Full Judgment Text
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CASE NO.:
Appeal (civil) 33 of 2003
PETITIONER:
M. Chinnasamy
RESPONDENT:
K.C. Palanisamy & Ors.
DATE OF JUDGMENT: 21/11/2003
BENCH:
CJI, S.B. Sinha & Dr. AR. Lakshmanan.
JUDGMENT:
J U D G M E N T
S.B. SINHA for himself and CJI :
To what extent an election tribunal should exercise
its jurisdiction to direct inspection of the ballot papers
and recounting of votes polled while determining an election
petition in terms of the provisions of the Representation of
the People Act, 1951 (hereinafter referred to as ’the Act’,
for the sake of brevity) is in question in this appeal which
arises out of a judgment and order dated 07.11.2002 passed
by the High Court of Judicature at Madras in Election
Petition No.7 of 2000.
BACKGROUND FACTS :
An election took place for Karur Parliamentary
Constituency (26) consisting of six assembly segments on
05.09.1999. Eleven candidates contested the said election.
Total number of votes polled was 719705 and the appellant
herein who is the returned candidate having the election
symbol of ’two leaves’ secured 334407 votes whereas
Respondent No.1 herein (the election petitioner) who
contested the said election on the election symbol of
’rising sun’ secured 331560 votes. The margin of votes
between the returned candidate and the election petitioner
was, thus, 2847.
It is also not in dispute that 16906 votes were
rejected. The chief election agent of the election
petitioner on or about 06.10.1999 lodged a complaint
alleging irregularities in counting of votes. The said
counting of votes took place on 6.10.1999 and the result
thereof was declared at 5.10 A.M. on 7.10.1999.
The relevant portion of the said complaint reads thus :
"Today (6.10.1999) during counting
of the votes in all the Six Segments of
Karur parliamentary constituency about
15,000 votes polled in Rising Sun Symbol
of the Candidate K.C. Palanisamy has
been rejected in violation of the Act
and Rules without reason by the
Assistant Returning Officers. The oral
and written objections raised by the
Agents were not accepted. So our
candidate winning prospect was
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prevented.
In Election each and every vote is
important and even one vote difference
decides the result. Therefore, I kindly
request you to recount the rejected
invalid votes and thereafter election
result may be declared."
It is also not dispute that upon holding an inquiry in
relation to the aforementioned complaint (Ex.P9), the
returning officer who examined himself as CW1 rejected the
same holding :
"...The Assistant Returning Officer who
were incharge of the Counting of Ballot
Papers in all the 6 Assembly Segments
comprised in 26 Karur Parliamentary
Constituency were enquired about the
issue raised by the Objection
Petitioner. All of them have reported
that they have decided the rejected
Ballot Papers only in the presence of
the Counting Agents deputed by the
contesting Candidates for this purpose,
and the decisions were taken only in the
presence of such counting Agents and
with their concurrence. No one raised
any objection to the decision taken by
Assistant Returning Officers in the
matter of rejection of Ballot Papers.
In fact, all of them had appreciated the
fairness in the rejection of Ballot
Papers by the Assistant Returning
Officers. The Assistant Returning
officers have stated that no Objection
Petition was presented to them at the
time of Counting over the Rejection of
Ballot Papers. Even the Poll Observers
deputed by the Election Commission had
been campaigning in the Counting Centres
and no Objections were made to them over
this issue. The Objections were
analysed to find out whether they are
substantiated. It is brought to my
notice by the Assistant Returning
Officers that most of the Ballot Papers
were rejected on the ground "No Marking"
and "Multiple Voting". The analysis of
the votes polled and Votes rejected
during the present Poll and the previous
polls reveals that the total rejected
votes during the previous poll was
25,292 as against the total valid votes
of 6,49880 whereas the Ballot Papers
rejected in the present election is only
16,906 as against the total valid Votes
of 7,19,705.
I find no reason to Order
Recounting of rejected Ballot Papers as
requested by the Petitioner and
accordingly his request is rejected."
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The election petitioner thereafter filed the election
petition before the High Court which was marked as Election
Petition No.7 of 2000. Besides raising a question of corrupt
practice, allegations were also made as regards
irregularities in counting of votes, which were divided in
five different heads, namely :
Category 1 : Rejection of valid votes cast in favour of the
petitioner by considering inadvertent thumb impression.
Category 2 : Rejection of valid votes on the basis of
Polling Officer’s rubber stamp impression found on ballot
paper apart from voter’s instrument mark.
Category 3 : Rejection of valid votes cast on border.
Category 4 : Rejection of valid votes on ground that wrong
instrument used by voter
Category 5 : Rejection of postal votes cast in favour of the
petitioner.
Evidences were led to the effect that the number
of votes which are alleged to have been illegally rejected
in Category-1 : 750 votes; in Category-2 : 250 votes; in
Category-3 : 1500 votes; in Category-4 : 5000 votes and in
Category-5 : 300 votes.
The allegations made in the election petition were
denied and disputed by the elected candidate. He further
raised a plea that the allegations made in the said election
petition as regard illegal rejection of votes suffered from
vagueness. It was pointed out that no particulars had been
disclosed in the election petition as to at which centre and
at what time the alleged irregularities took place. The
details of the tables at which the objections were raised
had also not been disclosed. Even the names of the counting
agents had not been mentioned in the election petition.
Such objections had been raised having regard to the
fact that the Parliamentary Constituency consisted of six
assembly segments and the counting was done at four
different centres. It had further been contended that the
election petition also does not disclose as to how and in
what manner the provisions of sub-rules (3) and (4) of Rule
56 of the Conduct of Election Rules, 1961 had been breached.
ISSUES :
On the pleadings of the parties, the High Court
framed, inter alia, the following issues :
(1) Whether the petitioner has proved acts of
serious irregularities in the manner of
conduct of election and or in the counting of
votes vitiating the entire election process
as well as results?
(2) Whether the first respondent and/or his
agents are guilty of corrupt electoral
practices or electoral malpractice
contemplated under Section 123 of the
Representation of the People Act, 1951?
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(4) Whether the petitioner is entitled to an
order of scrutiny and recounting of the
ballot papers in respect of No.26, Karur
Parliamentary Constituency as sought in
prayer No.(i) of the Election Petition?
HIGH COURT JUDGMENT :
Issue No.2 was decided against the election petitioner.
The allegation as regard irregularity of counting of votes
in relation to Category-4 aforementioned, had also not found
favour with the High Court. The High Court, however, having
regard to the evidences adduced on behalf of the election
petitioner being PWs 1 to 7 held :
"...Having regard to the entire
evidence, I am of the view that the
petitioner had made out a prima facie
case for re-count of the votes. The
evidence of P.Ws.1 to 7 clearly
established the counting irregularities
relating to category 1, namely,
rejection of valid votes cast in favour
of P.W.1 by considering inadvertent
thumb impression, Category II, rejection
of valid votes on the basis of polling
officer’s rubber stamp impression found
on the ballot papers apart from voter’s
instrument mark, category III -
rejection of valid votes cast on the
border and category V relating to
rejection of postal votes which went in
favour of the petitioner. Apart from
that, as adverted to, the Returning
Officer had failed to carry out the
mandatory requirements provided under
the Guidelines issued by the Election
Commission. The objections given under
Ex.P.9 have not been properly considered
and the alteration made in the date in
Ex.P.10 coupled with the evidence of
P.W.1 and also the delay in declaring
the result of about 7 hours, would only
lead to the irresistible conclusion that
recount of the entire votes is a must to
decide the intention of the electoral.
Simply because under Ex.p/9 only a
request was made for recount of the
rejected votes, it cannot be made use of
presently and prevent the recount of
entire voters. In the case cited above,
it is made clear that it is not
necessary that there should be a request
for recount and if the Returning Officer
comes to know about the irregularities,
it is his duty to order recount of the
votes. Moreover, neither P.W.1 nor his
Chief Election Agent is qualified in law
to expect that they would be able to
give a petition for recount in
accordance with law pointing out all
irregularities one by one. When there
is substantial compliance in the request
under Ex. P/9 coupled with the
irregularities highlighted and
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established by adducing positive
evidence on the side of the 1st
respondent, it is just and necessary
that the entire ballot papers have to be
inspected and recounted to pass further
and appropriate orders in the case.
Hence, these issues are answered
accordingly."
SUBMISSIONS :
Mr. M.N. Rao, learned Senior Counsel appearing on
behalf of the appellant, inter alia, would submit that
allegations made in the election petition being general and
vague in nature, the purported evidences on the basis
whereof the impugned judgment has been passed were wholly
inadmissible. The learned counsel would submit that a
manifest error has been committed by the High Court in
accepting the evidences of PWs 2 to 7 when neither
particulars in relation to the alleged irregularities nor
the names of the counting agents who examined themselves as
PWs 2 to 7 had been mentioned in the election petition. In
any event, the evidences adduced by PWs 1 to 7 could not
have been accepted by the High Court as they failed and/or
neglected to produce the notebooks in which they had
allegedly been making notes which admittedly had been
supplied to them as regard details of alleged irregularities
in counting of votes. The learned counsel would contend
that even no detailed particulars had been mentioned in the
complaint filed by the chief election agent of the election
petitioner marked as Ex.P/9. Mr. Rao would submit that
while making an inquiry on the objections filed by the chief
election agent of the election petitioner, it was not
necessary for the returning officer to record oral evidence
and in that view of the matter the High Court committed an
error in arriving at a finding that the objections under
Ex.P/9 had not been properly considered. Mr. Rao would
argue that in an election petition, the Tribunal cannot
direct a roving or fishing inquiry and more so when only
general and bald allegations were made. It was pointed out
that whereas the High Court adopted the correct test in not
directing recounting in relation to alleged irregularities
in counting votes falling within Category-4, it failed to
apply the same test in relation to other categories. In any
event, contended the learned counsel, when the prayer in
Ex.P/9 revolved round the 15000 rejected votes, all the
votes could not have directed to be recounted.
Mr. K.K. Mani, learned counsel appearing on behalf of
the respondents, on the other hand, would submit that in an
election petition, it is not necessary to disclose the
particulars of material facts in terms of sub-section (1) of
Section 83 of the Act. The learned counsel would contend
that what is necessary to be stated is the material fact in
a concise form as is required in terms of clause (a) of
sub-section (1) of Section 83 of the Act and no particulars
of such material facts are required to be pleaded as in the
case of corrupt practice. According to the learned counsel,
the chief election agent of the election petitioner having
made serious allegations as regard irregularities in
counting of votes in relation to all the six segments of the
Parliamentary Constituency, the rule of pleadings would not
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require disclosure of the detailed particulars. The learned
counsel would submit that as the High Court has passed the
impugned judgment upon consideration of the evidences
adduced by the parties, the same does not warrant any
interference by this Court.
STATUTORY PROVISIONS :
Chapter II of Part VI of the said Act provides for the
presentation of election petitions to the Election Tribunal.
Section 80 provides that no election shall be called in
question except by an election petition presented in
accordance with the provisions of the said Part. The
material part of Section 83 of the said Act reads as under :
"83.Contents of petition.-(1) An election
petition -
(a) shall contain a concise statement of
the material facts on which the
petitioner relies;
(b) shall set forth full particulars of
any corrupt practice that the
petitioner alleged including as
full a statement as possible of the
names of the parties alleged to
have committed such corrupt
practice and the date and place of
the commission of each such
practice;"
MATERIAL FACTS :
It is not in dispute that in relation to an election
petition, the provisions of the Code of Civil Procedure
apply. In terms of Order VI Rule 2 of the Code of Civil
Procedure which is in pari materia with clause (a) of sub-
section (1) of Section 83 an election petition must contain
concise statement of material facts. It is true as
contended by Mr. Mani that full particulars are required to
be set forth in terms of clause (b) of sub-section (1) of
Section 83 of the Act which relates to corrupt practice.
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 recounting 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
recounting by way of roving or fishing inquiry; and (4) such
an objection had been taken recourse to.
The necessity of ’maintaining the secrecy of ballet
papers’ should be kept in view before a recounting is
directed to be made. A direction for recounting shall not be
issued only because the margin of votes between the returned
candidate and the election petitioner is narrow.
The requirement of rule of pleadings containing
material facts are salutary in nature.
The parties are bound by the said rule of pleadings and
verification thereof having regard to the fact that an
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election may not be set aside on hyper-technical grounds
although no factual foundation therefor had been laid in the
pleadings as the elected candidate may not have any hand
therein. So far as requirement of pleadings in a case where
a direction of recounting of ballot papers has been prayed
for, the court must proceed cautiously and with
circumspection having regard to the requirement of
maintaining secrecy of ballot papers. It is not disputed
that the counting was done at four centres. It is further
not disputed that the material facts, as regard as to which
category of irregularities as enumerated in the election
petition occurred, at which centre and at what time, had not
been pleaded. It has further not been disclosed the details
as regards tables at which such objections were raised, nor
the names of the counting agents had been disclosed. The
very basis of the election petition centres round the
objections of the Chief Election Agent of the election
petitioner dated 6.10.1999 (Ex.P/9). We have set out the
said objections in extenso hereinbefore. A bare perusal
thereof would clearly show that the allegations contained
therein are absolutely vague and lack material particulars.
Details as regard commission of alleged irregularities
police stationwise, assembly segmentwise, polling
counterwise or tablewise had not been disclosed. The same
by itself goes to show that the Chief Election Agents of the
election petitioner did not raise any objection before the
returning officer and the counting staff as and when such
irregularities purported to have been found out. It may be
relevant to note that even if the said Agent of the election
petitioner had not been examined, inter alia, on the ground
that he after declaration of the election result has changed
the sides.
It is also relevant to notice that no material has been
brought on records to show that the factual findings of the
Returning Officer as contained in his order dated 6.10.1999
are incorrect.
Furthermore, even PWs 2 to 7 in their evidences
accepted that they had been supplied with notebooks wherein
they allegedly noted such irregularities. Such notebooks
had not been produced before the High Court and, thus, an
adverse inference against the election petitioner ought to
have been drawn. It appears from the records that the votes
which had allegedly not been counted even according to PWs 1
to 7 would not cross five hundred marks. Although in Ex.P/9
it has been contended that "the oral and written objections
raised by the agents were not accepted", but no such written
objection was brought on record.
In relation to the allegations contained in Paras 13
and 14 of the election petition regarding bundling of ballot
papers and purported wrong transfer of valid votes polled in
favour of Respondent No.1, the High Court has disbelieved
the evidence of PWs 2 to 7 on the ground that they could not
give the details of the counting centres and other proper
particulars, but accepted their evidence as regard alleged
irregularities covered by Categories 1, 2, 3 and 5 for no
valid or cogent reason.
The High Court while considering the objections raised
in the election petition in relation to Category-4, inter
alia, held such allegations cannot be considered as the same
are based on general and vague allegations without any
particulars, observing :
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"...Even in the complaint given under
Ex.P.9, there is no whisper that wrong
instrument has been used by any voter in
particular booth of Constituency, which
resulted in invalidating the votes..."
Despite the fact that in relation to the allegations
made under Categories-1, 2, 3 and 5, similar general and
vague allegations had been made, the High Court proceeded to
accept the evidences of the said witnesses.
The High Court should not have accepted the evidence of
PWs 2 to 7 when there are no particulars in the election
petition and the names of counting agents had not even been
mentioned in the pleadings.
The High Curt furthermore applied a wrong legal test in
passing the impugned judgment insofar as it proceeded to
hold that the first respondent would not be prejudiced, if a
recounting is ordered. The test required to be applied for
directing a recounting being well-settled, the High Court
must be held to have misdirected itself in law. The
question of prejudice of the election petitioner would not
be a relevant factor keeping in view the constitutional and
statutory scheme involving holding of an election and the
consequences emanating from the direction of recounting
which may lead to identification of voters as the same is
not at all desirable.
In the instant case, it was all the more necessary for
the election petitioner to plead the material facts with
certain precisions having regard to Ex.P/9 in terms whereof
the recounting was prayed having regard to alleged rejection
of 15000 votes. Furthermore although a distinction exists in
terms of clauses (a) and (b) of Section 83(1) of the Act,
but it should be borne in mind that pleading of material
fact would include disclosure of all such information which
if not rebutted would result in allowing the petition. A
distinction between ’particulars’ and ’full particulars’
should also be borne in mind.
Had the election petitioner in his pleadings, as
noticed hereinbefore, disclosed the details of the names of
polling stations, counting centres, the 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 election petitioner has made out
prima facie case for scrutiny of ballot papers and recount,
it may direct for recount 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 counting had materially affected the election and
in that view of the matter, the High Court should not have
directed recounting of all the votes which would amount to
going beyond the said election.
CASE LAWS :
The law operating in the field is no longer res
integra. Inspection of ballot papers can be ordered when in
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the facts and circumstances obtaining in the case, the
Tribunal finds it necessary to so direct in the interest of
justice. Discovery and inspection of documents with which
the civil court is invested with power under the Code of
Civil Procedure when trying a suit may be applied but such
an order would not be granted as a matter of course having
regard to the insistence upon the secrecy of the ballot
papers. Such an inspection may be ordered when two
conditions are fulfilled :
(i) that the petition for setting aside an election
contains an adequate statement of the material
facts on which the petitioner relies in support
of his case; and
(ii) the Tribunal is prima facie satisfied that in
order to decide the dispute and to do complete
justice between the parties inspection of the
ballot papers is necessary..
[See Ram Sevak Yadav vs. Hussain Kamil Kidwai &
Ors. [1964 (6) SCR 238]
Upon considering the provisions of the Act and the
Conduct of Election Rules, 1961, the Court in Ram Sewak
Yadav (supra) held :
"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 re-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
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 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 Dr. Jagjit Singh vs. Giani Kartar Singh and Others
[AIR 1966 SC 773], before a 3-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, this Court held :
"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
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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 should
have first enquired whether the
application made by the appellant
satisfied the requirements of S. 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 No.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."
(See also Bbhabhi vs. Sheo Govind & Ors.
- (1976) 1 SCC 687)
In Km. Shradha Devi vs. Krishna Chandra Pant and Others
[(1982) 3 SCC 389 (II)], this Court observed :
"\005If the re-count is limited to those
ballot-papers in respect of which there
is a specific allegation of error and
the correlation is established, the
approach would work havoc in a
parliamentary constituency where more
often we find 10,000 or more votes being
rejected as invalid. Law does not
require that while giving proof of prima
facie error in counting each head of
error must be tested by only sample
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examination of some of the ballot-papers
which answer the error and then take
into consideration only those ballot-
papers and not others. This is not the
area of enquiry in a petition for relief
of re-count on the ground of miscount.
True it is that ’a re-count is not
granted as of right, but on evidence of
good grounds for believing that there
has been a mistake on the part of
Returning Officer’ (See Halsbury’s Laws
of England, 4th Edn., Vol. 15, para
940). This Court has in terms held that
prima facie proof of error complained of
must be given by the election petitioner
and it must further be shown that the
errors are of such magnitude that the
result of the election so far as it
affects the returned candidate is
materially affected; then re-count is
directed\005"
In D.P. Sharma vs. Commissioner and Returning Officer
and Others [(1984) Supp. SCC 157], this Court laid down the
law in the following terms :
"...It is well established that in
order to obtain re-count of votes a
proper foundation is required to be laid
by the election petitioner indicating
the precise material on the basis of
which it could be urged by him with some
substance that there has been either
improper reception of invalid votes in
favour of the elected candidate or
improper rejection of valid votes in
favour of the defeated candidate or
wrong counting of votes in favour of the
elected candidate which had in reality
been cast in favour of the defeated
candidate..."
In Satyanarain Dudhani vs. Uday Kumar Singh and Others
[(1993) Supp. (2) SCC 82], this Court laid down :
"A cryptic application claiming recount
was made by the petitioner-respondent
before the Returning Officer. No details
of any kind were given in the said
application. Not even a single instance
showing any irregularity or illegality
in the counting was brought to the
notice of the Returning Officer. We are
of the view when there was 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. We have been taken through the
pleadings in the election petition. We
are satisfied that the grounds urged in
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the election petition do not justify for
ordering recount and allowing inspection
of the ballot papers. It is settled
proposition of law that the secrecy of
the ballot papers cannot be permitted to
be tinkered lightly. An order of recount
cannot be granted as a matter of course.
The secrecy of the ballot papers has to
be maintained and only when the High
Court is satisfied on the basis of
material facts pleaded in the petition
and supported by the contemporaneous
evidence that the recount can be
ordered."
In Ram Rati (Smt) vs. Saroj Devi and Others [(1997) 6
SCC 66], it was observed :
"...In the light of the mandatory
language of Rule 76 of the Rules, it is
incumbent upon a candidate or an agent,
if the candidate was not present, to
make an application in writing and give
reasons in support thereof, while
seeking recounting. If it is not done,
then the tribunal or the court is not
empowered to direct recounting even
after adduction of evidence and
consideration of the alleged
irregularities in the counting..."
Yet again in Mahant Ram Prakash Dass vs. Ramesh Chandra
and Others [(1999) 9 SCC 420], this Court held :
"So far as round six, which is the last
and the final round, is concerned, the
charge made by the appellant in para 6
of the petition is in the following
terms :-
"Round No. 6, serial No. 79/9 i.e.
table No. 9, there is a cutting on
the votes secured by the petitioner
as 462. None of these cuttings,
alterations has been authenticated by
the Returning Officer or any other
officer concerned at any stage."
We have seen the original Form 20 and
we do not find any corrections made
therein. It is only in the copies, that
were typed thereafter, that
discrepancies have crept in, which have
been sought to be corrected and copies
thereof are furnished to the appellant.
On the basis of such copies no case
could have been made out by the
appellant. Thus there is no plea at all
so far as round 6 is concerned pointing
out any discrepancy or irregularity in
the matter of counting. Hence we find no
case is made out by the appellant in the
course of the petition. In the absence
of any pleading thereof, we find it
difficult to accept the case put forth
by the appellant that there was any
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irregularity in the 6th round of
counting."
In P.H. Pujar vs. Kanthi Rajashekhar Kidiyappa and
Others [(2002) 3 SCC 742], it was laid down as under :
"...The petitioner seeking re-count
should allege and prove that there was
improper acceptance of votes or improper
rejection of valid votes. If only the
Court is satisfied about the
truthfulness of the said allegations can
it order re-count of votes. Secrecy of
ballot has always been considered
sacrosanct in a democratic process of
election and it cannot be disturbed
lightly by bare allegations of
illegality and irregularity in
counting..."
[See also T.H. Musthaffa vs. M.P. Varghese and Others
[(1999) 8 SCC 692].
In D. Ramachandran Vs. R.V. Janakiraman and Others
[(1999) 3 SCC 267] this Court held:
"We do not consider it necessary to
refer in detail to any part of the
reasoning in the judgment; Instead, we
proceed to consider the arguments
advanced before us on the basis of the
pleadings contained in the election
petition. It is well settled that in all
cases of preliminary objection, the test
is to see whether any of the reliefs
prayed for could be granted to the
appellant if the averments made in the
petition are proved to be true. For the
purpose of considering a preliminary
objection, the averments in the petition
should be assumed to be true and the
court has to find out whether those
averments disclose a cause of action or
a triable issue as such. The Court can
not probe into the facts on the basis of
the controversy raised in the counter."
In Mohan Rawale Vs. Damodar Tatyaba Alias Dadasaheb and
Others [(1994) 2 SCC 392] this Court observed:
"12. Further, the distinction between
"material facts" and "full particulars"
is one of degree. The lines of
distinction are not sharp. "Material
facts" are those which a party relies
upon and which, if he does not prove, he
fails at the time.
13. In Brace v. Odhams Press Ltd.,
(1936) 1 KB 697 : (1936) 1 All ER 287
Scott L.J. said:
"The word ’material’ means
necessary for the purpose of
formulating a complete cause of
action; and if any one ’material’
statement is omitted, the statement
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of claim is bad." The purpose of
"material particulars" is in the
context of the need to give the
opponent sufficient details of the
charge set up against him and to
give him a reasonable opportunity.
14. Halsbury refers to the function of
particulars thus:
"The function of particulars is to
carry into operation the overriding
principle that the litigation
between the parties, and
particularly the trial, should be
conducted fairly, openly and
without surprises, and incidentally
to reduce costs. This function has
been variously stated, namely
either to limit the generality of
the allegations in the pleadings,
or to define the issues which have
to be tried and for which discovery
is required."
(See: Pleadings Vol. 36, para 38)
15. In Bullen and Leake and Jacob’s
"Precedents of Pleadings" 1975 Edn. at
p. 112 it is stated:
"The function of particulars is to
carry into operation the overriding
principle that the litigation
between the parties, and
particularly the trial, should be
conducted fairly, openly and
without surprises and incidentally
to save costs. The object of
particulars is to ’open up’ the
case of the opposite party and to
compel him to reveal as much as
possible what is going to be proved
at the trial, whereas, as Cotton
L.J. has said, ’the old system of
pleading at common law was to
conceal as much as possible what
was going to be proved at the
trial’,"
16. The distinction between ’material
facts’ and ’particulars’ which together
constitute the facts to be proved -- or
the facta probanda -- on the one hand
and the evidence by which those facts
are to be proved --facta probantia -- on
the other must be kept clearly
distinguished. In Philipps v. Philipps,
Brett, (1878) 4 QBD 127, 133 L.J. said:
"I will not say that it is easy to
express in words what are the facts
which must be stated and what
matters need not be stated. ... The
distinction is taken in the very
rule itself, between the facts on
which the party relies and the
evidence to prove those facts. Erle
C.J. expressed it in this way. He
said that there were facts that
might be called the allegata
probanda, the facts which ought to
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be proved, and they were different
from the evidence which was adduced
to prove those facts. And it was
upon the expression of opinion of
Erie C.J. that Rule 4 [now Rule
7(1)] was drawn. The facts which
ought to be stated are the material
facts on which the party pleading
relies."
17. Lord Denman, C.J. in William v.
Wilcox, (1838) 8 Ad & El 331 said:
"It is an elementary rule in
pleading that, when a state of
facts is relied it is enough to
allege it simply, without setting
out the subordinate facts which are
the means of proving it, or the
evidence sustaining the
allegations."
18. An election petition can be rejected
under Order VII Rule 11(a) CPC if it
does not disclose a cause of action.
Pleadings could also be struck out under
Order VI Rule 16, inter alia, if they
are scandalous, frivolous or vexatious.
The latter two expressions meant cases
where the pleadings are obviously
frivolous and vexatious or obviously
unsustainable."
Mr. Mani, however, has placed strong reliance on P.K.K.
Shamsudeen vs. K.A.M. Mappillai Mohindeen and Others [(1989)
1 SCC 526]. A two-Judge Bench of this Court therein took
note of Ram Sewak Yadav (supra) and R.Narayan vs. S.
Semmalai and Others [(1980) 2 SCC 537] wherein it was
observed :
"Thus the settled position of law is
that the justification for an order for
examination of ballot papers and recount
of votes is not to be derived from
hindsight and by the result of the
recount of votes. On the contrary, the
justification for an order of recount of
votes should be provided by the material
placed by an election petitioner on the
threshold before an order for recount of
votes is actually made. The reason for
this salutary rule is that the
preservation of the secrecy of the
ballot is a sacrosant principle which
cannot be lightly or hastily broken
unless there is prima facie genuine need
for it. The right of a defeated
candidate to assail the validity of an
election result and seek recounting of
votes has to be subject to the basic
principle that the secrecy of the ballot
is sacrosanct in a democracy and hence
unless the affected candidate is able to
allege and substantiate in acceptable
measure by means of evidence that a
prima facie case of a high degree of
probability existed for the recount of
votes being ordered by the Election
Tribunal in the interests of justice, a
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Tribunal or court should not order the
recount of votes."
Natarajan, J. having regard to the averments made in
the election petition observed that neither the averments in
the pleadings nor the evidence adduced were of such
compulsive nature as could have made the Tribunal reach a
prima facie satisfaction that there was adequate
justification for the secrecy of ballot papers. The said
decision, therefore, runs counter to the submissions of the
learned counsel.
In Jibontara Ghatowar vs. Sarbananda Sonowal and Others
[(2003) 6 SCC 452], wherein a case was made out that 824
ballot papers were rejected contrary to the provisions
contained in Rule 63 of the Conduct of Elections Rules and
in violation of the law laid down by this Court in Arun
Kumar Bose vs. Mohd. Furkan Ansari [(1984) 1 SCC 91], this
Court held that the High Court was in error in refusing to
direct the recounting of votes. While making the said
observations, the Court relied upon an earlier decision of
this in T.A. Ahammed Kabeer vs. A.A. Azeez and Others
[(2003) 5 SCC 650], wherein one of the members, Lahoti, J.
was also a party noticing :
"27. Though the inspection of ballot
papers is to be allowed sparingly and
the court may refuse the prayer of the
defeated candidate for inspection if, in
the garb of seeking inspection, he was
indulging in a roving enquiry in order
to fish out materials to set aside the
election, or the allegations made in
support of such prayer were vague or too
generalized to deserve any cognizance.
Nevertheless, the power to direct
inspection of ballot papers is there and
ought to be exercised if, based on
precise allegations of material facts,
also substantiated, a case for
permitting inspection is made out as is
necessary to determine the issue arising
for decision in the case and in the
interest of justice."
28. It is true that a recount 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 recount is a
question involving jurisdiction of the
court. Once a recount has been allowed
the court cannot shut its eyes on the
result of recount on the ground that the
result of recount as found is at
variance with the pleadings. Once the
court has permitted recount within the
well-settled parameters of exercising
jurisdiction in this regard, it is the
result of the recount which has to be
given effect to."
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With respect we are not in a position to endorse the
views taken therein in its entirety. Unfortunately, the
decision of a larger Bench of this Court in Jagjit Singh
(supra) 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 recounting has been directed, it would 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 any
evidence can 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.
Furthermore, the High Court has not arrived at a
positive finding as to how a prima facie case has been made
out for issuing a direction for recounting. It is well-
settled that prima facie case must be made out for scrutiny
and recounting of ballot papers where it is of the opinion
that the errors are of such magnitude as to materially
affect the election. [See M.R. Gopalakrishan vs. Thachady
Prabhakaran - 1995 Supp.(2) SCC 101].
EXTENT OF PROOF :
The requirement of laying foundation in the pleadings
must also be considered having regard to the fact that the
onus to prove the allegations was on the election
petitioner. The degree of proof for issuing a direction of
recounting of votes must be of a very high standard and is
required to be discharged. [See Mahender Pratap vs. Krishan
Pal and Others - (2003) 1 SCC 390].
In T.H. Mustaffa (supra), this Court held that when the
pleadings do not contain the material facts and necessary
particulars, any amount of evidence would be insufficient.
Even in the recount it was found that the returned
candidate has not secured majority of the votes, the result
could not have been disturbed, unless prima facie case of
high degree of probability existed for recount of votes.
[See P.K.K. Shamsudeen vs. K.A.M. Mapillai Mohindeen -
(1989) 1 SCC 526 at 530, 531].
For the reasons aforementioned, the impugned judgment
cannot be sustained. It is set aside accordingly. The
appeal is allowed. However, there shall be no order as to
costs.
However, keeping in view the fact that the election
petition is pending for a long time, the High Court may
consider the desirability of disposing of the same as
expeditiously as possible and preferably within a period of
three months from the date of receipt of a copy of this
order. The records of the case, if received, be sent down
forthwith.
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