JITENDRA BAHADUR SINGH versus KRISHNA BEHARI & ORS.

JITENDRA BAHADUR SINGH

KRISHNA BEHARI & ORS.

August 13, 1969

[K. S. HEGDE A:-ID A. N. RAY, ]].]

Election-Pe1ition for setting aside election-Application for scrutiny of bal/oi papers-When can be ordered.

The first respondent, an elector, challenged the election of the appellant to the Lok Sabha. He alleged in£er alia, in the election-petition that : (I) only one counting agent of the. defeated candidate was permitted at each table where three persons were counting simuhaneomly, and hence, it was impossible 'for the counting agent to detect the wrong acts of the counting staff \\·ho had adopted an attilude hostile to the defeated candi-date; and (2) several votes of the defeated candidate were improperly re-jected ignoring the protesls of the election agent cJf. that candidate, while invalid votes and votes of the defeated candidale were counted in favour of the appellant. The Schedule to the petition gave some figures elf such improper rejection and improper acceptance. In the verification to the petition it was stated that the allegations were made on the basis of in-formation received from the \1:orkcrs and the counting agents of the de-feated candidate and that lhe electiOn-petitioner believed the informalion to be correct. It v.•as hov..·evcr not stated in the petition \\[1]ho the workers \vere and what was the basis of their information. 1'o v.Titten objection was filed during the counting, ei1hcr to the acccp1ance or the rejection ell any vote, nor "'as any such application made for recount.

Before the trial of the clcclion-pelition !he elec1ion-petitioner filed an application for permission 10 inspect the packets of ballot papers contain-ing the accepted as \\'Cit as rejected votes of the candida1cs. In the affidavit in !l.Upport of the petition he averred !hat on one of the days df counting. he \\'as the counting agent o·t the defe<'ted candidate arid had personal knowledge of such improper rejection and acccprance. No other affidavit of persons who could have had personal knowledge of the matter \\'as filed.· The High Court allo\\·ed rhe applicJtion and permitted scrutiny solely on the basis of the allegation<; in the election pi:tition and the affidavit in support of the application seeking scrutiny.

Jn appeal to this Court,

HELD : In view of the importance of maintaining the secrecy of the balJot papers, scrutiny can only be ordered if the election-petition con-tains an adequate statement o·( the material facts on v.·hich the petitioner relies, that io;, tire material facts disclosed rnusr afford an adequate hasi.r for the al/egatinns: and, the clec1ion tribunal mu'5t be prima facie satisfied that in order to decide the dispute and to do complete juo;1ice berween the partic~ inspecrion of the ballo1 papers is ncccssJry. {855 G-H; 856 AJ

In the prc'ient case, the High Court stated that it was so satisfied on the mere statement of some figures in the petition and affidavil. It a1so did not give any reason in support of its satisfaction a5 to the need for inspection. (857 G-HJ

( 1) The petitioner had not stated that any o( the counting agents appoinlcd by the defeated candidate or his election agent, in accordance

with the rules, had been refused admission to the place of counting. Therefore, the allegation that enough number of counting agents were not permitted was not supported by any statement o'f material facts. [857 B-C]

(2) Similarly, with regard to the rejection of the votes polled in favour of the de'feated candidate, under the rules, before vote is reject-ed tbe agents of the candidates must be permitted to examine the con-cerned ballot paper, and therefore, the serial numbers of the concerned ballot papers could have been noted. The election petition, however, is silent as to the inspection and notes of the ballot papers and other mate-rial facts such as raising objections and asking for ·recount. [857 C-El

Therefore, the scrutiny of the ballot papers was sought on the basis of mere assertions and allegations which were neither accompanied by statement of material facts nor were they supported by any evidence; and hence, the High Court should have rejected the application for scrutiny. r857 Fl

Ram Sewak Yadav v. Hussain Kami[ Kidwai, [19641 6 S.C.R. 238 and Dr. Jagjit Singh v. Giani Kartar Singh, A.LR. 1966 S.C. 773, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1483 of 1968.

Appeal by special leave from the judgment and order dated May 21, 1968 of the Allahabad High Court, Lucknow Bench in Civil Misc. Applications Nos. 41 (E) and 42(E) of 1968 in Elec-tion Petition No. 7 of 1967.

C. B. Agarwala, V. P. Joshi and S. S. Khanduja, for the appel-lant.

G. N. Dikshit, R. N. Dikshit and 0. P. Saini, for respondents Nos. 1 and 9.

The Judgment of the Court was delivered by

Hegde, J. This appeal by special leave is directed against the order made by Sahgal, J. on May 21, 1968, permitting the 1st respondent, an elector cha1lenging the validity of the election of the appellant to Lok Sabha from 15, Shahabad Parliamentary Constituency in the general election held in 1967, to inspect the packets of ballot papers containing the accepted as wel! as the rejected votes of the candidates .

In the election in question as many as 10 persons coilltested. The appellant, the Jan Sangh nominee was the successful candi-date. The 9th respondent, Shri Nevatia Rameshwar Prasad, the Congress nominee was his µearest rival. In the election petition, the petitioner not only wants the appellant's election to be held void, he also wants that the 9th respondent should be declared elected. The election of the appellant has been challenged on various groll!Ilds, with most of which we are not at present con-cerned. We are only concerned with the a1legations relating to the irregularity in the scrutinising and counting o.f votes. The

averments relating thereto are found in paragraphs 13 and 14 of the electiqn petition. They are as follows :

( 1 ) only one counting agent was permitted at each

table

whereas three persons were doing the counting work simultaneously and it was impossible for one man to look into and detect the wrong acts of three persons at the same time.

U~der this head it was further mentioned that the counting staff was from amongst the government servants who had gone on two months strike before the election and du:ing the elections they had adopted hostile attitude towards the congress candidates and had made efforts to bring about their defeat;

(2) the bundles of votes of either candidates were neither properly made nor properly scrutinised;

(3) about 5,000 votes of the congress candidates were im-

properly rejected ignoring the protests of Mr. Malhotra, the elec-tion agent of the congress nominee;

( 4) invalid votes were counted in favour of the returned

~didate. The votes of the congress candidates were counted for .the returned candidate.

In Sch. 'E' certain figures showing the alleged improperly rejected as well as accepted votes pertaining to certain booths are mentioned. It also shows the number of votes of the con~ress nominee counted as the votes of the returned candidate. Neaher the petitiqn nor the Schedule discloses the basis for arrivin;; at those figures.

The election petitioner is neither the candidate nor his election agent. In the election petition, it was not stated that he was even the counting agent. In the verification appended to the elec-tion petition, it was averred that the allegations contained in para-graphs 12 to 15 of the election petition were believed by the petitioner to be true on the basis of the informatiqn received from the workers of the congress nominee and others which means that the allegations made by him in_ paragraphs 13 and 14 of the elec-tion petition were based on hearsay information. He does not and he could not vouchsafe their accuracy though he claims to have believed the information given to him to be correct. Simi-larly in the verification appended to Sch. 'E', the election petitioner stated that he has given the information contained in that Schedule . On the basis of the information received from the COIUlting agents of the congress nominee. Neither in the election petition nor in the Schedule he mentioned that the counting agents had given him the information in question on the basis of any record made by them.

In the affidavit filed by the petitioner in support of his applica-tion seeking permission to inspect the ballot paper_s, he went one step further. Therein he averred that on one of the days when the counting was going on, he acted as Q\11e of the counting agents for the congress nominee. Hence he claims to have personal knowledge of the rejection of some valid votes and the acceptance of some invalid votes. No, affidavit of either the congress nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed in support of that application. No oral evidence has been taken in the case till now. The returned candidate has denied the allegations referred to ear-lier. It is true that some of the defeated candidates in their writ-ten statements have font support to the allegations made by the election petitioner. The reason for the same is obvious. But even they have not filed any affidavit in support of the concerned allegations. Solely on the basis of the averments made in the elec-tion petition and the facts sworn to in the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial court had issued the impugned direction.

Before proceeding to consider the material in support of the impugned order, it is necessary to mention that it is mot the case of the election petitioner that any written objection had been filed during the counting either to the acceptance or to the rejection of any vote. In the petition, it is averred that "the Returning Officer on being pointed out by the election agent of respondent No. 9, Shri P. C. Malhotra, said his decision was final and can be ques-tioned through Election Petition". Evidently this averment relates to the objections said to have been taken by Shri Malhotra in res-pect of the orders made by the returning officer as to the validity of some of the votes. Apart from the fact that the allegation in question is very vague and lacking in details, not even an affidavit of Shri Malhotra has been filed in support of that allegation. Admittedly no appli9ation was made to the returning officer for recounting the votes. We have to examine the facts of this case bearing in mj,nd these circumstances.The importance of maintaining the secrecy of ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav v. Hussain Kami! Kidwai and ors. (1) and Dr. Jagjit Singh v. Ciani Kartar Sini<h ([2]). These and other decisions of this Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are :

. ( 1) that the petition for setting aside the election must con-tam an adequate statement of the material facts on which the peti-

(1) [1964] 6 S.C.R. 238.

(2) A.T.R. 1966 S.C. 773 .

tioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.

The trial court was of the opinion that if an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures (rom the countin~ agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information ? It is not his case that they maintained any notes or that he examin-ed their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In otlier words they must be such facts as to afford basis for the allegations made in the peti-tion. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule 'E' arc mere allegations and are not mate-rial facts supportin~ those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to point of substance and not of mere form. Unfortunately the trial court has mistaken the form for the subs-tance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.

The learned trial judge while deciding the point in issue over-looked certain important circumstances. The election petition is silent as regards certain important aspects. This omission has bearing on the point to be decided. The allegation that the return-ing officer did not permit the appellant more than one counting agent for each counting table is an extremely vague a!lcgation. It is not the election petitioner's case that the congress nominee had appointed more than one counting agent for any counting table but the returni·ng officer did not accept their appointment. Under s. 47 of the Representation of People Act, 1951, contes•-ing candidate or hls election agent may appoint in _the prescribed manner one or more persons but not exceeding such arnmbcr as may be prescribed by the rules, to be pre.sent as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act pres-cribe the mumber of counting agents that cand:date may appoint. The form of the notice required to be given under s. 47 of the Act is given in the rules. The appointment of the counting agents

J, B. SINGH v. K. BEHAR! (Hegde, J.)

is to be made in the prescribed forms in duplicate, one copy of which is to be forwarded to the returning officer while the other • copy should be made over to the counting agent. Rules also pro-vide that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of the imtrument of !tis appointment a.fter duly com-pleting and signing the declaration contained therein. The peti-B tioner did not state in the election petition that any of the counting I\ agents appointed by the congress candidate or his election agent ' in accordance with the rules had been refused admissi0\11. to the place of counting. .Hence the allegation that the returning officer did not permit enough number of counting agents to be appointed is not supported by lllJ.Y statement of facts necessary to be stated. In other words the material facts relating to the allegations made have not been stated.

Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before vote is rejected the agents of the candidates must be permitted to examine the con-cerned ballot paper. Therefore it was quite easy for them to note down th_e serial number of the concerned ballot papers. The elec-tion petition is silent as to the inspection of the ballot papers or whether the counting· agents had noted down the serial numbers · of those ballot papers Qt whether those agents raised any objection relating to the validity of those ballot papers; iif so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated.

As seen earlier the allegations made in the election petition are purported to have been founded oin the informations given by others. No one takes direct responsibility for those allegations. No oral evidence was given in support of them, not even affidavits were fil.~d in support of the allegations. The scrutiny of ballot papers was sought on the basis of assertions which were neither ac-companied by statement of material facts nor supported by any evidence.

The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that ~n order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did srfy that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. judge can be satis' fled only on the basit of proof and not on the basis of mere allega-tions. There is absolutely no proof in this case to support the alJegatior.s on the basis of w4ich the scrutiny of the ballot papers was prayed for. The trial court did not meintion in its order even single reason in support of its satisfaction as to the need for _

inspecting the ballot papers. Every judicial order must be based on reasons and those reasons must be disclosed in the order itself. Unfortunately the learned trial judge had overlooked the import-ance to be attached to the secrecy of the ballot papers.

Every judicial order must be based

We have earlier referred to the principles enunciated by this Court to be followed before ordering the scrutiny of bailot papers. The legal position in England is the same as in this country. In fact our election law is patterned on the basis of the English Elec-tion Law. In Ha/.sbury's Laws of E11g/a11a ( Vol.14 at page 310, paragraph 559), it is observed :

"The usual practice is for an application. for re-count to be made by summons to judge oh the rota for the trial of parliamentary electio!l petitions before the trial on an affidavit showing the grounds on which the application is based. r~count is not granted as of right, but on evidence of good grounds for believing that there has been mistake on the part of the return-ing officer."

In Rogers on Elections (Vol. II at p. 199) it is observed that an application for recount should be made by summons supported by affiidavits showing growi'<ls. Fraser in his Law of Parliamentary Elections and Election Petitions observes at p. 222 :

"A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counterfoils".

Even before the Representation of the People Act, 1951 wa' enact-ed the law in this country relating to inspection of ballot papers was as stated earlier. The election tribunals in this country have refused to permit the scrutiny of ballot papers unless there was prima facie evidence in support of the allegations made in the election petition-see Tanjore, N.M.R. (Hammond's Election Cases 673); Punjab North Case (Hammond's E/ectio11 Cases 569). Karna/ Mohammadan Constituency Case (2 Doabia 235); Kamal (South) General Comtituency Case (2,Doabia 80); Chingleput Case (Ham-mond's Election, Cases 307); see also R. Swaminath's Case (2, E.L.R. 51); Seshaiah v. Kati Reddi (3, E.L.R. 39) and Laks/1u-manayya v. Rajam Aiyar (58 M.L.J. 118).

For the reasons mentioned above we allow this appeal and set aside the order made by the ]earned trial judge. He will now pro-ceed with the trial of the case in accordance with Jaw. The !st res-pandent, the election petitioner shall pay the costs of the appellant m this appeal.

Appeal allowed.