Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. In Satyanarain Dudhani Vs. Uday Kumar Singh and Ors. 8, observing that re-count of votes should not be ordered as a matter of course, it was held as under: "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-'flo 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 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."
13. Yet again in Vadivelu's case (supra), a case pertaining to an election for the post of the President of a village Panchayat in Tamil Nadu, the result was challenged on the ground of various irregularities in voting and counting. The difference of votes secured by the winning candidate and his -1 nearest rival was only one vote. The election petition by the losing candidate was allowed by the Election Tribunal and a re-count was ordered. As a result, the election petitioner got 8. (1993) Supp (2) sec 82 l 1002 votes and the elected candidate got only 975 votes. ,I Revision petition filed against the order of the Tribunal was allowed by the High Court and it was held that a re-count ought not to have been ordered, because the election petition did not >-r contain material facts and did not make out a prima facie B case for re-counting. The election petition was, thus, dismissed. Affirming the decision of the High Court, a three-Judge Bench, speaking through K.G. Balakrishnan, J. (as His Lordship then was), exposited thus: t " … Re-count of votes could be ordered very rarely c and on specific a/legation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can 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 or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties." (Emphasis added)
14. In the backdrop of the afore-stated principles, enunciated whii( J~aling with election petitions under the Representation of the People Act, 1951 and Conduct of Election Rules, 1961, as also under some of the State Election Laws, the moot question arising for consideration is as to what is the ~cope of enquiry under clause (b) of sub-section (4) of Section 176 and whether the language of the said provision carves out" an exception to the afore-mentioned general H principles to be borne in mind while dealing with an election t UDEY CHAND v. SURAT SINGH AND ANR. [D.K. JAIN, J.] petition seeking inspection of ballots and re-counting?
15. To appreciate the rival submissions in this behalf, it would be necessary to refer to Section 176 of the Act. Insofar as it is relevant for this appeal, it reads as follows: "176. (1) Determination of validity of election enquiry by judge and procedure.-lf the validity of any election of a member of a Gram Panchayat, Panchayat Samiti or Zila Parishad or Sarpanch of Gram Panchayat, Chairman or Vice-Chairman, President or Vice-President of Panchayat Samiti or Zila Parishad respectively is brought in question by any person contesting the election or by any person qualified to vote at the election to which such question relates, such person may at any time, within thirty days after the date of the declaration of results of the election, present an election petition to the Civil Court having ordinary jurisdiction in the area within which the election has been or should have been held, for the determination of such question. (2) xxx xxx xxx (3) xxx xxx xxx (4) (a) If on the holding of such enquiry the Civil Court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5), F _ he shall set aside the election and declare the candidate disqualified for the purpose· of election and fresh election may be held. (aa) If on holding such enquiry the Civil Court finds that (i) on the date of his election a returned candidate was not qualified to be elected; (ii) any nomination has been improperly rejected; or (iii) the result of the election, in so far as it concerns a returned candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interest of the – returned candidate by an agent other than his -election agent_or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with or Violation of the provisions of the Constitution of India or of this Act, or any rules or orders made c under this Act, election of such retuned candidate shall be set aside and fresh election may be held. (b) If, in any case to which clause (a) or clause (aa) does not apply, the validity of an election is in dispute between two or more candidates, the Court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour, to have been duly elected: Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidates to be declared elected, one additional vote shall be added to the total numbi;r ot valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine. (5) A person shall be deemed to have committed a corrupt practice xxxxxxxxx"
16. Sub-section (1) of Section 176 enables a contesting UDEY CHAND v. SURAT SINGH AND ANR. [D.K. JAIN, J.] candidate or any person who is qualified to vote at the election to question before a civil court of competent jurisdiction the validity of any election of a member of Gram Panchayat, Panchayat Samiti or Zila Parishad etc. The petition so filed is to be adjudicated upon in accordance with the provisions of sub-section (4) of Section 176, depending upon the averments made and the nature of the allegations. A perusal of the said provision would show that an election can be challenged only on two grounds viz., (i) that the returned candidate committed a corrupt practice within the meaning of sub-section (5), and (ii) that some irregularities were committed during the course c of counting. Sub-section (5) of Section 176 defines what a corrupt practice means and when a person shall be deemed to have committed the same. In the present case, although a question of corrupt practice, falling within the ambit of sub- section (5) of Section 176 was sought to be raised in the election petition, but the same was not pressed before the· Tribunal. The only issue canvassed before the Tribunal was regarding irregularity in counting and declaration of result by the Returning Officer and, therefore, as such, it is unnecessary to delve on the scope of clause (a) of sub-section (4) of the said section. However, in order to appreciate the nature and scope of enquiry by the Election Tribunal in an election petition, questioning the validity of election on a ground other than corrupt practice, reference to both the clauses {a) and (b) of sub-section (4) of Section 176 would be necessary. It is manifest from the language of clause (a) that while trying a petition containing an allegation of corrupt practice in terms of clause (a) of sub-section (4), the Court is required to hold an enquiry to return a finding whether a candidate had indulged in corrupt practice as defined in sub-section (5) of Section 176 of the Act. Significantly, unlike in clause (a), in clause (b) of sub- section (4) of Section 176, the expression "on the holding of such enquiry" is missing and instead the expression used therein is "after scrutiny and computation of votes". Thus, the question is whether in view of the absci ice of expression, "on the holding of such enquiry" in clause (b) an enquiry into t~e \ H A allegation of irregularity or illegality in the counting of ballot papers, be it· on account of acceptance or rejection of ballots or counting simplicitor is required to be conducted by the Tribunal or a bare allegation of some irregularity or illegality in the counting of ballots is sufficient to order a re-count?
17. It is no doubt true that the legislature in its wisdom has not incorporated in clause (b) the expression "on the holding of such inquiry", as it appears in clause (a), but bearing in mind t- the importance and the sanctity of the secrecy of a ballot, in c our considered opinion, it cannot be the intention of the legislature that .a bald allegation of irregularity in the counting process would ipso facto warrant a re-count_ Such an interpretation of the provision, in our view, would'not only tantamount to automatic conversion of a petition under Section ~ 176(1) of the Act into an order for recounting, it would be destructive of the settled principle of secrecy of poll, as alsc:> violative of letter and spirit of Section 183 of the Act, which mandates every officer, agent etc.; who performs duty in connection with the recording or counting of votes, to maintain the secrecy of votes. In our judgment, the sole object of the E Legislature in giving wide powers to the Election Tribunal is to decide the objections under clause (b) of sub-section (4) of Section 176 of the Act expeditiously without holding a full- fledged regular enquiry, as postulated in clause (a) of the said provision, so that the actual mandate of the electorate is given F effect to without any delay; the successful candidate is able to utilise his complete tenure for the purpose he has been elected and above all the purity of election process is safeguarded. Nonetheless, the secrecy of the ballot being sacrosanct, it cannot be permitted to be tinkered with lightly and an order of G re-count cannot be granted just for the asking. We have no hesitation in holding that a petition for re-count as contemplated under clause (b) of Section 176(4) of the Act must contain adequate statement of material facts on which the election petitioner relies in support of his allegation(s) and it must also H be ·supported by some contemporaneous' evidence to show UDEY CHAND v. SURAT SINGH AND ANR. [D.K. JAIN, J.] irregularity or illegality in the counting. On this basic material, which affords the basis for the allegations in the petition and the response of the opposite party thereon, the Tribunal is required to record its prima facie satisfaction that in order to decide the issue raised in the petition and in order to do complete justice between the parties the "scrutiny and computation of the votes" recorded in favour of each candidate is necessary. The need to record reasons in support of the satisfaction can hardly be over-emphasised because reasons are the soul of the orders/judgment. Therefore, we hold that though in an election petition seeking an order under Section c 176(4 )(b) of the Act, it may not be necessary for the Court to hold a regular enquiry as postulated under clause (a) of Section 176(4) of the Act but the Court is obliged to apply its mind to the material facts, disclosed in the petition, on which the allegations of irregularity or illegality are founded, along with some contemporaneous evidence, which would depend on the facts and circumstances of each case. An order for re-count on the basis of bare allegations in the election petition would not be a proper exercise of jurisdiction under the provision.
18. Having viewed the matter in the light of the principles enunciated above, we are constrained to note that the Tribunal as also the High Court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. We find that the allegations in the election petition were not only vague, even the basic material facts as could have made the Tribunal reach a prima facie satisfaction that re-count of ballots was necessary were missing in the petition. Affidavit in support of the allegations, summarised in paragraph 3, was _., neither filed nor called for, more so, in a case where serious allegations of misconduct were levelled against the Returning Officer. Having regard to the fact that concededly the result sheet had been signed by the election petitioner, perhaps, it was a fit case where the examination of the Returning Officer was necessary to elicit the correctness of the allegations in the petition. It is manifest from the observations of the Tribunal, A extracted in para 5 above, that the sole factor which had It– weighed with it to order re-count was the margin of only 4 votes between the appellant and the election petitioner. In our opinion, a narrow margin of 4 votes does not per se give rise to a presumption that there had been an irregularity or illegality in B the counting of votes. Apart from laying the foundation in the pleadings, the onus to prove the allegation of irregularity or illegality on the part of the Returning Officer was on the election petitioner, which he failed to discharge. The allegation against the Returning Officer of obtaining the signatures of the election c petitioner on a blank result sheet and filling up the same after the election petitioner had left the polling station, was a serious allegation involving dereliction of duty. It could not be accepted at its face value and had to be proved with cogent material, which was not done. We are convinced that in order to D overcome his lapse in not availing of the statutory remedy for re-counting of votes as provided in Rule 69 as also the factum of his signing the result sheet in Form 19, the plea of incorrect recording of the result after his departure from the polling station was raised by the election petitioner. Clearly, it was an afterthought. In this regard, the following observations by a three- Judge Bench of this Court in Chandrika Prasad Yadav's case (supra) are quite apposite: (SCC page 339): "Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanati<;m is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for re-counting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for re-counting has been made out." ·1 i. UDEY CHAND v. SURAT SINGH AND ANR. [D.K. JAIN, J.]
19. In the light of the afore-stated factual scenario, we are of the opinion that in the present case there was no material on record on the basis wl:lereof the Tribunal could have arrived at a positive finding as to how a prima facie case had been made out to order a re-count of the ballot papers. The order of re-count was passed by the Tribunal mechanically without any application of mind and, therefore, the High Court erred in upholding it.
20. Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taken place in terms of the Tribunal's order, this appeal is rendered infructuous. The argument is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes. A similar view was echoed by a three-Judge Bench of this Court in V. S. Achuthanandan's case (supra). Speaking for the Bench, R.C. Lahoti, J. (as His Lordship then was) held thus: " … if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a re- count is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count."
21. A similar contention was rejected by another three- Judge Bench of this Court in M. Chinnasamy Vs. K.C. Palanisamy & Ors. 9 , wherein it was held that even if on re- count it was found that the returned candidate had not secured majority of votes, the result could not have been disturbed 9. (2004) 6 sec 341 A unless prima facie case of high degree of probability existed for re-count of votes, which is not the case here. Accordingly, we reject the contention.
22. In view of the afore-going discussion, the appeal is allowed; the election petition, lacking matefial facts, is rejected and consequently, the order passed by the Election Tribunal directing re-count of the votes is set aside. The appellant shall be entitled to costs in this appeal. 8.8.B. Appeal allowed.