Full Judgment Text
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CASE NO.:
Appeal (civil) 4560 of 2006
PETITIONER:
Baldev Singh
RESPONDENT:
Shinder Pal Singh & Anr
DATE OF JUDGMENT: 19/10/2006
BENCH:
S.B. Sinha & Dalveer Bhandari
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No.24126 of 2004)
S.B. Sinha, J.
Leave granted.
An election for the post of Sarpanch and Panches of the Gram
Panchayat, Village Ransih Khurd, District Moga was held on 29.6.2003.
Total votes polled in both the elections were shown to be 836. The
Returning Officer found that both Appellant and Respondent No.1 had
polled 412 votes each. Respondent No.2 herein is said to have got 4 votes.
8 votes were rejected. Allegedly, a recounting was done. The result of
recounting was same as that of the first one. Returning Officer recorded the
said statement in the statutory Form No.IX prescribed in terms of Rule
33(2)(e) of the Punjab Panchayati Election Rules, 1994. The total number of
votes polled was found to be 836 even in the election of the Panches.
Indisputably, election was held under the Punjab Panchayati Raj Act, 1994.
The State of Punjab in exercise of its power conferred upon it under the said
Act, framed rules known as Punjab Panchayat Election Rules, 1994 (for
short, ’the Rules’). The relevant provisions of ’the Rules’ are as under :
"33. Counting of Votes \026 (1) In a Sabha area where
there is only one polling station, the Returning Officer
shall follow the following procedure for the counting of
votes and declaration of result for election to the Gram
Panchayat.
(2) The Presiding Officer shall, as soon as
practicable, after the close of the poll and in the presence
of any candidate or polling agent who may be present:
(a) ..............
(b) ..............
(c) ..............
(d) ..............
(e) After the counting of ballot papers contained
in all the ballot boxes has been completed, the
Returning Officer shall record a statement in
Form IX showing the total number of votes
poled by each candidate."
"35. Procedure in case of tie \026 If, after the counting of
votes is completed, votes polled by two candidates are
equal, and the addition of one vote will entitle any of
these candidates to be declared elected. The Returning
Officer shall forthwith decide between those candidates
by draw of lots as the candidate in whose favour the lot
falls has received an additional vote."
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"38. Election Papers to be forwarded to the District
Election Officer \026 The Returning Officer shall put the
election papers in separate packages on the outside of
which shall be endorsed a description of their contents,
and after sealing them in separate packets, forward to the
District Election Officer :
a) the ballot-papers counted as valid;
b) the ballot-papers rejected as invalid;
c) the unissued ballot-papers;
d) the issued tendered ballot-papers;
e) the spoilt ballot-papers;
f) the cancelled/returned ballot-papers;
g) the tendered votes list;
h) the list of challenged votes;
i) account of ballot-papers; and
j) the marked copy of electoral roll."
The Returning Officer drew lots with written consent of both the
candidates, i.e., Appellant and Respondent No.1. Appellant was declared
elected as Sarpanch of the Gram Panchayat. However, immediately prior
thereto, the supporters of 1st Respondent allegedly raised a hue and cry, as a
result whereof, the Returning Officer could not enforce his decision. He
immediately sent a fax message to the Deputy Commissioner, Moga seeking
his advice in the matter stating :
"Regarding Panchayat Elections, for the Panchayat
Election of Village Ran Singh Kurd I was appointed
R.O.I. for Nihal Singh Wala on 29.6.2003. Election was
held and after counting the votes for Sarpanch, Sh.
Shinder Pal & Sh. Baldev Singh received equal 412-412
votes. As both candidates received equal number of
votes, therefore, as per instructions result for Sarpanch
was to be declared by draw of lots. Both the candidates
were called and draw was conducted before them and one
slip was drawn through another Returning Officer. As
the slip in the name of Sh. Baldev Singh came out but
another candidate Sh. Shinder Pal Singh refused to accept
the decision and written paper was torn. Now this office
does not have consent paper of both candidates given for
draw of lots. It is requested to you to inform what action
should be taken in this matter."
The Deputy Commissioner forwarded the said fax message to the
Sub-Divisional Magistrate, Moga for necessary action, who, in turn
informed him that the decision taken should be enforced. An endorsement
to that effect was also made by him. The result of the election was thereafter
declared.
An election petition was filed by the First Respondent herein
challenging the said election, wherein it was, inter alia, contended that only
821 votes had been polled and Appellant herein had secured only 397 votes
whereas he had secured 412 votes. It was averred :
(1) two votes were kept aside illegally and unjustly by the Presiding
Officer;
(2) votes in respect of serial No.471 and 614 were initially counted as
valid votes but the same were later on declared invalid;
(3) rejection of 8 votes was improper.
An averment moreover was made that he had requested for recounting
of votes, but the Returning Officer/Polling Officer did not pay any heed
thereto and, thus, mandatory requirement of Rule 35 had not been complied
with.
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It is of some significance to notice the averments made in Sub-para
(v) of paragraph (3) of the election petition, which reads as under :
"(v) That Rule 35 read with Rule 33 of the
Punjab Panchayat Election Rules 1994 provides that the
Presiding Officer shall as soon as practicable after the
close of the poll and in the presence of any candidate or
polling agent who may be present shall start counting of
votes and if 2 candidates poll equal number of votes,
draw of lots is to decide the winning candidate. The
Returning Officer on 30.6.2003 requested the Deputy
Commissioner Moga seeking his advice regarding the
manner in which the result to be declared. It is also
alleged by the Returning Officer that written paper was
allegedly torn by the petitioner which fact is vehemently
denied. The petitioner was not present when the alleged
draw of lots took place. The alleged procedure followed
by the Returning Officer for drawing of lots by asking
another Returning Officer to take out the lot is illegal.
The mandatory provisions of Rule 35 is that Returning
Officer himself shall forthwith decide between those
candidates securing equal number of votes by draw of
lots. This power of drawing of lots cannot be delegated
to another person. This objection is without prejudice to
the fact that in fact petitioner secured 412 votes.
Respondent no.1, 397 votes and respondent no.2, 4 votes.
8 votes were allegedly rejected. The result prepared is
wrong at the instance of the respondent no.1."
The election petition was verified by Respondent in the following
terms :
"Verified that the contents of paras Nos. 1 to 6 & 9
of the petition are true and correct to the best of my
knowledge and belief and contents of paras Nos. 7 & 8
are believed to be correct from the knowledge derived
from others."
Before the learned Election Tribunal, the Returning Officer, the Sub-
Divisional Magistrate, the Presiding Officer, as also the Assistant Returning
Officer were examined as R.W.2, R.W.3, R.W.4 and R.W.5.
In his deposition, the Returning Officer, Krishan Bhagwan Kansal
categorically stated that the consent paper was torn and, thus, he had no
proof to say that chit was drawn with the consent of both the candidates. He
was candid enough to admit that the chits drawn by him were not with him
stating :
"I do not have paper chit declaring winner because
that was torn I cannot tell who had torn that chit for
making toss chits bearing names of both candidates were
drawn. I do not know who torn the consent paper."
R.W.3, Shri Gurnam Singh Gill, the Sub-Divisional Magistrate proved
the fax message, notice whereof has been taken by us hereinbefore. R.W.4,
Shri Jaswinder Singh was the Presiding Officer. He supported the case of
the Appellant. In his cross-examination, he stated :
"The counting of votes started at about 9-10 at
night and finished at 11-11-1/4 at night. The counting of
votes was done twice. I cannot tell how many votes were
counted first time and how many after. Self stated
whatever result is. 8 votes were rejected. Cannot tell
that how many votes were rejected during first counting,
second time 8 were rejected. I submitted result on form 9
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in Nihal Singh Wala. At that time it was submitted at
12/12.15. I do not know what action was taken after that.
Q. Do you have any objection if recounting is conducted
?
Ans. It is for the administration to see what has to be
done."
He had proved Form No.IX. He reiterated before the Tribunal the
contents thereof.
R.W.5, Ranjit Singh, was the Assistant Returning Officer. He also
stated that both the candidates had polled equal number of votes and
thereafter two slips were prepared for drawing lots. The same were mixed
up at the consent of both the candidates. As per instructions of R.W.2, he
took out the slips and when it was opened, the name of Appellant was found
who was then declared elected. The learned Tribunal ignoring the
aforementioned oral evidence of the responsible officers, directed recounting
opining :
"There is no documentary evidence regarding conducting
of toss. Neither is there consent of the parties nor any ’parchi’
which shows that toss was conducted. Both the petitioner and
the respondent no.1 allegedly secured 412 votes conclusive
evidence and satisfaction of the petitioner. Therefore, in the
circumstances it has become necessary to have recounting of
votes in the presence of both the parties, to put the issue beyond
doubt as also to meet the ends of justice."
Upon recounting, First Respondent was stated to have received 412
votes, whereas Appellant was said to have 398 votes. First Respondent was
declared to have been elected, directing :
"In view of the above circumstances, the election
staff on duty had not prepared the result correctly on the
basis of valid votes polled in favour of the candidates.
On recounting of the votes by the undersigned, it has
been found that Sh. Shinder Palsingh, petitioner had got
412 votes, whereas Respondent No.1 Baldev Singh had
polled 398 votes and Sh. Bhola Singh Respondent No.2
had got 4 votes and 8 votes had been cancelled. Thus Sh.
Shinder Palsingh, petitioner has got 14 votes more than
Sh. Baldev Singh, Respondent No.1. Therefore, Sh.
Shinder Palsingh, petitioner is declared as elected
Sarpanch of Gram Panchayat in lieu of Sh. Baldev Singh,
Respondent No.1, who had earlier been declared as
Sarpanch of village Ransih Khurd. The head of the
department of Presiding Officer may be asked to take
strict departmental action against the Presiding Officer,
who with malafide intention and for his personal motive,
prepared the result in favour of respondent no.1 against
the result of actual votes polled and due to this reason the
parties had to indulge in unnecessary litigation and
harassment. A copy of the order is forwarded to the
District Development and Panchayat Officer, Moga and
Block Development and Panchayat Officer, Nihal Singh
Wala for necessary action. After compliance, the file be
consigned to the record room."
The appeal preferred by Appellant herein was dismissed by the High
Court merely stating :
"Applying the above principles to the present case,
it is sent that there was specific averment in the election
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petition that even though, 821 votes were polled, the staff
wrongly counted the same to be 836. It was also clearly
stated that the result was not declared on the same day
and there was no document showing draw of lots. The
Tribunal was satisfied that recount was necessary. On
summoning of record, the averments in the election
petition stood proved. Result of recount being different
does not necessarily mean that the recount was justified
but it is not possible to hold that there was no material
before the Tribunal to hold that there was prima facie
case or that recount was not validly ordered. Since the
recount was validly ordered, the result thereof could be
taken into account. The contention on behalf of the
appellant that due opportunity was not given to the
appellant to prove that 14 votes which were found to be
less had been lost, cannot be accepted. The appellant did
not raise any such point when sealed cover was opened
or even thereafter before the Tribunal."
Mr. Salil Sagar, learned counsel appearing on behalf of Appellant
contended that the Tribunal as also the High Court acted illegally and
without jurisdiction in passing the impugned judgment in so far as they
failed to take into consideration that no case for recounting has been made
out. It was pointed out that First Respondent, at no point of time, raised any
objection in regard to the correctness of counting of votes before the
Presiding Officer. He did not file any application for recounting. The
Tribunal, although, proceeded to determine the question on the basis of the
purported violation of the Rules, it would appear from the depositions of the
witnesses that they had not been cross-examined on that question. The High
Court as also the Tribunal, it was contended, without finding any prima facie
case in favour of Respondent for a recounting, directed so and that too in
utter disregard of the evidences on record.
Mr. S.K. Bagga, learned Senior Counsel appearing on behalf of the
Respondents, on the other hand, urged that the votes were incorrectly
counted as would be evident from the result of the recounting. The
Presiding Officer, Mr. Bagga, submitted, merely deposed about the drawing
of lots, but in doing so, he had delegated his power to the Assistant
Returning Officer and thus, the entire process was illegal. The Tribunal,
keeping in view the materials on record, thus, had rightly directed recounting
of votes with a view to determine the issue. The order of recounting was
passed, it was submitted, to meet the ends of justice and only on the basis of
the result of recounting.
Election for the post of Sarpanch and Panches are, indisputably,
governed by the Punjab State Election Commission Act, 1994.
Sections 66, 68 and 69 of the said Act read as under :
"66. Counting of votes.- At every election where a poll
is taken, votes shall be counted by or under the
supervision and direction of, the Returning Officer, and
each contesting candidate, his election agent and his
counting agents, shall have a right to be present at the
time of counting."
"68. Equality of votes.- If, after the counting of the
votes is completed, and the addition of one vote will
entitle any of those candidates to be declared elected, the
Returning Officer shall forthwith decide between those
candidates by lot, and proceed as if the candidates on
whom the lot falls had received an additional vote."
"69. Declaration of results.- When the counting of the
votes has been completed, the Returning Officer shall, in
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the absence of any direction by the Election Commission
to the contrary, forthwith declare the result of the election
in the manner provided by this Act or the rules made
thereunder."
Section 76 of the Act provides for presentation of an election petition
on one or more grounds specified in Sub-Section (1) of Section 89 to the
Election Tribunal. Section 78 provides for the contents of the election
petition. Clauses (a), (b) and (c) of Sub-Section (1) of the said provision
reads thus :
"a) contain a concise statement of the material facts on
which the petitioner relies;
b) set forth full particulars of any corrupt practice that
the petitioner alleges, including a statement as possible,
of the names of the parties alleged to have committed
such corrupt practice or practices and the date and place
of the commission of such practice; and
c) be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908
for the verification of pleadings;"
Section 83 provides for secrecy of voting not to be infringed. Sub-
Clauses (iii) and (iv) of Clause (d) under Sub-Section (2) of Section 89
provide that subject to the provisions of Sub-Section (2), the Election
Tribunal is of the opinion that the result of the election, in so far as it
concerns a returned candidate, has been materially affected by the improper
reception, refusal or rejection of any vote or the reception of any vote which
is void or by any non-compliance with the provisions of the Constitution of
India or of the said Act or of any rules or orders made under the said Act, the
Election Tribunal shall declare the election of the returned candidate to be
void.
The Election Petition was required to be verified in terms of Order VI
Rule 15 of the Code of Civil Procedure, 1908. It provides :
"15. Verification of pleadings.\026 (1) Save as otherwise
provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by
one of the parties pleading or by some other person
proved to the satisfaction of the court to be acquainted
with the facts of the case.
(2) The person verifying shall specify, by
reference to the numbered paragraphs of the pleading,
what he verifies of his own knowledge and "
The verification of an election petition, it was trite, must be done
strictly in terms of Order VI Rule 15 of the Code of Civil Procedure. It was,
thus, incumbent on the part of Appellant herein to specifically state as to
which statements made in the election petition were true to his knowledge
and which were true to his belief. A factual averment made in the election
petition cannot be both true to the knowledge and belief of the deponent.
We may furthermore notice that although in the election petition it has
been contended that First Respondent had requested for recounting of votes,
the officers who examined themselves were not cross-examined on that
point. The said statement would, thus, be deemed to have been admitted.
Even the purported illegalities which, according to Respondents, would lead
to declaration of election of Appellant herein to be void had not been put to
the witness in cross-examination.
The question which, therefore, would arise is ’as to whether the
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learned Tribunal was correct in directing recounting?’ The officers had
categorically stated that consent paper was torn. The fax message which has
been sent immediately to the Collector of the District was a
contemporaneous document, the genuineness whereof has not been
questioned. Apart from the statutory Form, even in the said fax message the
Returning Officer was categorical in his statement that both the candidates
have received equal number of votes and thus, the result of the election to
the post of Sarpanch was declared by draw of lots. It also mentioned about
the tearing of the written paper on which consent had been given and only in
the aforementioned situation, sought for guidance as to what action should
be taken in the matter. The official act should be presumed to have been
done in the ordinary course of business. A recounting, as is well known,
should not ordinarily be directed to be made. There exists certain limitation
in this behalf.
The question came up before this Court in M. Chinnasamy vs. K.C.
Palanisamy & Ors. [(2004) 6 SCC 341], wherein this Court opined :
"The question as to what would constitute material
facts would, however, depend upon the facts and
circumstances of each case. It is trite that an order of re-
counting of votes can be passed when the following
ingredients are satisfied: (1) if there is a prima facie case;
(2) material facts therefor are pleaded; (3) the court shall
not direct re-counting by way of roving or fishing
inquiry; and (4) such an objection had been taken
recourse to.
The necessity of "maintaining the secrecy of ballot
papers" should be kept in view before a re-counting is
directed to be made. A direction for re-counting shall not
be issued only because the margin of votes between the
returned candidate and the election petitioner is narrow."
The Court furthermore emphasized the requirements of pleadings
containing material facts which are salutary in nature. In that case also it
was found that no material had been brought on record to show that the
factual findings of the Returning Officer were incorrect. This Court rejected
the ’doctrine of prejudice’, in such a matter, as being not a relevant factor,
having regard to the constitutional and statutory scheme involving holding
of election and the consequences emanating from the direction of recounting
which could lead to identification of voters as the same would not be
desirable. It was reiterated that pleadings of material fact would include
disclosure of all such information which if not rebutted would result in
allowing the petition. It was opined :
"Had the election petitioner in his pleadings, as
noticed hereinbefore, disclosed the details of the names
of polling stations, counting centres, tables, particulars of
round of the counting of votes in relation whereto alleged
irregularities had taken place under all the four categories
and basis of material facts and particulars, the High
Court, if finds that the election petitioner has made out a
prima facie case for scrutiny of ballot papers and re-
count, may direct re-count of ballot papers in respect of
the said votes only and not the entire votes. The High
Court further failed to notice that in para 12 of the
election petition it has merely been pointed out that
irregularities in respect of counting had materially
affected the election and in that view of the matter, the
High Court should not have directed re-counting of all
the votes which would amount to going beyond the said
election."
This Court in arriving at the said decision took into consideration
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various decisions, including T.A. Ahammed Kabeer vs. A.A. Azeez &
Ors. [(2003) 5 SCC 650], whereupon Mr. Bagga has relied. Therein it has
been held :
"It is true that a re-count is not to be ordered merely
for the asking or merely because the court is inclined to
hold a re-count. In order to protect the secrecy of ballots
the court would permit a re-count only upon a clear case
in that regard having been made out. To permit or not to
permit a re-count is a question involving jurisdiction of
the court. Once a re-count has been allowed the court
cannot shut its eyes on the result of re-count on the
ground that the result of re-count as found is at variance
with the pleadings. Once the court has permitted re-count
within the well-settled parameters of exercising
jurisdiction in this regard, it is the result of the re-count
which has to be given effect to."
This Court did not agree with the said judgment in M. Chinnasamy
(supra) stating :
"With respect, we are not in a position to endorse
the views taken therein in their entirety. Unfortunately,
the decision of a larger Bench of this Court in Dr. Jagjit
Singh v. Giani Kartar Singh [AIR 1966 SC 773] had not
been noticed therein. Apart from the clear legal position
as laid down in several decisions, as noticed
hereinbefore, there cannot be any doubt or dispute that
only because a re-counting has been directed, it would
not be held to be sacrosanct to the effect that although in
a given case the court may find such evidence to be at
variance with the pleadings, the same must be taken into
consideration. It is now well-settled principle of law that
evidence adduced beyond the pleadings would not be
admissible nor can any evidence be permitted to be
adduced which is at variance with the pleadings. The
court at a later stage of the trial as also the appellate court
having regard to the rule of pleadings would be entitled
to reject the evidence wherefor there does not exist any
pleading."
We may also notice that in Chandrika Parshad Yadav vs. State of
Bihar & Ors. reported in (2004) 6 SCC 331, this Court dealing with the
provisions of Bihar Panchayat Election Rules, stated the law in the following
terms :
"Rule 79 as noticed hereinbefore enables a
candidate to file an appropriate application for re-
counting of votes. Rule 79 unlike rules framed by other
States does not say that such an application would not be
maintainable after declaration of the votes polled by the
parties or prior thereto. Such an application, therefore,
can be filed at any point of time. The very fact that sub-
rule (3) of Rule 79 provides for amendment of the result
relating to the votes polled by the respective candidates
and as such amended result is required to be announced
in the prescribed form under sub-rule (2) of Rule 79, the
same itself is a pointer to the fact that even after
announcement of result an application for re-counting
would be maintainable. It may be true that only because
such an application had not been filed before the
Returning Officer by itself may not preclude the Election
Tribunal to go into the question of requirement of issuing
a direction for re-counting but there cannot be any doubt
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whatsoever that Rule 79 serves a salutary purpose.
Counting of ballot papers in terms of the rules takes place
in presence of the candidate or his counting agent. When
an agent or a counting agent or the candidate himself
notices improper acceptance or rejection of the ballot
papers, he may bring the same to the notice of the
prescribed authority. As noticed hereinbefore, in a given
case, an application for re-counting either before
announcement of the result or thereafter, would be
maintainable. Once an application is filed by an agent or
a counting agent or the candidate himself pointing out the
irregularities committed by the officers appointed for
counting the ballot papers, immediate redressal of
grievances would be possible. As indicated hereinbefore,
while filing such an application the basis for making a
request for re-counting of votes is required to be
disclosed. The Returning Officer is statutorily enjoined
with a duty to entertain such an application, make an
inquiry and pass an appropriate order in terms of sub-rule
(2) of Rule 79 either accepting in whole or in part such
requests or rejecting the same wherefor he is required to
assign sufficient or cogent reasons. In the event such an
application is allowed either in whole or in part, he is
statutorily empowered to amend the results also.
Ordinarily, thus, it is expected that the statutory
remedies provided for shall be availed of. If such an
opportunity is not availed of by the election petitioner; he
has to state the reasons therefor. If no sufficient
explanation is furnished by the election petitioner as to
why such statutory remedy was not availed of, the
Election Tribunal may consider the same as one of the
factors for accepting or rejecting the prayer for re-
counting. An order of the prescribed authority passed in
such application would render great assistance to the
Election Tribunal in arriving at a decision as to whether a
prima facie case for issuance of direction for re-counting
has been made out."
In M. Chinnasamy (supra), the decision P.K.K. Shamsudeen vs.
K.A.M. Mappillai Mohindeen & Ors. [(1989) 1 SCC 526] had been
noticed. Referring to Dr. Jagjit Singh v. Giani Kartar Singh, it had been
observed :
"In Jagjit Singh (Dr.) v. Giani Kartar Singh2
before a three-Judge Bench of this Court, a contention
was raised to the effect that when a Tribunal considering
the evidence in the light of the allegations made by the
election petitioner was satisfied that inspection should be
ordered, the same should not ordinarily be reversed in
appeal wherein this Court held: (AIR pp. 784-85, para
35)
"35. We are not prepared to accept this
contention. The order passed by the Tribunal clearly
shows that the Tribunal did not apply its mind to the
question as to whether sufficient particulars had been
mentioned by the appellant in his application for
inspection. All that the Tribunal has observed is that a
prima facie case has been made out for examining the
ballot papers; it has also referred to the fact that the
appellant has in his own statement supported the
contention and that the evidence led by him prima
facie justifies his prayer for inspection of ballot
papers. In dealing with this question, the Tribunal
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should have first enquired whether the application
made by the appellant satisfied the requirements of
Section 83(1) of the Act; and, in our opinion, on the
allegations made, there can be only one answer and
that is against the appellant. We have carefully
considered the allegations made by the appellant in
his election petition as well as those made by him in
his application for inspection, and we are satisfied that
the said allegations are very vague and general, and
the whole object of the appellant in asking for
inspection was to make a fishing enquiry with a view
to find out some material to support his case that
Respondent 1 had received some invalid votes and
that the appellant had been denied some valid votes.
Unless an application for inspection of ballot papers
makes out a proper case for such inspection, it would
not be right for the Tribunal to open the ballot boxes
and allow a party to inspect the ballot papers, and
examine the validity or invalidity of the ballot papers
contained in it. If such a course is adopted, it would
inevitably lead to the opening of the ballot boxes
almost in every case, and that would plainly be
inconsistent with the scheme of the statutory rules and
with the object of keeping the ballot papers secret."
Recently in Gursewak Singh vs. Avtar Singh & Ors. [(2006) 4 SCC
542, this Court opined :
"While interfering with an order of the Election
Tribunal, particularly, in view of the purport and object for
which such Tribunal had been constituted, the High Court
had an obligation to assign sufficient and cogent reasons.
The High Court, as noticed hereinbefore, proceeded on the
basis that the Appellant was responsible for the mess
created in the matter of maintenance of records. There are
items of evidence on record to show that ballot papers had
not been properly kept. Some were kept in loose sheets.
They had been counted separately. The Tribunal noticed
how ballot paper envelopes were found in suspicious
circumstances.
Instead of breaking the seals at one end, large
number of ballots were found in loose condition. 200 ballot
papers of booth No. 41 were found in the bag of booth No.
43. The Tribunal, therefore, came to the conclusion:
".....From a comparative analysis of the
position (booth-wise) of the results after recounting,
as given tabular form on page 13 above, it is
apparent that there is no issue as pertaining to the
counting process in Booth 42, as the total number of
ballots polled (966) is same, and there is rather a
decrease of 4 rejected votes, which have now been
counted in the tally of the Respondent 1, thereby
increasing his tally of booth 42 to 467 from 463.
Similarly, in relation to Booth 43, if one takes into
account that 2-ballot papers in favour of the
petitioner which pertained to Booth 41 have
somehow managed to enter the packet containing
ballot papers of Booth 43 then the matter is
somewhat regular, as the total votes polled in the
booth 43 is similar at 902, and there is only marginal
difference of 1 extra vote which was polled in
favour of petitioner being declared rejected..."
We, therefore, in view of the facts and circumstances of the case, are
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unable to uphold the findings of the Tribunal and the High Court. We set
them aside accordingly. The appeal is allowed. The First Respondent shall
bear costs of the Appellant, which is quantified at Rs.10,000/-.