B.D. Singh, J.
1. This application has been filed by the sole petitioner, Bishundeo Narain Singh, under Articles 226 and 227 of the Constitution of India, against an order dated the 22nd July 1970 (Annexure ‘2’) passed by the Election Tribunal (respondent No. 5) directing the recounting of ballot papers with reference to the marked copy of the electoral rolls.
2. The petitioner along with respondents Nos. 1 to 4 contested for the election of Mukhiya of Katahan Gram Panchayat in the district of Champaran. In the said election, the petitioner was declared as elected. Thereafter Babu Lal Sah (respondent No. 1) filed an election petition before the Election Tribunal (Respondent No. 5) challenging the validity of the election of the petitioner. Subsequently, respondent No. 1.
also filed a petition on the 8th July 1970, (Annexure 3) before respondent No. 5 praying for recount and rescrutiny of rejected votes at all the polling booths and recount and re-scrutiny of the votes which the petitioner secured at polling booth No. 3. After hearing the parties as well as examining the evidence of some of the witnesses adduced on behalf of respondent No. 1, the Election Tribunal passed the impugned order (Annexure ‘2’).
3. Mr. Karuna Nidhan Keshava, learned Counsel appearing on behalf of the petitioner, contended that the said order of the Tribunal was bad as it was not founded on adequate evidence. According to him, it did not apply its mind before passing the order for inspection and rescrutiny of ballot papers. He urged that the Tribunal has violated the well established principles of maintaining the secrecy of ballot papers. In order to substantiate his contention he relied on a decision of the Supreme Court in the case of Ramsewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 wherein their Lordships have observed that a Tribunal would be justified in granting an order for inspection provided two conditions are fulfilled:–
“(i) That the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary.”
Learned Counsel also referred to another decision of the Supreme Court in Dr. Jagiit Singh v. Giani Kartar Singh, AIR 1966 SC 773 where their Lordships were considering the provisions of Sections 83 and 92 of the Representation of the People Act regarding the inspection and scrutiny of ballot papers. Their Lordships also reiterated the principles laid down in AIR 1964 SC 1249 (Supra) and observed that “it may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but, in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving inquiry in the ballot boxes so as to justify their claim that the returned candidate’s election is void”. Their Lordships further held that “an application
made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting”. In my opinion, their Lordships have not laid down the general principles of law, as it may be seen, that in Jagjit Singh’s case their Lordships themselves have said that no hard and fast rule can be laid down in this matter; for, attempt to lay down such a rule would be inexpedient and unreasonable. Besides, in a Full Bench decision of this Court in Rasik Lal Yadav v. Bhola Prasad Mandal, 1970 BLJR 96 = (AIR 1971 Pat 10), their Lordships while dealing with the provisions contained under the Representation of the People Act, had the occasion to refer to the judgment in AIR 1964 SC 1249 (Supra), which is on the same line of the case, in AIR 1966 SC 773 (Supra). G. N. Prasad, J., who delivered the judgment in court in Rasik Lal Yedav’s case, considered this aspect of the matter, the relevant portion of which reads as follows:–
“The alternative contention which learned Counsel for the petitioner has put forward before us takes its colour from the provisions of the Representation of the People Act, 1951, under which an order for inspection of ballot papers would not be justified unless two conditions are satisfied; (i) that the election petition contains an adequate statement of the material facts upon which the election petitioner relies in support of his case, and (ii) that the court is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, it is necessary to hold an inspection of the ballot papers. But I do not think that the legal position is similar so far as an election petition under the Bihar Panchayat Election Rules is concerned. While it is true that an Inspection of ballot papers cannot be ordered as a matter of course and every effort must be made to maintain the secrecy of the ballot papers, all that is necessary to justify a scrutiny and recounting of the ballot papers is that the Election Tribunal must, in the circumstances of the case before it, feel satisfied that complete justice cannot be done between the parties unless a recount Is held. Such satisfaction may be obtained by the Tribunal not merely from the evidence adduced before it, but also on the basis of the conduct of the parties………”
In C. W. J. C. No. 564 of 1970 (Ram Narayan Yadav v. Gariba Yadav) decided on 5-8-1971 (reported in AIR 1972 Pat 164), I had also considered all the cases referred to above, and held therein that the order of the Election Tribunal must show that it had applied its mind. In that case also there was evidence and material to indicate that the Election Tribunal had in fact, applied its mind. Therefore, relying on Rasik Lal Yadav’s case I hold that the order of the Election Tribunal for inspection and recount of ballot papers was justified. Learned Counsel for the petitioner however, relied on a decision of this Court in Chandrika Tiwary v. Thakur Roy, 1970 Pat LJR 529 wherein K. B. N. Singh, J. in paragraph 4 at page 531 has observed that although, recently, a Full Bench of this Court in Rasik Lal Yadav’s case has taken the view that re-counting can be ordered by the Election Tribunal in respect of Gram Panchayat election, it has to be pointed out that ordering recounting of ballot papers is not the rule. It is still an exception and a proper case has got to be made out for ordering recounting. His Lordship observed that in that case the Tribunal was in error in ordering recounting as it appeared from the order of the Tribunal. In my view, since in that case the order of the Tribunal indicated that it had passed the order for inspection and recount of the ballot papers mechanically without applying its mind, his Lordship set aside the order of the Tribunal. But in the instant case. I find that the Election Tribunal (respondent No. 5) has applied its mind and has also considered some evidence adduced on behalf of respondent No. 1 before passing the impugned order. In the order itself, it made clear that in that case, the recounting and inspection of ballot papers were necessary in the ends of justice. It would be useful to quote that portion of his judgment, which runs as follows —
“I am inclined to agree with the stand of the petitioner that for proper determination of issues involved in this case and for effectual trial there should be inspection of polled ballot papers including those rejected for recount. Unless this is done correct appreciation of facts alleged in the case shall not be made ……………”
“……… On considering the evidence adduced so far I am, therefore, inclined to hold that inspection and recount of the polled ballot papers are necessary in
this case to arrive at a correct decision on the grounds alleged by the petitioner. If in this process the secrecy of votes is divulged there is nothing to take an alternative course to determine the issues involved.”
Learned Counsel for the petitioner submitted that no evidence was adduced on behalf of respondent No. 1 as to the persons who did not cast their votes and who personated on their behalf or cast bogus votes and whether such votes were really cast on their behalf. He also contended that the Tribunal has made certain inferences from the evidence which was adduced on behalf of respondent No. 1. In my opinion this submission of learned Counsel is not correct; for example, I will refer to the evidence of P. W. 3, which the Tribunal has discussed in the order. P. W. 3 stated in his evidence that he had not cast his vote in the Panchayat election in question. Therefore, it has to be found out whether somebody else personated him while casting vote, as P. W. 3 specifically stated that he did not exercise his vote. Hence it was necessary in the ends of justice to inspect the ballot papers with reference to the marked copy of electoral rolls. In my view while sitting in writ jurisdiction I cannot examine the evidence of witnesses like an appellate court.
4. He then also submitted that in Rasik Lal Yadav’s case there was no occasion for recount of the ballot papers with reference to the marked copy of the voters list as in the instant case. That may be so, but their Lordships have not laid down that if there is such an occasion, there should be no order for recount of ballot papers. Emphasis in the Rasik Lal Yadav’s case Is that by reading the impugned order. It must show that the Election Tribunal applied its mind to the materials on the record before passing the order for inspection and recount of the ballot papers, and the impugned order must show that the tribunal considered that the orders for the inspection and recount of the ballot papers were necessary in the ends of justice. In the instant case, as mentioned earlier, it is amply clear that respondent No. 5 applied its mind to the materials on the record and it has mentioned clearly that it was satisfied that in the interest of justice it was necessary that there should be Inspection of the ballot papers with reference to the marked copy of electoral rolls for deciding the issues involved in the case before it. I do not find any flaw in the impugned order on the points raised by learned counsel for the petitioner,
5. In the result the application is dismissed and the order dated the 22nd July 1970 (Annexure ‘2’) passed by respondent No. 5 (the Election Tribunal) is affirmed. In the circumstances of the case, there will be no order as to costs.