Punjab-Haryana High Court
Mahant Ram Parkash Dass vs Ramesh Chander And Ors. on 16 January, 1998
Equivalent citations: AIR1998P&H146, AIR 1998 PUNJAB AND HARYANA 146, (1998) 2 RECCIVR 60
ORDER Jawahar Lal Gupta, J.
1. The petitioner questions the election of Mr. Ramesh Chander to the Punjab Legislature from the Dasuya Assembly Constituency. He prays that the election be annulled and that he be declared to have been duly elected,
2. The election was held on February 7, 1997. The counting of the ballot papers was conducted on February 9, 1997 at J. C. DAV College, Dasuya. The result was declared in the early hours of the morning on February 10, 1997. Respondent No. 1 was declared elected by a margin of 53 votes. The petitioner alleges that various irregularities had been committed by the Returning Officer and the counting staff. Consequently, an application for rechecking and recounting the ballot papers had been submitted. This request was not properly considered. Respondent No. 1 was wrongly declared elected. The petitioner prays that the votes be recounted and thereafter, he be declared to have been elected.
3. Notice of the election petition was issued to all the respondents. In spite of service, respondents Nos. 2 to 5 did not put in appearance. Consequently, it was directed that they will be proceeded against ex parte. Respondent No. 1 filed a written statement to contest the claim made by the petitioner.
4. On the pleadings of the parties, the following issues were framed :--
1. Whether the election petition lacks in material facts and does not disclose any cause of action? OPR
2. Whether the election petition is liable to be dismissed as no affidavit was filed in support of the allegations contained in para 13 of the petition? OPR
3. Whether the written statement is to be excluded from consideration as the copy supplied to the petitioner was not a true/exact copy of the written statement filed in the Court/ OPP
4. Whether the petitioner is entitled to have the ballot papers recounted on the grounds mentioned in the election petition? OPP
5. Whether the petitioner is entitled to be declared as having been elected? OPP
6. Relief.
5. Counsel for the parties had prayed that Issues Nos. 1 to 3 be treated as preliminary issues. They did not want to lead any evidence. The counsel had addressed arguments on these issues on May 28, 1997. Issue No. 3 was not pressed on behalf of the petitioner. After hearing arguments, Issues Nos. 1 and 2 were decided against the respondent. These issues were, accordingly, disposed of vide order dated May 28, 1997. Since the findings on Issues Nos. 1 and 2 had gone against the first respondent, he had filed Special Leave Petition (Civil) No. 11736 of 1997. Counsel for the parties stated that this petition was dismissed by their Lordships of the Supreme Court vide order dated July 14, 1997. Resultantly, only Issues Nos. 4 to 6 remain to be considered.
6. The basic question that survives is -- Is a case for recount made out?
7. First, the pleadings.
8. The poll was held on February 7, 1997. The counting was conducted in the hall measuring "about 78 feet into 23 feet" of the J. C. D.A.V. College, Dasuya, from 8 a.m. onwards on February 9, 1997. There were 14 counting tables with another for the Returning Officer. All the ballot papers were put in a huge box and were mixed. Thereafter, packets of 25 ballot papers each were made. In each round, 40 packets of ballot papers of 25 each were entrusted to the staff at the counting tables. This staff consisted of five persons including one Supervisor. There were a total of 82132 ballot papers. In the first five rounds, 1000 ballot papers were given on each table. In the 6th round, 1000 ballot papers each were entrusted to the personnel on 12 tables and only 132 ballot papers were entrusted to the staff on the 13th table.
9. The candidates secured the votes as under:--
(i) Ramesh Chander 31754
(ii) Mahant ram Parkash 31701
(iii)Swaran Kaur 8279
(iv) Shubh Kumar 5034
(v) Jaswinder Singh 587
(vi) Hans Raj 3543
Invalid Votes : 1478
10. Mr. Surinder Mohan Sharma, SDO (Civil)
was the Returning Officer. The petitioner alleges
that he had been got appointed by respondent No. 1 when he was a Minister in the State of Punjab. This was done "with a view to extract all possible help from him at the time of elections." Resultantly, the respondent "dictated the terms to the Returning Officer and he in turn directed his counting staff... . The counting staff helped respondent No. 1.... .The Returning Officer did not hear the objections raised by the petitioner and his counting agents orally as well as in writing". A "lot of material irregularities" had taken place. The petitioner's election agent, Mr. Hardial Singh "made an application to the Returning Officer for rechecking and recounting of the votes." The application was also signed by the election agent of the candidate from the Bahujan Samaj Party and was presented at 6 p.m. It was not even properly considered and was rejected by a cryptic order without even holding a summary enquiry. Copy of the application has been produced as Annexure P-2 and that of the order as Annexure P-3 with the petition. The petitioner alleges that the Returning Officer had assured him that he was "seeking a direction from the Election Commission of India about the order of recount and that on receiving the instructions from the Election Commission of India, he will order the recounting of the votes." However, suddenly, "it was announced that the application has been rejected." The petitioner had given even a fax message to the Election Commission regarding the material irregularities committed during the course of counting. A request for withholding the declaration of result till the rechecking and recounting was done, had also been made.
11. In an attempt to give the details, the petitioner points out that 1278 ballot papers were shown to "have been rejected as invalid". About 250 votes were wrongly rejected. According to him, the votes which had been polled in his favour were in fact valid. The counting agents of the petitioner as well as the election agent had objected to the rejection of the votes but "the Returning Officer and the counting staff was adamant not to treat them as valid votes." The petitioner alleges that "in second, third and fourth rounds, about 150 votes... ..have been put in the bundles of respondent No. 1. The counting staff at table Nos. 4, 5, 7 and 14 mixed these votes." He alleges that packets of ballot papers containing voles in his favour were treated as "if cast in favour of respondent No. 1" and counted in his favour. Similarly, about 150 ballot papers which were invalid were wrongly counted in favour of respondent No. 1.
12. The petitioner maintains that upto round No. 4, respondent No. 1 was leading but after the fifth and sixth rounds, the position had changed. At about 5.30 p.m., "the light went off for about two minutes". It was during this period that the counting staff had managed to change the bundles. The petitioner points out that there are cuttings in Form No. 20 in support of his assertion that the votes polled in his favour were reduced and those in favour of respondent No. 1 were "enhanced". He has also alleged that there were irregularities in the counting etc. of the postal ballot papers. The petitioner points out that "there was fencing wire between the counting agents and the Supervisory staff and the Returning Officer rejected the votes without allowing the petitioner and his agent to note down the serial number of the ballot papers." He maintains that the staff including the Returning Officer "was bent upon declaring respondent No. 1 as elected by wrongful counting of votes in his favour. Improper reception and rejection of the votes has materially affected the result". He maintains that the Returning Officer "did not give any reasonable opportunity" to him, his election agent or his counting agent to exercise their right of demand of recounting of votes. No opportunity was given before rejecting the application for recount. The order passed by the Returning Officer "is no order in the eye of law". The Returning Officer had not applied his mind. He had not even ordered sample checking or sample recounting of votes. He wants "that the verdici of the electorate should be truly reflected in the result. Let someone not stand in the way of true declaration of the verdict given by the electorate."
13. On these premises, the petitioner prays that the Court should direct "the inspection and scrutiny of the ballot papers in accordance with Rule 93 of the Conduct of Election Rules. After scrutiny and inspection of the ballot papers, this Hon'ble Court may be pleased to direct the total recount of the votes." He further prays that the election of respondent No. 1 be annulled and he be declared to have been duly elected from the 5 1 Dasuya Assembly Constituency, District Hoshiarpur "as he has secured majority of valid votes."
14. As already noticed, written statement has been filed by respondent No. 1. Certain preliminary objections were raised. It is not necessary to notice these in view of the fact that the preliminary issues have already been decided and the order has the imprimatur of their Lordships of the Supreme Court. It may also be noticed that according to the respondent, the effort of the petitioner is "to have a roving and fishing enquiry which is not permissible under the Election Law".
15. The respondent points out that he had a lead of 2155 votes at the end of the first round which had further increased by 1405 votes in the second, 461 votes in the third and 196 voles in the fourth round. Thus, at the end of the fourth round, the respondent was leading by 4217 votes. At the end of the fifth round, the lead was reduced by 1817 votes. Thus, he had a clear lead of 2400 votes. The election agent of the petitioner had conceded the defeat and left the hall.
16. The respondent maintains that the counting had ended at 5 P.M. on February 9, 1997. The number of votes polled in favour of each candidate were mentioned on the black-board and the total result of six rounds clearly showed that the respondent had secured the maximum number of valid votes. However, he admits that the result was declared on February 10, 1997. He denies the allegation of any irregularity during the process of counting. He maintains that the counting "was done in a very orderly and peaceful manner....."
The candidates and their election agents "had accepted the validity of the counting at the end of each round and had put their signatures on a statement in token of the correctness of the counting. None of the candidates or election agents or for that matter the counting agents had raised any objection during the counting...... the State and Central Observers also visited the counting hall. But no irregularity much less illegality was pointed out to any of the Observers. The allegations have been concocted for the purpose of Election Petition."
17. The respondent asserts that he "was not a Minister at the time when Shri Surinder Mohan Sharma was posted as SDO, Dasuya." The posting was ordered "during general transfer......." and he had "nothing to do with his posting at Dasuya". The allegations of obtaining or extending any help have been denied. The respondent alleges that the petitioner "being head of two religious Deras in the Constituency in question exercised influence not only on the Returning Officer but also on his subordinates." It is further alleged that the application, a copy of which "has been attached with the election petition was not submitted on 9-2-97 at 6 P.M. It seems to have been created at a later stage in connivance with the Returning Officer. No application was filed in the presence of the answering respondent." In any case, no objection was raised during the counting. Having lost the election, the petitioner had "concocted the story of irregularities and created this application as evidence for the purpose of the election petition". The respondent maintains that "having conceded defeat the election agent of the Election-Petitioner left the counting hall and did not sign statement recorded by the Returning Officer at the end of the sixth round...... However, no case for recount was made out nor any recount was asked for" in his presence. Similarly, about the fax message, it is alleged that it "seems to have been created after the declaration of the result." At any rate, the falsity of the claim made in the fax message is patent in view of the fact that at the end of the first five rounds, the election agent of the election-petitioner and the agent of the BSP candidate had accepted the correctness of the counting and signed the statement accepting that the counting had been peaceful and valid.
18. The respondent admits that a total of 1278 votes had been rejected as invalid. Out of these, 1101 votes were rejected during the counting of first five rounds. The allegation that 250 voles were wrongly rejected has been denied. It has been pointed out that no election agent or the counting agent had raised any objection at any time. The petitioner's allegation that his votes were mixed in the bundle of respondent No. 1 has also been denied. The respondent maintains that "the petitioner was not leading at any stage. As a result of counting in the fifth and sixth round, the lead was reduced, but the election-petitioner never established any lead. In fact, at the end of 5th round they conceded the defeat...... There was no failure of light." He maintains that the vague allegations made by the petitioner do not disclose any cause of action. According to him, the errors pointed out in Form No. 20 may have been committed while preparing a certified copy. Similarly, the allegations regarding postal ballot papers and Forms 16-I and 16-II have been denied. He maintains that no ground for ordering recount is made out. Accordingly, the election petition deserves to be dismissed with "examplary costs".
19. The petitioner has filed a replication.
20. The parties have led oral and documentary evidence. There are 10 witnesses on each side.
21. Mohan Lal, PW-1 appeared to produce the Original Form 20. However, his testimony need not be noticed in detail as no argument was addressed in this behalf. Mr. R.K. Srivastav-PW2 is working as Under-Secretary in the Election Commission of India. He had brought the original file. He produced the fax message addressed to Mr. M. S. Gill as Ex. PW2/1. He had also stated that the Returning Officer had sent a report to the Commission along with the Pro forma for seeking permission for declaration of result. He had also forwarded the order passed by him on the application of Mr. Hardial Singh, the election agent of the BJP candidate and Mr. Ujaggar Singh, the election agent of BSP candidate for recounting of votes. The four documents were taken on record as Exhibits PW 2/2 to PW 2/5. After examination of the report submitted by the Returning Officer, a fax/wireless message was conveyed to him. He produced a copy of this message as Ex. PW2/6. The Returning Officer was permitted to declare the result of the election. During cross-examination, he pointed out that the complaint of the petitioner viz. Ex. PW 2/1 was received on the fax machine at 00.44 hours on February 10, 1997 while Ex. PW 2/2 viz. the report of the Returning Officer was received at 4.33 AM.
22. The petitioner appeared as PW-3. He reiterated the allegations made in the petition. He stated that after the ballot papers had been mixed and bundles of 25 each prepared, he had left the place of counting. He had returned to the counting hall between 7 to 7.30 P.M. He also stated that he had talked to the Returning Officer on telephone. He was informed that initially, he was trailing behind. However, his position had improved. He was also informed that the election agent had submitted an application "which he was considering". When he reached the counting hall, the election agent as well as the counting agents had informed him that certain irregularities "were being committed in the counting of votes". The ballot papers had been wrongly rejected. The lights had gone off for sometime. During that interval, his ballot papers were put in the ballot papers of the Congress candidate. This had been broadly done on counting table Nos. 4, 5, 7 and 14. He gives details regarding the information given to him by the election agent regarding the irregulartities committed during the counting. In particular, he points out that the election agent had told him that "the Returning Officer was intentionally helping the Congress candidate". Since he was not prepared to listen, an application had been submitted in writing by Mr. Hardial Singh along with the election agent of the Bahujan Samaj Party candidate. He identified the signatures of Mr. Hardial Singh on Ex. PW3/1 viz. the application dated February 9, 1997. The Returning Officer had informed him "that the application had been rejected by him. However, to be fair...... he had referred the request for rechecking and recounting to the Election Commission of India. He had withheld the declaration of result". As a result, he had spent the whole night in the counting hall. The result was declared at 5 A.M. on February 10, 1997.
23. The petitioner has further stated that respondent No. 1 was initially a member of the Legislative Assembly. He had become the Deputy Speaker. At the time of the counting of the votes, he was a State Minister. The Returning Officer was under his influence and was following his dictates. Respondent No. 1 was sitting "close to the Returning Officer at the time of counting of votes." The petitioner also points out that he had sent a fax message to the Election Commission of India. The Returning Officer had not informed him about any communication that may have been received from the Election Commission of India. He maintains that irregularities had been committed and that the Returning Officer had not obtained his signatures on any document at the time of the declaration of the result.
24. In cross-examination, he denied the suggestion that he had not gone to the counting hall. He maintained that he had gone in the morning as well as in the evening. He admitted that he had contested elections on three occasions prior to the elections in the year 1997. His election agent, Mr. Hardial Singh had also contested elections twice before the elections in question. He admitted that neither he nor his election agent had submitted any objections regarding the arrangements in the counting hall in writing. The particulars/details regarding irregularities as given in the election petition are based on the information which had been given to him by his counting and election agents. He admitted that the specific allegations made in the petition had not been mentioned in the application. Even the fax message did not contain the specific allegations. He identified the signatures of his election agent, Mr. Hardial Singh on Ex. PW3/R-1. He, however, expressed his inability to identify the signatures on Exhibit PW3/R-2 to Ex. PW 3/R-5. He explains that details regarding irregularities could not be given as the fax message was sent in a hurry. He denied the suggestion that no irregularities had been committed during the counting.
25. PW-4 Subhash Chander Anand was one of the counting agents of the petitioner on table No. 7. He states that the process of counting had commenced at 8 O'clock. The actual process of counting was commenced at 1 P.M. Each round was being completed in about an hour to an hour and a half 1000 ballot papers were being counted on each table in one round. The fourth round had been completed at about 5 P.M. The lights had gone off at about 5.30 P.M. after the fifth round had started. He maintains that "when the lights went off, the petitioner was leading by a sizeable margin.... When the lights were off, the ballot papers in the trays which were the votes in favour of the petitioner were mixed up with those of the first respondent." He had conveyed this to the election agent who had moved an application before the Returning Officer. He also alleges that during the course of the second round of counting, one of the officials had picked up two bundles of votes cast in favour of the petitioner and put them in the votes in favour of the first respondent. He had complained to the counting supervisor and also pointed out this fact to the election agent in detail. Votes were wrongly rejected. He maintains that there was a lot of tension in the counting hall. He had requested the counting supervisor to get the votes re-counted. However, he had not done so. During cross-examination, he admitted that he is a Law Graduate. The complaint Ex. PW 3/1 was written by him. It was signed by the petitioner's election agent. He also admitted that neither he nor the election agent had submitted any complaint in writing regarding the irregularities during round No. 2. He denied the suggestion that the complaint Ex. PW 3/1 had been submitted after the counting had been completed. He maintained that he had been "demanding a recount right after the first round." He admitted that the factum of power failure had not been mentioned in the complaint. He also admitted that the first respondent was leading till the end of the fifth round.
26. Ujaggar Singh, PW 5 was the election agent of Smt. Swaran Kaur who was the Bahujan Samaj Party's candidate in this election. He reiterates the allegations as made by the petitioner and maintains that light had gone off at about 5.30 P.M. The counting agents were shouting that the votes had been wrongly mixed up. He had submitted the written application Ex. PW 3/1, along with Hardial Singh, the petitioner's election agent. He submits that the application was submitted when the fifth round of counting was going on. He also complains that votes which had been cast in favour of the Bahujan Samaj Party candidate were wrongly rejected. In spite of promise, the Returning Officer had not told him about the decision on the complaint. He had declared the result at 5 A.M. In cross-examination, he admits that whatever irregularity "we had seen during the counting was mentioned in the complaint Exhibit PW 3/1." He also admits that Exhibits PW 3/R-1 to PW 3/R-5 bear his signatures as also those of Hardial Singh.
27. The other witnesses viz. PW 6-Onkar Nath, PW 7 - Narinder Kumar and PW 8 -Bhupinder Singh Cheema were the counting agents of the petitioner on table Nos. 14 , 6 and 5 respectively. They have reiterated the allegations as made in the petition. PW-9 Dev Raj Sharma is the Postal Assistant who has deposed with regard to the postal ballot papers etc. PW-10 Rakesh Kumar-Sharma was the petitioner's counting agent on table No. 2. He has also corroborated the allegations as made in the petition.
28. The documentary evidence produced on behalf of the petitioner shall be noticed while dealing with the submissions.
29. The first respondent has appeared as RW-1. He has controverted the allegations as made by the petitioner and reiterated the averments made in the written statement. He maintains that the petitioner's election agent-Hardial Singh had signed the statements Exhibits PW 3/ R-1 to PW 3/R-5. He also points out that the process of counting was video-taped. The Observers from the Election Commission had gone around checking the process of counting. They had even conducted random checking with their own hands. He denied the suggestion that irregularities had been committed during the course of counting. He explained the statement in paragraph 5 of the written statement by saying that certain invalid voles were wrongly counted in favour of the petitioner. He maintained that the petitioner's election agent was sitting right next to him. The result of the election had become obvious at the end of the fifth round. Most of the counting agents and the election agent of the petitioner had left the hall at that time. On discovering that the margin was only of 53 voles, they had started writing some application. He maintained that the petitioner had not come to the hall when the counting was going on. He admitted that the Returning Officer had not made any announcement regarding the total number of votes polled by each of the candidates or asking the contestants to submit any application for recount. He maintained that the counting was proper and the grievance made by the petitioner was not tenable.
30. Mr. Jaswinder Singh, the counting agent of Mr. Shubh Saroch, an independent candidate, appeared as RW-2. According to him, the counting of ballot papers had commenced at about 12-12.30 P.M. It was completed at 6.30 PM. During the process of counting, no objection was raised by any candidate or the election agent. Two Observers had visited the counting hall. One of the Observers had done the checking at this table. No candidate or agent had made any complaint to any of the Observers regarding the process of counting. In cross-examination, he has specifically stated that the counting agent of the BJP candidate had not raised any objection.
31. Mr. Bakhshish Singh, RW-3 was the counting agent of Respondent No. 1. He was on duty at table No. 5. He alleges that the process of counting had been completed between 6.30 to 6.45 PM. During the process of counting, no objection was raised either by any candidate or any election agent that the counting was not being properly done. He also asserts that two Observers from the Election Commission had visited the place of counting. A Video film was also being prepared. In cross-examination, he admitted that he belonged to the Congress I party. He is the Ex-President of the Talwara Block of the Congress. He has given details regarding the time at which the counting had started. He asserted that the checking was done by the Observer at his table besides some other tables as well.
32. To a similar effect arc the statements of RW-4, Mr. Sushil Kumar and RW-5, Mr. Vijay Krishan.
33. Mr. R.K. Srivastava, Under-Secretary, Election Commission of India, appeared as RW-6. He stated that the Commission had appointed two Observers to supervise the elections to the Dasuya Assembly Constituency. Mr. D.N. Sharan was the General Observer while Mr. B.K. Bansal had to "keep track of the expenditure incurred by the candidates during the election". The Observers had submitted their reports in writing. The report submitted by Mr. D.N. Sharan for the period from February 1, 1997 to February 10, 1997 is Ex. RW 6/1. He had also submitted another report on January 24, 1997 regarding his visit from January 18 to January 22, 1997. It is Ex. RW 6/2. The two Observers had also sent a joint report by Fax on February 9, 1997. He had produced the original fax message. The photo copy was taken on record as Ex. RW 6/3. Mr. Bansal had submitted a report along with a letter dated February 12/13, 1997. The letter is Ex. RW 6/4. The report for the period from February 2 to February 10, 1997 is Ex. RW 6/5. Mr. Bansal had also submitted another report Ex. RW 6/7. In cross-examination, he stated that the Observers could go to the hall where the counting was being done. According to the witness, "their job was to check up whether the counting was being done fairly". They were not entitled to check or count the ballot papers themselves or to decide about the validity etc. of the ballot papers. This was the job of the Returning Officer. The Observers had been briefed about their duties in a Session conducted at the office of the Election Commission.
34. RW-7, Mr. Karam Chand produced the Video Cassette which had been got prepared regarding the counting at the instance of the Returning Officer. It was taken on record as Ex. RW 7/1. In cross-examination, he admitted that the events which had taken place from February 4 to February 10, 1997 were contained in the cassette.
35. RW-8, Mr. Kirpal Singh appeared to produce "the tripping Register and the Log Book maintained by the 11 KV Sub-Station, Dasuya". He stated that he was on duty at the Sub-Station on February 9, 1997. There was no tripping of power according to the record on the said date. In cross-examination, he stated that he was on duty from 8 AM to 4 PM on February 9, 1997. However, in view of the fact that counting of ballot papers was going on, he had received instructions to stay on till about 8.30 PM. He maintained that according to the record, there was no tripping of power.
36. Mr. Manmohan Lal Arora, the counting agent of respondent No. 1 appeared as RW-9. He stated that no objection with regard to counting was raised either by any candidate or any election agent, at his table. He also stated that two Observers "had come during the counting". One of the Observers had checked the bundles of ballot papers. No candidate or election agent had lodged any protest. Even a Video film was being prepared. In cross-examination, he admitted that he had been "in politics for the last 20 to 25 years." He had been a worker of the Congress I and had contested elections to the Municipal Committee on Congress ticket.
37. RW-10, Mr. Mohan Lal is another counting agent. His statement is also to a similar effect.
38. This is all the testimony.
39. On September 24, 1997, the Video Cassette was seen in Court at the request of the counsel for the respondent.
40. Mr. S.P. Jain, learned counsel for the petitioner contended that purity of election being of paramount importance and the allegation of irregularities during counting having been established, an order for recount of the ballot papers should have been passed by the Returning Officer. Learned counsel maintained that the Returning Officer had not complied with the provisions of Rule 63 of the Conduct of Election Rules, 1961. Even according to the respondent, there were irregularities in the counting of ballot papers. During the counting, the lights had gone off. Still further, while initially, learned counsel had given up his objection regarding the postal ballot papers, later on, he had submitted that the provisions of Rule 54-A had not been complied with. Learned counsel referred to certain decisions in support of his submissions.
41. The claim made on behalf of the petitioner was controverted by Mr. S.C. Kapoor, counsel for the respondent. Learned counsel referred to the evidence on record to point out that there was no irregularity in the counting of ballot papers. Learned counsel also pointed out that there was no dispute regarding the validity of the postal ballot papers.
42. The conduct of elections is governed by the provisions of the Representation of the People Act, 1951 and the conduct of Elections Rules, 1961. Section 100 of the Act enumerates the grounds for declaring an election to be void. If the High Court is of the opinion that "the result of the election, in so far as it concerns a returned candidate, has been materially affected.... by the improper reception, refusal or rejection of any vote or the reception of any vote which is void", it "shall, declare the election of the returned candidate to be void". Still further, in view of the provisions of Section 101, if a person who has filed an election petition also claims a declaration that he "has been duly elected" and the High Court finds that such a person had in fact "received a majority of the valid votes", it can "after declaring the election of the returned candidate to be void, declare the petitioner...... to have been duly elected". It is, thus, clear that if it is found that the result of an election has been materially affected by improper acceptance or rejection of votes, the election of the returned candidate can be declared void. If it is further found that the petitioner or some other candidate had received a majority of the valid votes, he can be declared to have been duly elected.
43. Rule 63 provides for the recount of votes. The relevant part of the rule can be usefully extracted. It reads as under:--
"Re-count of votes -- (1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate, or in his absence, his election agent or any of his counting agent may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the returning officer under Sub-rule (3) shall be in writing and contain the reasons therefor."
44. A perusal of the above provisions shows that after the counting has been completed, the total number of votes polled by each candidate has to be entered in Form 20, It has also to be announced. A candidate, his election agent or any one of his counting agents can make a written request for re-count of the votes. The grounds on which the re-count is demanded have to be stated in the application. Thereupon, the returning officer has to decide the matter. He can reject the request if he finds it to be frivolous or unreasonable. The Returning Officer has to pass a written order and record his reasons therefor.
45. These provisions have been considered by the Apex Court in Nathu Ram Mirdha v. Gordhan Soni, (1968) 38 Election Law Reports 16. It was inter alia observed that "a party is not entitled at the trial of an election petition to claim recount as a matter of course. He must establish a prima facie case that there has been improper reception, refusal or rejection of votes or reception of void votes, before an order for recount is made by the Court." In Chanda Singh v. Ch. Shiv Ram Verma, AIR 1975 SC 403, it was said that "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 the ballot boxes". Even 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."
46. Again in Baldev Singh v. Teja Singh Swatantra, AIR 1975 SC 693, the High Court had rejected the request for recount of votes. Approving the view taken by the High Court, their Lordships were pleased to observe that "had there been any manipulation by the counting staff the matter would have been immediately taken to the notice of the Returning Officer and reference to it would have been made in the two applications to the Returning Officer for recount or at least in the application to the Election Commission for inspection made on March 17, 1971. Their silence really silences the grievance." (Pr. 11). While acknowledging in para 18 that "misgivings about the process must be erased at the earliest", their Lordships considered it apt to add that "judicial power to direct inspection and recount is undoubted but will be exercised sparingly."
47. A few years later, in N. Narayanan v. S. Semmalal, AIR 1980 SC 206, their Lordships observed that "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." In particular, their Lordships were pleased to emphasise that "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". Their Lordships finally reiterated the three principles which had been initially propounded in the case of Bhabhi v. Sheo Govind, 1975 Suppl SCR 202 : (AIR 1975 SC 2117). These are :--
"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."
48. On the basis of these tests, their Lordships reversed the view taken by the High Court and set aside the order for recount.
49. In Raghbir Singh Gill v. Gurcharan Singh Tohra, AIR 1980 SC 1362, it was undoubtedly observed by their Lordships that 'secrecy of ballot' cannot be used "to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers...." and that the "principle of secrecy of ballot will have to yield to the larger principle of free and fair elections". In this case, however, a positive finding regarding tampering of ballot papers had been recorded. Otherwise, the principle that "recount cannot be ordered just for the asking" was clearly reiterated. It was clearly held that the discretion "should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void". Even with regard to sample inspection, it was observed that such an order may be passed "only on the special facts of a given case".
50. In PKK Shamsudeen v. K.A.M. Mappillai Mohindeen, AIR 1989 SC 640, while dealing with the Tamil Nadu Panchayats Act, it was observed that "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 sacrosanct 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 Tribunal or Court should not order the recount of votes." It was further observed that "the settled position of law is that the justification for an order for examination of ballot papers and re-
count of votes is not to be derived from hindsight and by the result of the recount of votes."
51. These principles were again reiterated in Satyanarain Dudhani v. Uday Kumar Singh, AIR 1993 SC 367, when their Lordships reversed the decision of the Patna High Court and held that recounting of votes cannot be permitted as a matter of course.
52. In A. Neelalohithadasan Nadar v. George Mascrene, (1994) 3 JT (SC) 181 : (1994 AIR SCW 2198), the election to an Assembly Constituency in the Slate of Kerala was questioned. One of the grounds was that 19 voters whose names etc. had been disclosed had been wrongly included in the electoral rolls of more than one polling station and that they had dishonestly voted in both the polling stations. The High Court "picked out 52 ballot papers which were declared as void. Out of these, 48 were cast in favour of the elected candidate and four in favour of the election-petitioner. Since the Returning Officer had announced the elected candidate to have secured 49515 vites, 48 void votes therefrom had to be deducted and as a consequence, the appellant was found to have secured a total of 49467 votes." The election-petitioner was declared elected. The order of the High Court was challenged. While negativing the claim made on behalf of the appellant, their Lordships found that "the primary purpose................was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial, permitted the parties to inspect before-hand the records...........
This approach could not be termed as permitting a roving or fishing enquiry.........." In this context, their Lordships affirmed the order of the High Court. On the basis of the facts, the principle of secrecy of ballot was held to yield to the necessity for purity of elections.
53. On the basis of these decisions, the following principles emerge :--
(i) Secrecy of the ballot is sacrosanct;
(ii) The principle of secrecy cannot be used to suppress a wrong coming to light;
(iii) An unsuccessful candidate cannot be permitted to indulge in a roving enquiry. The request for recount should be accepted only when a prima facie case of a high degree of probability is made out.
54. What is the position in the present case ? Mr. Jain submitted that the Returning Officer had failed to comply with the provisions of Rule 63 as he did not make any announcement regarding the total number of votes polled by each candidate. He did not invite a request for recount of voles. While considering the request for recount of votes, the Returning Officer had not dealt with the allegation that the petitioner's voles had been mixed with those of the Congress candidate. Still further, even the respondent had admitted that there were irregularities. Resultantly, the request for recount should have been allowed. Is it so?
55. It is undoubtedly correct that the respondent had won by a margin of only 53 votes. It is also the admitted position that the evidence on record shows that the Returning Officer had not formally invited any application for a recount. However, it is also equally established on the record that the Returning Officer was recording the number of votes pulled by the candidates at the end of each round on the blackboard as well as on Forms Ex. PW 3/R-1 to R.-5 and RW 1/1. Thus, everyone knew the result. Still further, it is also clear that the petitioner had actually filed an application for recount. He had, thus, not suffered any prejudice by the omission of the Returning Officer to formally invite applications for a recount. Thus, the complaint based on the violation of Rule 63 cannot be sustained.
56. The next question that arises for examination is - were there any irregularities during the course of counting ? The first piece of evidence in this regard is contained in an application for recount which is on record as Ex. PW 3/1. This application was submitted by Mr. Hardial Singh, the election agent of the petitioner and Mr. Ujaggar Singh, the election agent of the BSP candidate. It reads as under:--
"To The Returning Officer, (51 - Dasuya), Dasuya.
Sub : Recheck and Recount of voles of abovesaid 51 -Dasuya constituency.
Respected Sir, I as an Election Agent of BJP candidate Mahant Ram Parkash Dass pray to recheck and recount of votes as your staff has done many wrong things in spite of our objections.
Your staff has mixed votes in Congress candidate bundles. Kindly order for recheck and recount of votes for justice. Thanking you, Yours sincerely, sd/-
9-2-97 (Election Agent) Mahant Ram Parkash Dass, BJP Election Agent BSP sd/-
9-2-97."
57. This application was written by Mr. Subhash Chander Anand, PW-4. He is a Law graduate. He denied the suggestion that this complaint "was submitted after the counting had been completed". According to him, it had been submitted "during the course of counting". He further alleged that he "had been demanding recount right after the first round." According to him, at the time of the submission of the complaint, Ex. PW 3/1, "5th round of counting was going on". According to the petitioner who had appeared as PW-3, "this application (Ex. PW 3/ 1) had been submitted towards the end of the counting while the sixth round was going on". He had also denied the suggestion that "the application was submitted after the result of the counting was known". He had also asserted that a fax message Ex. PW2/I had been sent on his behalf to the Election Commission of India. PW-5, Ujaggar Singh who is also a signatory to the. application Ex. PW3/1 asserts that it was "submitted at about 6 PM. At that time, fifth round of counting was still going on". In cross-examination, he admitted that "whatever irregularity we had seen during the counting was mentioned in the complaint Ex. PW 3/1. We did not have any complaint besides the one mentioned in the complaint Ex. PW 3/1." The respondent on the other hand has categorically asserted that the application was presented "after the result was known and it was clear that I was winning by a margin of 53 votes."
58. On a perusal of the document, Ex. PW 3/ 1, it is clear that the allegations made by the two election agents were that "staff has done many wrong things in spite of our objections" and that ''staff has mixed votes in Congress candidate bundles". Later on, when the petitioner sent a fax message to the Election Commission (Ex. PW2/ 1), it was alleged that "at each and every round of counting (of) votes, my election agent and BSP agent objected regarding mixing of votes by the counting staff with the voles of Congress candidate". This fa(sic)essage appears to have been sent after midnight at 044 hours on February 10, 1997.
59. It is the admitted position that the petitioner had contested election on three occasions, Even the petitioner's election agent, Hardial Singh who had submitted the application, Ex. P.W. 3/1 was not a novice. The author of the application, Mr. Subhash Chander Anand, P.W. 4 is a Law graduate. Yet. no specific allegation regarding irregularities in counting as sought to be made out in the petition or at the stage of evidence was made in the two documents viz., Ex. P.W. 3/1 and Ex. P.W. 2/1. Both in the election petition and at the stage of evidence, an effort has been made to project a picture of grave irregularities during the process of counting. It has been suggested that the valid votes had been "wrongly rejected on the ground that the stamp was faint. Certain votes were rejected on the ground that the voter had put his thumb impression instead of using the marker." About 100 ballot papers were allowed to have been rejected on the ground that along with the marker, the thumb impression had appeared on the ballot paper. It was further alleged "that the lights had gone off for sometime. During that interval...... ballot papers were put in the ballot papers of the Congress candidate. This had been done in particular on counting table Nos. 4, 5, 7 and 14. ..... the ballot papers which had been counted in favour of the Congress candidate should have been actually rejected. The number of such ballot papers was approximately 150. These irregularities were committed on counting table Nos. 2, 4 to 7 and 14." If all these facts had been conveyed to the petitioner by his election and counting agents, why did he not mention any of these matters in the fax message Ex. P.W. 2/1 ? The petitioner's explanation that the message "was sent in a hurry and, therefore, the exact details were not recorded," cannot be accepted. There was a gap of many hours between the completion of counting and sending of the message. Still further, P.W. 5, Mr. Ujaggar Singh who is also a signatory to the application Ex.
P.W. 3/1 candidly admitted that there was no complaint "besides the one mentioned in the complaint Ex. P.W. 3/1." Moreover, Mr. Hardial Singh, who was the petitioner's election agent and was a signatory to the complaint Ex. P.W. 3/1 has not been produced. Why? Is it, as suggested on behalf of the respondent that he was kept back as he would not have been able to deny the fact that he had signed the documents at Ex. P.W. 3/R-1 to R-5? No satisfactory explanation for the failure to produce Hardial Singh has been offered on behalf of the petitioner. Still further, it appears to be clearly established on the record that the number of votes polled by each candidate was being recorded at the end of each round by the Returning Officer. He was getting the signatures of the candidates or their election agents in token of the correctness of the facts as mentioned on the particular document. No writ-ten complaint had been submitted by any one except the application Ex. P.W. 3/1. Still further, the two Observers had visited the hall where counting was in progress. It has not even been suggested during the course of arguments that any complaint was made to these Observers. In case, any irregularity had been committed during the process of counting, it cannot be believed that the petitioner or his election agent would not have pointed it out to the Observers. Still further, it is established on the record that two observers had been appointed by the Election Commission of India. On February 9, 1997, these observers had submitted a joint report which is on record as Ex. R.W.- 6/3. The relevant portion reads as under :--
"We observed the counting of votes of 51-Dasuya Assembly Constituency. The counting took place as per the prescribed procedures and to our satisfaction and nothing untoward happened during counting which concluded peacefully. Since the margin of the first over the second candidate is only 53 votes (Fifty three only), the second candidate requested for recounting which was rejected by the Returning Officer 51 -Dasuya Assembly Constituency. We are of the opinion that the Returning Officer may be accorded permission to declare the result. Sd/-
(D.N. Sharan) Sd/-
(B. K. Bansal) 9-2-1997."
60. It appears that another report had been submitted on February 11, 1997 by Mr. D.N. Sharan who is working as Deputy Secretary (ADB and Information) Ministry of Finance in which it was inter alia observed as under :--
Pr. 4. "The counting process also proceeded in orderly manner and without any major complainants, except for 51-Dasuya constituency where the party at the second place applied to RO for a recount, mainly because of small margin. The same was rejected by the Returning Officer for want of any prima facie case or substantial reason." Both these reports indicate clearly that the application was submitted when the result was known and belie any suggestion of irregularity during counting.
61. Mr. Karam Chand, R.W. 7 was examined as a witness on behalf of the respondent. He had produced a Video Cassette. Initially, it was kept in a sealed cover. However, on September 24, 1997, it was opened and seen on a Video Cassette Player in the Court. According to the cassette, it appeared that the process of counting had commenced on 12.11 p.m. At 16.41 hours, one of the Observers (as stated by the counsel) was seen going around the counting hall. At 17.18 hours, the second Observer was seen in the counting hall. He also appeared to be examining certain ballot papers and moving from table to table. The result of the fifth round appeared to have been declared at 18.22 hours. Even thereafter, the second Observer was seen checking the ballot papers. At 18.57 hours, Mr. Subhash Chander Anand, P.W. 4 appeared to be talking in a loud and aggressive tone. At 6.49 p.m., some paper appeared to have been presented. The result was declared next, morning at 5.48 a.m. Even from an examination of the Video Cassette, it can be concluded that the complaint Ex. P.W. 3/1 had not been submitted at 6 p.m. as claimed on behalf of the petitioner. It was also not presented while the fifth round of counting was going on as claimed by P.W. 4, Mr. Subhash Chander Anand. The likelihood of the complaint having been submitted after it was found that there was a margin of only 53 votes cannot be ruled out.
62. After the receipt of the application, the Returning Officer appears to have passed the order Ex. P.W. 2/5. It reads as under :--
"Subject : Application of Shair Hardial Singh, election agent of BJP candidate and Shri Ujaggar Singh, election agent of BSP candidate for recounting of votes in respect of Dasuya Assembly Constituency. ORDER I have gone through the application filed by Shri Hardial Singh and Election Agent of Mahant Ram Parkash, BJP candidate and Shri Ujaggar Singly Election Agent of Smt. Swaran Kaur, BSP candidate, wherein they have alleged that counting staff put on duty has committed some irregularities like mixing of their bundles of votes with those of the other part. There appears to be no substance in the application and, therefore, is rejected. They have further stated verbally that apart from these reasons, keeping in view the justice, recounting and rechecking should be done. They have (been) assured that their demand will be referred to the Election Commission in Annexure-2." (Illegible) Sd/-
Returning Officer, 51 Dasuya Assembly Constituency."
63. Thereafter, it appears that the Returning Officer passed another order, Ex. P.W. 2/2. It reads as under :--
"This is in continuation of my order on the subject referred to above, it is elaborated that the counting took place as per the prescribed procedure and to my satisfaction. The counting agents of different candidates including (illegible) of BJP and BSP were also satisfied with the counting and they put their signatures in token of their satisfaction on the result of the first five rounds. It was only after the sixth and final round when the lead reduced to only 53 votes, an application for recounting was submitted. I have carefully gone through the application and considered all the points raised therein and T find that there is no prima facie case for ordering recounting. Therefore, I reject the application for recounting as referred above being baseless."
64. It was contended on behalf of the petitioner that a specific allegation regarding mixing of votes with those of the Congress candidate had been made. However, no firm finding in that regard had been recorded by the Returning Officer. Mr. Jain complained that the Returning Officer did not conduct even a sample check.
65. The video cassette, the order passed by the Returning Officer and the other documentary evidence on record clearly belie the suggestion on behalf of the petitioner that any objection regarding the counting or mixing of votes was raised prior to the submission of the application, Ex. P.W. 3/1. Still further, a perusal of the order passed by the Returning Officer shows that the application had in fact been submitted after it was known that the petitioner was losing by a margin of 53 votes.
66. On an examination of the documentary/ oral evidence and the video cassette, it appears to be clearly established that:--
(i) No objection had been raised by any one regarding the process of counting at any stage prior to the submission of the complaint, Ex. P.W. 3/1.
(ii) The Observers had visited the hall where counting was in progress. At least one of them had clearly moved from table to table and checked the ballot papers. There was no evidence of protest or complaint having been made (orally or in writing) either by any candidate or his agent.
(iii) The result of counting was being duly recorded by the Returning Officer at the end of each round. The petitioner's election agent, Hardial Singh had signed these documents Ex. P.W. 3/R-1 to R-5. P.W. 5 has categorically stated that Hardial Singh had signed these documents. It has also been admitted that there was no complaint except that mentioned in Ex. P.W. 3/1. Thus, Mr. Hardial Singh was not produced as he was likely to be confronted with the documents and his testimony would have given a lie to the allegations as sought to be made in the petition or during the course of evidence. Still further, in the petition, there is no allegation regarding any irregularities having been committed in the 6th round. In para 19, the only suggestion is that there were irregularities during the second to 5th rounds of counting.
(i v) The documentary evidence on record and the video cassette belie the suggestion of the petitioner that the counting was not properly conducted.
(v) The report sent by the Observers and the order passed by the Returning Officer seem to be in conformity with the factual position at the spot.
(vi) The evidence on record does not make out any case, much less than a case of 'high degree of probability' that there were any irregularities so as to justify a recount of the votes. The allegations cannot be said to have been even prima facie established. In fact, there seems to be an attempt to improve upon the allegations at every stage.
67. Mr. Jain had initially given up his claim regarding irregularity in the acceptance of postal ballots. However, later on, it was contended that 10 ballot papers had been delivered on 9th February, 1997 and these had to be counted before the other ballots. On behalf of the respondent, it was rightly pointed out by the learned counsel that no such objection had been raised in the petition regarding the 10 ballot papers. It was also pointed out and it appears rightly that the document Mark 'H' on the basis of which this contention has been raised, has not even been proved in accordance with law. Still further, no violation of Rule 54-A is made out. Consequently, the objection cannot be sustained.
68. It was also suggested that the order passed by the Returning Officer was not valid. He had not recorded the reasons. Still further, having passed the order Ex. P.W. 2/5, he had become functus officio and could not have passed a supplementary order which has been brought on record as Ex. P.W. 2/2.
69. This contention cannot be accepted. The orders passed by the Returning Officer have already been extracted above. Undeniably, no concrete allegation had been made in the application. In the order at Ex. P.W. 2/5, the Returning Officer had categorically observed that there was no substance in the allegation. In the subsequent order, he did not say anything different. It was merely a communication to the Election Commission.
70. No other point was raised.
71. In spite of the small margin of 53 votes, the allegations of irregularities during counting are not proved. In view of the above, Issue No. 4 is decided against the petitioner. It is held that no ground for recount is made out. Consequently, even the finding on Issue No. 5 has to be against the petitioner. It cannot be said that he is entitled to be declared to have been elected.
72. Resultantly, the petition is dismissed. However, the parties arc left to bear their own costs.