Orissa High Court
Smt. Nakka Bhikhyamana vs Sri Aurovindo Dhali And Ors. on 30 March, 1993
Equivalent citations: AIR1993ORI223, AIR 1993 ORISSA 223
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. The petitioner has contested in the bye-election to 86-Malkanagiri (S.C.) Assembly Constituency along with respondents 1, 2 and 3. The vacancy having been caused on account of the death of Nakka Kanaya, the bye-election had been held on 8th of June, 1992. The petitioner contested the election on Janata Dal ticket with symbol 'Chakra'; respondent No. 1 contested as the candidate of Bharatiya Janata Party with symbol "Lotus"; respondent No. 2 contested as the candidate of Indian National Congress with symbol "Hand" and respondent No. 3 contested as an Independent candidate with the symbol "Bow and arrow". Respondent No. 1 was declared elected by the Returning Officer having polled a total number of votes of 27,156, whereas the petitioner had polled the second highest having polled 27,109; respondent No. 8 polled 13,588, whereas respondent No. 3 polled 827 votes. In this application filed under Section 101 of the Representation of the People Act, 1951, the petitioner has prayed for inspection and recounting of votes and for declaring the election of the returned candidate (respondent No. 1) to be void and to declare the petitioner to have been duly elected. A concise statement of material facts on which the petitioner relies has been given in the petition as follows :
The Election Commission by a notification appointed 8-6-1992 as the date on which the poll was to be held in 86-Malkanagiri Assembly Constituency and as scheduled, the polling took place on that date. Shri Debendra Nath Gupta, Sub-Collector, was the Returning Officer and the Revenue Officer, Malkanagiri and Tahsildar, Malkanagiri and Block Development Officer. Kudumulugumma Block, had been appointed as the Assistant Returning Officer to assist the Returning Officer in the conduct of the election and counting of votes. Counting of votes took place on 10th of June, 1992, at Tahsil Office Building, Malkanagiri. Counting started at 2.00 p.m. on 10-6-1992 and 16 counting agents had been appointed by the petitioner. Of those 16, 12 counting agents were on 12 different counting tables and Shri Joydeb Parida was present on the Returning Officer's table. There were 151 booths and counting of these booths was done in fifteen rounds. It was alleged in the petition that Joydeb Parida could notice that the Returning Officer was acting with a bias in favour of respondent No. 1. Such biased attitude was being exhibited because of the fact that in 1991, the Advocates of Malkanagiri Bar had demanded transfer of Shri Gupta for his alleged indecent behaviour and high handedness and the respondent No. 1 had led a procession with the counter demand that Shri Gupta should not be transferred and ultimately Shri Gupta was not transferred from Malkanagiri Sub-Division and on that score, was obliged to respondent No. 1. It was further alleged that even the subordinate officers including the counting staff knew about the attitude of the Returning Officer towards respondent No. 1 and this fact weighed with them at the time of sorting out the ballots of different booths in the respective counting tables. On account of such biased attitude of the counting staff towards respondent No. 1, even though the stamping had been made on the symbol of respondent No. 1, but not with the instrument supplied for the purpose and the petitioner's counting agents raised objection to the same, but instead of putting them in the bundle of doubtful ballot papers, the same were counted in favour of respondent No. 1. When the petitioner's counting agents told the counting supervisors to allow them to inspect the ballot papers and note down the number, they were replied that inspection of only doubtful ballot papers was permissible at the table of the Returning Officer. Notwithstanding the same, the counting agents could manage to note down the number of some such ballot papers which were counted in respect of respondent No. 1 even though those should have been kept in the bundle of doubtful ballots and slips containing such numbers were being sent to Shri Joydev Parida who was at the table of the Returning Officer. After the ballot papers of each booth were sorted out at the counting tables into different bundles of votes cast in favour of the different candidates, the same and the bundles of doubtful ballots and rejected ballots were sent to the table of the Returning Officer along with Form-16. At the table of the Returning Officer, Shri Parida, the counting agent of the petitioner requested the Returning Officer to have a test check of the ballots contained in the bundles of different candidates in particular, of respondent No. 1 since he had received slips from counting agents in different tables that a number of votes which were not to be counted in favour of respondent No. 1 had been counted in his favour. But the Returning Officer did not make any test check and consequently, ballots which ought to have been rejected under Rule 56(2) of the Conduct of Election Rules, 1961 (hereinafter referred to as the "Rules") were counted as valid votes in favour of respondent No. 1. The particulars of those ballots were given in Schedule-A to the petition. When the doubtful ballot papers of different booths came before the Returning Officer for his decision, Shri Parida noticed that though in several of them, the stamping has been done on the symbol of the petitioner clearly indicating the intention of the elector, but it stood rejected on the objection of the counting agent of respondent No. 1. Shri Parida had noted down the numbers of those ballot papers which are given in Schedule-B to the petition.
On completion of the counting when the Returning Officer announced the total number of votes polled by each candidate at 6.30 a.m. on 11-6-1992, Shri Parida, the counting agent of the petitioner, filed a petition for recounting of the votes. Another such petition for recounting had also filed by Shri Mohenga Singh, the election agent of the petitioner. But both these petitions were rejected by the Returning Officer. But the Returning Officer had permitted to file a fresh petition giving specific instances with prima facie evidence. A fresh application for recounting, therefore, was filed and Shri Parida produced the slips maintained by the counting agents of the petitioner at different tables as well as the exercise book maintained by Shri Parida and the Returning Officer on being satisfied directed recount of the rejected votes under Sub-rule (3) of Rule 63 of the Rules.
Pursuant to the said order of the Returning Officer for recounting, the rejected ballots of first 40 booths were recounted, it was found out that 36 votes which ought to have been counted in favour of the petitioner had been wrongly rejected. Similarly, 11 votes which ought to have been counted for respondent No. 1 had also been wrongly rejected. It is further alleged that thereafter the Returning Officer did not allow any inspection of the balance 111 booths and hurriedly completed the recounting of the same. At the end of such recounting, the margin of difference between the votes counted in favour of respondent No. 1 and the votes counted in favour of the petitioner worked out to only 47. Respondent No. 1 was thus declared elected on the basis of the result-sheet prepared in Form No. 20 under Sub-rule (7) of Rule 56 of the Rules indicating that respondent No. 1 has polled 27,156; petitioner has polled 27,109; respondent No. 2 has polled 13,558 and respondent No. 2 has polled 227 votes. It is thus alleged that the result of the election of the returned candidate has been materially affected by improper rejection of valid votes of the petitioner and by improper reception of invalid votes in favour of respondent No. 1.
The petitioner further alleged that on account of irregularity committed during the counting and recounting, the margin of difference being only 47, for doing complete justice between the parties, the High Court should order inspection of the used ballots and for recounting of the ballots counted in favour of respondent No. 1 as well as the rejected ballots. It was further averred that the result having been declared on 11th of June, 1992, and the application having been filed on 24-7-1992, the petition is within the period of limitation prescribed under Section 81 of the Representation of the People Act. On these pleadings and for the reliefs as already stated, the application has been filed.
2. Respondents 2 and 3 have been set ex parte by order dated 18-9-1992 as there was no appearance on their behalf notwithstanding valid service of notice personally.
3. Respondent No. 1 filed his written statement denying the allegations made in the application. The allegation of bias of the Returning Officer towards him Was denied and it was also denied that he ever led any procession in support of the stand that Shri Gupta should not be transferred. It was also alleged that the petitioner never rejected to the appointment of Shri Gupta as the Returning Officer and had never made any complaint to the Election Commissioner. The allegation that ballot papers which ought not to have been counted for respondent No. I were counted in his favour was denied and it has been further averred that the counting agents of the petitioner had never raised any objection on the counting table. The assertion of the petitioner that Shri Parida prayed for a test check also has been denied. It has been specifically averred that the particulars of ballot papers given in Schedule-A are imaginary and were manufactured subsequent to the election with a view to using the same in the election case. Those particulars had never been submitted before the Returning Officer either in course of counting or in course of recounting. It has similarly been alleged that the particulars given in Schedule-B arc also imaginary and concocted after the publication of the result only for the purpose of being used in the election case. Respondent No. 1 contended that though in law Returning Officer should have disallowed the prayer for recount, since no complaint whatsoever had been made to him earlier, but yet he allowed recounting of rejected votes. The allegation that the Returning Officer did not allow any inspection of rejected votes of 111 booths was also dented. It has been averred in the written statement that though Shri G. B. Mukherjee had been appointed as an Observer, but no complaint had been made either to the Observer, or to the Returning Officer or to any other competent authority and, therefore, the allegations are mere afterthoughts. The assertion in the election petition that the Returning Officer hurriedly completed the counting is false and has been denied. Respondent No. 1 further stated that no irregularity having been committed in course of counting and recounting, small majority is no ground for directing recount or for inspection of ballot papers. Therefore, the application is liable to be rejected.
4. Apart from filing the written statement as stated above, the respondent No. 1 also filed an application for recrimination under Section 97 of the Representation of the People Act, with the prayer to declare that the election of Smt. Nakka Bhikhyamana (respondent No. 1 in the recrimination application) would have been void if she had been the returned candidate alleging commission of corrupt practices under Sub-section (3)(a) of Section 123 of the Representation of the People Act, inasmuch as official machinery were fully utilised and the Government vehicles were used for the purpose of election propaganda of the said respondent No. 1 and also Government Officer openly canvassed for her. Several Ministers in course of election propaganda made several promises of spending lakhs of rupees and even the Presiding Officer and Polling Officer were selected from amongst the employees of Poteru and Balimala Irrigation Projects which are under the Irrigation Minister Shri Bijoy Mohapatra. But it is not necessary to indicate the details of those allegations since the recrimination application has not been heard and question of hearing of the same would arise after adjudication of the election petition. In fact, on an application being filed by the returned candidate and on the concession of the counsel for both parties on 4-12-1992,1 had ordered that Issues Nos. 1, 2 and 4 will be taken up for trial at the first instance and it is only if the election of the returned candidate is declared to be void, then an inquiry under Section 101 of the Act would be necessary and the recrimination application will be taken up then.
5. On the pleadings of the parties, 4 issues have been struck being :--
ISSUES
1. Has there been any improper rejection of valid votes of the petitioner and improper reception of invalid votes in favour of respondent No. 1 ? If so, has the result of the election so far as the returned candidate is concerned been materially affected ?
2. Has the petitioner been able to make out a case for recounting ?
3. Are the petitioner and her agents guilty of any corrupt practices as alleged in the recrimination petition under Section 123 of the Representation of the People Act ?
4. Can the petitioner be declared elected at all?
As stated earlier, Issues Nos. 1 2 and 4 have been taken up for adjudication. The decision on Issue No. 4 depends upon the finding on Issues Nos. 1 and 2 and, therefore, those two Issues are taken up together.
Issues Nos. 1 & 2 :--
6. On behalf of the petitioner 5 witnesses have been examined and they are cross-examined by respondent No. 1 and documents marked as Exts. 1 to 14, 15 series and 16 to 99 were exhibited. The documents were marked on admission. On behalf of respondent No. 1, six witnesses were examined and were cross-examined and discharged.
7. The entire attempt of the petitioner is to obtain an order of recounting and the entire evidence has been led alleging illegality or irregularity committed by the Returning Officer in relation to improper acceptance of votes and improper rejection of votes culminating in the declaration of the result by which the respondent No. 1 was declared elected by a narrow margin of 47 votes. Before scrutinising the evidence adduced on behalf of both sides, it would be appropriate to notice the taw relating to recounting which has been now almost settled by a catena of decisions of the apex Court. Before noticing some of the decisions, it may be stated that the general rule is that secrecy of the ballot paper is of paramount importance. But notwithstanding the requirement of observance of such secrecy, if the election petition contains adequate statement at material facts on which the petitioner relies and the tribunal is prima facie satisfied that to do complete justice between the parties inspection of ballot papers is necessary, the Tribunal may permit such inspection. But such an order for inspection should not be granted to support vague pleas made in the election petition not supported by material facts, nor even to fish out evidence to support such pleas. In some cases, it has been held by their Lordships of the Supreme Court that if on the basis of the evidence adduced, the Court is prima facie satisfied that the allegations of irregularity or illegality in counting are founded and there has been a mistake, then it is imperative on the part of the Court to allow recounting to decide the dispute and do complete and effectual justice between the parties. Thus, where the Court is satisfied on the evidence placed before it that there have been omission and commission on the part of the Returning Officer in the matter of improper rejection of valid ballots and improper acceptance of invalid ballots and by such conduct the result of the election may materially be affected, then when the difference in the margin of votes is relatively low, a Court would be justified in directing recounting. It has to be borne in mind, however, that merely because a returned candidate has been declared elected with a narrow margin that itself will not be a sufficient ground for the Court to direct inspection and recounting, since by the process, the maintenance of secrecy of the ballot which is sacrosanct would be violated. With these broad principles which have been laid down by different authorities, let me now examine some of the decisions.
8. In the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, their Lordships of the Supreme Court considered the power of the Election Tribunal to direct discovery and inspection of documents. Their Lordships laid down the law on the following terms (para 7) -,--
"An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are 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.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."
While laying down the aforesaid law, their Lordships had also borne in mind that under the Rules framed under the Representation of the People Act, an elaborate machinery has been set up relating to the stage of counting of votes by the Returning Officer and ample opportunity has been provided to the candidate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer. Provision has also been made for the candidate or his agent to demand a recount and, therefore, a person seeking to challenge an election on the ground that there has been improper rejection, refusal or reception of votes at the time of counting must give a concise statement of material facts on which the petitioner relies.
In the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 772, Gajendra-gadkar, C.J. speaking for the Court after analysing Section 92 and Section 83(I)(a) of the Representation of the People Act observed :--
"...In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. No hard and fast rule can be laid down in this matter; for, attempt to lay down such rule would be inexpedient and unreasonable."
(quoted from headnote) In the case of Shashi Bhushan v. Prof. Balraj Madhok, AIR 1972 SC 1251, their Lordships of the apex Court held :--
"It is no doubt true that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one. If these conditions are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot is important but doing justice is undoubtedly more important and it would be more so, if what is in stake is the interests of the society."
(quoted from headnote) In the case of Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav, AIR, 1973 SC 215, their Lordships of the Supreme Court held (para 10):--
"...A recount will not be grantd as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection."
In the case of Beliram Bhalaik v. Joi Behari Lal Khachi, AIR 1975 SC 288, it was held by their Lordships of the Supreme Court that since an order of recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter of course. The Court will be justified in ordering a recount or permitting inspection only where all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and the Court trying the petition is prima facie satisfied that making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
In the case of Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376, dealing with the question of recounting, their Lordships of the Supreme Court held (para 5) :--
"...Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decision of this Court may be indicated thus:
The Court would be justified in ordering a recount of the ballot papers, only where :--
(1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectuall justice between the parties."
In the case of Chanda Singh v. Ch. Shiv Ram Varma, AIR 1975 SC 403, their Lordships of the Supreme Court on examining Rule 63 of the Conduct of Election Rules, which confers power on the Returning Officer to allow recounting, held :--
"....Suspicions of possible mischief in the process or likely errors in counting always linger in the mind of the defeated candidate which he is shocked by an unexpected result. The Returning Officer has to be careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting. Victory by a very few votes may certainly be a ground to fear unwitting error in count given other circumstances tending that way. If the counting of the ballots are interfered with by too frequent and flippant recounts by Courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The best surmise if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise. In short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistake is a fair exercise of power. To tarnish the counting staff with bias is easy for any party who divorces means from ends. When the challenger belongs to the party in power a heavy strain is thrown on the strength of the moral fibre of the election staff whose fearless integrity is a guarantee of purity of the whole process but whose fortunes, before and after elections, may be cast with a political government whose key men may sometimes take disturbingly keen interest in the outcome of elections and election petitions. The Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desparate and defeated candidates although what is more important is the survival of the very democratic institutions on which our way of life depends."
(quoted from headnote) In yet another case of S. Baldev Singh v. Teja Singh Swatantra (Dead), AIR 1975 SC 693, the same learned Judge (Krishna Iyer, J.) reiterated the position and held :--
"The Court frowns upon frivolous and unreasonable refusals of recount by Returning Officers who forget the mandate of Rule 63 that allowance of recount is not the exception and refusal is restricted to cases where the demand itself is 'frivolous' or 'unreasonable' Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand was made, would have been reasonable. If formal defects had been misconstrued as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the sooner it was set right the better, especially when plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, check. Of course, baseless or concocted claims for recount or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for recount. Mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category...."
(quoted from headnote) The learned Judge went on to add :--
"....A judicial recount is not a matter of right and convincing, nor conclusive, specificity is of the essence. Election petition come to Court after a month and a half and ripen for trial months later and then the appeal, statutorily vested, inevitably follows. In this operation litigation, which is necessarily protracted liberal recount or lax re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still available at hand and operational, is one thing, a re-inspection and recount, which is an elaborate undertaking with machanics and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time, toil and expense, is a different thing.
Less election litigation is a sign of the people's adult francise, maturity and adventurist election petitions are an infentile disease to be suppressed."
(quoted from headnote) It may be noticed that in this case as well as in Chanda Singha's case, AIR 1976 SC 403, the apex Court was considering and interpreting Rule 63 of the Conduct of Election Rules which authorised the Returning Officer to allow recount either partially or wholly if an application for the purpose is made after announcement of result, In the case in hand, such an application had been made and the Returning Officer did allow inspection partially.
In the case of Ram Surat Singh v. Harish Chandra Mahato, AIR 1975 SC 701, their Lordships of the Supreme Court held :--
"Inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection can be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such a claim. Furthermore, the Court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection."
(quoted from headnote) In the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117, Fazl Ali, J. laid down six preconditions before a Court can order inspection of ballot papers in an election petition, they being:
"(1) That it is important to maintain the secrecy of the ballot which is secrosanct 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 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 lead 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 paragraph 17 of the judgment, dealing with the question of victory by a narrow margin, the learned Judge observed :--
"....What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with the broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all, in a large democracy such as our's where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate over his rival can some times be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidate. The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds".
(quoted from headnote) In the case of N. Narayanan v. S. Som-malai, AIR 1980 SC 206, their Lordships of the Supreme Court held :--
"The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court.
The Court would be justified in ordering a recount of the ballot papers only where :
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
(quoted from headnote) In the case of Hari Ram v. Hira Singh, AIR 1984 SC 396, their Lordships of the Supreme Court observed (para 4):--
"It is now well settled by a long course of decisions of this Court that inspection of ballot papers and counter foils should be allowed very sparingly and only when it is absolutely essential to determine the issue. This Court has further laid down that in the garb of seeking inspection the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election......"
9, Bearing in mind the aforesaid well settled enunciated principles, let me now examine the pleadings and the evidence to find out whether the petitioner has made out a case for a direction for recount from this Court. In the election petition an allegation of bias has been made against the Returning Officer Shri Debendranath Gupta and the reason for such bias has been pleaded to be the fact that while Advocates of Malkanagiri Bar demanded transfer of the Sub-Divisional Officer in November, 1991, but the said Sub-Divisional Officer Shri Gupta stage-managed a procession led by respondent No. 1 with the demand that Shri Gupta should not be transferred and finally Shri Gupta was not transferred from Malkanagiri. So far as the irregularities in the counting tables are concerned, the only allegation made in paragraph 9 of the election petition is to the effect that in some ballot papers mark was made on the symbol of respondent No. 1, but not with the instrument supplied for the purpose and objections were raised by the counting agents of the petitioner not to count the same in favour of respondent No. 1 and they should be treated as doubtful ballots, but unfortunately such ballot papers were treated as ballots cast in favour of respondent No. 1. It has, however, been indicated in the election petition that the counting agents managed to note down the ballot paper numbers of such ballot papers in slips maintained by them and sent such slips to Shri Joydeb Parida, the counting agent of the petitioner at the table of the Returning Officer. The further allegation of irregularity in paragraph 10 of the election petition which was noticed by the counting agent Shri Parida is with regard to the doubtful ballot papers which were being sorted out in the counting table of the Returning Officer. It has been alleged that though the counting agent Shri Parida requested the Returning Officer to have a test check of the ballots counted in favour of respondent No. i, but no such test check was made and the ballots which ought to have been rejected under Rule 56(2)(b) of the Conduct of Election Rules were counted as valid votes in favour of respondent No. 1. The particulars of those ballot papers numbers of which were noted by the counting agents have been stated in Schedule-A to the election petition. Schedule-A contains a list of different ballot papers in different counting tables and the total number of ballots is 55. To substantiate this allegation, 5 witnesses have been examined by the petitioner including the counting agent Shri Parida. P.W. 2 was the counting agent of the petitioner in table No. 3. His evidence discloses that in course of counting he had noticed that even though the ballot papers had contained a faint mark on the symbol "wheel", yet the same were not being counted for their candidate, namely the petitioner, and were being kept in the bundle of doubtful ballots. There is no such pleading in the election petition. He further stated that in some ballots even though the major portion of the marking was against the symbol meant for Janata Dal candidate (the petitioner), but still that was being kept as doubtful. Even if the substantial portion of stamping was on the symbol "wheel", but whenever there was slight submerging to either 'Bow and arrow" or to the symbol "Hand", it was being kept as doubtful ballot. Even this has also not been averred in the election petition. According to this witness, he had orally objected before the Counting Supervisor, but the Counting Supervisor had told him that all those would be checked by the Returning Officer in the main table and some of those ballot papers he had noted down in a piece of paper in course of counting, two of which slips he could see in the Court and according to him he had sent 10 such slips containing irregularity in respect of about 40 ballot papers. The evidence of this witness is of no assistance to the petitioner since the specific pleading of irregularity in the election petition in paragraph 9 is that though the stamping had been made by an instrument otherwise than provided for stamping and was to be rejected, yet it was counted in favour of the returned candidate (respondent No. 1) and there has been absolutely no pleading so far as the irregularity in the counting table is concerned that either ballot papers containing faint marks on the symbol "wheel" were not being counted for the petitioner or even where the major portion of the mark was against the symbol "wheel" yet it was being kept as doubtful ballot paper. Therefore, the evidence of this witness is contrary to the averments made in the election petition and the said evidence is of no consequence in establishing the allegation of irregularity made in paragraph 9 of the election petition. Thus, in establishing the allegations made in para 9 of the election petition read with Schedule-A, the evidence of P.W. 2 is of no assistance.
The next witness is P.W. 3 who was a counting agent in table No. 5. He also stated in his evidence that in course of counting he had noticed two types of irregularities being committed by the Counting Supervisor. One such type is that the ballot papers which ought to have been kept as doubtful ballots were being allotted to the B. J.P. candidate. Where there was no marking at all or the marking was defective and even the marking had not been given on the symbol meant for B.J.P. candidate, but marking had been given at some other place, yet it was being counted for B.J.P. candidate. The other type of irregularity was that those ballot papers which ought to have been counted for Janata Dal candidate were being kept as doubtful ballots and he further stated that ballot papers which were marked in favour of Janata Dal symbol, but the marking was not very distinct, those were being kept as doubtful ballot papers and he had orally protested before the Counting Supervisor, though he had not given anything in writing. His evidence so far as it relates to ballot papers even though were stamped against Janata Dal symbol, but the marking was not very distinct, were being kept as doubtful ballot papers is beyond the pleadings as stated earlier, since the only pleading in paragraph 9 of the election petition relates to ballot papers which ought to have been rejected were being counted in favour of B.J.P. candidate. Then again, the evidence of this witness so far as it relates to the fact that the stamping though had not been given on the place where the symbol is there but at some other place, it was being allotted to the B.J.P. candidate is also beyond the pleadings, since the only irregularity pleaded in the election petition in paragraph 8 is that the stamping was made by an instrument otherwise than provided for stamping and on that score, though it ought to have been rejected, yet it was being counted for the B.J.P. candidate. Thus, his sending slips to the counting agent indicating the irregularities in respect of ballot papers is of no consequence in establishing the allegations made in para 9 of the election petition, material particulars of which have been given in Schedule-A. The next evidence is of P.W. 4 who was the counting agent of the petitioner in table No. 1. He also stated in his evidence that while counting he could notice that several ballot papers which ought to have been counted for Janata Dal candidate but were being kept as doubtful ballots to be produced before the Returning Officer for his decision and even though he had orally protested to the Counting Supervisor, but yet his protest was of no consequence. This part of his evidence has not been pleaded in the election petition. He further stated that he could notice several ballot papers which ought to have been logically kept as doubtful ballot papers but were being put in favour of B.J.P, candidate, but he does not ascribe the reason as to why the ballot papers should have been logically kept as doubtful ballot papers. In other words, he does not state in his evidence that the ballot papers were found by him to have been stamped by an instrument otherwise than the instrument meant for such marking. Thus his evidence even to the second part also does not conform to the allegations made in paragraph-9 of the election petition. Further, on scrutiny of the papers produced before him, he stated that 10 ballots which ought to have been allotted to Janata Dal candidate had been kept in the bundle of doubtful ballots. This evidence cannot be taken into consideration since this is not there in the pleading. He makes a further improvement to the evidence of other witnesses, discussed earlier, to the effect that the counting agents had been supplied with one exercise book each, which had not been stated by any of the witnesses earlier. Apart from the fact that his evidence is contrary to the pleadings, it does not inspire any confidence. Even if his evidence is accepted for the sake of argument, yet so far as Schedule-A is concerned, his evidence relates to only three ballot papers.
The only other witness produced by the petitioner is P.W. 5 who was the agent of the petitioner in counting table No. 10. He of course has stated in his evidence that the ballots which were to be kept in the bundle of doubtful ballots were being given to the B.J.P. candidate. But he has not indicated as to why or for what irregularity, he states that ballots ought not to have been counted for B.J.P. candidate but were to be kept in the bundle of doubtful ballots. In other words, he does not ascribe any reason for the aforesaid evidence and his evidence, therefore, does not corroborate the grounds stated in para 9 of the election petition in respect of which the material particulars have been given in Schedule-A. The said witness also states that the ballots which were to be counted in favour of Janata Dal candidate but were kept as doubtful ballots and this part of the evidence has not been pleaded in the election petition. This being the position, his further evidence in relation to the slips which he saw in Court to the effect that 4 ballot papers which ought to have been counted in favour of Janata Dal candidate, but were illegally kept as doubtful ballots, cannot be taken into consideration, the same not having been pleaded in the election petition and his other part of the evidence that 2 votes which ought to have been kept as doubtful ballots, but the same were counted for B.J.P. candidate, can be taken into consideration, provided the evidence is otherwise trustworthy and further, the evidence is relatable to the allegation of irregularity made in para 9 of the election petition. This witness is a businessman dealing with kerosene and was appointed as a Dealer after the Janata Dal came into power in 1990. In his cross-examination, he stated that he was not a worker of Janata Dal, but yet on the request of Shri Parida, he agreed to become a counting agent. He also fairly stated that in the slips he had sent to Shri Parida, no reasons were indicated as to why the ballots should be counted for Janata Dal candidate and yet they were being counted for B.J.P. candidate. This being the evidence of this witness, it is difficult to rely on his testimony to establish the irregularities, the material particulars of which have been given in Schedule-A of the election petition.
10. At this stage I think it appropriate to notice one or two decisions dealing with the question as to how the oral testimony of a witness is to be assessed in an election case. In the case of Kanhaiyalal v. Mannalal, AIR 1976 SC 1886, their Lordships of the Supreme Court indicated :--
"Oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source......"
Their Lordships went on to add :--
"An election dispute is not a private feud between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witnesses cannot still the dominant voice of the majority of an electorate."
In Narayanan's case AIR 1980 SC 206, their Lordships of the Supreme Court had indicated in para 18 of the judgment as to what had been stated before the Returning Officer in the application for recount. After referring to the main plank of the arguments of the appellant's counsel with regard to the alleged errors in different counting tables, the Court observed (at pp. 210-211 of AIR) :
"......Indeed, if this was so then we should have accepted such an allegation being made prominently in the application given by the respondent to the Returning Officer. The absence of any such allegation in the application of the respondent before the Returning Officer clearly shows that the allegation was clearly an afterthought and, therefore, no implicit reliance can be placed on the oral evidence by the respondent before the court. It would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case for recounting by the Returning Officer much less by the court......."
I have quoted the aforesaid observations of their Lordships of the Supreme Court in the present case, as here also three applications for recounting had been made before the Returning Officer under Rule 63 of the Conduct of Election Rules they being Exts. 87, 89 and 91. Exts. 87 and 89 were made by Shri Parida, the counting agent and Ext. 91 was made by one Mehenga Singh, the election agent of the petitioner. In Ext. 87, no material particulars had been indicated and in Ext. 89 which was also another application for recounting, no material particulars had been given in conformity with Sub-rule (2) of Rule 63 of the Conduct of Election Rules. Ext. 91 also does not contain any particulars. Exts. 87 and 91 were filed at 9.25 A.M. and according to the evidence of P.W. 1, the Returning Officer rejected the prayer for recounting since no specific instances of irregularity had been indicated in the application. This is also apparent from the order of the Returning Officer (Ext. 97) passed at 10.15 A.M.. While rejecting the prayer for recounting, the Returning Officer gave an opportunity to cite specific instances with prima facie evidence by 11.00 A.M. pursuant to which Ext. 89 was filed. Even in Ext. 89, though no specific irregularities had been indicated, however, the Returning Officer directed recounting of rejected ballots on the ground of low margin of difference between the returned candidate and the Janata Dal candidate. Such a decision of the Returning Officer allowing recount even where there was no due compliance of Sub-rule (2) of Rule 63 of the Conduct of Election Rules itself was illegal. But I am not concerned in the present case with the legality of the said decision. But since these materials as contained in Schedule A of the election petition had not been pointed out not only in Ext. 87, but also in Ext. 89, when the Returning Officer rejected the prayer for recounting and directed filing of a fresh application with particulars, this tends to support the contention of Mr. Misra appearing for respondent No. 1 that those are all afterthoughts manufactured for the purpose of the election petition. If really the statement of the counting agents as deposed to by them in the election case is true that they were intimating by sending slips to the counting agent Shri Parida indicating the number of ballot papers on which irregularities were found by them on the basis of which Schedule-A appears to have been prepared, then in all fairness, all or at least some of them should have found place in Ext. 89 when the Returning Officer rejected the prayer for recounting and gave opportunity to Shri Parida to file a fresh application giving particulars. In this view of the matter, it is difficult to rely upon the oral testimony of these witnesses of giving some numbers in support of the illegalities contained in Schedule-A. In my considered opinion, the petitioner has utterly failed to establish the allegations contained in paragraph-9 of the election petition particulars of which have been appended in Schedule-A to the election petition.
11. Coming now to the particulars given in Schedule-B of the election petition, it relates to the ballot papers which ought to have been counted in favour of the petitioner but were rejected by the Returning Officer, as alleged in the election petition and total number of such ballot papers is 64. So far as this part of the petitioner's case is concerned, the only evidence is of the agent Shri Parida, at the table of the Returning Officer, who was examined as P.W. 1. He stated in his evidence that while examining the doubtful ballot papers, he noticed that ballot papers though ought to have been counted in favour of Janata Dal candidate, but had been put in the bundle of doubtful ballot papers. He, therefore, raised oral objections before the Returning Officer, but the Returning Officer was not paying attention to the same. According to him, ballot papers which had been marked on the symbol "Chakra" and, therefore, should have been counted for Janata Dal candidate, were kept in bundle of doubtful ballots and ballot papers bearing marking with major portion within the box allotted to the symbol "Chakra" but had submerged either to the side of "Bow and arrow" or the symbol "Hand", were also put in the bundle of doubtful ballots and, he was maintaining a note book then and there in respect of those doubtful ballots which he produced in court in course of his evidence. He further stated that while drafting the election petition, he assisted the counsel and necessary reference has been made in Schedule-B to those doubtful ballots on the basis of his notings in the note-book. As has been discussed earlier, so far as the particulars contained in Schedule-B are concerned, though some of the witnesses on behalf of the petitioner have stated so in their evidence, but the said evidence being beyond the pleadings, cannot be taken into consideration. So far as the counting agent (P.W. 1) is concerned, his evidence is also of doubtful character. If really he had noted down the numbers in the exercise book which was produced in court in course of the election petition, as stated by him, then it is impossible to imagine as to why no such particulars were given by him in his application under Ext. 87 or in his application under Ext. 89, when ah opportunity was afforded to him to give some particular instances of irregularity. Absence of such particulars in Ext. 89 even after being called upon to do so by the Returning Officer makes the story of noting down the numbers in the exercise book doubtful and there is ample force in the submission of the counsel for respondent No. 1 that the said exercise book is an afterthought specifically manufactured for the purpose of the election case. Even in the evidence, no explanation has been offered by P.W. 1 as to why he did not give any of those particulars in his application under Ext. 89. On the uncorroborated and shaky evidence of P.W. 1, it is difficult for me to hold that the petitioner has been able to establish the alleged irregularities in relation to the detailed particulars given in Schedule-B.
12. At this stage, it would be appropriate to notice that while on behalf of the petitioner evidence has been ed making vague allegations of irregularities, on behalf of respondent No. 1 evidence has been led to indicate that there has been no irregularity and, in fact, in course of counting none of the counting agents had made any objection in the counting table. That apart, admittedly, no written objection had been filed by any of the counting agents before the Counting Supervisor, nor by Shri Parida, the counting agent in counting table No. 1, excepting Ext. 90 which relates to only ballot paper No. 007037 which had been filed at 4.20 P.M. on 10-6-1992. It is also to be noticed that though an observer had been appointed who had gone round the counting hall in course of counting, but none of the counting agents, nor Shri Parida (P.W. 1) had raised any objection before him alleging the alleged irregularity or illegality as has been deposed to in Court. In that view of the matter, I have no hasitation to come to the conclusion that the petitioner has utterly failed to establish the alleged irregularity/ illegality in respect of which material particulars have been given in Schedules-A and B of the election petition...
13. It would at this stage be appropriate to notice the allegation of bias made in the election petition towards the Returning Officer. There has been a vague allegation in the election petition to the effect that the Returning Officer Shri Debendranath Gupta was acting with a bias in favour of respondent No. I, as said respondent No. 1 had helped him in not getting transferred from the place by taking a counter procession when the Advocates of Malkenagiri Bar had demanded transfer of Shri Gupta. Though this allegation has been made in paragraph-6 of the election petition and in support of that evidence of P.Ws. 1 and 2 has been adduced, but it is difficult for me to hold that the allegation of bias has at all been established. The allegation of bias is more often made than proved and the very seriousness of such allegation demands proof of a high order of credibility. It would be appropriate at this stage to notice the observations of Krishna Iyer, J. In Chanda Singh's case AIR 1975 SC 403 (at p. 409) :--
".......To tarnish the counting staff with bias, as has been done in the petition, is easy for any party who divorces means from ends.
When the challenger belongs to the party in power, we need hardly say that a heavy strain is thrown on the strength of the moral fibre of the election staff whose fearless integrity is a guarantee of purity of the whole process but whose fortunes, before and after elections, may be cast with a political government whose key men may sometimes take disturbingly keen interest in the outcome of elections and election petitions. The Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desperate and defeated candidates although, as Hegde J. has pointed out 'what is more important is the survival of the very democratic institutions on which our way of life depends'........"
If the allegation and evidence in support of the same relating to bias in the present case are examined, I have no hesitation to conclude that the same has not at all been proved. The allegation emanates from a demand of transfer of the Returning Officer by Mal-kanagiri Bar in 1990 and the counter procession at the instance of respondent No. 1 demanding no transfer should be made. It is to be noticed that the petitioner belongs to the party in power and, therefore, a demand by the petitioner or his sympathisers could not possibly have been resisted even if respondent No. I had taken a counter procession. That apart, there is absolutely not an iota of creditworthy evidence to establish that respondent No. I did take a procession objecting to the demand of transfer of Shri Gupta as the Sub-Divisional Officer. Then again, if the Returning Officer would really have any bias towards respondent No. 1 as an obligation for what respondent No. 1 alleged to have done in demanding that the concerned officer should not be transferred, then even in the absence of any particulars in the application for recount under Ext. 89, he would not have directed for a recount of rejected ballots. The very order of the Returning Officer itself militates against the theory that he was acting with bias towards respondent No. 1. The allegation of bias, therefore, has not at all been established.
14. In course of arguments, Mr. Patnaik appearing for the petitioner submitted that the margin of difference between the returned candidate and the petitioner having been reduced after recounting ordered by the Returning Officer, and in view of the allegation that in course of recounting after first 50 booths, there was no proper recounting, this Court should direct a recounting in the interests of justice. It has been the settled law that a recounting cannot be ordered merely because the margin of difference is low. It is no doubt true that after recounting was ordered by the Returning Officer and the rejected ballots were recounted of which 40 ballots were found to be valid out of which 26 went in favour of Janata Dal candidate (the petitioner), 11 went in favour of B.J.P. candidate (respondent No. 1) and 3 went to Congress candidate, thereby the margin of difference came down to 47, but that by itself cannot be a ground for directing another recounting by this Court which would tantamount to a roving enquiry unless this Court is further satisfied that there has, in fact, been certain omission or commission on the part of the Returning Officer in the process of counting which has materially affected the result of the election. But as I have already come to the conclusion that the petitioner has utterly failed to establish the allegations of illegality and irregularity in respect of which he has furnished the material particulars in Schedules A and B of the election petition, merely on the ground that the margin of difference has come down, I am unable to direct a recounting of the votes again. It has been held in several cases, already noticed by me earlier in this judgment, that ballot papers are secret documents and they are not to be made public and inspected unless a positive case is made out for the purpose of recount. Heavy burden lies on the petitioner to make out such a case. The evidence adduced in this case has already been discussed by me and I have no hesitation to come to the conclusion that the petitioner has not discharged the burden that lay on him to make out a case that cause of justice warrants a recount. In this view of the matter, Issues Nos. 1 and 2 must be answered against the petitioner and it must be held that the petitioner has failed to establish a case of improper rejection of valid votes of the petitioner or improper reception of invalid votes in favour of respondent No. 1, which has materially affected the result. Thus, the petitioner has not been able to make out a case for a direction for recounting.
Issue No. 4 :--
15. In view of the findings on Issues Nos. 1 and 2, Issue No. 4 must be answered against the petitioner and it must be held that the election petition is liable to be dismissed.
Issue No. 3: --
16. So far as Issue No. 3 is concerned, which had been struck because of the recrimination application, it is not necessary to be gone into that question in view of the conclusions on Issues Nos. 1, 2 and 4.
17. In the net result, therefore, the election petition is dismissed. The petitioner is directed to pay costs of Rs.2,000/- to respondent No. 1.