{"id":212383,"date":"2003-11-21T00:00:00","date_gmt":"2003-11-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-chinnasamy-vs-k-c-palanisamy-ors-on-21-november-2003"},"modified":"2016-09-14T20:07:54","modified_gmt":"2016-09-14T14:37:54","slug":"m-chinnasamy-vs-k-c-palanisamy-ors-on-21-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-chinnasamy-vs-k-c-palanisamy-ors-on-21-november-2003","title":{"rendered":"M. Chinnasamy vs K.C. Palanisamy & Ors on 21 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. Chinnasamy vs K.C. Palanisamy & Ors on 21 November, 2003<\/div>\n
Bench: Cji, S.B. Sinha, Dr. Ar. Lakshmanan.<\/div>\n
           CASE NO.:\nAppeal (civil)  33 of 2003\n\nPETITIONER:\nM. Chinnasamy\t\t\t\t\t\t\n\nRESPONDENT:\nK.C. Palanisamy & Ors.\t\t\t\t\t\n\nDATE OF JUDGMENT: 21\/11\/2003\n\nBENCH:\nCJI, S.B. Sinha & Dr. AR. Lakshmanan.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
S.B. SINHA for himself and CJI :\n<\/p>\n
\tTo what extent  an election tribunal should exercise
\nits jurisdiction to direct inspection of the ballot papers
\nand recounting of votes polled while determining an election
\npetition in terms of the provisions of the Representation of
\nthe People Act, 1951 (hereinafter referred to as ‘the Act’,
\nfor the sake of brevity) is in question in this appeal which
\narises out of a judgment and order dated 07.11.2002 passed
\nby the High Court of Judicature at Madras in Election
\nPetition No.7 of 2000.\n<\/p>\n
BACKGROUND FACTS :\n<\/p>\n
\tAn election took place for Karur Parliamentary
\nConstituency (26) consisting of six assembly segments on
\n05.09.1999.  Eleven candidates contested the said election.
\nTotal number of votes polled was 719705 and the appellant
\nherein who is the returned candidate having the election
\nsymbol of ‘two leaves’ secured 334407 votes whereas
\nRespondent No.1 herein (the election petitioner) who
\ncontested the said election on the election symbol of
\n‘rising sun’ secured 331560 votes.  The margin of votes
\nbetween the returned candidate and the election petitioner
\nwas, thus, 2847.\n<\/p>\n
\tIt is also not in dispute that 16906 votes were
\nrejected. The chief election agent of the election
\npetitioner on or about 06.10.1999 lodged a complaint
\nalleging irregularities in counting of votes. The said
\ncounting of votes took place on 6.10.1999 and the result
\nthereof was declared at 5.10 A.M. on 7.10.1999.\n<\/p>\n
 \tThe relevant portion of the said complaint reads thus :\n<\/p>\n
\t“Today (6.10.1999) during counting
\nof the votes in all the Six Segments of
\nKarur parliamentary constituency about
\n15,000 votes polled in Rising Sun Symbol
\nof the Candidate K.C. Palanisamy has
\nbeen rejected in violation of the Act
\nand Rules without reason by the
\nAssistant Returning Officers. The oral
\nand written objections raised by the
\nAgents were not accepted.  So our
\ncandidate winning prospect was
\nprevented.\n<\/p>\n
\tIn Election each and every vote is
\nimportant and even one vote difference
\ndecides the result.  Therefore, I kindly
\nrequest you to recount the rejected
\ninvalid votes and thereafter election
\nresult may be declared.”\n<\/p>\n
\tIt is also not dispute that upon holding an inquiry in
\nrelation to the aforementioned complaint (Ex.P9), the
\nreturning officer who examined himself as CW1 rejected the
\nsame holding :\n<\/p>\n
“…The Assistant Returning Officer who
\nwere incharge of the Counting of Ballot
\nPapers in all the 6 Assembly Segments
\ncomprised in 26 Karur Parliamentary
\nConstituency were enquired about the
\nissue raised by the Objection
\nPetitioner.  All of them have reported
\nthat they have decided the rejected
\nBallot Papers only in the presence of
\nthe Counting Agents deputed by the
\ncontesting Candidates for this purpose,
\nand the decisions were taken only in the
\npresence of such counting Agents and
\nwith their concurrence.  No one raised
\nany objection to the decision taken by
\nAssistant Returning Officers in the
\nmatter of rejection of Ballot Papers.
\nIn fact, all of them had appreciated the
\nfairness in the rejection of Ballot
\nPapers by the Assistant Returning
\nOfficers.  The Assistant Returning
\nofficers have stated that no Objection
\nPetition was presented to them at the
\ntime of Counting over the Rejection of
\nBallot Papers.  Even the Poll Observers
\ndeputed by the Election Commission had
\nbeen campaigning in the Counting Centres
\nand no Objections were made to them over
\nthis issue.  The Objections were
\nanalysed to find out whether they are
\nsubstantiated.  It is brought to my
\nnotice by the Assistant Returning
\nOfficers that most of the Ballot Papers
\nwere rejected on the ground “No Marking”
\nand “Multiple Voting”.  The analysis of
\nthe votes polled and Votes rejected
\nduring the present Poll and the previous
\npolls reveals that the total rejected
\nvotes during the previous poll was
\n25,292 as against the total valid votes
\nof 6,49880 whereas the Ballot Papers
\nrejected in the present election is only
\n16,906 as against the total valid Votes
\nof 7,19,705.\n<\/p>\n
\tI find no reason to Order
\nRecounting of rejected Ballot Papers as
\nrequested by the Petitioner and
\naccordingly his request is rejected.”\n<\/p>\n
\tThe election petitioner thereafter filed the election
\npetition before the High Court which was marked as Election
\nPetition No.7 of 2000. Besides raising a question of corrupt
\npractice, allegations were also made as regards
\nirregularities in counting of votes, which were divided in
\nfive different heads, namely :\n<\/p>\n
Category 1 : Rejection of valid votes cast in favour of the
\npetitioner by considering inadvertent thumb impression.\n<\/p>\n
Category 2 : Rejection of valid votes on the basis of
\nPolling Officer’s rubber stamp impression found on ballot
\npaper apart from voter’s instrument mark.\n<\/p>\n
Category 3 : Rejection of valid votes cast on border.\n<\/p>\n
Category 4 : Rejection of valid votes on ground that wrong
\ninstrument used by voter<\/p>\n
Category 5 : Rejection of postal votes cast in favour of the
\npetitioner.\n<\/p>\n
\tEvidences  were  led  to  the  effect that the number
\nof votes which are alleged to have been illegally rejected
\nin Category-1 : 750 votes; in Category-2 : 250 votes; in
\nCategory-3 : 1500 votes; in Category-4 : 5000 votes and in
\nCategory-5 : 300 votes.\n<\/p>\n
The allegations made in the election petition were
\ndenied and disputed by the elected candidate.  He further
\nraised a plea that the allegations made in the said election
\npetition as regard illegal rejection of votes suffered from
\nvagueness.  It was  pointed out that no particulars had been
\ndisclosed in the election petition as to at which centre and
\nat what time the alleged irregularities took place. The
\ndetails of the tables  at which the objections were raised
\nhad also not been disclosed.  Even the names of the counting
\nagents had not been mentioned in the election petition.\n<\/p>\n
Such objections had been raised having regard to the
\nfact that the Parliamentary Constituency consisted of six
\nassembly segments and the counting was done at four
\ndifferent centres.  It had further been contended that the
\nelection petition also does not disclose as to how and in
\nwhat manner the provisions of sub-rules (3) and (4) of Rule
\n56 of the Conduct of Election Rules, 1961 had been breached.\n<\/p>\n
ISSUES :\n<\/p>\n
      On the pleadings of the parties, the High Court
\nframed, inter alia, the following issues :\n<\/p>\n
(1)\tWhether the petitioner has proved acts of
\nserious irregularities in the manner of
\nconduct of election and or in the counting of
\nvotes vitiating the entire election process
\nas well as results?\n<\/p>\n
(2)\tWhether the first respondent and\/or his
\nagents are guilty of corrupt electoral
\npractices or electoral malpractice
\ncontemplated under Section 123 of the
\nRepresentation of the People Act, 1951?\n<\/p>\n
(4)\tWhether the petitioner is entitled to an
\norder of scrutiny and recounting of the
\nballot papers in respect of No.26, Karur
\nParliamentary Constituency as sought in
\nprayer No.(i) of the Election Petition?\n<\/p>\n
HIGH COURT JUDGMENT :\n<\/p>\n
   \tIssue No.2 was decided against the election petitioner.
\nThe allegation as regard irregularity of counting of votes
\nin relation to Category-4 aforementioned, had also not found
\nfavour with the High Court. The High Court, however, having
\nregard to the evidences adduced on behalf of the election
\npetitioner being PWs 1 to 7 held :\n<\/p>\n
“…Having regard to the entire
\nevidence, I am of the view that the
\npetitioner had made out a prima facie
\ncase for re-count of the votes.  The
\nevidence of P.Ws.1 to 7 clearly
\nestablished the counting irregularities
\nrelating to category 1, namely,
\nrejection of valid votes cast in favour
\nof P.W.1 by considering inadvertent
\nthumb impression, Category II, rejection
\nof valid votes on the basis of polling
\nofficer’s rubber stamp impression found
\non the ballot papers apart from voter’s
\ninstrument mark, category III –\n<\/p>\n
rejection of valid votes cast on the
\nborder and category V relating to
\nrejection of postal votes which went in
\nfavour of the petitioner.  Apart from
\nthat, as adverted to, the Returning
\nOfficer had failed to carry out the
\nmandatory requirements provided under
\nthe Guidelines issued by the Election
\nCommission.  The objections given under
\nEx.P.9 have not been properly considered
\nand the alteration made in the date in
\nEx.P.10 coupled with the evidence of
\nP.W.1 and also the delay in declaring
\nthe result of about 7 hours, would only
\nlead to the irresistible conclusion that
\nrecount of the entire votes is a must to
\ndecide the intention of the electoral.
\nSimply because under Ex.p\/9 only a
\nrequest was made for recount of the
\nrejected votes, it cannot be made use of
\npresently and prevent the recount of
\nentire voters.  In the case cited above,
\nit is made clear that it is not
\nnecessary that there should be a request
\nfor recount and if the Returning Officer
\ncomes to know about the irregularities,
\nit is his duty to order recount of the
\nvotes.  Moreover, neither P.W.1 nor his
\nChief Election Agent is qualified in law
\nto expect that they would be able to
\ngive a petition for recount in
\naccordance with law pointing out all
\nirregularities one by one.  When there
\nis substantial compliance in the request
\nunder Ex. P\/9 coupled with the
\nirregularities highlighted and
\nestablished by adducing positive
\nevidence on the side of the 1st
\nrespondent, it is just and necessary
\nthat the entire ballot papers have to be
\ninspected and recounted to pass further
\nand appropriate orders in the case.
\nHence, these issues are answered
\naccordingly.”\n<\/p>\n
SUBMISSIONS :\n<\/p>\n
\tMr. M.N. Rao, learned Senior Counsel appearing on
\nbehalf of the appellant, inter alia, would submit that
\nallegations made in the election petition being general and
\nvague in nature, the purported evidences on the basis
\nwhereof the impugned judgment has been passed were wholly
\ninadmissible.  The learned counsel would submit that a
\nmanifest error has been committed by the High Court in
\naccepting the evidences of PWs 2 to 7 when neither
\nparticulars in relation to the alleged irregularities nor
\nthe names of the counting agents who examined themselves as
\nPWs 2 to 7 had been mentioned in the election petition. In
\nany event, the evidences adduced by PWs 1 to 7 could not
\nhave been accepted by the High Court as they failed and\/or
\nneglected to produce the notebooks  in which they had
\nallegedly been making notes which admittedly had been
\nsupplied to them as regard details of alleged irregularities
\nin counting of votes.  The learned counsel would contend
\nthat even no detailed particulars had been mentioned in the
\ncomplaint filed by the chief election agent of the election
\npetitioner marked as Ex.P\/9.  Mr. Rao would submit that
\nwhile making an inquiry on the objections filed by the chief
\nelection agent of the election petitioner, it was not
\nnecessary for the returning officer to record oral evidence
\nand in that view of the matter the High Court committed an
\nerror in arriving at a finding that the objections under
\nEx.P\/9 had not been properly considered.  Mr. Rao would
\nargue that in an election petition, the Tribunal cannot
\ndirect a roving or fishing inquiry and more so when only
\ngeneral and bald allegations were made.  It was pointed out
\nthat whereas the High Court adopted the correct test in not
\ndirecting recounting in relation to alleged irregularities
\nin counting votes falling within Category-4, it failed to
\napply the same test in relation to other categories.  In any
\nevent, contended the learned counsel, when the prayer in
\nEx.P\/9 revolved round the 15000 rejected votes, all the
\nvotes could not have directed to be recounted.\n<\/p>\n
\tMr. K.K. Mani, learned counsel appearing on behalf of
\nthe respondents, on the other hand, would submit that in an
\nelection petition, it is not necessary to disclose the
\nparticulars of material facts in terms of sub-section (1) of
\nSection 83 of the Act.  The learned counsel would contend
\nthat what is necessary to be stated is the material fact in
\na concise form as is required in terms of clause (a) of
\nsub-section (1) of Section 83 of the Act and no particulars
\nof such material facts are required to be pleaded as in the
\ncase of corrupt practice.  According to the learned counsel,
\nthe chief election agent of the election petitioner having
\nmade serious allegations as regard irregularities in
\ncounting of votes in relation to all the six segments of the
\nParliamentary Constituency, the rule of pleadings would not
\nrequire disclosure of the detailed particulars.  The learned
\ncounsel would submit that as the High Court has passed the
\nimpugned judgment upon consideration of the evidences
\nadduced by the parties, the same does not warrant any
\ninterference by this Court.\n<\/p>\n
STATUTORY PROVISIONS :\n<\/p>\n
\tChapter II of Part VI of the said Act provides for the
\npresentation of election petitions to the Election Tribunal.
\nSection 80 provides that no election shall be called in
\nquestion except by an election petition presented in
\naccordance with the provisions of the said Part. The
\nmaterial part of Section 83 of the said Act reads as under :\n<\/p>\n
“83.Contents of petition.-(1) An election
\npetition –\n<\/p>\n
(a) shall contain a concise statement of
\nthe material facts on which the
\npetitioner relies;\n<\/p>\n
(b)\tshall set forth full particulars of
\nany corrupt practice that the
\npetitioner alleged including as
\nfull a statement as possible of the
\nnames of the parties alleged to
\nhave committed such corrupt
\npractice and the date and place of
\nthe commission of each such
\npractice;”\n<\/p>\n
MATERIAL FACTS :\n<\/p>\n
 \tIt is not in dispute that in relation to an election
\npetition, the provisions of the Code of Civil Procedure
\napply.  In terms of Order VI Rule 2 of the Code of Civil
\nProcedure which is in pari materia with clause (a) of sub-
\nsection (1) of Section 83 an election petition must contain
\nconcise statement of material facts.  It is true as
\ncontended by Mr. Mani that full particulars are required to
\nbe set forth in terms of clause (b) of sub-section (1) of
\nSection 83 of the Act which relates to corrupt practice.
\nThe question as to what would constitute material facts
\nwould, however, depend upon the facts and circumstances of
\neach case. It is trite that an order of recounting of votes
\ncan be passed when the following ingredients are satisfied :
\n(1) If there is  a prima facie case; (2) material facts
\ntherefor are pleaded; (3) the court shall not direct
\nrecounting by way of roving or fishing inquiry; and (4) such
\nan objection had been taken recourse to.\n<\/p>\n
 The necessity of ‘maintaining the secrecy of ballet
\npapers’ should be kept in view before a recounting is
\ndirected to be made. A direction for recounting shall not be
\nissued only because the margin of votes between the returned
\ncandidate and the election petitioner is narrow.\n<\/p>\n
The requirement of rule of pleadings containing
\nmaterial facts are salutary in nature.\n<\/p>\n
The parties are bound by the said rule of pleadings and
\nverification thereof having regard to the fact that an
\nelection may not be set aside on hyper-technical grounds
\nalthough no factual foundation therefor had been laid in the
\npleadings as the elected candidate may not have any hand
\ntherein.  So far as requirement of pleadings in a case where
\na direction of recounting of ballot papers has been prayed
\nfor, the court must proceed cautiously and with
\ncircumspection having regard to the requirement of
\nmaintaining secrecy of ballot papers.  It is not disputed
\nthat the counting was done at four centres. It is further
\nnot disputed that the material facts, as regard as to which
\ncategory of irregularities as enumerated in the election
\npetition occurred, at which centre and at what time, had not
\nbeen pleaded.  It has further not been disclosed the details
\nas regards tables at which such objections were raised, nor
\nthe names of the counting agents had been disclosed.  The
\nvery basis of the election petition centres round the
\nobjections of the Chief Election Agent of the election
\npetitioner dated 6.10.1999 (Ex.P\/9).  We have set out the
\nsaid objections in extenso hereinbefore.  A bare perusal
\nthereof would clearly show that the allegations contained
\ntherein are absolutely vague and lack material particulars.
\nDetails as regard commission of alleged irregularities
\npolice stationwise, assembly segmentwise, polling
\ncounterwise or tablewise had  not been disclosed.  The same
\nby itself goes to show that the Chief Election Agents of the
\nelection petitioner did not raise any objection before the
\nreturning officer and the counting staff as and when such
\nirregularities purported to have been found out.  It may be
\nrelevant to note that even if the said Agent of the election
\npetitioner had not been examined, inter alia, on the ground
\nthat he after declaration of the election result has changed
\nthe sides.\n<\/p>\n
It is also relevant to notice that no material has been
\nbrought on records to show that the factual findings of the
\nReturning Officer as contained in his order dated 6.10.1999
\nare incorrect.\n<\/p>\n
Furthermore, even PWs 2 to 7 in their evidences
\naccepted that they had been supplied with notebooks wherein
\nthey allegedly noted such irregularities.  Such notebooks
\nhad not been produced before the High Court and, thus, an
\nadverse inference against the election petitioner ought to
\nhave been drawn.  It appears from the records that the votes
\nwhich had allegedly not been counted even according to PWs 1
\nto 7 would not cross five hundred marks.  Although in Ex.P\/9
\nit has been contended that “the oral and written objections
\nraised by the agents were not accepted”, but no such written
\nobjection was brought on record.\n<\/p>\n
In relation to the allegations contained in Paras 13
\nand 14 of the election petition regarding bundling of ballot
\npapers and purported wrong transfer of valid votes polled in
\nfavour of Respondent No.1, the High Court has disbelieved
\nthe evidence of PWs 2 to 7 on the ground that they could not
\ngive the details of the counting centres and other proper
\nparticulars, but accepted their evidence as regard  alleged
\nirregularities covered by Categories 1, 2, 3 and 5 for no
\nvalid or cogent reason.\n<\/p>\n
The High Court while considering the objections raised
\nin the election petition in relation to Category-4, inter
\nalia, held such allegations cannot be considered as the same
\nare based on general and vague allegations without any
\nparticulars, observing :\n<\/p>\n
“…Even in the complaint given under
\nEx.P.9, there is no whisper that wrong
\ninstrument has been used by any voter in
\nparticular booth of Constituency, which
\nresulted in invalidating the votes…”\n<\/p>\n
\tDespite the fact that in relation  to the allegations
\nmade under Categories-1, 2, 3 and 5, similar general and
\nvague allegations had been made, the High Court proceeded to
\naccept the evidences of the said witnesses.\n<\/p>\n
The High Court should not have accepted the evidence of
\nPWs 2 to 7 when there are no particulars in the election
\npetition and the names of counting agents had not even been
\nmentioned in the pleadings.\n<\/p>\n
\tThe High Curt furthermore applied a wrong legal test in
\npassing the impugned judgment insofar as it proceeded to
\nhold that the first respondent would not be prejudiced, if a
\nrecounting is ordered.  The test required to be applied for
\ndirecting a recounting being well-settled, the High Court
\nmust be held to have misdirected itself in law.  The
\nquestion of prejudice of the election petitioner would not
\nbe a relevant factor keeping in view the constitutional and
\nstatutory scheme involving holding of an election and the
\nconsequences emanating from the direction of recounting
\nwhich may lead to identification of voters as the same is
\nnot at all desirable.\n<\/p>\n
\tIn the instant case, it was all the more necessary for
\nthe election petitioner to plead the material facts with
\ncertain precisions having regard to Ex.P\/9 in terms whereof
\nthe recounting was prayed having regard to alleged rejection
\nof 15000 votes. Furthermore although a distinction exists in
\nterms of clauses (a) and (b) of Section 83(1) of the Act,
\nbut it should be borne in mind that pleading of material
\nfact would include disclosure of all such information which
\nif not rebutted would result in allowing the petition.  A
\ndistinction between ‘particulars’ and ‘full particulars’
\nshould also be borne in mind.\n<\/p>\n
\tHad the election petitioner in his pleadings, as
\nnoticed hereinbefore, disclosed the details of the names of
\npolling stations, counting centres, the tables, particulars
\nof round of the counting of votes in relation whereto
\nalleged irregularities had taken place under all the four
\ncategories and basis of material facts and particulars, the
\nHigh Court, if finds, that election petitioner has made out
\nprima facie case for scrutiny of ballot papers and recount,
\nit may direct for recount of ballot papers in respect of the
\nsaid votes only and not the entire votes.  The High Court
\nfurther failed to notice that in para 12 of the election
\npetition it has merely been pointed out that irregularities
\nin respect counting had materially affected the election and
\nin that view of the matter, the High Court should not have
\ndirected recounting of all the votes which would amount to
\ngoing beyond the said election.\n<\/p>\n
CASE LAWS :\n<\/p>\n
\tThe law operating in the field is no longer res
\nintegra. Inspection of ballot papers can be ordered when in
\nthe facts and circumstances obtaining in the case, the
\nTribunal finds it necessary to so direct in the interest of
\njustice.  Discovery and inspection of documents with which
\nthe civil court is invested with power under the Code of
\nCivil Procedure when trying a suit may be applied but such
\nan order would not be granted as a matter of course having
\nregard to the insistence upon the secrecy of the ballot
\npapers. Such an inspection may be ordered when two
\nconditions are fulfilled :\n<\/p>\n
(i)\tthat the petition for setting aside an election
\ncontains an adequate statement of the material
\nfacts on which the petitioner relies in support
\nof his case; and\n<\/p>\n
(ii)\tthe Tribunal is prima facie satisfied that in
\norder to decide the dispute and to do complete
\njustice between the parties inspection of the
\nballot papers is necessary..\n<\/p>\n
[See Ram Sevak Yadav vs. Hussain Kamil Kidwai &
\nOrs.<\/a> [1964 (6) SCR 238]<\/p>\n
Upon considering the provisions of the Act and the
\nConduct of Election Rules, 1961, the Court in Ram Sewak
\nYadav (supra) held :\n<\/p>\n
“There can therefore be no doubt that
\nat every stage in the process of
\nscrutiny and counting of votes the
\ncandidate or his agents have an
\nopportunity of remaining present at the
\ncounting of votes, watching the
\nproceedings of the Returning Officer,
\ninspecting any rejected votes, and to
\ndemand a re-count. Therefore a candidate
\nwho seeks to challenge an election on
\nthe ground that there has been improper
\nreception, refusal or rejection of votes
\nat the time of counting, has ample
\nopportunity of acquainting himself with
\nmanner in which the ballot boxes were
\nscrutinized and opened, and the votes
\nwere counted. He has also opportunity of
\ninspecting rejected ballot papers, and
\nof demanding a re-count. It is in the
\nlight of the provisions of s. 83(1)
\nwhich require a concise statement of
\nmaterial facts on which the petitioner
\nrelies and to the opportunity which a
\ndefeated candidate had at the time of
\ncounting, of watching and of claiming a
\nrecount that the application for
\ninspection must be considered.”\n<\/p>\n
In Dr. Jagjit Singh vs. Giani Kartar Singh and Others<\/a>
\n[AIR 1966 SC 773], before a 3-Judge Bench of this Court, a
\ncontention was raised to the effect that when a Tribunal
\nconsidering the evidence in the light of the allegations
\nmade by the election petitioner was satisfied that
\ninspection should be ordered, the same should not ordinarily
\nbe reversed in appeal, this Court held :\n<\/p>\n
“We are not prepared to accept this
\ncontention.  The order passed by the
\nTribunal clearly shows that the Tribunal
\ndid not apply its mind to the question
\nas to whether sufficient particulars had
\nbeen mentioned by the appellant in his
\napplication for inspection.  All that
\nthe tribunal has observed is that a
\nprima facie case has been made out for
\nexamining the ballot papers; it has also
\nreferred to the fact that the appellant
\nhas in his own statement supported the
\ncontention and that the evidence led by
\nhim prima facie justifies his prayer for
\ninspection of ballot papers.  In dealing
\nwith this question, the Tribunal should
\nhave first enquired whether the
\napplication made by the appellant
\nsatisfied the requirements of S. 83(1)
\nof the Act; and, in our opinion, on the
\nallegations made, there can be only one
\nanswer and that is against the
\nappellant.  We have carefully considered
\nthe allegations made by the appellant in
\nhis election petition as well as those
\nmade by him in his application for
\ninspection and we are satisfied that the
\nsaid allegations are very vague and
\ngeneral and the whole object of the
\nappellant in asking for inspection was
\nto make a fishing enquiry with a view to
\nfind out some material to support his
\ncase that respondent No.1 had received
\nsome invalid votes and that the
\nappellant had been denied some valid
\nvotes.  Unless an application for
\ninspection of ballot papers makes out a
\nproper case for such inspection it would
\nnot be right for the Tribunal to open
\nthe ballot boxes and allow a party to
\ninspect the ballot papers, and examine
\nthe validity or invalidity of the ballot
\npapers contained in it.  If such a
\ncourse is adopted, it would inevitably
\nlead to the opening of the ballot boxes
\nalmost in every case, and that would
\nplainly be inconsistent with the scheme
\nof the statutory rules and with the
\nobject of keeping the ballot papers
\nsecret.”\n<\/p>\n
(See also Bbhabhi vs. Sheo Govind & Ors.\n<\/p>\n
– (1976) 1 SCC 687)<\/p>\n
In Km. Shradha Devi vs. Krishna Chandra Pant and Others<\/a>
\n[(1982) 3 SCC 389 (II)], this Court observed :\n<\/p>\n
“If the re-count is limited to those
\nballot-papers in respect of which there
\nis a specific allegation of error and
\nthe correlation is established, the
\napproach would work havoc in a
\nparliamentary constituency where more
\noften we find 10,000 or more votes being
\nrejected as invalid. Law does not
\nrequire that while giving proof of prima
\nfacie error in counting each head of
\nerror must be tested by only sample
\nexamination of some of the ballot-papers
\nwhich answer the error and then take
\ninto consideration only those ballot-
\npapers and not others. This is not the
\narea of enquiry in a petition for relief
\nof re-count on the ground of miscount.
\nTrue it is that ‘a re-count is not
\ngranted as of right, but on evidence of
\ngood grounds for believing that there
\nhas been a mistake on the part of
\nReturning Officer’ (See Halsbury’s Laws
\nof England, 4th Edn., Vol. 15, para\n<\/p>\n
940). This Court has in terms held that
\nprima facie proof of error complained of
\nmust be given by the election petitioner
\nand it must further be shown that the
\nerrors are of such magnitude that the
\nresult of the election so far as it
\naffects the returned candidate is
\nmaterially affected; then re-count is
\ndirected”\n<\/p>\n
In D.P. Sharma vs. Commissioner and Returning Officer
\nand Others<\/a> [(1984) Supp. SCC 157], this Court laid down the
\nlaw in the following terms :\n<\/p>\n
“…It is well established that in
\norder to obtain re-count of votes a
\nproper foundation is required to be laid
\nby the election petitioner indicating
\nthe precise material on the basis of
\nwhich it could be urged by him with some
\nsubstance that there has been either
\nimproper reception of invalid votes in
\nfavour of the elected candidate or
\nimproper rejection of valid votes in
\nfavour of the defeated candidate or
\nwrong counting of votes in favour of the
\nelected candidate which had in reality
\nbeen cast in favour of the defeated
\ncandidate…”\n<\/p>\n
In Satyanarain Dudhani  vs. Uday Kumar Singh and Others<\/a>
\n[(1993) Supp. (2) SCC 82], this Court laid down :\n<\/p>\n
“A cryptic application claiming recount
\nwas made by the petitioner-respondent
\nbefore the Returning Officer. No details
\nof any kind were given in the said
\napplication. Not even a single instance
\nshowing any irregularity or illegality
\nin the counting was brought to the
\nnotice of the Returning Officer. We are
\nof the view when there was no
\ncontemporaneous evidence to show any
\nirregularity or illegality in the
\ncounting ordinarily, it would not be
\nproper to order recount on the basis of
\nbare allegations in the election
\npetition. We have been taken through the
\npleadings in the election petition. We
\nare satisfied that the grounds urged in
\nthe election petition do not justify for
\nordering recount and allowing inspection
\nof the ballot papers. It is settled
\nproposition of law that the secrecy of
\nthe ballot papers cannot be permitted to
\nbe tinkered lightly. An order of recount
\ncannot be granted as a matter of course.
\nThe secrecy of the ballot papers has to
\nbe maintained and only when the High
\nCourt is satisfied on the basis of
\nmaterial facts pleaded in the petition
\nand supported by the contemporaneous
\nevidence that the recount can be
\nordered.”\n<\/p>\n
In Ram Rati (Smt) vs. Saroj Devi and Others<\/a> [(1997) 6
\nSCC 66], it was observed :\n<\/p>\n
“…In the light of the mandatory
\nlanguage of Rule 76 of the Rules, it is
\nincumbent upon a candidate or an agent,
\nif the candidate was not present, to
\nmake an application in writing and give
\nreasons in support thereof, while
\nseeking recounting. If it is not done,
\nthen the tribunal or the court is not
\nempowered to direct recounting even
\nafter adduction of evidence and
\nconsideration of the alleged
\nirregularities in the counting…”\n<\/p>\n
Yet again in Mahant Ram Prakash Dass vs. Ramesh Chandra
\nand Others<\/a> [(1999) 9 SCC 420], this Court held :
\n“So far as round six, which is the last
\nand the final round, is concerned, the
\ncharge made by the appellant in para 6
\nof the petition is in the following
\nterms :-\n<\/p>\n
“Round No. 6, serial No. 79\/9 i.e.
\ntable No. 9, there is a cutting on
\nthe votes secured by the petitioner
\nas 462. None of these cuttings,
\nalterations has been authenticated by
\nthe Returning Officer or any other
\nofficer concerned at any stage.”
\n We have seen the original Form 20 and
\nwe do not find any corrections made
\ntherein. It is only in the copies, that
\nwere typed thereafter, that
\ndiscrepancies have crept in, which have
\nbeen sought to be corrected and copies
\nthereof are furnished to the appellant.
\nOn the basis of such copies no case
\ncould have been made out by the
\nappellant. Thus there is no plea at all
\nso far as round 6 is concerned pointing
\nout any discrepancy or irregularity in
\nthe matter of counting. Hence we find no
\ncase is made out by the appellant in the
\ncourse of the petition. In the absence
\nof any pleading thereof, we find it
\ndifficult to accept the case put forth
\nby the appellant that there was any
\nirregularity in the 6th round of
\ncounting.”\n<\/p>\n
In P.H. Pujar vs. Kanthi Rajashekhar Kidiyappa and
\nOthers<\/a> [(2002) 3 SCC 742], it was laid down as under :\n<\/p>\n
“…The petitioner seeking re-count
\nshould allege and prove that there was
\nimproper acceptance of votes or improper
\nrejection of valid votes. If only the
\nCourt is satisfied about the
\ntruthfulness of the said allegations can
\nit order re-count of votes. Secrecy of
\nballot has always been considered
\nsacrosanct in a democratic process of
\nelection and it cannot be disturbed
\nlightly by bare allegations of
\nillegality and irregularity in
\ncounting…”\n<\/p>\n
[See also T.H. Musthaffa vs. M.P. Varghese and Others<\/a>
\n[(1999) 8 SCC 692].\n<\/p>\n
In D. Ramachandran Vs. R.V. Janakiraman and Others
\n[(1999) 3 SCC 267] this Court held:
\n“We do not consider it necessary to
\nrefer in detail to any part of the
\nreasoning in the judgment; Instead, we
\nproceed to consider the arguments
\nadvanced before us on the basis of the
\npleadings contained in the election
\npetition. It is well settled that in all
\ncases of preliminary objection, the test
\nis to see whether any of the reliefs
\nprayed for could be granted to the
\nappellant if the averments made in the
\npetition are proved to be true. For the
\npurpose of considering a preliminary
\nobjection, the averments in the petition
\nshould be assumed to be true and the
\ncourt has to find out whether those
\naverments disclose a cause of action or
\na triable issue as such. The Court can
\nnot probe into the facts on the basis of
\nthe controversy raised in the counter.”\n<\/p>\n
 \tIn Mohan Rawale Vs. Damodar Tatyaba Alias Dadasaheb and
\nOthers [(1994) 2 SCC 392] this Court observed:
\n“12. Further, the distinction between
\n“material facts” and “full particulars”
\nis one of degree. The lines of
\ndistinction are not sharp. “Material
\nfacts” are those which a party relies
\nupon and which, if he does not prove, he
\nfails at the time.\n<\/p>\n
13. In Brace v. Odhams Press Ltd.,
\n(1936) 1 KB 697 : (1936) 1 All ER 287
\nScott L.J. said:\n<\/p>\n
“The word ‘material’ means
\nnecessary for the purpose of
\nformulating a complete cause of
\naction; and if any one ‘material’
\nstatement is omitted, the statement
\nof claim is bad.” The purpose of
\n“material particulars” is in the
\ncontext of the need to give the
\nopponent sufficient details of the
\ncharge set up against him and to
\ngive him a reasonable opportunity.\n<\/p>\n
14. Halsbury refers to the function of
\nparticulars thus:\n<\/p>\n
“The function of particulars is to
\ncarry into operation the overriding
\nprinciple that the litigation
\nbetween the parties, and
\nparticularly the trial, should be
\nconducted fairly, openly and
\nwithout surprises, and incidentally
\nto reduce costs. This function has
\nbeen variously stated, namely
\neither to limit the generality of
\nthe allegations in the pleadings,
\nor to define the issues which have
\nto be tried and for which discovery
\nis required.”\n<\/p>\n
(See: Pleadings Vol. 36, para 38)\n<\/p>\n
15. In Bullen and Leake and Jacob’s
\n“Precedents of Pleadings” 1975 Edn. at
\np. 112 it is stated:\n<\/p>\n
“The function of particulars is to
\ncarry into operation the overriding
\nprinciple that the litigation
\nbetween the parties, and
\nparticularly the trial, should be
\nconducted fairly, openly and
\nwithout surprises and incidentally
\nto save costs. The object of
\nparticulars is to ‘open up’ the
\ncase of the opposite party and to
\ncompel him to reveal as much as
\npossible what is going to be proved
\nat the trial, whereas, as Cotton
\nL.J. has said, ‘the old system of
\npleading at common law was to
\nconceal as much as possible what
\nwas going to be proved at the
\ntrial’,”\n<\/p>\n
16. The distinction between ‘material
\nfacts’ and ‘particulars’ which together
\nconstitute the facts to be proved — or
\nthe facta probanda — on the one hand
\nand the evidence by which those facts
\nare to be proved –facta probantia — on
\nthe other must be kept clearly
\ndistinguished. In Philipps v. Philipps,
\nBrett, (1878) 4 QBD 127, 133 L.J. said:
\n“I will not say that it is easy to
\nexpress in words what are the facts
\nwhich must be stated and what
\nmatters need not be stated. … The
\ndistinction is taken in the very
\nrule itself, between the facts on
\nwhich the party relies and the
\nevidence to prove those facts. Erle
\nC.J. expressed it in this way. He
\nsaid that there were facts that
\nmight be called the allegata
\nprobanda, the facts which ought to
\nbe proved, and they were different
\nfrom the evidence which was adduced
\nto prove those facts. And it was
\nupon the expression of opinion of
\nErie C.J. that Rule 4 [now Rule
\n7(1)] was drawn. The facts which
\nought to be stated are the material
\nfacts on which the party pleading
\nrelies.”\n<\/p>\n
17. Lord Denman, C.J. in William v.
\nWilcox, (1838) 8 Ad & El 331 said:\n<\/p>\n
“It is an elementary rule in
\npleading that, when a state of
\nfacts is relied it is enough to
\nallege it simply, without setting
\nout the subordinate facts which are
\nthe means of proving it, or the
\nevidence sustaining the
\nallegations.”\n<\/p>\n
18. An election petition can be rejected
\nunder Order VII Rule 11(a) CPC if it
\ndoes not disclose a cause of action.
\nPleadings could also be struck out under
\nOrder VI Rule 16, inter alia, if they
\nare scandalous, frivolous or vexatious.
\nThe latter two expressions meant cases
\nwhere the pleadings are obviously
\nfrivolous and vexatious or obviously
\nunsustainable.”\n<\/p>\n
Mr. Mani, however, has placed strong reliance on P.K.K.
\nShamsudeen vs. K.A.M. Mappillai Mohindeen and Others<\/a> [(1989)
\n1 SCC 526].  A two-Judge Bench of this Court therein took
\nnote of Ram Sewak Yadav (supra) and R.Narayan vs. S.
\nSemmalai and Others<\/a> [(1980) 2 SCC 537] wherein it was
\nobserved :\n<\/p>\n
“Thus the settled position of law is
\nthat the justification for an order for
\nexamination of ballot papers and recount
\nof votes is not to be derived from
\nhindsight and by the result of the
\nrecount of votes. On the contrary, the
\njustification for an order of recount of
\nvotes should be provided by the material
\nplaced by an election petitioner on the
\nthreshold before an order for recount of
\nvotes is actually made. The reason for
\nthis salutary rule is that the
\npreservation of the secrecy of the
\nballot is a sacrosant principle which
\ncannot be lightly or hastily broken
\nunless there is prima facie genuine need
\nfor it. The right of a defeated
\ncandidate to assail the validity of an
\nelection result and seek recounting of
\nvotes has to be subject to the basic
\nprinciple that the secrecy of the ballot
\nis sacrosanct in a democracy and hence
\nunless the affected candidate is able to
\nallege and substantiate in acceptable
\nmeasure by means of evidence that a
\nprima facie case of a high degree of
\nprobability existed for the recount of
\nvotes being ordered by the Election
\nTribunal in the interests of justice, a
\nTribunal or court should not order the
\nrecount of votes.”\n<\/p>\n
Natarajan, J. having regard to the averments made in
\nthe election petition observed that neither the averments in
\nthe pleadings nor the evidence adduced were of such
\ncompulsive nature as could have made the Tribunal reach a
\nprima facie satisfaction that there was adequate
\njustification for the secrecy of ballot papers.  The said
\ndecision, therefore, runs counter to the submissions of the
\nlearned counsel.\n<\/p>\n
In Jibontara Ghatowar vs. Sarbananda Sonowal and Others<\/a>
\n[(2003) 6 SCC 452], wherein a case was made out that 824
\nballot papers were rejected contrary to the provisions
\ncontained in Rule 63 of the Conduct of Elections Rules and
\nin violation of the law laid down by this Court in Arun
\nKumar Bose vs. Mohd. Furkan Ansari<\/a> [(1984) 1 SCC 91], this
\nCourt held that the High Court was in error in refusing to
\ndirect the recounting of votes. While making the said
\nobservations, the Court relied upon an earlier decision of
\nthis in T.A. Ahammed Kabeer vs. A.A. Azeez and Others<\/a>
\n[(2003) 5 SCC 650], wherein one  of the members, Lahoti, J.
\nwas also a party noticing :\n<\/p>\n
“27. Though the inspection of ballot
\npapers is to be allowed sparingly and
\nthe court may refuse the prayer of the
\ndefeated candidate for inspection if, in
\nthe garb of seeking inspection, he was
\nindulging in a roving enquiry in order
\nto fish out materials to set aside the
\nelection, or the allegations made in
\nsupport of such prayer were vague or too
\ngeneralized to deserve any cognizance.
\nNevertheless, the power to direct
\ninspection of ballot papers is there and
\nought to be exercised if, based on
\nprecise allegations of material facts,
\nalso substantiated, a case for
\npermitting inspection is made out as is
\nnecessary to determine the issue arising
\nfor decision in the case and in the
\ninterest of justice.”\n<\/p>\n
28.\tIt is true that a recount is
\nnot to be ordered merely for the asking
\nor merely because the court is inclined
\nto hold a re-count.  In order to protect
\nthe secrecy of ballots the court would
\npermit a re-count only upon a clear case
\nin that regard having been made out.  To
\npermit or not to permit a recount is a
\nquestion involving jurisdiction of the
\ncourt.  Once a recount has been allowed
\nthe court cannot shut its eyes on the
\nresult of recount on the ground that the
\nresult of recount as found is at
\nvariance with the pleadings.  Once the
\ncourt has permitted recount within the
\nwell-settled parameters of exercising
\njurisdiction in this regard, it is the
\nresult of the recount which has to be
\ngiven effect to.”\n<\/p>\n
With respect we are not in a position to endorse the
\nviews taken therein in its entirety.  Unfortunately, the
\ndecision of a larger Bench of this Court in Jagjit Singh
\n(supra) had not been noticed therein.  Apart from the clear
\nlegal position as laid down in several decisions, as noticed
\nhereinbefore, there cannot be any doubt or dispute that only
\nbecause a recounting has been directed, it would be held to
\nbe sacrosanct to the effect that although in a given case
\nthe court may find such evidence to be at variance with the
\npleadings, the same must be taken into consideration. It is
\nnow well-settled principle of law that evidence adduced
\nbeyond the pleadings would not be admissible nor any
\nevidence can be permitted to be adduced which is at variance
\nwith the pleadings.  The court at a later stage of the trial
\nas also the appellate court having regard to the rule of
\npleadings would be entitled to reject the evidence wherefor
\nthere does not exist any pleading.\n<\/p>\n
\tFurthermore, the High Court has not arrived at a
\npositive finding as to how a prima facie case has been made
\nout for issuing a direction for recounting.  It is well-
\nsettled that prima facie case must be made out for scrutiny
\nand recounting of ballot papers where it is of the opinion
\nthat the errors are of such magnitude as to materially
\naffect the election. [See M.R. Gopalakrishan vs. Thachady
\nPrabhakaran<\/a> – 1995 Supp.(2) SCC 101].\n<\/p>\n
EXTENT OF PROOF :\n<\/p>\n
\tThe requirement of laying foundation in the pleadings
\nmust also be considered having regard to the fact that the
\nonus to prove the allegations was on the election
\npetitioner.  The degree of proof for issuing a direction of
\nrecounting of votes must be of a very high standard and is
\nrequired to be discharged. [See Mahender Pratap vs. Krishan
\nPal and Others<\/a> – (2003) 1 SCC 390].\n<\/p>\n
\tIn T.H. Mustaffa (supra), this Court held that when the
\npleadings do not contain the material facts and necessary
\nparticulars, any amount  of evidence would be insufficient.\n<\/p>\n
Even in the recount it was found that the returned
\ncandidate has not secured majority of the votes, the result
\ncould not have been disturbed, unless prima facie case of
\nhigh degree of probability existed for recount of votes.
\n[See P.K.K. Shamsudeen vs. K.A.M. Mapillai Mohindeen<\/a> –
\n(1989) 1 SCC 526 at 530, 531].\n<\/p>\n
\tFor the reasons aforementioned, the impugned judgment
\ncannot be sustained.  It is set aside accordingly.  The
\nappeal is allowed. However, there shall be no order as to
\ncosts.\n<\/p>\n
\tHowever, keeping in view the fact that the election
\npetition is pending for a long time, the High Court may
\nconsider the desirability of disposing of the same as
\nexpeditiously as possible and preferably within a period of
\nthree months from the date of receipt of a copy of this
\norder.  The records of the case, if received, be sent down
\nforthwith.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. Chinnasamy vs K.C. Palanisamy & Ors on 21 November, 2003 Bench: Cji, S.B. Sinha, Dr. Ar. Lakshmanan. CASE NO.: Appeal (civil) 33 of 2003 PETITIONER: M. Chinnasamy RESPONDENT: K.C. Palanisamy & Ors. DATE OF JUDGMENT: 21\/11\/2003 BENCH: CJI, S.B. Sinha & Dr. AR. Lakshmanan. JUDGMENT: J U D G M […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-212383","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. Chinnasamy vs K.C. 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