1. This is a. petition by the defeated candidate in Mahomedan constituency Taltolla, Ward No. 14, who polled 304 votes. The respondent who was elected, polled 312 votes, and his election was published in the Calcutta gazette on 4th April.
2. A preliminary question has been argued by way of demurrer, namely whether the petitioner is entitled to a recount and by a recount is meant not merely the counting of votes to check the arithmetic of the returning officer, but a scrutiny as well to review his finding as to the validity of the ballot papers. In the earlier paragraphs of the petition it is alleged that the appointment of the returning officer was open to objection and that he was guilty of malpractices. The first three grounds have been abandoned, but Mr. Bose for the petitioner states that he abandoned ground 3 so far as it related to the appointment of the returning officer, but did not intend to abandon his contention that the returning officer had been a party to divers mal-practices and breaches of the relative rules. In ground 11 further charges have been made against the returning officer that he improperly refused certain votes. Ground 11, sub-para. 2 has been abandoned. Sub-paras. 3 and 4 purport to be particulars of improper refusal of votes. They are in fact vague allegations that the returning officer did not allow the inspection contemplated by the rules and that the returning officer did not observe what the petitioner alleges to be the established practice of placing the ballot papers face upwards on the table. The petition is supported by an affidavit of Syed Mohammed Yusuf who states that six ballot papers, (presumably those referred to in ground 11, sub-para. 1 of the petition) which were valid and in favour of the petitioner, were improperly rejected and that the returning officer refused to give the petitioner or his representative reasonable opportunity to inspect the ballot papers and refused to recount them when requested to do so. These apparently constitute the alleged malpractices and the breaches of the rules on which the petitioner still seeks to rely.
3. Two questions have been argued: (1) whether relief by way of a recount is contemplated by the Calcutta Municipal Act and (2) if such relief is permissible, do the facts alleged justify a recount? There is no doubt that the Calcutta Municipal Act does not contain any provision which enables an unsuccessful candidate to claim the seat, and so far as I have been able to discover from the decided cases both in England and in India, a recount is always coupled with scrutiny and the right to recrimination, on the result of which the unsuccessful candidate may be declared duly elected. It is equally clear that the English Acts and Rules dealing with elections, and the various Indian Acts of a similar nature to which my attention has been directed, other than the Calcutta Municipal Act, give the unsuccessful candidate the right to claim the seat if the circumstances justify it.
4. Mr. S. C. Bose relies on Section 47 (1) (c), Calcutta Municipal Act, which provides, so far as is material, for the avoidance of the election if there has been improper reception or refusal of a vote, and the question arises whether that provision contains the same principle and by implication empowers the Court to embark on the procedure of a recount. The provisions of the Calcutta Municipal Act relating to elections have been drafted somewhat differently to the provisions of other Acts dealing with the same subject, and the difficulty of construing Sections 46 and 47 has been referred to in previous decisions of this Court. Section 46 provides that if the validity of an election is questioned by reason of a corrupt practice, or the improper rejection of a nomination, or the improper reception or refusal of a vote or for any other cause, an application may be made to the High Court. Section 47 provides that if the High Court is satisfied on certain specified points, the election is null and void. Some difficulty has been experienced in ascertaining what are those points owing to exceptions imported by reference to Section 46. Provisions of a somewhat similar nature are contained in the English and Indian Acts and Rules, but in every case they contain a further provision entitling the defeated candidate to claim the seat. This additional provision is of importance for all the decided cases and the extracts from the text books to which I have been referred are dealing with Acts and rules which enable the seat to be claimed, and the claim to the seat can be confined to a recount.
5. The question then resolves itself into the following: Is the right to a recount a right which is so closely linked to the claim to the seat, that when the Legislature excluded from the Calcutta Municipal Act the right to claim the seat, it also excluded the right to a recount? Admittedly, this Court, sitting as an election Court, exercises a special jurisdiction which is the creature of statute, and the rights of the parties must be found within the four corners of the statute and no right which is not so found can be imported. By Section 47 (1) (c), Calcutta Municipal Act, the election is void if it has been materially affected by improper reception or a refusal of a vote, and it is argued that the Court cannot form an opinion as contemplated by the section unless it investigates the charges under this head and one of the most expeditious ways of investigating the charge is by a recount. True, that method is a convenient form of procedure which might be adopted, if permitted, but it is not the only form of procedure by which the result can be obtained, and the question for determination is whether the Calcutta Act empowers the Court to adopt it. Mr. Bose for the petitioner argues that the right to a recount is a right entirely separable from the claim to the seat and a form of procedure to which every petitioner in an election dispute is entitled. In support of this argument he refers to ' The Indian Candidate and Returning Officer' by Sir Laurie Hammond which was published in 1923. On p. 174 the learned author says:
From the above and a perusal of the rules quoted it will be seen that there are five kinds of election petitions. The third kind, under heading 'C' which the learned author mentions is 'A' petition for recount of votes where it is believed that the recounting has been carelessly done.
6. Rule 34 of the Electoral Rules referred to in Hammond's 'The Indian Candidate and Returning Officer,' gives the specific right to the candidate to claim the seat, and the extract from Sir Laurie Hammond's book on which Mr. Bose relies is dealing entirely with election petitions in which the petitioner has the right to claim the seat. Reliance is placed on the Madura, case, (1924) Hammond's 'Election cases' 501 Hammond's where a recount was allowed. Reliance is also placed on the Tanjore case (1921) Hammond's 'Election cases' 673 where a recount was refused. It is argued that in neither of these cases is it apparent that the seat was claimed. The reports are only fragmentary and in neither case do they state fully the relief sought. In the circumstances that question remains at large, and to that extent the reports cannot be said to support Mr. Bose's argument. And again, it must be remembered that in each of these cases the petitioner had a right under the relevant act to claim the seat.
7. Mr. B. C. Ghose, for the respondent, in support of the argument that the Legislature has withheld in the Calcutta Act the right to a recount, has contrasted the provisions of the Bengal Municipal Act of 1932 with the similar provisions of the Calcutta Municipal Act as amended up to 1939. Sections 46 and 47, Calcutta Act, he argues, correspond to Sections 36 and 38, Bengal Act, but the Bengal Act by Section 38 entitles the Court, in addition, to hold a scrutiny and computation of votes and to declare as a result of such scrutiny, the candidate who has been duly elected.
8. Although Mr. Bose has nominally confined his argument to a recount, he admits that by a recount he does not mean to confine the procedure to a mere arithmetical check of the returning officer's figures. It implies, in addition, the careful checking of ballot papers and all the complicated procedure of a scrutiny and recrimination. In my view no such procedure can be allowed unless it is clear from the Act itself that such was the intention of the Legislature, and I can find no such provision in the Calcutta Municipal Act which even suggests that such was the intention. If a recount were to be ordered, each party would be entitled to check the ballot papers and to have deducted from his opponent the votes which were held to be improperly admitted or rejected. Pandit Nanak Chand, in his recent text book on the Law and Practice of Elections and Election Petitions, at p. 553, observes on the authority of the Halifax case (1893) 4 O'M & H 203, 'A petition which claims a seat for a defeated candidate may be presented solely on the ground of scrutiny and recount,' and he continues:
It is obvious that unless the petitioner claims to be duly elected, there can be no petition for scrutiny or recount. A right to ask for this relief only arises when the seat is claimed. Therefore, where the petitioner claims to have received a majority of lawful votes, a scrutiny of votes must take place in order to ascertain the truth of the allegation made.
9. The procedure of scrutiny and recount appears to me to be inseparably linked to the claim to the seat. It enables a Court to review the decision of the revising officer as to the admissibility of the ballot papers with the object of further enabling the Court, (as for instance under the provisions of Section 39, Bengal Municipal Act) to declare the candidate who is found to have the greatest number of valid votes in his favour, to have been duly elected. That power is not granted by the Calcutta Municipal Act, and in my opinion the right to a recount is also withheld. This by no means deprives the Court of the power under Section 47 to investigate the proper reception or refusal of a vote. That is part of the investigation in every case of personation or plural voting.
10. The second question is whether, assuming that a recount could be ordered, there were circumstances present which would justify such an order in the present case. In my opinion there are not. I have already referred to the manner in which the alleged malpractices of the returning officer have been set out in the petition. According to the English practice as outlined in Fraser's 'Law of Parliamentary Elections & Election Petitions,' the petitioner in order to obtain a scrutiny must claim the seat and must also give particulars. The rule in regard to particulars was set out in the Tanjore case (1921) Hammond's 'Election cases' 673 and has been followed in a number of subsequent election cases. In the Tanjore case (1921) Hammond's 'Election cases' 673 although the election was declared void, the prayer for a recount was refused. The Commissioners in dismissing the application for a recount said:
It rested on the nebulous allegation of the agents about the counting of batches of votes twice over and we therefore refused to grant an application of that nature on such slender materials. It is well established law that a recount will only be granted in cases which are substantiated by specific instances and by reliable prima facie evidence.
11. Now what are the particulars given here? If ever there were nebulous allegations, they appear in this petition. In ground 3 there is a general charge of malpractices introduced in what was apparently particulars of a charge of illegal appointment of the returning officer. Ground 11 refers to the improper rejection or refusal of a vote and Mr. Bose for the petitioner now seeks to link it with the vague charge of malpractice alleged in the abandoned ground 2. Particulars in sub-paras. 3 and 4 of ground 11 have not been given and I am not prepared to allow this matter to be agitated in the absence of specific grounds and, as stated in the Tanjore case (1921) Hammond's 'Election cases' 673,reliable prima facie evidence. The majority is admittedly a narrow one, namely eight votes, but that is only one of the fences which the petitioner would have to negotiate. Sub-paras. 3 and 4 of ground 11 are far too vague to justify a serious inquiry and they are deleted. Sub-para. 1 alleges the illegal rejection of six votes. Again, no particulars are given other than those contained in the affidavit of Mohammed Yusuf.
12. Mr. Bose has argued on the authority of the Punjab North case Hammond Election cases 567, that in India the practice differs from that prevailing in England, and that the petitioner cannot be expected to furnish any definite particulars until he has scrutinized the ballot papers. The Commissioners in the case of Punjab North Hammond Election cases 567 sought to distinguish the Tanjore case (1921) Hammond's 'Election cases' 673 on the ground that there the recount was only asked for in the course of the inquiry whereas in the case they were considering the petition itself was chiefly for a scrutiny and recount. The recount claimed here is merely a method of obtaining evidence in support of a number of serious charges of which the petitioner has not given particulars. Reference has also been made to a decision by a Judge of the Madras High Court on a revision petition from the decision of a subordinate Judge. The learned Judge points out that in revision his sole duty was to see that the lower Court had not acted without jurisdiction and that there was no material irregularity. In the course of his judgment he does however consider the principles and the evidence on which the lower Court came to its decision, and he states, as reported in Lakshumanayya v. Rajam Ayyar : AIR1930Mad195 :
An overstrict insistence that an application should be supported by evidence of miscounting is therefore unwarrantable.
13. That remark is undoubtedly obiter, but it comes to no more than this, that in each case the Court must consider the facts alleged and decide whether in the circumstances there are grounds for thinking that a miscount took place.
14. It is obviously undesirable that what have been termed 'nebulous allegations' should be made for the sole purpose of obtaining a general scrutiny of the ballot papers. It is true that the petitioner is not entitled in India to inspect the ballot papers without an order of Court, but he has some power of inspection while the votes are being counted. While it is not expected that the precise particulars required by the English procedure should be given before a scrutiny, it is expected that there should be some specific instances and the Court in each case must decide whether the instances given would justify further consideration of the matter by way of scrutiny or recounting. In the present instance, the petitioner had sufficient inspection to know that the votes alleged to have been improperly rejected were valid and were in favour of the petitioner, but he does not state whether the ballot papers to which he refers were marked 'rejected' as provided in para. 42 (c) of the Government order; nor does he state whether the correctness of the rejection was questioned at the time or whether the grounds for rejection were recorded. Were I of opinion that a recount was permissible under the Act, I should still hold that no recount should be ordered in this case for, in my opinion, the vagueness of the allegations would not in any event justify such an order. The preliminary question is answered accordingly and a recount is refused.