Skip to content


Tribeni Ram Vs. Satyadeo Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 191 of 1963
Judge
Reported inAIR1966All20
ActsRepresentation of the People Act, 1951; Conduct of Election Rules, 1961 - Rules 62, 63(1) and 63
AppellantTribeni Ram
RespondentSatyadeo Singh and ors.
Appellant AdvocateSripat Narain Singh, Adv.
Respondent AdvocateP.N. Singh and ;B.B. Singh, Advs.
DispositionAppeal dismissed
Excerpt:
(i) election - election petition - preamble of representation of the people act,1951 - grounds for filing election petition - powers of election tribunals - held, must be according to the provisions of act. (ii) conduct of election rules - section 116-a of representation of the people act, 1951 and rules 62 and 63 of conduct of election rules, 1961 - mistake in counting - held, recounting is discretionary power of the tribunal. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the.....gangeshwar prasad, j. 1. this is an appeal under section 116a of the representation of the people act, 1951 (hereinafter called the act) against the order of the election tribunal, azamgarh dismissing an election petition filed by tribeni rai appellant.2. the petition arose out of an election held in 1962 for membership to the u. p. vidhan sabha deogaon assembly constituency no. 227 of district azamgarh. the election was contested by the appellant and the five respondents. polling took place on 19th february, 1962 and counting of votes was done continuously from 10 a.m. of 26th february to about 5 a.m. of 27th february, 1962. according to the counting. sri satyadeo singh, respondent no. 1, secured 12505 votes, sri tribeni rai, appellant, 12497 votes, rama shanker singh, respondent no. 2,.....
Judgment:

Gangeshwar Prasad, J.

1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter called the Act) against the order of the Election Tribunal, Azamgarh dismissing an election petition filed by Tribeni Rai appellant.

2. The petition arose out of an election held in 1962 for membership to the U. P. Vidhan Sabha Deogaon Assembly Constituency No. 227 of district Azamgarh. The election was contested by the appellant and the five respondents. Polling took place on 19th February, 1962 and counting of votes was done continuously from 10 A.M. of 26th February to about 5 A.M. of 27th February, 1962. According to the counting. Sri Satyadeo Singh, respondent No. 1, secured 12505 votes, Sri Tribeni Rai, appellant, 12497 votes, Rama Shanker Singh, respondent No. 2, 11058 votes, Tej Bahadur Singh, respondent No. 3, 6350 votes, Ram Jag Yadava, respondent No. 4, 3659 votes and Amardeo Ram, respondent No. 5, 3588 voles. As a result. Satyadeo Singh, respondent: No. 1 was declared elected. aN election petition was then filed by the appellant praying that the election of respondent No. 1 be declared void and the appellant be declared duly elected. The grounds on which the petition was based were:

'(1) that respondent No. 1 was declared elected by improper reception and improper refection of votes and by reception of void voles;

(2). that the Returning Officer did not comply with Rule 56 of Conduct of Election Rules, 1961 relating to scrutiny and rejection of ballot papers and his failure to do so resulted in wrong admission of invalid votes in favour of respondent No. 1 and wrong rejection of invalid votes cast in favour of the petitioner;

(3). that several persons whose names appeared on the electoral roll were either dead or were not present on the date of the poll and their votes were cast in favour of respondent No. I by others who impersonated for them; and

(4). that in fact the appellant received a majority of valid votes.'

3. The Tribunal held that none of these grounds had been substantiated by the petitioner. It further came to the conclusion that no case for recounting of votes had been made out and it disallowed the prayer of the petitioner in that behalf. In the memorandum of appeal filed in this Court objections were taken to all the findings of the Tribunal, but at the hearing of the appeal Mr. Jagdish Sarup, learned counsel for the appellant, confined his attack against the decision of the Tribunal to the question whether a case for recounting of votes had been made out by the appellant, and he did not challenge the correctness of the findings of the Tribunal on other matters. The only contention raised by Jagdish Samp in his argument was that there was ample material to justify a recount and the Tribunal acted erroneously in rejecting the request for it. We are, therefore, concerned only with examining the soundness of this contention.

4. Before proceeding to enquire in what circumstances a recount is permissible and whether such circumstances existed in the present case, we think it necessary to point out that the grounds on which an election petition may be filed and the powers exercisable by an election tribunal in dealing with it must be regarded as having been exhaustively dealt with by the Act and the rules made thereunder, and general equitable considerations which are not recognised or supported by the Act or by the rules framed thereunder cannot: be imported into proceedings relating to election petitions. This feature of the law relating to elections was emphasised by the Supreme Court in the case of Jagan Nath v. Jaswant Singh AIR 1954 SC 210, in the following words;

'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law or power.'

5. Bearing the above observation in mind, let us see if any ease for a recount unconnected with and independently of improper reception or rejection of votes has been made out by the appellant. It cannot be disputed that a mere assertion or an expression of a suspicion by a petitioner that there has been a mistake in counting is not sufficient to justify a recount or an inspection of ballot papers which a recount necessarily pro-supposes. The principles governing the grant of inspection of ballot papers by an election tribunal have been laid down by their Lordships of the Supreme Court in the following terms in the ease of Ram Sewak Yadav v. Husain Kamil, Civil Appeal No. 1064 of 1963: (AIR 1964 SC 1249):

'An order for inspection may not be granted as a matter of course baying regard, to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest 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.'

6. Dealing with the question whether on the facts alleged in the petition in the above case grounds for inspection of ballot papers had been created, it was observed:

'In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception, refusal or rejection of votes were contained in paras. 6 (H), 6 (K) and 12. In para. 6 (H) it; was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the 'bundles of the respondent 2'. In para. 6 (K) it was averred that due to 'a deficiency in the supply of sealing ink, marks on some ballot: papers, though not quite clear, yet the marks clearly indicating the intention of the voters were wrongly rejected as invalid by the Returning Officer'. In para. 12 it was averred that 'the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out, and if the ballot papers are correctly sorted, counted and bundled the respondent No. I will be found to have polled less votes as compared to petitioner. The petitioner further submits that the result of the election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting, counting and bundling of ballot papers.' These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague, and did not comply with the statutory requirements of Section 83(1)(a). Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner, and merely asserts that if the votes actually cast in favour of the petitioner are counted, the total number of valid votes found in his favour would exceed the number of votes received by Yadav. Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim. The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice, but the discretion has manifestly to be exercised having regard to the nature of the allegations made. The Tribunal would be justified in refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition.'

7. Again in the case of Smt. Doctor Sushila Balraj v. Ardhendu Bhushan, Civil Appeal No. 222 of 1964 (SC), according to the extract of the judgment published in Supreme Court Notes of April 1, 1964, the Supreme Court observed as follows:--

'The High Court has taken the view that the Election Tribunal was in error in refusing inspection of the ballot papers to the respondent. Section 92(a) expressly confers on the Election Tribunal power in that behalf; but it is not a right, we think, to assume that the inspection of ballot papers can be ordered in favour of a party as soon as an application in that behalf is made by it. In a proper case where the interests of justice required or where a case otherwise made out for such inspection, inspection can and no doubt must be allowed. Such a power is also implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. But an order for inspection cannot he made when allegations in support of such a claim ave vague and the prayer for inspection appears to be actuated by a desire to fish out evidence in support of the pleas which the party wants to make in the present case, the High Court has not considered this aspect of the matter at all. It seems to have proceeded on the basis that a claim for inspection of ballot papers should he allowed as soon as election petition makes some kind of allegations in that behalf and makes a prayer for such in the petition. As has been held in Jabar Singh v. Genda Lal, 1963 SCN 348: (AIR 1964 SC 1200), and R.S. Yadav's case. 1961 SCN 11: (AIR 1961 SC 1249), such an approach is not consistent with the relevant provisions of the Act.'

8. We may also refer to the decision of the Madras High Court in N. Pethu Reddiar v. V.A. Muthiah, AIR 1963 Mad 390, where it was stated:

'An election once declared can be set aside only on the grounds referred to in Section 100(1) of the Representation of the People Act, 1951. No election can be set aside on mere suspicion. Nor can we agree to the proposition that the mere Fact that a successful candidate secured only a small number of votes over his nearest rival necessarily means that there was something wrong about the election. Illegality or irregularity in an election or in the process of counting of votes is a matter for proof and nothing can be done on the basis of mere suspicion.'

9. Later, in the same decision, after saying that on the authorities a recount would only be granted in cases which are substantiated by specific instances and reliable prima facie evidence S. Ramachandra Iyer, C.), remarked:

'If the law were otherwise it will indeed lead to considerable inconvenience. A defeated candidate in an unexceptionable election might harass the successful candidate by filing a frivolous petition and asking for a recount, involving thereby a repetition of the process of counting with no manifest advantage to anybody concerned.'

10. It will be noticed that in his election petition the appellant did not allege any irregularity in the mode of counting or any non-compliance with the rules relating to counting. He certainly alleged that the Returning. Officer did not comply with Rule 56 of Conduct of Election Rules, 1961 and did not, in particular, allow the counting agents a reasonable opportunity to inspect the ballot papers before rejecting them. This allegation, however, bears only on the question of improper rejection of ballot papers and has nothing to do with counting simpliciter. As has already been said, the Tribunal has clearly found that the appellant has failed to prove that there was any improper reception or rejection of votes or that there was a non-compliance of Rule 56 and this finding has not been challenged before us. The allegation referred to above has, therefore, to be ignored both because of not being relevant to the question of counting and also because of having not been substantiated. We are thus left with no allegation as to any irregularity in the course of the counting or as to any facts and circumstances which might have affected the correctness of the counting or destroyed the presumption of correctness attaching to it. On the other hand the statement of the appellant himself (examined as V. W. 2) clearly indicates that the counting was carried on! in a proper and careful manner and no exception can be taken to the procedure adopted for it.

The appellant stated that the presembly (sic) ballot papers were counted candidate-wise and valid ballot papers of every candidate were made into separate bundles. According to his satement there was one bundle made for invalid votes and there was a separate bundle for doubtfut ballot papers which were carried to the Returning Officer who decided which vote was valid and which was not. Further, and this is most important the appellant admitted that when the bundles of valid votes came to the Returning Officer he opened and saw them. To the same effect is the statement of Balbhadra Roy Vakil (P. W. 1) who was a counting agent on behalf of the appellant. He deposed that the ballot paper of every candidate was dropped in the basket meant for him and invalid votes were put in an extra basket. Further, he stated that after the counting the votes in each of the boxes were noted on a paper against the name of the candidate in whose favour the votes were cast. Thus the appellant and his counting agent, Sri Balbhadra Roy, have testified in clear terms to the regularity and propriety of the method of counting. Then there is the evidence of Faujdar Rai (R. W. 2) who was an election agent of respondent No. 1. He stated that the Returning Officer himself saw every bundle of valid votes to ascertain whether the sorting had been done correctly and to check whether the votes of some candidate had been mixed in the bundles of others.

The evidence, therefore, leaves no room for doubt that all practicable steps necessary for ensuring accuracy were taken by the Returning Officer and indeed, as we have said above, nothing against the method employed in the counting was alleged in the election petition. We have the further fact that there were six contestants to the election and the evidence indicates that each of them had about six counting agents present throughout the counting. The election was obviously a very keenly contested election, and naturally the candidates and their election agents should have been acting with utmost watchfulness. It is inconceivable that the candidates or their agents should have allowed the counting or the reception or rejection of votes to be done without ballot papers having been seen and examined by them. The circumstances attending the counting were, therefore, such as minimised the chances of error to the utmost and lent great assurance to the correctness of the figures mentioned in the return of the Returning Officer.

11. As against all this the learned counsel for the appellant relied upon one solitary mistake made in the counting or more precisely speaking, in the sorting of ballot papers, at one stage but rectified later, as making out a prima facie case for a recount. In fact the whole argument before us on behalf of the appellant centred round the discovery and rectification of this mistake and consequently that was the sole basis of the claim of the appellant for a recount. The parties were at variance as to the stage when and the circumstances in which the above mentioned mistake was detected and rectified and since this mistake was the only subject of controversy in this appeal we would set out the facts connected with it in some detail.

12. In Form 20 prepared by the Returning Officer under the rules the entry against polling station Bahadur Pur H. S. (Serial No. 19) indicates that in the first instance respondent No. I was shown to have received 86 votes and the appellant to have received 226 votes. Subsequently, however, in that polling station one vote was added to the votes of respondent No. 1 and correspondingly one vote was subtracted from the votes of the appellant. The entry in Form 20 against polling station Bahadur Pur H. S. is as 36+1=37 in the column meant for respondent No. 1 and as 226--1=225 in the column meant for the appellant. In the total (to be distinguished from the grant total) also the voles secured by respondent No. 1 were shown as 12504 + 1 and those of the appellant as 12492--1. The case of the appellant is that this mistake was discovered on a test checking done by the Returning Officer on an application lor recount made by the appellant. Respondent No. 1, on the other hand, contends that the Returning Officer had himself found out the mistake and corrected it during the course of the counting and before the appellant made the application for recount. Leaving aside for the time being the oral evidence on the question, we may first examine the papers on which the parties have placed reliance for their respective contentions. The application for recount made by the appellant to the Returning Officer was in the following terms:

'To

The Returning Officer, Deogaon.

Sir,

I beg to say that I have doubts in counting of votes. The votes which have been declared invalid contain certain votes which are valid. And there is doubt regarding the counting also. Therefore, it is prayed that the counting may be done again.'

13. On this application the Returning Officer passed the following order:

'This application has been filed by Sri Tribeni Rai a candidate for Deogaon Assembly Constituency 'requesting of recounting of votes polled at the above election. This has been filed by him before the Returning Officer announced and signed Form 20. The application is vague and does not contain specific grounds for recounting. The candidate should have been given specific grounds for so doing. He may give specific and definite polling stations when he requires that the votes polled should be recounted.

I will get that done. Just and now in the presence of the counting agents.

Sd/- D.L. Mathur.

26/27-2-1962

3-48 A.M.

R. O.'

14. Another application was then made by the appellant which is reproduced below:

'To

The Returning Officer, Deogaon,

Assembly Constituency.

Sir,

Respectfully the petitioner begs to submit that vour honour has been pleased to order the petitioner to give specific polling stations of which the recounting is asked for and the other grounds:

1. All the rejected ballot papers be reverified because a large numbers of ballot papers which were in favour of the petitioner have been wrongly rejected.

2. All the ballot papers of the polling stations:

P. S. No. 23, village Ramchandrapur.

P. S. No. 24, village Ramchandrapur.

P. S. No. 21, village Sri Kant Pur.

P. S. No. 22, village Sri Kant Pur.

P. S. No. 19, village Bahadur Pur.

P. S. No. 20, village Bahadur Pur.

P. S. No. 17, village Sophipur.

P. S. No. 18, village Sophipur.

P. S. No. 12, village Saranawa.

P. S. No. 13, village Saranawa.

P. S. No. 80, village Shekhpur Bachhawali.

P. S. No. 85, village Hawanpad.

P. S. No. 86, village Bawanpad.

be recounted as they have not been correctly counted and have wrongly placed. Invalid ballot papers of Sri Satya Deo have been declared valid and were counted as such.'

15. The first order passed by the Returning Officer on this application was as follows:

'The application is still vague. However, for issuing me accounting I will test check P. S. Bahadur Pur in presence of the candidates and counting agents, before Form 20 is signed.'

Sd/- D. L. Mathur.

27-2-1962.

4-15 A.M.'

16. The Returning Officer finally disposed of the application of the appellant for recount by the following order:

'T have checked polling station Bahadurpur and 54 Niyanatabad to ascertain if any vote of Sri Tribeni Rai had been put in the bundle of Sri Satya Deo as alleged. But this application was found frivolous. The request for recounting is not supported by any valid grounds and is filed.

Sd/- D.L. Mathur.

27-2-M62.

5-20 A.M.'

17. The point to be considered is whether the votes secured by the candidates on all the polling stations were totalled in Form 20 before or after the making of the first application for recount by the appellant. The argument for the appellant is that since the addition and subtraction of one vote are to be found in the total also it must be concluded that the change was made after the preparation, of the total and only as a. result of checking of the votes polled at polling station Bahadur Pur H. S. on the application of the appellant. The argument is not without force. But there are some other facts to be taken into consideration. Firstly, it has to be noted that under Rule 63 of Conduct of Election Rules, 1961 the stage for a recount is after the counting has been completed and the votes polled by each candidate have been recorded in the result-sheet in Form 20 and have been announced. Further, the completion of the counting takes place after the votes given by postal ballots have also been counted and announced under Rule 62. Looking at Form 20 prepared by the Returning Officer in the present case we find that the above; mentioned correction is in the figures of the total above the entry in regard to the postal ballots and not in the figures in the grand total. It was the making of UK; grand total that completed the counting and it was the grand total that had to be announced under Sub-rule (1) of 15. 63. According to the rule, therefore, the application for recount should have been made after the preparation and the announcement of the grand total and if ii: was actually made at that stage it is obvious that the mistake in question was discovered and rectified not after but before the application for recount because there is no change in the figures of the grand total.

On behalf of the appellant it was urged that there was nothing to preclude the appellant from applying for recount a little before the proper stage and at any rate he might have done so under a mistake. In this connection it was pointed out that in the order passed by the Returning Officer on the first application of the appellant it was mentioned that the application was filed before he had announced and signed Form 20. It may be conceded that the possibility of an application for recount being made before the proper stage cannot be ruled out, but in the absence of clear and reliable proof that this actually happened, it has to be presumed that the application was made at the proper stage. In the present case one of the counting agents of the appellant was a lawyer and we may reasonably assume that he had familiarised himself with the rules in regard to counting and would have advised the filing of an application for recount only at the proper stage. If the application for recount had been filed before the completion of the counting, respondent No. 1 or his agents could not have failed to see that it was premature and to object to its being entertained.

Most probably, the Returning Officer would have himself declined to take any action on it and he would not have passed the order which he actually passed. It is true that in his order on that application the Returning Officer stated that he had not till then announced and signed Form 20, but it may be that the words used by him were inaccurate and all that he meant was that he had not till then signed Form 20 and declared the result. Most probably, in observing that he had not announced and signed Form 20, the Returning Officer was not indicating the premature but the timely character of the application for a recount. This inference is borne out by the fact that the order passed by the Returning Officer shortly after on the second application of the appellant indicates that only signing of Form 20 had to be done and everything else had already been done. Secondly, the final order passed by the Returning Officer on the application for a recount goes to show that no mistake was discovered as a result of the checking done ou the application. If any mistake; had really been discovered, the Returning Officer must have noted the facts in his order and in any case the appellant and his counting agents must have insisted on the fact been noted in the order by filing another application. We find it difficult to accept that in spite of the fact that the checking done by the Returning Officer had disclosed a mistake, he omitted to mention that a mistake had been discovered and corrected.

Reliance on behalf of the appellant was placed on the fact that the corrections in the total in Form 20 indicates that it was not until the totalling had been done that the mistake was discovered and it was urged that the discovery of the mistake could only have been the result of a checking made on the application for a recount. On behalf of respondent No. 1 it was contended that the mistake was found out and corrected by the Returning Officer himself shortly alter the figures relating to polling station Bahadur Pur H. S. were Doled on Form 20, but the persons responsible for the totalling some how overlooked the corrections and prepared the total on the basis of the figures as they stood before the corrections. We must say that it is a little strange that even though corrections had already been made in the number of votes polled by the appellant and respondent No. 1 at polling station Bahadur Pur H. S. they wore missed in preparing the total with the result that the total had itself to be corrected. The Returning Officer might have been able to shed some light on this matter; but unfortunately he was not examined as a witness by either of the contesting parties. However, we do not think that the corrections made in the total can be regarded as concluding in favour of the appellant the question as to when and how the mistake in question was discovered. As against the corrections in the total we have other significant facts which support the contention of respondent No. 1.

We have already referred to these facts but we may again note them in brief. There are no corrections in the grand total in Form 20; under the rules the counting could not be completed before the postal ballots had been counted and entered in Form 20 and there could be no announcement before the completion of the counting; since an application for recount could be made only after the completion of the counting and the announcement, the discovery and correction of the mistake should have taken place before the application for recount; and the order of the Returning Officer makes no men-lion of any mistake having been discovered as a result of the test checking done by him.

18. We may MOW advert to the oral evidence in regard to this matter. From the side of the appellant there is his own testimony and that of his counting agent, Sri Balbhadra Roy to the effect that the Returning Officer discovered the mistake in question on a test checking done by him on the application of the appellant for a recount and the figures in the result-sheet were then corrected. An examination of the statements of these witnesses would show that in a very important particular they gave an incorrect account of the manner in which the scrutiny and the counting were conducted by the Returning Officer.

Both of them stated that the Returning Officer did not show to the candidates or to their agents the ballot papers which he rejected as invalid. This statement appears to us to be so improbable that it should at once be rejected as untrue. It is not possible to accept that in such a keenly contested election, the candidates and their agents were denied their right of seeing the ballot papers which were rejected as invalid and were persuaded by the Returning Officer to forego if without any protest or objection. It appears that this kind of statement was made by the appellant and Sri Balbhadra Roy only with the object of supporting the allegation in the election petition regarding non-observance of the provisions of Rule 56, and that their statements did not represent the truth. This feature of their testimony is, in our opinion, sufficient to show that no reliance can be placed on it.

Respondent No. 1 examined his election agent, Faujdar Singh (R. W. 2), who stated that the Returning Officer himself used to check the valid votes of each bundle and that on such checking a sorting mistake was discovered by him and the result-sheet was accordingly corrected. The Tribunal found the testimony of Faujdar Singh acceptable and nothing has been shown to us which may justify a different view.

19. After a careful consideration of the evidence and the circumstances of the case we think that the Tribunal was correct in holding that the appellant had not been able to prove that it was as a result of checking done by the Returning Officer on the application for recount made by the appellant that the mistake was detected. At any rate the finding of the Tribunal on this question cannot be said to be incorrect. In these circumstances, the entire basis of the argument that the discovery of a counting or sorting mistake on an application for a recount made by the appellant to the Returning Officer itself constituted prima facie evidence of an incorrect counting and called for a recount by the Tribunal altogether disappears.

But even if it is held that it was on the application for a recount made by the applicant that the mistake was discovered, can it be said that a case for a recount had been made out by the appellant and the Tribunal erred in refusing to have the ballot papers recounted As we have said above, no exception can be taken to the manner in which the scrutiny and the counting of votes were conducted by the Returning Officer, and there was nothing in the circumstances in which the counting was done that might have led to errors in counting or made the safeguards against wrong counting ineffective. The whole process of counting, was being closely watched by the candidates and their agents and carefully supervised by the Returning Officer. In this situation one single mistake detected in the sorting of votes and rectified before the finalisation of Form 20 cannot, in our opinion, be regarded as having robbed the counting of the presumption of correctness and to have by itself rendered an inspection of ballot papers and a recount imperative or expedient.

It was urged by Mr. Jagdish Sarup that respondent No. 1 had been declared elected by a narrow majority of eight votes and it was, therefore, necessary in the interests of justice that the Tribunal should have satisfied itself that respondent No. 1 bad in fact received a majority of valid votes, and he referred in tin's connection to the case of P. Kunju Hainan v. V.R. Krishna Iyer, AIR 1961 Ker 1.88. In that case the Election Tribunal had directed a recount and a scrutiny of ballot papers rejected by the Returning Officer and the interlocutory order of the Tribunal in that respect was challenged by means of a writ petition. It will be noticed that the Tribunal had expressed the view that prima facie material existed to show that there were discrepancies and mistakes in the returns of the Presiding Officer as compared with those of the Returning Officer, and after giving various details available from the records had come to the conclusion that the mistakes and errors could well be the features of a miscount. The writ petition was accordingly rejected with the observation that the order of recount passed by the Tribunal could not be said to be without jurisdiction.

The closeness of the voting in that case was, however, not held to be in itself sufficient to justify a recount and it was clearly indicated that there must be prima facie evidence of good grounds for believing that there may have been a miscount, on the part of the Returning Officer. There is nothing unusual in a person winning an election even in a large constituency by a very narrow majority of votes and there can obviously be nothing in that situation to excite any suspicion against the correctness of the counting. Even if the candidate, who loses by a narrow margin, suspects errors in counting or desires to make sure that there has been no miscount an election tribunal would not be justified in permitting an inspection of ballot papers or directing a recount just to allay the suspicion of the defeated candidate or to assure him that the counting has been correct. In the instant case the allegations of the appellant regarding improper reception and rejection of votes remained altogether unsubstantiated and there was nothing to satisfy the Tribunal prima facie that a recount was necessary. As such the Tribunal was justified in refusing to have a recount done. At any rate directing a recount, which in this case could not have been for readjusting votes as a result of improper reception or rejection of votes but only for ensuring the correctness of the counting or the sorting, was in the discretion of the Tribunal.

After considering the facts and circumstances of the case and applying the correct principle in regard to the question as to when an election Tribunal should direct a recount, the Tribunal came to the conclusion that neither the appellant was entitled to a recount nor was a recount expedient in the interests of justice. The Tribunal felt that allowing a recount in the circumstances of the present case would only amount to allowing the appellant to make 'a roving enquiry to fish out materials to establish his case'. We do not find any grounds for holding that the finding of the Tribunal was erroneous or that the discretion vested in it was not properly exercised.

20. The only ground on which, this appeal was pressed before us fails and the decision of the Tribunal must, therefore, be upheld. In the result the appeal is dismissed. The appellant will pay Rs. 300 as costs to respondent No. 1.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //