PETITIONER:
RAM AUTAR SINGH BHADAURIA
Vs.
RESPONDENT:
RAM GOPAL SINGH AND OTHERS
DATE OF JUDGMENT31/07/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1975 AIR 2182 1976 SCR (1) 191
1976 SCC (1) 43
CITATOR INFO :
D 1976 SC2184 (20)
E 1980 SC 206 (23)
RF 1980 SC1362 (33)
D 1990 SC 838 (10)
ACT:
Representation of the People Act, 1951-Sec. 97,
100(1)(d)(iii)-Conduct of Election Rules 1961-Rule 38 and
56-General recount and inspection when to be allowed-
Recriminatory pleas.
HEADNOTE:
The appellant and respondent no. 1 and other candidates
contested the election from U.P. Legislative Assembly
Constituency (No. 293), Sarsaul. The appellant secured 23626
votes and respondent no. 1 polled 23604, the margin being of
22 votes only.
Respondent no. 1 filed an Election Petition challenging
the election of the appellant inter alia on the ground that
the result of the election so far as the returned candidate
was concerned was materially affected by improper reception
and rejection of votes and mistakes in counting. It was
alleged that 41 ballot papers were rejected on the ground
that the electors' choice was expressed through the
instrument meant for the Presiding officer for stamping on
the reverse side of the ballot papers. the particulars of
those ballot papers were given in Schedule annexed to she
Election Petition. It was further alleged that some ballot
papers were issued along with the counter foil and were
therefore rejected. The appellant in his written statement
denied the allegations and stated that the result of the
election was not materially affected. Respondent no. I did
not adduce any evidence in support of his allegations
mentioned above but made an application before the High
Court for scrutiny and recount of the ballot papers. The
High Court allowed the application and directed scrutiny and
recount of ballot papers on the following grounds:
(a) The appellant woo by a very small margin of 22
votes
(b) It was not disputed that a number of ballot papers
were rejected because the polling staff forgot to detach the
counter-foils on a number of ballot papers.
(c) It is also the admitted case or the parties that a
number of ballot papers were rejected because the voters
cast their votes by putting their mark not with the marking
instrument issued by the Election Commission but with the
marking or stamping instrument issued for the use of the
Presiding officers.
(d) lt is clear from the petition, written statement
and recriminatory petition filed by the respondent that both
parties pleaded that there was wrong reception rejection and
counting of votes.
The appellant filed an appeal by special Leave against
the said order of the Appellate Court.
Allowing the appeal ,
^
HELD : (1) The returned candidate had not
categorically and specifically admitted the allegations
made in the Election Petition with regard to the improper
rejection of the ballot papers. [195F-G]
(2) Since the appellant did not admit the allegations,
the court could not dispense with proof of those facts
altogether. [196A-C]
(3) The Additional pleas set up in the written
statements were irrelevant to beyond the scope of the
enquiry into the allegations in the Election Petition
falling under s. 100(1)(d)(iii) of the Representation of the
People Act, 1951. These Additional pleas were in the nature
of recriminatory pleas
192
which could not be investigated in this Election Petition.
The scope of the enquiry is limited for the simple reason
that what the clause requires to be considered is whether
the election of the returned candidate has been materially
affected and nothing else. [197C-F]
(4) The pleas of the returned candidate under s. 97
have to be tried after declaration has been made under s.
100 of the Act. [197F-G]
The learned judge as in error in ordering general
inspection and recount of the total votes polled at the
election, merely because in these Additional Pleas the
returned candidate also had by way of recrimination,
complained of wrong reception and rejection of votes and
wrong counting of votes. [198B-C]
The High Court failed to apply its mind to the
question, whether if the facts alleged in the petition were
assumed to be correct-a prima facie case for improper
rejection of the so ballot papers-was made out. Rule 38 of
the Conduct of Election Rules, 1961, requires every ballot
paper and the counter- foil attached thereto to be, stamped
on the back by the Presiding officer with such
distinguishing mark as the Election Commission might direct.
Rule 56 requires every elector to whom ballot paper has been
issued to maintain secrecy of voting and making a mark on
the ballot paper with the instrument supplied the purpose by
the Election Commission. The object of these rules is to
secure not only the secrecy of the ballot but also to
eliminate chances of sharp practices in the conduct of
election. The requirements, are, therefore. mandatory and a
defect arising from their non-observance inexorably entails
rejection of the defective ballot papers. [198D-F; 199G-H]
The High Court had to apply its mind as to whether
these facts by themselves were sufficient to attract rule
56. The High court had also to apply its mind as to whether
the facts alleged in the petition, if correct, would fall
within the mischief of rule 56. [200B; 202A-B]
Times out of number, this Court has pointed out that a
general scrutiny and recount of the ballot papers should not
be lightly ordered. Before making such as extraordinary
order, the Court must be satisfied that all the material
facts. have been pleaded and proved and that such a course
is imperatively necessary in the interests of justice. In
the present case. there was no foundation in the petition
for ordering a general recount. Nor could the Additional
Pleas in the written statement of the returned candidate be
taken into account for making an order for general
inspection of the ballots [202C-E]
The order of the High Court was set aside. [203B]
The High Court was directed to decide the questions
mentioned in this judgment and, thereafter, decided the
application of the Respondent no. 1 for recount of the
specific ballot papers [203B-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 783 of
1975.
Appeal by special leave from the judgment and order
dated the 9th April 1975 of the Allahabad High Court in
Application No. A. 7 ion Petition No. 22 of 1974.
R K. Garg, S. C. Agarwala and V. J. Francis, for the
appellant.
D. Mukherjee and Pramod Swarup, for respondent No. 1.
The Judgment of the Court was delivered by
SARKRIA J. We have already announced our order in this
appeal on the 2nd May 1975. We now proceed to give our
reasons therefor.
193
The appellant, Shri Ram Autar Singh Bhadauria.
Respondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2
to 11 contested election, as rival candidates from U. P.
Legislative Assembly Constituency (No. 293), Sarsaul. The
poll was held on 24-2-1974. The appellant was declared
elected. The total number of votes polled was 72735. Out of
these, the appellant secured 23626 and Respondent 1, his
nearest rival polled 23604, the margin being of 22 votes
only.
Respondent 1 filed an election petition challenging the
election of the appellant inter alia on the ground (vide
para 9(1) of the petition) that the result of the election
so far as the returned candidate was concerned materially
affected by improper reception and rejection of votes and
mistakes in counting. It was alleged:
“para 11(a). That in a number of polling stations,
the instruments supplied to the electors for the
purposes of stamping on or near the symbol of the
candidate to whom he intends to vote, was seal of
Presiding officer which was meant to be put on the
reverse of the ballot papers. Since the electors were
supplied these instruments by the Presiding officer for
marking the ballot papers the electors indicated their
choice by marking in the column of the petitioner with
that instrument. There were 41 such ballot papers which
were clear votes for the petitioner that were illegally
rejected by the Presiding officer on the ground that
the electors’ choice was expressed through the
instrument meant for the Presiding officer for stamping
on the reverse side of the ballot papers. Particulars
of such ballot papers are given in Schedule I attached
to the Election Petition.
(b) That in a number of polling stations, the
electors were issued ballot papers along with the
counter-foil. While issuing the ballot papers to the
electors, the polling staff . deputed there did not
detach the counter foil and the electors after putting
seal mark put the ballot papers along with the counter
foil in the ballot box. It was due to the mistake of
the staff deputed at the polling station. The number of
some of such ballot papers are-100976, 100977, 100978,
100979, 100980, 100982, 100983 and 100984. These ballot
papers clearly indicate the votes for the petitioner
but they were illegally rejected on the ground that the
identity of the elector can be established. The reason
on which it was rejected was wholly illegal. The
particulars of such bal lot papers are given in
Schedule IT attached to this election petition.”
In his written statement, the successful candidate
stated:
“65(1). That the contents of paragraph No. 9(1) of
the Election Petition are not admitted. The result of
the election in so far as the answering respondent is
concerned has not been materially affected by any
improper reception or
194
rejection, or by wrong arithmetical and clerical
mistake in counting of votes and/or counting and
acceptance of void votes in favour of the answering
respondent. In fact no improper reception or rejection
or arithmetical mistake or any clerical mistake was
done in favour of the answering respondent
16. That the contents of paragraph No. 11 (a) of
the petition are wrong and denied. It is wrong to say
that 41 ii ballot papers mentioned in Schedule I or any
ballot paper counted in favour of the respondent No. 1
by marking with the seal of the Presiding officer. It
is admitted that the ballot papers on which
unauthorised seal was found were rejected. Some of
these rejected ballot papers may be of the petitioner
but most of them were of respondent No. 1 and other
contesting candidates.
17. That the contents of para 11 (b) of the
petition and Schedule II are not admitted as stated.
Only on one polling station, due to the mistake of the
Presiding officer some bal lot papers were issued along
with their counter-foils. The counterfoils did contain
the name and signature or thumb impression of the
voters attached to the ballot paper. In these
circumstances such ballot papers were rejected by the
Returning officer. It is submitted that such ballot
paper were in respect of all the candidates including
the respondent No. 1.
Further, no such objection was raised at the time
of counting by the Petitioner or his election agent
and/or his counting Agent.
56. That no different criteria was adopted by the
Returning officer in the matter of acceptance or
rejection of ballot papers and the respondent No. 1
maintains that many ballot papers in which the Electors
expressed their choice in favour of the respondent No.
1 by putting the seal of the Presiding officer as
supplied by the Presiding officer, were wrongly
rejected during the counting by the Returning officer.”
Respondent 1 did not adduce any evidence in support of
the allegations extracted above. But on 24-2-1975, he made
an application before the High Court, praying for scrutiny
and recount of the ballot papers. The allegations in para
11(a) and (b) of the election petition were reiterated in
the application. The appellant in reply filed a counter-
affidavit which was substantially a reproduction of his
reply in the written statement.
The learned Judge of the High Court by his order, dated
9-4-1975, allowed that application and directed scrutiny and
recount of ballot papers on the view that:
(a) The appellant “was declared to have won by a
very small margin of only 22 votes”.
195
(b) “lt is not in dispute that a number of ballot
papers were rejected by the Returning officer
as invalid be cause the polling staff of a
particular polling station forgot to detach
the counter-foils of a number of ballot
papers. As the counter-foils contained the
identity of the voters, the ballot papers
were rejected for no fault of the voters, but
because of negligence or incompetence on the
part of the polling staff”.
(c) “It is also the admitted case of the parties
that a number of ballot papers were rejected
because the voters cast their votes by
putting their mark not with the marking
instrument issued by the Election Com mission
but with the marking or stamping instrument
issued by the Election Commission for the use
of the Presiding officers. This happened
because instead of the instrument which the
polling staff should have given to a voter to
put the mark showing for which candidate he
wanted to vote, the polling staff by mis take
handed over to the voter the stamp meant for
the Presiding officer.. to affix on the back
of the ballot paper.”
(d) lt “The petition, the written statement, the
recriminatory petition filed by the
respondent (now appellant) and the reply
thereto filed by the petitioner would show
that this is a case in which both parties
have pleaded that there was wrong reception,
rejection and u counting of votes.”
It is against this order, dated 9-4-75 of the High
Court that this appeal has been filed by the returned
candidate after obtaining special leave.
Having heard learned Counsel on both sides, we are or
opinion that the order made by the High Court for a general
scrutiny and re count of all the ballot papers cast at the
election, was not justified.
The returned candidate had not categorically and
specifically admitted the allegations made in the election
petition with regard to the improper rejection of the
ballot-papers. This will be clear from a comparative reading
of Paragraph 11 (a) and (b) of the petition and the answers
thereto given in the written statement, which have been
reproduced above verbatim. It is to be noted that the reply
of the returned candidate to the contents of the aforesaid
sub-paras (a) and (b) starts with a denial or a non-
admission. Such a traverse is then followed by qualified and
vague admissions that some ballot-papers were rejected
because they were not marked with the instrument meant for
this purpose, or bore the names or signatures of the voters
on the counter-foils that remained attached to them, owing
to the mistake of the Presiding Officer. After having thus
replied to the petitioner’s allegations, the returned
candidate said that most of these rejected
196
ballots had been cast for him and not for the petitioner.
This was a counter-assertion which was not, strictly
speaking, relevant to the case set up in the petition.
Mr. Mukherjee, learned Counsel for Respondent 1
(election-petitioner) has drawn our attention to the
“Additional Pleas” in the written statement of the
appellant. According to Counsel it were these pleas, more
than anything else, that led to the finding “that this is a
case in which both parties have pleaded that there was wrong
reception, rejection and counting of votes.”
We will discuss this aspect of the case a little later.
At this place it will be sufficient to say that since the
returned candidate in his written statement did not
specifically and fully admit all the facts alleged in
Paragraph 11 (a) and (b) of the petition, the Court could
not dispense with proof of those facts altogether. For
instance, in reply to the facts alleged in Para 11 (a) of
the petition, the returned candidate did not admit that the
instrument with which such rejected ballot papers were found
stamped, was supplied by the Presiding officer. On the
contrary, the reply to sub-para (a) begins with a clear
traverse: “that the contents of paragraph No. 11 (a) of the
petition are wrong and denied”. This denial notwithstanding,
the learned Judge appears to have erroneously assumed this
fact as admitted by the returned candidate. The parties
being at variance on this material point, this issue of fact
was required to be proved by the party alleging lt.
Now, we come to the finding of the learned Judge as to
the wrong reception and rejection of votes being a common
ground between the parties. We have catalogued this finding
as ground (b) which is one of the four pillars on which the
impugned order rests. This ground, according to Mr.
Mukherji, draws particulars support from the “Additional
Pleas” set up in the written statement. We do not propose to
over-burden this judgment by reproducing all that has been
stated in Paragraph 47 to 56 of the written statement under
the caption “Additional Pleas”. It will be sufficient to
extract some of it by way of sample :
“47. That the Returning officer did not allow any
improper acceptance or rejection against the interest
or the election-petitioner, rather mistakes of improper
acceptance and rejection of ballot papers were done
against the interests of the answering respondent.
49. That many ballot papers which bore the major
portion of the stamp mark within the column of the
Respondent No. 1 were wrongly rejected by the Returning
officer at the time of counting.
50. That as in the case of the Election-Petitioner
the Ballot Papers in favour of the Respondent No. 1
with which counterfoils were attached were rejected. In
case the Hon’ble Court finds that similar ballot papers
in favour of
197
the election petitioner are to be accepted, the ballot
papers in favour of the Respondent No. 1 in the same
condition should also be accepted and counted as valid
votes in favour of the Respondent No. 1.
51. That many ballot papers containing votes in
favour of the Respondent No. 1.. were wrongly put in
the bundles of the votes in favour of the Election
Petitioner.
53….. That the bundles of ballot papers in
favour of the Respondent No. 1 in fact contained more
than SO ballot papers and there was thus wrong
counting……
I say that the Respondent No. 1 filed application
before the Returning officer on 27-2-74 but the
Returning officer without considering the submissions
made therein rejected it and did not order for
recount.”
If we may say so with respect, in taking these
Additional Pleas into account, the learned Judge completely
misdirected himself. He overlooked the fact that these Pleas
were irrelevant to and beyond the scope of the enquiry into
the allegations in the election-petition falling under s.
100(1)(d)(iii) of the Representation of the people Act,
1951. These “Additional Pleas” were in the nature of
recriminatory` pleas which could not be investigated in this
election petition. As clarified by this Court in Jabar Singh
v. Genda Lal(1), the scope of the inquiry in a case under s.
100(1) (d) (iii) is to determine whether any votes had been
improperly cast in favour of the returned candidate or any
votes had been improperly refused or rejected in regard to
any other candidate. These are the only two matters which
would be relevant for deciding whether the election of the
returned candidate had been materially affected or not. At
such an enquiry the burden is on the petitioner to prove his
allegations. In fact s. 97(1) of the Act has no application
to a case falling under s. 100(1) (d) (iii). The scope of
the enquiry is limited for the simple reason that what the
clause requires to be considered, is, whether the election
of the returned candidate has been materially affected and
nothing else.
It is true that in a composite election petition
wherein the petitioner claims not only that the election of
the returned candidate is void but also that the petitioner
or some other person be declared to have been duly elected,
s. 97 would also come into play and allow the returned
candidate to recriminate and raise counter-pleas in support
of his case, “but the pleas of the returned candidate under
s. 97 have to be tried after a declaration has been made
under s. 100 of the Act. The first part of the enquiry in
regard to the validity of the election of the returned
candidate has therefore to be tried within the narrow limits
prescribed by s. 100(1) (d) (iii) and the latter part of the
enquiry governed by s. 101 (a) will have to be tried on a
broader basis permitting the returned candidate to lead
evidence in support of the please taken by him in his
recriminatory petition; but even in such a case the
198
enquiry. necessary while dealing with the dispute under s.
101 (a) will not be wider if the returned candidate has
failed to recriminate and in a case of this type, the duty
of the Election Tribunal will not be to count and scrutinise
all the votes cast at the election.
Moreover, in the instant case, it is a matter of
controversy to be decided as to whether the recriminatory
petition filed by the appellant is within time or not.
The above being the law on the point, it is clear that
the learned Judge was in error in ordering general
inspection and recount of the total votes polled at the
election, merely because in these Additional Pleas the
returned candidate also had by way of recrimination,
complained of wrong reception and rejection of votes and
wrong counting of votes. The pleas at this stage could not
be investigated even in the recriminatory petition filed by
the returned candidate. They were beyond the scope of the
enquiry into the petitioner’s case which (as set up in Para
11 of the petition) fall under s. 100(1)(d)(iii) of the Act
Further, the High Court did not properly apply its mind
to the question, whether on the facts alleged in Para 11 (a)
and (b) of the petition-assuming the same to be correct-a
prima facie case for improper rejection of The 50 ballot
papers referred to therein, had been made out. In other
words, if the defects in these SO ballot papers were
attributable to the mistakes or negligence of the Presiding
officer or his staff, would it take those ballot papers out
of the mischief of clauses (a) and (b) of Rule 56(2) of the
Conduct of Election Rules, 1961
Rule 56 runs thus:
“(1) Subject to such general or special
directions, if any, as may be given by Election
Commission in this behalf, the ballot papers taken out
of all boxes used in a constituency shall be mixed
together and then arranged in convenient bundles and
scrutinised.
(2) The returning officer shall reject a ballot
paper-
(a) if it bears any mark or writing by which the
elector can be identified, or
(b) if, to indicate the vote, it bears no mark at
all or bears a mark made otherwise than with
the instrument supplied for the purpose, or
(c) if votes are given on it in favour of more
than one candidate, or
(d) if the mark indicating the vote thereon is
placed in such manner as to make it doubtful
to which candidate the vote has been given,
or
199
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its
identity as a genuine ballot paper cannot be
established, or
(g) if it bears a serial number, or is of a
design different from the serial numbers, or,
as the case may be, design, or the ballot
papers authorised for use at the particular
polling station, or
(h) if it does not bear (both, the mark and the
signature) which it should have borne under
the provisions of sub-rule (1) of rule 38;
Provided that where the returning officer is
satisfied that any such defect as is mentioned in
clause (g) or clause (h) has been caused by any mistake
or failure on the part of a Presiding officer or
polling officer, the ballot paper shall not be rejected
merely on the ground of such defect;
Provided further that a ballot paper shall not be
rejected merely on the ground that the mark indicating
the vote is indistinct or made more than once, if the
intention that the vote shall be for a particular
candidate clearly appears from the way the paper is
marked.
(3) to (5): .. .. .. .
(6) Every ballot paper which is not rejected under
this rule shall be counted as one valid vote:
Clauses (a) and (b) of Rule 56(2) are referable to Rule
38 which requires every elector to whom ballot paper has
been issued under Rule 38 to maintain secrecy of voting and
“to make a mark on the ballot paper with the instrument
supplied for the purpose on or near the symbol of the
candidate for whom he intends to vote.”
Rule 38 is also relevant. This Rule requires every
ballot paper and the counterfoil attached thereto to be
stamped on the back by the Presiding officer with such
distinguishing mark as the Election Commission may direct.
Every such ballot paper before it is issued is required to
be signed in full on its back by the Presiding officer. Sub-
rule (2) requires that at the time of issuing of ballot
paper, the Polling officer shall on its counterfoil record
the electoral roll number of the elector and obtain his
signature or thumb-impression.
The object of these rules is to secure not only the
secrecy of the ballot but also to eliminate chances of sharp
practices in the conduct of elections. Their requirements
are therefore mandatory, and a defect arising from their
non-observance inexorably entails rejection of the defective
ballot paper except to the extent covered by the Provisions
to Rule 56(2).
200
In the case of 41 ballot papers mentioned in para
11(a), what happened was that instead of marking those
ballot papers with the instrument supplied for this purpose
by the Election Commission the electors concerned stamped it
with the instrument meant to be used exclusively by the
Presiding officer for stamping the counterfoils and lacks of
the ballot papers. The Court had to apply its mind as to
whether these facts by themselves were sufficient to attract
Rule 56 2 (b) ? This question would further resolve itself
into two issues: (i) Was the stamping instrument with which
these electors “marked” the ballot papers, given to them by
the Presiding officer cr any member of his staff ? (ii) If
so, could these ballot papers be deemed to have been marked
with “the instrument supplied for the purpose” within the
contemplation of Rules 38 and 56(2)(b) ? The first one was
an issue of fact, the determination of which would depend on
evidence. The second issue would arise only on proof of tile
first, and involve the question of interpreting and applying
the phrase “instrument supplied for the purpose”. This
phrase is capable two interpretations-one narrow and
literal, and the other liberal and contextual. Without there
being any proof of the fact that the stamping instrument was
handed over to the 41 electors by the Presiding
officer/Polling officer, a final expression of opinion on
our part would be academic and premature. It will be
sufficient to reiterate that the provisions of Rules 38 and
56(2) (a) and (b) with which we are concerned in this case
are mandatory and strict compliance therewith is essential.
Once it is established that the fault specified in clauses
(a) or (b) of Rule 56(2) has been committed, there is no
option left with the Returning officer but to reject the
faulty ballot paper. We would further make it clear that
even if any such defect as is mentioned in clauses (a) or
(b) of Rule 56 is caused by any mistake or failure on the
part of the Returning officer or Polling Officer, the
Returning officer would be bound to reject the ballot paper
on the ground of such defect. That such is the imperative of
Rule 56(2) is clear from the fact that the said clauses (a)
and (b) have advisedly been excluded from the first Proviso
to Rule 56(2) which gives a limited discretion in the matter
of rejection to the Returning officer only where the defect
is of a kind mentioned in clauses (g) and (h) of this sub-
rule.
In the view that such Rules relating to the conduct of
elections, are required to be observed strictly, we are
fortified by the ratio of this Court’s decision in Hari
Vishnu Kamath v. Syed Ishaque and ors.(1) In That case,
voters for the House of the People in Polling Stations Nos.
316 and 317 in Sobhapur were given ballot papers with brown
bar intended for the State Assembly, instead of ballot
papers with green bar which had to be used for the House of
the People. The total number of votes so polled was 443, out
of which, 62 were in favour of the then appellant, 301 in
favour of the first respondent therein and the remaining in
favour of the other candidates. Rule 47(1)(c) of the Conduct
of the Election Rules, 1951 provided that “a ballot paper
contained in a ballot-box shall be rejected if it bears
201
any serial number or mark different from the serial number
or marks of ballot papers authorised for use at the polling
station or the polling booth at which the ballot-box in
which it was found, was used.” The election-petitioner
contended that in accordance with this rule, the ballot
papers received at the two polling stations, not having the
requisite mark; should have been excluded. The returned
candidate pleaded that the Returning officer had rightly
accepted 301 votes be cause Rule 47 was directory and not
mandatory. It was contended that the electors were not at
fault and that the wrong ballot papers were issued due to
the lapse on the part of the Returning officer and that to
reject the votes of the electors for the failure of the
Polling officer to deliver the correct ballot papers under
Rule 23 would be to disfranchise them, and that a
construction which involve such a consequence should not be
adopted. This Court repelled the contention in these terms:
“If the word ‘shall is thus to be construed in a
mandatory sense in Rule 47(1) (a), (b) and (d), it
would be proper to construe it in the same sense in
Rule 47(1) (c) also. There is another reason which
clinches the matter against the 1st respondent. The
practical bearing of the distinction between a
provision which is mandatory and one which is directory
is that while the former must be strictly observed in
the case of the latter it is sufficient that it is
substantially complied with. How is this rule to be
worked when the Rule provides that a ballot paper shall
be rejected ? There can be no degrees of compliance so
far as rejection is concerned, and that is conclusive
to show that the provision is mandatory.”
The above observations are apposite. Judged by the
guiding principle enunciated therein, it can safely be said
that the provisions of rule 56(2) (a) and (b) read with Rule
38, are mandatory and not merely directory.
It was contended by the learned Counsel for the
respondent before us, that the Provisos to sub-rule (2) of
Rule 56 are only illustrative and not exhaustive, and
consequently, the principles underlying these Provisos would
give a discretion to the Returning Officer not to reject a
ballot paper on the ground of a defect caused by mistake or
negligence of the Presiding officer/or Polling officer,
notwithstanding that such defect is one mentioned in clauses
(a), (b), (c), (d), (e) and (f) of Rule 56(2).
This contention is not tenable. The word ‘shall’ used
in the opening Part of sub-rule (2) read in the context of
the general scheme of this Rule shows that it is mandatory.
Sub-rule (5)puts the matter beyond doubt. It says that
“every ballot paper which is not rejected under this sub-
rule shall be counted as one valid vote”. Rule 56 is a
complete code by itself. The Provisos to Sub-rule (2) are
exhaustive of the kinds of defects which the Returning
officer may condone, if those defects are caused by the
mistake or failure of the Polling Staff. The first Proviso
is in terms limited to defects falling under Clause
202
(g) or (h). Neither of these Provisos appears to be
attracted if the A defects is any of the defects mentioned
in clauses (a) or (b).
The learned Judge of the High Court has not applied his
mind as to whether the facts alleged in Paragraph 11(b) of
the petition, if correct, would fall within the mischief of
clause (d) of Rule 56(2). This will necessarily require
consideration of the issue whether there has been an
infringement if any of the provisions of Rule 38, referable
to clause (a) of Rule 56(2). Another point in this context,
for consideration will be whether the “counterfoil” can be
said to be an integral part of the “ballot paper” so that
any writing or marks of identification of the voter on a
counterfoil issued to the voter by mistake, is to be deemed
to be a defect of the nature mentioned in clause (a) of Rule
56(2). The High Court has not at all addressed itself any of
these questions.
Times out of number, this Court has pointed out that a
general Scrutiny and recount of the ballot papers should not
be lightly ordered. Before making such an extraordinary
order, the Court must be satisfied that all the material
facts have been pleaded and proved and that such a course is
imperatively necessary in the interest of justice. In the
case in hand. the allegations in the election petition (vide
Paragraph 11) are confined to 41 plus 9, total 50 votes only
(vide Paragraph). There was no foundation in the petition
for ordering a general recount. Nor could the Additional
Pleas in the written statement of the returned candidate be
taken into account for making an order for general
inspection of the ballots, because investigation of those
pleas was beyond the scope of the case alleged in Para 11 of
the petition falling under section 100(1) (d) (iii) of the
Act.
We have said enough. We will close the discussion by
repeating the note of caution that this Court speaking
through V. Krishna Iyer J. recently sounded in Chanda Singh
v. Ch. Shiv Ram(1).
“A democracy runs smooth on the wheels of periodic
and pure elections. The verdict at the polls announced
by the Returning Officers leads to the formation of
Governments. A certain amount of stability in the
electoral process is essential. If the counting of the
ballots are interfered with by too frequent and
flippant recounts by courts a new 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 general reaction, if there is judicial relaxation
on this issue, may well be a fresh pressure on luckless
candidates, particularly when the winning margin is
only of a few hundred votes as here, to ask for a
recount Micawberishly looking for numerical good
fortune or windfall of chance discovery of illegal
rejection or reception of ballots. This may tend to a
dangerous disorientation which invades the democratic
order by injecting widespread scope for reopen-
203
ing of declared returns, unless the Court restricts
recourse to recount to cases of genuine apprehension of
miscount or illegality or other compulsions of justice
necessitating such a drastic step.”
In the result we allow the appeal and set aside the
order of the High Court for general scrutiny and recount of
the ballot papers. However, the High Court will have to
determine, (after taking such evidence as may be necessary)
inter alia, (i) whether. the instrument which was used for
marking the 41 votes (referred to in the election petition)
was supplied to the voters by the Presiding officer or any
other member of his Polling Staff. If on evidence adduced,
the learned Judge finds this issue in the affirmative, the
further question to be considered would be (ii) whether such
supply would answer the legal requirement of “instrument
supplied for the purpose” in Rule 56(2) (b). If both these
issues (i) and (ii) are answered in the positive, then and
then only he may proceed to inspection and recount of these
votes mentioned in the petition. Similarly, after
considering the legal questions indicated above, he may
order recount of the 9 votes alleged to have counterfoils
attached thereto. There appears to be no justification for
ordering a general inspection of the ballots on the facts of
this case.
The learned Judge shall proceed with the trial of the
election petition in the light of what has been said above.
Costs to abide the event in the High Court.
P.H.P. Appeal allowed.
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