Bombay High Court
Mrs. Filomena Guilherme Furtado vs Depty Collector And Sub-Divisional ... on 25 April, 1995
Equivalent citations: AIR1996BOM32, AIR 1996 BOMBAY 32
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
ORDER Chandrashekhara Das, J.
1. The petitioner and the respondent No. 2 were the candidates for the Village Panchayat elections in the villages of Merces held on 29-10-1991 in Ward No. 6. There were only these two contestants in that ward. The petitioner got 157 votes and the 2nd respondent got 15 votes and with the margin of 1 vote the 2 respondent was declared elected. The while the counting was going on, the Returining Office rejected 4-ballot paper on the ground that the votes recorded therein were void for uncertainty. Accordingly to the petitioner, out of these 4 votes, 2 votes which were voted in favour of the petitioner, were voted in favour of the petitioner, were wrongly rejected by the Returning Officer as the marking of the seal was overlapping a little the borderline of the ballot paper. He contended that the major portion of the seal was in the column signifying his candidature. The petitioner then field election petition before the 1st respondent. On behalf of the 2nd respondent a preliminary objection was raised before the 1st respondent on the ground that the petition did not contain material particulars. The preliminary objection was heard in detail by the 1st respondent and by Order dated 27-81992 the objection raised by the 2nd respondent was sustained and the election petition field by the petitioner was rejected. It is thus that the petitioner proached this court under Article 226 and 227 of the Constitution of India.
2. The learned counsel for the petition has taken us in great detail to the election petition and argued that the election petition contains several material particulars necessary for deciding the disputes involved in that case. On the other hand, the counsel for the 2nd respondent has argued that the necessary material particulars are lacking and in view of the consistent decisions of the various High Court and the Supreme Court, the rejection of the petition for want of sufficient material by the 1st respondent was justified.
3. Threfore, the shot question to be decided in this case is whether sufficient materials are contained in the petition for which a close scrutiny of the petition and the dispute involved therein may be necessary. Before embarking upon this main task, we have to examine the main scope and definition of the 'sufficient materials' as laid down by the various High Court and the Supreme Court as cited at the Bar. In support of his contention the counsel for the petitioner has argued that his prayer in the petition is to re-count the ballot papers. The 1st respondent has sustained the paramilitary objection raised by the 2nd respondent on the ground that the material particular, namely, the numbers of the ballot papers required to be re-counted was not furnished. The learned counsel for the petitioner refuted this contention by citing the decision of the Supreme Court in Km. Shardha Devi v. Krishna Chandra Pant, . It was a case of election to Rajasabha. In paragraph 8 of the judgment the Supreme? Court says:
"When the a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount be can be ordered ...."
He cited another decision of Chanda Singh v. Ch. Shiv Ram Varma, . In head note (A) it is stated:
"... Of course, even if the difference be more than microscopic, if there is a serious flow or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistake is a fair exercise of power."
After citing this decision in support of his case, the learned counsel led us to the details of the pleadings contained in this election petition in paragraph 5, 6 and 7.
4. The next attempt therefore on our part is to examine whether the above particulars will be sufficient to maintain an election thershold. When various decision were cited before us by the counsel for the respondent it is profitable to examine a few of them relevant to the context namely in Jitendra Bahadur Singh v. Krishna Behari, and Azhar Hussein v. Rajiv Gandhi . Jitendra Bahadur v. Krishna Behari (supra) is a decision relied on by the Administrative Tribunal, the Appellate Authority in support of its conclusion that the material particulars have not been furnished by the petitioner. The aforesaid decision laid down that in order to maintain an application for setting aside an election, the basic requirement to be satisfied before an Election Tribunal is that it should contain detailed statement of material facts on which the petitioner relies in support of his case.
5. In P. K. K. Shamsudeen v. K. A. M. Mappillai Mohindeen, , it is stated in para 15 :
"......an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recounts is made and not from the results emanating from the recount of votes."
It is further stated in para 13:
".................the justification for an order for examination of ballot papers and recount of the 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 the 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 the is prima facie genuine need for it".
6. In Azhar Huasain v. Rajiv Gandhi (supra) in para 11, the Supreme Court stated:-
"In the context of a charge of corrupt practice if would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the case. All the fact which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of section 83(1)(a)".
7. Bearing in mind all the decision of the apex Court to the points, a learned single judge of the Kerala High Court in Balaram v. Aravindakhan, a decision reported in (1988) 1 Ker LT 615 states in para 10 of the judgment thus:-
"A whimsical and bald statement of the candidate that the he is not satisfied with the counting is not sufficient. All the material fact on which the allegations of irregularity or illegality in counting are founded should be pleaded adequately and the court trying the petition must be prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and do complete and effectual justice between the parties Beliram Bhalaik v. Jai Beharilal Khachi . What are the material facts is the then question. All primary facts which must be proved at the tiral by a party to establish the existence of a cause of action or his defence are material fact. Material fact would mean all the basic facts constituting the ingredients of the particular cause of the action the party is bound to establish before Court in order to succeed in that cause of action . Undahav Signh v. M. R. Scindia, Whether a particular fact is material or not and as such required to which pleaded and proved or not is a question which depends upon the nature of the challenge levelled, the grounds relied on and the special circumstances of the case. Several primary or material basic facts may be available to a party to establish a cause of action."
8.Now let us examine the adequacy of inadequacy of the pleading contained in this petition. As we pointed out earlier the material portion of the pleading are in paras 5, 6 and 7 of the election petition before the Deputy Collector. Goa North Division at Panaji which read as follows:-
"5. After the ballot papers were opened for the counting, valid and ballot papers were separated in purported pursuance of Rule 48 of the Goa, Daman and Diu Village Panchayat Election Rules. There were four doubtful ballot papers which were submitted to the Returning Officer for decision. The Returning Officer apparently has not recorded any statement of reasons for rejection though the did not take them for counting and declared the respondent No. 1 as elected for having secured one vote over and above the votes secured by the petitioner.
6. In terms of Rule 51 of the Election Rules the petitioner though her counting agent namely Shri Nelson Pires sought for a recount of the votes by an application in writing, which was rejected, apparently on the ground that the agent had no locus standi. The reasons however, recorded by the respondent No.2 were not disclosed to the Returning Officer.
9. For the fact and circumstances of the case the petitioner is entitled for the recount of all the ballot paper including valid, invalid and or invalid and the verification thereof."
9. In these paragraph one of the allegations of the petitioner was that 4 ballot papers were rejected. His objection was that out of the 4-ballot paper, two of them ought not to have been rejected by the Returning Officer. On going through the pleading, it is clear that the 4 invalid ballot paper which were separated by the Polling Officer and submitted to the Returning Officer, the Retuning Officer then has not recorded nay statement of reason for rejection of the ballot paper though the he has not taken them for counting. Therefore it is clear from the pleadings that the Returning Officer has not given the polling agents any opportunity to express their opinion about the validity or otherwise of the four rejected ballot paper, in spite of fact that election agent and had requested for recount of votes. The assertion made in the petition by the petitioner is that out of the 4 ballot papers rejected, two of them ought not to have been rejected. This is the main point of dispute involved in this petition. This averment cannot be termed as whimsical or bald. This issue could be resolved if the 4 ballot papers which were declared invalid could be scrutinized by the Dy. Collector . It is not dispute that only 4 ballot papers were rejected that were separately packed. Therefore, merely because the non-mentioning of numbers of ballot papers rejected cannot be taken as a ground for dismissing the election petition on a preliminary objection raised by the respondent we cannot agree with the observation of the Deputy Collector that the names of the counting offices and the details and numbers of the ballot paper to be ordered for recounting are constituting the material facts in order to decide the question involved in this case. According to us the material fact required for ordering a recount on the election petition being taken up for trial has been supplied by the petitioner.
10. The counsel for the respondent next argued that even if this court is satisfied that there are material facts to go on with the election petition, the ultimate result would be recounting which is very sparingly and rarely allowed by the Election Tribunal because the secrecy of the ballot paper will be in jeopardy and it has to be considered as most sacrosanct in the process of election law. No doubt, there is no quarrel with this proposition. But if an illegality has been proved to have been committed in the election that definitely out weighs the secrecy of the ballot paper. Merely because to maintain the secrecy in an illegality cannot be condoned, the Supreme Court in a recent decision in Neelalohithadasan Nadar v. Grorge Mascrene, a decision reported in (1994) I 1Ker LT 887: (1994 AIR SCW 2198), a three judges Bench of the Supreme Court held in para 10:-
"The existence of the principle of "secrecy of ballot" cannot be denied. It undoubtedly is an indispensable adjunct of free and fair election. The Act statutorily assures a voter that the he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear of favour and free any apprehension of its discloser against the his will form his own lips".
In para 11 it was observed:-
"In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process".
Then in para 13 it was observed:-
"The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validity 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 beforehand the records but after the framing of the requisite issues arising from the pleadings so the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for recount. We are thus of the view of the that the High court committed to error in permitting such inspection in the facts and circumstances".
11. Going by the guiding principle laid down by the supreme Court in the above decision, a mare inspection of invalid ballot paper, that too only 4 in number, could resolve the issue and the learned Deputy collector could decide whether the rejection of the ballot paper was justified or not. It is illegal on his part to reject the election petition at the threshold on the face of the preliminary objection raised by the respondents. In view of the Supreme Court pronouncement in N. Nadar's case (1994 Air SCW 2198) we have no hesitation to hold that the necessary no hesitation to hold that the necessary particulars required for taking a decision by the Deputy Collector was supplied by the petitioner in the election petitioner in the election of the election petition at the threshold on the ground of preliminary objection raised by the respondents without necessary particular being furnished, namely the number of the ballot paper is not legal and proper. Therefore, we hold that the order of the Deputy Collector dismissing the application of on the preliminary ground is liable to be set aside and we do so.
12. Lastly, the petitioner counsel argued that since the provision of the Civil Procedure Code is not made applicable to the election petition under the Goa, Daman and Diu Panchayat Raj Act, the dismissal of the election petition at the threshold raising a preliminary objection petition under the Goa, Daman and Diu Panchayat Raj Act is not governed by the provisions of Civil Procedure Code whereas the election petition under the Representation of the People Act the provision of Civil Procedure Code are applicable. By virtue of the relevant provisions in the C. P. C. though an issue can be heard as a preliminary issue and decide the matter at the threshold, but at the same time, when the provisions of the C.P.C. do not apply, this procedure is uncalled for. However, we do not decide this question in this case as we can dispose of this petition on other grounds which are already mentioned abvoe. However, the question whether election petition under the provisions of the Goa, Daman and Diu Panchayat Raj Act can be disposed of by raising a preliminary objection without going through the entire trial is a question to be left open. We do not propose to express our opinion regarding this point in this petition.
13. In the result, we allow the writ petition and set aside the order passed by the Deputy Collector dated 27th August, 1992 and remand the matter back with a direction to proceed with the petition and decide it according to law, within three months position .
In the circumstances of the case, there shall be no order as to costs.
14. Petition allowed.