S. Ramachandra Iyer, C.J.
1. This is an appeal under Section 116-A of the Representation of the People Act, 1951 at the instance of a defeated candidate against the order of the Election Tribunal (District Judge) Tiruchirapalli, dismissing his application to have the election set aside.
2. At the recent general election to the Madras legislative assembly from Uppiliapuram constituency in Musiri taluk, Tiruchirapalli Dt. held on 19-2-1962, three candidates, namely, the first respondent, the appellant and the second respondent contested. The counting of votes took place on 25-2-1962. We give below the candidates, their party affiliation with the symbols relative thereto and the votes secured by them:
First respondent Congress Two bullocks
with a yoke on 29435 votes
Appellant D. M. K. Rising sun 29077 votes
Second respondent Independent Lion 3766 votes
Invalid votes 2663 votes
3. The first respondent who secured the highest number of votes, the majority over his nearest rival being 358 votes, was declared elected. The appellant then filed a petition to get the election set aside alleging various irregularities and illegalities in the conduct of the election. Several of them were however not pressed during the trial of the petition, and in this appeal the appellant's case was confined to only ground of attack, namely, that relating to an alleged improper counting of votes. Before we proceed to state the precise ground on which that irregularity is rested, certain matters have to be mentioned.
3A. Simultaneously with the Assembly election an election for the Parliamentary seat for Tiruchirapalli district was also held. There were two Returning officers. One was Sri Subbaiyan, Re- venue Divisional Officer, Musiri, who was designated as the Returning Officer and was in charge of the Parliamentary election, and the other the Assistant Returning Officer Sri Thiagarajan, who was put in charge of the election for the State Assembly. At the time of the counting of votes, nine counting agents were allowed for each candidate. Besides, the Election Agent of each candidate as also the candidates themselves had access to the place of counting.
The counting of votes commenced at about 9 a.m. on 25-2-1962. The ballot boxes were distributed amongst 16 tables, each table having two counting officers and a supervisor. The Returning Officer and the Assistant Returning officer were also present. The counting officers were drawn from various departments of the Government and although some suggestion was made before the Tribunal that they were under the thumb of the returning officer', that charge has not been made out or persisted in. The declaration of the result was made at about 9 p.m. that evening. The result shows that within a period of about 12 hours 64341 votes had been counted. It also reveals that there there were a large number of invalid votes. The margin of difference between the appellant and the first respondent, the successful candidate, being small.
4. The case for the appellant is that there was a serious and deliberate irregularity committed at the time of the counting of votes, namely, that a large number of votes cast in favour of the 2nd respondent against the Lion symbol were improperly counted in favour of the first respondent, and further that certain invalid votes which contained markings in favour of the first respondent as well as the second respondent (that is, against the symobols of two bullocks under the yoke, as well as the lion) were counted in favour of the former. This case has been rejected by the Election Tribunal. There can be no doubt that if that case were made out, the return could not be regarded as accurate and there would be occasion for a recount and scrutiny of the votes.
5. The appellant's case rests solely on the evidence of five witnesses examined on his side. The first of them was a counting agent. He has spoken to both the aspects of the appellant's case and swore to the fact that the counting officer included such votes among those secured by the first respondent in spite of protests, and when the returning officer was told about it, he did nothing more than direct the counting officers to count properly thereafter. But he admitted that he did not ask the Returning officer to check the counting of votes from any booth. The second witness is a man of some status, being a graduate and a teacher in a school. He supported the first witness in regard to the irregularities in the counting. Curiously enough, he did not ask -the Returning officer for any recount, nor complained of any illegal practice to the other counting agents among whom were five advocates, two of them leading members in the profession. More strange than this is that he did not even choose to tell the appellant about it.
The other witnesses P. Ws. 3 to 5 were the counting agents for the second respondent, the other defeated candidate. They spoke to the same type of irregularities being committed at the counting places where they were watching. But they too did not inform anyone else about it, though they would claim that they made oral protests to the returning Officer a number of times; nor did they ask for recounting. The fifth witness would however give a different version. He stated that he created a disturbance as soon as he found that the votes were being improperly counted. In this he was not corroborated by any of the other witnesses and we can take it that the story of a protest by creating a disturbance is nothing more than a mere imagination on the part of this witness.
6. The appellant also gave evidence and he admitted that none of the advocate-counting agents appointed by him ever told him that any irregularity had been committed, even though he met them on several occasions.
7. The first respondent has examined two witnesses who were present at the time of the counting. One was a member of the Madras Legislative Assembly representing the Musiri constituency and the other, an advocate who was performing duties as the counting agent for the first respondent. Both of them emphatically denied the suggestion that invalid votes and votes cast in favour of the second respondent were counted in favour of the first respondent.
8. In this state of the evidence we find it extremely difficult to accept the appellant's case. More than this, there are several circumstances present in the case which conclusively show that the case is false. An irregularity of the kind alleged is a serious election offence and it is hardly likely that the various counting officers would have been parties to such an offence. It was suggested that the Returning officer was beholden to the first respondent and that he in connivance with the counting officers permitted the malpractices alleged. Some evidence was sought to be let in to show that Sri Subbaiyan, the Returning officer, was interested in the first respondent. But that attempt teached a dead end for it was not Sri Subbaiyan who was in charge of the counting of votes in relation to the State Assembly. His assistant Sri Thiagarajan was doing duties as a Returning officer with respect to that election. No suggestion has been made in this ca_se against Sri Thiagarajan. We are also of the opinion that, on the materials available, there is no justification for holding that even the Returning Officer who was in charge of the election for the Parliamentary seat had any interest towards any particular candidate or party.
Besides the two Returning Officers, there were nearly 48 persons drawn from the various departments of the Government serving as supervisors and counting officers. It passes one's comprehension why all these persons should conspire against the appellant and be parties to a serious criminal offence. The Election Tribunal has however remarked:
'If the work of counting had stopped with what was done at the counting tables alone, and if nothing else had been done thereafter, parhaps, even though the evidence let in by the petitioner in this respect is not convincing, some suspicion may arise having regard to the admission of P. W. 1 that it was not possible for one counting agent to see the counting by six persons'.
But at the same time it did not accept the appellant's case. We are wholly unable to share thesuspicion of which the Election Tribunal entertained. There can be no assumption or presumption that the counting officers commit irregularities. The fact that there are not sufficient number of counting agents to watch their counting does not mean that they were likely to commit a breach of their duty and be parties to a serious offence. Indeed the case spoken tq by the appellant's witness is that they saw the illegal counting of votes. The Election Tribunal was in error even in regard to the facts. As against the first respondent, there were two rivals, each one of them having nine counting agents. The counting of the votes for the Parliamentary seat was also done at the same place and the candidate who opposed the Congress candidate for that seat had also his nine agents, so that there were 27 counting agents who were zealously watching whether any irregularities were committed by the counting officers. As we said, there were sixteen tables where the counting was done. They could and indeed most likely they would have distributed themselves so that every counting place was effectively watched. None of them raised any protest that the counting was done on wrong lines. There is therefore no ground for any suspicion even, of any irregularity.
Again among the appellant's counting agents were five advocates and two graduate teachers. Of the five advocates, one was a leading member of the criminal bar in Tiruchirapalli, and anothers in addition to being one of the leading members of the Bar had himself been a member of the Madras Legislative Assembly for sometime. It is extremely unlikely that any improper counting of votes would have been committed or permitted when they were there; and even if any such irregularity had been committed, they would have been told about it. None of these advocates had been examined as a witness in the case.
The second respondent who was himself present at the time of the counting for sometime, did not raise any kind of protest. None of the witnesses, except P. W. 5, speak to any violent protest which would have certainly ensued if such irregularities had been committed. The two witnesses examined on the side of the first respondent swore that after the counting was over, the Returning officer said that as the difference in votes between the successful candidate and his nearest rival was small he would be prepared to consider any objection on the part of anybody and requested those present whether they wanted a recount. This evidence has been accepted by the Election Tribunal. Rule 63 of the Conduct of the Election rules gives a right to the candidate or, in his absence, to his Election Agent, to apply in writing to the Returning officer for a recount. That is to say, after the completion of the counting, the Returning officer should record the re-suits of the counting in form No. 20 and announce the total number of votes secured by each candidate as per the counting. After such an announcement is made, the candidate or his Election Agent might apply in writing to the Returning Officer for a recount. It is significant that there was no application on the part of any candidate for a recount.
9. Mr. Rajah Aiyar, appearing for the appellant, seeks to get over this significant circumstance by stating that the appellant's election agent had let him down. There is however no evidence to support that case. Further, the case for the appellant was not that the votes cast in his favour were wrongly counted in favour of the first respondent, but on the other hand it was that the votes that were cast in favour of the second respondent that were illegally diverted and counted in favour of the first respondent. If that were so, one would have expected the second respondent who was present at the time of the counting, or his agent, to ask for a recount. None of them did any such thing. Nor did any of them even orally ask for a recount. This circumstance is entirely against the case of the appellant. We have, therefore, no hesitation in rejecting the case that a large number of votes cast in favour of the second respondent were counted in favour of the first respondent. Nor do we accept the case that the counting of the votes in favour of the latter was augmented by the inclusion of invalid votes.
10. It is then argued that having regard to the small margin by which the first respondent got elected, the Tribunal should have suspected that all was not well with the counting and that a recount should be granted. An election once declared can he set aside only on the grounds referred to in Section 100(1) of the Representation of the People Act, 1951. No election can be set aside on mere suspicion. Nor can we agree to the proposition that the mere fact that a successful candidate secured only a small number of votes over his nearest rival necessarily means that there was something wrong about the election. Illegality or irregularity in an election or in the process of counting of votes is a matter for proof and nothing can be done on the basis of mere suspicion.
11. Mr. Rajah Aiyar then argued that as the appellant has prayed in his petition that on a proper count of the votes he would be the person who would have secured a majority of the lawful votes, the Tribunal should have directed a recount, albeit no kind of irregularity or corrupt practice had been proved in the case. In support of his contention learned counsel cited the following passage from Fraser's Law of Parliamentary Elections and Election Petitions III Edn. page 222:
'A petition may be lodged claiming a seat on the ground that the petitioner had a majority of lawful votes, but praying only for a recount of the votes without alleging any corrupt or illegal practice or asking for a scrutiny. In such a case the petition does not go to trial, but the practice is to issue a summons at the Election petition office returnable before one of the election Judges applying for an order that the votes may be recounted before the Assistant to the prescribed officer. An application should be supported by an affidavit showing the grounds for supposing that there has been miscount. Where the majority is very small, the application is, as a rule, allowed as of course.'
12. There is however no such procedure available under our law. Under Section 100(1)(d)(iii) of the Representation of the People Act, an election will be vitiated by the improper reception of any vote or of a vote which is void. A person who impugns the election should also prove in such a case that the result of the election had been materially affected by reason of such improper reception. What the appellant wants in the present case is not even a mere recount. He says that certain votes which were invalid were taken into account and certain votes were wrongly included in favour of the first respondent; That charge would really involve a scrutiny of the ballot papers afresh.
13. In Parker's Election Agent and Returning officer, how the votes wrongly cast should be dealt with is considered at page 214 thus:
'When the Returning officer thinks that there has been an error in the counting, he can recount the votes, before he 'declares the result.....But if,after he has declared the result, the counting is still erroneous, the mistake can only be rectified by filing an election petition praying a recount.' Under our law the right to have a recount is before the declaration of the result It has been so provided in Rule 63 to which we have made reference earlier. As regards the 'right of the Tribunal to direct a recount, it appears that every in England recount can be granted only in cases which are substantiated by specific instances and reliable prima facie evidence. This is clear from the well known Stepney case, (1892) 4 O M & H 35, where Denman, J. said: 'We do not accede to the argument of Mr. Gully that by merely asking for a recount in any case upon grounds reasonable or unreasonable, the party has the right to have the votes re counted..... The scrutiny being closed, Mr. Gully for the respondent called our attention to the respondent's claim to have the votes recounted. He at first contended that this was claimed asof right but he was unable to cite any authority for that proposition..... We decided against the contention that the respondent was entitled to a recount as a matter of right, but offered to hear evidence tending to show that there has been a mistake on the part of the Returning officer. We heard witnesses on both sides upon the point and were satisfied, I may say mainly upon the evidence of one of the witnesses called by the petitioner, that there were strong grounds for thinking that the return could not be strictly relied upon. We, therefore, determined upon directing the recount...'
14. Coming to proceedings in this country, we find in Hamrnond's Election cases, 1920-1935 page 305, while discussing the grounds which would justify a recount, it has been observed at page 307:
'It is well settled that no candidate is as a matter of right entitled to such recount or scrutiny merely for the asking..... It is a matter of discretion for the Court, and the petitioner has to make out and prove specific grounds which would satisfy the Court that the return was not accurate and that recount and scrutiny are called for in the interests of justice.'
15. To the same effect is a latter case dealt with at page 671, where it was held that where an application for recount of votes rested on nebulous allegations about the counting of batches of votes twice over, that was not a prima facie case established to warrant the directing of a re-count; a recount would only be granted in cases which are substantiated by specific instances and reliable prima facie evidence. If the law were otherwise it will indeed lead to considerable inconvenience. A defeated candidate in an unexceptionable election might harass the successful candidate by filing a frivolous petition and asking for a recount, involving thereby a repetition of the process of counting with no manifest advantage to anybody concerned. We have indicated sufficiently that there is no proof, not even suspicion of any irregularity at the counting in this case. There is therefore no justification for directing a recount of the votes. The request for which is based on speculative rather than real reasons.
16. This appeal fails and is dismissed with costs of the first respondent.