1. This is an appeal under Section 116A of the Representation of the People Act from the judgment of Sri H.K. Sinha. District Judge of Agra appointed as' Tribunal under that Act to try an election petition filed by Hukam Singh, appellant questioning the election of Banwari Lal Bipra, respondent No. 1, who was elected to the Uttar Pradesh Assembly from 364 Fatehabad Constituency in Agra district in the general elections held in February 1962. The appellant was one of the contesting candidates and so were the other respondents impleaded in this appeal. The poll was taken on the 19th February 1932. As a result of the counting of votes Banwari Lal Bipra respondent No. 1 obtained 10,986 votes and Hukam Singh appellant obtained 10,939 votes. Thus there was a difference of 47 votes only between the appellant and respondent No. 1, the other contesting candidates obtaining far lesser number of votes. Accordingly Banwari Lal Bipra respondent No. 1, was declared elected. Appellant Hukam Singh then filed an election petition calling in question the election of Banwari Lal Bipra, respondent No. 1, on various grounds based on Sections 100 and 123 of the Representation of the People Act and also prayed that after declaring the election of Banwari Lal Bipra to be void he may be declared to have been duly elected.
2. We are not concerned in this appeal with the case of the parties challenging the election on charges of corrupt practice under Section 123 of the Act and therefore it would not be necessary to mention the pleadings of the parties in respect of those charges. What we are concerned with are the grounds under Sections 100(d)(III) and (IV) of the Act questioning the election and the grounds under Section 101 of the Act on the basis of which the appellant prayed to be declared to have been elected. The averments in paragraph 6 of the petition constituted the pleas questioning the election grounded on Section 100 of the Act- The grounds which were detailed and amplified in sub-paragraph A related to impersonation. It was alleged that the votes were received of electors who were dead or who did not actually come to vote and the votes were cast in their names by persons impersonating them. As the Tribunal found that the petitioner was not able to prove impersonation and that finding has not been challenged in this appeal before us we are not called upon to consider that finding and the evidence given by the parties on that question. The main points which fall for consideration in this appeal concern the grounds made out on the averments made in sub-para B of para 6 of the petition. It would be convenient at this stage to reproduce the contents or this sub-paragraph which are as follows :--
'(i) Counting of votes was not done according to law.
(ii) Counting of votes was done in the court-room of the S. D. M. Fatehabad who was also the Returning Officer of the said constituency. The room was very small in size and in a part of that room were huddled together twelve tables with three chairs each for seating the person who assisted the Returning Officer in the counting. Around these tables and chairs were placed benches for seating the agents of nine contesting candidates. It was all confusion and there was no proper opportunity for the candidates and their agents to watch the counting, as a result of which there was wrong counting ol votes and the petitioner who had secured the largest number of valid votes was not declared to be elected and respondent No. 1 was wrongly and illegally declared to be elected.
(iii) Counting of votes which began on 26th February, 1962, proceeded continuously till about 1 A. M. on the twenty-seventh February and was begun again from about 11 A. M. on 27th February, 1962, and continued till late in the evening of the same day as a result of which votes could not be correctly counted and the petitioner who had polled the largest number of votes was not declared to be elected and respondent No. 1 was wrongly and illegally declared to be elected.
(iv) Only two counting agents were permitted to be present on behalf of the petitioner at the time of counting of votes while counting of votes was carried on separately on twelve different tables, though in the same room because of which it was physically impossible for the petitioner's counting agents to watch the counting at the different counting tables. Consequently, counting of votes was not properly done and the result of counting announced by the Returning Officer was wrong. At least one counting, agent must have been permitted at each counting table. As such, there was, in fact, denial to the petitioner of his right to watch the counting of votes. If sufficient number of counting agents were allowed to be present on behalf of the petitioner at the time o counting of votes, the result of counting would have shown that the petitioner and not the respondent No. 1 secured the largest number of votes and the petitioner and not the respondent No. 1 would have been declared to have been elected.
(v) Counting of votes was wrongly and illegally done as several valid votes of the petitioner were counted as valid votes of respondent No. 1 and other respondents. Consequently, the petitioner who had, in fact, secured the largest number of votes could not be declared to be elected and the respondent No. 1 was wrongly and illegally declared to be elected.
(vi) Counting of votes was incorrectly done inasmuch as several valid votes cast in favour of the? respondents other than respondent No. 1 were counted as valid votes of respondent No. 1 who was thus illegally declared to be elected. In fact, the respondent No. 1 had got lesser votes than the petitioner. Had there not been such incorrect counting the petitioner and not respondent No. 1 would have been declared to have been duly elected.
(vii) Several invalid votes of respondent No. 1 as well as other contesting candidates including the petitioner were counted as valid votes of respondent No. 1 whose number of votes thus got inflated and who was thereby illegally declared to he elected. If these invalid votes had been rejected, the petitioner and not the respondent No. 1 would have been declared elected.
(viii) Several of the valid votes of the petitioner were illegally rejected and had they not been so rejected, the petitioner and not the respondent no. 1 would have been declared elected.
(ix) The petitioner brought to the notice of the Returning Officer the aforesaid illegalities and irregularities orally as well as by means of a written! application, but the Returning Officer turned a deaf-ear to the petitioner's complaint and did not even entertain the petitioner's application and for supposed reasons summarily rejected the prayer of the petitioner for recount of votes. The petitioner then again renewed his prayer by means of an application written in haste for a recount of votes but this application of the petitioner was also rejected by the Returning Officer arbitrarily and illegally in contravention of Rule 63 of the Conduct of Elections Rules, 1981. The reasons assigned by the Returning Officer to reject the application of the petitioner are unjust and unsubstantial and he has manifestly failed to appreciate the difference between recounting and accounting. Had the Returning Officer accepted the prayer of the petitioner for a recount of votes, the result would have showed that the petitioner and not the respondent no. 1 had polled the largest Dumber of valid votes and the petitioner and not respondent no. 1 would have been declared elected.
(x) The Returning Officer in contravention ofthe Provisions of Rule 53 (3) of the Conduct of Election Rules, 1961 did not allow the counting agentsof the petitioner to watch the counting at any particular counting table or group of counting tables and instead directed them to sit in a corner on a benchand watch the counting from there. Thus the counting agents of the petitioner were not at all afforded any opportunity to watch the counting. Consequently, the counting of votes was wrong and respondent no. 1 was wrongly declared elected.
(xi) The Returning Officer in accordance with the provisions of Rule 53 (2) of the Conduct of Election Rules, 1961 was bound to permit the presence of the counting agent at the counting table and to allow the counting agent to inspect the paper seal or such other seal as might have been affixed on the ballot boxes and to satisfy himself that it was intact. By not allowing the presence of the counting agentof the petitioner at the counting table the Returning Officer denied him the opportunity to do so. As such, it cannot be said that the ballot boxes wereintact and had not been tampered with. The ballot papers taken out from such ballot boxes and counting of votes on that basis led to wrong announcementof result and the respondent no. 1 was wrongly declared elected.
(xii) The Returning Officer failed to allow thecounting agent of the petitioner a reasonable opportunity to inspect the ballot papers before rejectingthem, as provided in Rule 58(3) of the Conduct of Election Rules, 1961, and consequently several of thevalid ballot papers containing valid votes of the petitioner were rejected illegally. Accordingly, thecounting of votes was wrong and the respondent no. 1 was wrongly declared elected. Had the counting agent of the petitioner been afforded such opportunity, several of the valid votes of the petitionerwould not have been rejected and the petitioner and not the respondent no. 1 would have been declaredelected.
(xiii) The Returning Officer failed to record onevery ballot paper of the petitioner which he rejected the grounds of rejection in the requisite form and assuch the rejection of those ballot papers was illegal and those votes should have been counted as the valid votes of the petitioner. Had those votes beencounted as the valid votes of the petitioner, the petitioner and not the respondent no. 1 would have been declared elected.
(xiv) Shri J.P. Garg, Tahsildar, Fatehabad, was hostile to the petitioner because the petitioner had led agitation against him and had also made complaints against him. He was, however, permitted to be present at the time of counting of votes and to take part in the supervision of the counting of votes and as a result of which also the counting of votes was not fairly done and the petitioner was wronglynot declared elected.'
3. It is not necessary to mention the allegations in sub-paragraph C as it appears from the record that the grounds in that sub-paragraph were withdrawn by the petitioner. In his written statement Banwari Lal Bipra respondent No. 1 traversed all the allegations made by the petitioner including the allegations made in sub paragraph B of the petition. It was pleaded that the allegations in those paragraphs were vague and lacked specification and deserved to be struck off. It was denied that there was wrong counting or that the petitioner secured the highest number of votes. It was denied that the counting was not properly done or that there was any necessity to allow more than two agents for each candidate. It was denied that any votes cast for the petitioner were counted as votes for other contesting candidates. It was denied that any votes cast for other contesting candidates were counted in favour of respondent no. 1. It was denied that any invalid votes either of the respondent no. 1 or any other contesting candidates were counted as valid votes in favour of the respondent no. 1. It was also denied that any illegality or irregularity was committed by the Returning Officer.
It was further pleaded that there was no contravention of Rule 53 (3) of the Conduct of Election Rules and there was no prohibition or limitation upon the movement of the counting agents of the various candidates and they were free to watch the counting that took place. It was asserted that full opportunity was given to the candidates and their counting agents to see the ballot papers which were rejected and the counting was correct and no valid votes of the petitioner were rejected. It was further denied that the Returning Officer failed to record on every ballot paper of the petitioner which he rejected, the grounds of rejection. The allegation that Sri J.P. Garg, Tahsildar was hostile to the petitioner was denied.
4. The Tribunal on the pleadings of the parties in respect of the averments in sub-paragraph B of the petition framed issues numbers 2, 3, 4 and 5 which are as follows:--
2. Were the valid votes of the petitioner and the respondent No. 1 rejected by the Returning Officer? If so, their number and its effect?
3. Were invalid votes counted as valid votes for the petitioner or respondent No. 1? If so, their number and its effect?
4. Were valid votes cast for the petitioner and respondent No. 1 wrongly counted as votes respectively for first respondent and the petitioner, or other respondents or vice versa? If so, their number and its effect?
5. Were votes cast in favour of the petitioner not counted at all? If so, their number?
5. Before we proceed to examine the findings of the Tribunal on the above said issues it is necessary to mention certain proceedings which took place culminating in an agreed statement by the counsel for the parties before the Tribunal. At the outset it may be observed though the petitioner had prayed for a relief under Section 101 of the Act, namely, a declaration that he was duly elected candidate and thus claimed the seat, no recrimination on behalf of the respondent was filed as required by Section 97 of the Act. On 5th July 1982 separate applications were filed by the petitioner and the respondent No. 1 for inspection of the election record. Both these applications were allowed by the Tribunal on the same day. Each party inspected the election records including the ballot papers. It would be noticed that the respondent No. 1 had not filed his written statement by that date i.e. 5-7-1962 and the order sheet dated 20-7-1962 shows that respondent No. 1 applied for two weeks' time to file his written statement as he had not been able to do the inspection of the records and the Election Officer had fixed 23rd July 1962 for it. The respondent was allowed time till 25th July 1962 for filing of the written statement. The written statement on behalf of respondent No. 1 was filed on 25-7-1962.
On 13-8-1962 when the case was taken up it appears that the counsel for the petitioner made an application that he was not in a position to disclose the facts which led to the errors in rejecting the votes cast in favour of the petitioner and acceptance of the votes in favour of respondent No. 1 as lie had not been able to complete the inspection of the ballot papers and it was impossible for him to throw any light on the allegations in paragraph 6-B of the petition which were given in a generalised form. The Tribunal allowed ten days' time on payment of Rs. 50/- as costs. On 21-8-1962 on behalf of the petitioner an application was filed giving particulars of ballot papers which were rejected arid accepted and the Tribunal ordered that the particulars supplied shall remain on the file and on that date the Issues were framed. On 24-8-1962 the petitioner and respondent No. 1 filed lists of their witnesses and the Tribunal fixed the date for evidence,
It appears that the petitioner examined a numberof witnesses on various dates and on 19-9-1962 an application was filed on behalf of the petitioner to summon the Election Inspector, Agra to produce the election papers and on 21-9-1962 Sri S. N. Agha was examined who tendered the ballot papers required in his evidence before the court and on that date the petitioner after examining himself closed his evidence. On 28-9-1962 an application on behalf of respondent No. 1 was made to summon some records from the Election Office which was allowed. An Application No. 79-C was also filed by the respondent No. 1 furnishing a list of votes which were wrongly counted in favour of the petitioner. The order sheet of that date shows that the petitioner's counsel did not object to the filing of those details but he reserved his right to take the legal plea that such evidence was barred under Section 97 of the Act. On 27-9-1962 on the basis of a letter of the District Election Officer requesting for time to file ballot papers summoned by respondent No. 1 the Tribunal ordered that the ballot papers be filed on the next date fixed, that is, 12-10.1962. On 12-10-1962 Sri S.N. Agha, Election Inspector filed certain papers and the counsel for the parties stated that the papers summoned from the Election Office and produced as evidence all be admitted and their formal proof be dispensed with.
On 16-11-1962 the respondent closed his evidence and the Tribunal fixed 10-12-62 onwards for arguments. On 10-12-1982 the arguments did not take place and the case continued to be adjourned for some reason or the other till 12-2-1963. The order sheet of that date shows that the scrutiny of ballot papers continued. The scrutiny of the ballot papers continued on 13-2-1963. On 14-2-1963 the parties' counsel, it appears, continued scrutinising the voters' list of all the polling stations and on 15-2-1963 scrutiny of ballot papers continued throughout the day and could not be completed. On 16-2-1963 the hearing was adjourned to 20-2-1963. The order sheet of 20-2-1963 discloses that the counsel for the parties after scrutiny of ballot papers summoned from the Election Office made the following agreed statements:--
'(1) The following valid votes of the petitioner were wrongly rejected and should, therefore, be added to his total.
08786, 21675, 21682, 21698, 21723, 21751, 21759,21793, 21922, 21925, 21938, 21954 22019, 22070. 22075, 22095, 22112, 22130, 22196, 22220, 2698, 27012, 36346, 37896, 45718, 52326, 55263, 53306, 56348, 56357, 77583, 79230.
(2) Following valid votes of respondent No. 1were wrongly rejected and should therefore, be addedto his total it law permits:--
971, 2626, 4852, 4853, 5078, 21640, 21643, 21866, 22015, 22056, 27495, 28174, 33833, 34803, 34847, 38055, 50124, 50123, 56598, 57531, 62953, 66161, 70593, 71406, 74600, 76111, 77188, 79092, 79175,79205, 79234, 21668.
(The last ballot paper viz. 21668 is not given in the list given by the respondent No. 1).
(3) Following ballot papers are invalid but have been counted for the petitioner and should be deducted from his total if law permits.
963, 2906, 6305, 7069, 9725, 9757, 14163, 14956,14953, 20027, 20195, 20226, 20325, 21231, 21651,21750, 22112, 25670. 25730. 25759, 25773,27076, 33882, 43301, 50186, 50805, 52422, 52638,54006, 54051, 54060, 54088, 55256, 56826, 71456,72414, 74376, 77328, 79657, 60750.
(4) Following ballot papers are invalid but have been counted for respondent No. 1 and should be deducted from his total.
990, 1341, 11891, 12157, 18835, 19516, 19930, 20022, 23854, 25526, 25537, 32191, 33126, 33798, 37971, 43488, 43810, 44814, 44025, 50442, 50676, 52100, 52155. 55128, 61240, 67410, 70330, 76467, 76477, 77109, 77110, 79005, 79751. 81363, 34729, 34737, 50110, 78609, 39327, 60849, 77575, 76646.
(5) Following are the valid votes of the petitioner and be added to the total of the petitioner if proved to be counted for any other candidate.
14162, 27252, 45486, 47053, 55211, 59550, 79259.
(6) Following are the valid votes of the respondent No. 1 and should be added to his total if proved to have been counted for any one else.
14424, 23971, 40960, 45439, 61329, 79943
(7) The following ballot papers are valid votes of other candidates should be deducted from his total if proved to have been counted for the petitioner.
11932, 21123, 22131, 23909; 50308, 52587, 54932.
(8) The following ballot papers are valid votes of other candidates but wrongly counted for respondent No. 1 should be deducted from his total.
17775, 18089, 33751, 33853, 37204, 37230, 37233,37234, 42515, 43392, 43708, 44491, 57570, 60114,61476, 77284, 61178, 61238.
(9) In polling station No. 68 there exist 27 valid votes of the petitioner but only 26 have been counted for by the Returning Officer. One ballot paper should, therefore, be added to the petitioner's total.
(10) At polling station No. 46, there exist 114 valid votes of returning officer with a note that 3 ballot papers have not been accounted. Thus, one ballot should be added to the petitioner's total.
(11) The bundles of void votes of petitioner relating to polling station No. 5 at present contains 223 votes because one of the votes was summoned by 1 respondent per his Annexure A. Thus the bundle of valid votes of the petitioner of this polling station contains 224 votes but only 223 votes have been counted for the petitioner for this polling station. One vote is, therefore, to be added to petitioner's total.
(12) Parties' counsel further state that ballot paper No. 10302 of Agra relating to some other constituency with different names of contestants and bears seal of the symbol elephant which is also the symbol of first respondent. Validity or invalidity of this ballot paper be decided.
(13) Ballot papers of Aanexure B of first respondent were recovered from the bags containing the votes of Sri Nand Kishore and Sri I.N. Bansal, respondents Nos. 5 and 6. It is to be decided if these votes are or not to be added to the total of first respondent. All these votes were validly marked in favour of the first respondent.
(14) Except the votes mentioned in the foregoing papers, there are no other votes in dispute betweenthe contesting parties except 50 votes of polling station No. 64, detailed in last item of Annexure C of the petition.
6. The order sheet also discloses that after the scrutiny of the ballot papers argument commenced but could not be completed. The arguments were completed the next day, that is. 21-2-1963 and the Tribunal fixed 1-3-1963 for judgment. As the court was closed on 1-3-1963 the judgment was pronounced on 2-3-1963 and the petition was dismissed.
7. A perusal of the judgment of the Tribunal shows that it resolved issues numbers 2, 3 and 4 on the basis of the agreed statements of the parties' counsel referred to above adding and deducting the votes in accordance with those statements subject to the legal objections of the petitioner based on the omission of the respondent to file a recrimination under Section 97 of the Act. While considering the issue number 3 the Tribunal considered the question in regard to one of the ballot papers No. 10302 and held that the Returning Officer committed no error in treating it as a valid vote for the first respondent. Sri S.C. Khare who appeared for the appellant has not challenged this finding of the Tribunal.
The Tribunal on the question whether the first respondent in the absence of a recrimination petition could be permitted to claim that some of the petitioner's votes were void or some of his own votes had been improperly rejected, mainly relying upon the view of our Court in Laxmi Shankar v. Kunwar Sripal Singh, 22 Ele L R 47 (All) rejected the objection of the petitioner and held that the first respondent without filing any recrimination under Section 97 of the Act could claim that the void votes of the petitioner be not counted and the votes cast in his favour which were improperly rejected be counted. Having thus rejected the legal objection of the petitioner the Tribunal then on the basis of the agreed statement of the counsel of the parties simply embarked upon an arithmetical calculation by adding and subtracting and found that the first respondent still retained the majority.
8. Another serious question which was considered by the Tribunal related to the question of recount claimed by the petitioner. In Clause IX of sub-para B of para 6 of his petition the petitioner had pleaded that his prayer for recount was arbitrarily and illegally rejected by the Returning Officer in contravention of Rule 63 of the Conduct of Election Rules, 1961. At the trial the petitioner had pleaded that the bundle of votes of the first respondent of polling station No. 84 is fact contained only 101 votes but in the ballot paper account it was wrongly shown to have contained 151 votes and on this basis it was urged that this error creeping in the records gave 50 votes more to the respondent in the count which in fact were not cast in his favour and therefore a total of 50 votes was liable to be deducted from the total votes counted for him.
The Tribunal held that in view of the statement of the Returning Officer that there could not be the possibility of any mistake in the preparation of the ballot piper account, the petitioner failed to make out a case that 50 or 51 votes allegedly counted in favour of the respondent No. 1 be deducted. From the judgment of the Tribunal it will appear that the petitioner did agitate before it for a simple recount of the votes and urged that by not allowing a recount the Returning Officer contravened the Rules and thereby the election of the first respondent became void.
9. Sri S C. Khare for the appellant submitted that the Tribunal ought to have in the first instance allowed a recount as the difference in the votes of the petitioner and the first respondent was a narrow one and a simple count without examining the validity of any ballot paper would have demonstrated that the first respondent was given wrongly the benefit of fifty or fifty-one more votes because of an error in the ballot paper account of the first respondent in respect of the polling station No. 84. The submission then proceeded that if on a recount the petitioner was found to have received the majority the election as far as the first respondent was concerned would obviously be materially affected on account of this error and would be declared void and the petitioner would claim the seat and obtain a declaration that he was the duly elected candidate. It was further urged that if the recount as mentioned above did not result in favour of the petitioner then the question of the validity of the ballot papers for the purpose of finding whether the election of the first respondent was materially affected on the other grounds pleaded in the petition was to be gone into; by the Tribunal.
The learned counsel contended that in the agreed statement made by the counsel for the parties in respect of the preparation of the lists of the ballet papers as a result of inspection the petitioner's counsel had reserved his right to raise an objection on the basis of Section 97 of the Act and the Tribunal legally erred in holding that without filing any recrimination petition as required by Section 97 of the Act, the first respondent was entitled to have the invalid votes which were counted as valid for the petitioner excluded from the count and the valid votes cast in favour of the first respondent which were wrongly rejected as being invalid to be counted for the first respondent. Sri Khare relied upon the latest decision of the Supreme Court in Jabar Singh v. Gendalal Civil Appeal No. 1042 of 1963 D/- 20-12-1963 : (AIR 1964 S C 1200) in support of the proposition that if the returned candidate dues not recriminate as required by Section 97 of the Act then he cannot make any attack against the alternative claim made by the petitioner, that is, the claim for a declaration that the petitioner was the duly elected candidate. The Supreme Court has observed in its judgment in the case cited that the view taken by the Allahabad High Court in 22 Ele L R 47 (All) cannot be said to interpret correctly the scope of the enquiry either under Section 100 or Section 101.
10. Sri S.N. Kacker who appeared for the first: respondent conceded that in view of this decision of the Supreme Court he cannot justify the decision of the Tribunal rejecting the objection of the petitioner that without filing a recrimination petition as required by Section 97 of the Act the first respondent could ask the Tribunal to pronounce upon the validity of the votes cast and counted in favour of the petitioner and the validity of the rejection of the votes cast in favour of the first respondent which were in fact valid votes. But what has been urged is that the counsel for the first respondent when he made the agreed statement before the Tribunal could never have anticipated that the Supreme Court would on some future date upset the decision of the Allahabad High Court in the case of 22 Ele L R 47 (All) (Supra) and as the law stood then the first respondent in defending the petition based on Section 100 of the Act could show in fact that if the ballot papers were properly scrutinised he would still retain the majority and therefore it was submitted that the agreement being made under a mistake of law, the first respondent should be relieved of it and the scrutiny of the ballot papers on the basis of the grounds taken in the petition be done by the Tribunal and it be asked to record its findings.
Mr. Khare for the appellant on the other hand contended that as far as the first respondent was concerned he was bound by what was stated by his counsel and he ought not be allowed to reopen the question. Sri Khare drew our attention to the observations of the Tribunal in its judgment to the effect:
'It is of immense importance to note at this stage that the contesting parties made detailed inspection of the ballot papers brought on record all the disputed ballot papers, and, after scrutinising it with the Tribunal, gave the agreed statement as in paper Nos. 3/7A and 3/8A, dated 20th February, 1963. The agreed statement reveals obvious mistakes committed by the election machinery while counting the ballot papers. It is not possible to ignore them and other mistakes, and perpetrate an injustice on consideration of technical legalism.'
11. Sri Khare submitted that the scrutiny was done by the Tribunal with the assistance of the counsel and the result was reduced in the form of an agreed statement. This seems to be supported by the proceedings recorded in the order sheet of 12th, 13th, 14th and 15th February 1963. It was further submitted that the Tribunal had applied its mind and as a result of the scrutiny before it it held that the agreed statement revealed obvious mistakes committed by the election machinery while counting the ballot papers and it was not possible to ignore those mistakes. We have no doubt in our mind that the scrutiny of the ballot papers was done by the learned counsel for the parties before the learned Judge and he must have also examined each ballot paper with their assistance and the agreed statement was recorded after the application of its mind by the Tribunal. But it cannot be dented that the concession involved in those statements, as far as the counsel for the first respondent was concerned, must have been made for the reason that under the law as interpreted by this Court at that time the votes of the petitioner which were wrongly accepted and the votes of the returned candidate which were wrongly rejected were liable to be taken into account in counting the votes and the first respondent would still retain the majority of votes. We have given serious consideration to the question whether the first respondent dm be permitted to resile from the agreed statement to which his counsel was a party and we have come to the conclusion that in fairness to him and in the interest of justice we should relieve him of the agreed statements and should not bind him down as the statement was made by his counsel under a mistaken view of law which has become apparent now after the declaration of law by the Supreme Court in the case of Civil Appeal No. 1042 of 1983, D/. 20-12-1983 : (AIR 1964 S C 1200) (supra).
The first respondent being thus not bound by the agreed statements recorded before the Tribunal he will be entitled to ask the Court to examine the ballot papers questioned by either party and record its own findings in order to find out whether any invalid vote was counted in favour of the first respondent and any valid vote of the petitioner has been excluded from the count thus materially affecting the result. Had the learned Judge of the Tribunal recorded his reasons in respect of each of the ballot paper instead of having the result of scrutiny incorporated by way of agreed statement, we would have had the proper material on record to come to our own conclusions in the appeal. We must make it clear that no blame attaches to the learned Judge of the Tribunal in not having done so for if the law as laid down by the High Court in the case of 22 Ele L R 47 (All) (Supra) continued to hold the field no exception could be taken to the procedure adopted by the learned Judge of the Tribunal.
The position thus reduces itself to this that either we in appeal scrutinise the questioned ballot papers or remand the case to the Tribunal for this purpose. But Sri S.N. Kacker on behalf of the first respondent has raised a question which is somewhat fundamental. We have to consider the tenability of the submissions of the learned counsel in this regard before we decide upon the proper course of action to be adopted.
12. Sri Kacker submitted that the order of the Tribunal dated 5.7-1982 allowing inspection to the petitioner was not an order permitted by law and it being an improper order all particulars supplied to make up the deficiency in the petition ought to be ignored and all the evidence which has come on record in consequence of such inspection made by the petitioner be rejected as inadmissible. The submission proceeded that the petitioner in fact in the guise of inspecting the election record fished material for the purpose of curing the defects in the petition and bringing evidence on record. It was further submitted in amplification that an inspection of the election records cannot be granted as a matter of course. There is restriction on the power of the Tribunal that unless there are proper and precise allegations and the Tribunal is prima facie satisfied that it was necessary to allow inspection on the basis of adequate statements having been made in the pleading regarding particulars of the ballot papers wrongly accepted or wrongly rejected it had no power to allow inspection to the petitioner merely for fishing out evidence to support the vague pleadings in the petition. The learned counsel characterised the pleadings as they stood in the election petition as vague pleas not containing any precise and clear averments but containing only bare assertion that the counting was not properly done, some ballot papers were improperly rejected. Learned counsel relied on a recent decision of the Supreme Court in the case of Ram Sewak Yadava v. Husain Kamil Kidwai and others published and reported in the Government Gazette of Uttar Pradesh dated 21-2-1964, Part VII-Kha at page 102 : (AIR 1964 S C 1249). At page 109 of the Gazette their Lordships of the Supreme Court observed as follows :
'We do not think that Bhim Sen v. Gopali, (22 Ele L R 288 S C) lays down any general principle that a party is entitled without making allegations of material facts in support of its plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the facts are scrutinised again by the Tribunal it may appear that there has been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules or order must be deemed to be within his knowledge- The nature of the allegations must of course depend upon facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence or an inspection of the ballot papers ....'
13. It was submitted that in the present case none of the clauses of sub-paragraph B of Para. 0 of the petition disclosed with precision any statement of the material facts as contemplated by their Lordships of the Supreme Court in the case cited which facts having regard to the elaborate rules for scrutiny and counting of the ballot papers must be deemed to be within the knowledge of the petitioner.
Mr. S.C. Khare for the petitioner appellants urged that all the material facts which could come to the knowledge of the petitioner when the scrutiny and the counting took place before the Returning Officer after the poll, have been succinctly stated with as much particularisation as could be possible in the circumstances of the case and it is wrong to say that material allegations were not averred. Sri Khare emphasised that the Supreme Court has not laid down any strict rule as to when the Tribunal ought to allow inspection for their Lordships have observed that the nature of the allegations must of course depend upon the facts of each case. We have in the earlier part of our judgment quoted in detail ail the clauses of sub-para. B of Para. 6 of the petition. The case of the petitioner as analysed would appear to be that the scrutiny and the counting of ballot papers was done in a manner which prevented his agents from watching the proceedings. The pleadings contained material allegations to show that considering the space, the number and arrangement of tables at which the counting took place and the dimness of light in the room, there was probability of error in counting particularly when it took place under pressure with a small number of men at one stretch on 26th February continuing till about 1 A.M. in the night and again on the next day from 11 A.M. till late in the evening.
The petitioner made the definite allegation that only two counting agents to watch the counting at different counting tables were permitted and further alleged that thus there was denial to the petitioner of his rights to watch the counting of votes. A further allegation was also made that the agents of the petitioner were not allowed to move from table to table by the Returning Officer who directed them to sit in a corner on a bench and watch the counting from there. It was further averred that the Returning Officer failed to allow the counting agent and the petitioner a reasonable opportunity to inspect the ballot papers before rejecting them. It has been mentioned in the pleadings that there was non-compliance by the Returning Officer of Rule 55 (2) of the Conduct of the Election Rules and as well of Rules 53 (3) and 56 (3) of the Conduct of the Election Rules. There was also an averment that the petitioner's prayer for a recount was arbitrarily and illegally rejected by the Returning Officer in contravention of Rule 63 of the Conduct of Election Rules, 1961. In our opinion the above-mentioned averments cannot be said to be vague or lacking in material particulars considering the circumstances of the case. Whether the petitioner could prove them at the trial by evidence is entirely another matter.
The vagueness or the lack of particularisation of the averments which have been summarised above was not to be judged by reading the relevant pleadings in the petition with the counter pleadings in the written statement. However, the averments in the clauses of sub-para B of Para. 6 of the petition which were made in support of the ground under Section 100(1)(d)(iii) of the Act, namely, the improper reception, refusal or rejection of any vote or the reception of any vote which was void leave out much to be desired. Sri Khare, however, contended that if the petitioners' allegations that his agents at the scrutiny and counting of votes were asked to confine themselves in a corner and were not allowed to move from table to table were true, that would be a relevant factor to be taken into consideration in judging whether the petitioner was in a position to aver some more material fact in respect of those allegations as he would not be deemed in the circumstances to have knowledge of the details.
But Sri Khare raised a more formidable argument before us. He submitted that the power to allow inspection by the Tribunal being discretionary and the discretion having been exercised it cannot be attacked in appeal, particularly when the first respondent had not objected to it earlier at the trial and allowed the petition to proceed and come to a final conclusion. He further submitted that even if the averments of the petition lacked particularisation the Tribunal having allowed evidence to be led on the issues framed by it without objection by the first respondent such evidence cannot now be excluded on the ground that the Tribunal did not exercise its discretion properly in granting inspection and the evidence which has come as a result of that inspection was inadmissible. It was further submitted that assuming that the order of the Tribunal granting inspection to the petitioner was erroneous, the particulars which were supplied by the petitioner after inspection and the evidence which has come on the record properly by producing Election Inspector cannot now legally be excluded for in the submission of the learned counsel the manner of the discovery of evidence howsoever wrongful it may be, cannot affect the admissibility of that evidence if otherwise relevant.
Sri Khare also submitted that permitting an inspection of the election records on insufficient material does not make the inspection held in pursuance of such order illegal, inasmuch as the order of the Tribunal could not be said to be without jurisdiction but at best it would be an irregular order or not a proper order. It was contended that in the case of Ram Sewak Yadava v. Kidwai (A I R 1964 S C 1249) (Supra) the Supreme Court laid down a rule for guidance for the exercise of discretion by a Tribunal in permitting inspection of the election records and did not lay down any rule of law that the Tribunal had no jurisdiction to permit inspection of the election records if certain conditions were not satisfied. We think that the submission made by Sri Khare has force. The evidence in respect of the ballot papers which has come on record on the particulars supplied by the petitioner as a result of the inspection in the circumstances of the instant case cannot be said to have come on record illegally.
We think that the pleadings sufficiently disclosed a prima facie case. There is nothing in Rule 93 requiring the Tribunal to write a reasoned order when permitting inspection. The first respondent if he was aggrieved by the order D/- 5-7-1962 permitting inspection of the election records to the petitioner ought to have challenged the same at the earliest stage. In fact the first respondent far from objecting, to the inspection by the petitioner himself applied the same day and obtained permission to inspect the election records. Further we find that at no stage was any objection raised by the first respondent to the supply of particulars by the petitioner after inspecting the election records, and to the admissibility of the questioned ballot papers as evidence in the case. The first respondent himself applied to the Tribunal in the course of the hearing for summoning the Returning Officer to produce certain ballot papers on which he wanted to rely as a result of the inspection made by him. We also find from the order-sheet that the counsel for both the parties made a statement before the Tribunal that the ballot papers be admitted in evidence without proof. We think it is too late in the day for the first respondent now to challenge the validity of the proceedings on the score of the inspection of the ballot papers having been permitted wrongly by the Tribunal and then admitting the ballot papers as evidence in the case.
It is well-settled that if the parties go to trial despite the defects in the pleadings and evidence of the contesting parties is tendered on the issues raised by those pleadings, the petition thereafter cannot be dismissed for that defect because such defects will not relate to jurisdiction but may pertain to procedure only. The appellate court may be justified in setting aside the judgment of the Tribunal if it is satisfied that the defects in the pleading or the procedure adopted by the Tribunal had resulted in material prejudice and in considering whether material prejudice had resulted, any failure on the part of a party to raise and press the objections about those defects before going to trial must be given due weight. The following cases decided by the Supreme Court furnish instances where such rule of law has been laid down--Bhagwandutt Shastri v. Ram Ratan Gupta, 11 Ele L R 448 (455): (A I R 1960 S C 200 at p 204); Balwan Singh v. Lakshmi Narayanan, 22 Ele L R 273 (281): (AIR 1960 S C 770 at p. 774); Abdul Hamid v. Nani Gopal Swami, 22 Ele L R 358 (362) (SC),
14. Shri Kacker for the respondent urged that the prejudice has been caused to the first respondent in allowing the particulars to be supplied and admitting in evidence the ballot papers which came on the record as a consequence of fishing of the evidence by the petitioner. But we have already held above that there was no lack of jurisdiction in the Tribunal to permit inspection. Even assuming that the discretion was not exercised properly under Rule 93 by the Tribunal the particulars supplied as a result of the discovery made by the petitioner after inspection and the production of the evidence on the issues cannot be disregarded as there was no illegality in the procedure adopted. Production of evidence by a party which is adverse to another party can always be said to be prejudicial as it militates against the case of the latter but that kind of prejudice is not envisaged in the rule of law laid down by the Supreme Court. It contemplates a prejudice which results in a deprivation to a party of an opportunity to meet the case at the trial or causes a surprise to him.
In the circumstances of the present case far from the fact that the first respondent was not taken by surprise for he had every opportunity to meet the case of the petitioner it clearly appears that by the date of the striking of issues the first respondent fully knew what case he had to meet and he had made himself ready with evidence to counter the petitioner's case. If the petitioner can be said to have fished evidence by inspection so has the first respondent, for after inspection of the record for which he obtained time from the Tribunal more than once he asked for summoning of certain ballot paper and his counsel became a party to an agreed statement at a subsequent stage after fully scrutinising and examining all the relevant ballot papers. We are unable to accept the submission of Mr. Kacker that the inspection of the ballot papers by the petitioner had caused any material prejudice. In fact the result to which the Tribunal finally arrived was in favour of the first respondent. Indeed it is at the appellate stage when the first respondent found that the ratio of the case of Civil Appeal No. 1042 of 1963 D/-20-12-1963 : (AIR 1984 SC 1200) (supra) decided by the Supreme Court prevents him from attacking the validity of the votes counted in favour of the petitioner and asking the court to count certain votes in his favour which were improperly rejected by the Returning Officer that the objection of the nature indicated above was for the first time raided in appeal. It cannot be said that the agreed statement recorded by the Tribunal was only one-sided. The agreed statement shows that the petitioner's counsel had also made a concession in favour of first respondent, namely, he agreed that as many as 38 votes be added to the total votes of the first respondent subject, of course, to his objection based on Section 97 of the Act. Had the Supreme Court not laid down the law in the case of Civil Appeal No. 1042 of 1963 D/- 20-12-1963 : (AIR 1964 S. C. 1200) and the decision of this Court in 22 Ele L R 47: (All) continued to be good law it is obvious that the first respondent could have taken full advantage of the addition of 38 votes which according to the agreed statement were improperly rejected from counting by the Returning Officer.
Sri Kacker then put his argument in a modified form and submitted that material prejudice to the first respondent had occurred as his counsel under a mistaken impression of law agreed to the addition of as many as 40 votes to the total of the petitioner only because the number of votes to be subtracted from the total of the petitioner according to the agreed statement was larger and thus the agreed statement of his counsel was to the advantage of the first respondent. He further submitted that now that the agreed statement has become frustrated, the evidence which has come on the record on the basis of which the petitioner can claim addition of 40 more votes would materially prejudice the respondent.
We do not find any tenability in this submission for it assumes that even though we have relieved the first respondent of the consequences of the agreed statement to which his counsel was a party, yet have upheld the validity of the claim of the petitioner that he was entitled to add 40 or more votes to his total. Once the agreed statement is held not to be binding the petitioner will have to prove his case for inclusion of his votes and exclusion of the votes of the first respondent in airiving at the total votes scored by each party. Further there is nothing on the record to show that the permission to inspect the election record by each party was obtained as a consequence of the agreed statement. If the agreed statement falls it does not mean that the order permitting inspection also falls with it. The order for inspection dated 5-7-1962 by the Tribunal was quite independent o the agreed statement which came later on the record. The ballot papers produced in evidence by the petitioner which he claims to have been illegally rejected from the count by the Returning Officer cannot now be excluded from evidence. So will ail the other ballot papers which have been produced by either parties remain a part of the evidence on record. The only effect of disregarding the agreed statement would be that each party will have an opportunity to substantiate his claim and the final result would be determined in accordance with law.
15. In the circumstances of the present case we do not think any case has been made out for reflecting the evidence in respect of the ballot papers which has come on record of the case. We are unable to agree with the submission of Sri S. N. Kacker that-all such evidence be ignored.
16. Now we proceed to consider the question, whether the petitioner was entitled to a recount. The ground on which Sri Khare contended that a recount ought to have been allowed may be stated as follows:--
(1) That difference in votes of the petitioner and the first respondent was very small.
(2) There was every possibility of miscount as the evidence on record revealed that in respect of one of the polling stations there was a discrepancy of 50 or 51 votes which was the difference between the actual number of ballot papers found in the bag pertaining to the first respondent and the figure given in the ballot paper account.
(3) That the application of the petitioner for recount was arbitrarily and illegally rejected by the Returning Officer.
17. In support of his first ground Sri Khare relied on certain observations in the cases of Achutha Menon v. Election Tribunal A. I. R. 1961 Kerala 186; R. Kunjuraman v. V.R. Krishna Ayer, A. I. R. 1961 Kerala 188 and Inayatullah v. Diwan Chand, A. I. R. 1959 Madh-Pra. 58. A reference was also made to Schofield Parliamentary Election, 1959 Edition 365) and to the observation of Denman, J, in the case of Stepney Division Tower Hamlets Case, (1886) 4 O'M. & H. 34 (50). The cases relied upon by Sri Khare and the authorities cited by him do not in our opinion, lay down any definite rule as to when a recount ought to be ordered. No doubt Sri Khare's submission that a narrow margin in votes is a good ground for a recount is supported by some of the observations in the citations relied upon but it appears to us that no one circumstance is conclusive. As held in the case of Basaviah v. Bachiah (17 E. L. R. 293-Mys) a candidate who seeks a declaration that the election of the returned candidate was void and that he (the petitioner) was duly elected on the ground that if the votes had been properly counted he would have got majority of votes, is not entitled to have a recount of the votes as a matter of absolute right but a recount can be ordered only if he makes out a prima facie case that if the votes had been properly scrutinised and counted he would have got a majority votes. Therefore, we have to find out whether any prima facie case for a recount has been made out.
18. It appears from the judgment of the Tribunal that the bundle of the valid votes of the first respondent of polling station no. 84 was summoned and was filed by Election Inspector Sri S.N. Agha. That bundle contained 100 ballot papers only. The Tribunal then observed that there was a discrepancy of 51 and not of 50 votes. The case of the petitioner at the trial was that Sri J.P. Garg, the Assistant Returning Officer, was inimical to him and being incharge of the preparation of the lists there may have been manipulation. The Tribunal has observed that there may be some truth in the allegation of the petitioner that he was not on good terms with Sri. J.P. Garg but ignored this circumstance on the finding that Sri Garg was incharge of the preparation of the lists regarding the progress of the counting for the Parliamentary seat and not for the Assembly seat. We endorse this view of the Tribunal but we think that the Tribunal was in error when it ignored this discrepancy merely by relying on the presumption that forms Nos. 13 and 20 for polling station No. 84 were rightly and regularly prepared. Though the Tribunal accepted that it was a rebuttable presumption and so long it was not proved to the contrary the first respondent would be given credit of 151 valid votes at the polling station No. 84, yet it did not allow an opportunity to the petitioner to prove to the contrary. In our opinion Sri Khare is on strong grounds when he contended that the only way in which it could be demonstrated that the entry of 151 valid votes in the ballot paper account of the first respondent of polling station No. 84 was a mistake if the Tribunal summoned all the counted ballot papers and held a recount. The Tribunal itself has observed that all ballot papers of the constituency should have been minutely examined to overrule the possibility that none of these 51 valid votes of the first respondent at polling station No. 84 shown in form No. 16 had got mixed up anywhere else but left the matter at that as it thought that no attempt in this direction was made by the petitioner. The Tribunal then resorted to a negative approach and observed that in those circumstances it would not be improper or impermissible to infer that such an examination would have negatived the petitioner's contention. It appears to us that basically the Tribunal did not attach any much importance to the discrepancy so revealed as it thought that there may have been a clerical mistake or accidental error in the process of storage. The Tribunal seems to have put implicit reliance on the statement of the Returning Officer to the effect that there' could be no possibility of any mistake in the count of ballot papers noted in forms numbers 16 and 20 which rested on a checking and rechecking with the account furnished by the Presiding Officer in Part I of form No. 16. We do not think that anybody howsoever careful he may be can be dogmatic that there cannot be possibility of any mistake in such matters. The Returning Officer in his evidence stated that there could be possibility of mixing up of the ballot papers of one polling station with the ballot papers of other polling station or with the ballot papers of other candidates. The Tribunal therefore thought that 50 or 51 votes of the first respondent of polling station No. 84 must have got mixed up and it was matter of no consequence that only 100 votes were found in the bag of the first respondent of that polling station. Whether the said 50 or 61 ballot papers were mixed up or were not there at all and there was a mistake in the entry in form No. 16 and form No. 20 could only be revealed if all the counted ballot papers of the constituency were cheeked. The correct solution, therefore, was that the petitioner ought to have been allowed an opportunity to have all the counted ballot papers of the constituency rechecked. If on a check so made it appeared that the said 50 or 51 ballot papers of polling station No. 84 were not mixed up with any other ballot papers and were not in existence, the corresponding number of votes would have had to be deducted from the total of first respondent and this alone would give majority to the petitioner for the margin of difference was only 47. We think that in these circumstances the petitioner ought to have been allowed to recheck all the counted ballot papers of the constituency under the supervision ot the Tribunal.
19. Thus more than a prima facie case had been made out by the petitioner for claiming a recount.
20. Sri Kacker for the first respondent then contended that under the scheme of the Representation of the People Act an election of a returned candidate can only be questioned on the statutory grounds for setting aside the election mentioned in that Act and there being no ground for setting aside the election on account of any miscount the rules of the English Statute which contemplate setting aside of an 'undue election' would not be attracted and the appellant cannot claim a declaration that the election of the first respondent was void on the ground that if the votes had been properly counted he would have got a majority of votes. The learned counsel submitted that in none of the cases which have been cited by Sri Khare this question was posed or considered and those cases cannot be relied upon for the proposition that the provisions of the Representation of the People Act contemplate the setting aside of an election on the ground of miscount. Sri Khare in answer submitted that the law on this score was well settled and, a long series of decisions of the Election Tribunals and the High Courts in India even alter passing of the Representation of the People Act have accepted that a miscount is a valid ground for questioning the election of a returned candidate. Sri Khare relied on the rule of stare decisis and submitted that it was too late in the day to raise such a question. Sri Khare further contended that such a ground for setting aside an election of the returned candidate is covered by the provisions of Sub-clause (iii) or (iv) of Clause (d) of Sub-section 1 of Section 100 of the Act and more particularly by Sub-clause (iv). His submission was that a miscount always involves either missing a vote from the count which is a valid vote and which exists or counting any invalid vote or a vote which actually does not exist, the total in either case being affected. He submitted that there being elaborate rules of procedure framed under the Act for scrutiny and counting any error of the above nature could only occur either by non-observance of those rules or by committing a breach of those rules and thus a case of non-compliance with the rules made under the Act would arise. We agree with this submission of Sri Khare. In the case of Durga Shankar v. Raghuraj Singh, 9 Ele L R 494 : (AIR 1954 S C 520) the Supreme Court has held that there is no difference between, 'non-compliance' and 'non-observance' or 'breach'. Apart from the rule of stare decisis on which Sri Khare relied we are of the opinion that under the scheme of the Representation of the People Act the election of a returned candidate can be questioned on the ground of miscount as such a ground would be covered by Section 100(d)(iv) of the Act We are unable to accept the contention of Sri Kacker in this regard.
21. As we have held above that a case for a recount has been made out by the petitioner on the basis of the first and second ground urged by Sri Khare, it is not necessary for us to examine the third ground namely that there was non-compliance with the rules by the Returning Officer in arbitrarily refusing the prayer of the petitioner for a recount.
22. For all the reasons given above we are of theopinion that this appeal must succeed. The order of the Tribunal dismissing the election petition is set aside. The case is remanded to the Tribunal for trial an the light of the observations made above. The Tribunal shall order a recount of all the votes in the constituency which were accepted to be valid and taken into the count by the Returning Officer. In case as a result of recount it is found by the Tribunal that the election in so far as it concerns the respondent No. 1 who is the returned candidate has been materially affected, it would declare his election to be void and further declare the petitioner to have been elected as having received the majority of votes. In case the recount is not decisive of the rights of the parties and the petitioner proceeds to press his case on the grounds covered by the provisions of Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 100 of the Act then the Tribunal will scrutinise and examine the validity of the questioned ballot papers which already form part of the evidence on record, give its findings keeping in mind that no recrimination as required by Section 97 of the Act has been filed by the first respondentand decide the case in accordance with law.
23. In the circumstances of the case we order that the parties shall bear their own costs of thisappeal.