CASE NO.: Appeal (civil) 1808 of 1997 PETITIONER: V.S. ACHUTHANANDHAN RESPONDENT: P.J. FRANCIS AND ANR. DATE OF JUDGMENT: 22/03/1999 BENCH: DR. A.S. ANAND, CJ & M. SRINIVASAN & R.P. SETHI JUDGMENT:
JUDGMENT
1999 (2) SCR 99
The Judgment of the Court was delivered by
SETHI, J. the appellant a candidate of the C.P.L (M) party contested and
lost election from No, 99 Mararikulam Legislative Assembly Constitutency in
the State of Kerala by a margin of 1965 votes. The successful candidate was
the respondent No. 1 belonging to the Indian National Congress. Not
satisfied with the result of the election, the appellant filed Election
Petition No. 11/1996 in the High Court of Kerala mainly on the grounds of
corrupt practices and illegalities in the counting of ballot papers. He
prayed for declaration that the election of the 1st respondent was void and
that he was duly elected. Instead of filling any written statement, the
respondent Ho. I filed preliminary objections which were made the basis of
framing the following issues :
1. Whether the petition has been presented in compliance with the
provisions of “the Representation of the People Act?
2. Whether the absence of an affidavit in support of the allegations
of corrupt practices in the petition is fatal to the maintainability of the
petition?
3. Whether there is a proper affidavit under Rule 94-A of the Conduct
of Election Rules?
4. Whether the allegations make out a cause of action at all
warranting trial of the election petition?
5. Whether the allegations for recount are sufficient to hold a trial
on that issue?
6. Whether the failure to attest as true copy of the annexure
produced along with the election petition is fatal?
7. Whether the election petition is liable to be dismissed as not
properly framed and filed?
Issues No 1 and 4 were decided against the appellant holding that
allegations made in paragraphs 11(E), (F), (H), (J), (K), (M), and (P)
lacked material facts and particulars and being vague and ambiguous
required no trial. Issues No, 2,3, and 6 were decided in favour of the
appellant Issue No. 5 was decided against the appellant holding that he had
failed to establish that there existed a case where the recounting could be
ordered. Ultimately the election petition was rejected under Section 83 of
the Representation of People Act read with Order VII Rule 11 (a) of the
Code of Civil Procedure with costs assessed at ,Rs. 1,500, Feeling
aggrieved by the judgment of the High Court, the appellant has preferred
this appeal under Section 116-A of the Representation of People Act, 1951
(hereinafter referred to as `the Act’). Assailing the judgment impugned in
this appeal, the learned counsel appearing for the appellant has vehemently
argued that the High Court has adopted hypertechnical approach in the
matter and that the election petition has been dismissed finally on merits
without affording the appellant any opportunity to prove his case. It is
contended that the issues decided in fact did not arise and that the High
Court did not properly appreciate the difference between the `material
facts’ and the material particulars’ as referred to in Section 123 of the
Act. It is contended that there were sufficient facts brought on record for
proving the corrupt practices by way of evidence and that the circumstances
existed which justified re-count in the case under the provisions of the
Act, It is further submitted that the provisions of Section 83 of the Act
and Order VII Rule 11 of the Code of Civil Procedure have wrongly been
relied upon for rejecting the election petition, as according to the
learned counsel for the appellant, none of those provisions was applicable
in the instant case. It is contended that the High Court committed a
mistake of law by holding that the process of election ended on the date of
the poll and any illegality or mat-practices committed after the date of
the poll but before the declaration of the result was not a mal practice or
corrupt practice. It is submitted that election process continues till the
result is declared and that action of the parties to an election is
relevant from the date of the commencement of the election till the
declaration of the result. The High Court is alleged to have not taken note
of its own verdict in C.M.P. No 2867/96 by which amendment was allowed for
correcting the Section of the Act under which the allegations of corrupt
practices already made in the petition were to fit in.
Supporting the impugned judgment, the learned counsel for respondent No. 1
has submitted that in the absence of material facts and details of corrupt
practices, the High Court was justified in holding that as no cause of
action is disclosed, the election petition deserved dismissal under Order
VII Rule 11 of the Code of Civil Procedure. He has contended that the
appellant had failed to place on record sufficient material justifying the
recount. Relying upon the observations of this Court in Dharamvir v. Amar
Singh and Ors., [1996] 3 SCC 158 it has been contended that Sections 123(2)
and 123(7) of the Act deal with corrupt practices indulged at a stage prior
to the casting of votes and not thereafter and as the appellant had
referred to the alleged corrupt practices after the date of poll, but
before the date of declaration of the result, no cause existed for the
trial of the ease.
Before dealing with the rival contentions of the learned counsel for the
parties it has to be kept in mind that free fair, fearless and impartial
elections are the guarantee of a democratic policy. Effective mechanism is
the basic requirement for having such elections. For conducting, holding
and completing the democratic process, a potential law based upon
requirements of the society tested on the touchstone of the experience of
times is concededly of paramount importance. A balanced judicial approach
in implementing the laws relating to franchise is the mandate of this
Court. Law relating to the accomplishment of the democratic process by
holding the elections is not required to be so liberally construed as to
frustrate the will of the people expressed at the elections and not too
rigidly applied which may result in shaking the confidence of the common
man in the institution entrusted with the noble task of establishment of
the rule of law. It has always to be kept in mind that the law relating to
elections is the creation of the statute which has to be given effect to
strictly in accordance with the will of the Legislature.
It may further be noticed, as observed by this Court in Raj Narain v. Smt.
Indira Nehru Gandhi and Anr,, [1972] 3 SCC 850 that rules of pleadings, are
intended as aids for a fair trial and for reaching a just decision. An
action at law should not be equated to a game of chess. Provisions of law
are not mere formulae to be observed as rituals. Beneath the words of a
provision of law, generally speaking, there lies a juristic principle. It
is the duty of the court to ascertain that principle and implement it. The
purpose of Section 86 of the Act is to ensure that every charge of corrupt
practice is brought before the Court within the prescribed period of
limitation and not thereafter, so that the trial of the case is not
converted into a persecution by adding more and more charges or by
converting one charge into another as the trial proceeds.
It is also necessary to have in mind some of provisions of the laws
relevant for the purpose of deciding this appeal.
The Act was enacted to provide for the conduct of elections to the Houses
of Parliament and to the House or Houses of the Legislature of each State,
the qualification and disqualifications for membership of those Houses, the
corrupt practices and other offences at or in connection with such
elections and the decision of doubts and disputes arising out of or in
connection with such elections. Part II of the Act provides for
qualifications and disqualifications for membership of Parliament and the
State Legislatures. Part IV provides for the administrative machinery for
the conduct of elections and part IV-A deals with the registration of
political parties. Under Section 30 the Election Commission is obliged to
appoint last date for making nomination after the notification calling upon
a constituency to elect a member is issued. On the issue of a notification
under Section 30, the Returning Officer is under statutory duty to give
public notice of the intended election in such form and manner as may be
prescribed, notifying nominations of candidates for such election and
specify the place, arid date where nominations papers are to be delivered,
Scrutiny of nominations is conducted under Section 36 and list of
contesting candidates is issued under Section .18 of the Act. Procedure at
election is provided under Chapter III and Chapter IV deals with, the Poll.
Section 64 provides that at every election where a poll is taken, vote
shall be counted, by or under the supervision and direction of, the
Returning Officer and each contesting candidate, his election agent and his
counting agent shall have a right to be present at the time of counting.
Result of the election is declared under Section 66 of the Act. Part VI
deals with the disputes regarding elections. No election can be called in
question except by an election petition presented in accordance with the
provision of Part IV which shall be tried by the High Court having
jurisdiction in the area where the election is held. An election petition
calling in question any election has to be presented on one or more of the
grounds specified in sub-section (1) of Section 100 and Section 101 to the
High Court by any candidates at such election or any elector within 45 days
from, but not earlier than the date of election of the returned candidate
or if there are more than one returned candidate: at the election and dates
of their elections are. different, the later of those two dates. Section 83
provides what the contents of an election petition should be. An election
petition is required to setforth full particulars of any corrupt practice
that the petitioner alleges, including as full a statement as possible of
the names of the parties alleged to have committed such corrupt practice
and the date and place of commission of each of such practice which is
required to be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure for verification of the pleadings. The
petition based upon corrupt practices is required to be accompanied by an
affidavit in the prescribed form in support of the allegations of such
practice and the particulars thereof. Any schedule or annexure to the
petition is required to be signed by the petitioner and verified in the
same manner as the petition. Chapter III of Part VI deals with the trial of
election petitions. Section 87 provides that subject to the provisions of
the Act and of any rules made thereunder, every election petition shall be
tried by the High Court, as nearly as may be, in accordance with the
procedure applicable under the Code of Civil Procedure for the trial of
suits.
Section 100 of the Act provides ;-
Grounds for declaring election to be void,-(1) Subject to the provisions of
sub section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or this Act {or the Government of Union Territories Act 1963
(20 of 1963) };or
(b) that any corrupt practice has been committed by a returned
candidates or his election agent or by any other person with the consent of
a returned candidate or his election agent; or
(e) that any nomination has been improperly rejected ;
(d) or that the result of the election, in so far as it concerns a
returned candidates, has been materially affected –
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned
candidate, [by an agent other than his election agent], or
(in) by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of
this Act or of any rules or orders made under this Act, [the High Court
shall declare the election of the returned candidate to be void.]
(2) If in the opinion of the High Court a returned candidate has been
guilty by an agent, other than his election agent, of any corrupt practice
but[ the High Court] is satisfied –
(a) that no such corrupt practice was committed at the election by the
candidate or his election agent and every such corrupt practice was
committed contrary to the orders, and of the candidate of his election
agent ;
(c) that the candidate and his election agent took all reasonable
means for preventing the commission of corrupt practice at the election,
and
(d) that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents, then [the High
Court] may decide that the election of the returned candidate is not void.
Similarly Section 101 of the Act provides :-
Grounds for which a candidate other than the returned candidate may be
declared to have been elected. If any person who has lodged a petition in
addition to calling in question the election of the returned candidate,
claimed a declaration that he himself or any other candidate has been duly
elected and the High Court is of opinion-(a) that in fact the petitioner
or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt
practices the petitioner or such other candidate would have obtained a
majority of the valid votes, [the High Court] shall after declaring the
election of the returned candidate to be void declare the petitioner or
such other candidate, as the case may be, to have been duly elected.
At the time of presenting an election petition, if the petitioner fails to
deposit in the High Court the sum of security of costs as quantified under
Section 117 of the Act, the [election petition is liable to be dismissed
Section 123 specifies] the corrupt practices for the purposes of elections.
Chapter III of Part VI deals with other electoral offences.
Issues are framed under Order XIV of the Code of Civil Procedure when a
material proposition of a fact or law is affirmed by one party and denied
by another. Material propositions are such proposition of law or fact which
the plaintiff must allege in order to show the right to sue or a defendant
must allege in order to constitute his defence. There is no dispute that
issues are framed on the basis of the pleadings which according to Order VI
Rule 1, Code of Civil Procedure include plaint or written statement.
Pleadings can be struck put under Rule 16 of Order VI which are
unnecessary, scandalous, frivolous or vexatious or which may tend to
prejudice, embarrass or delay the fair trial of the petition or which is
otherwise an abuse of the process of the court. The plaint or the petition
can also be rejected in the following cases:-
(a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed by
the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is
written upon paper insufficiently stamped, and the plaintiff on being
required by the Court to supply the requisite stamp-paper within a time to
be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred
by any law :
There is no gain-saying that the powers of superintendence, direction and
control of election vests in the Election Commission under Part XV of the
Constitution of India. The orders of the Election Commission are however
subject to judicial review where they are found to be contrary to the law
enacted under Article 327 or are otherwise arbitrary, mala fide or unfair.
The High Court may also exercise the power of judicial review if it is
found that the orders of the Election Commission were in excess of its
jurisdiction, being contrary to any electoral law or rule made thereunder
by the competent legislature or any provision of the Constitution itself.
However, no court is entitled to entertain the questions coming under
Articles 327 and 328 of the Constitution or orders made by the Election
Commission and the matters which may be the subject of an election
petition. Article 329 (b) provides that no election to either House of
Parliament or to the House or either House of the Legislature of a State
shall be called in question except by an election petition presented to
such authority and in such manner as may be provided for by or under any
law made by the appropriate Legislature. Election as mentioned in Article
329 (b) of the Constitution has been interpreted to mean the entire process
culminating in a candidate being declared elected and not confined to the
final result. Such an interpretation is inconsonance with the provision of
the Act as contained in Part V thereof particularly Section 30, dealing
with the appointment of date for nominations and Section 66 dealing with
the declaration of the result.
In the instant case, as noted earlier, the election petition has been
rejected by invoking the powers of Section 83 of the Act read with Order
VII Rule 11 (a) of the Code of Civil Procedure. After referring to some
judgments, the learned trial Judge of the High Court has concluded :-
“Read as a whole, the averments contained in the Election Petition do not
satisfy the requirements of Section 83 of the Act. No prima face case is
made out to hold that the first respondent has committed corrupt practices
or that it is a fit case where recounting is to be ordered. On a perusal of
the Election petition, it is seen that the petitioner has not pleaded the
material facts with necessary particulars which would enable the Court to
grant the prayer made in the petition. Pleadings in the Election Petition
do not make out a cause of action for ordering recount, as prayed for in
the petition. So, the Election Petition is liable to be rejected under
Section 83 of the Act read with order 7 rule 1 l(a) C.P.C.”
It would, thus appear, that the election petition was rejected mainly on
the ground that it did not disclose the cause of action as according to the
learned trial Judge the allegations regarding corrupt practice were vague
and did not disclose “material facts and full particulars” of the corrupt
practice alleged. It is evident that the learned trial Judge did not
distinguish between the `material facts’ and `material particulars’ of
allegations regarding corrupt practices as defined under Section 123 of the
Act. The Law oh the point is well-settled which appears to have not been
taken note of by the learned trial Judge. After referring to various
pronouncements of this Court including cases in Balwan Singh v. Lakshmi
Narain and Ors., [1960] 3 SCR91 ,Samara N. Balakrishna and Anr. v. George
Fernandez and Ors., [1969] 3 SCC 238. virendra Kumar Sakleeha v. Jajiwan
and Ors;, [1973] 1 SCC 826, Shri Udhav Singh v. Madhav Rao Scindia, [1977]
I SCC 511, F.A, Sapa and Ors. v. Singera and Ors. and Gajanan Krishnaji
Bapat and Anr. y. Dattaji Raghobaji Meghe and Qrs., [1995] 5 SCC 347 and
host of other authorities, this Court in L.R. Shivaramagowda etc. v. T.M.
Chandrashekar etc. [1998] 6 Scale 361 held that while failure to plead
`material facts’ is fatal to the election petition and no amendment of the
pleading is permissible to introduce such material facts after the time
limit prescribed for filing the election petition, the absence of `material
particulars* can be cured at a later stage by an appropriate amendment. An
election petition was not liable to be dismissed is limine merely because
full particulars of corrupt practice alleged were not set out, It is,
therefore, evident that material facts are such primary facts which must be
proved at the trial by a party to establish existence of a cause of action,
Whether in an election petition a particular fact is material fact or not,
and as such, required to be pleaded is a question which depends on the
nature of the charge levelled, the ground relied upon, and in the light of
the special circumstances of the case. In Udhav Singh case (supra) the
Court held :-
“In short all those facts which are essential to clothe the petitioner with
a complete cause of action are “material facts” which must be pleaded, and
failure to plead even a single material fact amounts to disobedience of the
mandate of Section 83 (l)(a); “Particulars” on the other hand are ” details
of the case set up by the party”. “Material particulars” within
contemplation of clause (b) of Section 83(1) would therefore mean all the
details which are necessary to amplify, refine and embellish. The material
facts already pleaded in the petition in compliance with the requirements
of clause (a), `Particulars’ serve the purpose of finishing touches to the
basic contours of a picture already drawn, to make it full, more detailed
and more informative”.
The appellant had specified the alleged corrupt practices in paragraphs 1
I(E), (F), (H), (J), (K), (M) and:(P),. It was alleged that Sri Ayyappan
Pillai, the Election Tehsildar of the Constituency was close associate and
friend of the 1st respondent who played a pivotal role in the manoeuvring
relating to ballot papers which were not distributed to the polling
stations and ultimately used for the benefit of the successful candidate.
He was alleged to have been helping the 1st respondent in violation of the
provisions of the Act, the Rules, Orders and instructions issued
thereunder. He was admittedly a gazetted officer who was alleged to have
acted as an agent of the 1st respondent. The trial Judge found that
allegations made in paragraphs 11(E), (F), (H), (J),(K), (M) and (P) of the
election petition were vague in nature and did not setforth full
particulars of any corrupt practice. Lacking of full particulars could not
be made a basis for rejecting the election petition as the appellant had
the right to amend the pleadings. The Trial judge found that, “details of
corrupt practice are wanting in the election petition.” The absence of the
details appears to have persuaded the learned Judge to reject the election
petition apparently under a misconception of the legal position regarding
the difference between the `material facts’ and `material particulars. The
learned trial Judge rejected the election petition on his being satisfied
that :-
“Though as per the amended affidavit, the corrupt practice will attract
Section 123(7) of the Act, it is hot stated in the Ejection Petition that
either the candidate or his agent or any other person with the consent of
the candidate or his election agent, obtained, procured, abetted or
attempted to obtain or procure the service of any person under the
Government for the furtherance of the prospects of the candidate’s
election. Though it is stated that Sri Ayyappan Pillai is a gazetted
Officer, it is not stated anywhere in the petition that the first
respondent or his agent directly or by any other person with his consent or
that of his election agent obtained or procured the assistance of a
gazetted officer It appears that he lost sight of allegations of the
petitioner made in paragraph 9 of the election petition wherein it was
stated :-
“The result of election, in so far as it concerns the returned candidate,
the 1st respondent in this case, has been materially affected by (i)
corrupt practice committed in the interest of the returned candidates by
his agents, election agent and the returned candidate (ii) by the improper
reception of votes which is void and (iii) by the non-compliance with the
provision of the Constitution and the provisions of the Representation of
People Act, 1951 as also rules and orders made under the Act.”
It was, therefore, wrongly, found that in the absence of specific pleading
and full particulars of corrupt practices, the election petition deserved
rejection as it allegedly did not disclose any cause of action. The trial
Judge appears to have equated the cause of action with proof and thus
committed an illegality of law requiring interference by us.
This Court in Mohan Rawale v. Damodar Tatyaba@ Dadasheb & Ors., [1994] 2
SCC 392 held that a reasonable cause of action is said to mean a cause of
action with some chances of success when only the allegations in the
pleadings are considered. So long as the claim discloses some cause of
action or raises some questions fit to be decided by a Judge, the mere fact
that the case is weak and not likely to succeed is no ground for striking
it out. The implications of the liability of the pleadings to be struck out
on the ground that it discloses no reasonable cause of action are generally
more know than clearly understood. It was further held that the failure of
the pleadings to disclose a reasonable cause of action is distinct from the
absence of full particulars. The distinctions among the ideas of the
“grounds” in Section 81(1); of “material facts” in Section 83 (1) (a) and
of “full particulars” in Section 83(1)(b) are obvious, the provisions of
Section 83(1 )(a) and (b) are in the familiar pattern of Order VI Rules 2
and 4 and Order 7,Rule l(e) Code of Civil Procedure. There is a distinction
amongst the `grounds’ in Section 81(I); the `material facts’ in Section 83
(l)(a) and “full particulars” in Section 83(l)(b).
The Court approved the observations of Jacob in “The Present Importance of
Pleadings” (1960) Current Legal Problems at pp 175-176;-
“Pleadings do not only define the issues between the parties for the final
decision of the Court at the trial, they manifest and exert their
importance throughout the whole process of the litigation….. They show on
their face whether a reasonable cause of action or defence is disclosed.
They provide a guide for the proper mode of trial and particularly for the
trial of preliminary issues of law of fact. They demonstrate upon which
party the burden of proof lies, and who has the right to open the ease.
They act as a measure for comparing the evidence of a party with the case
which he was pleaded. They determine the range of the admissible evidence
which the parties should be prepared to adduce at the trial. They delimit
the relief which the court can award….”
Looking at the averments made in the election petition, it cannot be said
that it suffered from lack of disclosure of material facts. The absence of
material particulars, if any, could be rectified by resort to amendment of
the pleadings in terms of Order VI Rule 17 of the C.P.C.
The reliance of the learned counsel for respondent No. 1 on the
observations of this Court in Dharamvir v. Amar Singh and Ors, (1996) 3 SCC
158 (supra) is also of no help to him for the purpose of upholding the
judgment of the High Court. The observations in that case, that the corrupt
practices mentioned in Sections 123 (2) and (7) referred to only such
practices done for furtherance of the election only to pre-voting stage and
not post voting stage cannot be termed to be the verdict of this Court
inasmuch as the Bench itself observed, “prima facie these two sub-sections
will apply only to pre-voting stage and not post-voting stage,” (underlined
by us). The aforesaid observations were neither relevant nor necessary for
the disposal of Dharamvir Case and appear to have been made without
noticing the earlier judgment of this Court wherein it was held that the
election process ended with the declaration of the result of the candidates
and not only after the voting.
The corrupt practices referred to in the aforesaid two sub-sections are
deemed to be corrupt practices if such practices are committed, “for the
furtherance of the prospects of that candidate’s election.” The word
`election’ cannot be restricted only to the electoral process which
commences with the issuance of the notification and ends with the casting
of votes at the Polls. The word `election’ as used in the Representation of
the People Act has been interpreted by this court to mean “that every stage
from the time the notification calling for elections is issued till the
declaration of the result,”
Relying upon the judgment of this Court in N.P, Ponnuswami v. Returning
Officer, Namakkal, AIR (1952) SC 64, the Allahabad High Court in Ashraf Ali
Khan v, Tika Ram and Ors.(20 E.L.R. 470) rightly explained the position of
law in this behalf as under :-
“The question is when does an election begin and end ?
Now, it has been held in Yeshayantrao Balwantrao Chavan V. K.T. Mangalmurti
and Another that-
“In the case of an election there are certain steps to be taken until poll
is taken. In the first place, there is an announcement about the holding of
an election. This is followed by nomination of candidates. After the
nominations are made, a scrutiny of the nominations is held. After the
nominations are scrutinized a list of validity nominated candidates is
prepared. After the list of validly nominated candidates is prepared, there
is a stage of withdrawal enabling a candidate to withdraw his candidature.
After the withdrawal, if any a candidate may retire from contest, and
finally, there is the poll, indeed, an election is one continuous process
involving these steps. In this connection. I may refer to what has been
pointed out in the case of Shankar v. Returning Officer, Kolaba. With
regard to the express `election,’ it was Stated as follows :
“The expression `election’ in article 329 (b) of the Constitution of India
bears a wider meaning than the very limited restricted meaning of the
result of an election or the counting of votes. “Election” has the same
meaning as the expression Used in articles 327 and 328 viz., matters
relating to or in connection with election. Therefore, nomination of
candidates, scrutinizing of nominations, and decisions as to whether a
nomination paper is valid or not, are all part and parcel of an election.
“Election’ is not merely the ultimate decision or the ultimate result.
`Election is every stage from the time the notification is issued till the
result is declared, and even perhaps if there is an election petition, till
the decision of the Election Tribunal, It is one whole continuous
integrated proceeding and every aspect of it and every stage of it and
every step taken in it is a part of the election, and what is prohibited by
article 329 (b) is calling in question any one aspect or stage of the
election. The expression `except by an election petition’ in the article
does not point to the period when it can be called in question; it rather
points to the manner and the mode in which it can be called in question;
and article 329 (b) provides that the only way any matter relating to or in
connection with an election can be called in question is by an election
petition, which could be presented to such authority and in such manner as
may be provided for by law passed by the appropriate Legislature,”
It may be observed that in this cited case the court was considering
article 329 (b) of the Constitution of India. But, in our view, what has
been stated in that case with regard to the wide meaning of the term
“election” may be also applied to an election contemplated under the
Representation of the People Act, 1951. Section 2(i)(d) of the Act defines
election as “an election to fill a seat or seats in inter alia either House
or the Legislature of a State,”
We may also on this point refer to two Supreme Court rulings-N.P.
Pommuswami V. Returning Officer, Namkkal and Hari Vishnu Kamath v. Ahmad
Ishaque and others, on which the aforesaid Bombay ruling is based.”
The position of law on this point was again reiterated in Mohinder Singh
Gill and Anr. v. The Chief Election Commissioner & Ors., AIR (1978) SC 851
holding :
“As already pointed out, it is well settled that election covers the entire
process from the issue of the notification under Section 14, to the
declaration of the result under Section 66 of the Act. When a poll that has
already taken place has been cancelled and a fresh poll has been ordered,
the order therefore, with amended date, is passed as an integral part of
the electoral process.”
and further approved in The Election Commission of India v, Shivaji& Ors.,
AIR (1988) SC 61.
It appears that while interpreting the provisions of Order VII Rule 11 of
the Code of Civil Procedure and Section 83 read with Section 123 of the
Act, the learned trial Judge has taken a hypertechnical view in the matter
which if approved would frustrate the purpose of the purity of the
elections which has been held to be mechanism devised to ascertain the true
wishes and will of the people in the matter of choosing their political
leaders in a democratic system.
Similarly the learned trial Judge was not justified in rejecting the
election petition without affording the appellant opportunity to place on
record the circumstances justifying the recount as prayed for by him. It is
true that on vague and ambiguous evidence no court can direct recount. But
it is equally true that the doors of justice cannot be shut for a person
seeking recount without affording him ah opportunity of proving the
circumstances justifying a recount. In his petition the appellant had given
details of the alleged illegalities and irregularities committed by the
respondent No; 1 which accprding to him justified the holding of a recount.
The learned trial Judge relied up on some judgments where recount was not
allowed after trial and wrongly dismissed the election petition filed by
the appellant without affording him the opportunity to substantiate the
allegations made in the petition or to bring on record the evidence
justifying a recount. It is settled position of law that the court trying
an election petition can direct inspection and recount of votes if the
material facts and particulars are pleaded and proved for directing such
recount in the interest of justice. In doing so, the provisions of Section
94 of the Act have to be kept in mind and given due weight before directing
inspection and recount. In M.R. Gopalkrishnan v, Thachady Prabhakaran and
Ors.. [1995] Supp. 2 SCC 101 it was held ;-
“After a cursory glance of the relevant provisions discussed above it is
thus abundantly clear that the rules provides adequate Opportunity to a
candidate, his election agent and counting agent to have a watch over the
counting process before the result is declared and if they raise any
objection as to the validity or otherwise or any ballot paper and if the
Said objection is improperly rejected the candidate, his counting and
election agent are well informed of the nature of the objection that was
raised with regard to the ballot papers and make a concise statement of
material/acts in the election petition in relation thereto. It is for these
reasons that this court has repeatedly held that the secrecy Of the vote
has to be maintained and a demand of recount should not ordinarily be
granted unless the election petitioner makes out a prima facie case with
regard to the errors in the counting and is able to show that the errors
are of such magnitude that the result of the election of the returned
candidate is materially affected. The election petitioner, in order to seek
an order of recount, has to place material and make out a prima facie case
on the threshold and before an order of recount is actually made. The
demand of a defeated candidate for recount of votes has to be considered
keeping in view that secrecy of the ballot is sacrosanct in a democracy,
and. therefore, unless the election petitioner is able not only to plead
and disclose the martial facts but also substantiate the same by means of
evidence of reliable Character that there existed a prima facie case for
the recount, no tribunal or court would be justified in directing the
recount.
This Court in Bhabi v. Sheo Govind, [1:976] 1 SCC 687 while dealing with
the question of direction for inspection and recount, on a close and
careful Consideration of various authorities of this court laid down
certain guidelines and conditions which are imperative before a court can
grant inspection of the ballot papers. The said conditions and guidelines
are set out below ;- [SCC pp. 693-694, para 15]
(1) That it is important to maintain the secrecy of the ballot which is
sacrosanct and should not be allowed to be violated on frivolous, vague and
indefinite allegations;
(2) That before inspection is allowed the allegations made against the
elected candidate must be clear and specific and must be supported by
adequate statements of material facts :
(3) the court must be prima facie satisfied on the materials produced
before the Court regarding the truth of the allegations made for a recount;
(4) That the court must come to the conclusion that in order to grant
prayer for inspection it is necessary and imperative to do full justice
between the parties;
(5) That the discretion conferred on the court should not be exercised in
such a way so as to enable the applicant to indulge in a roving inquiry
with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be
ordered to lend further assurance to the prima facie satisfaction of the
Court regarding the truth of the allegations made for a recount, and not
for the purpose of fishing out materials.”
In a recent decision in Satyanarain Dudhari v. Uday Kumar `Singh, [1993]
Suppl. 2 SCC 82 this Court again reiterated the similar view by observing
that the secrecy of the ballot papers cannot be permitted to be tinkered
with lightly and an order of recount cannot be granted as a matter of
course. It is only when the High Court is satisfied on the basis of
material facts pleaded in the petition and supported by the contemporaneous
evidence that recount can be ordered. When there is no contemporaneous
evidence to show any irregularity or illegality in the counting, ordinarily
it would not be proper to order recount on the basis of bare allegations in
the election petition.”
Without commenting upon the merits of the ease, lest it may prejudice the
rights of the parties we feel that the trial Judge was not justified in
rejecting the election petition at the initial stage without affording the
appellant an opportunity to prove the existence of circumstances prima
facie justifying the existence of grounds requiring recount.
In the light of what has been noticed hereinabove, we are of the opinion
that the judgment impugned is not sustainable in the eyes of law.
Accordingly, this appeal is allowed by setting aside the judgment impugned
and remitting the case back to the High Court for trial of the same on
merits after affording the respondent No. 1 to file his detailed written
statement and the parties an opportunity to lead evidence. The High Court
is requested to finally dispose of the election petition expeditiously
preferably within a period of one year. The appellant is also held entitled
to costs which are directed to be paid by respondent No.1 and assessed at
Rs. l0,000/-