H.L. Anand, J.
(1) By this election petition u.s. 81 of the Representation of the People Act, 1951, for short, the Act, Dr. V. V. Mahajan, a nominee of the B.J.P. and a defeated candidate, calls in question the election of Savaran Singh Josh, respondent No. I, a nominee of the Congress-I, to the Metropolitan Council of Delhi from Gandhi Nagar Metropolitan Council constituency No. 30 on the grounds that the result of election, in so far as it concerns the returned candidate had been materially affected by the improper reception, refusal or rejection of votes and reception of votes which were void and on account of non-compliance with the provisions of the Constitution, the Act and the Rules and orders made there under. It is further alleged that the result of election in favor of the returned candidate is based 'on a miscount and erroneous counting'. The election of the returned candidate is sought to be voided on-the aforesaid grounds u/s 100(1) (iii) and (iv) of the Act. The challenge to the election being confined to the legality, validity and propriety of counting, petitioner claims a recount, including re-examination of rejected ballot papers and contends that on a reconsideration, rescrutiny of all the ballot papers, it would be found that the petitioner had polled a majority of valid votes and is entitled to be declared elected to the Council from the said constituency.
(2) Main contestants at the Poll were the petitioner, and the returned candidate. Respondents 2 and 6 were the other candidates at the election and, - though duly served, had stayed away from the proceedings which have been ex parte as against them. Poll was held on January 5,1983 Along with the election to the other constituencies. There were in all 58 polling stations in the constituency. Counting of votes took place on February 6, 1983. The returned candidate was declared elected by a margin of 36 votes, the returned candidate having secured 12567 votes as against 12531, said to have been polled by the petitioner: 681 ballot papers were rejected as invalid, The other candidates at the election secured votes which varied from 113 to 258. The petitioner does not challenge the process of eection, other than the counting of voes, compilation and declaration of the result and the principal plea of the petitioner thereforee, is for a fresh scrutiny of each of the ballot papers, including the rejected ballot papers, and a fresh compilation and declaration of the result in accordance with law.
(3) The petition is based on the following grounds :
(A)Petitioner had polled a majority of valid votes and as such was entitled to be declared elected but in flagrant violation of the provisions of Sections 64 to 67A of the Act and of Rules 52 to 67 of the Conduct of Election Rules, 1961, Jagmohan Lal Jain, the Assistant Returning Officer, who was officiating for the Returning Officer in his absence, granted Certificate of election in favor of the returned candidate, although he had polled only a minority of valid votes. The result and the grant of Certificate were, thereforee, void; (para 15). (b) The result is based on a 'mis-count and erroneous counting, improper reception, refusal or rejection of votes and reception of votes which were void'. These have materially affected the result of election in so far as it concerns the returned candidate; (para 16)
(B)Under the Rules, postal ballot papers had to be counted first but these were counted only at the end; (para 19).
(C)According to the entries in part -II of Form 16 in respect of each of -the 58 polling stations, total number of ballot papers found in all the ballot- boxes were of the order of 27087 out of which 681 were rejected as invalid. According to the said entries, petitioner polled 12760 votes against 12458 polled by the returned candidate. The petitioner, thereforee, ought to have been declared, elected in terms of the aforesaid entries by a margin of 305 votes. The correct result based on entries in Part-11 of Form 16 is set out in an Annexure to the petition marked-A, since exhibited as Ex. Public Witness 4.3. In spite of this, certificate of election in favor of the returned candidate was granted by the Assistant Returning Officer which is wrong and liable to be set aside entitling the petitioner to be declared elected; (para 22).
(D)Form-20 was prepared by the Returning Officer without reference to the entries in Part-11 of Form 16 and the result was announced declaring the petitioner to have secured 12531 votes and the returned candidate to have secured 12567 votes. The result declared and the entries in Form-20 on the basis of which it was declared, were inconsistent with the corresponding entries in Part-II of Form
(E)ONwhich the result per force had to be based. Form 20 prepared by the Returning Officer was absolutely wrong and contrary to the provisions of Rule 56 of 'the Rules and is as such void; (para 24).
(F)A recount will vindicate the stand of the petitioner that the petitioner led the returned candidate by a margin of over 305 votes; (para 25).
(G)Countng was in contravention of Section 64 to 66 of the Act and of Rules 51 to 66 of the Rules in that more than 200 ballot papers, duly marked in favor of the petitioner, were mixed with the bundles of votes of the returned candidate, and 300 ballot papers duly marked in favor of the petitioner, were improperly rejected and held invalid. About 100 ballot papers marked in favor of the petitioner were mixed up in the bundles of votes of other candidates. About 250 ballot papers, which were liable to be rejected were held valid, and counted in favor of the returned candidate. Petitioner and his counting agents were not allowed to note the Seriall nos. of these ballot papers on the ground of secrecy of ballot. Even otherwise, in examining and scrutinising the ballot papers or considering their validity or otherwise, the Returning Officer and the counting supervisors contravened the relevant Rules; (para 26).
(H)The result of election declared in favor of the returned candidate was an outcome of pressure exercised on the Returning Officer by Jagdish Tytler, Arun Nehru, J.K.Jain, Cong-I Members of Parliament, and Shri H.K.L.Bhagat, Central Minister, who came to the counting hail during the course of counting, without any authority of law, with a view to influence the mind of the Returning Officer to the prejudice of the petitioner and in favor of the returned candidate; (para 27).
(I)The Returning Officer had sent a written intimation to the candidates, including the petitioner, that counting will commence at 11 A.M. Countig was, however, not commenced as intimated and the petitioner was told by the Returning Officer that it will be commenced in the evening. On being required to give written intimation of the change of timings, the Returning Officer declined. The Returning Officer, however, orally said. that counting would be commenced at 8 P.M. When the petitioner, Along with his counting agents, reached the counting centre at 8 P.M., he found, to his surprise, that counting had already started at 7.30 P.M. This deprived the petitioner of his right to be present at the time of counting. This would entitle the petitioner to a recount, including rescrutiny and reconsideration of the rejected ballot papers; (para 28).
(J)Petitioner and other candidates were informed that counting will take place on 7 tables thereby entitling the petitioner to bring 7 counting agents. Petitioner brought 7 counting agents with him but found that the counting, which had already commenced, was being conducted not on 7 but on 15 tables. 7 counting agents could not possibly oversee the process of counting on 15 tables. This deprived the petitioner of the right to supervise the process of counting. The counting supervisors and the staff on Tables Nos. 1, 4, 6, 7, 8, 9 and 12 was, particularly, biased against the petitioner and mixed up the ballot papers, duly marked in favor of the petitioner, in the bundles of votes of the returned candidate. Number of such ballot papers would be at least 200; (para 29).
(K)More than 100 ballot papers marked in favor of the petitioner were mixed up in the bags containing ballot papers marked in favor of candidates other than the returned candidate; (para 30)
(L)At about 9.30 p.m., there was an electricity failure. There was no stand-by arrangement, except some candles and the candle-light was insufficient to enable proper counting or proper supervision of it. The request to suspend the counting process till the petromax was requisitioned was turned down. The counting process continued for sometime in the dark and for sometime in candle-light. It thus lasted for about 20 minutes. During the period, mischief was done by the Returning Officer and the counting staff in counting to the detriment of the petitioner; (para 31).
(M)Out of a total of 681 rejected ballot papers, more than 300 ballot papers, which were valid, and marked in favor of the petitioner, ought not to have been rejected. Most of the ballot papers were rejected without allowing the counting agents of the petitioner an opportunity to inspect the ballot papers, nor were the petitioner and his election agent or counting agents allowed an opportunity to note down the Seriall nos. of such ballot papers on the ground of secrecy of ballot. Petitioner is, thereforee, -unable to give the Seriall nos. of the improperly rejected ballot papers; (para 32).
(N)Large number of ballot papers, which were liable to be rejected., were improperly accepted as valid and considered in favor of the returned candidate. Some of the Seriall nos of such ballot papers, which the petitioners counting agents could note down, are 036113, 036076, 044247 and 050355. Seriall nos. of other ballot papers could not be noted because of the prohibition imposed by the Returning Officer. All these ballot papers would . require rescrutiny, re-examination and recounting; (para 33).
(O)The tendered ballot papers required to be counted. Large-scale impersonation was also practiced by the party workers of the returned candidate and the votes cast in the names of those who had been issued the tendered ballot papers deserved to be excluded from consideration. A written request was made to the Returning Officer for are count before the declaration was made in favor of the returned candidate. The Returning Officer kept the application assuring that he would consider it after compilation of the result, The Returning Officer took the petitioner away from the counting hall on the pretext that he would consider the matter in another room away from the counting hall. In the said room the Returuing Officer denied to show the compilation of the result turn the petitioner. The Returning Officer also allowed the supporters and workers of the returned candidate entry into the said room. The petitioner was told that there will be no 're-totalling' and the petitioner will not be allowed to make 'any checking or totalling'. The Returning Officer prepared 'a chart of his own' which was 'fictitious and not in accordance with the figures of votes entered in Part Ii of Form-16'. The petitioner was 'bluffed' by the Returning Officer and fraud was played on the petitioner and the petitioner was made to sign-the certificate of election under 'coercion and fraud' played by the Returning Officer, and the Respondent No. I and hisWorkers Subsequently, the petitioner telegraphically informed the Chief ' Election Commissioner of India indicating some of the allegations, (paras 34, 35 and 36).
(4) The petition is opposed by the returned candidate who has, in his written statement, inter alia, denied allegations of illegalities, irregularity, impropriety or mistake in the conduct of counting or in the compilation of the result, The returned candidate also challenges the claim of the petitioner to a recount or the liability of, the election of the returned candidate being voided i or the right of the petitioner to be declared as having been duly elected. Alternatively, the returned candidate has given notice pursuant to proviso to Section 97 of the Act of his intention to give evidence to prove, if necessary, that if the petitioner had been a returned candidate, the election of the petitioner would have been declared void on the grounds set out in the statement enclosed with the said notice. The returned candidate seeks the dismissal of the petition and claims costs.
(5) In his-replication, the petitioner has, by and large, reiterated the averments made in the petition. The petitioner has also contested the averments made in the statement enclosed with the aforesaid notice.
(6) On the pleadings of the parties, following issues were framed:
'1. Whether there is non-compliance of the provisions of Section 83 of the Representation of People Act, 1951, as alleged; If so, to what effect?
2.Whether the petitioner is estopped from challenging the correctness of the votes for the reasons alleged ?
3.Whether the petitioner is entitled to are-counting of all the ballot papers, including re-examination, rescrutiny and re-compilation of the result of election ?
4.Whether the election of the returned candidate is liable to be declared to be void ?
5.Whether the petitioner is entitled to be declared as having been duly elected?
(7) Pending hearing of the petition, the consideration of the notice u/s 97 of the Act has been held over. In support of rival contentions, parties produced both oral and documentary evidence. At the instance of the petitioner, the entire record of the election in respect of the constituency was produced in this Court and the same having been found to be duly looked and sealed was ordered to be kept in the custody of- the Joint Registrar of this Court. ' The petitioner, besides examing himself as Public Witness 4, examined Public Witness I, S. K. Kaura, Assistant in the Election Commission of India, Public Witness 2, S. C. Jain, Deputy Chief Electoral Officer, Delhi, Public Witness 3, S. K. Mehra, Returning Officer, Public Witness 5, Balbir Singh, Assistant Returning Officer, Public Witness 6, Sunil Mehra. Officer-in-charge of the election of the petitioner, and Public Witness 7, Suresh Kumar Bhardwaj, one of the counting agents of the petitioner. The returned, candidate besides examining himself as Public Witness 1, produced Public Witness 2, Jagmohan Lal Jain, the Assistant Returning Officer, and Public Witness 3, Manmohan Singh, elder brother of the returned candidate, who was one of his counting agents. In addition to the record of the election, all the Forms 16, Forms 20, the application of the petitioner for a recount, and the telegram sent by the petitioner to the Election Commission of India, were produced and exhibited at the trial of the petition.
(8) I have also heard learned counsel for the 'parties at considerable length on the question if on the existing material, the petitioner is entitled to the election of the returned candidate being voided, without anything more, and the further question as to the circumstances which may justify a recount, as indeed, the question if; on the material on record, the petitioner is entitled to an order of recount. There was also considerable controversy if before an order of recount this Court may inspect the. records to see if there were loose sheets of paper containing the result of counting in respect of different polling stations before Forms 16 Part Ii and Forms 20 were compiled. There was also considerable controversy if the recount should be limited to the ballot papers relating to certain polling stations or only of the rejected ballot papers or should extend to all the ballot papers, including the rejected ones and the re-counting should be comprehensive, including not only a physical recount, but an examination and scrutiny of each of the ballot papers, as envisaged by the Rules. Some of the questions of law raised, as indeed, some of the allegations of illegality, impropriety and irregularity, were common to this petition and another petition by a candidate of the same party. Both the petitions were contemporaneously tried. Arguments in the other petition concluded earlier but the consideration of the various questions were held over until the arguments', concluded in the present petition.
(9) My conclusions on the various issues, in so far as they can be determined at this stage, are as follows Issue Nos. 1 and 2
(10) These issues which arise out of paras 1 and 2 of the preliminary objections taken in the written statement of the returned candidate are based on the picas of the returned candidate that the petition did not contain sufficient particulars on which the election of the returned candidate was sought to be voided; that petition was vague and did not comply with the requirements of Section 83 of the Representation of the People Act; and that the petitioner was estopped from challenging the election on the ground of. any illegality, impropriety or mistake in the counting of votes as the entire process of counting had been carried out in the presence of the petitioner, and his counting agents, and the result had been announced after the petitioner and/or his election agent had checked the correct of the result sheet in Form 20 and had also accepted the announcement made by the Returning Officer. While the question as to the sufficiency of particulars may have relevance to the controversy between the parties as to the entitlement of the petitioner to an order of recount, and I would deal with this aspect at its proper time, this objection was not pressed in the Form in which it was raised in the preliminary objections, which led to the framing of issue No. 1. Even otherwise, whatever be the interaction between the particulars and the claim of recount, the material facts in the petition would not justify noneuiting of the petitioner on the ground of non-compliance with the provisions of Section 83 of the Act. The objection with regard to estoppel was also not pressed. Even otherwise whatever be its effect on the claim to recount, the participation of the petitioner and/or his election and/or counting agents in the process of counting could not operate as an estoppel. Subject to the consideration of the question as to the justification for a recount, these issues are accordingly decided against the resumed candidate. These issues are accordingly answered in the negative. Issue No. 4
(11) Issue No. 4, is based on the claim of the petitioner that the election of the returned candidate is liable to be. voided. The decision of this issue would depend on the way I look at the question as to the justification of the recount, forming subject-matter of issue No. 3, and a recount, if any. The decision of this issue would, thereforee, abide the determination of issue No. 3. Issue No. 5
(12) This issue is based on the claim of the petitioner that in addition to the relief of voiding the election, petitioner is also entitled to be declared as having been duly elected. Petitioner would be entitled to such a declaration only after the petitioner succeeds in the claim for a recount and that too if the recount justifies a declaration, in favor of .the petitioner on the ground that the petitioner had secured a majority of votes. The outcome of this issue would, thereforee, depend not only on the decision as to the justification for a recount, but also on the outcome of the recount, if any. If a recount is held to be unjustified, or if on a recount, the petitioner does not secure a majority, this issue would not survive. Moreover, in view of the pendency of consideration of the allegations contained in the statement annexed to the notice u/s 97 of the Act, the decision of this issue has to be deferred. The decision of this issue is, thereforee, deferred until the decision of the issue With regard to a recount, the outcome of the recount, and depending on the outcome, the consideration of the allegation and the evidence, if any, that may be produced in support of the allegations contained in the statement annexed to the aforesaid notice. Issue No. 3
(13) This issue is based on the claim of the petitioner that on the grounds set out in the petition, petitioner is entitled to a recount. On August, 22, 1983, petitioner closed his case and before the recording of evidence of respondent No. 1 commenced, petitioner made .an application on September 3, 1983. being I.A. 3564/83, praying; on the allegations made in the petition, and reiterated in the application, that the petitioner and his agents be allowed to inspect all the ballot papers, including the rejected ballot papers and 'their serutiny and reexamination', the result of election after such 'inspection, scrutiny. re-examination', be re-compiled; the election of respondent No. 1 bevoided; and the petitioner be declared as having been duly elected. In the course of the application, the petitioner contended that on the basis of documents already on record, which have not been disputed, petitioner was entitled to be declared elected by a margin of 305 votes, and the election of the respondent is liable to be voided. In the alternative, it was urged that the petitioner was entitled to inspection and recount of ballot, papers and to the declaration of the result of election on the basis of such recount, scrutiny and re-examination. It was also urged that in the course of the petitioner's evidence, petitioner bad made out 'more than a prima facie case' for inspection, fresh scrutiny and a recount. The application was opposed. The application was accordingly listed for hearing but parties eventually agreed on October 10, 1983 that the hearing of the application be deferred 'until the conclusion of the evidence of respondent No. 1'. It was eventually agreed, as in the other petition, which was contemporaneously heard, that the application, as indeed, the plea for inspection and recount be considered Along with the main petition.
(14) Before a consideration of the various allegations on which the petition is based, and the material on record, which may justify an order of inspection of the ballot papers or an order of recount, and the eventual order with regard to the validity or otherwise of the election of the returned candidate, it would be useful to notice the relevant constitutional and statutory provisions. Under Article 324 of the Constitution, the superintendence, direction and control, inter alia, of the conduct of all elections to Parliament and to the Legislature of every State is vested in the Election Commission. The Act. provides for the conduct of elections to the House of Parliament and to the Houses of 'the Legislature of each State, as also the disputes arising out of or in connection with such elections. Section 169 of the Act empowers the Central Government to make Rules for carrying out the purposes of the Act. In exercise of the aforesaid powers, rules called the Conduct of Election Rules, 1961 were promulgated. Neither the Act nor the Rules applied to the election to the Metropolitan. Council but the relevant provisions of the Act and the Rules were extended to the said election by virtue of Section 9 of the Delhi Administration Act. Section 64 of the Act provides for counting of votes. Section 83 of the Act deals With election petitions and, inter alia, provides that an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies. Section 97 deals with recrmination when seat is claimed by a defeated candidate in addition to a deciaration that the election of the returned candidate is void. Election can be declared void on the grounds set out in Section 100 of the Act and according to Section 100(1)-(d)(iii) and (iv), the election of a returned candidate is liable to be voided if. the result of election in so far as it concerns the returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or of the Act or of any Rules or orders made there under. Rule 38 of the aforesaid Rules provides for issue of ballot papers to electors and, inter alia. provides that at the time of issuing a ballot paper to an elector, the polling officer shall obtain the signature or thumb impression of that elector on the counterfoil. Rule 44 provides for sealing of ballot boxes after poll and according to Rule 45 the presiding officer shall at the close of the poll prepare a ballot paper account in Form 16 and enclose it in a separate cover with the words 'Ballot Paper Account' superscribed thereon. It further provides that 'the presiding officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in the ballot paper account after obtaining a receipt from the said polling agent thereforee and shall also attest it as a true copy.' Part V of the Rules deals with counting of votes, and that is the subject with which I am primarily concerned in this petition. Rule 51 deals with time and place for counting of votes and provides that the Returning Officer shall give notice of the place, date and time of counting, in writing, to each candidate or his election agent at least one week before the date of counting. It further provides that if it becomes necessary so to do, the Returning Officer may alter the date, time and place after giving notice of the same in writing to each candidate or his election agent. Rule 52 deals with appointment of counting agents and revocation of such appointments. Rule 53 regulates the admission to the place fixed for counting and, inter alia, provides that the Returning Officer shall exclude from the place fixed for counting all persons except those specified. in the Rules. The excepted categories are counting supervisors, counting assistants, persons authorised by the Commission, public servants on duty in connection with the election and Ii candidates, their election agents, and counting agents. Rule 54-A deals with counting of votes received by post and inter alia, provides that the Returning Officer shall first deal with the postal ballot papers in the manner provided in this Rule. Rule 55 provides for scrutiny and opening of votes. This Rule, inter alia, provides that before rejecting any ballot paper, the Returning Officer shall allow each counting agent present 'a reasonabe opportunity to inspect the ballot paper' but shall not allow him to handle it or any other ballot paper. It further provides 'that the Returning Officer shall endorse on every ballot paper, which he rejects, the word 'Rejected' and the grounds of rejection in abbreviated form either in his own hand or by means of arubber stamp and shall initial such endorsement. Sub-rule (7) of this Rule provides that after the counting of all ballot papers contained in all the ballot boxes need at a polling station has been completed,
'(A)the counting supervisor shall fill in and sign Part 11 Result of counting, in Form 1.6, which shall also be signed by the returning officer, and
(B)the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.'
RULE63 deals with recount of votes by the Returning Officers and, inter alia, provides that after the completion of counting, the Returning Officer shall record^ in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. Sub-rule (2). of this Rule provides that after such an announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the ground on which he demands such recount. Sub-rule (3) provides that 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.'
(15) Neither the Act nor the Rules framed under it contain an express provision, either with regard to inspection of the ballot papers, or their recount, during the pendency of an election petition. Neither of these contain any provision as to the circumstances in which or the. conditions on which an order of inspection or of a recount would be made by the Court seized of such a petition. Rule 63 of the Rules deals with recount of votes by the Returning Officer after the announcement of the result. This Rule also is quiet as to the circumstances in which or the conditions on which a plea for recount may be accepted, except to the extent sub-Rule (3) of the said Rule empowers him to 'reject it in toto if , appears to him to be frivolous or unreasonable.' The Act and the Rules do not provide a clear guidance if an order of recount, or even an inspection of ballot papers, is a prelude to the voiding of an election, or merely in aid of an eventual finding as to the validity or otherwise of an election.
(16) Courts, including the highest court, however, have bad occasions to deal with the subject of inspection and of recount during the pendency of an election petition and have laid down principles to regulate grant of an order of inspection and of recount in aid of a possible order of voiding of an election, consistently with the need to preserve secrecy of ballot and the imperative to uphold the outcome of the democratic process of an election, so long as the electoral process has been free, fair and consistent with the requirements of law. These decisions dealt with a variety of fact situations and, as always, resisted any temptation to confine in the strait-jacket of a judicially evolved definition, the circumstances which may justify the order of recount and for of inspection and, like all judicial pronouncemants, have culminated in the usual judicial cliche that the question of a recount has to be considered 'on the facts and circumstances of each case'. If is, however, possible to identify from these decisions broad guidelines and principles to be followed in determination of the question in a given case. It would, thereforee, be useful to notice some of the landmark decisions of the Supreme Court on the question.
(17) In the case of Bhim Sen, Supreme Court was concerned with the question if the High Court was justified in reversing the order of the Tribunal allowing amendment of the election petition. The election petitioner had initially urged that the Returning Officer failed to discharge his .duty of rejecting ballot papers in contravention of law and the petitioner .believed 'that the respondents could receive many void votes'. Subsequently, the ballot box was opened and it was found that 37 void votes had been counted in favor of the returned candidate. In view of the disclosure, the petitioner sought leave to amend the petition. Leave was allowed but the order was reversed by the High Court. Allowing the appeal. Supreme Court observed that 'it must be borne in mind that particulars in regard to the .allegation of this kind could be more definitely supplied only after the ballot boxes are opened and not till then. Rule 138 provides for the production and inspection of election papers. Until the said papers are produced and inspected, as provided by the Rule, it would be difficult, if not impossible, for any party to allege affirmatively how many void votes have been counted in favor of the candidate declared to be duly elected.' These observations of the Supreme Court were canvassed in the latter case of Ram Sewak Yadav (2), as laying down a general principle that an election petitioner was entitled, without making allegations of material facts in support of his plea to set aside an election, to claim an order of inspection of the ballot papers and seek. to supply the lacuna in the petition by showing that if all the votes are scrutinised by the Tribunal, it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. This reading of the decision as, however, repelled by the Court and it was held that in a proper case where the interest of justice demands it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers and that the power to order inspection may be exercised subject to the statutory restrictions about the secrecy of ballot papers. It was further observed that 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 of inspection provided two conditions are fulfillled :
'(1)That the petition for setting .aside an election contains an adequate statement of the material on which the petitioner relies in support of his claim; and
(2)The Tribunal is prima facie satisfied that an order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.'
It was, however, observed that an order for inspection 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' and that the case of the petitioner must be set out with precision supported by averments of material facts. 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 of inspection, the court added. Referring to the Act and the Rules, it was observed that there can he no doubt 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. thereforee, 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 a manner in which the ballot papers were scrutinised and opened and the votes were counted and that be had also opportunity of inspecting rejected ballot papers and of demanding a recount.' It was observed that it is in the light of the provision of Section 83(1), which requires a concise statement of material facts on which the petitioner relies, and to the opportunity which defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection 'must be considered'. It was, thereforee, observed that to support his claim for setting aside the election, the petitioner has to make 'precise allegations of material facts' which, having regard to the elaborate Rules are or 'must be deemed to be within his knowledge'. The nature of the allegations must be of course dependent upon the facts of each case but if the material facts are not stated, he cannot be permitted to make out 'a ease fishing out the evidence from an inspection of the ballot papers.' The observations of the Court in the earlier case of Bhim Sen (supra) were explained in the context of the controversy in which they were made.
(18) In the case of Dr. Jagjit Singh (3), the Supreme Court was, inter alia, concerned with the considerations to be borne in mind in exercise of power by Tribunal in allowing inspection of ballot boxes. The Court affirmed the principles laid down in the case of Ram Sewak Yadav (supra) and observed that 'vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose which the Statute has in mind' and an application for inspection must give 'material facts' which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. It was further observed that in dealing with these questions the 'importance of the secrecy of the ballot boxes cannot be ignored' and it 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 arid 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 moving or fishing inquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void.' The court, however, cautioned that 'no hard and fast rule could be laid down in the matter for an attempt to lay down such rule would be inexpedient and unreasonable.' It was further pointed out that the scheme of the Rules emphasises the point that the candidates have 'ample opportunity to examine the voting papers before they are counted and in case the objections by them or their agents have been improperly overruled, they know precisely the nature of the objections raised and the voting papers to which those objections related.'
(19) In the case of Jitender Bahadur Singh (4), the Court held that the allegations were 'vague and indefinite', no material fact had been pleaded and that 'the petitioner was present at the time of counting and yet he did not take any objection regarding the illegal rejection of the votes'. It was held 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 the case' and the Tirbunal must be 'prima fade satisfied that in order to decide the dispute and to. do complete justice between the parties, inspection of ballot papers was necessary. The cases of Ram Sewak Yadav and Dr. Jagjit Singh (supra) were relied upon.
(20) In the case of Shashi Bhushan (5), the Court was faced with an extraordinary allegation that many ballot papers have been 'Chemically treated' so that the mechanical stamp marks in favor of the successful candidates emerged and 'the mark actually put at the time of polling disappeared after a few days'.
In the backdrop of such an allegation, sample inspection was allowed and it was felt that if the allegations were true, they would have shaken the entire confidence of the people in the electoral process and would have seriously impaired the democratic system and it was observed that even though merely because someone makes bold and comes out with a desperate allegation by itself would not be a ground to attach value to it but at the same time, 'serious allegations could not be dismissed summarily merely because they do not look probable.'
(21) In the case of Sumitra Devi (6), it was observed that recount would not be granted 'as a matter of right' but only on the basis of 'evidence of good ground for believing that there has been a mistake in counting'. It was, however, observed that it has to be decided in each case whether 'a prima facie has been made out for ordering an inspection'.
(22) In the case of Beliram Bhalaik (7), the Court was dealing with a plea for a recount and it was observed that 'since an Older for a recount touched upon the secrecy of the ballot, it should not be made lightly or as to matter of course'. It was further observed that although no cast iron rule of universal application can be or has been laid down, yet, from a before all of the decisions of the Court, two broad guidelines are discernible; ' that the court would be justified in ordering a recount or permitting inspection of the ballot papers only where all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition and the court is prima facie satisfied that making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.'
(23) In the case of Suresh Prasad Yadav (8), the Court summarised the principles laid down by the Court from time to time in granting prayer for inspection of ballot papers and observed as follows:
'Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is two fold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost fool- proof. Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus: The Court would be justified in ordering a recount of the ballot papers, only where :
'(1)the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2)On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(3)The court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.'
(24) In the case of Chanda Singh (9), the aforesaid principles were reiterated.
(25) In the case of Bhabhi, (10) the Court referred to the aforesaid and certain other decisions of the Court and pointed out that on a close and careful consideration of the authorities, it was manifest that the following conditions are imperative before a court can grant inspection or for that matter sample, inspection of the ballot papers :
'(1)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;
(2)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;
(3)The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4)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;
(5)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
(6)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.'
ITwas further pointed out by the Court that although counting agents of the respondent were present at the time when the votes were counted, no application for a recount was made and the nature of the allegations were such as could have been easily verified at the spot by the Returning Officer if his attention was drawn to those facts by an application for a recount. It was further observed that no Seriall no. of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected nor even the segment in which the irregularity had occurred was mentioned. The contention that 'the returned candidate won by a narrow margin of votes and that that circumstance would justify inteference' was repelled and it was observed that 'if a person was duly elected even by a 'narrow margin of votes, there is no presumption that there has been illegality or irregularity in the election.' The Court reiterated the principle of primacy of secrecy of ballot and rejected the contention that the new methodology of voting adopted by the Act had made any material change in this concept.
(26) The latest decision in the series is the case of Shradha Devi (11). The challengs in this case was to an election to Rajya Sabha on the allegation that the result of the election in so far as it concerned the returned candidate had been materially affected by the improper rejection of valid votes by wrongly declaring them invalid as well as by improper reception of what otherwise would have been invalid votes if the Returning Officer had been consistent in his approach. The petition primarily was for relief of scrutiny and recount on the allegation of miscount. The High Court had rejected the petition substantially holding that the petitioner had failed to prove that all 11 rejected ballot papers were not shown to the counting agents. It was held that the petitioner failed to prove such error in counting which would enable her to seek relief of scrutiny and recount. This is how the Supreme Court dealt with the matter :
'when a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. It the recount is' limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more often we find 10,000 or more votes are being rejected as invalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True it is that a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer' (see Halsburys law of England, 4th Edn., Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed. What was broadly alleged by the petitioner in the election petition was that where election is held in accordance with the proportional representation by the single transferable vote it would be illegal and erroneous for the Returning Officer to reject as invalid a ballot paper if after first preference vote is validly cast some error is committed in indicating the remaining preferences. Instances of error set out in paras 14, 15, 17 and 18 spelt out a ground that the ballot papers, which were rejected under Rule 73(2)(d) did not contain or carry any mark or writing by which elector can be identified and that there has been thus improper rejection of a vote otherwise validly cast or which is partially valid. Without allowing inspection of all the disputed ballot papers the learned Judge has accepted that at least two ballot papers can be or related to allegation in paras 15 and 17 which would prove the allegation in the petition. The learned Judge, however, held that the rejection of these two ballot papers was correct. A further observation is that even .if the rejection of these two ballot papers is held to be improper, the result of the election so far as returned candidate is concerned is not materially affected. And it would be succinctly pointed out that allegation in para 18 in respect of two other ballot papers is wholly substantiated. Even at the cost of repetition it must be said that it is not the requirement of law that in respect of each ballot paper rejected as invalid a specific averment must be so made as to identify the ballot paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. That is contrary to the requirement of the Act and the Rules.'
the court accordingly called for the Ii ballot papers rejected as invalid, gave a direction to open the sealed envelope and copies of the ballot papers were supplied to both sides and the appeal was heard on the merits.. The appeal was accordingly allowed with the following observations :
'Free and fair election being the foundation source of Parliamentary democracy attempt of the Returning Officer and the Court should be not to chart the easy course of rejecting ballot papers as invalid under the slightest pretext but serious attempt should be made before rejecting ballot papers as invalid to ascertain, if possible, whether the elector has cast his vote with sufficient clarity revealing his intendment. In this case we are satisfied that the Returning Officer has charted an easy course unsupportable by evidence and the High Court failed to exercise its jurisdiction of scrutiny of all ballot papers once a serious error has been pointed out in respect of two ballot papers out of a total of 11 invalid ballot papers. thereforee, we find it difficult to accept the view taken by the High Court. Accordingly, this appeal is allowed and the judgment and order of the High Court are set aside and the matter is remained to the High Court for further proceedings according to law. The High Court shall examine all invalid ballot papers, ascertain the reasons for the rejection, satisfy itself whether the reason is valid or unconvincing, and decide the validity of the ballot paper as a whole or in part and direct computation of the votes over again. The High Court may bear in mind that the decision of the Returning Officer rejecting ballot papers as invalid is subject to review of the High Court in a proper election petition (see Halsbury's Laws of England, para 638, p. 345, Vol. 15, 4th Edn.).'
(27) The expression 'prima facie case' is frequently used in different contexts in relation to legal proceedings. The expression was also freely used in most of the aforesaid decisions. The expression has, however, never been legislatively defined, and Courts have for sound reason shown considerable reluctance to reduce the expression into the strait-jacket of a judicially evolved definition. Some of the decisions, however, even while applying the expression to different fact situations have indicated the broad features which could be said to constitute a prima facie case but no other decision has gone as.far as the decision of the Supreme Court in the case. of Martin Burn Ltd. (12). The Court in that case was not concerned with an election matter but an industrial matter and was called upon to construe the expression 'prima facie case' in the context of Section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It was observed by the Supreme Court that the Tribunal before whom an application was made u/s 22 was not-to adjudicate upon any industrial dispute but was only to consider whether the ban imposed upon the employer in the matter of altering the conditions of employment to the prejudice of the workmen or his discharge or punishment should be lifted and pointed out that a prima facie case has to be made by the employer for the lifting of such a ban. This is what the Court observed :
'A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record.'
(28) It would also be useful to bear in mind the true nature, implications and legal incidents of an order of recount. An order of recount, during the pendency of an election petition, must be distinguished from a recount immediately after the announcement of the result under Rule 56 of the Rules. That recount is before the result of election is duly notified. The expression 'Election' has a very wide connotation and encompasses the entire electoral process from the notification requiring the constituency to go to the polls until the notification of the result of the poll. In that sense, counting on the conclusion of the polls is a part of the process of election, albeit the penultimate part because it is on the outcome of the counting that the result is announced, followed by a formal notification of the election. When a court is asked to order a recount, an order of a recount by a court at the trial of an election petition may partake of different characters. A recount may, for example, be sought by way of an interim order with a view to prove at the trial of the petition that a part of the process of election consisting of counting was not in accordance with law, and the plea that the election was void or that the defeated candidate had been duly elected may be sought to be buttressed with reference to the outcome of a recount. Such an order of recount would obviously be in the nature of interim order and may ordinarily be sought at the initial stage of the petition on the allegations and particulars in relation to it that may be set out in the petition. Such an order may also be sought on the conclusion of an election petition if the election petitioner is' unable to justify it as an interim measure merely on the allegations but would need the aid of other material to justify such an order. Such an order may be made by the Court either because the Court comes to the conclusion that the counting had not been conducted in accordance with law which virtually amounts to a finding that a part of the process of election, consisting of counting, had not been carried out or conducted in accordance with law. This would be tantamount to voiding this' part of the process of election and since the result goes with a proper counting, the consequence is that if there was no proper counting, there was no proper result, or none existed in the eye of law. An order of recount in such a situation would be virtually a fresh process of election to the extent it may have been held to be void and yet reported cases do not give any indication that an order of recount was made after a finding that the election was void or that the counting was void and that it was necessary to have a recount. On the other hand, reported cases envisage a recount merely if the petitioner makes out a prima facie case that there has been irregularity or illegality in the conduct of counting or that there is a reasonable possibility that on a proper counting, including fresh scrutiny of ballot papers, the result would be inconsistent with what was notified. On one view, whatever be the reason for the recount, it may imply that the counting was vitiated. If it was not, where is the question of recount The other view would be that the Court is still to determine if the counting and the result of counting and, thereforee, the election was void or not but comes to the conclusion that to determine such a question finally a case had been made out for a recount which would resolve the conflict as to the validity of earlier counting, including the acceptance or rejection of ballot papers. However, in cases where the election is' sought to be voided and the petitioner seeks a declaration with regard to his election merely on a challenge to the validity of the process of counting or the error in counting or in the computation of the result, the distinction between an interim order of counting and a substantive order of counting really disappears. In such a case, it would be open to the Court, when satisfied on the material on record, that there is force in the contention of the petitioner that there have been illegalities and irregularities in the conduct of counting and there is a prima facie case for a recount to order a recount. The recount and its outcome for practically all purposes settles the contorversy in the petition because it is the outcome of the recount that determines the result of the petition.
(29) Before entering on a discussion if the various grounds, individually or collectively, would justify an order of inspection, as a prelude to a recount, or of a comprehensive recount, which of necessity would include an examination of all the ballot papers, their fresh scrutiny besides their physical counting and the compilation of what is said would be the true result of the poll, it would be necessary to record certain intrinsic circumstances, broad features, and inherent characteristics of the election in the constituency in question, which could be fairly said to be beyond controversy, and would provide, more or less, a common hypothesis for a proper consideration of the questions in controversy. The Congress-1 party, of which the returned candidate was a nominee, was in power, both at the Centre and in the Union Territory, as' indeed, in most of the States, at the crucial time. It has also been consistently in power over the yea:s at the Centre and in most of the States, except for a short spell at the Centre. The Bhartiya Janata Party, of which the petitioner was a nominee, was in power at the Centre, for a brief span, as part of a conglomerate of parties', in its original form, and was in power in the Union Territory, in its original form, for quite a few years in the recent past, before the Metropolitan Council was superseded, along with certain State Assemblies, which led to the present poll. While the Bhartiya Janata Party, in its original form, or as at present constituted, may not have at its command resources, manpower, and other advantages in an election, it certainly ranked, both as at present constituted, and in its original form, as the second best organized political party in the Union Territory. It has wide experience, both of political work, in general, and of electioneering, in particular. The contest in the election in dispute, for a variety of reasons, was almost neck-to-neck, and irrespective of the party that was returned in different constituencies of the Metropolitan Council, the margin was comparatively narrow, the margin in the present constituency being 36. The Parliamentary constituency, of which the constituency in dispute forms part had returned a Congress-1 nominee, Shri H. K. L. Bhagat, Union Minister, in the last parliamentary elections. The Member of Parliament from the constituency would be deeply interested in the success of the nominee of his party from the Metropolitan Constituency, falling within the Parliamentary constituency, and would ordinarily not only take active part in electioneering, but would also take keen interest in the result of the election, as indeed, in the announcement of it. His interest in the return of the candidate, who was a nominee of his party, would be more than that of a mere party colleague since the outcome of the result could have an impact on his own electoral fortunes at the next parliamentary election. Candidates at the election, including the petitioner, are provided by law ample opportunity to closely watch and scrutinise not only the process of polling, both outside and inside the polling stations, but also the process of counting right inside the counting hall with the aid of requisite number of counting agents, apart from the Election Agent, and the statutory right extends to the challenge to any prospective elector, wanting to cast a vote, as also a challenge to each ballot paper, whether it is being accepted or is' sought to be rejected, and this right includes the right to inspect the ballot paper, though not to handle it. If there is a challenge, whether at the time of polling, or at the time of counting, the Rules provide adequate safeguard that the point of view of the affected candidate is put before the staff on election duty, including the polling officer, the Returning Officer and the Counting Supervisors. There is thus ample opportunity, inter alia, to note down the Seriall nos. of ballot papers, sought to be accepted, in spite of objection or sought to be rejected, in spite of protection, to know the reasons why they are being rejected, and to have adequate information as .to their number, the polling stations or the corresponding counting table, to which they relate. It is also well-known that, both at the time of polling, as indeed, at the time of counting, the polling and the counting agents have adequate information available with them and keep regular record of the goings-on both at the polling, as indeed, at the time of counting, including the various illegalities, irregularities or mistakes which may be committed in the course of election process and the only possible exception would be where for some reason, any incidence of these escaped the vigilent eye of the candidate, his Election Agent, the. polling and the counting agents. In such cases, the election petition is perilaps the only occasion where the matters can be brought up for the first time. But such situations are rare.
(30) The various grounds, and the material in support thereof, on the basis of which the petitioner seeks to void the election and/or to claim a recount, may now be considered to determine if all or any of these grounds, severally or commulatively, would entitle the petitioner to the relief that he seeks. Grounds : (a), (b), (d), (e) & (i)
30.1All these grounds could be conveniently dealt with together because they arise out of common allegations of a miscount and an erroneous compilation of the result. According to the petitioner, the petitioner had polled a majority of valid votes and ought to have been declared as duly elected on the basis of entries' made in Part-11 of Forms 16 immediately after the counting but the petitioner was nevertheless not so declared and the returned candidate was declared elected on the basis of entries made by the Returning Officer in Form 20, even though admittedly entries in Form 20 were inconsistent with the corresponding entries in Part Ii of Forms 16, on which the entries; in Form 20 must be based, in relation to at least Ii polling stations. It was an interesting feature of this case that even though the returned candidate initially denied the allegations, it was eventually conceded by the Returned candidate, as also admitted by Jagmohan Lal Jain, the Assistant Returning Officer, who was officiating as the Returning Officer, in his evidence, as RW-2, that the entries in Form 20 do not conform to the corresponding entries in Part-II of Forms 16 in respect of at least 11 polling stations, out of 58 polling stations, and that if the result was to be compiled on the basis of entries in Part-11 of Forms 16, the petitioner would be completely vindicated. The returned candidate struck to his original plea even when he was examined as RW-1, but was nevertheless not able to explain how he could be declared elected if the entries in Form 20, and the result of election, must conform to entries in Part-11 of Forms' 16. The discrepancies between the two were, however, sought to be explained by Jagmohan Lal Jain, RW-2, in the course of his evidence. According to him, entries in Form-20 in respect of 11 polling stations were not made on the basis of corresponding entries in part Ii of Forms 16 but were made on the basis of notes prepared on 'loose-sheets' by the counting supervisors at the time of counting. He further admitted that entries in Part Ii of Forms 16 in respect of these polling stations were not entered on the conclusion of counting, as ought to have been done under the Rules, but these entries were made subsequently after Forms 20 had been compiled and result had been declared. When asked to explain as to how the entries do not conform, he surmised that since the entries in Part-11 of Forms 16 in respect of these polling stations were made subsequently and in a hurry, by mistakes, the entries in Pa tit of Forms 16 in respect of other polling stations, which had been contemporaneously made, were repeated in the case of these 11 polling stations as well and maintained that a comparison between entries in respect of these polling stations in Part Ii of Forms 16 and entries in respect of certain other polling stations in the corresponding Forms 16 would bear to out. It was also suggested that entries in respect of any two or more polling stations could not be exactly the same and the existence of identical entries shows the mistake committed in completing Part Ii of Forms 16 subsequent to the declaration of the result. It is, thereforee, a common case of the parties, from which there was no escape for the Assistant Returning Officer, that Part Ii of Forms 16 was not completed before entries were made in Form 20. It is also obvious that whatever may have been the basis of compilation of Form 20, the entries in Form 20 do not comform to entries in Part Ii of Forms 16 in respect of at least 11 polling stations. It was also not disputed that if Form 20 must be based on the entries in Part Ii of Forms 16, Form 20 did not conform to the requirement. It can also not be disputed that if the result must be based on the entries in Part Ii of Form 16, which is made immediately on the conclusion of counting, the returned candidate could not have been declared elected, and the petitioner would be entitled to be declared as duly elected.
30.2Emboldened by the aforesaid admitted hypothesis, counsel for the petitioner sought a declaration straightway of having been elected on the basis of the entries' in Part Ii of Forms 16 without any recount whatsoever. Ordinarily, in the aforesaid situation, the petitioner would perhaps have been entitled to it but here are certain impediments which the petitioner is unable to tide over to succeed in that contention. The impediments are two-fold. In the first instance, entries in Part Ii of Form 16 in respect of Ii polling stations are almost identical to entries in the said Forms in respect of other polling stations, which would appear to be rather unusual, unless the entries in respect of one polling station were bodily lifted and made in the. Form in relation to other polling stations. Secondly, what is worse, a comparison between entries in Part I of Forms 16 as to the total number of votes polled must also conform to the entries in Part Ii Forms 16 in respect of the corresponding polling stations as to the ballot papers found. Here also, there is a clear inconsistency between two parts of the Forms 16 in respect of these 11 polling stations. Both these circumstances are clear pointer to the fact that entries in Part Ii of Forms 16 in respect of these 11 polling stations, which were admittedly made subsequently, was the result of a mistake and the basic figures of the votes polled in none of these 11 polling stations conform to the ballot papers issued according to Part I of Forms 16 in the polling stations concerned.
30.3While the petitioner would, thereforee, not be entitled to a declaration straightway voiding the election of the respondent or that the petitioner had been duly elected on the basis of entries in Part Ii of Forms 16, there is nevertheless no escape from the inevitable conclusion that entries in Part Ii of Forms 16, in respect of at least 11 polling stations, were not made immediately after counting, as required by law, and Form 20, on the basis of which the result was declared, did not conform to the entries in Part Ii of Forms 16, on which it must be based under the Rules' and that the counting and the making of entries in the Forms 16 and the compilation of the result was bungled up deliberately or by mistake, either in a rush or otherwise. This, by itself, would clearly entitle the petitioner to an order of complete recount, including the scrutiny of all the ballot papers, including the rejected ones; since the possibility of mistakes in counting in the rest of the process of counting could not be precluded.
30.4Two contentions were, however, urged on behalf of the returned candidate with a view to either avoid a recount, in the first instance, or to at least limit its scope to ballot papers relating to the 11 polling stations, in respect of which mistake had been committed.
30.5In the first instance, it was urged on the basis of the evidence of the Returning Officer that the details of counting in respect of all the polling stations were set out by the counting supervisors on 'loose sheets' of paper and the entries made in Form 20 were ba.sed on the figures in respect of counting on the aforesaid loose sheets of paper. A contention was, thereforee, raised that it would be unnecessary to have recount and the veracity of the result as also the entries in Form 20 could be tested with reference to the loose sheets of paper which were claimed to form part of the election record, now lying in the custody of this Court. It was, however, not disputed that the Rules made no provision with regard to any entries to be made on any loose sheets of paper on the conclusion of counting of ballot papers in respect of different polling stations and the only provision that the Rules contained in that behalf enjoined that on the conclusion of counting of the ballot papers in respect of a polling station, the Counting Supervisor would contemporaneously, make entries in Part Ii of Forir.s .16. It was also not disputed that neither the counting supervisor nor the Returning Officer signed or initialled the so-called loose papers. There was also considerable controversy if the records now in custody of this court, contained any such loose sheets at all, and since the original Form 20 and Forms 16 have been exhibited in this Court, it is obvious that these loose sheets were not with these Forms. It is, thereforee, patent that even if loose sheets were employed by the counting supervisors for making rough notes of counting or the result of counting on the conclusion of counting of ballot papers in respect of each polling station, this procedure was not sanctified by law. There is also considerable doubt if there are any loose sheets in the records and even if these sheets' are found there would still be controversy as to their authenticity since these loose sheets' admittedly do not bear the signature or initial of any member of the counting staff. Moreover, once it is conceded that entries in Form 20 do not conform to the corresponding entries in Part Ii of Forms 16, in respect of some of the polling stations, a question obviously arises which of the two conflicting entries are correct. It is the returned candidate's own case that entries in Part Ii of Forms 16 in respect of Ii polling stations do not certain to these polling stations' but are the result of an error by which entries in respect of certain other polling stations were duplicated while preparing part of Part Ii of Forms 16 in a hurry subsequent to the announcement of the result. If the entries in Part Ii of Forms 16 in respect of these polling stations do not, thereforee, correctly reflect the result of counting of ballot papers in respect of these polling stations, one would have to answer the question, what were the correct figures in respect of these polling stations. That question obviously cannot be answered with reference to any loose sheets assuming that they are available, which has no sanctity under the Rules and are not even, signed or initialled by any member of the counting staff. The answer to the question can be provided only by a recount. A mere search for the loose sheets or their inspection, should they be available, would be too replete with controversy to deserve to be a substitute for a recount.
30.6Secondly, it was urged that in any event, the mistake is confined to Ii poking stations and there is no reason why recount should not be limited to the ballot papers pertaining to these polling stations. This contention appears to me to be fallacious. The admitted discrepancy between Form 20 and Part Ii of Forms 16, and the admission of the Returning Officer that Part Ii of Forms 16 in respect of Ii polling stations had not been contemporaneously prepared but was completed after the compilation of Form 20, and the announcement of the result, casts' reasonable doubt on the correctness and propriety of entire process of counting and compilation of the result. If such an unusual thing had happened in relation to 11 polling stations, one would not be sure as to. what may have happened in relation to the others. The disclosure made in this case by the Returning Officer himself shakes the confidence of this Court in the correctness and propriety of the manner of counting and the controversy as to the true result could be resolved only by a complete recount.
30.7The plea of the petitioner for a recount is, to an extent, reinforced by the patent circumstances that the petitioner was not satisfied with the manner of counting, had sought a recount from the Returning Officer by a written application and when that did not bear fruit, he made a telegraphic representation to the Chief Election Commissioner of India soon after the result of the election. From the admitted position, it is obvious that the doubts of the petitioner with regard to the correctness. of counting and the manner in which counting was conducted and the result was compiled was reasonabla and in declining the request for a recount, the Returning Officer certainly acted in an imreasonable manner. It is, however, unnecessary for my present purpose to go into the allegations, if fraud was committed on the petitioner, when he made a written request for a recount and he along with the other candidates was taken from the counting hall to an adjoining room. It is also unnecessary for me to dilate on the serious allegations' made by the petitioner that there was illegal show of force in the room. and as to the manner in which the petitioner was deprived of his statutory right of a recount. In the way I have looked at the justification for a recount, it is also unnecessary to rule on the question if what had happened at the time of counting and in the compilation of the result, the Returning Officer and the other members of the staff committed innocent mistakes, because of paucity of time, or otherwise, or were guilty of improper conduct in the discharge of their official duties.
30.8In the way I have looked at the first batch of grounds to find if there is a justification for a recount, it is really unnecessary to deal with other grounds, on which recount was sought be justified. I have, however, considered these grounds as well and find that for a variety of reasons, none of the other grounds would justify an order of recount. Ground (c)
30.9It is alleged that under the Rules, postal ballot papers bad to be counted first but these were counted at the end. This allegation is not denied but I fail to see how this would constitute such an error as would justify a recount. Ground (g)
30.10It is alleged that more than 200 ballot papers, duly marked in favor of the petitioner, were mixed with the bundles of votes of the returned candidate, and 300 ballot papers duly marked in favor of the petitioner were improperly rejected and held invalid. It is further alleged that about 100 ballot papers marked in favor of the petitioner were mixed up in the bundles of votes of other candidates. It is further alleged that about 250 ballot papers which were liable to be rejected were held valid and counted in favor of the returned candidate. The petitioner has failed to give material facts in respect of any of these allegations either in the petition or in the course of evidence. There is thus no indication as to the Seriall no. of the ballot papers, the polling stations to which they relate, the counting table where what is alleged may have happend.. It has often been pointed out that at the time of counting, candidates have been given enough opportunity to inspect the ballot papers and it should, thereforee, be possible for the candidates at an election to provide the necessary details with regard to such allegations in the petition, as indeed, in the evidence before -the Court. These allegations are, thereforee, too vague and indefinite to deserve to be considered as a ground for a recount, even though it must be conceded that the petitioner in this case had a genuine grievance that all was not well in the manner in which the counting was conducted and this is borne out by his application for a recount which was contemporaneously made as also by the telegraphic representation sent after the announcement of the result, These allegations must, thereforee, excluded from consideration in determining the question as to the justification for a recount. Ground (h)
30.11It is alleged that the result of election in favor of the returned candidate was an outcome of pressure exercised on the Returning Officer by four leaders of the Cong-I Party i.e. Shri H.K.L. Bhagat, Central Minister, Jagdish Tytier, Arun Nehru and J. K. Jain, Cong. I Members of Parliament, who came to the counting hall during the course of counting without any authority of law with a view to influence the mind of the Returning Officer to the prejudice of the petitioner and they were seen talking to the Returning Officer. Petitioner has no doubt made the aforesaid allegation on oath in his evidence and the allegation has been supported by a number of his counting agents. The allegation was denied by the returned candidate and this was affirmed by the Returning Officer in his evidence in this Court. The petitioner was, however, unable to produce any independent witness in support of the allegations. On one reckoning, however, I am not concerned at this stage with the question if the allegations have been proved or not because it is enough if the petitioner makes a 'prima facie case' for a recount on the basis of a reasonable probability that the counting had been vitiated or that mistake and had occurred or any manipulation had been done or that counting was otherwise conducted in an illegal, irregular or improper manner. Sha H. K. L. Bhagat, as indeed, the other leaders mentioned above were definitely interested in the success of their party candidate. Mr. Bhagat was comparatively more directly interested because the constituency falls within his Parliamentary constituency and the result of the election could have its' impact in future on his electoral fortune. It was, thereforee, nothing unusual if Shri Bhagat and the other Members of Parliament were making a round of the various counting centres and even entered the counting hall, even though without any authority of law. It is quite common in this country for those in authority, to go about putting their weight around for the benefit of a party or an individual for monetary gain, or for other motivation and such allegations are not infrequently made in various forums. It is also not an unusal allegation that the public servants on official duty are susceptible to various influences, including those from political big-wigs for a variety of motives. It is, thereforee, unnecessary for me to go into the question if these gentlemen came into the counting hall during the course of counting without the authority of law but for my present purpose, I would assume that they did and may have even had a word with the Returning Officer, as alleged. That, to my mind, would not either vitiate the process of counting or otherwise justify a recount. If these persons' holding positions of power and influence were so minded, and the public servants concerned were susceptible to their influence, there was nothing to prevent them, individually or collectively, to put in a word at a proper time and at a proper place so as to achieve the object. But, I am unable to understand how such responsible persons, who are made out to be shrewd politicians, and in sensitive positions, would be going about influencing public servants on election duty in a brozen manner in full public gaze. They may have gone there as part of their round to oversee the process of election or in the anxiety to know the result of counting in various constituencies, but that certainly could not have been for the purpose of manipulating the result of the election at the eleventh hour. This part of the allegation appears to me to be too ridiculous to be believed. The result, thereforee, is that even if they came to the counting hall during the course of counting, it could not have been for the purpose alleged and had no impact either on the validity of the counting or on the justification for a recount. Ground (i)
30.12This ground is based on the allegation that although 11 A.M. was the time for commencement of counting, as stipulated in the written notice to candidates, counting was not commenced at 11 A.M. According to the petitioner when the petitioner went to the counting centre, along with his counting agents at the stipulated time, the Returning Officer told him that counting would be commenced at 8 P.M. and that the petitioner accordingly left the centre Along with his counting agents' and when he came back to the centre at 8 P.M., Along with his counting agents, he found to his surprise that counting had already started at 7.30 P.M. This, according to the petitioner, was in contravention of Rule 51 of the Rules, and in particular, proviso to the Rule which enjoins that if for any reason, alteration of the date, time and place of counting as fixed becomes necessary, such alteration may be made 'after giving notice of the same in writing to each candidate or his election agent'. It is further alleged that the counting having started at 7.30 P.M. the petitioner, and his counting agents, were deprived, of the opportunity to be present at the counting for a period of about half an hour thereby depriving them of the opportunity tu participate in tile process of counting Ex. Public Witness 2/3 is the original notice received by the petitioner in which time of commencement is given as 11 A.M. It was, thereforee, not disputed that 11 A.M. was the stipulated time of which written intimation was given. It was also not disputed that counting did not commence at 11 A.M. as counting of Metropolitan Council constituency no. 29 was taken up in the counting hall at 8 A.M. and was expected .to continue until about 4.30 P.M. It was, however, not disputed that no written intimation of the change of timing of commencement of counting was given to any candidate. The requirement of the proviso to Rule 51 was, thereforee, not strictly complied with. It was, however, pointed out by the Assistant Returning Officer, Jagmohan Lal Jain, that the candidates were told that the. counting in the constituency would be taken up as soon as counting of constituency no. 29 would conclude and this was expected to happen around 4.30 P.M. He further stated that the result of counting in constituency no. 29, which also involved a candidate belonging to the party, of which the petitioner was anominee, was announced around 5 P.M. and the counting in the present constituency commenced at about 6 to 6.30 P.M. He, however, denied that he or the Returning Officer had told the petitioner that counting would commence at 8 P.M. While there is, thereforee, no doubt that the requirement of proviso to Rule 51 was not strictly complied with in that the change in the timing was not intimated in writing to the petitioner, even though the counting scheduled for 11 A.M. was taken up at 6 or 6.30 P.M. This by itself to my mind, would not further the case of the petitioner for a recount because if the counting of another constituency was in progress, it must have been clearly understood by all concerned that the counting in this constituency would commence only on the conclusion of counting, which was then in progress. Neither the petitioner nor the political party, of which the petitioner was a nominee, were new to the process of election. The petitioner's party was also involved in the constituency of which the counting was in progress. There was, thereforee, no question in such a situation of the petitioner having left the centre with his counting agents instead of waiting for the conclusion of the counting which was in progress. In any event, having regard to the normal course of events, the counting in the other constituency, having started at 8 A.M., would be expected to finish between 4 and 5 P.M which it had, and one would have, thereforee, expected the petitioner and his counting agents to be around at that time. The allegation that the petitioner tamely accepted the verbal intimation of the Returning Officer that counting would commence at 8 P.M., when the counting, which was in progress, had commenced at 8 A.M., would, thereforee, appear to be highly improbable and not worthy of consideration even as a factor to support a prima facie case for a recount. It is not a sheer coincidence, thereforee, that this circumstance finds no mention either in the application for a recount, made to the Returning Officer, Ex. Public Witness 311, or in the rather lengthy telegram. Ex. Public Witness 1/1, sent by the petitioner to the Chief Election Commissioner of India. This ground, thereforee, does not further the case of the petitioner for a recount. Ground ( j)
30.13This ground is based on the allegations that the petitioner and other candidates were informed that the counting would take place on 7 tables and that the petitioner would be entitled to bring 7 counting agents. According to the petitioner, he brought 7 counting agents but found that the counting in progress was being held on 15 tables and consequently, the petitioner had no counting agent to look after the process of counting on 8 tables, which gave ample opportunity to the counting staff to help in the election of the returned candidate. This allegation is to be perused to be rejected. As I have already said above, neither the petitioner or his party were new to the. process of election. Counting was in progress in constituency no. 29 even in the morning when the petitioner admittedly went to the counting centre. The candidates and the parties would have been well aware that counting could not possibly finish in 6-7 hours if it was to be conducted on 7 tables only. They would have known as to the number of tables on which counting was to be simultaneously taken up. It is difficult to believe that the petitioner was so naive as to act on stich an information, if it was conveyed to him, without checking with his party, which, as I have observed earlier, was among the second best organized party in the Union Territory of Delhi. This allegation is also belied by the total absence of any reference to it in the two near contemporaneous documents i.e. the application for a recount, Ex. Public Witness 4/1, and the telegram. Ex. Public Witness 1/1. This allegation has apparently been made with a view to explain the failure of the petitioner to give material facts in relation to some of the allegations such as the Seriall nos. of the ballot papers, the polling stations to which they related, the tables which were involved and other such particulars in relation to some of the allegations which I have found to be vague, and indefinite and would not deserve any consideration whatsoever. Ground (k)
30.14It is alleged that more than 100 ballot papers marked in favor of the petitioner were mixed up in the bags containing ballot papers marked in favor of the candidates other than the returned candidate. This allegation is completely devoid of the necessary material facts and is, thereforee, liable to be ignored. Ground (1)
30.15This ground is based on the admitted allegation that there was an electricity failure for a short period of a few minutes. It is alleged that there was no stand-by arrangement except some candles and the candle-light was insufficient to enable proper counting or its supervision and that request to suspend counting process till appropriate alternative arrangement had been made was turned down. It is further alleged that the counting process continued for some-time in the dark and for a while in candle-light and that during this period, some mischief was done by the counting staff, including the Returning Officer, which worked to the prejudice of the petitioner. It was, however, denied that there was no alternative lighting arrangement and it was urged that petromax were available all the time and that no part of counting was carried out in the dark. While it is no doubt true that in the absence of proper lighting arrangement, there was a possibility of some confusion and even handicap for the candidates and their counting agents in a proper supervision of the process of counting, the petitioner has not given any material facts with regard to the mischief that may have been done even though this allegation is reflected, though not in the application for a recount, but in the telegram sent to the Chief Election Commissioner. There can also be no doubt that if the election staff was so minded, the confusion arising out of the failure and the time-lag between the failure and .the improvisation of alternative arrangement, some mischief could be done. This allegation, however, only supports the petitioner to the extent that it casts some further doubt on the propriety of the process of counting, particularly, in the face of the allegation that the request to suspend counting process was unreasonably turned down. This allegation is, however, in capable by itself of justifying the plea for a recount, even though it provides a general reinforcement for the plea which I have otherwise held to be well founded on other allegations. Ground (m)
30.16This ground deals with the rejected ballot papers, which numbered 681. It is alleged that 300 ballot papers out of the rejected ballot papers were valid and duly marked in favor of the petitioner and ought not to have been rejected. It is further alleged that most of these were rejected without allowing the counting agents of the petitioner an opportunity to inspect the ballot papers and they were also not allowed an opportunity to note down the Seriall nos. of the ballot papers on the ground of secrecy of ballot. The petitioner has failed to provide material facts in respect of this allegation. It is well-settled that the Rules provide sufficient safeguards for the candidates and their election agent and counting agents to inspect the ballot papers as also to note down the Seriall nos. whenever there is an objection to their validity. The petitioner and his counting agents must, thereforee, be presumed to have had ample opportunity and his failure to give the material facts would not justify any weight being attached to this allegation. The petitioner no doubt sought recount, inter alia, with a plea that the 'rejected votes should be rechecked' but neither the application nor the telegram gave any further material facts with regard to the rejection. 'This allegation, thereforee, is more hi the nature of a fishing enquiry in the hope that on a review of a rejection, some of the ballot papers may be found to have been improperly rejected thereby materially affecting the election if they had been duly marked in favor of the petitioner. Ground (n)
30.17This ground is based on the allegation that ballot papers, marked in favor of returned candidate, were improperly accepted although they were liable to be rejected. This allegation also suffers from the same infirmity as has been pointed out above with regard to the rejected ballot papers'. The petitioner has no doubt mentioned 4 Seriall nos. with regard to this allegation but that would justify a fresh scrutiny of these ballot papers only. Since with regard to the large number of other ballot papers said to be involved no particulars have been given the petition would be wanting in material facts, in relation thereto.
(31) In view of the conclusion with regard to some of the grounds, the petitioner is entitled to a recount of all the ballot papers, including re-examination, re-scrutiny and re-compilation of the result of election. Issue No. 3 is accordingly answered in the affirmative.
(32) In view of my decision on Issue no. 3, I would direct a complete recount, including the re-scrutiny of each of the ballot papers, including the rejected ballot papers. The recounting would be carried out by the tellers who may be nominated for the purpose .by or under the authority of Election Commission of India. The tellers would be designated within six weeks and the process of recounting would be completed within a period of 2 weeks thereafter. The candidates, their election agent and their counting agents would be entitled to participate in the course of recount in a.ccordance with law. The records would be transferred to the Commission as and when required by it. The result of recount would be submitted to this Court along with the original records and the records of recounting, duly sealed, within two days of the conclusion of recounting.
(33) In view of my conclusion on Issue No. 3, the application of the petitioner, being I.A. No. 3564/83, is also disposed of in the aforesaid terms.
(34) The petition to be listed for further directions on 14-8-84.