1. This appeal is against the order by a learned Judge, refusing to admit a petition under Article 228. The appellant had thereby prayed that the order by the Election Tribunal, Trichur, directing scrutiny and recounting of votes, cast at the election of a member to the Legislative Assembly from Irinjalatuda in February 1960 be set aside. The order has been passed) on September 19; 1960, and in proceedings arising from an election petition against the appellant's election from the aforesaid Constituency.
The appellant has been declared elected, because the number of votes in his favour had been found to be 29,069 and the number in favour of the respondent to be 28,708. Therefore, the majority in appellant's favour in 361 votes, 567 having been discarded by the Returning Officer as not valid, The respondent has filed an election petition seeking not only to invalidate the appellant's election under Section 100, but to get himself declared as duly elected, under Section 101, of the Representation of the People Act, 1951.
That petition is being inquired into by the Election Tribunal, Trichur, and the proceedings are still at the initial stages. Earlier to the application, on which the order challenged before us has been passed, there was another to the Election Tribunal seeking scrutiny and recount of the ballot papers; but that was rejected;
Only after the depositions of two persons on behalf of the election petitioner as Pw. 1 and Pw. 2 as well as one on behalf of the appellant as Dw. 1, had been recorded that a fresh petition was filed, repeating the prayer made earlier, that has been allowed, as already stated, on September 19, 1960. That has resulted in the writ petition being filed in this court and the learned Judge has declined to exercise his powers under Article 226 at this stage.
2. The appellant's learned counsel has taken us through the entire order, and has urged the material, on which the Election Tribunal has ordered the recount, to be not sufficient for passing the order, part of the order to be based on surmises and conjectures, part to have dealt with irrelevant matters, the order to have decided something going to the very root of the dispute, to be causing such embarrassment as would justify even at this stage interference by issuing certiorari.
He has, however not disputed that exercise of powers under Article 226 should not be like that of the appellate court and the writ of certiorari is issued on enumerated grounds. It is further well established that the writ is generally not issued where the orders asked to be vacated be on interlocutory applications before the lower tribunals. Therefore in dismissing this appeal we should not be taken as approbating all the conclusions by the Election Tribunal when it passed the order for recount.
Indeed some of the conclusions would not be sustained had the exercise of our appellate powers been invoked for vacating the Tribunal's order. The question, however, for adjudication in this appeal is whether grounds have been established to justify our interference by writ of certiorari against an order on an interlocutory application; and in deciding the question, the pronouncement of the Supreme Court in Veluswamy v. Raja Nainar, AIR 1959 SC 422 at p. 429 is decisive.
We are further fortified by Sanjeevi Reddi v. G. C. Kondayya, AIR 1960 Andh-Pra 421 in the view we are taking. It follows that unless the order challenged before us goes to the very root of the election proceeding, as was held in Y. B. Chavan v. Mangalmurthi, AIR 1958 Bom 397, the writ should not be issued, and we are satisfied that the recount ordered is not such and further evidence will have to be gone into, before the petition can be properly disposed. We, therefore, hold that the first ground on which certiorari can be issued in such cases, does not exist.
3. The learned counsel has then urged that though the Tribunal has the jurisdiction -- and we think that in doing so he has made a fair concession the order for recount should be passed not at the initial stages of the inquiry. The general practice, however, of directing such recount, is otherwise. In this connection, our attention has been drawn to the following passage in Rogers on Elections Vol. II, 20th Edn. pp. 199-200:
'The practice now is to order a recount before the trial where there is reason to believe there has been a miscount. Application for it should be made by summons supported by affidavits showing grounds.
'Orders for recount before the trial were obtained, in 1882, in Greenock, Finsbury Lichfield, Stepney, Cirencester and Halifax; in 1896, in Haggerston and St. George's; in 1893 in York; in 1900, in Pembroke; on the respondent's application, and Christ Church; in 1906 in Appleby; in 1910, in Denbigshire Boroughs and North Lansdale; in 1911 in Chippenham, Mile End, Gloucester, West St. Pancras, Exeter and West Bromwich, and in many Municipal and other election petitions....'
The position is not differently stated in Halsbury's Laws of England, Third Edition, Vol. 14, paragraph 559, p. 310:
'Application for recount. A petition which asks far a recount and claims the seat is a good petition though it asks for nothing more. The usual practice is for an application for a recount to be made by summons to a judge on the not a for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based. 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 the returning officer. If there are more than two candidates for more than one seat and a petition is presented against one, claiming as against him a recount and seat, it is not necessary for the petitioner to claim a general recount, that is as regards the other candidates as well on the recount against the respondent resulting in the petitioner's favour, he becomes entitled to the respondent's seat'.
4. It is therefore, clear that should grounds to I the satisfaction of the Election Tribunal be made, recount can be ordered at the initial stages. It is not disputed that the number of votes, by which the appellant has succeeded is not large, that an application for recount was made to the returning officer, which he rejected, on ground that did not appeal to the Election Tribunal to be cogent, that some bundles of votes were misplaced, and that the returning officer at some time was absent.
We are not mow determining whether such grounds would persuade us to order a recount, for the jurisdiction now being invoked is under Article 226. We are only to determine whether such reasons are relevant, on which recount can be ordered, and it cannot be said that they are irrelevant. Election to the legislature under democracy means not only election by majority, but election by fair and legal methods, and in determining the fairness of the methods through which the choice is made, it is but proper that the votes polled at the election should be sifted on reasonable grounds at the initial stages.
We, therefore, hold that the other ground to issue certiorari, in interlocutory matters due to the order causing embarrassment, has not been made out; and, in absence of such grounds, we would not be justified in varying the settled rule of refraining from interference in exercise of powers under Article 226 in interlocutory orders.
5. For these reasons, we dismiss the appeal with costs.