Full Judgment Text
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PETITIONER:
RAM SEWAK YADAV
Vs.
RESPONDENT:
HUSSAIN KAMIL KIDWAI & ORS.
DATE OF JUDGMENT:
17/01/1964
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1964 AIR 1249 1964 SCR (6) 235
CITATOR INFO :
RF 1966 SC 773 (33)
R 1970 SC 276 (7)
E 1972 SC1251 (13)
RF 1973 SC 215 (8,11)
RF 1973 SC2077 (2)
F 1975 SC 283 (45,46)
R 1975 SC 693 (14)
RF 1975 SC2117 (4,5,7)
C 1980 SC 206 (19)
F 1984 SC 396 (6)
E&R 1989 SC 640 (4)
R 1992 SC1163 (9)
ACT:
Election--challenge on the ground of improper reception,
refusal and rejection of votes at the time of
counting--Tribunal rejecting claim for inspection of the
ballot papers--Validity--Representation of the People Act,
1951 (43 of 1951), ss. 100, 101 and 102 and conduct of
Election Rules, 1961. r. 93.
HEADNOTE:
The respondent challenged the election of the appellant,
inter alia, on the ground that there had been improper
reception, refusal and rejection of votes at the time of
counting and that on a true count he would have received a
majority of valid votes and that he was entitled to be
declared duly elected. He claimed that by inspection of the
ballot papers he would be able to establish his case on the
aforesaid allegations and that the Tribunal was bound to
grant an order for inspection, because he had tendered the
sealed boxes of ballot papers in evidence, and on that
account all the ballot papers were part of the record. The
Tribunal in its order stated that nothing was brought to its
notice which would justify granting an order for inspection.
It further observed: "If in future from the facts that may
be brought to the notice of the Tribunal, it appears that in
the interests of justice inspection should be allowed,
necessary orders allowing an inspection could always be
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passed". Thereupon, another application was submitted by
the respondent asking for inspection but no additional
materials were placed before the Tribunal and no oral
evidence was led at the trial. The Tribunal rejected the
application for inspection. On appeal, the High Court held
that 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. The Tribunal had therefore
rejected the application for inspection without any adequate
reasons.
The sole question for determination was whether the Election
Tribunal erred in declining to grant an order for inspection
of the ballot papers which had been, pursuant to an order in
that behalf, lodged before the Tribunal in sealed boxes by
the Returning Officer.
Held: By the mere production of the sealed boxes, the
ballot papers did not become part of the record and they
were not liable to be inspected unless the Tribunal was
satisfied that such inspection was in the circumstances of
the case necessary in the interests of justice.
239
The Returning Officer is not a party to an election
petition, and an order for production of the ballot papers
cannot be made under 0. XI of the Code of Civil Procedure.
But the Election Tribunal is not on that account without
authority in respect of the ballot papers. 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 ss.
100(1)(d)(iii), 101, 102 of the Representation of the People
Act, 1951 and rule 93 of the Conduct of Election Rules,
1961. This power to order inspection of the ballot papers
which is apart from 0. XI Code of Civil Procedure may be
exercised, subject to the statutory restrictions about the
secrecy of the ballot papers prescribed by ss. 94 and 128(1)
of the Act.
Bhim Sen v. Gopali, 22 E.L.R. 288, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1064 of 1963.
Appeal by special leave from the judgment and order dated
July 23, 1963, of the Allahabad High Court (Lucknow Bench)
in First Civil Appeal No. 11 of 1963.
N. C. Chatterjee and J. P. Goyal, for the appellant.
S. P. Sinha and S. Shaukat Hussain, for respondent No. 1.
January 17, 1964. The Judgment of the Court was delivered
by
SHAH J.-At the general elections held in February 1962, five
candidates contested the election to the House of the People
from the Barabanki single-member constituency. The
appellant Ram Sewak Yadav-who will be referred to as Yadav-
was at the counting of votes found to have secured the
highest number of votes and he was declared elected.
Hussain Kamil Kidwai-hereinafter called Kidwai-who was one
of the candidates at the election submitted a petition on
April 6, 1962, to the Election Commission for an order
declaring the election of Yadav void and for an order that
he (Kidwai) be declared duly elected. The Election
Tribunal, Lucknow, to which the petition was referred for
trial dismissed the petition. In appeal to the High Court
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of Allahabad the order passed by the Election
240
Tribunal was reversed and the proceedings were remanded for
trial with a direction, among others, that the Tribunal do
give reasonable opportunity to both the parties to inspect
the ballot papers and other connected papers. With special
leave, Yadav has appealed against the order of the High
Court.
The principal grounds set up by Kidwai in support of his
petition were-
(1) 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;
(2) that there were discrepancies between
the total number of votes mentioned in Form 16
and Form 20;
(3) that the tendered votes were wrongly
rejected by the returning officer and on that
account the election was materially affected;
(4) that at the polling station No. 29,
Majgawan in Bhitauli Unit and Kursi polling
station in Kursi Assembly Unit, the polling
officers did not give ballot papers to the
voters;
(5) that the counting of votes of Bhitauli
Assembly Unit continued till 8-30 p.m. in
insufficient light notwithstanding the protest
lodged by the petitioner; and
(6) that on a true count he (Kidwai) would
have received a majority of valid votes and
that he was entitled to be declared duly
elected.
These allegations were denied by Yadav.
At the trial before the Tribunal the parties led no oral
evidence. In respect of the pleas (3), (4) and (5) the
burden of proof lay upon Kidwai and as no evidence was led
to .-substantiate the same, those pleas failed. Again in
the view of the Tribunal, Kidwai could discharge the burden
of proof which lay upon him to establish that there were
discrepancies ,between the original and the certified copies
of Forms Nos
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16 & 20, and as the original forms were not called for by
Kidwai, his second ground must also fail. Kidwai claimed
that he would be able to establish his case on pleas (1) &
(6) from the ballot papers, and submitted that an order for
inspection of the ballot papers be made and that he be per-
mitted to show from the ballot papers 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 applica-
tion for inspection holding that ballot papers may be
allowed to be inspected only if it is necessary in the
interest 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 the 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 ballot papers had actually been
called for 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,
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and that the Tribunal had rejected the application for
inspection without any adequate reasons for so doing.
The only question which falls to be determined in this
appeal is whether the Election Tribunal erred in declining
to grant an order for inspection of the ballot papers which
had been, pursuant to its order in that behalf, lodged
before it in sealed boxes by the Returning Officer. In
considering this question the material provisions of the
Representation of the People Act, 1951, and the rules framed
thereunder may first be noticed. Section 80 of the Act
provides that no election shall be called in question except
by an election petition presented in accordance with the
provisions of Part VI. Section 83(1) states what the
election petition shall contain. It states:
"Art election petition-
(a) shall contain a concise statement of the
material
facts on which the petitioner relies;
159 S.C-16
242
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as posssible 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, for the verification
of pleadings:
The rest of the section is not material.
Section 90(1) prescribes the procedure to be followed by the
Tribunal. It states:
"Subject to the provisions of this Act and of
any rules made thereunder, every election
petition shall be tried by the Tribunal, as
nearly as may be, in accordance with the
procedure applicable under the Code of Civil
Procedure, 1908, to the trial of suits: "
Section 92 enumerates the powers which a Tribunal trying an
election petition may exercise and the powers so enumerated
are the powers which a Court under the Code of Civil
Procedure, when trying a suit, may exercise in respect of
discovery and inspection, enforcing attendance of witnesses,
compelling production of documents, receiving evidence taken
on affidavits and issuing commissions for the examination of
witnesses. Rules have been framed under the Act relating to
production and inspection of election papers. By rule 93 of
the Conduct of Election Rules, 1961, it is provided that:
"(1) While in the custody of the returning
officer-
(a) the packets of unused ballot papers;
(b) the packets of used ballot papers
whether valid,
tendered or rejected;
(c) the packets of the marked copy of the
electoral roll or, as the case may be, the
list maintained under sub-section (1) or sub-
section (2) of section 152; and
243
(d) the packets of the declarations by
electors and the attestation of their
signatures;
shall not be opened and their contents shall
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not be inspected by, or produced before, any
person or authority except under the order of
a competent court or tribunal.
(2) All other papers relating to the
election shall be
open to public inspection subject to such
fee, if any, as the Election Commission may
direct.
(3) Copies of the returns by the returning
officer forwarded under rule 64 or as the case
may be. under sub-rule (3) of rule 84 shall be
furnished by the chief electoral officer of
the State concerned on payment of a fee of two
rupees for each such copy."
The rule makes a clear distinction between ballot papers and
other election papers: ballot papers may be inspected only
under the order of a competent court or tribunal, but other
documents are, subject to certain conditions, open to public
inspection.
In this case, on an oral request made by Kidwai all the
ballot papers in sealed boxes were lodged with the Election
Tribunal. Kidwai claimed in the first instance that the
Tribunal was bound to grant an order for inspection, because
he had tendered the sealed boxes of ballot papers in
evidence, and on that account all the ballot papers were
part of the record. The Tribunal rightly rejected this
plea, to by the mere production of the sealed boxes pursuant
to its order the ballot papers did not become part of the
record and they were not liable to be inspected unless the
Tribunal was satisfied that such inspection was in the
circumstances of the case necessary in the interests of
justice.
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 invest-
244
ed 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 0. II,
Code of Civil Procedure. Inspection of documents under 0.
II, 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
0.11 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 ss. 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 0.11 Code of Civil Procedure may be exercised,
subject to the statutory restrictions about the secrecy of
the ballot paper prescribed by ss. 94 and 128(1).
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 ful-
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filled:
(i) that the petition for setting aside an
election con-
tains 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 pre-
245
cision supported by averments of material facts. To estab-
lish a case so pleaded an order for inspection may undoubt-
edly, 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.
It must be remembered that the rules framed under the
Representation of the People Act, 1951, set up an elaborate
machinery relating to the stage of counting of votes by the
Returning Officer, and provide ample opportunity to the can-
didate who has contested the election or his agents to
remain present and to keep an eye on any improper action
which may be taken by the Returning Officer. Rule 53
provides for the admission of only certain classes of
persons to the place fixed for counting and amongst such
persons are expressly included candidates, their election
agents and counting agents, who may watch the counting
subject to the directions which the returning officer may
give. Rule 55 deals with the procedure for scrutiny and
opening of ballot boxes. The Returning Officer has to
satisfy himself that "none of the ballot boxes has in fact
been tampered with" and before any ballot box is opened at
the counting table, the counting agents present at that
table are allowed to inspect the seal affixed thereon and to
satisfy themselves that it is intact. If the Returning
Officer is satisfied that any ballot box has in fact been
tampered with, he is prohibited from counting the ballot
papers contained in that box and he has to follow the
procedure prescribed in that behalf in s. 58. Clause (1) of
rule 56 provides for the scrutiny and rejection of ballot
papers. Clause (2) sets out detailed provisions relating
to, cases in which the Returning Officer shall reject a
ballot paper By cl. (3) it is provided that before rejecting
any ballot paper under sub-rule (2), the returning officer
shall allow each counting agent present a reasonable
opportunity to inspect such ballot papers. The Returning
Officer has then to record on every ballot paper which he
rejects the grounds of rejection. All the rejected ballot
papers are required to be put in one bundle. Rule 57 deals
with the counting of votes. Each ballot paper which is not
rejected is counted
246
as one valid vote. The Returning Officer has to make the
entries in a result sheet in Form 20 after counting of the
ballot papers contained in all the ballot boxes used at the
polling stations. Clause (3) of rule 57 enacts an elaborate
set of rules about the entries to be made in respect of the
counting and scrutiny of the ballot papers. By rule 60
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counting has to be continuous, and rule 63(1) provides that
after the completion of the counting, the Returning Officer
shall record in the result sheet in Form 20 the total number
of votes polled by each candidate and announce the result.
By cl. (2) of rule 63 it is provided that after such
announcement is made, a candidate or his election agent may
apply in writing to the Returning Officer for’ a recount of
all or any of the ballot papers already counted stating the
grounds on which he demands such recount. The Returning
Officer must decide the application and record his reasons
in support of his decision and he may allow the application
in whole or in part or may reject it if it appears to him to
be frivolous or unreasonable. After the total number of
votes polled by each candidate has been announced, the
Returning Officer must complete and sign the result sheet in
Form 20 and after such form is completed no application for
recount may be entertained. Under rule 64 the declaration
of the result of the election is made by declaring elected a
candidate who has secured the largest number of valid votes,
and the Returning Officer is required to complete and
certify the return of election.
There can therefore be no doubt 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 are-
count. Therefore a candidate who seeks to challenge an
election on the ground that there has been improper
reception, refusal or rejection of votes at the time of
counting, has ample opportunity of acquainting himself with
the manner in which the ballot boxes were scrutinized and
opened, and the votes were counted. He has also opportunity
of inspecting rejected ballot papers, and of demanding a re-
count. It is in the light of the provisions of s. 83(1)
which require a concise statement of material facts
247
on which the petitioner relies and to the opportunity which
a defeated candidate had at the time of counting, of
watching and of claiming a recount that the application for
inspection must be considered.
In the petition filed by Kidwai the material allegations in
support of the claim that there had been improper reception,
refusal or rejection of votes were contained in paragraphs
6(H), 6(K) and 12. In paragraph 6(H) it was averred that
numerous ballot papers cast in favour of the petitioner were
wrongly included in the "bundles of the respondents." In
paragraph 6(K) it was averred that due to "a deficiency in
the supply of sealing ink, marks on some ballot papers,
though not quite clear, yet the marks clearly indicating the
intention of the voters, were wrongly rejected as invalid by
the returning officer." In paragraph 12 it was averred that
"the petitioner is confident that if the votes actually cast
in favour of the petitioner are counted as votes of the
petitioner and if the improperly accepted votes which have
been counted in favour of other respondents are taken out,
and if the ballot papers are correctly sorted, counted and
bundled. the respondent No. 1 will be found to have polled
less votes as compared to . . . petitioner. The petitioner
further submits that the result of the Election has been
materially affected by the improper acceptance and refusal
of votes and by the incorrect sorting, counting and bundling
of ballot papers." These averments in the petition for
setting aside the election on the ground of improper
acceptance or rejection of votes were vague, and did not
comply with the statutory requirements of s. 83(1)(a).
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Paragraph 12 is deficient in the recital of material facts
which must be deemed to be within the knowledge of the
petitioner, and merely asserts that if the votes actually
cast in favour of the petitioner are counted, the total
number of valid votes found in his favour would exceed the
number of votes received by Yadav. Having regard to this
infirmity the Tribunal was justified in declining to make an
order for inspection of the ballot papers unless a prima
facie case was made out in support of the claim. The
Tribunal has undoubtedly to exercise its discretion if it
appears to be in the interests of justice, but the
discretion has manifestly to be exercised having regard to
the nature of the allegations made. The Tribunal would be
Justified ir
248
refusing an order where inspection is claimed with a view to
fish out materials in support of a vague plea in the case
set out in the petition. The Tribunal was conscious of the
true principle: it stated in its order dated August 25,
1962, that nothing was brought to its notice which would
justify granting an order for inspection prayed for by the
petitioner at that stage. The Tribunal further observed:
"If in future from facts that may be brought
to the notice of the Tribunal, it appears that
in the interests of justice inspection should
be allowed, necessary orders allowing an
inspection could always be passed".
Relying upon these observations another application was
submitted by Kidwai asking for inspection but no additional
materials were placed before the Tribunal. As we have
already observed Kidwai led no real evidence at the trial.
In his second application for inspection he merely averred
that "the petitioner was almost sure" that on inspection and
scrutiny of ballot papers, the allegations contained in the
various paragraphs would be proved. The allegation of
Kidwai that he was satisfied that on inspection and scrutiny
of ballot papers he would be able to demonstrate that there
had been wrong counting on account of improper reception,
refusal or rejection of votes was wholly insufficient to
justify a claim for inspection. He had to place before the
Tribunal evidence prima facie indicating that an order for
inspection was necessary in the interests of justice, which
he failed to do.
Reliance was placed before this Court and the High Court
upon the decision of this Court in Bhim Sen v. Gopali and
others(1) in support of the plea that mere absence of parti-
culars will not furnish a ground for declining to grant ins-
pection and that a defeated candidate is entitled to
establish his case that void votes had been counted and
included in the votes of the successful candidate from the
evidence collected from inspection of the ballot papers. In
Bhim Sen’s case(1) a petition was filed for setting aside an
election of a candidate in a reserved seat in a double
member constituency. The principal ground in support of the
petition
(1) 22 E.L.R. 288.
249
was that it was incumbent upon the Returning Officer to go
into each case of double voting in order to reject one of
the two votes cast in contravention of s. 63(1) of the
Representation of the People Act, and that the Returning
Officer having failed to discharge his duty to reject ballot
papers cast in contravention of s. 63 the petitioner
believed that the successful candidate "could receive many
void votes." The ballot boxes were opened and it was found
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that 37 void votes were counted in favour of the successful
candidate and in view of the disclosure made by the
inspection of the ballot papers the petitioner applied for
leave to amend the petition by adding a specific averment
that 37 void votes had in fact been counted in favour of the
successful candidate and that the words "alleges" and "did"
be substituted respectively for the words "believes" and
"could". Along with the petition for leave to amend he
filed a list giving the particulars of the void votes. This
application was allowed by the Tribunal but the order was
reversed by the High Court on the ground that the Tribunal
had erred in allowing the amendment. In appeal to this
Court it was held that in a case like the one before the
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, and the election
petition as originally presented must therefore be regarded
as having furnished the material particulars, and the
amendment petition must be treated merely as an application
for clarification of the pleadings. We do not think that
Bhim Sen’s case(1) lays down any general principle that a
party is entitled without making allegations of material
facts in support of his plea to set aside an election to
claim an order for inspection of the ballot papers and seek
to supply the lacuna in his petition by showing that if all
the votes are scrutinized again by the Tribunal it may
appear that there had been improper reception, refusal or
rejection of votes at the time of counting. To support his
claim for setting aside the election the petitioner has to
make precise, allegations of material facts which having
regard to the elaborate rules are or must be deemed to be
within his knowledge. The nature of the allegations must of
course depend’ upon the facts of each case. But if material
facts are not
22 E.L.R.288.
250
stated, he cannot be permitted to make out a case by fishing
out the evidence from an inspection of the ballot papers.
In Bhim Sen’s case(1) the Court was primarily concerned with
the question whether amendment of the petition to set aside
an election should be granted. It was alleged by the
defeated candidate that there had been contravention of the
provisions of s. 63 (1 ) of the Act by the Returning Officer
and the election was materially affected on that account.
The applicant had stated that he believed that the
respondents had received many votes which were void. When
the ballot box was opened it was found that among the votes
credited to the successful candidate were 37 votes which
were void. Thereafter the applicant applied to substitute
the words " alleges" for "believes" and "did" for "could".
In that case the Court was not concerned to decide whether
the order for inspection was properly made: the propriety of
the order granting inspection does not appear to have ever
been questioned. The principal question raised in the
appeal was whether the amendment of the petition should, in
the circumstances, be granted and the observation of the
Court that "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" was not
intended to be a general statement of the law that whenever
an allegation is made in a petition to set aside an election
that void votes have been included in the counting of votes
received by a successful candidate, definite particulars
with regard to the said void votes may only be supplied
after the ballot papers are inspected, and that a defeated
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candidate may claim inspection of the ballot papers without
making any specific allegations of material facts and
without disclosing a prima facie case in support of the
claim made.
In our view the High Court was in error in interfering with
the exercise of discretion by the Election Tribunal which
proceeded upon sound principles. The appeal therefore is
allowed and the order of the High Court is set aside. The
order of the Tribunal is restored with costs in this Court
and the High Court.
Appeal allowed.
(1) 22 E.L.R. 288
251