Madras High Court
M.Kalavathy vs K.Chitra on 17 September, 2008
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/09/2008 CORAM THE HON'BLE MR.JUSTICE V. RAMASUBRAMANIAN C.R.P.(NPD)(MD)No.933 of 2008 and M.P.(MD) No.1 of 2008 M.Kalavathy ...Petitioner Vs. 1.K.Chitra 2.Block Development Officer, Sivakasi, Also Returning Officer representing Tamil Nadu Election Commission for electing President of Viswanatham Panchayat. 3.D.Muthuselvi 4.Navasakthi ...Respondents PRAYER Petition filed under Article 227 of the Constitution of India against the order and decretal order dated 28.4.2008 in Election Petition No.5 of 2006 on the file of the Principal District Judge, Virudhunagar at Srivilliputtur. !For Petitioner ... Mr.AR.L.Sundaresan, Senior Counsel. ^For Respondent-1 ... Mr.S.Parthasarathy, Senior Counsel. For Respondent-2 ... Mr.K.M.Vijayakumar, Govt. Advocate. :ORDER
This Civil Revision Petition is directed against an order passed by the Principal District Judge, Virudhunagar, in Election O.P.No.5 of 2006, ordering a recount of the votes polled in the election held on 13.10.2006 for the post of President of Viswanatham Panchayat.
2. I have heard Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the petitioner, Mr.S.Parthasarathy, learned Senior Counsel appearing for the first respondent and Mr.K.M.Vijayakumar, learned Government Advocate appearing for the second respondent.
3. On 13.10.2006, elections were held for the post of President of Viswanatham Panchayat. The votes were counted on 18.10.2006. The petitioner herein was declared to have secured 3902 votes as against her nearest rival viz., the first respondent herein, who was declared to have secured 3895 votes. The other candidates secured lesser votes. Therefore, the petitioner herein was declared as the successful candidate, having won by a margin of 7 votes.
4. The first respondent herein filed an Election Petition under Sections 258 of the Tamil Nadu Panchayats Act, 1994 in Election O.P.No.5 of 2006 on the file of the Principal District Judge, Virudhunagar. After enquiry, the District Judge passed an order on 28.4.2008, directing a recount of the votes polled. It is against the said order that the petitioner, who is the returned candidate, has come up with the present Civil Revision Petition.
5. The learned District Judge was constrained to order a recount primarily for two reasons viz.,:-
(a) that though 9513 ballot papers were distributed to voters, the final tally totalled only to 9494 votes, leaving 19 votes unaccounted for; and
(b) that 453 votes were declared as invalid without sufficient basis.
6. Assailing the order of the learned Judge, directing a recount, Mr.AR.L.Sundaresan, learned Senior Counsel contended -
(a) that the first respondent (election petitioner) failed to submit an objection as prescribed under Rule 66(1) of the Tamil Nadu Panchayats (Elections) Rules, 1995;
(b) that even if the first respondent is deemed to have given an objection as per Rule 66 (as contended by her), the said objection did not contain any material particulars warranting a recount; and
(c) that the election petition itself was bereft of material particulars entitling the first respondent to the relief of recounting, especially when the law of pleadings as applicable to election petitions, is very strict.
7. In support of the above contentions, Mr.AR.L.Sundaresan, learned Senior Counsel for the petitioner, took me through the provisions of the Tamil Nadu Panchayats (Elections) Rules, 1995 as well as several decisions of the Apex Court.
8. Per contra, Mr.S.Parthasarathy, learned Senior Counsel appearing for the first respondent contended -
(a) that the election petition filed by the first respondent contained a specific averment in paragraph-7 to the effect that a petition for recount was submitted to the Returning Officer by the first respondent, but the Returning Officer rejected the first respondent's request and hence there was sufficient compliance of Rule 66;
(b) that the Returning Officer, who was on duty at the time of elections, got transferred subsequently and he did not come forward to file a counter to the election petition or to give evidence to disprove the contention of the first respondent in the election petition.
(c) that the counter filed by the successor in Office, who had no personal knowledge, did not contain any plausible explanation about the 19 missing votes and the 453 votes declared as invalid; and
(d) that since the recount was sought specifically on two grounds (with regard to missing votes and invalid votes), the pleadings in the election petition were sufficient for seeking recounting.
9. In the light of the rival contentions, let us now examine the provisions of the Act and the Rules as well as the principles enunciated by the Apex Court in various decisions, to see if a recount is justified.
10. Section 258 (1) of the Tamil Nadu Panchayats Act, 1994, places an embargo upon a person to challenge the election of a President or Chairman or Member, except by way of an election petition. Sub Section (2) prescribes that an election petition may be presented on one or more of the grounds specified in Section 259. Sub Section (4) deals with the necessary ingredients of an election petition and it reads as follows:-
"258. Election Petitions:-
(1) .. .. .. .. ..
(2) .. .. .. .. ..
(3) .. .. .. .. ..
(4) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, for the verification of pleadings."
11. Section 259 enlists the grounds for declaring elections to be void. In brief, these grounds are -
(a) that on the date of his election, a returned candidate was not qualified or was disqualified;
(b) that a corrupt practice was committed;
(c) that any nomination paper has been improperly rejected;
(d) that the result of the election was materially affected either by the improper acceptance of any nomination or by any corrupt practice or by the improper acceptance or refusal of any vote or reception of any vote which is void or by the non-compliance with the provisions of the Act or the Rules.
12. It is seen from the election petition filed by the first respondent herein that her challenge to the election of the petitioner herein was not on the ground of lack of qualification or disqualification or any corrupt practice. The challenge was only on the basis of the 19 votes which according to the first respondent went missing and 453 votes declared as invalid. Therefore the case on hand would only fall under Sections 259(1)(d)(iii) and 259(1)(d)(iv) of the Act. In other words, the grounds raised by the first respondent in her election petition would come within the category of "improper refusal of any vote" or the "non-compliance with the provisions of this Act or any Rules".
13. In the light of the above statutory provisions, Mr.AR.L. Sundaresan, learned Senior Counsel appearing for the petitioner contended that before ordering recounting of votes, the Election Court should satisfy itself about the existence of a strong prima facie case of a high degree of probability. The pleadings and proof required for ordering a recount should be of a high order. In support of the said contentions, the learned Senior Counsel relied upon several decisions of the Apex Court.
14. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai {AIR 1964 SC 1249}, the Supreme Court held that "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". This decision was followed in P.K.K.Shamsudeen Vs. K.A.M.Mappillai Mohindeen {AIR 1989 SC 640}, where the Supreme Court crystallised the position of law in paragraph-13 as follows:-
"13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a 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 re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes."
15. P.K.K.Shamsudeen'S case was followed in Vadivelu Vs. Sundaram {2000 (8) SCC 355} and it was held in paragraph-16 as follows:-
"16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties."
16. In Mahender Pratap Vs. Krishan Pal {AIR 2003 SC 304}, it was held in paragraph-20 as follows:-
"20. As seen from the decided cases mentioned above, in election petitions which are filed with prayer for re-count of votes, the Court has always insisted upon a high standard of proof of grounds as would impel the Court to direct re- count of votes and re-check the election results. It is only after the election petitioner is able to demonstrate before the Court by leading satisfactory evidence that there was serious flaw in the counting procedure which had materially affected the result of election that the prayer for recount is generally allowed."
17. Again in M.Chinnasamy Vs. K.C.Palanisamy {2004 (6) SCC 341}, the Supreme Court reiterated the Rule of pleadings as required for a Court to order recount. It is seen from paragraph-6 of the decision of the Apex Court in that case, that the election petitioner made allegations of irregularities in the counting of votes, category-wise. He alleged that 750 votes cast in his favour were rejected due to inadvertent thumb impression, 250 votes were rejected due to the rubber stamp impression of the Polling Officer, 1500 votes were rejected as they were cast on the border, 5000 votes were rejected on the ground that wrong instrument was used by the voter and 300 postal votes were rejected. After considering Section 83(1)(a) of the Representation of People Act, which is in pari materia with Section 258(4)(a) and (b) of the Tamil Nadu Panchayats Act and referring to order VI, Rule 2, CPC, the Supreme Court elicited four ingredients necessary for ordering a recount, in paragraph-15 as follows:-
(1) Whether there is a prima facie case?
(2) Whether material facts are pleaded?
(3) That the Court shall not direct recounting by way of roving or fishing enquiry; and (4) That such an objection had been taken recourse to.
The Supreme Court also made it clear that a recount shall not be ordered merely because the margin of votes is narrow. In so far as the pleadings are concerned, the Supreme Court said as follows:-
"18. The parties are bound by the said rule of pleadings and verification thereof having regard to the fact that an election may not be set aside on hyper technical grounds although no factual foundation therefor had been laid in the pleadings as the elected candidate may not have any hand therein. So far as requirement of pleadings in a case where a direction of re-counting of ballot papers has been prayed for, the Court must proceed cautiously and with circumspection, having regard to the requirement of maintaining secrecy of ballot papers. It is not disputed that the counting was done at four centres. It is further not disputed that the material facts, as regards as to which category of irregularities as enumerated in the election petition occurred at which centre and at what time, had not been pleaded. The details as regards tables at which such objections were raised have further not been disclosed, nor had the names of the counting agents been disclosed. The very basis of the election petition centres around the objections of the chief election agent of the election petitioner dated 6.10.1999 (Ext.P-9). We have set out the said objections in extenso hereinbefore. A bare perusal thereof would clearly show that the allegations contained therein are absolutely vague and lack material particulars. Details as regards commission of alleged irregularities polling station wise, assembly segment wise, polling counter wise or table wise had not been disclosed. The same by itself goes to show that the chief election agent of the election petitioner did not raise any objection before the Returning Officer and the counting staff as and when such irregularities were purported to have been found out. It may be relevant to note that even the said agent of the election petitioner had not been examined, inter alia, on the ground that he after declaration of the election result has changed sides."
"27. Had the election petitioner in his pleadings, as noticed hereinbefore, disclosed the details of the names of polling stations, counting centres, tables, particulars of round of the counting of votes in relation whereto alleged irregularities had taken place under all the four categories and basis of material facts and particulars, the High Court, if finds that the election petitioner has made out a prima facie case for scrutiny of ballot papers and re-count, may direct re-count of ballot papers in respect of the said votes only and not the entire votes."
18. Again in paragraph-44, the Supreme Court emphasised the need for a high degree of proof in the following words:-
"44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to provide the allegations was on the election petitioner. The degree of proof for issuing a direction of re-counting of votes must be of a very high standard and is required to be discharged {See Mahender Pratap Vs. Krishan Pal {2003 (1) SCC 390}"
19. Again in Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan {2006 (2) SCC 300}, the Supreme Court emphasised the need for establishing that the allegations made in the election petition were contemporaneously made after the conclusion of the process of counting.
20. In the light of the law laid down by the Apex Court with regard to the precision required of the pleadings and the high degree of proof necessary to warrant recounting, Mr.AR.L.Sundaresan, learned Senior Counsel contended that the case on hand is not one where full material particulars were pleaded and proved to enable the Court to order a recount. In the election petition, the first respondent merely raised the following two issues:-
(i) That 453 votes were wrongly declared as invalid on account of the abrasions caused by the rubber stamp ink used to affix the thumb impression of the voters. The election petitioner claimed that 300 votes polled by the petitioner in her favour were unlawfully rejected as invalid and that the same altered the course of events; and
(ii) That though the votes polled were 9513, the votes counted were only 9494, showing a deficit of 19 votes.
21. According to the learned Senior Counsel for the petitioner, both the above issues raised by the election petitioner (first respondent herein) fell short of the requirements of Section 258(4)(a) and (b). The learned Senior Counsel also drew my attention to the deposition of the election petitioner as PW.1, wherein she admitted in cross examination that after the counting in respect of each booth, the Officer should note down the total number of votes polled and the number of votes polled in respect of each of the contestants and that the agents of every candidate personally present is also to make a note of all those details. She had further admitted in cross-examination that her own agents noted down such details in respect of each table where the counting took place and that the notes so made by her agents were also handed over to her. But those agents were neither examined nor their notes filed as exhibits. Therefore, according to the learned Senior Counsel, the averment that 453 votes were improperly rejected as invalid and that 19 votes went missing, were not precisely pleaded with full particulars and proved with necessary evidence.
22. Now let me examine the pleadings to see if they satisfy the tests laid down by the Apex Court. If the pleadings are sufficiently strong, then we have to see if the election petitioner adduced sufficient proof to establish them.
PLEADINGS WITH REGARD TO 453 VOTES:
23. It is true that the election petitioner admitted during the cross examination that she had engaged her own agents, who were present at the time of counting. Her agents were also admittedly present in every table when the counting was in progress. She also admitted during cross examination that a ballot account, indicating the proof of votes polled for each candidate, the number of votes declared invalid and the total number of votes polled, was announced after the conclusion of counting in every table. She further admitted that her own agents also noted down the details and handed over the notes papers to her. Therefore the election petitioner can be taken to have been in possession of full particulars relating to the number of votes rejected in each table and the reasons therefor. But she failed to plead these particulars and to produce those notes and she also failed to examine her agents. She also failed to plead the number of votes improperly rejected in respect of each table and the reasons therefor, so as to make her averments come within the meaning of the term "full material particulars".
24. In M.Chinnasamy's case {2004 (6) SCC 341}, despite the petitioner making allegations of irregularities in the counting of votes under five different heads (paragraph-6 of the judgment), the Supreme Court concluded in paragraph-18 extracted above that the petition was bereft of full material particulars. The Supreme Court found fault with the election petitioner for not pleading material particulars with regard to each category of irregularities, such as polling station wise, polling counter wise or table wise. The Supreme Court also found fault with the election petitioner for not examining his agent and not producing the note books where the irregularities were noted. Similarly, in the case on hand, the first respondent/election petitioner failed to make precise pleadings in his election petition, with regard to the 453 ballot papers declared as invalid. The first respondent did not plead as to how many votes were declared invalid table wise and as to how many votes (out of those declared as invalid) were polled in his favour. As rightly contended by Mr.AR.L.Sundaresan, learned Senior Counsel, the election petitioner merely stated in paragraph-6 of his election petition that 453 ballot papers were declared as invalid, without segregating them polling station wise or table wise. Moreover, the election petitioner gave an approximation in paragraph-7(ii) of her election petition that more than 300 votes polled in her favour were unlawfully rejected as invalid. Even assuming that there was precision in respect of the total number of votes rejected (mentioned as 453), there was neither precision nor a firm assertion about the number of votes that were actually polled in her favour out of those 453 votes. The election petitioner filed a copy of the representation said to have been given by her to the Returning Officer in terms of Rule 66(1), as Ex.P.2. Though this document is disputed by the Returning Officer, it is seen from that document that there is a mention only about 453 votes declared as invalid. There is no mention in Ex.P.2 (representation dated 18.10.2006) that 300 out of those 453 votes were polled in favour of the election petitioner. Therefore the averment in paragraph-7(ii) of the election petition that more than 300 votes out of those 453 votes were polled in her favour is obviously an improvement made by the election petitioner at the time of filing the election petition.
25. If the strict rule of pleadings as propounded in paragraphs-6 and 15 to 18 of the decision of the Supreme Court in M.Chinnasamy's case, are applied, the first respondent/election petitioner has failed to lay a strong foundation with regard to her claim that 453 votes were improperly rejected. In her cross- examination as PW.1, the first respondent admitted that her agents were available at the time of counting, on all 22 tables. She also admitted that the agents had noted down the votes polled in every booth, the votes polled in favour of each candidate and the votes declared as invalid. She further admitted that her agents passed on the notes where those details were jotted down. She further admitted that if those notes are seen, the details as to how many votes were not found and how many votes were invalid would be known. She also admitted that the votes were counted in 22 tables separately.
26. In the light of the above admission and in view of the law laid down by the Supreme Court in M.Chinnasamy's case, the first respondent/election petitioner ought to have specifically pleaded the following details in her election petition viz.,:-
(a) The number of votes wrongfully rejected as invalid in each of the 22 tables where counting took place.
(b) The number of votes (out of those wrongfully rejected votes), that were cast in her favour in respect of each of those 22 tables. The election petitioner also ought to have examined those agents or at least produced the notes papers admittedly prepared by her agents and admittedly handed over to her. Since the first respondent/election petitioner has failed to come up with an element of precision in her pleadings, at least with regard to these 453 votes allegedly discarded as invalid, the election petitioner was not entitled to have a recount ordered on this score.
PLEADINGS WITH REGARD TO MISSING VOTES:-
27. The issue of missing votes and the pleadings made by the election petitioner in this regard are to be seen in the context of the provisions of the Tamil Nadu Panchayats (Elections) Rules, 1995, issued in exercise of the power conferred by Section 242 of the Act. Rule 49 of these rules prescribes that every ballot paper is to be in Form 14-A or 14-B, depending upon whether it relates to the election of Members of the Panchayat Union Councils and District Panchayats or the election of President and Members of Village Panchayats. Rule 49(3) mandates that the ballot papers and the counterfoils should be serially numbered and stamped on the reverse. Rule 51 prescribes the procedure for the issue of ballot papers and voting. It is relevant to point out that Rule 51 (1) prohibits a person in the Polling Station from noting down the serial numbers of the ballot papers issued to a particular elector. Rule 51 (2) mandates that every elector should be given only one ballot paper for each election.
28. Taking note of the fact that several contingencies may arise between the time the ballot papers are issued and the time the ballot papers are collected in the boxes, the Rules prescribe certain safeguards, which are as follows:-
(a) Rule 54 (1) deals with ballot papers spoiled by the elector due to inadvertence. Such ballot papers are to be collected by the Returning Officer and marked as "spoilt-cancelled".
(b) Rule 54 (2) speaks of the ballot papers returned unused by an electors. These ballot papers are to be marked as "returned cancelled" by the Presiding Officer. The ballot papers issued to a person who refuses to follow the procedure prescribed under Rule 51 for casting his vote, are to be taken back by the Presiding Officer and marked as "cancelled-voting procedure violated". Rule 55 deals with tendered votes, when the vote of a person has already been polled by someone else. Rule 58(3) requires the Presiding Officer to make into separate packets (i) the marked copy of the electoral roll (ii) the unused ballot papers and the spoilt, returned, tendered and cancelled ballot papers and (iii) any other paper as directed the State Election Commission and seal all these packets.
29. Sub Rule (4) of Rule 58 obliges the Presiding Officer to prepare a ballot paper account in Form 20. The Rule is of relevance for the purpose of the case on hand and hence it is extracted as follows:-
"58. Closing of poll.--
(4) (a) The Presiding Officer shall, at the close of the poll, prepare a ballot paper account for each election in Form 20 for transmission to the Returning Officer. It may be enclosed in separate cover with the words, "Ballot Paper Account" superscribed thereon. When two or more elections are held simultaneously, the ballot paper account shall be enclosed in separate covers or in a common cover as the State Election Commission may direct from time to time.
(b) The Presiding Officer shall furnish to every polling agent present at the close of the poll, a true copy of the entries made in the ballot paper account or accounts attested by him after obtaining a receipt from the said polling agent therefor."
30. Rules 60 to 66 deal with counting of votes. Rules 61(7) obliges the Returning Officer to allow the candidates and their agents, reasonable opportunities to inspect without handling, all ballot papers, which in his opinion, are liable to be rejected under Rule 63. The Returning Officer is expected under this Rule to make an endorsement on every such rejected ballot papers, the letter "R" and the ground of rejection in an abbreviated form. The grounds on which the ballot papers could be rejected are enumerated in Rule 63.
31. After the counting of all the votes (except those rejected under Rule
63), the Returning Officer should have the result of the counting entered in Part-II of Form 20 and should then make entries in a result sheet in Form 22.
32. Rule 66 requires the Returning Officer to announce the total number of votes polled by each candidate, after completion of the counting and after recording the same in Form 22. After such announcement, but before the declaration of result of the election, a contesting candidate or his election agent may apply in writing to the Returning Officer for a recount, stating the grounds on which he demands such recount. Any decision taken by the Returning Officer on such an application, should be in writing and should contain the reasons. It is only after the completion of the above process that the Returning Officer is entitled to declare the result of the election. Rule 67 (2)(d) enables a contesting candidate or his election agent or his counting agent, to take a copy or an extract from the Statement in Form 22, on an application.
33. An over view of the above provisions indicate that the Rules have taken note of every possible contingency for a proper account of the ballot papers, including those "spoilt-cancelled", "returned-cancelled", "cancelled- voting procedure violated", "tendered votes" and "rejected ballot papers". But unfortunately, the Rules do not contemplate the possibility of "missing votes". Form 20 prescribed under Rule 58(4)(a) contains two parts. Part-I relates to "Ballot Paper Account" and Part-II relates to "Result of Initial Counting". It is only this Form which takes care of the contingency of "missing votes". Since it is crucial for our present purpose, Form No.20 is extracted as follows:-
FORM 20 (See rules 58(4)(a) and 64(2)) Member/Members to Ward No......of the ....... Village Panchayat/Panchayat Union Council/ District Panchayat Election of --------------------------------------------
President to ...............Village Panchayat PART-I BALLOT PAPER ACCOUNT Name of the District Panchayat Ward No. Name of the Panchayat Union Ward No. Name of the Village Panchayat Ward No. Number ........
Name of Polling Station............
Sl.Nos. | -----------------| From | To | Total | | Number ---------------------------- (2) (3) (4) ---------------------------- (1) 1.Ballot papers received 2.Ballot papers unused (i.e. not issued to voters) --- (a) With the signature of Presiding Officer (b) Without the signature of Presiding Officer TOTAL (a+b) 3.*Ballot papers used at the polling station (1-2=3) 4.*Ballot papers used at the polling station but NOT INSERTED INTO THE BALLOT BOX -- (a)Ballot papers cancelled for violation of voting procedure under rule54 -------------------------- (b)Ballot papers cancelled for other reasons -------------------------- (c)Ballot papers used as tendered ballot papers -------------------------- TOTAL:(a+b+c) | | | | | | | | | | | | | | | | ---------------------------- ---------------------------- ---------------------------- 5.*Ballot papers to be found in the ballot box(3-4=5) (*Serial numbers need not be given) Date:___________ Signature of Presiding Officer
____________________________________________________ PART-II RESULT OF INITIAL COUNTING
1.Total number of ballot papers that should be found in the ballot box(es) as shown in item 5 of Part I
2.Total number of ballot papers actually found in the ballot box(es) as per initial counting
3.Discrepancy, if any, DATE: __________ Signature of Counting Supervisor.
Signature of the Returning Officer.
34. It is seen from the above Form that it is the duty of the Presiding Officer to give an account of (i) ballot papers received (ii) ballot papers unused (that is not issued to voters) (iii) ballot papers used at the Polling Station (iv) ballot papers used at the Polling Station but not inserted into the ballot box either due to cancellation for violation of voting procedure or due to cancellation for other reasons or used as tendered ballot papers and (v) ballot papers to be found in the ballot box.
35. Part-II of Form 20 is to be prepared by the Counting Supervisor and the Returning Officer and the same is expected to contain an account of (i) total number of ballot papers that should be found in the ballot box (ii) total number of ballot papers actually found in the ballot box and (iii) discrepancy, if any.
36. In the light of the above, it is this Form 20 which holds the key in every case where the number of ballot papers issued does not tally with the number of ballot papers finally collected. But unfortunately, the Returning Officer (successor in Office) failed to produce Form No.20 to clear the air of suspicion about the 19 missing votes. As a matter of fact, he was examined as RW.1. In his chief examination, he filed Form Nos.22, 23, 25 and 10 as Exx. R.1 to R.4, but he failed to file Form No.20.
37. Therefore he was confronted in cross-examination about Form 20. He admitted that only if Form 20 is seen, it could be found out as to how many ballot papers were printed, how many were distributed, how many returned unused and how many were collected from the electors. He also admitted that if some ballot papers went missing, it could also be found out only from Form 20 (since there is a column in Part-II of Form No.20 relating to discrepancy). A suggestion was made to the Returning Officer during cross-examination that 9513 votes were counted, but he answered that he could reply only after seeing Form
20. A suggestion was also made that 19 ballot papers went missing and that they had suppressed the same to assist the returned candidate, but he denied the suggestion. What is worse is the fact that the petitioner also cross examined the Returning Officer and extracted a Statement from the Returning Officer that it is not possible to see if the voter put the ballot paper in his pocket and went out without casting his vote.
38. In view of the fact that Form 20 alone can throw light upon any discrepancy between the total number of ballot papers distributed and the total number of ballot papers ultimately collected after poll and also in view of the admission of the Returning Officer in his cross-examination extracted above, the first respondent (election petitioner) also filed a memo on 29-2-2008 for the production of Form No.20. But, the Returning Officer refused to produce Form 20 on the ground that it is kept in safe custody along with the ballot papers and that the same cannot be produced without an order of Court. Therefore the Court below rejected the memo by an order dated 12-3-2008. The first respondent has not challenged the order dated 12-3-2008.
39. Coming to the question of pleadings with regard to these missing votes, the first respondent/election petitioner has pleaded about the same in paragraph-7. She has also furnished the details in the annexure to the election petition, regarding the number of voters, both male and female, separately from the electoral roll or book. From book Nos.173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186 and 187, the petitioner has extracted the number of female voters and the number of male voters, which total to 9513. In Annexure 'B', the election petitioner has furnished the details of the number of votes polled in favour of the returned candidate and the other three candidates separately, which total to 9494 votes. Thus, the election petitioner has pleaded, to the extent possible for her, sufficient particulars with regard to 19 votes which allegedly went missing. Therefore with regard to these 19 votes, there is some degree of precision in the pleadings.
40. As a matter of fact, all the decisions of the Supreme Court which I have referred to above, dealt with a variety of irregularities in the counting of votes. None of the cases dealt with by the Supreme Court, which we have discussed above, was concerned about a case of missing votes. Therefore the precision that could be expected in the pleadings, of an election petitioner with regard to missing votes, cannot be as razor sharp, as it could be in respect of the other irregularities.
41. But, it may not be sufficient for a Court to order recount for atleast 2 reasons which I shall discuss in the following paragraphs.
42. Reason 1: Assuming that a recount is ordered on the ground that 19 votes are unaccounted for, it is not known as to how a recount will enable the concerned authorities to find out those 19 votes. If the averments contained in the election petition are accepted in total, it would mean that 9513 ballot papers were distributed but only 9494 ballot papers were collected. The annexure 'A' and annexure 'B' to the election petition merely show that 9513 votes were distributed to the electors and the counting produced only a tally of 9494 votes. A recount may not produce a different tally, since as per Rule 51(2) every elector is issued with one ballot paper which contains a serial number. He is supposed to go to the voting compartment, make a mark on the ballot paper and then fold the ballot paper so as to conceal his vote and then insert the folded ballot paper into the ballot box kept for that purpose. Rule 51(4) prohibits an elector from being allowed entry to a voting compartment when another elector is there. All the ballot papers and counterfoils are serially numbered as per Rule 49(3) and issued one by one to the electors. Thus, there is no chance for an elector to receive more than one ballot paper since the ballot papers and the counterfoils are serially numbered and the agents of the contesting candidates are present when ballot papers are issued to the electors. There is also no possibility of two or more ballot papers getting stuck together since each ballot paper is folded before being inserted into the ballot box.
43. Reason 2: In any case, as per Rule 58(4)(a), the Presiding Officer of every polling booth, after the close of the poll, should prepare a ballot paper account in Form 20. Under Rule 58(4)(b), the Presiding Officer should furnish to every polling agent present at the close of the poll, a true copy of the entries made in the ballot paper account attested by him after obtaining a receipt from the said polling agent therefor. Thus, every election agent receives information relating to the ballot paper account immediately after the close of the poll. This ballot paper account prepared under Rule 58(4)(a) relates only to Part-I of Form 20. Part-II of Form 20 is filled up only after the counting of votes is completed, as per Rule 64(2). Rule 64(2) stipulates that after the counting of votes in all ballot boxes is completed, the Returning Officer should have the result of such counting entered in Part-II of Form 20 and it should be signed by the Counting Supervisor and the Returning Officer. The Returning Officer should then make entries relating thereto in a result sheet in Form 22.
44. As we have seen in one of the preceding paragraphs, Form 20 comprises of two parts. Part-I of Form 20 is filled up after the conclusion of the poll and Part-II of Form 20 is filled up after the completion of counting. Rule 58(4)(b) entitles every election agent to have a true copy of Part-I of Form 20. By virtue of Rule 64(2), Part-II of Form 20 is transmitted to Form 22. Therefore even if the Returning Officer fails to produce Form 20, an election petitioner is obliged to produce the true copy of Part-I of Form 20, furnished to his agent as per Rule 58(4)(b). The production of Form 22 in Court compensates for Part-II of Form 20. Unfortunately, the election petitioner did not produce the true copy of Part-I of Form 20 issued to her agent as per Rule 58(4)(b). The Returning Officer filed into Court Form 22 which contains the entries in Part-II of Form
20. Therefore the adverse inference that could be drawn against the Returning Officer and the presumption raised under Section 114 of the Indian Evidence Act, in favour of the election petitioner due to the non production of Form 20 by the Returning Officer, gets whittled down by (i) the failure of the election petitioner to produce the true copy of Part-I of Form 20 furnished to her agent under Rule 58(4)(b) and (ii) the production of Form 22 by the Returning Officer as an exhibit.
45. Therefore even in respect of missing votes, the material produced by the election petitioner is not sufficient enough to order recount. Looked at from another angle, it could be appreciated that a recount could be ordered by the Court only in respect of the votes polled for the election to the post of President, as we are now concerned only with the post of President of the Panchayat. Since the true copy of Part-I of Form 20 is not produced by the election petitioner (despite the entitlement of her agent to the same by virtue of Rule 58(4)(b)) and since what is contained in Part-II of Form 20 is found in Form 22 filed as Ex.R.1, it has to be presumed that even a recount will produce only 9494 votes and nothing more. Probably if the votes polled for the post of President as well as the posts of Members of the Panchayat are all recounted, it may be possible to see if those 19 votes got mixed up with the votes for the Members of the Panchayat. In other words, to locate those 19 votes, it is not enough if a recount is ordered in respect of the votes polled for the post of President. It may be necessary to order a recount of the votes polled for all the posts. Such a recount is not what is contemplated under the Rules. A recount, even if ordered, could be confined only to the particular post in question and it cannot be with respect to all the posts, in order to locate the votes unaccounted for with regard to one post.
46. It must be borne in mind that right from Ram Sewak Yadav case {AIR 1964 SC 1249}, the Supreme Court emphasised the need for secrecy with regard to the ballot papers. Such secrecy can be disregarded in exceptional circumstances pointed out by the Supreme Court. But it could only be confined to the post in question and a recount of the votes polled in respect of all the posts, for the purpose of an enquiry in respect of one post, would negate the principle of secrecy.
47. In any event, the election petitioner did not plead in his election petition that these 19 votes got mixed up with the votes polled in respect of the other posts. Therefore a recount of the votes polled in respect of all the posts, in order to trace the 19 missing votes relating to the post of President is neither legally feasible nor factually warranted.
48. In view of the above, I hold that the Court below ought not to have ordered a recount, on the two grounds on which the first respondent came to Court. Hence, the Civil Revision Petition is liable to be allowed. I have not gone into the other issue as to whether the first respondent/election petitioner actually submitted a petition under Rule 66 asking for a recount, and as to whether a request in writing is essential in the light of the law laid down by the Apex Court in Sohan Lal Vs. Babu Gandhi and Others {2003 (1) SCC 108}.
49. Therefore, in the result, the Civil Revision Petition is allowed and the order of the Court below is set aside. However, there shall be no order as to costs. Consequently the connected miscellaneous petition is closed.
Svn To The Principal District Judge, Virudhunagar at Srivilliputtur.