A.N. Grover, J.
1. This is an appeal against an order of Election Tribunal (1) Chandigarh dismissing an election petition filed under Section 81 of the Representation of the People Act, 1951 (hereinafter called the Act) which had been instituted by the appellant (Shri Madho Singh) challenging the election of respondent No. 1 (Shri Ram Saran Chand Mital) to the Punjab Vidhan Sabha from the Narnaul Assembly Constituency held in February, 1962.
2. Apart from the appellant and respondent No. 1, three other persons, namely, Shri Ajudhia Prasad, Shri Dwarka Prasad and Shri Gyanendra Singh contested the election from the Narnaul Constituency. The polling took place on 24th February 1962. The Returning Officer for the Parliamentary Constituency (Mahendergarh) was Shri R. D. Malhotra, Deputy Commissioner, and the Returning Officer for the Assembly Constituency was his General Assistant, Mrs. B. Singh. The Assistant Returning Officer was Shri Narendra Nath, Tehsildar, Narnaul Tehsil. The counting of votes for both the Constituencies started at 8 A. M. on the morning of 25th February 1962 and ended at about 11 P. M. at night. It is not disputed that the position at that time was that he appellant was leading by 143 votes which had been polled, the postal ballots not having been counted till then. There is a good deal of controversy between the parties as to what transpired between 11 and 12 P. M. which shall be discussed in due course but by mid-night two applications had been made to the Returning Officer, one by Bikram Singh, the election agent of the appellant, and the other by respondent No. 1 for rechecking and recounting of the votes. On the application of respondent No. 1, Exhibit P. 78, the following order was made by the Returning Officer:--
'Rechecking allowed of few polling stations in order to ascertain any foul-play while counting the ballot papers.'
Bikram Singh filed another application on behalf of the appellant at 1 A. M. on the same night withdrawing the previous application for recounting of the votes and praying for declaration of the result. The second order of the Returning Officer which appears on Exhibit P. 78 and which purports to have been made at 3.40 A. M. was in the following terms:--
'Few irregularities have been noticed while rechecking of few polling stations. So I order recounting of the whole lot under Rule 63 of the Conduct of Election Rules, 1961.'
The recounting of the votes was then done from early hours of the morning of 26th February up to about 2.30 P. M. when it was suspended for reasons which shall be stated in due course and was adjourned to 5th March 1962. On the evening of 26th February 1962, however, the Returning Officer received directions of Deputy Chief Election Officer, Punjab, to resume the recounting as the results had to be declared much earlier than 5th March 1962. The recounting then started again at 9-30 A. M. on 27th February and continued up to 5 A. M. on 28th February. The result was declared on that date, the votes polled by the candidates being as follows:--
(1) Shri Madho Singh (appellant) : 16,724
(2) Shri Ram Saran Chand Mital (respondent No. 1) : 16.931
(3) Shri Ajudhia Prasad : 1,031
(4) Shri Dwarka Prasad : 3,688
(5) Shri Gyanendra Singh : 3,060
Thus respondent No. 1 was declared elected having secured the largest number of votes. It may be mentioned that he was the nominee of the Congress Party whereas the appellant stood as an independent candidate. Shortly after his election, he was made a Minister, the Council of Ministers being headed by S. Partap Singh Kairon as Chief Minister. He remained a Minister till the resignation of that Ministry in the year 1964.
3. In the election petition the main allegations were:--
(i) The attitude of the Returning Officer in the matter of appointing Presiding and Polling Officers was unfavourable to the non-congress candidates in general and to the present appellant in particular. (Paragraph 6).
(ii) At some polling stations grave irregularities were committed and when the same were brought to the notice of the authorities, no suitable steps were taken to remove them. (Paragraph 9).
(iii) The course which the Returning Officer followed at the time of counting was illegal, contrary to the rules and the executive instructions of the Election Commission issued to the Returning Officers and was demonstrably favourable to respondent No. 1. (Paragraph 11).
(iv) The counting of votes had been completed authorities. This request was turned down at about 11-30 A.M. on 26th February 1962 and the counting agents walked out. The Deputy Commissioner intervened and persuaded the Returning Officer to adjourn the counting till 5th March 1962. Later on, the recounting of votes again started under order from higher authorities. Without waiting for timely service of notice on the candidates the Returning Officer broke open the seals on the locks of boxes relating to the election papers and the recount started at 8 A.M. on 27th February 1962 and finished at 5 A.M. on 28th February 1962. (Paragraph 12).
(v) The original index of proceedings in the counting hall as also the second application which had been filed by respondent No. 1 for recounting of votes were later on found to have disappeared from the records and it was found that new order by the Returning Officer had been made on the application for recount which had been filed by Ch. Udmi Ram on behalf of respondent No. 1 and the original index of proceedings had been substituted by another one. (Paragraphs 14 and 16). x x x x
The election was sought to be declared void on grounds out of which it is necessary to mention only the following in the words as used in the petition:
'1. He (respondent No. 1) and his counting agents obtained assistance from the Returning Officer, both Gazetted Officers, rendered by them in the form of deliberate manipulation of counting of votes for the furtherance of the prospects of his election.
2. The result of the election has been materially affected by the improper acceptance and rejection of votes. After the alleged recounts, the number of rejected votes increased from 2224 to 2908.
3. He did not obtain a majority of the valid votes according to the initial counting sheet Form No. 20 which must be treated final and conclusive in that the figures reached at the subsequent recounts, held contrary to rules, should be ignored. Alternatively, a recount and scrutiny of ballot papers accepted in favour of respondent No. 1 and the rejected ballot papers will bear out this assertion.' (Paragraph 27).
4. Respondent No. 1, in his written statement, denied the allegations made in the election petition and also denied that any irregularities or illegalities had been committed by the Returning Officer as alleged in the matter of counting of votes. A number of preliminary objections were raised which it is unnecessary to mention. According to him, the appellant himself wanted recount of all the ballot papers and on respondent No. 1's application the Returning Officer passed an order allowing in the first instance rechecking of a few polling stations in order to ascertain whether any foul-play had taken place during the counting of ballot papers. After that had been done, the Returning Officer having found that certain irregularities had been committed, directed the recounting of all the votes under Rule 63 of the Conduct of Election Rules, 1961 (to be referred to as the Rules). It was denied that any second application was filed by respondent No. 1 for recounting of the votes as no such occasion arose in the presence of the first application which had been filed.
5. The following issues were framed by the Election Tribunal:--
1. How many recounts did, in fact, take place
2. If there were more than one recount, were the second and subsequent recounts illegal If so, to what effect ?
3. Did the Returning Officer reject the votes of the petitioner and wrongly accept the votes in favour of the respondent No. 1, as alleged in the petition ?
4. Did the respondent No. 1 and his counting agents commit the corrupt practice of obtaining assistance of Government officers, i.e., the Returning Officer and the Assistant Returning Officer, at the time of the counting of votes in furtherance of his election prospects, by manipulating votes in his favour ?
5. Did the Returning Officer and the Assistant Returning Officer commit illegalities and irregularities in the counting of votes as alleged in the petition; if so, to what effect Have they materially affected the result of the election ?
6. Is a case for recount and scrutiny of votes made out ?
7. Is the petitioner entitled to be declared elected to the seat on the grounds of improper rejection of votes cast in his favour and improper acceptance of votes which were counted for the respondent No. 1 in consequence of recount if allowed, under issue No. 6 ?
8. Are the allegations of corrupt practices mentioned in petition covered by the provisions of Section 123(7) of the Representation of the People Act ?
9. To what relief, if any, the petitioner is entitled?
The findings of the Tribunal on these issues may be reproduced in its own words:--
'Issue No. 1--There was only one recount.
Issue No. 2--In view of my finding on issue No. 1 no finding is necessary on this issue.
Issue No. 3--Neither the Returning Officer rejected votes of the petitioner nor did she wrongly accept the votes in favour of the respondent, as urged in the petition.
Issue No. 4--Neither the respondent nor his counting agents obtained any assistance of the Returning Officer and Assistant Returning Officer at the time of counting of votes in furtherance of his election prospects by manipulating votes in his favour.
Issue No. 5--Neither the Returning Officer nor the Assistant Returning Officer committed illegalities and. irregularities in the recounting of votes as alleged in the petition.
Issue No. 6--No case for recount and scrutiny of votes has been made out.
Issue No. 7--In view of my finding on issue No. 6, no question arises of giving any finding on this issue.
Issue No. 8--In view of my finding that no corrupt practice was committed on behalf of the respondent it is not necessary to go into the question whether the allegation of corrupt practice mentioned in the petition were covered by the provisions of Section 123(7) of the Representation of the People Act.
All these issues are decided against the petitioner.
Issue No. 9--After giving my anxious consideration to the facts and circumstances of the case I have come to the conclusion that none of the allegations made by the petitioner against the respondent has been established beyond any reasonable doubt.'
The election petition was consequently dismissed and the parties were left to bear their own costs.
6. Respondent No. 1 has filed cross-objections with regard to costs which shall also be disposed of by this judgment.
7. Mr. Rameshwar Dayal, who argued the case for the appellant, has not sought to address us with regard to each issue. He has confined his submissions to certain matters which arise out of the issues and which according to him would be decisive for the disposal of the case. His main effort has been to show that--
1. the order for recount made by the Returning Officer on the night of 25/26th February 1962 on which the declaration of the result was finally based was not validly and legally made;
2. the recounting of votes was not conducted in accordance with the rules and the Returning Officer deliberately rejected several valid votes cast in favour of the appellant;
3. after the recounting had been suspended on 26th February 1962 at 2-30 P.M., it was illegally resumed on the following day at 9-30 A.M. without any notice to the appellant and was done in the absence of the appellant and of his counting agents;
4. in the circumstances of the present case the Tribunal ought to have allowed a recount and scrutiny of ballot papers;
5. the Returning Officer was prompted by improper motives in making the order for recount for the purpose of helping the election prospects of respondent No. 1; and
6. the Returning Officer joined hands with respondent No. 1 in secreting away documents from the record and in committing even a forgery with regard to the order of recount which purported to have been made at 3-40 A.M. on 26th February, 1962.
8. In connection with the first contention it is necessary to examine the circumstances in which the order for recount was made. The version of the appellant as given in the petition has already been set out. His case essentially was that when the counting of votes had been completed on the night of 25th February by 11 P.M. and the result-sheet had been prepared the appellant had a lead of 143 votes. Although postal ballots had not yet been counted but their total number was known and, therefore, it was apparent that even if all the postal ballots had been cast in favour of respondent No. 1 it was the appellant who would win. It was respondent No. 1 who filed an application asking for recount as he was necessarily affected by the result. In this application, Exhibit P-78, it was alleged that the ballot papers had not been properly counted and most of the counting assistants were favourably inclined towards the appellant and they had deliberately violated the provisions of law by including ballots in the rival candidate's lots and disallowing votes polled by respondent No. 1 and further that the totals had not been correctly made. The prayer was that the ballots be rechecked and recounted. According to the case of the appellant, the application filed by his election agent Bikram Singh requesting for recounting of the votes was filed as a counterblast to the application of respondent No. 1 and also on account of dissatisfaction with the attitude of the Returning Officer. All this had happened by mid-night of 25/26th February.
9. In support of the above position, Mr. Rameshwar Dayal has referred to the relevant evidence and has greatly emphasised the fact that there was no question of the appellant asking for a recount because the result up to that time was clearly in his favour and even after taking into account the postal ballots, no manner of doubt had been left that he was going to win. Therefore, the appellant could have hardly any reason or motive for filing an application for recount and running the risk of having an unfavourable result. In my opinion, it is more important to refer to the documentary evidence on this point. On the application of the appellant, Exhibit P-77, time is noted as 11-50 P.M. The letter 'P' on the original document appears to have been originally 'A' and seems to have been altered to 'P'. According to the case of the appellant this time was not noted by Bikram Singh, who filed the application on behalf of the appellant, but it was noted by someone else. The suggestion of Mr. Rameshwar Dayal is that the time had deliberately been noted as 11-50 P.M. in order to show that this application had been filed before the application of respondent No. 1. Now, Annexure 'A' attached to the petition purports to be a copy of the index of proceedings in the counting hall made by Bikram Singh, the election agent of the appellant, during inspection of the record.
In paragraph 14 of the petition, it was affirmed that this inspection was made by him from 27th to 29th March 1962. From this copy it is clear that the application made on behalf of the appellant by Bikram Singh for recounting was made at 11-50 P.M. whereas the application of respondent No. 1 for recounting was made at 12 P.M. It may be mentioned that the index of proceedings has figured prominently in the controversy between the parties. On behalf of the appellant it was maintained that the correct copy of the index was the one reproduced in Annexure 'A'. Respondent No. 1, however, had obtained a certified copy of this index which was prepared on 9th April 1962, Exhibit R-32. It is entitled 'Index to the file containing proceedings carried out in the counting hall, Narnaul.' In this index also the application filed on behalf of the appellant by Bikram Singh is shown to have been filed at 11-50 P.M. whereas the application filed by respondent No. 1 is stated to have been filed at 12 P.M.
Curiously enough, however, the original index subsequently disappeared from the file. The argument based on its disappearance will be noticed later when the other contentions of Mr. Rameshwar Dayal are examined relating to the alleged partiality of the Returning Officer towards respondent No. 1. The fact, however, remains that even according to the copy of the index prepared by Bikram Singh, the election agent of the appellant himself, the time when the application was filed by him for recounting is 11-50 P.M. which is the same as is noted on the application itself. It is not possible to see how in this situation it lies in the mouth of the appellant to say that his application was not filed at the time which is noted on it. There was no suggestion that when Bikram Singh inspected the records from 27th to 29th March 1962 the index had been tampered with or had been incorrectly prepared. The Returning Officer could not say with any certainty whether the application for recounting made by respondent No. 1 was the first. There is also inherent evidence in both the applications which establishes that the application filed by Bikram Singh on behalf of the appellant must have been filed first. It is noteworthy that in that application it had been stated--
'Your honour announced that the candidates or their agents will be present at the time when the decision about the doubtful votes be taken. But the same has not been done, and the decision generally has been taken in the absence.
Boothwise total may kindly be announced and thereafter grand total be made.
Request is hereby made for re-examination of the doubtful votes and for recounting the total votes under rule 82'.
The order on that application made by the Returning Officer in her own writing ran as follows:--
'Not bound by law to consult you while giving my final judgment on the doubtful votes.'
10. The tenor of the above application and the order made on it show that the stage at which an application can be made under Rule 63 for recount of votes had not been reached. According to that rule, a recount can be asked for after an announcement had been made on completion of the counting when the Returning Officer has recorded in the result-sheet in Form No. 20 the total number of votes polled by each candidate. The main complaint in the application filed by Bikram Singh on behalf of the appellant was that the decision about the doubtful votes had been taken by the Returning Officer in the absence of the candidates or their agents. The first prayer was that boothwise total may be announced and thereafter a grand total be made. The second prayer, of course, included the request for recounting of the total votes but the rule mentioned was 82. This rule does not have any connection with elections to the Vidhan Sabha but appears in Part VI and provides for recount at any time during the counting of votes at elections by Assembly members or in Council Constituencies. The position taken up on behalf of the appellant is that the aforesaid rule was mentioned by mistake. That, however, does not alter the fact that the recount was not asked under Rule 63 which could be done only after the total number of votes had been polled for each candidate had been recorded in the result-sheet in Form No. 20. The application of respondent No. 1, however, was clearly made in accordance with the provisions of that rule. This indicates that it was made subsequent to the application filed on behalf of the appellant.
11. Mr. Rameshwar Dayal has also contended that the counting of postal ballot papers was not complete by mid-night. The Tribunal has given sound reasons for not accepting that contention and it is unnecessary to repeat them as I am in entire agreement with them. As regards the emphasis of Mr. Rameshwar Dayal on the fact that there was no necessity for the appellant to file the application when he was winning, the Tribunal seems to be right in holding that Bikram Singh got a little perturbed and nervous when he saw that most of the postal ballot papers which were being opened were in favour of respondent No. 1. It is not denied that out of 113 postal ballot papers. 87 had been cast in favour of respondent No. 1, 10 in favour of the appellant and the remainder in favour of other candidates. It is not possible to accede to the contention of Mr. Rameshwar Dayal that the total number of postal ballot papers was known at the very start so that it could be ascertained as to who would win because there is no such procedure prescribed by the Rules nor has it been established in evidence that according to the normal procedure the total number of postal ballot papers are counted first and then the scrutiny takes place. The Tribunal is fully justified in saying that as the scrutiny of the postal ballot papers proceeded and it was found that most of the votes had been cast in favour of respondent No. 1, Bikram Singh quite naturally and legitimately started getting upset about the final outcome and, therefore, he filed the application for recount.
Moreover, the evidence of the appellant's own counting agent Banwari Lal Chhakar, who appeared as P. W. 6, was to the effect that the application filed by Bikram Singh on behalf of the appellant for recount was made at about 11-45 P.M. The Assistant Returning Officer, Shri Narender Nath, (R. W. 3) stated in unequivocal terms that rechecking of the votes had been done because two applications had been made for recounting one by Bikram Singh during the counting of postal ballot papers and the other by respondent No. 1 after the postal ballot papers had been counted and results had been entered in Form No. 20. I am, therefore, satisfied that the appellant's application for recount had been made at the time noted on it, namely, 11-50 P.M. and was earlier in point of time than the application of respondent No. 1.
12. The next question is what transpired after both the applications for recounting had been made by the appellant as well as by respondent No. 1 by mid-night. It is clear from the first order of the Returning Officer, which has been reproduced before and about which there is no dispute that she allowed rechecking of a few polling stations for the purpose of finding out what she called any foul-play during the counting of the ballot papers. There is a good deal of controversy between the parties as to the number of tables which were checked. The appellant has described that process as a process of recount and has stated in the election petition that as many as three recounts took place before the fourth recount started which was of the entire number of votes. According to respondent No. 1, and his case is supported by the Returning Officer, there was rechecking of only a few polling stations at random after which the second order was made by the Returning Officer for a recount of all the votes. Shri Rameshwar Dayal has pointed out that the record of sample checking was not made available although it originally existed. The Returning Officer stated that no such record had been kept. Mr. Rameshwar Dayal has further addressed lengthy arguments about the existence of a second application alleged to have been filed by respondent No. 1 at about 4 P.M. for recount on which the final order was made by the Returning Officer. This application was not found on the record and according to him, it had been surreptitiously removed with the connivance of the Returning Officer. It has further been alleged that the second order directing recount on Exhibit P-78 had been forged inasmuch as this order really had, in fact, been made on the second application filed by respondent No. 1.
The Returning Officer in her evidence emphatically denied these allegations and maintained that only one application had been filed by respondent No. 1 which was Exhibit P-78 and both the orders which were made by her had been recorded on that application alone. The question of alleged forgery and disappearance of the so-called second application will be adverted to later but it seems to me that the undisputed position is that the appellant had himself moved for a recount before 12 O'clock and that respondent No. 1 had also filed an application under Rule 63 for the same purpose on which an order had been made for sample rechecking in order to determine whether the application should be allowed in whole or in part. The application filed on behalf of the appellant had certainly been withdrawn by 1 P.M. or so but there is no suggestion that the application filed by respondent No. 1 at about mid-night had ever been withdrawn. The Returning Officer had to make up her mind after sample rechecking whether to allow respondent No. 1's application in whole or in part or to reject it in toto. She decided to allow it in whole and what has to be determined is whether the order made by her in this connection was in accordance with the provisions of Sub-rule (3) of Rule 63.
13. In order to see whether the order made by the Returning Officer under Rule 63 for a recount of the total number of votes was in accordance with the provisions of that rule, it is necessary to refer in the first instance to the relevant rules appearing in Part V of the Rules. Rules 55 and 56 relate to opening of ballot boxes, scrutiny and rejection of ballot papers. Rule 57 (2) provides that after the counting of all ballot papers contained in all the ballot boxes used at a polling station had been completed, the Returning Officer should make the entries in a result-sheet in Form No. 20 and announce the particulars. Rule 57-A relates to counting of ballot papers, 62 to scrutiny and counting of postal ballot papers and 63, to recount of votes. This rule is in the following terms:--
'(1) After the completion of the counting the Returning Officer shall record in the result-sheet in Form 20 the total number of votes polled by each candidate and announced the same.
(2) After such announcement has been made, a candidate or, in his absence, his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount.
(3) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(4) Every decision of the Returning Officer under Sub-rule (3) shall be in writing and contain the reasons therefor.
(5) If the Returning Officer decides under Sub-rule (3) to allow an application either in whole or in part, he shall--
(a) count the ballot papers again in accordance with his decision;
(b) amend the result-sheet in Form 20 to the extent necessary after such recount; and
(c) announce the amendments so made by him.
(6) After the total number of votes polled by each candidate has been announced under Sub-rule (1) or Sub-rule (5), the Returning Officer shall complete and sign the result-sheet in Form 20 and no application for a recount shall be entertained thereafter:
Provided that no step under this Sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (2).'
14. Mr. Rameshwar Dayal has submitted that the Returning Officer could not make an order under the aforesaid rule for a fresh scrutiny of the ballot papers and a recount unless that officer was prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers was necessary. It is said that the rule laid down by their Lordships in Ram Sewak v. Hussain Kamil, AIR 1964 SC 1249, in respect of the powers of an Election Tribunal to order inspection of the ballot papers and recount of votes is also applicable at the stage when the recount is ordered by the Returning Officer under rule 63. It is true that in that case their Lordships have laid down the limits to the exercise of powers of the Tribunal in the matter of ordering inspection of ballot papers and directing a recount and the short question is whether the powers of the Returning Officer under Rule 63 are the same or are wider, as has been contended by Mr. Anand Swarup, learned counsel for respondent No. 1.
After referring to the relevant Rules in Part V, it has been observed that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a recount. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinised and opened and votes were counted. He had also opportunity of inspecting rejected ballot papers and of demanding a recount. It is, however, in the light of Rule 83 (1), which requires a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered. In that case it was found that the election petition was deficient in the recital of material facts and it had merely been asserted that if the votes actually cast in favour of the petitioner were to be counted, the total number of ballot papers found in his favour would exceed the number of votes received by his opponent.
In their Lordships' view, having regard to this infirmity the Tribunal was justified in declining to make an order in regard to inspection of ballot papers unless a prima facie case had been made out in support of the claim. They proceeded to say that the Tribunal would be justified in refusing an order where inspection was being claimed with a view to fish out material in support of a vague plea set out in the petition. In the other case Jabar Singh v. Genda Lal, AIR 1964 SC 1200, in which the point arose in a somewhat different manner, reference was made to the position under the English Law in regard to the recounting of votes in proceedings under election petitions and a passage from Halsbury's Laws of England, p. 306, was extracted and it was held that in holding an enquiry under Section 100(1)(d)(iii) or Section 101 of the Act, where Section 97 had not been complied with, it was not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity. Both the above decisions were discussed by me in delivering the judgment of the Bench in Giani Kartar Singh v. Jagjit Singh, F. A. F. O. No. 3-E of 1964, dated 29th May 1964 (Punj), and I said that indisputably those two judgments contained an exhaustive statement of law on the question of allowing inspection and having scrutiny of votes when an election petition was being tried by a Tribunal.
15. It is apparent that the law laid down by the Supreme Court in the two cases mentioned above was based on different considerations which arise only when an election petition has been filed before a Tribunal and it would be difficult to apply the same rule automatically to the scope of the powers of the Returning Officer under Rule 63 unless the language of the rule itself justifies that course. Sub-rule (2) of Rule 63, read with the proviso appearing at the end of the rule, shows that it is mandatory that an opportunity has to be given to the candidates or their election agents to make an application for a recount of all or any of the ballot papers already counted stating the grounds on which such a demand is made. The Returning Officer has then to decide the matter and can allow the application in whole or in part or the application can be rejected in toto if it appears to the Returning Officer to be frivolous or unreasonable. According to Sub-rule (4) every decision of the Returning Officer under Sub-rule (3) has to be in writing containing the reasons therefor.
The language which has been employed in Sub-rule (3) and in particular the word 'decide' which has been used, shows that the Returning Officer is enjoined to take the grounds into consideration and make an objective decision whether to allow the application whole or in part. He can reject the application in toto if it appears to be frivolous or unreasonable. Thus as soon as an application is presented, the Returning Officer has to make up his or her mind whether the application is frivolous or unreasonable. If it is so, there would be complete justification for rejecting it. In all other eventualities, decision has to be made whether it should be allowed in whole or in part. That will depend on the grounds which have been raised as also various other matters relating to counting and scrutiny of votes which would be essentially within the personal knowledge of the Returning Officer. It does not mean nor does the language employed indicate that the Returning Officer is bound to grant the application in whole or in part unless it is frivolous or unreasonable. He has to exercise discretion in a proper and judicial manner as the decision which has to be given by him would be of a quasi judicial nature containing the reasons for the decision. It would, therefore, be difficult to lay down any rigid or hard and fast rule in the matter as it will depend on the facts and circumstances of each case as to whether the Returning Officer is justified in deciding whether the application for recount should be allowed in whole or in part.
Mr. Rameshwar Dayal has also relied on Pethu Reddiar v. V.A. Muthiah, AIR 1963 Mad 390 and Mohan Reddy v. Narayana Reddy, AIR 1964 Andh Pra 190, but these cases can hardly afford much assistance as the question involved in them related to the circumstances in which scrutiny and recount should be directed by the Tribunal in an election petition. It may be mentioned that in the second case there are observations that the rule relating to recount of votes lays down that the grounds for recount should be mentioned even before the Returning Officer and that is obviously with a view to prevent a roving enquiry to make out a case for recounting either before the Returning Officer or at a later date before the Tribunal but there can be no quarrel with that view as it is not open to anyone to contend that an application can be made under Rule 63 without stating the grounds for recount or with a view to having a roving enquiry made.
16. Mr. Anand Swarup has contended that the discretion of the Returning Officer under Rule 63 (3) is very wide and the order for recount must be made by the Returning Officer almost as a matter of course unless the application is found to be frivolous or unreasonable. He has relied on the English Law with regard to the powers of the Returning Officer relating to recount of votes. In the English Rules (Parliamentary Elections Rules), Rule 47 is that a candidate or his election agent may, when the counting or any recount of the votes is completed, require the Returning Officer to have the votes recounted or again recounted but the Returning Officer may refuse to do so if in his opinion the request is unreasonable.
Under that rule also as under Rule 63 of the rules no step can be taken on the completion of the counting or any recount of votes until the candidates or his election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by the rule. It seems that the rules in England are somewhat different as would be apparent from the instructions to counting assistants appearing at pages 524-527 of Parker's Election Agent and Returning Officer, 6th Edition, which indicate that the recount relates more or less to arithmetical counting and not to scrutiny of all the ballot papers which would involve afresh process of rejection and acceptance of votes. Although there is no direct authority with regard to the true ambit and scope of Rule 63 (3), I am of the opinion that the correct view would be one which I have already expressed.
17. Mr. Rameshwar Dayal has contended that the grounds which had been taken by respondent No. 1 in his application under Rule 65-were hardly sufficient for deciding that a recount be ordered in whole or in part. The main complaint in that application essentially was that the counting had not been properly done and the rules had not been followed with regard to rejection of votes so far as respondent No. 1 was concerned. Mr. Rameshwar Dayal says that the grounds were completely vague and although the counting agents of respondent No. 1 were present at the time of counting of the votes and determination of valid and invalid votes they did not either give any particulars or details with regard to the number of votes which had been wrongly disallowed. The Tribunal while considering this aspect of the case was of the view that at the time when the order for rechecking of a few polling stations was passed on the application of respondent No. 1, there can be no doubt that two applications for recount in respect of all the polling stations had been filed, one by the appellant and the other by respondent No. 1 which were pending. The Returning Officer had to decide whether the application for recount had to be allowed in whole or in part or had to be rejected in toto as frivolous and unreasonable. In order to come to that decision the course that was adopted was the only reasonable course that was open to the Returning Officer. The following part of the order may be reproduced in the Tribunal's own words:--
'In order to find out whether allegation made by the respondent was genuine or frivolous, she had to satisfy herself by looking at the ballot papers of some of the polling stations at random. If after doing so, she came to the conclusion that certain irregularities had been committed during the counting, it would have been her duty in the interest of a fair election to have a recount. It has been vehemently urged that this rechecking was seriously opposed on behalf of the petitioner. This does not appear to be correct. Shri Banwari Lal Chak-kar the counting agent of the petitioner, has stated:--
'With the mutual agreement of the parties, ballot papers of the polling stations of the three tables were scrutinised and recounted.'
According to the Tribunal, the Returning Officer was justified in ordering rechecking and when irregularities were found in the course of rechecking she decided to order a recount of all the ballot papers.
18. To my mind, the most significant fact is that the appellant had himself asked for a recount and so had respondent No. 1. When both the rival candidates were pressing for a recount, even if the application of respondent No. 1 did not contain any details or particulars which could have been given in support of the grounds which had been raised in the application it was not open to the appellant to turn round later and complain about an order having been made for a partial rechecking and then of a total recount when irregularities were discovered which satisfied the Returning Officer that it was a fit case for ordering a recount. Mr. Anand Swarup has pointed out with reference to paragraph 27 of the election petition that the appellant never took up any cogent plea that there was not enough material before the Returning Officer for making the order which she did, and further that the contention which has been raised before us was never raised before the Tribunal and all that was urged was that the Returning Officer had acted illegally while passing the order for rechecking of ballot papers of a few polling stations at random. This was certainly correct.
19. It has next to be decided whether the order of recount was justifiably made after a few irregularities had been noticed while re-checking of some polling stations because that was the sole ground mentioned in the order directing a recount. Mr. Rameshwar Dayal has submitted that since the order made by the Returning Officer under Rule 63 is a quasi judicial order, it is open to examination and review by the Appeal Court and if it is found that there was no justification, legal or factual, for making the order, the recount based on that order should be completely ignored. Mr. Anand Swarup says that it was for the Returning Officer to make up her mind on discovery of certain irregularities which were found on re-checking of some polling stations at random whether the recount should be ordered or not. He further says that it is open to him to show that the order was justified on another ground even though that was not mentioned in the order, namely, that the difference between the votes polled by the appellant and respondent No. 1 was very narrow. He has called attention to certain decisions of Election Tribunals reported in the Indian Elections Cases by H.S. Doabia from 1935 to 1950, Vol. I. In Pir Zain-ul-Abdin Shah v. Kh. Ghulam Hussain, the report relating to which appears at p. 63, one of the grounds on which recount was ordered was that the margin of difference between the first and the third candidate in order of (votes was very small, namely, only 27 votes in a total of 13,853, valid votes. To the same effect is the view expressed in the reports by the same author from 1864 to 1935 Vol I, at pages 271-272. In Schofield's work entitled Parliamentary Elections 3rd Edition also the same opinion is expressed at page 365.
20. On a consideration of all that has been stated above, I am of the opinion that the order passed by the Returning Officer in the present case for a recount cannot be regarded as arbitrary or unjustified. After all, the appellant himself was the first candidate to ask for a recount and when respondent No. 1 also made a similar request the Returning Officer, as has already been stated, made an order for rechecking of certain polling stations. When irregularities were discovered on rechecking of those polling stations, the Returning Officer made the order for a recount. There can be no doubt that the margin of votes between the appellant and respondent No. 1 was narrow and the Returning Officer could well have considered it necessary to order the recount in the interest of fair election. It was for the Returning Officer to exercise discretion in the light of all the circumstances and the Appeal Court would be most reluctant to interfere with the exercise of that discretion in the absence of any strong and cogent reasons justifying interference.
21. Mr. Anand Swarup raised another point that even if it be assumed that there was any violation of Rule 63 it must have materially affected the result of the election so as to constitute a ground for setting it aside under Section 100(1)(d), read with Sub-clause (iv). Mr. Rameshwar Dayal says that if the order itself made under Rule 63 was illegal, that by itself should be regarded as having materially affected the result of the election inasmuch as after the recount the appellant was declared as having lost the election. In Naunihalsingh v. Kishorilal Paliwal, AIR 1961 Madh-Pra. 84, a Division Bench has expressed the view that the word 'non-compliance' in Section 100(1)(d)(iv) denotes an omission to do what is directed to be done, and does not denote doing of an act which is prohibited (such as carrying identity cards of candidates by voters to the polling station which is punishable under Section 130(2) ). With respect, this view appeals to be correct but it is unnecessary to decide this point as it has already been held that the order made under Rule 63 had been validly made by the Returning Officer and no question, therefore, arises of any non-compliance with the provisions of Section 100(1)(d)(iv) of the Act.
22. I shall now deal with the second and the third main points which have been canvassed by Mr. Rameshwar Dayal that the recounting of votes was not conducted in accordance with the Rules and the Returning Officer deliberately rejected several valid votes cast in favour of the appellant and that the recount was resumed oh 27th February without any notice to the appellant. According to the Returning Officer, the ballot papers of 30 polling stations had been counted from 4 A. M. to 11 A. M. on the 26th February 1962. It is common ground that between 11 A. M. and 2-30 P. M. an application for suspension of the recount was filed on behalf of the appellant and on the intervention of the Deputy Commissioner it was suspended and postponed to 5th March, when the date of resumption of recount was altered from 5th March to 27th February under orders of higher authorities, the process of recounting started at 9 A. M. on 27th February and concluded at 5 A. M. on 28th February during which period the appellant or his counting agents did not take part in the proceedings. There is a good deal of controversy between the parties whether the recounting carried out during the period 4 A. M. to 11 A. M. on 26th February was done by the Returning Officer herself or it was done partly by the Returning Officer and partly by the Assistant Returning Officer. The case of the appellant was that the Returning Officer retired at 6-30 A. M. on the morning of 26th February as she was very tired and thereafter the recounting was continued till 11 A. M. by Shri Narendar Nath, the Assistant Returning Officer. Both these officers have deposed that the recounting during this period was done by the Returning Officer herself. The evidence led by respondent No. 1 is also to the same effect. The Tribunal did not feel impressed with the evidence produced by the appellant and although Mr. Rameshwar Dayal has referred to it, I am equally not satisfied why the evidence of the Returning Officer as also of the Assistant Returning Officer should not be believed with regard to this matter. At any rate, as has been pointed out by the Tribunal, nothing turns on any decision, one way or the other on the matter. One thing, however, stands admitted that during this period the agents of the appellant were present. It is unnecessary to refer to the circumstances in which the recount was suspended, namely, owing to trouble being apprehended at the hands of a large crowd which had been present for most of the time and which had been making demonstrations in favour of the appellant. The Deputy Commissioner, Shri R.D. Malhotra, who appeared as P. W. 2, gave evidence that there was apprehension of the breach of peace in the town and an attack was apprehended on the counting hall itself and therefore, the recounting had to be suspended. The Assistant Returning Officer, who was in charge of recounting at the time when the order of suspension was made, has said quite clearly in his order that--
'Since there is disturbance alround and circumstances demand that the counting should adjourn till 5th March, 1962. But this is subject to orders of the higher authorities which are going to be sought for. All concerned must keep themselves in touch with the same.'
This order was made in the presence of the appellant as also his election agent Bikram Singh. On the evening of 26th February 1962 the higher authorities directed the Returning Officer to resume the recounting as the last date for declaration of the result was 3rd March 1962. Mr. Rameshwar Dayal has contended that the notice was not served either on the appellant or his election agent Bikram Singh. The Tribunal has referred to the entire evidence on the point and has held that the appellant had ample notice of the resumption of recount on 27th February at 9 A. M. and he as well as his election agent Bikram Singh deliberately kept away for reasons best known to them.
23. Now, R. W. 1 Maha Nand, peon, has deposed to the service effected on Bikram Singh on 26th February 1962. He had first gone to the house of Shri Om Parkash Sanghi Advocate in order to serve notice upon the appellant. He was, however, told by Hanuman Parshad that the appellant was not present and was directed to take the notice to the residence of Bikram Singh. He went to the house of Bikram Singh and called out for him but getting no response he entered the house by pushing open the outer door which was not fastened. A small girl was standing inside. From the place where he was standing he could see that Bikram Singh was present at the first floor of the house but Bikram Singh did not come to him. Thereupon he affixed the notice on the outer door of his house. Bikram Singh stated that on 26th February in the evening he had telephoned from Mr. M.D. Sharma's kothi and on 27th in the afternoon from the shop of Girwar Prasad. He slept at Mr. M.D. Sharma's place and in the morning of 27th February he proceeded to Delhi. It may be mentioned that the telephone calls and his visit to Delhi were all stated to be in connection with the complaints against the order of recount and the attitude of the Returning Officer.
It is, however, clear that Bikram Singh was present in Narnaul from 26th up to the morning of 27th and it is difficult to believe that although a notice had admittedly been pasted at his house, he did not come to know of it at all before he left for Delhi on the 27th. The son of the appellant, Satya Mandan, (P. W. 4) admitted that he came to know on the 27th afternoon that the recounting had started. The appellant, who gave evidence as P. W. 7, also admitted that on the 27th at about mid-day he was informed by some of his co-villagers that recounting had started. On coming to know of it, he went to Narnaul but felt so shocked at the conduct of the officers that he sat under a grove behind the counting hall at about 2 P. M. The finding of the Tribunal, therefore, was fully justified that the appellant and his agents had full knowledge and notice of the fact that the recounting had been resumed on the 27th. It was also to be expected that they would keep in touch with the authorities about further orders as had been directed by the Assistant Returning Officer while making the order relating to suspension of recount. It is, therefore, not possible to accede to the submission of Mr. Rameshwar Dayal that any irregularity or illegality was committed by the Returning Officer or the Assistant Returning Officer in the manner suggested by him.
24. Mr. Rameshwar Dayal has next contended that the Returning Officer rejected a large number of votes which had been cast in favour of the appellant. It is pointed out that although on 26th February when 30 polling stations had been rechecked up to the time the recount was suspended only 88 additional votes had been rejected so far as the appellant was concerned but on the subsequent date after the resumption of the recount the number of such rejected votes swelled to 408. That showed that the Returning Officer was deliberately rejecting votes which had been cast in favour of the appellant and a much larger number of votes were rejected, after the resumption of the recount because the appellant as also his election and counting agents were not present and were not allowed to participate in the scrutiny of votes. It may be mentioned that in all after the recount a total number of 706 votes were rejected as invalid in addition to the number of votes rejected at the count, the total of such rejected votes at that time being 2224.
25. Now, neither in the election petition nor in the evidence the appellant has given any particulars or details of the votes which had been rejected nor were any reasons stated for showing that they had been illegally rejected. As has been observed pertinently by the Tribunal, when the recounting was done for the first period up to the time of suspension, no objection in writing was raised on behalf of the appellant that the valid votes cast in his favour were being wrongly made invalid, although admittedly during that period the election agent and the counting agents of the appellant were present. The evidence of Bikram Singh was that the Returning Officer was not listening to the legitimate objections of the appellant's agents and that the counting agents were asked by her to remain at a distance of about 50 paces from the table where the recount was being done. The Tribunal disbelieved the evidence of Bikram Singh on this point on a fairly sound ground that in none of the communications which were sent on behalf of the appellant to higher authorities telegraphically and otherwise, any such objection was raised. Exhibit P. 113 was an application dated 28th February 1962 addressed by Bikram Singh to the Chief Election Commissioner of India. The main gravamen of the charge therein was that the recount had been ordered illegally.
It was also said that the Returning Officer was doing the recounting from the morning of 27th February in the absence of the candidates and ballot papers were being tampered with. The prayer was that re-polling and recounting should be ordered under the supervision of the special staff from the office of the Commission. No such complaint is to be found in this application about the Returning Officer not having allowed the counting agents to be present near the counting table at least on 26th February nor was any such complaint made in Exhibit P. 118 which was another application filed before the Chief Electoral Officer. The Tribunal has referred to the other evidence also in this connection, namely, of Banwari Lal Chakkar, the counting agent of the appellant and Net Ram (R. W. 2), the counting agent of Shri Gyanendra Singh, a Jan Sangh candidate as also to the admission of the appellant that while recounting was going on, his election agent and counting agents occasionally used to be near the table of the Returning Officer. It is also significant that although the Deputy Commissioner was present for the material period, no such complaint was made to him.
I am, therefore, satisfied that there is no substance in the allegation that the agents of the appellant were not allowed to watch the process of rejection of votes when they were admittedly present from 4 A. M: to 11 A. M. on the 26th February. As regards the period when the recount was resumed after it had been suspended the appellant and his agents were themselves to blame if they did not present themselves and deliberately stayed away from the place where the Returning Officer was carrying out the recount. Furthermore in the absence of material and data which could have been placed by the appellant on the record for showing that valid votes were declared to be invalid, it is not possible to agree with Mr. Rameshwar Dayal that the Returning Officer illegally and out of sheer partiality rejected several valid votes cast in favour of the appellant. It is true that the number of votes rejected by her was fairly substantial but that by itself cannot establish beyond doubt that those votes had been rejected without any justification merely for the purpose of making respondent No. 1 win.
Moreover, as pointed out by Mr. Anand Swarup, it was not only in case of the appellant that the Returning Officer declared a number of votes to be invalid but with regard to other candidates also substantial number of votes cast in their favour were invalidated by the Returning Officer at the recount. In case of respondent No. 1, 135 votes were declared invalid by her which had previously been treated as valid. The Tribunal took pains as is clear from the order, to ascertain from the counsel who argued the case of the appellant how the valid votes cast in his favour had been made invalid but no indication was given in that behalf and sheer inability was pleaded as according to the appellant he was not in a position to give any details about the matter. For all these reasons I would hold that there is no substance in the second and third points raised by Mr. Rameshwar Dayal.
26. A faint attempt was made by Mr. Rameshwar Dayal to press the fourth point, namely, that the Tribunal ought to have allowed a recount and scrutiny of the ballot papers in the circumstances of the present case. The relevant decisions in this connection have already been referred to and in the light of what was laid down therein it is not possible to accept that the Tribunal ought to have allowed a scrutiny and recount in the present case. The following passage from Giani Kartar Singh's case, F. A. F. O. No. 3-E of 1964 D/- 29-5-1964 (Punj) (supra) may be referred to with advantage:--
'It is true that in Jabar Singh's case, Civil Appeal No. 1042 of 1963: AIR 1964 SC 1200 decided by the Supreme Court on 20-12-1963 the point arose in somewhat distinguishing circumstances but the statement of law is, with respect, a quite general and although the English rules reproduced from Halsbury may not be strictly applicable here, they embody a gist of the requirements of material facts and particulars which it is necessary to set out for a petitioner before he can proceed to invoke the jurisdiction of the Tribunal for allowing inspection of the ballot papers and their scrutiny by the Tribunal. In Ram Sewak Yadav's case, Civil Appeal No. 1064 of 1963: AIR 1964 SC 1249 decided by the Supreme Court on 17-1-1964 which is directly in point, the allegations of Kidwai were noticed and they have already been set out above. It was found that there was deficiency in the recital of material facts which must be deemed to be within the knowledge of the petitioner in that case. The whole object of pointing out, as has indeed been done in that case, that the candidate who seeks to challenge an election on the grounds of improper reception, refusal or rejection of votes at the time of counting having an ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinised and the votes counted, is that the petition should contain all the material facts and particulars with regard to the votes which were improperly received, refused, rejected or accepted.'
The petition filed by the appellant does not contain even the bare facts which were material and which would have justified the Tribunal allowing inspection after a prima facie case had been made out in support of the claim for inspection.
27. The fifth and the sixth points may be dealt with together. Mr. Rameshwar Dayal has made an attempt to show that the Returning Officer was generally partial towards respondent No. 1 and was actuated by a motive to help him in winning the election and all this was known to respondent No. 1 and was done with his active connivance. In particular, he has emphasised the substitution and disappearance of certain documents and has even suggested that the Returning Officer was guilty of forgery in the matter of recording the order of recount on the first application of respondent No. 1 made under Rule 63. While examining these matters it may be stated at the outset that in spite of the allegations in the election petition Mr. Rameshwar Dayal did not contend nor was he in a position to show how the Returning Officer was acting in a partial manner during the time when the original counting took place. In other words, until the application was made for recount there is no suggestion that the Returning Officer acted in any manner which could have conveyed the impression that she was in any way interested in the success of respondent No. 1 in the election nor has it been shown that the Returning Officer was related or connected in some manner with respondent No. 1. All that has been suggested is that respondent No. 1 was an Advocate who had been President of the Bar Association for many years and was an influential member of several organisations e. g. District Development Committee, convener of Bharat Sewak Samaj etc. and in that capacity he must have come into contact with the Returning Officer and must have been well known to her. This was, however, denied by the Returning Officer. Even if it be assumed that respondent No. 1 had a formal acquaintance with the Returning Officer it does not follow in the absence of any other evidence that she was either amenable to his influence or was prepared to do all that has been attributed to her to further the interest of respondent No. 1 in the election.
28. Mr. Rameshwar Dayal has next sought to support his contentions on these points by referring to the evidence which, according to him, establishes that an application which, as alleged by him, was the second application of respondent No. 1 for recount and which had been filed sometimes before 4 A. M. on 26th February 1962 had been secreted away and was not to be found on the record. It has further been asserted by him that the order for recount which was made by the Returning Officer at about 4 P. M. was made on that application and not on the first application which had been filed at mid-night and on which it now actually appears. A great deal of reliance has been placed on an application filed by Bikram Singh, the election agent of the appellant, at 4-10 A. M. on 26th February 1962 (Exhibit P. 110) in which there is a mention of the first application of respondent No. 1 and an objection was taken to his filing a second application, it being said that the recounting had already been done of certain tables which was all that was demanded in the first application. The Returning Officer stated that she did not remember whether this application had been presented to her or not and according to her it might have been presented to some other official who was there. The next document on which reliance has been placed is Exhibit P. 80 which was an application made by Bikram Singh on 26th February 1962 at 4-50 A. M. in which it was stated that since the Returning Officer had allowed and accepted 'the later application' of respondent No. 1 it was requested that the proposed recounting may be suspended and adjourned till an appeal had been filed to the Chief Electoral Officer. The order made by the Returning Officer on this application was--
'You may consult the Chief, if you like. I am to go according to the directions of Law and Commission.'
The Returning Officer was questioned with regard to the words 'later application' of respondent No. 1 in Exhibit P. 80 and asked whether it did not occur to her that that was a false assertion. Her reply was that it did but she did not repeat the statement in her order because her order was concerned only with the demand of suspension and adjournment of recounting. She further stated that being very busy at that time she did not bother about such an assertion which according to her was obviously false. At 5-15 A. M. on 26th February 1962 Bikram Singh presented another application to the Returning Officer saying that according to Rule 63(2) a recount could only be ordered after the announcement of the result. It was requested that the result be announced before the recount which had been ordered on respondent No. 1's 'later application'. The order made by the Returning Officer on this application was to the following effect:--
'Announcement of the result will not be final, because there is already one application lying with me for recounting of the votes, which I am required to entertain till justice is done.'
The only question which was asked from the Returning Officer relating to this application was:--
'Please look to Exhibit P/81 which was presented to you at 5-15 A. M. on February 26, 1962 and the same assertion is made in this application. Did you notice (it-sic) at the time of passing the order?'
The answer given by her was:--
'The application says so. I have already stated that I was very busy. I did not bother for such assertions which are obviously false.'
29. Reference has also been made to Exhibit P. 87 which was an application filed by Bikram Singh on 26th February 1962 and a subsequent application dated 28th February 1962 addressed to the Chief Election Commissioner, Exhibit P. 118, from which it is sought to be shown that clear assertions had been made by him about a second application having been filed by respondent No. 1.
30. The other set of documents on which reliance has been placed by Mr. Rameshwar Dayal may next be discussed. It is claimed that a copy of the index of proceedings in the counting hall had been made out by Bikram Singh when he inspected the record from 27th to 29th March 1962. In a previous part of the judgment reference has been made to this copy which was filed as Annexure 'A' to the election petition. In that copy it is mentioned that at 4-30 A. M. an application was made by respondent No. 1 on 26th February 1962 'for recounting of whole' on which the Returning Officer made the order allowing it. Respondent No. 1 also filed a certified copy of this index which was prepared on 9th April 1962, Exhibit Rule 32, in which the heading was different viz. index of the file containing proceedings carried out in the counting hall, Narnaul. In this index there was no mention of any such application having been filed by respondent No. 1 at 3-40 A. M. The suggestion of Mr. Rameshwar Dayal is that during the interval between 29th March 1962 and 9th April 1962 respondent No. 1 who had become a Minister by then had visited Narnaul and had access to the record which was tampered with. The original indeed in whatever form it existed and with whatever entries it contained was subsequently not traceable. From that also it is sought to be shown that it must have been with the connivance and knowledge of the Returning Officer that the original index disappeared because it contained a definite mention of the second application filed by respondent No. 1 regarding the existence of which both he and the Returning Officer were now interested in denying.
The Returning Officer stated that she could not say whether there was any file with the caption 'proceedings in the counting hall.' She admitted that there was no such file among the papers summoned from her. She also admitted having received an application dated 4th April 1962 by Bikram Singh for inspection of the election record which she stated was allowed on that very day. She was questioned about the visit of respondent No. 1 in his official capacity from 29th March 1962 to 3rd April 1962 and the answer given by her was that she would be in a position to give a reply only after seeing the tour programme of respondent No. 1 which was lying at the office of the Deputy Commissioner. She further said that she might have met respondent No. 1 during his official tour in her official capacity. She denied having showed all the papers relating to Narnaul Assembly Constituency elections to respondent No. 1 in her private capacity but stated that the papers were shown to him in her official capacity. She emphatically denied any suggestion that the second application dated 26th February 1962 alleged to have been filed by respondent No. 1 at 4-15 A. M. had been removed from the file or that any other papers had been secreted away.
31. The other set of documents and evidence on which reliance has been placed by Mr. Rameshwar Dayal are these. Exhibit P. 84 is an application dated 4th April 1962 filed by Bikram Singh in which it was stated that on inspection the cover was found to be entitled 'counting of the ballot papers in Narnaul Assembly Constituency' and the index of the file had been changed and substituted by another. It was further stated that the second application of respondent No. 1 was missing from the file and that on his first application a second order was found written which was not in existence when the previous inspection had been made. The suggestion in this application clearly was that the second order which is to be found on Exhibit P. 78 pursuant to which the recount took place was a forgery as the original order which had been made in the presence of the parties was on the second application of respondent No. 1 for recount which had now been surreptitiously removed. The Returning Officer wrote a note on this application saying--
'I do not have any other application excepting the one placed before you now.'
These very allegations were repeated in an application addressed by Sat Mandan son of the appellant to the District Magistrate, Exhibit P. 107, on the same date. The Returning Officer sent a reply on behalf of the Deputy Commissioner dated 5th April, 1962, Exhibit P. 85, saying that the aforesaid complaint had been filed. On 5th April 1962 the appellant addressed an application to the Election Commission, Exhibit P. 109, in which the same allegations were repeated, apart from other matters. Narendar Nath (R. W. 3) the Assistant Returning Officer, said that a memorandum of presentation of applications by different persons during the course of counting giving time of presentation of such applications had been prepared and it was something similar in form to Annexure 'A' to the petition. The memorandum gave the time, the date and the nature of the application and the entries therein were made simultaneously with the receipt of the application. From all this evidence it is sought to be established that there was an index which had at first been substituted by another index from which the entry relating to the second application and the order made on it by the Returning Officer had been omitted and subsequently the index itself disappeared so as to prevent the Tribunal from examining the correctness or otherwise of the allegations made by the parties.
The assertions which had been made all along right from the beginning by Bikram Singh in all the applications about the existence of a second application could not have been made unless in fact such an application had been filed by respondent No. 1 and was on the record. It is said that respondent No. 1 had access to the records when he was a Minister and from that it followed that he was in a position to tamper with the same and since it was clearly tampered with which was established by the disappearance of the admitted document, namely, the index, it should be held that all this had been done with the help and connivance of the Returning Officer. From such a conduct it should further be inferred that she must have gone out of the way to help respondent No. 1 when she invalidated a number of votes which had been cast in favour of the appellant after she had wrongly and improperly ordered a recount. A good deal of criticism has been levelled at the statement of respondent No. 1 by Mr. Rameshwar Dayal and it is submitted that no reliance should be placed on his evidence.
In particular, our attention has been invited to that part of the statement of respondent No. 1 where he was asked questions relating to his visit to Narnaul from 29th March 1962 to 1st April 1962. He was asked whether he had been shown the entire election record by the Returning Officer. He denied that the records had been shown to him though he admitted having gone to the Court of the Returning Officer on 29th March. Now, although there is a clear contradiction between the statement of the Returning Officer and respondent No. 1 with regard to the showing of the records to him when he visited Narnaul after his appointment as a Minister and there does not seem to be any justification for not accepting the statement of the Returning Officer on that point but that will not establish that the documents in question had been secreted away either by him or with the connivance of the Returning Officer. It is admitted that the records had to pass through several hands for the purposes of preparation of copies etc., and unless there is a clear and definite evidence to the effect that they remained all the time in the sole custody of the Returning Officer, it cannot be said to have been established beyond doubt that the Returning Officer was guilty of allowing removal or substitution of documents e. g. the index.
32. As regards the case of the appellant that a second application had been filed by respondent No. 1 for recount, it is very difficult to believe why such an application came to be filed at all. He had filed an application by mid-night of 25/26th February 1962 for a recount under Rule 63. There would, therefore, be no reason for filing another application unless the case of the appellant is accepted which has already been rejected. According to the appellant, the necessity for filing a second application arose because all that respondent No. 1 wanted in his first application was a recount of a few tables. This is wholly incorrect as there is no such prayer in that application and it clearly asked for a total recount. Even if respondent No. 1 agreed to have a recount of some tables by way of a sample check it did not mean that he had abandoned his prayer contained in his original application for a total recount. In addition to what has been stated above, some of the reasons which have been given by the Tribunal while rejecting this contention may be noticed. The Returning Officer as well as the Assistant Returning Officer had maintained that only one application for recount had been filed by respondent No. 1. The counting agents of some of the contesting candidates had also stated that no second application for recount had been made. Respondent No. 1. is a lawyer of standing and has had previous experience of elections and it does not stand to reason why he would commit the indiscretion of filing another application for recount when one was already pending and awaiting disposal. The assertions made by Bikram Singh in the previous applications can hardly be regarded as evidence of much value as being those of an interested party. Once it is found that no such second application had been filed by respondent No. 1, as has been alleged, the allegation about the second order on Exhibit P. 78 having been forged stands disproved.
33. It may be mentioned that Mr. Rameshwar Dayal has laid a great deal of stress on certain discrepancies between the statements of the Returning Officer and respondent No. 1. He has also pointed out that a careful perusal of their statement shows that they have not given correct version of all that happened during the material period. Even if there are certain infirmities in their statements, the decision of the various points which have arisen does not depend entirely on their oral testimony and therefore the appellant cannot succeed merely by showing that in some respects their statements do not carry conviction. According to him, the Returning Officer showed an extraordinary zeal in doing the entire recount herself which involved a great deal of strain inasmuch as she had been working from the morning of 25th February, 1962, when the first counting commenced until the following morning when she got too tired and the Assistant Returning Officer took over from her on the 26th February, 1962. This, however, does not establish that she was working for the benefit of respondent No. 1. It appears that the Returning Officer took her duties quite seriously and since she did not probably have much experience before she wanted to carry out her work with a good deal of zealousness and enthusiasm. The orders made by her also show that she was not experienced enough and to my mind it is most unfortunate that while selecting or appointing Returning Officers due regard is not paid by the authorities to the experience and standing in service of a Returning Officer particularly when the elections now-a-days to the State Legislatures are very hotly contested.
34. In the result, the appeal fails and it is dismissed.
35. Respondent No. 1 has filed cross-objections in respect of costs. The Election Tribunal while dismissing the election petition considered that ends of justice would be met by directing the parties to bear their own costs. It has been urged on behalf of respondent No. 1 that the Tribunal had failed to notice and give effect to the mandatory provisions of the Act. Section 120 provides that costs including pleaders' fees shall be in the discretion of the Tribunal. A proviso has, however, been added by the Representation of the People (Amendment) Act, 40 of 1961 in the following terms:--
'Provided that where a petition is dismissed under clause (a) of Section 98, the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the Tribunal shall make an order for costs in favour of the returned candidate.'
It is not, and indeed, cannot be denied that the petition in the present case was dismissed by the Tribunal under the aforesaid provision. It appears that the Tribunal did not notice this provision and that is probably the reason why it left the parties to bear their own costs. The cross-objections are, therefore, allowed and it is held that respondent No. 1 would be entitled to the costs incurred by him in contesting the petition the amount being assessed at Rs. 1500/00.
36. In view of the entire circumstances the parties shall bear their own costs both in the appeal and the cross-objections in this Court.
37. I agree that this appeal fails. I should, however, like to say a few words on an aspect which appears to me to be of some importance at this stage of our democratic progress.
38. Serious allegations have been made by the appellant in imputing partiality to the Returning Officer during the counting of votes. She has also been charged with having made incorrect notes and even to have tampered with and helped in the removal of a part of the record. After declaration of the result of election the records are alleged to have been improperly made available to the respondent who was holding the office of a Minister. This of course implies a serious aspersion on the respondent as well. On this point, I regret to note that the sworn statements of the Returning Officer and of the respondent are not easy to reconcile. The appellant's learned counsel has forcefully urged that the respondent's denial does not carry conviction and that the Returning Officer having made available the records to the respondent has wrongly added that the records were shown officially. This explanation, it is strongly pressed before us, is unsustainable on the record. From the respondent's denial the petitioner's counsel seeks to infer guilty conscience. It is argued that direct evidence of tampering with records can seldom--if at all--be secured, and largely (SIC) is on the basis of circumstantial evidence alone that findings on such allegations are invited. In the absence of any plausible suggestion as to how the original index was removed from the record while in official custody, the respondent, according to Shri Rameshwar Dayal, should be held to be responsible for it. The respondent's learned counsel has on the other hand with equal vehemence contended that the statement of the Returning Officer on this point is not correct and that the respondent's denial deserves to be accepted as true. According to the counsel, if the respondent had actually inspected the records, there was no point in denying it, because, after all, the Returning Officer has only stated that the records had officially been shown to the respondent which is not at all objectionable. It is further pointed out that on the existing record, it cannot be held beyond reasonable doubt that the respondent was responsible for tampering with the record.
39. In answer to the respondent's submission that at the time of counting of votes he was not a Minister and, therefore, did not wield much influence, the appellant has argued that in addition to being a lawyer and a person of some political and social importance, the respondent was a candidate of the ruling party, and a junior and inexperienced Government servant like the Returning Officer could not dare do anything which might incur the displeasure of the ruling party. Such Government servant, the argument proceeds, can scarcely maintain strict impartiality between a ruling party's candidate and his rival contestant.
40. I must confess, it is distressing to find, that uptil now our democratic set-up should not have adequately adjusted itself to the Rule of law which is one of the basic pillars of our Constitution. I am constrained to make this observation because this is not the solitary or the first case in which allegations have been made against the impartiality of a Returning Officer during the 1962 elections and most seriously pressed in this Court in all earnestness. It is true that a defeated candidate is apt recklessly to impute partiality to the Returning Officer, but at the same time I do not think it can be safely asserted, that all Returning Officers can be depended upon loyally to display firm political and personal detachment and unquestionable integrity required of them in discharging their official duties, or that all candidates in such elections have such unflinching faith in the moral aspect of democratic mode of life as to be proof against the human frailty and temptation of exercising undue influence over the Returning Officers with the object of winning elections.
41. The country at the present moment is passing through a critical period of our democratic existence and is faced with almost a desperate situation: It poses a challenge to our national character, to our patriotism and indeed to Republican Democracy itself. Government service in a representative democratic set-up like ours which is constantly subject to moral judgments, demands capacities which an authoritarian system of Government may consider irrelevant and even inimical. Competence and skill alone may not be enough to deserve a responsible public office, nor even personal magnetism or other traits of courage and bravery. Indeed, no combination of talents can ever suffice unless there is a firm moral character to control them. It must always be remembered that in the very conception of democracy, there is a moral aspect. In Ram Singh v. Dal Singh, F. A. O. No. 4-E of 1964 (Punj), this Court had also an occasion to advert to this aspect. Speaking for the Bench, I said that the moral aspect in the concept of democracy based on Rule of Law postulates, inter alia, a reasonable standard of truth, fair-play, obedience to law and tolerant spirit which also appears to run through the entire fabric of our law of elections. A reasonable standard of integrity and impartial objectivity in the Government service is implicit in this postulate. This moral standard is, in my view, neither unrealistic nor Utopian; it is, as I view it, reasonable and practicable. At the present stage of our march towards a healthy welfare democratic Republic, the basic fundamental need, so far as State administration goes, is firmness and integrity and realisation of, and unflinching loyalty to, the true democratic principles on the part of the services and the people's representatives entrusted with the responsible, solemn and sacred task of managing the affairs of the State.
42. Recognising the importance of sense of impartiality in our services, our Constitution has indeed ensured security of tenure against mala fide punishment, and it is well known that Government servants cannot be hired and fired arbitrarily or at the private and personal whim or caprice of anybody, however, great the power entrusted to him. Such security of tenure cannot but have, as indeed it is intended to have a healthy effect on the mental processes involved in the making of a decision.
43. The Returning Officers, keeping in view the importance of the functions they are called upon to perform, must imbibe the spirit of judicial independence and consistency in discharging their duties so that they can keep their mind scrupulously insulated from the inequities of rank, fame, fortune or power: This trait of judicial mind must, if we want to sustain our democratic way of life, get rooted in our administrative system, particularly so far as functions like those of the Returning Officers are concerned. I may observe here that there is nothing more damaging to our democratic set up and more disloyal and inimical to our Constitution than to secure election to a Legislature by corrupting the Returning Officer and diverting him from the right path of integrity and impartiality. This conduct is doubly cursed: It corrupts a public servant who is expected to be upright and honest and it returns to the Legislature one who values and utilises corruption and partiality in the public services. Such a legislator can scarcely be capable of appreciating the values of uprightness, integrity and honesty in the public administration. Can anything be more disastrous for our constitutional set-up and indeed for our very democratic freedom It must never be forgotten that in the final analysis it is on the purity of our elective process that honesty and integrity of our entire governmental set-up depends.
44. It is, therefore, 'of the utmost importance that in appointing Returning Officers scrupulous care is taken to appoint conscientious officers with experience and of confirmed integrity possessing firm moral character and also having adequate knowledge of law governing their official duties. The Returning Officers should be conscious of the fact that conduct of elections fairly and strictly in accordance with law is of the utmost importance because too many election petitions, apart from being expensive to the public exchequer and to the contestants, also reflect discreditably on the efficiency of the administration.
45. In so far as the conduct of the candidates is concerned, speaking for my part, solution of this problem depends basically on how soon the society educates and trains itself in the truly democratic way of life so that traditionally and instinctively the people begin to abhor as anti-social and anti-national, the conduct which secures membership of Legislatures by corrupting the Returning Officers. Public conscience and eternal vigilance, being in my opinion the only solid foundation for a healthy democracy, the quality of our democratic existence will largely be measured by the extent of our success in this direction.
46. It may be remembered that if the people in general fail to adopt the democratic way of life the high principles contained in our Constitution would remain mere idle words and empty phrases, for, in the ultimate analysis it is the society itself which has to work and uphold the Constitution. In the event of such failure on the part of the society, neither the executive nor the legislative nor the judicial wing of our set-up singly or collectively, would be able to sustain and enforce the Constitution. It is, therefore, of the primary importance that people are properly and effectively trained and educated in the democratic way of life and are taught to remain eternally vigilant. Our democracy will succeed and endure only if there is adequately educated and vigilant public conscience to which end necessary priority should be given in all quarters. Any further neglect or attitude of indifference and resignation in this respect would indeed be suicidal for our constitutional set-up.
47. With these observations, I concur in the order proposed by my learned brother.