P.R. Gokulakrishnan, J.
1. Fourth Respondent in I.A. No. 981 of 1971 is the petitioner herein. I.A. No. 981 of 1971 was filed on O.P, No. 18 of 1970, on the file of the District Munsif V Court (Election Court), Tirupur, by the first respondent herein. The said I.A. was for recounting of the votes which were produced before the Election Court. The main O.P. No. 18 of ,1970 in which I.A. No. 981 of 1970 was filed, was for setting aside the election of the petitioner herein as President of the Appayanaiekenpatti Panchayat and to declare that the first respondent herein is the duly elected President of the said Panchayat.
2. The first respondent and the petitioner contested the election to the Presidentship of the Appayanaiekenpatti Panchayat. The first respondent contested the election under the symbol of 'Road Roller', while the petitioner contested under the symbol of 'Pumpkin'. Ultimately, the Election Authority declared that the first respondent secured 710 votes and the petitioner, 712 votes, and declared that the petitioner was the successful candidate for the post of President of Appayanaickenpatti Panchayat. Aggrieved by the said declaration, the first respondent filed the election petition O.P. No. 18 of 1970 aforesaid.
3. In the election petition, apart from various allegations such as malpractices, the first respondent has stated that the entire procedure adopted in counting the votes was irregular, illegal and void, that the entire procedure of counting was irregular, confusing and without any method or order, that votes were not counted ward-war, that the counting table was allowed to be surrounded by the petitioner, his agents and supervisors and thereby the first respondent and his men were kept away' from the counting table with the result that they were not able to look at the votes, that the votes counted were not shown to the first respondent and his son, that several requests to look at the votes were of no avail, that the request for recounting immediately made by the first respondent was turned down without any reason or consideration, that the Election Authority had rejected more than 60 votes as invalid without any proper or valid reasons, that many of the votes cast in favour of the first respondent which were valid were invalidated oh flimsy or on no grounds, without any justifiable reasons, that in spite of the protests and representations made by the first respondent, the officers did not heed to his request, that the officer in charge of counting took into consideration certain invalid votes cast in favour of the petitioner as valid Votes, inspite of objections by the first respondent, that the Election Authority erred in proceeding with the counting of votes during mid-night, after 12 o'clock, which is against the rules framed therefor and that due to all these defects the result of the election was materially affected.
4. On 21st July, 1971, the first respondent filed I.A. No. 981 of 1971 for a recount, alleging, among various other things, that the declaration of 60 invalid votes was, improper, that some of the invalid votes were counted in favour of the petitioner, and that if the votes were recounted the first respondent will be automatically declared elected.
5. Respondents 2 to 4 filed objections stating that there were no irregularities in the counting and that there was not enough material for allowing a recount.
6. The petitioner filed objections stating that there were neither grounds nor any provision for granting the application for recount, that the rejection by the officer for recount had been properly made, since there is no provision in the rules for complying with the said demand, that the number of votes improperly rejected and improperly received was not given, that the allegations were vague and did not justify the granting of a recount, that the decision in Ruppuswamy Goundar v. Tichaikara Gounder (1966) 1 M.L.J. 256, was rendered before the coming into existence of the rules regarding the conduct of Panchayat President election and as such the same will not be applicable and that the request for recount cannot be granted in an interlocutory application of this kind.
7. The Election Court (District Munsif), Tiruppur, who heard the interlocutory application (I.A. No. 981 of 1971) observed that there is no vague plea in the recount application, that the first respondent came forward with a definite plea regarding rejection of votes, that the first respondent himself was present at the time of counting and had made definite allegations regarding improper reception and rejection of votes and that it is possible that a small number of votes should have been wrongly counted when the counting took place throughout the night, and held that there was sufficient ground for the inspection of votes by the Election Court. The said application for recount was thus allowed on 31st July, 1971.
8. The petitioner applied for a copy of the said order only on 10th August, 1971, obtained the copy on 10th August, 1971 itself and has filed this C.R.P. in this Court on 12th August, 1971.
9. Thiru V. Vedantachari, the learned Counsel appearing for the petitioner, attacked the order of recount made by the Election Court on three grounds, viz:
(i) a re-count was not asked for in the main election petition;
(ii) the application for recount was not presented at the earliest stage; and
(iii) there is no proof as laid down by various decisions of this Court and of other High Courts and the Supreme Court in order to comply with the request for recount.
In support of his contentions, Thiru Vedantachari, the learned Counsel, cited a number of decisions which I will consider presently.
10. Thiru S.K.L. Ratan, the learned Counsel for the first respondent, contended that there are allegations in the main election petition itself as td why a recount has to be made, that in the election petition the first respondent has also prayed to declare him as duly elected President of the Appayanaickenpatti Panchayat, that there is specific mention in the election petition to the effect that on proper and valid counting it will be found that it is only the first respondent who has secured majority of votes as against the petitioner, that as such, the first respondent is entitled to be elected as the President of the Appayanaickenpatti Panchayat, and that there are specific allegations in the election petition and in the recount application filed by the first respondent to enable the Court to order a recount, and considering the difference in votes, which is only two, the recount ordered is justifiable. Apart from these contentions, Thiru S.K.L. Ratan has also stated that in pursuance of the order for recount, a recount was in fact made on 6th August, 1971, in which the counsel for both the parties have taken part. According to the learned Counsel, only subsequent to the finding by the Election Court in its recount, the petitioner applied for a copy of the order and filed this levision petition. According to the learned Counsel the recount clearly brought out that certain invalid votes had been counted as 'valid' Votes and that the first respondent secured 708 votes as against 704 votes secured by the petitioner.
11. Thiru V. Vedantachari, the learned Counsel for the petitioner, is correct in contending that this Court has to consider, in this proceeding, only as to whether the recount order can be upheld in the light of the various decisions rendered on the question of recount.
12. Before considering the case-Law, it is necessary to consider the specific allegations made by the first respondent for the purpose of a recount. It cannot be ignored that the difference of vote& between the first respondent and the petitioner was only two - the petitioner Was declared elected as President with a. margin of two more votes in his favour. There are specific allegations in the election petition, and in the recent application, to the effect that the Authorities have rejected 60 votes as invalid on. flimsy or on no ground and that some of the invalid votes were also counted in favour of the petitioner. Apart from, these specific allegations, the first respondent has also alleged that the votes were not counted ward-war, that there Was confusion in counting the votes, that the first respondent, his son and his agents were not allowed near the counting table since the petitioner's representatives were surrounding the same, that the counting was done throughout the night and that the request of the first respondent for a recount was turned down by the Authorities on technical grounds.
13. The Rules framed for the Decision of Election Disputes relating to Panchayats passed in G.O. Ms. No. 1248, Rural Development and Local Administration, dated 26th April, 1961, deal with the presentation of election petition and. procedure to be adopted by the Election. Court.
Rule 2(a) states:
The petition shall contain a statement in concise form of the materia facts on which the petitioner relie and the particulars of any corrup practice which he alleges, and shall where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and. verified in the manner prescribed, for the verification of pleadings in the. Code of Civil Procedure, 1908.
14. Section 83(1) of the Representation of the People Act, 1951, deals with the contents of an election petition, and runs thus:
(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 (V of 1908),for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
15. Rule 11(c) of the rules framed for the Decision of Election Disputes relating to Panchayats, states-
If in the opinion of the Election Court-
(a) the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of a nomination paper or vote or by any noncompliance with the provisions of the Act or the rules made thereunder, the election of such returned candidate shall be void.
16. Section 100(d)(iii) of the Representation of the People Act reads:
Subject to the provisions of Sub-section (2) if the High Court is of opinion-
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected - (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void.
The above quoted Rules and Section s of different enactments more or less are analogous. Rule 11(c) of the above said Rules, and Section 100(d)(iii) aforesaid, give power to the respective Court and Tribunal to order a recount. As far as the present case is concerned, the main election petition alleges improper refusal and improper rejection of votes and also contains the allegation that such type of counting has materially affected the result of the election. In the present election petition, there is also a prayer to declare that the first respondent is the duly elected President of the Appayanaickenpatti Panchayat. In the interlocutary application filed for recount, the affidavit requests the Election Court to read the allegations in the main election petition as part and parcel of the affidavit in the interlocutory application. Considering all these aspects, I do not find any difficulty in accepting the argument of the learned Counsel for the first respondent that the petition for recount is maintainable.
17. Thiru V. Vedantachari, the learned Counsel for the petitioner, cited the decision in Kuppuswamy Gounder v. Pickaikara Gounder (1967) 1 M.L.J. 256, wherein a single Judge of this Court has set aside the order of recount made by the Election Tribunal as also the declaratory order made by the Election Tribunal that the petitioner before it was the duly elected candidate. In that decision, Anantanarayanan, C.J., has observed:. All that the petitioner states is that the rejection of 22 votes was 'improper, invalid and illegal'. This is not at all sufficient compliance with the requirement laid down in the Supreme Court decision. The petitioner should specifically state why he was impugning the rejection of these votes and what were the grounds therefor. If the Tribunal is satisfied that inspection and recount are necessary in the light of the averments, it may certainly proceed to order these steps. This apart, it appears most doubtful if the Tribunal would have jurisdiction to proceed into the propriety of other votes not within the ambit of the pleadings at all. This in effect is to constitute the Tribunal as a Returning Officer, which is not the intendment of the Rules. The Supreme Court decision, no doubt, related to the Representation of the People Act, 1951, and the Election Rules, 1961, thereunder. But it is not in controversy before me that the Election Rules, with regard to Panchayats closely follow the Rules framed under the Representation of the People Act.
On these observations, the revision petition was allowed, setting aside the order of the Election Tribunal. It is significant to note that in that case, all that the petitioner stated was that the rejection of 22 votes was improper, invalid and illegal; nevertheless, the Election Tribunal had sent for those 22 votes and made a recount; apart from that the Election Court had also gone a step further in inspecting other votes despite there being no pleadings in regard 'thereto in the election petition. But, as far as the present case is concerned, there is specific allegation that the Election; Authority had rejected 60 votes as invalid without any proper or valid reasons, that many of the votes cast in favour of the first respondent which were valid were in validated on flimsy or on no grounds, that the protests and representations made by the. first respondent were of no avail, that the invalidation of such votes is unilateral, irregular and unsustainable and void and that the officer also proceeded to take into: consideration certain invalid votes cast in favour of the petitioner as valid votes inspite of the objection of the first respondent. Thus, we see that there are specific allegations made by the election petitioner as to the improper rejection and improper reception of votes:
18. The principles that are found in Kuppuswamy Gounder v. Pichaikara Goundar (1967) 1 M.L.J. 256, are that (i) the election petition itself should contain an adequate statement of material facts relied on by the election petitioner in support of his case, and (ii) that the Tribunal should be prima facie satisfied that in order to satisfactorily do justice to the controversy, inspection of the ballot papers was essential. The decision further states that the election rules with regard to Panchayat Elections. closely follow the rules framed under the Representation o the People Act.
19. Rule 19 of the Tamil Nadu Panchayat (Conduct of Election of President of Village Panchayat) Rules, 1970 deals with 'counting of votes'. Rule 56 of the Conduct of Election Rules, 1961, framed under the Representation of the People Act, 1951, deals with counting of votes. It is significant to note that in the Conduct of Election Rules, 1961, there is specific provison under Rule 56(3) which is to the effect:
Before rejecting any ballot paper under Sub-rule (2), the Returning Officer shall allow the counting agents present, a reasonable opportunity to inspect the ballot paper but shall not allow them to handle it or any other ballot paper.
Rule 56-A of the Conduct of Elections; Rules, also deals with 'counting of votes' and as to how a ballot paper has to be rejected. Rule 63 of the same Rules deals with the right of a candidate to ask for a recount. But in Rule 19 of the Tamil Nadu Panchayats (Conduct of Election of President of Village Panchayat) Rules, 1970, there is no provision for allowing the counting agents. present a reasonable opportunity to inspect the ballot paper so rejected; and there is no provision also for asking for a recount. Thus it is clear, that in many respects the rules framed under the Tamil Nadu Panchayats Act, differ from those framed under the Representation of the People Act. Considering all these aspects and also the facts of' the present case, I do not think the decision of Anantanarayanan, C. J., above noticed, will be applicable to the facts of the present case.
20. Ram Sevak Yadav v. Hussain Kamil Kidwai : 6SCR238 , deals with a case arising out the Representation of the People Act. In that case, the Tribunal had rejected the prayer for a recount; but the High Court set aside the order of. the Tribunal. holding that the ballot papers were actually called far from the Returning officer and were before the Tribunal. that 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. The Supreme Court, in the circumstances of that case, laid down:
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.
The Supreme Court further referred to the provisions in the Rules framed under the Representation of the People Act for the conduct of elections and held that:.At every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a recount.
In those circumstances, the Supreme Court, in the above decision, distinguishing another decision of its own in Bhim Sen v. Gopalal and Ors. 22 E.L.R. 288, wherein it had been held that in a case like the one before the Supreme Court, definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers, held that in that case no particulars had been given to order a re-count.
21. As far as the present case is concerned, the Election Court has, in its discretion, ordered recount. Further, as observed by me supra, there is no provision in the Panchayat Election rules analogous to the provisions contained in the Conduct of Elections Rules, 1961, framed under the Representation of the People Act, for recount and also for scrutiny of rejected votes. As far as the present case is concerned, the allegations are specific, and not speculative as in the case covered by the decision of the Supreme Court I have noticed. In those circumstances, I do not think the Election Court was wrong in allowing the re-count in the interests of justice.
22. Jagjit Singh v. Kartar Singh : AIR1966SC773 , also deals with the question as to when a recount can be allowed; it follows the decision in Ram Sewak Yadav v. Hussain Kamil Kidwai : 6SCR238 referred to above, and observes that no hard and fast rule in the matter of recount may be made, and if any attempt is made to lay down such a rule the same would be inexpedient and unreasonable. Such an observation has been made after discussion of the provisions in the Rules framed under the Representation of the People Act (Conduct of Elections Rules, 1961), with reference to the vague allegations contained in the election petition that was before it. Considering the above observations of the Supreme Court and taking into consideration the provisions made for counting of votes in the Panchayat Election Rules, I am of the view that the present case stands completely on a different footing. Further, it cannot be said that particulars are wanting in. the present case, in. the light of the provisions contained in the Panchayat Election Rules.
23. In Jitendra Bahadur v. Krishna Bekari : 1SCR852 once again the principles enunciated in Ram Sewak Yadav v. Hussain Kamil Kidwai : 6SCR238 , were re-affirmed. There, the election petitioner was neither a candidate nor his election agent. In the election petition, it was not stated that he was even the counting agent. In the verification appended to the election petition, it was averred that the allegations contained in paragraphs 12 to 15 of the election petition were believed by the petitioner to be true on the basis of information received from the workers of the congress nominee and others, which means that the allegations made by him in paragraph, 13 and 14 of the election petition were based on hearsay information. He did not and could not vouchsafe their accuracy though he claimed to have believed the information given to him to be correct. Similarly in the verification appended to Schedule ' E ' to the election petition, the election petitioner stated that he had given the information contained in that schedule on the basis of the information received from the counting agents of the congress nominee. Neither in the election petition nor in the Schedule he mentioned that the counting agents had given him the information in question on the basis of any record made by them. Apart from giving certain figures, whether true or imaginary, the petitioner had not disclosed in the petition the basis on which he arrived at those figures. His bold assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what was the basis of their information. It was not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated were those facts which can be considered as materials supporting the allegations made. In paragraph 10 of its judgment, the Supreme Court observes:
Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules, before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. 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. These again are the material facts required to be stated.
It is significant to note that in the above decision of the Supreme Court, the case involved therein arose out of the Representation of the People Act. The person who gave the particulars had got those particulars based upon hearsay. The observation in the said decision that as regards rejection of Votes specific particulars had not been given Was on the ground that the Rules framed under the Representation of the People Act regarding counting of votes, clearly gives an opportunity for the respective parties to inspect the rejected votes. But as far as the present case is concerned, the allegations are specific and they are made by the person who was the defeated candidate and who was present at the counting. Apart from that, the rules framed for conduct of election of president of Village panchayat do not contain a provision as regards inspection of rejected votes as contained in the Conduct of Elections Rules, 1961, framed under the Representation of the People Act. Considering all these aspects, I do not think the above decision will be applicable to the facts of the present case.
24. In Pethu Reddiar v. Muthiah : AIR1963Mad390 a Bench of this Court has held:
Where there is no proof, not even suspicion, of an irregularity at the counting of votes, there is no justification for directing a recount of votes. An election petitioner cannot claim a recount only because in his petition he has prayed that on a proper counting of votes he would be the person to secure a majority of Lawful votes. Nor can the petitioner base his claim on the mere fact that the successful candidate has been elected by a small margin of votes.
In the abovesaid case, it is significant to note that inspite of the Returning Officer calling for objections since the margin was narrow, no one applied to him for a recount. Taking that into consideration and also the vague allegations contained in the election petition, the Bench refused to order a recount. Further, the said case arose out of the Representation of the People Act, where there is an express provision to ask for a recount. In the present case, the facts are completely different, arising, as it does, under the panchayat election rules.
25. Seetharama v. Sekharan A.I.R. 1968 Ker. 284, and Mohan Reddy v. Narayan Reddy (1963) 2 A.W.R. 101 also are cases arising under the Representation of the People Act. In Mohan Reddy v. Narayan Reddy (1963) 2 A.W.R. 101, the principle for recount has been specifically stated as follows:
A recount is not granted as of right, not only on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer. Having regard to the fact that improper reception, refusal or rejection of a vote is a ground for declaring an election void by a Tribunal, an Election Tribunal can scrutinise the rejected ballot papers and examine the reasons thereon. This is not a matter of right. Nor can it be invoked if the counting had not been protested though not in writing, before the Election Officer.
For the reasons stated above, I do not think these decisions will apply to the facts of the present case.
26. In Rashik Lal v. Bhola. Prasad : AIR1971Pat10 which deals with a case arising out of a panchayat election, it has been observed specifically as follows :.The necessity of maintaining the secrecy of the ballot papers may in certain circumstances yield to the more paramount duty which the Tribunal dealing with an election petition has to discharge, namely, that of doing real justice between the parties. In the present case, however that contingency does not arise, inasmuch as the Tribunal will have merely to recount the ballot papers without reference to the marked copy of the voters' list and thus maintain the secrecy of the ballot papers inviolate. I, therefore, find no justification for holding that the Election Tribunal is not competent to hold a recount of the ballot papers in an appropriate case, which the present case undoubtedly is.
From the above Patna decision, it is clear that rendering of justice is the paramount duty in cases of ordering a recount. No doubt, it cannot be granted by a mere asking for it. As far as the present case is concerned, there are specific allegations as to why a recount is asked for; and the petitioner is a person who was actually present at the time of counting and he has filed the affidavit making out a case for a recount. Further, by a mere recount of the votes, the 'marked copy of the electoral roll' will not be opened and as such, the secrecy of the election is maintained in the present case.
27. Thiru S.K.L. Ratan also cited the decision in Nukan Singh V. Banwari Lal (1966) DEC75 in support of his case for recount. He also cited the decision in S. Nataraja v. D. Samson (1971) 28 S.T.C. 319 ; (1971) 2 I.T.J. 434 : (1971) 2 M.L.J. 500, and argued that the subsequent recount has proved that his client has got more number of votes and as such the same can be made use of as evidence for allowing the recount order to stand. I do not think that these two decisions need consideration as at present inasmuch as I am of the view that there are sufficient grounds made out by the election petitioner for enabling the Election Court to order a recount on an interlocutory application.
28. Thiru S.K.L. Ratan, learned Counsel for the first respondent, also cited the decision in C.R.P. No. 748 of 1971 of Kailasam, J., wherein the learned Judge has allowed a recount on the basis of a narrow margin. In view of the discussion I have made, on the cases cited by Thiru V. Vedantachari, the learned Counsel for the petitioner, I do not think I need refer to this decision, since the discussion made by me in relation to the facts of this case clearly reveal the necessity for a recount, apart from the fact that the margin is a narrow one.
29. Thus, taking into consideration the allegations made by the first respondent for the purpose of a recount and also the provisions in the rules framed under the Village Panchayats Act as regards the right of a candidate and his representatives participating in the counting of votes, I am of the view that a clear case has been made out and a valid order has been passed by the Election Court for the purpose of recount. Rule 19(4) of the Tamil Nadu Panchayats (Conduct of Election of President of Village Panchayat) Rules, 1970, clearly states that the decision of the Chief Presiding Officer shall be final, subject only to the decision of the Court on an election petition. Admittedly, there is no provision for asking for a recount before the Presiding Officer. Therefore, it is clear that in respect of the election of the President of a Village Panchayat, it is only the Election Court which has the right to order a recount, if a proper case is made out for such a relief.
30. I have already discussed the pleadings and the specific particulars given by the first respondent for the purpose of having a recount. The Election Court, has discussed all these particulars in full and has come to the correct conclusion, allowing the prayer for recount.
31. In these circumstances, the order of the Election Court (District Munsif) Tiruppur is confirmed, and the Civil Revision Petition is dismissed with costs.