers but also for the declaration that the election of respondents 1 or 2 or any other respondent is void and that the appellant himself has been duly elected to one of the ten seats of the Andhra Pradesh Legislative Council. No doubt, he had established before the Tribunal that a scrutiny and recount was necessary n the interests of justice and got that relief but the recount did not materially affect the result of the election. The election Tribunal therefore had decided the petition against him. We see, no mertion of makiappeal. The appeal is dismissed with costs. Advocate's fee is Rs. 300.
(17) Appeal dismissed.