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Pala Ram Vs. Mangtu Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 731 of 1982
Judge
Reported inAIR1985Raj37
ActsRajasthan Panchayat Act, 1953 - Sections 89; Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960 - Rule 78
AppellantPala Ram
RespondentMangtu Ram and anr.
Appellant Advocate Bhagwati Prasad, Adv.
Respondent Advocate R.N. Bishnoi, Adv.
DispositionAppeal dismissed
Cases ReferredIn Km. Sharadha Devi v. Krishna Chandra
Excerpt:
- industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman part time employees held, part time employees are not excluded from the definition of workman in section 2(s) merely on the ground that they are part time employees. the ex abundante cautela use of the words either whole time or part time by the legislature in the definition of working journalist in the working journalists and other newspaper employees (conditions of service and miscellaneous provisions) act, 1955, does not mean that the definition of workman in the prior act i.e. industrial disputes act, 1947 intended to exclude part-time employees from the definition of workman. the expression part time has nothing to do with the nature of appointment, but it only regulates the.....dwarka prasad, j.1. this appeal has been filed against an order passed by a learned single judge of this court dated december 3, 1982 allowing the writ petition filed by mangtu ram in the matter of election of sarpanch under the rajasthan panchayatact and the rules made thereunder.2. the appellant palaram and the respondent mangtu ram were the two contesting candidates for the office of sarpanch of gram panchayat, mahendrapura. the election for the said office took place on december 10, 1981. out of 1862 votes cast at the aforesaid election, mangtu ram received 879 while palaram appellant received 873 votes and 110 votes were rejected on the ground of being invalid. mangtu ram, having received more votes than palaram, was declared to be duly elected as sarpanch. palaram appellant.....
Judgment:

Dwarka Prasad, J.

1. This appeal has been filed against an order passed by a learned single Judge of this Court dated December 3, 1982 allowing the writ petition filed by Mangtu Ram in the matter of election of Sarpanch under the Rajasthan PanchayatAct and the Rules made thereunder.

2. The appellant Palaram and the respondent Mangtu Ram were the two contesting candidates for the Office of Sarpanch of Gram Panchayat, Mahendrapura. The election for the said office took place on December 10, 1981. Out of 1862 votes cast at the aforesaid election, Mangtu Ram received 879 while Palaram appellant received 873 votes and 110 votes were rejected on the ground of being invalid. Mangtu Ram, having received more votes than Palaram, was declared to be duly elected as Sarpanch. Palaram appellant thereupon filed an election petition in the Court of Munsif, Nohar challenging the election of Mangturam to the office of Sarpanch. One of the main grounds taken in the election petition filed by Palaram was that 16 valid votes cast in his favour were improperly rejected by the Returning Officer during the course of counting of votes, while 12 valid votes which were actually cast in favour of i Palaram were wrongly counted as votes cast in favour of the returned candidate. It was,thus alleged that Palaram had realty secured 901 valid votes, whereas Mangturam got only 867 votes and, therefore, Palaram should have been declared elected as Sarpanch having secured majority of valid votes cast at the aforesaid election. The election petition was contested by the returned candidate, who denied the allegations made in the election petition.

3. The learned Munsif framed 9 issues, out of which issue No. 7 was to the effect as to whether the returning officer wrongly declared Mangturam elected as Sarpanch by a majority of 6 votes by erroneously rejecting 16 valid votes cast in favour of Palaram and by including 12 valid votes cast in favour of Palaram into the packet of the returned candidate. The election petitioner filed an application on July 14, 1982 before the learned Munsif requesting him to summon the record of the election containing the ballot papers for the purpose of recounting. On July 26, 1982, the learned Munsif passed an order on the aforesaid application, holding that the main dispute between the parties in the election petition related to improper rejection of valid votes. The learned Munsif held that in order to arrive at a just conclusion, it would be proper that the rejected ballot papers may be inspected, so that their validity may be examined He, therefore, directed that the record of election containing the ballot papers may be summoned. Thereafter on July 31, 1082 the learned Munsif inspected the rejected ballot papers but all of them were found to be validly rejected and none of the valid ballot papers were found to have been improperly rejected. However, the learned Munsif then proceeded to inspect the ballot papers containing votes cast in favour of the returned candidate Mangtu Ram and sorted out therefrom 25 ballot papers, which in his view were of doubtful validity and kept them separately, as he was of the view that the question of their validity ought to be considered The matter was then adjourned to August 6, 1982. On the last mentioned date, the returned candidate submitted an application before the learned Munsif raising an objection regarding the inspection of ballot papers containing the votes cast in his favour. It was stated on his behalf that the court was not entitled to examine the ballot papers containing the votes cast in favour of the returned candidate as on July 26, 1982 the Court did not pass any order for inspection of votes cast in favour of the returnedcandidate; but the only order passed on that day was regarding the inspection of the rejected ballot papers. The learned Munsif, however, rejected the application filed by the returned candidate on August 6, 1982 on that very day, on the ground that on 31st July, 1982 an oral prayer was made by the learned counsel for the appellant for inspection of the votes cast in favour of the returned candidate and no objection in respect thereof was raised on behalf of the returned candidate. It was also observed by the learned Munsif that the order dated July 26, 1982 did not preclude him from inspecting the ballot papers containing the votes cast in favour of the returned candidate, as the same was necessary in the interest of justice. The learned Munsif thereafter proceeded to scrutinise the 25 ballot papers which were considered by him doubtful and held that 9 votes out of the valid votes cast in favour of the returned candidate were invalid and were improperly accepted as valid votes by the returning officer. The result was that the votes cast in favour of the returned candidate were reduced to 870, as against 873 votes cast in favour of the election petitioner. Thus, on account of the inspection and scrutiny of the ballot papers of the returned candidate, the learned Munsif came to the conclusion that Palaram should be declared elected as Sarpanch while the election of the returned candidate should be set aside. The election petition was consequently allowed by the order of the learned Munsif dated August 7, 1982 and Palaram was declared elected as Sarpanch of the Gram Panchayat, Mahendrapura and the election of Mangturam was set aside.

4. Mangturam thereupon filed a writ petition in this Court, challenging the validity of the aforesaid order passed by the learned Munsif, which was allowed by the learned single Judge by his order dated December 3, 1982. It was held that the learned Munsif was not justified in inspecting the ballot papers containing the votes cast in favour of the returned candidate as he had no jurisdiction to scrutinise such ballot papers and that the election of the returned candidate should not have been set aside on the basis of such an inspection and scrutiny. The order passed by the learned Munsif dated August 7, 1982 was set aside by the learned single Judge and he was directed to pass an appropriate order in the election petition in accordance with law.

5. The main submission made by the learned counsel for the appellant before uswas that the inspection and scrutiny of ballot papers containing the votes cast in favour of the returned candidate was made with the consent of the learned counsel appearing on behalf of the returned candidate before the Election Tribunal and as no objection was raised on behalf of the returned candidate to such inspection and scrutiny of ballot papers on July 31, 1982, the respondent was precluded from agitating the question of correctness of the order of inspection at a subsequent stage, much less in the writ petition filed in this Court. The decisions of this Court in Amarsingh v. Munsif Magistrate, Jodhpur 1967 Raj LW 224, Ganga Ram v. Jeewan Ram 1970 Raj LW 348 and Rameshwar v. Munsif & Judicial Magistrate, Nokha, 1981 WLN (UC) 130 were relied upon by the learned counsel in support of his, aforesaid contention. The learned counsel for the respondent supported the order passed by the learned single Judge.

6. Before proceeding to consider the rival submission made by the learned counsel for the parties, it would be proper for us at this stage to read the allegations made in the election petition about the improper acceptance or rejection of ballot papers. In sub-para (illegible) of para 2 of the election petition, the election petitioner stated that the returning officer, in order to cause unlawful gain to the respondent in the election, improperly rejected 16 valid votes cast in favour of the election petitioner. According to the election petitioner, he had obtained majority of valid votes cast at the election and the 16 valid votes, which were unlawfully rejected, ought to have been counted as valid votes cast in his favour. It was also alleged that the election petitioner was not allowed to note the number of those 16 ballot papers, which were, thus, improperly rejected Then, in sub-para (illegible), it was further averred by the election petitioner that 12 valid votes cast in his favour were wrongly added to the packet of the returned candidate. In sub-para (illegible) of para 2, it was averred that the election petitioner got 901 valid votes, while only 867 valid votes were cast in favour of the returned candidate and 34 votes should have been rejected, but the returned candidate was improperly declared to have been elected by a majority of 6 votes after rejecting 16 valid votes cast in favour of the election petitioner and by counting 12 valid votes cast in favour of the election petitioner as valid votes of the returned candidate. Thus, the entire case setup by the election petitioner was that 16 votes validly cast in his favour were improperly rejected while 12 votes validly cast in his favour were erroneously counted as votes cast in favour of the returned candidate. It may be observed that the appellant did not set up a case in the election petition that some invalid votes were improperly accepted as valid votes cast in favour of the returned candidate. Even particulars of the 16 votes alleged to have been improperly rejected or of the 12 votes alleged to have been erroneously counted as votes cast in favour of the returned candidate were not furnished, and an allegation was made that the appellant was not allowed to note the number of 16 ballot papers, which though validly cast in favour of the election petitioner but were improperly rejected by the returning officer.

7. In Amarsingh's case 1967 Raj LW 224 there was a specific allegation made in the election petition that the returning officer had wrongly accepted 14 ballot papers in favour of Amarsingh and wrongly rejected 25 ballot papers which were validly cast in favour of Radha Kishan. It was observed in that case that when the Tribunal proceeded to open the bundles containing the ballot papers, no objection was taken on behalf of Amarsingh to the re-counting of votes and that in view of his conduct it was not open to Amarsingh to raise an objection for the first time before the High Court about the validity of the recounting by the Tribunal. It was held in that case that the allegations about improper acceptance and improper rejection of the ballot papers was clearly made and that even if the allegations were vague, the election petitioner could have furnished better particulars if an objection in that respect would have been raised by the respondent before the Tribunal. The learned Single Judge, in the aforesaid circumstances, observed as under in that case (1967 Raj LW 224):--

'I accordingly hold that the allegations made in the election petition with regard to the improper acceptance or rejection of ballot papers were not vague and that there was material before the Tribunal on the basis of which it could be prima facie satisfied that a case for recount was made out Further I hold that as the present petitioner raised no objection before the Tribunal to the re-count of the ballot papers at the time of recounting, he cannot be allowed to raise an objection about it in the writ petition.'

8. In Rameshwar's case 1981 WLN (UC) 130 a learned single Judge of this Court observed as under :--

'in the instant case the allegations in the election petition were not general and vague but, on the other hand, in para No. 3 of the election petition, it was specifically alleged that upon counting of votes it was found that each party got 114 valid votes. Thereupon, Rameshwar asked for recounting of the votes and the Returing Officer acceded to his request and recounted the votes. Upon recounting the Returning Officer wrongly rejected 1 valid vote of each party and, in this manner, the valid votes secured by each party were declared to be 113. Rameshwar, thereupon, asked the Returning Officer to count the votes again. The Returning Officer, however, favoured Rameshwar by counting one invalid vote in favour of the latter and thus declared him to be elected to the Office of Panch by a margin of one vote only. It was further alleged in para No. 4 of the election petition that out of 114 votes declared to have been secured by Rameshwar two votes were such in which seals were put on the straight line dividing the compartment of Ramchandra and Rameshwar in the ballot papers and so the intention of the two voters to vote for Rameshwar was not clear. Rameshwar, on the other hand, stated in his reply to the election petition that the allegations made by the election petitioner were not correct In a case like this where the difference in the votes polled by the two rival candidates was only one, the dispute about the number and the nature of invalid votes that had been counted in favour of Rameshwar can only be settled after inspection of the ballot papers.'

In both the cases relied upon by the learned counsel for the appellant allegations of improper acceptance of invalid votes or improper rejection of valid votes were clearly made and it was observed by the learned single Judge while deciding the aforesaid two cases that when the Tribunal proceeded to inspect the ballot papers in the presence of the parties and their counsel no objection was taken on behalf of the returned candidate to the recounting of votes and further that an objection to the procedure adopted by the Tribunal about the recounting of votes could not be allowed to be taken for the first time in the writ petition before the High Court ,We may observe that both the aforesaid caseswere rightly distinguished by the learned single Judge as they are not applicable to the facts of the present case. In the case before us in the first place there was no allegation about improper acceptance of invalid votes in favour of the returned candidate. But as we have already referred to above, the allegation was of improper rejection of 16 valid votes cast in favour of the election petitioner and of erroneous counting of 12 valid votes of the election petitioner as votes cast in favour of the returned candidate. Moreover, the Election Tribunal passed a specific order on July 26, 1982 to the effect that the record of election may be summoned for the purpose of inspection of the rejected ballot papers only.

Thus, the declared intention of the Tribunal at that time was only to inspect the rejected ballot papers. It is noteworthy that the learned Munsif did not refer to the alleged oral submission on behalf of the learned counsel for the election petitioner or the consent on the part of the learned counsel for the returned candidate regarding inspection of the votes cast in favour of the returned candidate in the order-sheet dated July 31, 1982. If such a consent would have been there, the learned Munsif would have naturally recorded the same in the order-sheet dated July 31, 1982. Moreover, on that day the learned Munsif had merely selected 25 ballot papers for the purpose of scrutinising them later, as he considered them to be of doubtful validity. At that stage the matter stood adjourned to August 6, 1982. On the last mentioned date the counsel for the returned candidate filed an objection in writing to the inspection and scrutiny of votes cast in favour of the returned candidate. Thus, the objection about the inspection and scrutiny of ballot papers containing votes cast in favour of the returned candidate was raised on his behalf before the election tribunal on August 6, 1982 even before the said tribunal proceeded to scrutinise the alleged doubtful ballot papers. In this view of the matter, the present case was not one where the objection to the scrutiny of valid votes was raised for the first time in the writ petition, but such an objection was taken specifically and in writing before the election tribunal on August 6, 1982,prior to the tribunal embarked upon a scrutiny of the votes contained in the 25 allegedly doubtful ballot papers.

9. In Damodar Prasad v. Civil Judge, Sembhar 1968 Raj LW 73 Jagat Narayan, J.who had decided the Amarsingh's case 1967 Raj LW 224 himself observed as under :--

'The Tribunal would be justified in granting an order for inspection only if two conditions are fulfilled; namely (1) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (2) the tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. It was pointed out that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.'

In that case, the learned Judge held that the allegations made in an election petition regarding improper rejection or improper reception of invalid votes were vague and no inspection of the ballot papers could be granted on the basis of such vague allegations.

10. Similarly in Gangaram's case 1970 Raj LW 348 the same learned Judge held that the recount of valid ballot papers was not justified and it was observed as under :--

'An objection was taken on behalf of Gangaram on the strength of various decisions of this Court and of the Supreme Court that because no particulars have been given with regard to the improper acceptance or improper rejection of votes the petitioners were not entitled to a recount. The Tribunal however overruled the objection on the ground that the election petition was filed by two voters and not by the defeated candidate. Rule 80 equally applies to a petitioner who is a defeated candidate and to one who is merely a voter who was not a defeated candidate was not required to give particulars then the law would be evaded by the defeated candidate by getting an election petition filed by one of his supporters. I am accordingly of the opinion that it is as essential for a petitioner who is not a defeated candidate to give particulars of the improper acceptance or rejection of votes as it is for a defeated candidate. As to what particulars are sufficient in case of an election challenging the election to the Office of Sarpanch or Panch have been dealt with in Amar Singh v. Munsif Magistrate, Jodhpur 1967 Raj LW 224'.

11. In Ram Niwas v. Sardar Singh, AIR 1980 Raj 149 a learned single Judge observedthat the Munsif trying an election petition in a case of election to the Office of Sarpanch in a Gram Panchayat should not order a recount of ballot papers without first recording that he was prima facie satisfied on the material produced before him regarding the truth of the allegations made for a recount The learned Judge observed as under (at P. 155) : --

'Before making a recount of the ballot papers the learned Munsiff did not record any order that he was satisfied that in the special circumstances of the case the recount was necessary in the interest of justice. By not doing so, the secrecy of the ballot papers which is sacrosanct could not be maintained. The Court must be prima facie satisfied on the material produced before it about the truth of the allegations made for a recount and a recounting cannot be made only with a view to fish materials for declaring the election to be void or for indulging in roving inquiry.'

12. In Shiv Kishan v. Radha Kishan 1968 Raj LW 30, Jagat Narayan, J., as he then was, held that a party could not ask for a recount unless he takes the requisite pleas in his pleadings and emphasised that vague allegations regarding improper acceptance and rejection of votes would not entitle a party to a recount, but a prima facie case should be made before a recount should be ordered. In that case, the learned Judge observed as under: --

'A contention was raised on behalf of the petitioner that he did not ask for recounting the votes counted for Radha Kishan and for recounting his rejected votes in written-statement because Radha Kishan had asked for a recounting of all the votes in his election petition. This contention has no force. A careful reading of the election petition goes to show that Radha Kishan only asked for a recount of these votes which according to him had been improperly received. He did not ask for a recount of all the votes. Further the petitioner on the other hand did not assert in his written statement that any invalid vote has been counted for Radha Kishan or that any of his valid votes has been rejected by the Returning Officer. As I have pointed out above even a bare allegation that the Returning Officer had improperly received votes for Radha Kishan and rejected his votes would not have been sufficient to entitle him to claim recount. The petitioner was therefore not entitled to get the votes counted for Radha Kishan recounted.'

13. A similar observation was made by Kansingh, J. in Vasudeo v. Ram Kishan AIR 1972 Raj 74 in a case relating to election to a Municipal Council to the following effect (at p. 82) :-

'If, having applied its mind to the matter before it, the Court came to the conclusion that there was a prima facie case for rescrutiny or a recount, then I am unable to hold that the Court was not entitled to rescrutinise or recount the rejected ballot papers. Where there are quite a large number of votes about which a challenge is made then it may be expected of the party to disclose the number of such ballot papers in order to avoid fishing or roving inquiry in the ballot boxes but where the number of ballot papers to be counted is indicated with sufficient particularity otherwise, arid the number is not large the mere fact that the numbers of the ballot papers have not been given in the election petition, it may not disentitle a party from asking for the scrutiny of the ballot papers.'

14. Rule 78 of the Rajsthan Panchayat and Nyaya Panchayat Election Rules, 1960 prescribed the manner in which and the grounds on which the election of a returned candidate to the Office of Sarpanch or Up-Sarpanch of a Panchayat could be challenged. The relevant portion of Rule 78 runs as under: --

'78. Manner of challenging an election or co-option under Rules. -- The election or co-option of any person as the Panch of a Panchayat or the election of any person as the Sarpanch or Up-sarpanch of a Panchayat or as the Member or Chairman of a Nyaya Panchayat may be called in question by presenting a petition to the Munsif, or, where there is no Munsif, to the Civil Judge, within whose jurisdiction the place of headquarters of the Panchayat or the Nyaya Panchayat, as the case may be, is situated, within thirty days from the date on which the result of such election or co-option is declared, on any one or more of the following grounds.-

* * *

(d) that the result of the election or co-option, as the case may be, in so far as it concerns the return candidate was materially affected.-

* * *

(iii) by the improper reception, refusal orrejection of any vote or the reception of any vote which was void, or

* * *

(e) that in fact the petitioner or some other candidate received a majority of the valid votes, or

* * *'

15. Thus, the election of the returned candidate could be challenged on the ground of improper reception of votes in favour of the returned candidate. It can also be challenged on the ground of improper refusal or rejection of any vote cast in favour of any other candidate or on the ground of reception of any vote which was void, in favour of the returned candidate. Thus, the scope of enquiry in a case falling under Rule 78(d)(iii) is to determine whether any vote was improperly received in favour of the returned candidate or any vote has been improperly refused or rejected with regard to any other candidate. At the enquiry, the onus is on the election petitioner to show that by reason of the infirmities specified in Rule 78(d)(iii), the election of the returned candidate was materially affected. The scope of the enquiry in such a case is limited for the simple reason that the clause requires a consideration of the question as to whether the election of the returned candidate has been materially affected.

16. The law on the subject relating to recounting of ballot papers is well settled. As far back as in the year 1964, their Lordships of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 1964 SC 1249 while dealing with an election dispute arising out of the Representation of the People Act, 1951, pointed out the conditions on which an inspection of ballot papers could be justified as under (at p. 1252) :--

'An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled :

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. ............Therefore, a candidate who seeks tochallenge an election on the ground that there has been improper reception, refusal or rejection of votes, at the tune of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers and of demanding a recount It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting; of watching and of claiming a re-count that the application for inspection must be considered.'

To the same effect is the latter decision of the Supreme Court in Dr. Jagjit Singh v. Giani Kartar Singh AIR 1966 SC 773 wherein their Lordships of the Supreme Court observed as under : --

'The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations.'

17. The same view was again reiterated in Jitendra Bahadur Singh v. Krishna Behari AIR 1970 SC 276; wherein the following observations were made by their Lordships of the Supreme Court (at p. 280) :

'The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decidethe dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reason whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations. There is absolutely no proof in this case to support the allegations on the basis of which the scrutiny of the ballot papers was prayed for. The trial court did not i mention in its order even a single reason in support of its satisfaction as to the need for inspecting the ballot papers. Every judicial order must be based on reasons and these reasons must be disclosed in the order itself. Unfortunately the learned judge had overlooked the importance to be attached to the secrecy of the ballot papers,'

The same view was also expressed by their Lordships of the Supreme Court in Ram Autar Singh v. Ram Gopal Singh AIR 1975 SC 2182, which runs as under (at p. 2186) :--

'The above being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these additional pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate.

18. Again in Chanda Singh v. Ch. Shiv Ram AIR 1975 SC 403 it was observed as under by the Supreme Court (at P. 406) :--

'A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument Moreover, the secrecy of the ballot which is secrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount, Micawberishly looking for numerical good fortune or windfallof chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step.'

19. In Beliram Bhalaik v. Jai Beharilal, AIR 1975 SC 283 the following observations were made in this respect (at p. 289) : ~

'A whimsical and bold statement of the candidate that he is not satisfied with the i counting is not tantamount to a statement of the 'grounds' within the contemplation of Rule 63(2). The application was thus not proper application in the eye of law. It was not supplemented even by in antecedent or contemporanious oral statement of the author or any of his agents with regard to any irregularities in the counting........ Althoughno cast-iron rule of universal application can be or has been laid down, yet from a beadroll of the decisions of this Court two broad guidelines are discernible; that the Court would be justified in order a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal 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.'

20. In Bhabhi v. Sheo Govind AIR 1975 SC 2117 their Lordships of the Supreme Court made the following observations in the same context (at P. 2122) :-

'The Court would be justified in ordering arecount of the ballot papers only where; (1)the elections petition contains an adequatestatement of all the material facts on whichthe allegations of irregularity or illegality incounting are founded; (2) On the basis ofevidence adduced such allegations are primafacie established, affording good ground forbelieving that there has been a mistake incounting; and (3) The court trying the petitionis prima facie satisfied that the making of suchan order is imperatively necessary to decidethe dispute and to do complete and effectualjustice between the parties.'

21. In Km. Sharadha Devi v. Krishna Chandra AIR 1982 SC 1569, Desai, J. speaking for the Supreme Court observed as under (at p. 1573-74) :--

'When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof qf errors in counting and if eroors in counting are prima facie established 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. If 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 approachwould 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 Halsbury's Law of England, 4th Edn., Vol 15, para 940). This Court has in terms held that prima facie proof of error complained of must I be given by the election petitidner 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.'

22. The aforesaid cases firmly lay down that an order for inspection of ballot papers or recounting of votes could only be passed if two conditions are satisfied, namely,

(1) That the petition for setting aside an election contain an adequate statement of material facts on which the petitioner relies in support of his case; and

(2) that the court or tribunal trying the election petition is prima facie satisfied that in order to do complete justice between the parties inspection of ballot papers is necessary.

23. It is also equally well settled that an order for inspection of ballot papers or for recounting of votes could not be made on the basis of vague pleas made in the petition unsupported by material facts. Merely because there is a suspicion or the petitioner believes that there has been an improper reception, refusal or rejection of votes, it would not be proper to pass an order of inspection of ballot papers. The case of the petitioner must be set out with precision supported by material facts in order to establish a case for inspection of ballot papers or recounting of votes. The importance to be attached to the secrecy of ballot papers cannot be lightly overlooked and an inspection of ballot papers can only be made when the court is satisfied that a prima facie case exists. And a court can be satisfied only on the basis of proof and not on the basis of mere allegations. We are, therefore, in agreement with the learned single Judge and hold that there is no clear averment in the election petition that any of the votes counted in favour of the returned candidate was invalid or was improperly received. Apart from the fact that there was total absence of averment in the election petition on the question of improper acceptance or improper reception of votes in favour of the returned candidate, no evidence at all was adduced in the election petition to show that any of the votes counted in favour of the returned candidate was either invalid or was improperly received. The learned Munsif passed the order permitting inspection of ballet papers on the vague ground that such a course would be in the interest of justice. In our view, the learned Munsif acted in uttar disregard of the legal position as enunciated in the aforesaid cases by their Lordships of the Supreme Court and by this Court in Amarsingh's case 1967 Raj LW 224 and Rameshwar's case 1981 WLN (UC) 130. Thus, on the basis of the averments made in the election petition no case for recounting of votes cast in favour of the returned candidate was made out.

24. As regards the submission of the learned counsel for the appellant that the order for inspection and scrutiny of ballot papers was passed by the learned Munsif with the consent of the learned counsel appearing on behalf of the returned candidate before thatCourt, we have already referred to above the entire sequence of events. From the order of the Tribunal recorded on July 26, 1982, it was apparent that the election record was summoned by the election tribunal only for the purpose of inspection of the rejected ballot papers. Even in the order dated July 31, 1982 consent of the counsel appearing on behalf of the returned candidate regarding inspection and scrutiny of ballot papers containing votes cast in favour of the returned candidate has not been recorded. We have also observed above that if such a consent would have been given on July 31, 1982 by the learned counsel appearing for the returned candidate, then ordinarily the learned Munsif must have recorded the same in the order-sheet inasmuch as the proceedings which took place on that date have been recorded therein in detail. Moreover, as mentioned above, on that date the learned Munsif merely selected 25 ballot papers allegedly of doubtful validity, with the intention of scrutinising them later on the next date and adjourned the case to August 6, 1982. On that date, the counsel for the returned candidate not only orally objected to the inspection of the ballot papers but he also submitted a detailed application in writing raising objection to the inspection and scrutiny of ballot papers of the returned candidate. Thus, it appears to us that the returned candidate raised an objection to the inspection and scrutiny of the ballot papers containing his votes at the earliest opportunity, when the Court was proceeding to inspact and scrutinise the ballot papers with a view to decide the question of validity thereof. As an objection about the correctness of the procedure adopted by the learned Munsif was raised before him on August 6, 1982 we are unable to hold that the ballot papers of the returned candidate were inspected by the learned Munsif with the consent, either express or implied, of the returned candidate. Learned single Judge has held that the conduct of the returned candidate, considered as a whole, was such that he could not be precluded from agitating the question about the validity of the inspection of his ballot papers in the writ petition, because he had raised an objection in respect thereof even before the learned Munsif on August 6, 1982 before the learned Munsif proceeded to consider the validity of the votes cast in favour of the returned candidate. We are in complete agreement with the view taken by the learned single Judge on this question.

25. As a result of the aforesaid discussion, the appeal has no force and the same is dismissed and the order passed by the learned single Judge dated December 3, 1982 is upheld. The parties are left to bear their own costs.


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