Kan Singh, J.
1. I have before me two appeals concerning the validity of an election to the Municipal Council of Bikaner held on 25-10-70 from Ward No. 31.
2. The counting of votes took place on 26-10-1970. In all 1441 votes were cast. Out of them 139 votes had been rejected by the Returning Officer; some were rejected because there were more than one seal impressions and others were rejected as there were other ink marks on them, or for the reason that the ballot papers had no seal marks altogether. Shri Vasudeo was found to have secured 524 valid votes, while Shri Ramkishan was found to have secured 493 valid votes. Accordingly. Shri Vasudeo was declared elected.
3. In November. 1970 Shri Ramkishan filed an election petition challenging the election of Shri Vasudeo before the Dist. Judge of Bikaner who subsequently transferred it to the Senior Civil Judge at Bikaner. The two-fold prayer was made in the election petition. In the first instance, it was pray-ed that the election of Shri Vasudeo be declared void and secondly that Shri Ramkishan the election petitioner be declared elected instead. The sole ground taken therein was that the counting had not been properly done and the Returning Officer had erroneously rejected 91 votes that were in favour of the election petitioner Shri Ramkishan. It was also, inter alia, prayed that the record of the ballot papers be summoned and the votes be re-scrutinised and counted. Shri Vasudeo, the returned candidate, resisted the election petition. He denied that any votes in favour of the election petitioner had been wrongly rejected. The returned candidate further opposed the prayer for re-scrutiny or re-count on the plea that the election petitioner had not made out any case for the re-scrutiny or re-counting of the votes.
4. The learned Senior Civil Judge framed the following issues :--
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Issue No. 3 was decided on 2-2-1971. The election petitioner took the stand that as he did not want a recount of all the ballot papers but wanted the re-scrutiny of only the rejected votes on which two impressions had been made, he had really brought out the necessary particulars as it would be sufficient for ordering inspection or re-scrutiny of votes. The returned candidate, on the other hand, submitted that the petitioner was raising only a vague allegation that the rejection of votes was improper and that he had not specified how many votes were rejected due to the double impressions and how many votes were rejected due to the marks of ink on the ballot papers. The learned Senior Civil Judge held as follows :--
'In my opinion, the petitioner has made out very clear allegations and has come to the court with definite pleadings and it cannot be said that by getting the ballot papers examined he is fishing out to find some defects. I, therefore, hold that the ballot papers can be examined and counted by this court and issue No. 3 is decided in favour of the petitioner.' After this order was passed, the election petitioner examined himself as a witness on 22-2-1971. He did not examine any other witness. Shri Vasudeo examined himself as D. W. 1 on 14-4-1971. On 5-5-1971, the learned Senior Civil Judge re-scrutinised the 139 rejected ballot papers and came to the conclusion that 52 valid votes in favour of Shri Ramkishan had been wrongly rejected and they were therefore, to be added to the votes found to have been secured by him by the Returning Officer. At the same time he also held that Shri Vasudeo had secured 37 more votes. In the result, even though Shri Vasudeo was found to have a lead of 16 votes, the learned Senior Civil Judge declared the election in favour of Shri Vasudeo void on the ground that Shri Vasudeo having not made a recrimination as contemplated by Section 41 (6) of the Rajasthan Municipalities Act, 1959, hereinafter to be referred as the 'Municipal Act', was not entitled to the benefit of the valid votes found in his favour from out of the rejected votes. The learned Senior Civil Judge also disallowed Shri Ram-kishan's prayer for declaring him elected in place of Shri Vasudeo on the ground that Shri Vasudeo, on consideration of the whole matter, cannot be said to have secured the majority of votes as contemplated by Section 34 of the Municipal Act. In the result, the learned Senior Civil Judge declared that the election of Shri Vasudeo from Ward No. 31 was void and . that the further prayer of the election petitioner that he be declared duly elected be disallowed.
5. Against this judgment both Shri Vasudeo and Shri Ramkishan have filed appeals under Section 46 of the Municipal Act.
6. A two-fold contention has been raised on behalf of Shri Vasudeo. It was submitted in the first place that Shri Ramkishan, the election petitioner in the court below had failed to make out a case for re-count of votes, as he had not furnished the necessary particulars of the ballot papers that were wrongly rejected by the Returning Officer. In the second place, it was submitted that there was no necessity of filing any recrimination for Shri Vasudeo and even on the averments, made by the election petitioner the returned candidate was entitled to the benefit of the valid votes found to be in 'favour of the returned candidate as a result of the recount. It is maintained that this he could do in opposition to the petitioner's prayer for having the election of the returned candidate declared void.
7. On the other hand, it has been contended on behalf of Shri Ramkishan that a case for recount had been made out by the election petitioner and in the present case the recount came after the statements of both the parties had been recorded and accordingly the Tribunal had an opportunity of appreciating the whole matter before it ordered the recount. The view taken by the Tribunal was sought to be supported regarding the necessity for the returned candidate filing a recrimination before he could have claimed the benefit of any of the rejected votes that were as a result of scrutiny found to be valid and in favour of the returned candidate.
As regards disallowing the prayer for having the election petitioner declared elected, learned counsel submitted that the Tribunal was not justified in refusing this relief to the election petitioner when he had been found to have secured the majority of votes. In that connection it was pointed out that no notice could have been taken of the votes that were found to be valid and in favour of the returned candidate for want of a recrimination and once these votes were put aside the Tribunal had no option but to declare the election petitioner as the person elected from Ward No. 31,
8. Both the learned counsel cited a number of cases to fortify their respective contentions. Learned counsel for Shri Vasudeo invited attention to Ram Sewak v. H. K. Kidwai. AIR 1964 SC 1249; Jagjit Singh v. Giani Kartar Singh. AIR 1966 SC 773; Jitendra Bahadur v. Krishna Behari, AIR 1970 SC 276; Nathu Ram v. R. P. Dikshit, AIR 1965 All 454; Dhara Singh v. District Judge, Meerut, AIR 1968 SC 227; Ravindra Nath v. Raghbir Singh. AIR 1968 SC 300 and Basaviah v. Bachiah, (1959) 17 Ele LR 293 (Mys). Learned counsel for Shri Ramkishan on the other hand tried to distinguish some of these cases and placed reliance on Jabar Singh v. Genda Lal, AIR 1964 SC 1200; H. R. Gokhale v. Bharucha, AIR 1969 Bom 177. I will have occasion to briefly refer to these cases hereinafter. Before doing that I may first read the relevant statutory provisions.
9. Section 34 of the Municipal Act lays down on what grounds an election may be called in question. It is as follows :--
'Section 34. Grounds on which election may be called in question-
The election of any person as member of a Board may be questioned by an election petition on one or more of the following grounds, namely-
(b)... ... ... ...
(d) that the result of the election in so far as it concerns a returned candidate has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his election agent or - a person acting with the consent of such candidate or election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, or
(The portions not applicable have been omitted.)
10. Section 36 provides for presentation of an election petition. Section 37 lays down as to who should be the parties to the election petition. Section 38 lays down as to what are to be the contents of an election petition. I may read this section.
'Section 38. Contents of petition--(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings,
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.'
11. Section 39 lays down that a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. Section 40 provides for the Election Tribunal who has to hear the election petition. Section 41 lays down the procedure to be followed by the Tribunal. Sub-section (3) of this section lays down that except so far as may be otherwise provided by this Act or by any rule made thereunder, the procedure provided in the Code of Civil Procedure, 1908 (Central Act V of 1908) in regard to the trial of suits shall so far as it not inconsistent with this Act or any rule and so far as it can be made applicable be followed in the hearing of election petitions. Sub-section (4) lays down that the provisions of the Indian Evidence Act, shall be deemed to apply in all respects to the trial of an election petition. Sub-section (5) provides for the payment of expenses to witnesses. Sub-section (6) provides for declaration of any candidate other than the returned candidate to have been duly elected. I may read this sub-section in full :--
'Sub-section (6). When, in an election petition, a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
Provided that the returned candidate or such other party, as aforesaid, shall not be entitled to give such evidence unless he has within fourteen days from the date of the service of the copy of the petition under Sub-section (1) given notice to the Judge of his intention to do so and has also given the security and further security referred to in Sub-sections (1) and (2) respectively of Section 53.' Other sub-sections need not be noticed.
12. Section 44 inter alia provides that at the conclusion of the trial of an election petition, the Judge (the Tribunal) shall make an order-
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Sub-section (6) of Section 44 may also be read: Sub-section (6). If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been, duly elected, the Judge, if satisfied as to the matters specified in clauses (e) and (f) of Section 34, shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.'
13. Under the Municipal Act the State Government has made an Election Order captioned 'Raiasthan Municipalities Election Order, 1960.' This Election Order lays down the procedure for the holding of election. Section 59 of this order provides for preservation, inspection and production of records. It lays down that the Collector shall retain for three years the packets and returns forwarded to him by the Returning Officer under clause 68 and shall then, unless otherwise directed by a competent court, cause them to be destroyed. Sub-section (2) of this section provides that while in the custody of the Collector, the packets of ballot papers whether counted, rejected, tendered or challenged and the marked copy of the electoral roll shall not be opened and their contents shall not be inspected or produced except under the order of a competent court. Section 53 of the Election Order was amended in 1963. It lavs down when a ballot paper shall be rejected. It reads as follows :--
'53. Rejection of ballot paper-- (1) A ballot paper shall be rejected :
(a) if it bears any mark or writing by which the elector can be identified, or
(b) if no vote is recorded thereon, or
(c) if there are marks against the names of more candidates than there are vacancies to be filled, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate or candidates the elector intended to vote, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design, different from the serial numbers or. as the case may be, design of the ballot papers authorised for use at the particular polling station, or where the polling station has more than one booth, at such booths, or
(h) if it does not bear the mark which it should have borne under the provisions of Sub-clause (2) of Clause 37.
Provided that where the Return-ing Officer is satisfied that any such delect as is mentioned in parts (g) and (h) has been caused by any mistake or failure on the part of a Presiding Offi-cef or Polling Officer, the ballot paper shall not be rejected merely on the ground of such defect;
Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall before a particular candidate clearly appears from the way the paper is marked.
(2) Before rejecting any ballot paper under Sub-clause (1), the Returning Officer shall allow the Counting Agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.
(3) The Returning Officer shall re-cord on every ballot paper which he rejects the letter 'R' and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp.
(4) All ballot papers rejected under the clause shall be bundled together.
(5) The decision of the Returning Officer as to the validity of a ballot paper shall be final subject only to reversal in an election petition.'
14. It is the Representation of the Peoples Act which has provided the pattern for the Election Law for the Local Bodies including the Municipal Boards and Councils in Rajasthan. The provisions of Section 34 of the Municipal Act correspond to Sections 100 and 101 of the Representation of the People Act. Section 41 (6) of the Municipal Act which provides for recrimination corresponds to the provisions of Section 97 of the Representation of the People Act. The other relevant provisions bearing on the elections, such as, what is to be contained in the election petition, how they are to be verified and how they are to be heard and dealt with are also similar. In a word, the offspring has all the essential characteristics of the parent. In the circumstances both the learned counsel have largely drawn on the case law that has clustered round the relevant provisions of the Representation of the People Act.
15. The questions that call for consideration in the present case are :
(1) Whether the election petitioner has made a prima facie case for the inspection of the ballot papers. There is subsidiary question which has arisen on the contention raised by learned counsel for Shri Ramkishan in attempting to distinguish the several Supreme Court cases relied on by learned counsel for the returned candidate Shri Vasudeo, that those cases related to the prayer for inspection by the election petitioner or any of the parties, but they did not deal with a situation where the Court or the Tribunal itself is re-scrutinising or re-counting the ballot papers. It was maintained that the powers of the Court hearing the election petition are not fettered or restricted by the considerations that are germane to the consideration of the prayer for inspection of ballot papers by the parties to the election petition. Learned counsel pointed out that the Court has to be guided by the broader considerations of justice and it will be in the light of the facts and circumstances of a particular case that the Court would decide as to whether it should scrutinise the ballot papers and then arrive at the correct conclusion- in the circumstances the subsidiary question that arises here is when the Court should scrutinise or recount the ballot papers.
(2) The next question is whether in the absence of a recrimination by the returned, candidate he could claim the benefit of the votes found to have been cast in his favour as a result of the re-scrutiny or recount by the Court as in the present case. I may now at this point proceed to deal with the cases cited before me.
16. In AIR 1964 SC 1249, Shri Ram Sewak Yadav was found to have secured the highest number of votes and he was declared elected. The defeated candidate Hussain Kamil Kid-wai filed an election petition, inter alia, on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and in consequence thereof the election was materially affected and that the tendered votes were wrongly rejected by the returning officer. No oral evidence was led by the parties. An application was moved by the election petitioner for the inspection of the ballot papers so that he may be able to show that the returning officer had improperly received, refused or rejected the votes and that on a true count he would get the largest number of valid votes. The Tribunal rejected the application for inspection holding that the ballot papers may be allowed to be inspected only if it is necessary in the interests of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court, however, held that the ballot papers had actually been called for from the returning officer and were before the Tribunal and there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing. On an ap-peal to the Supreme Court their Lordships had, therefore, to consider the question whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers. Their Lordships referred to the provisions of Sections 80 and 83 of the Representation of the People Act and pointed out :--
'An election petition must contain a concise statement of the material facts' on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under the Code of Civil Procedure when trying a suit But the power which the Civil Court may exercise in the trial of suits is confined to the narrow limits of Order 11, Code of Civil Procedure. Inspection of documents under Order 11, Code of Civil Procedure may be ordered under Rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18 (2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand 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 : that power is clearly implicit in Sections 100 (1) (d) (iii). 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order 11, Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128 (1).' Their Lordships 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 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.' Their Lordships added : '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 aa 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.'
17. In Jagjit Singh v. Kartar Singh, AIR 1966 SC 773. their Lordships reiterated what was said in Ram Sewak Yadav's case, AIR 1964 SC 1249. Their Lordships pointed out that: 'in dealing with the question (of inspection), the importance of secrecy of the ballot papers 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 examindation 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 and 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 roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter; for attempt to lay down such a rule would be inexpedient and unreasonable- (underlining is mine).
18. In AIR 1970 SC 276 their Lordships again considered the question after referring to the above two cases. Their Lordships observed :--
'Similarly, as to the rejection of the votes polled in favour of the unsuccessful candidate, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore, it is quite easy for them to note down the serial number of the concerned ballot papers. Therefore, if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial ' numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections; the material facts required to be stated, are not satisfied and hence scrutiny of ballot papers should not be ordered.'
19. Learned counsel for the returned candidate has put emphasis on the last sentence in the above passage, He submitted that the election petitioner was in a position to note down the numbers of the ballot papers as and when they were rejected by the returning officer and he should have furnished the numbers of such ballot papers in the election petition and without that it cannot be said that the election petitioner had made out a case for the inspection of the ballot papers.
20. In AIR 1969 Bom 177, Vimadalal, J., had come to the conclusion that there was nothing either in the language of the statute or of the statutory Rules, or in the judicial decision on the point, which lays down that the serial numbers of the ballot papers must be furnished in a petition based on the wrongful acceptance and wrongful rejection of ballot papers. The learned Judge referred to the provisions of Section 83 of the Representation of the People Act and pointed out by contrasting the provisions for giving particulars regarding the plea of corrupt practice with the other cases that these provisions do not require that serial numbers of ballot papers should be specified in the petition. It was, according to the learned Judge, open to the petitioner to give such particulars, other than the serial numbers of the ballot papers, the validity of which he challenges, as the Court might consider to be adequate, having regard to the facts of the same. Another consideration was adverted to by the learned Judge. According to him, the reason why the law did not enjoin that serial numbers of ballot papers should be furnished in the petition was that, having regard to the fact that the law itself contemplates continuous and rapid counting of votes, as is clear from Rules 60 and 53 (4). It would obstruct that process if the Counting Agents of the various candidates were to be at liberty to note down the serial numbers of the objected ballot papers, together with the grounds of objection In respect of each of them. Even the aright to inspect under Rule 56 (3). according to him, was confined by the law to rejected votes only, and even in regard to rejected votes there was no provision which required the serial numbers of rejected ballot papers to be furnished in the petition,
21. I have carefully considered the question. The section which lays down what are to be the contents of an election petition does not provide in so many words that serial numbers of ballot papers where the allegation is that they were wrongly rejected to the prejudice of the election petitioner are to be furnished in the election petition. In Jagjit Singh's case, AIR 1966 SC 773 their Lordships have laid down that no hard and fast rule can be laid down regarding what particulars or averments would be sufficient and what would not be. In other words, sufficient elasticity was left in the enunciation of the principles, I am unable to come to the conclusion that in Jitendra Bahadur's case. AIR 1970 SC 276 their Lordships intended to whittle down what was said in Jagjit Singh's case, AIR 1966 SC 773. What their Lordships were pleased to observe in Jitendra Bahadur's case, AIR 1970 SC 276 should, in mv humble view, be taken to relate to the facts and circumstances of that particular case. In the light of the surrounding circumstances of that case their Lordships had reached the conclusion that as the serial numbers of the ballot papers were not given. the petitioner cannot be said to have made out a case for scrutiny of ballot papers. It has been pointed out by their Lordships in AIR 1965 SC 1887 that the observations of the Supreme Court are not to be read as the statutory enactments. It is a well known principle of appreciating precedents that the generality of the observations made in a case are always taken to be cir-cumscribed by the facts and circumstances of that case. It may not always be appropriate to cull out or detach certain observations from the context and then make them applicable to a different set of circumstances. The perusal of the cited Bombay case, AIR 1969 Bom 177 as also Jitendra Bahadur's case, AIR 1970 SC 276. shows that whereas according to Vimadalal, J.. It would be difficult for a party to note down the number of ballot papers as they are being counted, their Lordships in Jitendra Bahadur's case, AIR 1970 SC 276 do not seem to have shared that experience. According to their Lordships, it is easy for a counting agent to note down the numbers of ballot papers as they are being scrutinised and rejected.
22. To my mind, while it is desirable that an election petitioner should specify the number of ballot papers which he wants to be counted in his favour or to be rejected against the opposing candidate or candidates. but this cannot be said to be the sine qua non for making out a case for the inspection or scrutiny of ballot papers in each and every case. By and large. It should depend on the facts and circumstances of the particular case in hand. Learned counsel for the election petitioner had sought to distinguish the cited cases on the ground that they were regarding the prayer for inspection by a party before the Election Tribunal, but these cases according to him. In so many words do not deal with the powers of the Court or the Tribunal in having the scrutiny of the ballot papers for giving a correct decision in the case. I should think the consideration of maintaining the secrecy of the ballot papers should be there regarding the exercise of discretion by the Court. I should also think that, by and large, the considerations as would entitle a party to have an inspection of the ballot papers should guide the Court in ordering re-scrutiny or recount of such ballot papers even if the Court may not be taken to be fettered in the same manner as the party seeking the inspection.
23. In (1959) 17 Ele LR 293 (Mys), Fraser in his 'Law of Parliamentary Elections and Election Petitions' pointed out at page 224 :--
'In order to obtain a scrutiny, it is essential to allege that the person for whom the seat is claimed has a majority of legal votes, and the pra-yer should ask for a scrutiny.
When a scrutiny is claimed, each party must deliver a list of the votes intended to be objected to.....'
24. In Halsbury's Laws of England (Third Edition) by Lord Simonds, it was observed at page 310 of Vol. 14 :--
'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 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.'
25. In Basaviah's case. (1959) 17 Ele LR 293 (Mys). a Division Bench of the Mysore High Court of which K. S. Hegde, J., as he then was a member observed as follows :--
'A candidate who seeks a declaration that the election of the returned candidate was void and that he (the petitioner) was duly elected, on the ground that if the votes had been properly counted, he would have got a majority of votes. Is not entitled to have a recount of the votes as a matter of absolute right. A recount can be ordered only if he makes out a prima facie case that if the votes had been properly scrutinised and counted he would have got a majority of the votes.'
26. Now. let me turn to the facts of the present case. As has been already observed, the recount was done by the Court on 5-5-1971. Before that the two contestants had already appeared in evidence. Shri' Ramkishan had stated that the seal that was used consisted of a cross-mark surrounded by four arrows whose tips were in anti clock-wise order. Many of the reiected ballot papers had two seals, but one seal showed the cross marks with arrows anti clock-wise and the other seal impression showed the arrows surrounding the cross in the reverse or clockwise order. This, according to him, went to show that the seal impression was faintly conveyed to another part of the ballot paper while folding. Shri Ramkishan had tendered all these ballot papers which were reiected in his evidence. I will have occasion to deal with the propriety of this procedure at the appropriate place in the judgment, but it is sufficient to say here that all the reiected ballot papers were before the Court. Shri Vasudeo had admitted that there were such ballot papers as had two seal impressions. Thus, at the time the Court had scrutinised the ballot papers, it not only had before it the averments in the election petition which had been verified by the petitioner on his own knowledge, but the two statements of the contesting Candida tes. 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 re-scrutinise or re-count 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 numbers 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 suffi-cient particularity otherwise, and 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. In the present case, therefore, I am satisfied that the Court was justified in looking into the ballot papers before it.
27. I may next turn to the question whether the learned Senior Civil Judge was justified in excluding the votes which were on re-scrutiny found to be valid votes in favour of the returned candidate. Section 41 (6) of the Municipal Act is in pari materia with Section 97(1) of the Representation of the People Act. Learned Counsel for the election petitioner relies on AIR 1964 SC 1200 for showing that without filing a proper recrimination as laid down in the proviso to Section 41 (6), the returned candidate cannot have such votes counted in his favour. In delivering the judgment of their Lordships of tbe Supreme Court, Ga jendra-gadkar J., as he then was, considered at length the relevant provisions of the Representation of the People Act and then, inter alia, observed as follows :--
'If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so. the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.' His Lordship further observed :--'Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the vali-dity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by Section 97. the re-turned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under Section 101(a) on the basis that the other votes counted by tbe returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid.'
28. Learned counsel for the returned candidate has tried to distinguish the observations in the above case by drawing attention to Rule 57 and now Rule 56 (6) of the Conduct of Election Rules. That rule lays down that the Election Tribunal will have to assume that every ballot paper which had not been rejected, would constitute one valid vote and it is on that basis that the finding will have to be made under Section 101(a).
It is true, there is no such corresponding rule under the Municipal Act, nevertheless, that in my opinion, would not make any significant difference. Sometimes the statutory provisions only embody what is just common sense-Now in the process of counting a vote which is not rejected is in the very nature of things accepted, because the opposite concept of rejection could in the nature of things be nothing but an acceptance. Therefore, the absence of such a rule, to my mind, will not make any difference in the rationale of the observations. That being so, it was necessary for the returned candidate to have filed a recrimination as provided by proviso to Section 41 (6) of the Municipal Act, before he could have claimed the benefit of the votes in his favour that were found to be valid as a result of the recount. The learned Senior Civil Judge was, therefore, not in error if the benefit of such votes was refused to the returned candidate for want of a recrimination by him.
29. I may now deal with the question as to whether the learned Senior Civil Judge was right in disallowing the prayer of the election petitioner to declare him elected instead of the returned candidate. The perusal of the statement of Shri Ram Kishan, the election petitioner, made on 22-2-1971. shows that he had tendered in evidence the votes that were in a sealed cover namely, the rejected votes- Thus the effect of this was that all the votes became part of the record of the Court. This was a very peculiar situation of the election petitioner's own making and if confronted with such a situation the Court felt that the election petitioner has failed to show that he had secured the majority of votes, then I am afraid, no fault can be found with the conclusion reached by the Court.
30. This, however, is not to sav that such a course should have been permitted to be adopted by the election petitioner. The maintenance of secrecy of the ballot papers is a paramount consideration and that should have guided the Court. Once a document is tendered in evidence, there remains no secrecy whatsoever about it. It is against the fairness of a judicial proceeding that a document which becomes part of a party's evidence or forms part Of the judicial record would thereafter remain a secret. The parties concerned could obtain certified copies of documents forming part of the record or which have been tendered in evidence and cross-examination could also be directed regarding those documents. The provision regarding re-count of votes or the restricted inspection made permissible to the parties concerned are special provisions and there is no warrant thereunder or otherwise for making the ballot-papers part of the evidence of a party or to take them on the record of the case. Such a course, as was adopted in the present case has to be deprecated.
31. In the result, therefore, I am not persuaded to accept any of the two appeals.
32. Accordingly, both the appeals are hereby dismissed. The parties are left to bear their own costs.
33. Both the learned counsel prayed for grant of certificates under Article 133(1)(c) of the Constitution for appealing to the Supreme Court. I have followed the Supreme Court cases and I do not think the prayer raises substantial questions of law justifying the grant of a certificate. The prayer for certificates is, therefore, hereby refused.