Full Judgment Text
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PETITIONER:
M.R. GOPALAKRISHNAN
Vs.
RESPONDENT:
THACHADY PRABHAKARAN & ORS.
DATE OF JUDGMENT13/12/1994
BENCH:
FAIZAN UDDIN (J)
BENCH:
FAIZAN UDDIN (J)
ANAND, A.S. (J)
CITATION:
1995 SCC Supl. (2) 101 JT 1995 (1) 202
1994 SCALE (5)192
ACT:
HEADNOTE:
JUDGMENT:
FAIZAN UDDIN, J.:
1. This appeal under Section 116-A of the
Representation of People Act, 1951 (hereinafter referred to
as the Act) has been directed against the judgment of the
High Court of Kerala dismissing the Election Petition of the
appellant whereby he had challenged the election of
respondent No. 1 as a member of Kerala Legislative Assembly
from constituency No. 104 Kayamkulam, and for a further
declaration that the appellant was duly elected for the said
seat for which the election was held on 12.6.1991 and the
result of which was declared on 16.6.1991.
2. In all there were eight candidates in the field i..
the appellant and respondents No. 1 to 7 who contested the
said election for the Legislative Assembly seat from 104
Kayamkulam constituency. The appellant was a candidate
fielded by the Communist Party of India (Marxist). The
respondent No. 1 herein was the candidate sponsored by the
Indian National Congress which was a constituent party of
the United Democratic Front. The total number of votes
polled in the said election were 97,969 out of which 1,375
were rejected as invalid votes and 96,594 votes were
received as valid votes. At the end of the final counting
which took place on June 16, 1991 the result was declared
and the respondent No. 1 was returned as a
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successful candidate by a margin of 33 votes against his
nearest rival, the petitioner/appellant herein. The main
contest was between the appellant and the respondent No. 1.
The appellant had polled 46,649 votes while the respondent
No. 1 had polled 46,682 votes and thus the respondent No. 1
had won the election by a margin of 33 votes over his
nearest rival, the petitioner/appellant herein and,
therefore, he was declared elected.
The appellant challenged the election of the returned
candidate respondent No.-. 1 herein by filing an Election
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Petition under the relevant provisions of the Act, in the
High Court of Kerala on several grounds. It was alleged by
the appellant that the counting of votes for the Legislative
Assembly Constituency as well as counting of votes for the
Kayamkulam segment of Mavelikara Parliamentary Constituency
both took place simultaneously in the same hail which was of
the size of 80 x 20 feet and as there were several tables
and chairs in the said counting hall and the counting agents
of all the candidates and other officials were present in
the hall, it became crowdy and the sorting out of bundles of
ballot papers was done hastily and, therefore, it was not
possible for the counting agents of the petitioner/
appellant to carefully keep a track of the process of
sorting out. It was, therefore alleged that a reasonable
opportunity was not given to the appellant’s agents to note
and satisfy themselves that the bundles were really of the
candidates for whom the votes were cast or the correctness
of the ballot papers in each bundle. It was alleged that
the Returning Officer rejected the votes as invalid inspite
of the protest by the petitioner/appellant’s election agent.
The petitioner/appellant’s election agent made an
application for recount ’alleging specific irregularities in
the counting but the same was unreasonably rejected by the
Returning Officer and the respondent No. 1 was declared
elected. It has been further alleged that on 17.6.91 the
petitioner/ appellant submitted an application 10 the
District Collector, Alapuzha for recounting and the election
agent of the petitioner/ appellant had also sent an
application to the Chief Election Officer pointing out the
irregularities in the counting. The petitioner/appellant
further alleged that several postal ballots were rejected
without valid reason and the votes cast in favour of the
appellant were treated as invalid and in many polling
stations the figure in the ballot paper account did not
tally.
4. The petitioner/appellant further made allegations that
several persons had cast their votes by committing acts of
impersonation, in place of the real and genuine voters. The
appellant also alleged that 32 voters had cast their votes
twice in the same constituency as their names were entered
in the electoral roll in more than one place and that 18
persons had voted in more than one constituency the details
of which were given in Annexure IV and V annexed with the
Election Petition. It was therefore alleged that the result
of the election had been materially affected in so far as
the returned candidate is concerned.
5. The petitioner/appellant also made allegations against
respondent No. 1 for committing corrupt practices in the
said election by publishing news item in the Malayala
Manorma Daily dated 18.8.91 with a view to create an
impression in the mind of the voters of the constituency
that the petitioner/appellant was indulging in undesirable
activities to secure the release of convicts who were
undergoing life imprisonment for the purpose of making use
of their services in the election. The appellant also
alleged that with a view to prejudice the election prospects
of the appellant a pamphlet was published and circulated in
the constituency which contained false statement to the
knowledge of respondent No. 1 and his election agent. The
petitioner/appellant alleged that a news item was published
on 7.6.91 in Malayala Manorma Daily followed by an election
pamphlet which was widely circulated in the Kayamkulam
Assembly Constituency the contents of which were false and
designed to prejudice the minds of muslim voters in the
constituency as there was a number of muslim voters in Wards
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No. 7, 9 and 10. The petitioner/appellant alleged that due
to the distribution of said pamphlet he lost large number of
votes. The appellant also alleged that another pamphlet was
also published after the death of Shri Rajiv Gandhi
mentioning that the workers of the appellant had destroyed
the photos’of Shri Rajiv Gandhi and burnt Bhagwat Gita, Holy
Quran and Holy Bible. The petitioner/appellant alleged that
this pamphlet was published after 23.5.91 and prior to
12.6.91 with the consent and knowledge of respondent No. 1
with a view to prejudice the minds of the voters of the
constituency against the petitioner/appellant.
6. The Petitioner/appellant further alleged in the
Election Petition that out of the total number of 1280
postal ballots, 246 postal ballots were rejected by violat-
ing Rule 27(1) and Rule 54-A of the Conduct of Election
Rules. The petitioner/appellant alleged that his election
agent requested the Returning Officer to count all the
postal ballots but the Returning Officer illegally rejected
246 postal ballots and the request for recount of those 246
ballot papers was also rejected without assigning any reason
for such rejection. On these grounds the appellant prayed
for declaration of the election of respondent No. 1 as void
and to declare the petitioner as duly elected candidate for
the said constituency.
7. The returned candidate respondent No. 1 contested the
Election Petition filed against him by controverting all the
adverse allegations. The respondent No. 1 pleaded that the
Returning Officer had afforded adequate opportunity to the
election agents and counting agents of the candidates to
carefully watch the sorting out of the ballot papers and the
Chief Election Agent of the Petitioner/appellant was
present throughout the process of counting. But as there
were no irregularities nobody raised any objection regarding
the sorting out or counting of votes. The respondent No. 1
pleaded that on the demand of the election agent of the
appellant a second round of counting of votes of certain
polling stations was done but no fault was noticed. He has
pleaded that 246 postal ballots were rejected for valid
reasons and no illegality was committed by the Returning
Officer in the matter of dealing with postal ballots. The
respondent No. 1 further pleaded that no person had cast any
vote by committing acts of impersonation as alleged by the
appellant in his election petition. The respondent No. 1
emphatically denied that Annexure VII and VIII were
published by him or by any one with either his consent and
knowledge or’ that of his election agent. He asserted that
his election agents were in no way concerned or associated
with the a leged publication of Annexure VII and
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VIII. He also refuted the allegation of publication of
Annexure IX and X either with his consent or knowledge or
that of his election agent.
8.. The respondent No. 1 while refuting the allegations
made against him and his election agent filed a
recrimination petition under Section 97 of the Act alleging
that the petitioner/appellant himself was guilty of
committing corrupt practice as defined in Section 123 of the
Act. He alleged that one M.R. Rajasekharan was the election
agent of the petitioner/appellant who was also the Secretary
of the Election Committee and it was he who printed and
published a notice under the caption (English version)
"Elect the candidate of Left Front", the copies of which
were distributed in various parts of the constituency on
10.5.91. He further alleged that another notice was
published on 7.6.91 by the election agent of the appellant
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under the caption (English version) "let the devotees of
Shri Narayana think". The said two notices were filed by
the respondent No. 1. as Annexure ’A’ and ’B’ alongwith the
recrimination petition. Annexure ’A’ contained an appeal to
the muslim community to vote for L.D.F. candidate and
Annexure ’B’ contained an appeal to voters belonging to
Ezhuva community which according to the respondent No. 1
amounted to corrupt practice as defined under Section 100
read with sub-section (3) of Section 123 of the Act. The
respondent No. 1 further made allegations of double voting
by some voters while names of some voters appeared in
neighbouring constituency as well. On these allegations in
the recrimination petition the respondent No. 1 submitted
that even if the appellant had been declared elected his
election would have been void on the aforesaid grounds.
9. The High Court framed necessary issues on the
aforesaid pleadings and after the evaluation of the
evidence adduced by the parties and taking into ’account the
material on record held that there was no irregularity in
the counting of votes which may have materially affected the
result of the election; that the rejection of the postal
ballot. papers was for valid reasons; that it is clear from
the evidence that as and when the petitioner’s agent raised
any objection regarding the counting there was checking and
rechecking and according to the evidence of Returning
Officer. PW 16 at least 40 per cent of the ballot papers
were subjected to test checking but no difference was found
in such test checking and. therefore. in the absence of any
specific irregularity pointed out by the petitioner/
appellant’s agent regarding the counting. P.W 16 was
justified in rejecting the request for recount and as such
no case was made out for directing recount; that the
petitioner/appellant had failed to establish that the
pamphlets Ext. P 158 and Ext.P 159 were printed and
published with the consent and knowledge of the respondent
No. 1 and that the alleged publication do not fail within
the purview of corrupt practice as envisaged under sub-
section (4) of Section 123 of the Act; that the petitioner/
appellant had failed to prove that annexures VIII. IX & X
i.e. Ext. P 161. Ext. P 162 and Ext. P 157 were printed.
published and circulated by the respondent No. 1 or his
election agent or by any other person with their consent and
knowledge; that the petitioner also failed to prove that
four persons had cast votes by impersonation as alleged in
para 4 of. the election petition. However. the High Court on
issue No. 8 with regard to the petitioner/appellant’s al-
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legation of double voting by 32 voters recorded the finding
that Seethabhai Sanjivan, PW 2 had cast two votes in respect
Of electoral roll No. 051419, Ext. P 7 and No. 048734 Ext. P
9 and, therefore, both were declared as void. The High
Court also recorded the finding that voter No. 375 and voter
No. 1271 in the electoral roll-relate to the same person
Achuthan Sukumaran, PW 3 and Achuthan had cast his vote in
Kayamkulam constituency against voter No. 1271 in Ext P 5
and that some one else had cast his vote against voter No.
375 in Ext, P 8 which the High Court declared to be void.
Similarly the High Court further recorded the finding that
Pulikkandathil Sujatha Achuthan, voter No. 376 in Ext. P 8
is the same whose name appears in the polling station No. 43
as well as polling station No. 45 and, therefore, one vote
has been declared as void. The High Court also held that
voter No. 1221 in Ext. P 15 and voter No. 143 in Ext. P 16
is one and the same person Sagar Yunus Kunju, PW 5 and that
someone had cast the vote On behalf of PW 5 against voter
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No. 143 in Ext. P 16 and, therefore, one vote against P 16
has also been declared void. The High Court also held that
Madhavan Neelakanthan, PW 11 had cast two votes in the same
constituency (Ext. P 43 and Ext. P 44) and, therefore, both
have been declared void. The High Court also declared one
vote of PW 12 to be void. It was also found that the name of
Kunjumuthu @ Kunju, PW 13 and Anjali Siril Kunju Muthu @
Muthu is one and the same person whose name appeared in
polling station No. 7 as well as in polling station No. 35,
who .had cast vote at both the places and, therefore, both
the votes are declared void. The High Court also found that
one vote of PW 27 cast against counterfoil No. 001475 (Ext.
P 89) was liable to be declared void. Similarly it was
found that Madhuradha Krishnan, PW 29 had cast his vote
twice and, therefore, both the votes against counterfoil No.
041933 (Ext. P 97) and counterfoil No. 090465 (Ext. P 98)
were also declared void. One vote of Radhakrishnan Kunju, PW
30 was also declared as void as his name appeared in two
polling stations and he had cast his vote only in one
polling station while someone else had cast the vote at the
other polling station by impersonation. Similarly one vote
of Suresh Kumar Dasappan Pillay, PW 31 was also declared
void for the same reasons. The High Court also found that
Abdul Rasheed Ayyar Kunju, PW 32 had cast his vote twice in
the same constituency and, therefore, both the votes are
declared void. Thus under issue No. 8 the High Court found
in all 20 votes to be void. The High Court therefore, took
the view that since the improper reception of 20 votes did
not materially affect the result of election of the returned
candidate as it only reduced the margin from 33 to 13 by
reason of which the election of the returned candidate
respondent No. 1 herein cannot be declared to be void.
Consequently, the question of declaration of the petitioner
as the returned candidate did not arise. Since the High
Court found that even after giving a discount of 20
improperly received votes, the election of respondent No. 1
could not be cancelled or declared void and, therefore, it
dismissed the election petition. The High Court did not
consider it necessary to go into the allegations and grounds
raised by the respondent No. 1 against the
petitioner/appellant in his recrimination application filed
under Section 97 of the Act and the evidence adduced in
support of the same.
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10. Though Shri P.S. Poti, learned senior counsel
appearing for the petitioner/ appellant assailed all the
findings recorded by the High Court in dismissing the
election petition but his main attack was that:
(i) The counting was not cOnducted legally and
properly and in a congenial atmosphere by reason of which
the Returning ’Officer ought not to have rejected the
application for recount and that in any case the prayer made
to that effect in the election petition should not have been
rejected by the High Court in view of the facts and
circumstances mentioned in para 4 and 7 of the election
petition.
(ii) Out of the total No. of 1280 postal ballots, the
Returning Officer rejected 246 ballot papers and, out of
these 246, 24 postal ballot in Ext. P 54 series only were
rejected giving reasons in accordance with Rule 54(A)(4) of
the Conduct of Election Rules, 1961 while 222 ballot papers
of Ext. P 55 series were rejected without any endorsement
for such rejection which is clearly repugnant to the
mandatory provisions contained in Rule 54 (A)(4) and,
therefore, this reason alone was sufficient . to hold that
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the result of the election was materially affected as
according to the appellant there were valid postal ballots
in favour of the appellant amongst those which were
improperly rejected and;
(iii) That invalid votes were counted in favour of the
returned candidate respondent No. 1 and out of the total
rejected votes of 1375 quite a large number of valid votes
in favour of the appellant were rejected which materially
affected the result of the election.
11. In order to appreciate the first contention advanced by
the learned counsel for the appellant and referred to above
it has to be seen whether the appellant has pleaded material
facts and laid adequate foundation for a direction for
inspection and recount. In this regard learned counsel for
the appellant submitted that the pleadings with regard to
the material facts for a direction for recount arc contained
in paras 4 and 7 of the election petition. Briefly stated
the allegations made in para 4 of the election petition arc
that the counting of 104, Kayamkulam Assembly Constituency
as well as the counting of Parliamentary election was
simultaneously don in a Hall which had a length of 80 feet
and width of 20 feet which was insufficient to properly
accommodate the stag of the Returning Officer and the
assistants as wIl as the counting staff, candidates and
their counting agents by reason of which various
irregularities wre either consciously committed by the
counting staff or occurred on account of the hurried sorting
out and putting the ballot papers into different
compartments of the candidates or the compartments meant for
the doubtful votes while bundling up the ballot papers of
respective candidates into bundles of 50 each. It is stated
that it was difficult for the agents of the petitioner/
appellant to carefully keep track of the sorting out or
identifying the voters mark on the ballot papers before they
were put into different compartments. It has been further
alleged that a partisan attitude of the counting officers
and supervisors was visible. The counting agents of the
petitioner raised objection on several occasions and Shri
M.R. Rajesekharan, election agent of the
petitioner/appellant mentioned these facts to the Returning
Officer who told him that it was up to the counting agents
to watch the process and the whole count-
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ing is to be done without delay as the result has to be
declared as early as possible. It is further alleged in the
same para 4 of the petition that as the petitioner was
aware-of several specific irregularities at the counting and
the fact that the Returning Officer himself had rejected
several votes as invalid over ruling the protest of the
petitioner’s election agent that they were the votes polled
by the petitioner, so the petitioner’s election agent made
an application for recount of the votes but the Returning
Officer rejected the application without any justification
and unilaterally declared the first respondent as elected by
a margin of 33 votes despite vehement protest of the
petitioner’s election agent. His pleadings contained in para
7 of the election petition relate to the allegation about
casting of several votes by impersonation giving the names
of four persons who were alleged to have voted for the
persons whose name appeared in the electoral roll in polling
booths No. 15, 30 and 3. According to the learned counsel
for the appellant these. facts in addition to the fact that
222 postal ballots were rejected contrary to the mandatory
rule constituted material facts for direction for inspection
and recount of all the ballot papers. But on a careful and
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critical examination of the facts and the evidence on record
we find that they speak contrary to the allegations referred
to above in the petition which shall be discussed in the
paras hereinafter.
12. We shall first discuss the evidence relating to the
alleged irregularities said to have been committed during
the counting. Shri M.Siraj Kunju, PW 16, District Planning
Officer was the Returning Officer of 104, Kayamkulam
Assembly Constituency for the general election held on June
12, 1991. He deposed that the Chief Election Agents of
various candidates were sitting near him (Returning
Officer). There were two independent observers deputed by
the Election Commission who visited the Counting Hail. He
also stated that the election agent of the
petitioner/appellant wanted recounting of the entire ballot
papers but as he had not specifically requested in respect
of rejection of any ballot paper in a particular polling
station he did not allow the application for recount. But on
demand by the Chief Election Agent of the petitioner the
entire ballot papers of polling booths No.96 to 111 were
counted twice. He also stated that he himself had supervised
the second counting in respect of some of the tables and his
Assistant Returning Officers supervised in respect of other
tables. He further deposed that before a final decision was
taken in the application for counting, he consulted the
officials who were Incharge of the preparation of the final
sheets whether there was any mistake and he himself checked
the result sheets. He stated that during the time of
counting the actual number of votes secured by each
candidate was shown in the Display Board and this was being
done till the counting was over but nobody raised any
objection. A perusal of the evidence of the Returning
Officer, PW 16 will go to show that no question in
cross’examination on behalf of the appellant was directed
against the alleged uncongenial atmosphere in the counting
hail or any difficulty in the sorting out or putting the
ballot papers in different compartments or in the bundles of
different candidates. No question was also directed that the
agents felt any difficulty in carefully keeping the track on
the sorting out or identifying process or regarding the
indifferent attitude of the counting staff. No question was
also put to the Rturning Officer that proper opportunity
211
to the appellant’s agents was not afforded with regard to
the verification of marks made by the voters on the ballot
papers.
13. It is no doubt true that M.R. RaJasekharan, PW 98,
election agent of the Petitioner/appellant made an
application on 16.6.91 purporting to have been made at 10.35
PM to the Returning Officer for recount. The said
application which is Ext. P 207 reads as under:-
EXT. P.207
From
M.R. Rajsekharan,
Election agent of
Shri MR Gopalakrishnan.
104. Kayamkulam
Assembly Constituency.
To
The Returning Officer,
104. Kayamkulam
Assembly Constituency.
Respected Sir,
It is understood to me that them are irregularities in
the counting of votes. which began from 8-15. today morning.
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of many polling station of 104. Kayamkulam Assembly
Constituency and also I have doubt about the counting of
Postal Ballots and also votes are not tailing with the
records.
In addition to this that many number of votes have been
unauthorisedly and illegally declared invalid and so that
entire votes of this station may be subjected to recount.
otherwise it will cause irrepa-. rable loss to me and to my
candidate.
Hence it is requested that the result of this station
may be announced only after the recount is conducted. Yours
faithfully.
Sd/-
10.35 PM M.R. RAJASEKHARAN
Harripad,
16-6-1991.
Plain reading of this application will go to show that
it is written In most vague terms without specifying any
irregularities whatsoever which according to the
petitioner/appellant were committed during the course of
counting.
14. The apPellant M.R. Gopalakrishnan who appeared as PW
100 himself made an application Ext. p 211 on 19.6.91 three
days after the declaration of result to the Chief Electoral
Officer. Trivendrum for recount which is reproduced
hereunder :.
EXT. P. 211
From:
M.R. Gopalakrishnan,
Candidate 104. Kayamkulam
Assembly Constituency,
KAYAMKULAM.
To
The Chief Electoral Officer,
1991 Assembly Elections,
TRIVENDRUM.
SUB: Rejection of application for recounting and re-
verification of Postal Ballot Papers. Request for re-
counting and reverification.
Sir,
I was a candidate for the Assembly Election in 104
Kayamkulam Constitu-
212
ency. My opposite candidate Shri Thachadi Prabhakaran was
declared for 33 votes by the Returning Officer.
Knowing that there was irregularities and illegality in
the matter of counting, my chief Agent has placed an
application for re-counting.
The Returning Officer has declared hundreds of invalid
votes as valid in favour of Shri Thachady Prabhakaran. My
valid votes have been declared as invalid.
About 300 postal ballot papers have been declared by the
Returning Officer as invalid votes.
For the reasons stated above, I request you to be good
enough to take urgent steps to re-count the ballots as soon
as possible.
Yours faithfully,
Sd/-
(MR. Gopalakrishnan)
Kayamkulam,
19-6-1991
Copy to: Chief Election Commission, New Delhi.
A cursory look at this application will go to show that no
specific allegation with regard to any particular
irregularity in the counting was made but vague application
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for recounting was submitted. Not only this but M.R.
Rajasekharan, PW 98 the election agent of the appellant
again made an application on 21.6.91 to the Chief Electoral
Officer, Thiruvanthapuram requesting for recount of the
votes of 104, Kayamkulam Assembly Constituency. The said
application Ext. P.208 is reproduced herein below.
From:
M.R. RAJASEKHARAN,
Election Agent of
M.R. Gopalakrishnan,
Kayamkulam.
To
The Chief Electoral Officer
State of Kerala,
Thiruvananthapuram.
Sub: Assembly Election - Counting
of Votes of 104 Kayamkulam
Assembly Constituency at
Haripad - Irregularities recount-
ing and Verification request re-
garding
Sir,.
I was Election Agent of Shri M.R. Gopalakrishnan, a
candidate of 104 Kayamkulam Assembly Constituency. The
counting of the votes of the Constituency was held at Govt.
H.S. for Girls, Haripad on 16-6-1991. After the counting of
votes, having doubts and having noticed specific
irregularities in the counting, before the declaration of
the results I gave in writing a request to the Returning
Officer for recounting of votes on reasonable grounds. But,
to the surprise of all present, the Returning Officer,
unilaterally declared Shri Thachady Prabhakaran elected by
33 votes, under out vehement protest. Against this
arbitrary decision of the Returning Officer the candidate
filed a petition to the District Collector Alleppey.
The immediate rejection of our demand for recounting of
votes was illegal and against rules. Our demand for
recounting was based on the following grounds :-
1. A good number of postal ballots
213
were rejected without valid reason.
2. Votes which were valid in our favour were counted as
invalid.
3. In many booths, the ballots in the box did not tally
with the statement.
4. Many counting Officers were the relatives and partymen
of the U.D.F. Candidate and they Purposefully helped the
U.D.F. Candidate.
5. The conjection in the counting Hall, the frequent
outbursts of impatience and protest of the counting officers
prevented the peaceful counting.
For the above reasons I request you to be good enough to
take steps for the recounting of votes of 104, Kayamkulam,
for which I shall be grateful to you.
Yours faithfully,
Sd/-
(M.R. Rajasekharan)
Kayamkulam,
21-6-1991
In this application it may be noted that the
irregularities pointed out in paras 1 to 5 of the
application were not mentioned in the earlier two
applications Ext. P 207 and Ext. P 211. This clearly goes
to show that the irregularities pointed out in this latter
application are only after thought and not based on any
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true facts. If in fact any of the irregularities of the kind
alleged in paras 4 and 7 of the election petition or those
as mentioned in the applications dated 21-6.- 1991 were
in fact committed, then why these irregularities were not
pointed out to the Returning Officer or to any of the ob-
servers when they visited the ’counting hall when
counting was going on. No complaint about any irregularity
or about the uncongenial atmosphere of the hall was reported
either orally or in writing to the Returning Officer or to
any official connected with the affairs of the counting
during the course of counting on 16-6-1991.. In these facts
and circumstances it is difficult to accept the allegations
that the atmosphere of Counting Hall was not congenial or
there was any difficulty in the counting due to the size of
the hall or any irregularities were committed as alleged by
the appellant in the election petition. In these facts and
circumstances the High Court is fully justified in taking
the view that no case for a direction for recount was made
out.
15. It may be pointed out here that the true legal
position in the matter of allowing or disallowing a request
for recount is no longer in doubt but well settled. That
the Tribunal or the Court trying an election petition has
power to direct inspection and recount of votes if the
material facts and particulars are pleaded and adequate
grounds are found to exist for directing such recount in the
interest of justice is now well settled. While doing so,
however, the provisions contained in Section 94 of the Act
may not be ignored but the same be given due weight and
consideration before directing inspection and recount.
Section 94 of the Act directs that ’secrecy’ of voting not
to be ’infringed’It directs that no witness or other person
shall be required to disclose for whom he has voted at an
election particularly in view of the statutory rules which
provide adequate safeguard for proper conduct of the
counting and for testing the validity or invalidity of the
ballot papers. The rules relating to counting of votes in
parliamentary and assembly constituencies are contained in
Part IV of the Conduct or Elec-
214
tion Rules, 1961 hereinafter referred to as the election
rules. Rule 51 provides for the time and place for the
counting of votes. Rule 52 relates to the appointment of
counting agents and revocation of such appointments while
Rule 53 makes provision for admission of counting officers
and counting assistants as may be appointed to assist the
Returning Officer in the counting; persons authorised by the
Election Commission; public servants on duty in connection
with the election and; candidates, their election agents and
counting agents; fixing the place for counting. Further Rule
54 contemplates that the Returning Officer shall apprise
all persons present in the counting hall the provisions of
Section 128 which relate to the maintenance of secrecy of
voting. Rule 55 deals with scrutiny and opening of the
ballot boxes after the same are inspected by the counting
agents present at the particular table with regard to the
seal which may be affixed thereon to satisfy themselves that
they are in tact. In addition to this the Returning Officer
himself has to satisfy that none of the ballot boxes have
been tampered with and in the event the Returning Officer is
satisfied that any ballot box has in fact been tampered
with he shall refrain from counting the ballot papers
contained in that box and take steps in accordance with Rule
58 of the Act. Further Rule 56 provides the mode of
counting, scrutiny and rejection of the ballot papers if
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found to be invalid for any reasons pointed out in the said
rule. Rule 56. also makes provision for raising of
objections with regard to any ballot paper and deal with it
in accordance with law. From this elaborate procedure right
from the point of opening of the ballot box up to the stage
of sealing the ballot papers after the counting is over, it
is evidently clear that the rule and procedure of counting
provide the candidates and their, counting agents sufficient
and adequate opportunity to see and examine and raise
objections, if any, in respect of any ballot paper with
regard to its validity or otherwise and it is only after
objections, if any, the ballot paper is admitted as valid or
invalid as the case may be. Not only this but even after
the completion of the process of counting a provision is
made in Rule 63 to make a demand to the Returning Officers
for recount of the votes either wholly or in part stating
the grounds on which the demand for such recount is made. It
is only after the compliance of this elaborate procedure
that the Returning Officer prepares the result sheet in form
20 and declares the result.
16. After a cursory glance of the relevant provisions
discussed above it is thus evidently clear that the rules
provide adequate opportunity to a candidate, his election
agent and counting agent to have a watch over the counting
process before the result is declared and if they raise any
objection as to the validity or otherwise of any ballot
paper and if the said objection is improperly rejected, the
candidate his counting and election agent are wII informed
of the nature of the objection that was raised with regard
to the ballot paprs and make a concise statement of material
facts in the election petition in relation thereto. It is
for hiss reasons that this Court has repeatedly held that
the secrecy of the vote has to be maintained and a demand of
recount should not ordinarily be granted unless the election
petitioner makes out a prima facie case with regard to the
errors in the counting and is able to show that the errors
are of such magnitude that the result of the election of the
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returned candidate is materially affected. The election
petitioner, in order to seek an order of recount, has to
place material and make out a prima facie case on the
threshold and before an order of recount is actually made.
The demand of a defeated candidate for recount of votes has
to be considered keeping in view that secrecy of the ballot
is sacrosanct in a democracy and, therefore, unless the
election petitioner is able not only to plead and disclose
the material facts but also substantiate the same by means
of evidence of reliable character that there existed a prima
facie case for the recount, no Tribunal or Court would be
justified in directing the recount.
17. This Court in Bhabhi v. Sheo Govind and others [ 1976
(1) SCC 687 ] while dealing with the question of direction
for inspection and recount, on a close and careful
consideration of various authorities of This Court laid down
certain guidelines and conditions which are imperative
before a court can grant inspection of the ballot papers.
The said conditions and guidelines are set out below :-
"1. That it is important to maintain the
secrecy of the ballot which is sacrosanct and
should not be allowed to be violated on
frivolous, vague and indefinite allegations;
2. That before inspection is allowed, the
allegations made against the elected candidate
must be clear and specific and must be
supported by adequate statements of material
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facts;
3. The Court must be prima facie satisfied on
the materials produced before the Court
regarding the truth of the allegations made
for a recount;
4. That the Court must come to the conclusion
that in order to grant prayer for inspection
it is necessary and imperative to do full
justice between the parties;
5. That the discretion conferred on the
Court should not be exercised in such a way so
as to enable the applicant to indulge in a
roving inquiry with a view to fish materials
for declaring the election to be void; and
6. That on the special facts of a given case
sample inspection may be ordered to lend
further assurance to the prima facie
satisfaction of the Court regarding the truth
of the allegations made for a recount, and not
for the purpose of fishing out materials."
In a recent decision in Satyanarayan Dudham v. Uday Kumar
Singh [ 1993 Supple (2) SCC 82 ] this Court again
reiterated the similar view by observing that the secrecy of
the ballot papers cannot be permitted to be tinkered lightly
and an order of recount cannot be granted as a matter of
course. It is only when the High Court is satisfied on the
basis of material facts pleaded in the petition and
supported by the contemporaneous evidence that rcount can be
ordered. When there is no contemporaneous evidence to show
any irregularity or illegality in the counting, ordinarily
it would not be proper to order recount on the basis of bare
allegations in the election petition.
18. As discussed in the foregoing paras, in the present
case, there is no any specific instance or allegation in the
petition with regard to any particular irregularity and the
meagre and vague allegations that have been made are not
supported by any contemporaneous evidence making out a prima
facie case for recount and, therefore, the Returning Officer
as well as the
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High Court were fully justified in rejecting the demand for
recount.
19. This brings us to the second ground of attack advanced
by the learned counsel for the appellant with regard to the
rejection of 246 postal ballot papers of Ext. P 55 series
which are alleged to have been rejected without any
endorsement and without assigning any reason for such
rejection in violation of the mandatory provisions contained
in Rule 54(A)(4) of the election rules which according to
the learned counsel for the appellant materially affected
the result of the election. It was submitted that since the
rejection of postal ballot papers was improper, keeping in
view the low margin between the appellant and the returned
candidate respondent No. 1 herein, the High Court should
have allowed the prayer of recount. As against this Shri
Joseph, learned counsel appearing for the respondent No. 1
submitted that the mere fact of non-recording of reasons
could not lead to the inference that the result of the
election has been materially affected nor could it justify
recount, without proper pleadings,, and material facts being
furnished in the election petition. He submitted that the
case’ of the petitioner/ appellant was not that his valid
postal ballots had been wrongly rejected or that the invalid
postal ballots of the returned candidate had been improperly
accepted from Ext. P 55 series and, therefore, the omission
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on the part of the Returning Officer to endorse the reasons
for rejecting the postal ballots on the grounds which were
otherwise valid, would be of no consequence. However, after
very lengthy arguments advanced by the learned counsel
for the parties on this point, Shri Poti, learned senior
counsel for the appellant made an application on 13.9.94 in
this Court which was taken on Board, praying that the postal
ballot papers (Ext. P 55 series) be subjected to inspection
by this Court in view of the narrow margin of votes between
the appellant and the returned candidate respondent No. 1.
Learned counsel for the respondent No. 1 was good enough and
fairly recorded his ’No Objection’ to the prayer made on
behalf of the appellant in the aforesaid application. We,
therefore, with a view to do complete justice between the
parties and to satisfy our judicial conscience, since the
finding of the High Court was not clear as to whether or not
the rejected postal ballot papers Ext. P 55 series had been
subjected to any inspection or scrutiny when the Returning
Officer PW 16 was being examined in the Court, granted the
prayer of the counsel for the appellant and the inspection
of the postal ballot papers, Ext. P 55 series was conducted
by us in the Court in the presence of learned counsel for
the parties who also Participated in the process of
inspection. On inspection of the postal ballot papers Ext. P
55 series we found that except a few postal ballot papers
from the said series where incomplete declaration forms had
been filed, the details whereof are given, the other postal
ballot papers did not include any declaration form at all as
required by Rule 54-A, in the outer cover. The longer outer
cover contained only a small cover containing the ballot
paper itself. After inspecting more than half of the ballot
papers we did not deem it necessary to inspect all the 246
ballot papers as the learned counsel for the parties
conceded that no further exercise was necessary to inspect
the postal ballot papers of Ext. P 55 series because the
rejection of the ballot papers by the Returning Officer were
found to be in order by us in the Court in the presence of
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the counsel for the parties in the random sample inspection
of more than 150 postal ballots of Ext. P 55 series and the
same were found to have been rightly rejected. The postal
ballot papers in which the declaration forms were found
alongwith the smaller cover containing the ballot papers
reveal the following position:
1. P.55 (176) All the entries in the declaration form are
totally blank.
2. P.55 (181) The entries in the declaration form are
totally blank.
3. P.55 (165) The declaration form in the outer cover is
totally blank.
4. P.55 (161) The declaration form is totally blank.
5. P.55 (160) The declaration form is totally blank.
6. P.55 (159) The declaration form is totally blank.
7. P.55 (154) and P.55 (156) The larger cover contains
two small envelopes,containing ballot papers of Assembly and
Parliamentary Constituencies, but no declaration form
at all.
8. P.55 (86) Does not even have a let alone the
declaration form.
9. P.55 (92) There is no declaration form and instead
along with the small cover, Form 13-D, containing
instructions for the guidance of electors has been enclosed
in the outer cover.
Faced with the aforesaid situation, Shri Poti, learned
counsel for the appellant candidly submitted that in view of
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the result of the inspection carried out by us in the Court
he was not in a position to support his submissions that the
postal ballot papers had been wrongly rejected by the Re-
turning Officer. Thus this ground of attack also fails.
20.We now come to the third ground advanced by the learned
counsel for the appellant that invalid votes were counted in
favour of the returned candidate respondent No. 1 and that
out of the total rejected votes of 1375, quite a large
number of valid votes in favour of the appellant were
rejected, which materially affected the result of the
election. Learned counsel for the respondent submitted that
the appellant has not set forth the concise statement of
material fact with regard to the allegation of counting
invalid votes in favour of the respondent No. 1 nor has
given any particulars of such invalid votes which are
alleged to have been counted in favour of respondent No. 1
He also submitted that similarly there are no particulars
with regard to the rejection of valid votes in favour of the
appellant nor number of such votes in order to support the
allegation that such rejection of valid votes in favour of
the appellant materially affected the result of the
election. In our opinion there is no substance in these
submissions made by the learned counsel for the appellant.
In fact the appellant has neither pleaded the details and
the number of such invalid votes which were counted in
favour of respondent No. 1 nor has given the particulars of
the number of such valid votes in favour of die, appellant
which were wrongfully rejected during the course of
counting. This apart, the Returning Officer, Supervisors
and other officials were also present in the counting hall
throughout the process of counting and the observers also
visited the counting hall,
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but neither the appellant nor any of his counting agents
pointed out or objected either orally or in writing that
invalid votes were counted in favour of the respondent No. 1
or valid votes in favour of the appellant were rejected.
The evidence of the Returning Officer, PW 16 clearly goes to
show that no such complaint was made by any one during the
course of counting. In these facts and circumstances it is
difficult to accept the allegations made by the appellant
which seem to be only an after thought and without any
evidence or material to support the same.
21. Learned counsel for the appellant, however, submitted
that having regard to the size of counting hall which was
packed and uncongenial atmosphere prevailing therein as
stated earlier it was not possible for the
petitioner/appellant or his agents to watch, over-see and
check the ballot papers so that they could take note of the
particulars of ballot papers which were not correctly placed
in the respective bundles of the candidates in whose favour
the votes were cast or the particulars of those votes which
were rejected as invalid though the same were otherwise
valid and, therefore, it was not possible for the,
petitioner/appellant to make a mention or plead any more
facts and particulars beyond those already stated in paras 4
and 7 of the petition. After giving our anxious consider-
ation to the submissions made above, we are unable to
persuade ourselves to accept the same. In the earlier part
of this judgment, we have already discussed the evidence and
material on record and found ,.,,at there is absolutely no
basis to show that there prevailed any kind of confusion or
irregularity in the counting which could have disabled the
appellant or his agents from watching the process of
counting. As said above no such grievance was ever advanced
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by the appellant or his agents at the time of counting
either orally or in written to the Returning Officer or to
the observers or to any member of the counting staff deputed
for the purpose. The applications for recount were made
only after the counting was over and the result was declared
and that too with vague allegations. This submission has no
merit and the same is accordingly rejected.
22.. Learned counsel for the appellant lastly contended that
the election of respondent No. 1 was liable to be declared
void and cancelled on the ground of corrupt practice under
sub-section 3(A) of Section 123 of the Act as the respondent
No. 1 tried to promote the feelings of enmity and hatred
between different communities of the constituency by
publication and distribution of the pamphlets Annexures VI,
VII, VIII, IX and X which are marked as Ext. P 158, Ext. P
159, Ext. 162, Ext. 161 and Ext. 157. In this connection it
may be pointed out that the High Court has minutely and
critically examined the evidence adduced by the parties
which has been discussed at length in paras 22 to 37 of
judgment and the High Court has recorded the conclusion that
the appellant had failed to establish that these pamphlets
were published or distributed by respondent No. 1 or his
agent or any other person with the consent of the respondent
No. 1 or his election agent. Learned counsel for the
parties took us through the entire evidence on the point and
after analysing the same we find ourselves in agreement with
the view taken by the High Court. It has been the consis-
tent practice of this Court not to interfere, with the
findings on the questions of fact unless there is some grave
or palpable
219
error in the appreciation of evidence on the basis of which
the finding were arrived at by the Tribunal/High Court. In
the present case after scrutinising the evidence adduced by
the parties we find no error or infirmity much less grave or
palpable which may call for any interference with the
finding. We are, therefore, unable to accept the
submissions, made by the learned counsel for the appellant
on this count also.
23. In view of the foregoing discussion and the conclusions
recorded by us, even if we accept the submissions of learned
counsel for the appellant that further 9 votes in favour of
Respondent No. 1 should also have been rejected for double
voting by the said nine voters as pointed out by him,
although there is no sound basis for the same, yet it would
only reduce the margin from 13 to 4 without materially
affecting the result of the election.
24. Thus even after giving all the possible discounts the
election of respondent No. 1 cannot be set aside or
declared void as he still remains a winner’ In view of these
facts and circumstances it would be a futile exercise to go
into the question of recrimination petition made by the
respondent No. 1 making certain allegations against the
petitioner/appellant. We, therefore, decline to examine the
same.
25. For the reasons stated above the appeal fails and is
hereby dismissed with costs. Costs quantified at Rs.5000/-.
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