C.A. Vaidialingam, J.
1. The writ petitioner is the elected member of the Kerala Legislature from the Tellicherry Constituency, in the elections held in the State on 1st February 1960. The votes polled in favour of the petitioner were 28,380 and in favout of the 1st respondent, the defeated candidate, 28,357. It will be seen that the 1st respondent lost by 23 votes and in consequence, the 1st respondent was declared to have lost the election by a margin of 23 votes.
2. The 1st respondent has filed an Election Petition No. 9/60 challenging the election of the writ petitioner- and it is pending enquiry and adjudication by the Election Tribunal, Tellicherry.
3. In the said Election Petition, the 1st respondent prays for a declaration that the election of the writ petitioner from the Tellicherry Constituency, is void and also asks for a further declaration that the 1st respondent has been duly elected from the Tellicherry Constituency.
4. Several allegations have been made in the Election Petition about various irregularities. In brief, the case of the 1st respondent is that he ha^ in fact, secured a majority of valid votes so as to entitle him to get the seat in the Assembly.
5. The Election Petition is opposed by the writ petitioner on several grounds.
6. Pending adjudication of Election Petition, No. 9/60, the 1st respondent herein, filed I. A. 30/60 for directing a recount of the votes. The 1st respondent alleged that he has received a majority of valid votes and that the most important point regarding the factum or otherwise of the candidate declared elected having secured a majority of valid votes has to be established and for the purpose of establishing the same, the best means is by having a recount of the votes themselves. The 1st respondent relied upon the close margin of votes as announced by the Returning Officer by itself as a circumstance justifying a recount.
The Election petitioner relied upon the provisions of Rule 64 of the Representation of People (Conduct of Elections and Election Petitions) Rules 1956 to show that recount can be had unless the demand for recount is frivolous or unreasonable. The 1st respondent also claims that the demand for recount was made before the Returning Officer and that it has been improperly refused without holding that the said demand is frivolous or unreasonable.
7. The 1st respondent further alleges that there is clear evidence to show that mistakes in counting might well have taken place and that in many instances, the total number of votes polled do not tally with the number of ballot papers issued. Then he gave certain instances of what according to the 1st respondent, would be instances of such mistakes having occurred.
8. The 1st respondent also alleged that the Returning Officer did not adopt the procedure required by the rules and he also alleges that the arrangements made for counting of votes were totally inadequate and the facilities to watch the counting provided for the candidates, were also grossly inadequate. In view of all these circumstances the 1st respondent prayed for a recount of the votes.
9. The writ petitioner opposed the application on various grounds. It was Contended that the 1st respondent is not entitled to have a recount. The allegation that the writ petitioner has not obtained a majority of valid votes was denied and the further allegation that there may have been mistakes in the counting or that there were any irregularities committed by the Returning Officer, were all denied.
10. The Election Tribunal has directed by its order dated 18th October, 1960, a recount and scrutiny of ballot papers rejected by the Returning Officer.
11. It is this order of the Election Tribunal that is sought to be quashed by the petitioner, in these proceedings under Article 226 of the Constitution.
12. Though the 1st respondent appears to have contended that he is entitled as of right, to have an order for recount, the Election Tribunal has not accepted this extreme contention. It has held that before a party asks for a recount, he must satisfy the Court or the Tribunal that there are good and reasonable grounds for believing that there could be a miscount and that the Returning Officer would have committed mistakes.
13. Then the Election Tribunal considers the various grounds on which a recount was asked for in this case. The Tribunal is of the view that both on principle and authority close voting is one or the main grounds for a recount.
14. Again, the Election Tribunal is of the view that a request for recount was made before the Returning Officer on behalf of the 1st respondent on the ground that gross mistakes had occurred in the counting and that the said application has been dismissed without a finding that the demand was frivolous or unreasonable. It is the further view of the Election Tribunal that the arrangements for proper and effective supervision and check regarding the counting were not very satisfactory and that the 1st respondent's apprehension under those circumstances that there may have been a miscount, is reasonable.
15. The Tribunal in this connection, makes certain suggestions to the authorities concerned for making a provision for fixing a ratio between the number of counting agents allowed to each candidate and the number of counting assistants employed by the Returning Officer for the Court and It also gives an extract from the final report of the Committee on English Electoral Law Reforms. It is not necessary for me to advert to that aspect in these proceedings.
16. The Election Tribunal again is of the view that there is prima facie material to show that there are discrepancies and mistakes in the returns of the presiding officer as compared with those of the Returning Officer. The Election Tribunal goes into various details available from the records and comes to the conclusion that those mistakes and errors can well be the features of a miscount. In this connection, the Election Tribunal considers a ballot paper produced by the 1st respondent and claimed by him to be a genuine one, and picked up from near about a polling station.
It also considers the apprehension of the 1st respondent that the genuine ballot paper now produced would have been substituted in the ballot box by a spurious one. But it doss not accept the contention of the 1st respondent that from that fact alone, a prima facie inference that the ballot paper produced has been substituted by a spurious one, could be drawn. But the Tribunal is of the view that the various discrepancies and mistakes pointed out, prima facie, from the Returns of the Presiding Officers and those of the Returning Officer provided good grounds to believe that the counting was not in order and that the final figures might have been affected by a likely miscount.
17. Though the 1st respondent also appears to have contended that the Returning Officer has committed errors in counting and rejected ballot papers and therefore, there should be a scrutiny of the decision of the Returning Officer on doubtful votes, the Election Tribunal was of the view that there is no material placed before, it to base a conclusion that the returning officer committed mistakes or was biassed. Therefore, in this view, the request for scrutiny of ballot papers rejected by the Returning Officer was negatived. But it held that in the actual process of recount, a scrutiny of the ballot papers counted by the Returning Officer may become inevitable and therefore, a scrutiny to that extent is reasonable and has to be allowed.
18. It was on these grounds stated above that the Election Tribunal has ultimately passed the order under attack allowing a recount and scrutiny in Interlocutory Application 30/60 in Election Petition 9/60 subject to the further direction that a scrutiny of the ballot papers rejected by the Returning Officer, is not allowed.
19. Mr. Kalathil Velayudhan Nair, learned counsel for the writ petitioner, attacked the order on substantially 3 grounds:-
1. There was no prayer for recount, as such, in the main Election Petition filed by the 1st respondent and therefore recount should not have been Ordered.
2. There is absolutely no evidence on record to justify the recount in the circumstances of this case; and
3. That the materials on which the Election Tribunal has come to the conclusion that there should be a recount have not been properly proved by the 1st respondent herein.
20. There was also an incidental attack on the order by learned counsel to the effect that the Election Tribunal has mixed up the facts in the other 2 connected applications and utilised some of the materials available on those cases in deciding this particlar matter also. Mr. K. Velayudhan Nair did not dispute the jurisdiction of an Election Tribunal to order a recount at any rate in a proper case.
21. Mr. S. Easwara lyer, learned counsel for the 1st respondent, supported the order of the Election Tribunal, in the particular circumstances of this case. Though the 1st respondent took up the position before the Election Tribunal that a party is as of right entitled to ask for a recount, in my opinion, in this Court, Mr. S. Easwara lyer has rightly not taken up such a contention.
He was prepared to proceed on the basis that unless a party is able to satisfy the Election Tribunal that there are good and reasonable grounds for believing that there could be a miscount and that the Returning Officer could have committed mistakes, an order for recount could not be obtained. Mr. S. Easwara lyer, contended the fact that his client has not asked for recount in the main Election petition is no ground for negativing relief.
In fact, the learned counsel contended that an Election Tribunal has got the same powers as that of a Returning Officer and in this case, a request for recount was made to the Returning Officer according to the rules and he has improperly rejected the same without sufficient reasons. The rejection of this request by the Returning Officer has not appealed to the Election Tribunal,
22. The learned counsel also contended that the Election Tribunal has considered the various grounds on which a recount was asked for, and after dealing with each one of those grounds, has come to the conclusion that there are good grounds to believe that the counting was not in order and that the final figures might have been affected by a likely miscount.
In this connection Mr. Easwara lyer pressed before me very strongly the circumstance that there has been a very close voting in this case and admittedly, the writ petitioner has succeeded only by a margin of 23 votes. That has also been taken into account by the Election Tribunal. The learned counsel also contended that the leading text books on electoral law justify an order for recount when the voting is very close.
23. The learned counsel also further contended that the materials on which the Election Tribunal has based its conclusions, are amply indicated by the 1st respondent in his Election Petition and what the Election Tribunal has done is to satisfy itself that those allegations appear to be prima facie correct.
24. The learned counsel also contended that none of the parties had any objections to the matter being disposed of on the basis of affidavits filed in this case. .
25. Mr. Easwara lyer further pointed out that in view of the provisions for an appeal as per Section 116-A of the Representation of the People Act 1951, the petitioner herein is not entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution. The order for recount passed by the Election Tribunal cannot be said to go to the root of the matter and in any event further evidence will have to be let in on several other contentions raised by the parties.
26. Regarding the contention of Mr. Kalathil Velayudhan Nair that the Election Tribunal has mixed up the facts in this application along with the other 2 connected matters, which were jointly heard and disposed of by a common judgment, I am not satisfied that this criticism is correct. No doubt, in view of the fact that a common question as to the circumstances under which a recount can be ordered was in issue in these 2 other matters also-and to avoid unnecessary repetition, the Elections Tribunal has heard and disposed of all of them together by a common order. But, in my opinion, so far as the particular facts are concerned, the Tribunal has kept them separately and distinctly from, the other applications. Therefore, I am not satisfied that there is any error in the order of the Tribunal on this account.
27. In my opinion, the fate of this writ petition is practically concluded by the decision of this Court of the learned Chief Justice sitting with Mr. Justice Madhavan Nair, in Achutha Menon v. Election Tribunal Trichur, A. S. No. 729 of 1960 D/- 2-11-1960 (Since reported in AIR 1961 Kerala 186). That decision itself was given on an appeal against a decision of mine declining to interfere with an order passed by an Election Tribunal directing a recount. That order has been upheld by the Division Bench. Before I advert to the decision of the Division Bench, it is worthwhile to remember the observations of their Lordships of the Supreme Court regarding the non-interference by the High Court with interlocutory orders. The particular observation is contained in the decision of the Supreme Court reported in Veluswami v. Raja Nainar, AIR 1959 SC 422 at p. 429 which is as follows;
'As the question has also been raised as to-the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the-course of an enquiry before the Election Tribunal we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226. It should be remembered that under the election-law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was-challenged in applications under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in, Bhikaji Keshao Joshi v. Brijlat Nandlal, 1955-2 SCR 428: ((S) AIR 1955 SC 610). It is to remedy this defect that the Legislature has-now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under Section 116A, and its intention is obviously that proceedings before the Tribunal should go on with! expedition and without interruption and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders.'
28. Similarly, the Andhra Pradesh High Court in the decision reported in Sanjeevi Reddi v. G, C. Kondayya, AIR 1960 Andh Pra 421 has declined to interfere with an interlocutory order passed by the Election Tribunal and the decision on it was left over for hearing during the appeal under Section 116-A of the Representation of the People Act, 1951.
29. The learned Chief Justice in the decision referred to earlier, adverts to the observations of their Lordships of the Supreme Court extracted above and observes:-
'It is further well established that the writ is generally not issued where the orders asked to he vacated be on interlocutory applications before the lower tribunals.'
30. In a Division Bench ruling in Bhargavan v. Abdul Majeed O. P. 1205 of 1960, 1960 Ker LT 1262 : (AIR 1961 Kerala 183) again the learned Chief Justice, after adverting to certain passage from American Jurisprudence and Ferris on Extraordinary Legal Remedies, concludes as follows :
'It is clear that interference by certiorari in interlocutory orders is rare and justified under extraordinary circumstances.'
31. After [referring to the decision of the Bombay High Court in Y. B. Chavan v. K.T. Man-galmurti, AIR 1958 Bom 397 and certain other decisions, the learned Chief Justice again observes in O. P. 1205 of 1960, 1960 Ker LT 1262 : (AIR .1961 Kerala 183) as follows:
'The aforesaid cases establish the proposition, therefore, that should the decision in the interlocutory order be such, as to affect the very root of the case, the powers under Article 226 or 227 may well be exercised. Another exception is that should reversal of the interlocutory order he necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the case, certiorari may be issued.'
32. Therefore, according to the principles laid down by their Lordships of the Supreme Court, the refusal to interfere against interlocutory orders under Article 226 of the Constitution would be quite proper. According to the decision of the Division Bench ruling of this Court referred to above, interference can be made against the decision on an interlocutory order, if the order goes to the very root of the case or a reversal of the order, is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the case.
33. In this case, Mr. Kalathil Velayudhan Nab learned counsel for the petitioner, has not been able to satisfy me that the present case comes within the two exceptions referred to earlier which will justify the interference by this Court against the interlocutory order of recount passed by the Election Tribunal. Admittedly, the order in question does not go to the root of the case, because it is not as if a decision on that point, one way or the other, will effectively dispose of the Election Petition itself.
Admittedly, there are several other aspects which should be gone into and evidence has to be let in by the parties and decisions given on these aspects. Nor am I satisfied that a reversal of this order is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the case. No such extraordinary inconvenience or embarrassment which will be the consequence, if the order is allowed to stand, has been urged before me.
34. I have also considered these various decisions referred to above in disposing of recently Raghavan Nair v. Balagopal, O. P. No. 988 of 1960 (Kerala) a writ petition challenging the order of an. Election Tribunal permitting amendment on particulars in an Election Petition and I have also indicated that interference at an interlocutory stage is neither desirable nor justified.
35. These considerations by themselves are enough to dispose of this application. I am not satisfied that there is no evidence on record justifying the present order. After all, the Tribunal is only concerned to find out at this stage whether the first respondent has been able to satisfy it that there are reasonable grounds for believing that the counting was not in order and that final figures might have been affected by a likely miscount. On-this aspect the Tribunal has stated that it is so satisfied.
The first respondent has also urged before it the contention that the voting in this case is very close and therefore, to find out whether there has been no miscount, a recount is not only necessary, but also desirable. On that aspect also the Tribunal has been satisfied. Further, the Tribunal is also-satisfied that there was an application made by the first respondent before the Returning Officer himself for a recount and the Tribunal's view is that the rejection of that request by the Returning Officer is not proper.
36. The learned Chief Justice in the decision, in A. S. 729 of 1960, (1960 Ker LT 1252 : (AIR 1961 Kerala 186)) extracts a passage from Rogers-on Elections, Vol. II, 20th Edn., page 199 to the effect;-
'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.'
37. In Halsburys Laws of England, 3rd Edn., Vol. 14, paragraph 559, at page 310, the position, is stated as follows:-
'A petition which asks for 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 rota, for the trial of parliamentary election petitions before the trial on an affidavit showing the grounds on which the application is based. A re-count 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.'
38. In this case, the Election Tribunal has rejected the contention of the first respondent that he is entitled to have a recount as of right. But it has placed before it a proper test that there must be prima facie evidence of good grounds for believing that there may have been a miscount on the part of the Returning Officer.
39. Regarding a claim for recount in a close fight, Certain observations of the Madhya Pradesh High Court can be usefully adverted to. Those observations are contained in the decision reported in Inayatullah v. Diwanchand. AIR 1959 Madh Pra 58 (Hidayatullah, C. J., and Sen, J.,). The learned Chief Justice observes at page 72 as follows:-
'The recount which was demanded was refused and we think that regard being had to the close fight which had taken place between the two candidates a recount might well have been allowed. It a recount had been allowed at that moment which the law contemplates, there would have been no room for the, allegations which the Returning Officer and the counting assistants have to face. In our opinion, recount was validly claimed by Mahajan at the appropriate stage and that it was wrongly disallowed.'
Therefore, the view of the learned Judges in that case appears to be that in the case of a close fight, an order allowing a recount would be well within its jurisdiction.
40. In this case, it will be seen that one of the points urged before the Tribunal by the first I respondent, and which has found favour with the Tribunal, is that the voting is very close as will be evident from the fact that the writ petitioner succeeded only by very narrow margin of 23 votes.
41. In Parliamentary Elections by Schofield, 1959, 3rd Edition at page 365, the learned author-states.-
'It has been customary for the returning officer to accede to the request of a candidate to recount the votes and to allow, where the voting is close, a number of recounts.'
42. In Eraser's text book of Parliamentary Elections and Election Petitions, 3rd Edition, it is stated at page 222:-
'In England, when the majority is a narrow one, a re-count is granted almost as a matter of course.'
The Tribunal has adverted to some of these principles when ordering a re-count in this case,
42-A. It cannot be stated that in this case there is no evidence on record for the Tribunal for coming to the conclusion that there are good grounds to believe that the counting was not in order and that the final figures might have been affected by a likely miscount.
43. No doubt, the Tribunal has, when considering the 3rd ground urged by the first respondent, considered the various figures given in the returns of the Presiding Officers and those of the Returning Officer.
44. The first respondent has given sufficient indication 'in his Election Petition about some of these mistakes and the Election Tribunal has only looked into those records to satisfy itself that the apprehension of the first respondent is not without any reasonable basis. I do not think that there is any error committed by the Tribunal in that respect.
45. It is also seen that neither party appears to have insisted upon any oral evidence being adduced regarding the matters mentioned in the affidavit and therefore, it cannot be stated that the Election Tribunal erred in law in ordering the application on the basis of those affidavits. The Election Tribunal has also taken care to see that the first respondent is not given a right to have a scrutiny of the ballot papers which were rejected by the Returning Officer.
46. As observed by our learned Chief Justice in the decision in A. S. 729 of 1960 (1960 Ker LT 1252 : (AIR 1961 Kerala 186)):
'It is, therefore, clear that should grounds to the satisfaction of the Election Tribunal be made, re-count 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. We are not now 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 method 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'.
I very respectfully agree and adopt these observations. In this case, I have already stated that that Tribunal is of the view that as the voting is very close, it is desirable to have a recount. It is also satisfied that there are good grounds to believe that the counting was not in order and that the final figures might have been affected by a likely miscount.
47. The Tribunal has also taken into account in this case the further fact that an application for recount was made by the first respondent to the Returning Officer which was rejected and which rejection does not appeal to the Election Tribunal. In view of all these circumstances, in my opinion, the order for recount passed by the Tribunal cannot be said to be without jurisdiction.
48. In this view, I have not considered either the various sections of the Act or the rules referred to by Mr. Eswara Ayyar, learned Counsel for the first respondent. Therefore, for the reasons given above, this application must fail.
49. But Mr. Kalathil Velayudhan Nair, learned counsel, pointed out that in this case the order of recount and scrutiny made by the Election Tribunal may be understood to mean that the first respondent will be able to find out as to which of the voters have voted against him and therefore, secrecy of the Ballot may be violated.
50. I do not see any reason for this apprehension on the part of the learned counsel. The learned counsel also relied upon certain statements contained in the affidavit filed in support of I. A.30/1960 to the effect that as a result of the recount,the first respondent intends to shape his evidenceand case. I am not concerned with all those aspects at present because the Election Tribunal hasgot full jurisdiction to deal with such, matters atthe proper stage, :
But I would like to Clear up the apprehension, if any, of the petitioner as voiced by his counsel Mr. Kalathil Velayudhan Nair. The scrutiny ordered by the Election Tribunal will only be on the basis and within the provisions of rules 57 and 60 of the Representation of People (Conduct of Elections and Election Petitions) Rules, 1956. No other directions are necessary. This will be duly observed in the matter of scrutiny.
51. In the result, the application fails and is dismissed with costs of the first respondent.