1. This is an application for a writ of certiorari directed against the final order of the Election Tribunal (District Judge of Koraput at Jeypore) made under the Orissa Municipal Act of 1950.
2. Petitioner and opposite parties 1 and 4 were candidates for election to the Jeypore Municipal Council from Ward No. 9. The nominations of all these three persons having been accepted on scrutiny, they participated in the election, polling whereof took place on 30th of May, 1973. Opposite party No. 2, the Election Officer, took up counting of the ballot papers on 2-6-1973 and declared opposite party No. 1 elected on the footing that opposite party No. 1 secured 193 votes, petitioner secured 186 votes and opposite party No. 4 secured 108 votes. 60 ballot papers were rejected as invalid. Petitioner filed an election petition under the provision of Section 19 of the Orissa Municipal Act, 1950, before the Tribunal, opposite party No. 3, challenging the election of opposite party No. 1 on the ground that 24 ballot papers which had been validly cast in favour of the petitioner were improperly rejected by the Election Officer and if the petitioner had been given due credit of those ballot papers he would have been declared as the returned candidate. Petitioner submitted that these 24 ballot papers bore horizontal marks within the space allotted in favour of the petitioner on the ballot papers. These horizontal marks had been placed by the electors using the voting instrument on the wrong side. 12 of the rejected ballot papers similarly bore horizontal marks credit whereof should have been given to opposite party No. 1. Opposite party No. 1 took the stand that the horizontal marks do not manifest the intention of the voters in favour of a candidate against whose allotted space the marks appear. It was further contended that the result of the election was not materially affected by rejection of the ballot papers.
3. The Tribunal framed the following issues:--
'(1) Whether 24 votes were cast in favour of the petitioner and were wrongly rejected, as stated by the petitioner?
(2) Is the petition bad for non-joinder of party?
(3) To what relief, if any, is the petitioner entitled?'
Each of the contesting parties examined himself as a witness in his support. The ballot papers were called for from the Election Officer. During the enquiry, petitioner gave evidence to support his plea and when the recording of evidence was over, an application was filed on behalf of the petitioner for scrutinising the ballot papers with a view to find out whether the counting had been properly done and the rejection of ballot papers was appropriate. Recounting was not made and the Tribunal dismissed the application by holding that the petitioner failed to establish that 24 ballot papers had horizontal marks in the space provided for him, the credit of which he could legitimately claim. This writ application is directed against the said order of rejection of the Election Tribunal.
4. The short question which has been canvassed before us is whether the petitioner was entitled to an order for re-scrutiny of the rejected ballot papers only. Mr. Mohanty for the petitioner contends that on the facts of the case the order for scrutiny of the rejected ballot papers by the Court should have been allowed, while Mr. Rath for the returned candidate takes the stand that petitioner has failed to establish the footing upon which a fresh scrutiny of the ballot papers could be directed.
5. Section 18 of the Orissa Municipal Act provides the grounds upon which an election of a councillor can be questioned. Clause (b) of Section 18 (1) indicates that in a case where the person declared to have been elected is alleged to have succeeded by reason of improper rejection of votes the challenge is maintainable. According to the petitioner, he was entitled to credit of 24 ballot papers out of 60 which have been rejected. Similarly he conceded that the returned candidate was entitled to credit of 12 ballot papers. According to the petitioner, therefore, if the ballot papers had been properly counted, petitioner would have polled 186 + 24 = 210 and opposite party No. 1 would have polled 193+12 = 205. Thus, petitioner would have secured more votes than apposite party No. 1 and would have been declared as the returned candidate.
In the election petition, he made the following allegations:--
'The petitioner submits that out of the votes rejected as invalid there were 24 votes validly cast in favour of the petitioner which should have been reckoned in favour of the petitioner. The petitioner submits that In these 24 ballot papers the voters had clearly expressed and manifested their intention to vote for the petitioner as they had put the mark in the column containing the name and the symbol of the petitioner. The voters being illiterate and no guidance havingbeen provided by the Polling Officers, did not know to mark their votes and instead of affixing the mark using the instrument vertically have used the instrument horizontally with the result that the voting mark was a horizontal line instead of the mark which would have been the mark had the instrument been used vertically. The petitioner submits that there were 12 ballot papers containing such marks of the instrument horizontally in the column meant for the opposite party. These votes were also declared invalid and rejectedby the Election Officer. The petitioner submits that under law the elector is only required to make a mark on the ballot paper with the instrument supplied. Rule 40 of the Orissa Municipal (Councillors) Election Rules does not lay down that the voter should use the instrument only vertically. Rule 52 which prescribes the conditions under which a ballot paper should be rejected does not also prescribe that if the mark is not placed vertically the ballot paper shall be rejected.'
In the written statement of opposite party No. 1 the fact that 24 ballot papers bore horizontal marks within the space provided for putting the voting mark as alleged by the petitioner was not disputed. In paragraph 4 it was contended:--
'It is wrong to aver that the 24 votes indicated their intention of exercising their franchise in favour of the petitioner. The horizontal mark or a dash given does not manifest such intention. Such a mark appearing shows that the voters had expressed their disapproval of that candidate and did not intend to vote for the petitioner. Rule 40 of the Orissa Municipal Election Rules prescribes a mandatory procedure of voting and makes it incumbent on the voter to make a mark on the ballot paper with the instrument supplied for the purpose. The instrument supplied is a rubber seal with a wooden handle and the rule requires using the seal to givethereby the seal on the ballot paper. The said rule never intended that any mark of ink given horizontally or a line would besufficient.....'
In paragraph 5 the opposite party No. 1 further averred:--
'The opposite party submits that 3 votes cast in his favour bearing the mark made by the instrument given, were erroneously rejected on the ground that the mark indicating the vote is indistinct or given in between 2 symbols of two candidates. These three votes ought to have been counted in favour of this opposite party and a declaration made that he obtained 196 votes and won the election by a majority of 196 lawful votes.'
Petitioner was examined as P.W. 1. He reiterated his pleading in his evidence, He further stated:--
'I had told the counting officer that the twenty-four ballot papers in which the voters had voted for me by giving marks by the wooden part of the instrument horizontally in my favour and similarly the twelve ballot papers in which voters had given votes in favour of the opposite party should be taken as valid ballot papers and our respective votes should be counted and added but he told me that he had no power and that he would bring it to the notice of the Election Officer.....'
The witness further stated:--
'Barring these twenty-four votes, the rest of the votes which were counted in my favour, the number of such votes being 186. Similarly barring the twelve votes which were not taken into consideration by the Election Officer in favour of the opposite party, the other votes had correctly been counted in his favour, the number of votes credited to him being 193. The votes numbering 108 in favour of Sri P. Sriramulu had correctly been counted.'
Opposite party No. 1 in his evidence as O.P.W. 1 stated:--
'..... Sixty ballot papers were rejected by the Election Officer on the ground that some were not marked and some had not properly been marked. In some of the ballot papers, there were some marks of 'X' which could be caused by a finger or any such substance. In none of these ballot papers which were rejected was any clear-cut line in the space provided for any candidate. In three ballot papers, in which the three electors had voted for me, the votes were not takeninto consideration on the ground that themarks of the seal were not distinct.'
He further stated in cross-examination:--
'Some of the rejected ballot papers had marks of ink which could be given by hand or by rubbing by one side of the wooden portion of that voting instrument or by a small stick.....'
6. Reliance has been placed on certain decisions of the Supreme Court rendered under the Representation of the People Act in the matter of re-counting of votes by counsel of both sides. In the case of Ram Sewak v. H. K. Kidwai, AIR 1964 SC 1249 allowing the inspection of ballot papers in an election petition came up for consideration. The Court indicated that by the mere production of the sealed boxes of ballot papers before the Election Tribunal pursuant to its order, the ballot papers do not become part of the record and they are not liable to be inspected unless the Tribunal is satisfied that such inspection is in the circumstances of the case necessary in the interest of justice. An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled :
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.
Then comes the case of Jagjit Singh v. Kartar Singh, AIR 1966 SC 773. While approving the rules laid down in the earlier case (supra) the Court pointed out that in dealing with the question of inspection, the importance of the secrecy of the ballot papers cannot be ignored, andit is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter; for attempt to lay down such a rule would be inexpedient and unreasonable.
Next is the case of Jitendra Bahadur v. Krishna Behari, AIR 1970 SC 276. Here again it was pointed out that the basic requirements to be satisfied before an election Tribunal can permit the inspection of ballot papers, are (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the Tribunal must be 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. The material facts required to be stated are those facts which can be considered as a material supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures.
There are four recent cases : Beliram v. Jai Behari Lal, AIR 1975 SC 283; Chanda Singh v. Shiv Ram, AIR 1975 SC 403; Manphul Singh v. Surinder Singh, AIR 1975 SC 502; and S. Baldev Singh v. Teja Singh, AIR 1975 SC 693, where the question has also been examined. In Chanda Singh's case (AIR 1975 SC 403) it was pointed out that Rule 63 of the Conduct of Elections Rules, 1961 obligates a candidate to state the grounds on which he demands such recount. It is plain that a mere doubt or small lead or unspecifiedblemish in the manner of the counting falls short of the needs of the said rule. Under the rule the demand for recount may be rejected if it appears to the Returning Officer to be frivolous or unreasonable.
It was further pointed out that if the counting of the ballots is interfered with by too frequent and flippant recounts by courts a new threat to the certainty of poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The best surmise, if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes.
Yet in another recent case in Bhabhi v. Sheo Govind, AIR 1975 SC 2117, it has been laid down that before the Court can order inspection of ballot papers, in an election petition, the following conditions are imperative :
(i) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(ii) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(iii) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(iv) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(v) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
(vi) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials.'
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.
7. As we have already pointed out this is not a case where inspection of all the ballot papers has been asked for. There is no dispute that the total rejected ballot papers were 60. Petitioner in his election petition as also in his evidence before the court has categorically stated that 24 out of these 60 ballot papers bore marks in the prescribed space given by the voting instrument and as such those 24 were valid papers credit whereof should have gone to him. Except giving the numbers of these 24 ballot papers, the petitioner seems to have given all other particulars. The opposite party does not dispute that 24 ballot papers bore such mark as alleged by the petitioner. What has been disputed is that conceding that 24 ballot papers bore marks as alleged, credit thereof is not available to the petitioner. Opposite party No. 1 also claimed that 3 of his ballot papers had been improperly rejected. Petitioner had accepted the position that out of the rejected ballot papers 12 votes could be taken as valid for opposite party No. 1.
8. Mr. Mohanty for the petitioner canvassed before us that the rigorous tests laid down by the Supreme Court in the cases referred to above may not apply to election proceedings arising out of municipal election. According to him, the strict provisions of the Conduct of Election Rules, 1961 are not applicable to the municipal elections and the Rules made under the Act for the purpose of conduct of election are not as strict as the Rules under the Conduct of Election Rules, 1961. It is unnecessary, in our view, to examine this aspect of the matter as we are satisfied that even by the tests laid down by the Supreme Court, a case has been made out by the petitioner requiring a re-scrutiny of the rejected ballot papers. It must be borne in mind that it is not a case of inspection of ballot papers as such. The rejection of ballot papers is in dispute and where there is no serious dispute about the facts, the only question for consideration is whether the ballot papers bore marks on the basis whereof credit is available to the candidate; we are of the view that interests of justice justified the scrutiny of the rejected ballot papers and the Election Tribunal had an application before it for the purpose and non-entertaining the prayer appears to have resulted in injustice to the petitioner.
9. The ballot papers are available before this Court but we do not think ina proceeding for the issue of a writ of certiorari we should ourselves undertake the scrutiny thereof. We would accordingly vacate the order of the Tribunal and remit the matter to it for a fresh disposal of the election case. Fresh evidence shall not be admitted, but the rejected ballot papers which are 60 in number shall be scrutinised by the Election Tribunal in presence of the parties and on the basis of the result of fresh scrutiny, the election petition shall be disposed of. The ballot papers may be sent down to the Tribunal.
We make no order as to costs.
10. I agree