{"id":220604,"date":"1975-07-31T00:00:00","date_gmt":"1975-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-autar-singh-bhadauria-vs-ram-gopal-singh-and-others-on-31-july-1975"},"modified":"2016-01-21T12:37:40","modified_gmt":"2016-01-21T07:07:40","slug":"ram-autar-singh-bhadauria-vs-ram-gopal-singh-and-others-on-31-july-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-autar-singh-bhadauria-vs-ram-gopal-singh-and-others-on-31-july-1975","title":{"rendered":"Ram Autar Singh Bhadauria vs Ram Gopal Singh And Others on 31 July, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Autar Singh Bhadauria vs Ram Gopal Singh And Others on 31 July, 1975<\/div>\n
Equivalent citations: 1975 AIR 2182, \t\t 1976 SCR (1) 191<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nRAM AUTAR SINGH BHADAURIA\n\n\tVs.\n\nRESPONDENT:\nRAM GOPAL SINGH AND OTHERS\n\nDATE OF JUDGMENT31\/07\/1975\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nKRISHNAIYER, V.R.\nGUPTA, A.C.\n\nCITATION:\n 1975 AIR 2182\t\t  1976 SCR  (1) 191\n 1976 SCC  (1)\t43\n CITATOR INFO :\n D\t    1976 SC2184\t (20)\n E\t    1980 SC 206\t (23)\n RF\t    1980 SC1362\t (33)\n D\t    1990 SC 838\t (10)\n\n\nACT:\n     Representation  of\t the\tPeople\tAct,  1951-Sec.\t 97,\n100(1)(d)(iii)-Conduct of  Election Rules  1961-Rule 38\t and\n56-General recount  and\t  inspection when   to\tbe  allowed-\nRecriminatory pleas.\n\n\n\nHEADNOTE:\n     The appellant and respondent no. 1 and other candidates\ncontested  the\t election  from\t U.P.  Legislative  Assembly\nConstituency (No. 293), Sarsaul. The appellant secured 23626\nvotes and respondent no. 1 polled 23604, the margin being of\n22 votes only.\n     Respondent no. 1 filed an Election Petition challenging\nthe election  of the appellant inter alia on the ground that\nthe result  of the election so far as the returned candidate\nwas concerned  was materially affected by improper reception\nand rejection  of votes\t and mistakes  in counting.  It\t was\nalleged that  41 ballot\t papers were  rejected on the ground\nthat  the   electors'  choice\twas  expressed\tthrough\t the\ninstrument meant  for the  Presiding officer for stamping on\nthe reverse  side of  the ballot  papers. the particulars of\nthose ballot  papers were  given in  Schedule annexed to she\nElection Petition.  It was  further alleged that some ballot\npapers were  issued along  with the  counter foil  and\twere\ntherefore rejected.  The appellant  in his written statement\ndenied the  allegations and  stated that  the result  of the\nelection was  not materially  affected. Respondent no. I did\nnot adduce  any\t evidence  in  support\tof  his\t allegations\nmentioned above\t but made  an application  before  the\tHigh\nCourt for  scrutiny and\t recount of  the ballot\t papers. The\nHigh Court allowed the application and directed scrutiny and\nrecount of ballot papers on the following grounds:\n     (a) The  appellant woo  by a  very small  margin of  22\nvotes\n     (b) It  was not disputed that a number of ballot papers\nwere rejected because the polling staff forgot to detach the\ncounter-foils on a number of ballot papers.\n     (c) It  is also the admitted case or the parties that a\nnumber of  ballot papers  were rejected\t because the  voters\ncast their  votes by putting their mark not with the marking\ninstrument issued  by the  Election Commission\tbut with the\nmarking or  stamping instrument\t issued for  the use  of the\nPresiding officers.\n      (d)  lt is  clear from the petition, written statement\nand recriminatory petition filed by the respondent that both\nparties pleaded that there was wrong reception rejection and\ncounting of votes.\n     The appellant  filed an appeal by special Leave against\nthe said order of the Appellate Court.\n     Allowing the appeal ,\n^\n     HELD  :   (1)  The\t  returned  candidate\t   had\t not\ncategorically\tand specifically  admitted the\t allegations\nmade in\t the Election  Petition with  regard to the improper\nrejection of the ballot papers. [195F-G]\n     (2) Since\tthe appellant did not admit the allegations,\nthe court  could not  dispense with  proof  of\tthose  facts\naltogether. [196A-C]\n     (3)  The\tAdditional  pleas  set\tup  in\tthe  written\nstatements were\t irrelevant  to\t beyond\t the  scope  of\t the\nenquiry\t into  the  allegations\t in  the  Election  Petition\nfalling under s. 100(1)(d)(iii) of the Representation of the\nPeople Act,  1951. These Additional pleas were in the nature\nof recriminatory pleas\n192\nwhich could  not be  investigated in this Election Petition.\nThe scope  of the   enquiry is limited for the simple reason\nthat what  the clause  requires to  be considered is whether\nthe election  of the  returned candidate has been materially\naffected and nothing else. [197C-F]\n     (4) The  pleas of\tthe returned  candidate under  s. 97\nhave to\t be tried  after declaration  has been made under s.\n100 of the Act. [197F-G]\n     The learned  judge as  in\terror  in  ordering  general\ninspection and\trecount of  the total  votes polled  at\t the\nelection, merely  because  in  these  Additional  Pleas\t the\nreturned  candidate   also  had\t by  way  of  recrimination,\ncomplained of  wrong reception\tand rejection  of votes\t and\nwrong counting of votes. [198B-C]\n     The  High\tCourt  failed  to  apply  its  mind  to\t the\nquestion, whether  if the facts alleged in the petition were\nassumed to  be\tcorrect-a  prima  facie\t case  for  improper\nrejection of  the so  ballot papers-was made out. Rule 38 of\nthe Conduct  of Election  Rules, 1961, requires every ballot\npaper and  the counter- foil attached thereto to be, stamped\non  the\t  back\tby   the   Presiding   officer\t with\tsuch\ndistinguishing mark as the Election Commission might direct.\nRule 56 requires every elector to whom ballot paper has been\nissued to  maintain secrecy  of voting\tand making a mark on\nthe ballot paper with the instrument supplied the purpose by\nthe Election  Commission. The  object of  these rules  is to\nsecure not  only the  secrecy of  the  ballot  but  also  to\neliminate chances  of sharp  practices\tin  the\t conduct  of\nelection. The  requirements, are, therefore. mandatory and a\ndefect arising\tfrom their non-observance inexorably entails\nrejection of the defective ballot papers. [198D-F; 199G-H]\n     The High  Court had  to apply  its mind  as to  whether\nthese facts  by themselves  were sufficient  to attract rule\n56. The\t High court had also to apply its mind as to whether\nthe facts  alleged in  the petition,  if correct, would fall\nwithin the mischief of rule 56. [200B; 202A-B]\n     Times out\tof number, this Court has pointed out that a\ngeneral scrutiny and recount of the ballot papers should not\nbe lightly  ordered. Before  making  such  as  extraordinary\norder, the  Court must\tbe satisfied  that all\tthe material\nfacts. have  been pleaded  and proved and that such a course\nis imperatively\t necessary in  the interests  of justice. In\nthe present  case. there  was no  foundation in the petition\nfor ordering  a general\t recount. Nor  could the  Additional\nPleas in  the written statement of the returned candidate be\ntaken  into   account  for   making  an\t order\tfor  general\ninspection of the ballots [202C-E]\n     The order of the High Court was set aside. [203B]\n     The High  Court was  directed to  decide the  questions\nmentioned in  this judgment  and,  thereafter,\tdecided\t the\napplication of\tthe Respondent\tno. 1  for  recount  of\t the\nspecific ballot papers [203B-E]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 783 of
\n1975.\n<\/p>\n
     Appeal by\tspecial leave  from the\t judgment and  order
\ndated the  9th April  1975 of  the Allahabad  High Court  in
\nApplication No. A. 7 ion Petition No. 22 of 1974.\n<\/p>\n
     R K.  Garg, S.  C. Agarwala  and V. J. Francis, for the
\nappellant.\n<\/p>\n
     D. Mukherjee and Pramod Swarup, for respondent No. 1.
\n     The Judgment of the Court was delivered by
\n     SARKRIA J.\t We have already announced our order in this
\nappeal on  the 2nd  May 1975.  We now  proceed to  give\t our
\nreasons therefor.\n<\/p>\n
193<\/span><\/p>\n
     The  appellant,   Shri  Ram   Autar  Singh\t  Bhadauria.
\nRespondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2
\nto 11  contested election,  as rival  candidates from  U. P.
\nLegislative Assembly  Constituency (No.\t 293), Sarsaul.\t The
\npoll was  held on  24-2-1974.  The  appellant  was  declared
\nelected. The  total number of votes polled was 72735. Out of
\nthese, the  appellant secured  23626 and  Respondent 1,\t his
\nnearest rival  polled 23604,  the margin  being of  22 votes
\nonly.\n<\/p>\n
     Respondent 1 filed an election petition challenging the
\nelection of  the appellant  inter alia\ton the\tground (vide
\npara 9(1)  of the  petition) that the result of the election
\nso far\tas the\treturned candidate  was concerned materially
\naffected by  improper reception\t and rejection\tof votes and
\nmistakes in counting. It was alleged:\n<\/p>\n
\t  “para 11(a). That in a number of polling stations,
\n     the  instruments  supplied\t to  the  electors  for\t the
\n     purposes of  stamping on  or near\tthe  symbol  of\t the
\n     candidate to  whom he  intends to\tvote,  was  seal  of
\n     Presiding officer\twhich was  meant to  be put  on\t the
\n     reverse of\t the ballot  papers. Since the electors were
\n     supplied these instruments by the Presiding officer for
\n     marking the  ballot papers the electors indicated their
\n     choice by\tmarking in the column of the petitioner with
\n     that instrument. There were 41 such ballot papers which
\n     were clear votes for the petitioner that were illegally
\n     rejected by  the Presiding\t officer on  the ground that
\n     the  electors’   choice  was   expressed  through\t the
\n     instrument meant for the Presiding officer for stamping
\n     on the  reverse side  of the ballot papers. Particulars
\n     of such  ballot papers are given in Schedule I attached
\n     to the Election Petition.\n<\/p><\/blockquote>\n
\t  (b) That  in a  number of  polling  stations,\t the
\n     electors were  issued  ballot  papers  along  with\t the
\n     counter-foil. While  issuing the  ballot papers  to the
\n     electors, the  polling staff  . deputed  there did\t not
\n     detach the\t counter foil and the electors after putting
\n     seal mark\tput the ballot papers along with the counter
\n     foil in  the ballot  box. It  was due to the mistake of
\n     the staff deputed at the polling station. The number of
\n     some of  such ballot papers are-100976, 100977, 100978,
\n     100979, 100980, 100982, 100983 and 100984. These ballot
\n     papers clearly  indicate the  votes for  the petitioner
\n     but they were illegally rejected on the ground that the
\n     identity of  the elector can be established. The reason
\n     on which  it  was\trejected  was  wholly  illegal.\t The
\n     particulars  of  such  bal\t lot  papers  are  given  in
\n     Schedule IT attached to this election petition.”<\/p><\/blockquote>\n
     In his  written  statement,  the  successful  candidate
\nstated:\n<\/p>\n
\t  “65(1). That the contents of paragraph No. 9(1) of
\n     the Election  Petition are\t not admitted. The result of
\n     the election  in so  far as the answering respondent is
\n     concerned has  not\t been  materially  affected  by\t any
\n     improper reception or
\n194<\/span>
\n     rejection,\t or   by  wrong\t arithmetical  and  clerical
\n     mistake  in  counting  of\tvotes  and\/or  counting\t and
\n     acceptance of  void votes\tin favour  of the  answering
\n     respondent. In  fact no improper reception or rejection
\n     or arithmetical  mistake or  any clerical\tmistake\t was
\n     done in favour of the answering respondent\n<\/p><\/blockquote>\n
\t  16. That  the contents  of paragraph No. 11 (a) of
\n     the petition  are wrong  and denied. It is wrong to say
\n     that 41 ii ballot papers mentioned in Schedule I or any
\n     ballot paper  counted in favour of the respondent No. 1
\n     by marking\t with the  seal of the Presiding officer. It
\n     is\t admitted   that  the\tballot\t papers\t  on   which
\n     unauthorised seal\twas found  were\t rejected.  Some  of
\n     these rejected  ballot papers  may be of the petitioner
\n     but most  of them\twere of\t respondent No.\t 1 and other
\n     contesting candidates.\n<\/p><\/blockquote>\n
\t  17. That  the contents  of  para  11\t(b)  of\t the
\n     petition and  Schedule II\tare not\t admitted as stated.
\n     Only on  one polling station, due to the mistake of the
\n     Presiding officer some bal lot papers were issued along
\n     with their\t counter-foils. The counterfoils did contain
\n     the name  and signature  or  thumb\t impression  of\t the
\n     voters  attached\tto  the\t  ballot  paper.   In  these
\n     circumstances such\t ballot papers\twere rejected by the
\n     Returning officer.\t It is\tsubmitted that\tsuch  ballot
\n     paper were\t in respect  of all the candidates including
\n     the respondent No. 1.\n<\/p><\/blockquote>\n
\t  Further, no  such objection was raised at the time
\n     of counting  by the  Petitioner or\t his election  agent
\n     and\/or his counting Agent.\n<\/p><\/blockquote>\n
\t  56. That  no different criteria was adopted by the
\n     Returning\tofficer\t in  the  matter  of  acceptance  or
\n     rejection of  ballot papers  and the  respondent No.  1
\n     maintains that many ballot papers in which the Electors
\n     expressed their  choice in favour of the respondent No.
\n     1 by  putting the\tseal of\t the  Presiding\t officer  as
\n     supplied  by   the\t Presiding   officer,  were  wrongly
\n     rejected during the counting by the Returning officer.”<\/p><\/blockquote>\n
     Respondent 1  did not adduce any evidence in support of
\nthe allegations\t extracted above.  But on 24-2-1975, he made
\nan application\tbefore the  High Court, praying for scrutiny
\nand recount  of the  ballot papers.  The allegations in para
\n11(a) and  (b) of  the election\t petition were reiterated in
\nthe application.  The appellant\t in reply  filed a  counter-
\naffidavit which\t was substantially  a  reproduction  of\t his
\nreply in the written statement.\n<\/p>\n
     The learned Judge of the High Court by his order, dated
\n9-4-1975, allowed that application and directed scrutiny and
\nrecount of ballot papers on the view that:\n<\/p>\n
\t  (a)  The appellant  “was declared to have won by a
\n\t       very small margin of only 22 votes”.\n<\/p><\/blockquote>\n
195<\/span><\/p>\n
\t  (b)  “lt is not in dispute that a number of ballot
\n\t       papers were rejected by the Returning officer
\n\t       as invalid  be cause  the polling  staff of a
\n\t       particular polling  station forgot  to detach
\n\t       the  counter-foils  of  a  number  of  ballot
\n\t       papers. As  the counter-foils  contained\t the
\n\t       identity of  the voters,\t the  ballot  papers
\n\t       were rejected for no fault of the voters, but
\n\t       because of  negligence or incompetence on the
\n\t       part of the polling staff”.\n<\/p><\/blockquote>\n
\t  (c)  “It is  also the admitted case of the parties
\n\t       that a  number of ballot papers were rejected
\n\t       because\tthe   voters  cast  their  votes  by
\n\t       putting\ttheir  mark  not  with\tthe  marking
\n\t       instrument issued by the Election Com mission
\n\t       but with\t the marking  or stamping instrument
\n\t       issued by the Election Commission for the use
\n\t       of  the\tPresiding  officers.  This  happened
\n\t       because instead\tof the\tinstrument which the
\n\t       polling staff should have given to a voter to
\n\t       put the\tmark showing  for which candidate he
\n\t       wanted to vote, the polling staff by mis take
\n\t       handed over  to the voter the stamp meant for
\n\t       the Presiding  officer.. to affix on the back
\n\t       of the ballot paper.”\n<\/p><\/blockquote>\n
\t  (d)  lt “The\tpetition, the written statement, the
\n\t       recriminatory   petition\t   filed   by\t the
\n\t       respondent  (now\t appellant)  and  the  reply
\n\t       thereto filed  by the  petitioner would\tshow
\n\t       that this  is a\tcase in\t which both  parties
\n\t       have pleaded  that there was wrong reception,
\n\t       rejection and u counting of votes.”<\/p><\/blockquote>\n
     It is  against this  order, dated\t9-4-75 of  the\tHigh
\nCourt that  this appeal\t has  been  filed  by  the  returned
\ncandidate after obtaining special leave.\n<\/p>\n
     Having heard  learned Counsel  on both sides, we are or
\nopinion that  the order made by the High Court for a general
\nscrutiny and  re count\tof all the ballot papers cast at the
\nelection, was not justified.\n<\/p>\n
     The  returned   candidate\thad  not  categorically\t and
\nspecifically admitted  the allegations\tmade in the election
\npetition with  regard  to  the\timproper  rejection  of\t the
\nballot-papers. This will be clear from a comparative reading
\nof Paragraph  11 (a) and (b) of the petition and the answers
\nthereto given  in the  written statement,  which  have\tbeen
\nreproduced above  verbatim. It is to be noted that the reply
\nof the\treturned candidate  to the contents of the aforesaid
\nsub-paras (a)  and (b)\tstarts\twith  a\t denial\t or  a\tnon-
\nadmission. Such a traverse is then followed by qualified and
\nvague  admissions  that\t some  ballot-papers  were  rejected
\nbecause they  were not\tmarked with the instrument meant for
\nthis purpose,  or bore the names or signatures of the voters
\non the\tcounter-foils that  remained attached to them, owing
\nto the\tmistake of  the Presiding Officer. After having thus
\nreplied\t to   the  petitioner’s\t allegations,  the  returned
\ncandidate said that most of these rejected
\n196<\/span>
\nballots had  been cast\tfor him\t and not for the petitioner.
\nThis was  a    counter-assertion  which\t was  not,  strictly
\nspeaking, relevant to the case set up in the petition.\n<\/p>\n
     Mr.  Mukherjee,   learned\tCounsel\t  for  Respondent  1
\n(election-petitioner)  has   drawn  our\t  attention  to\t the
\n“Additional  Pleas”   in  the\twritten\t statement   of\t the
\nappellant. According  to Counsel  it were  these pleas, more
\nthan anything  else, that led to the finding “that this is a
\ncase in which both parties have pleaded that there was wrong
\nreception, rejection and counting of votes.”\n<\/p>\n
     We will discuss this aspect of the case a little later.
\nAt this\t place it  will be  sufficient to say that since the
\nreturned  candidate   in  his\twritten\t statement  did\t not
\nspecifically and  fully\t admit\tall  the  facts\t alleged  in
\nParagraph 11  (a) and  (b) of  the petition, the Court could
\nnot dispense  with proof  of  those  facts  altogether.\t For
\ninstance, in  reply to\tthe facts  alleged in Para 11 (a) of
\nthe petition,  the returned candidate did not admit that the
\ninstrument with which such rejected ballot papers were found
\nstamped, was  supplied by  the\tPresiding  officer.  On\t the
\ncontrary, the  reply to\t sub-para (a)  begins with  a  clear
\ntraverse: “that\t the contents of paragraph No. 11 (a) of the
\npetition are wrong and denied”. This denial notwithstanding,
\nthe learned  Judge appears  to have erroneously assumed this
\nfact as\t admitted by  the returned  candidate.\tThe  parties
\nbeing at variance on this material point, this issue of fact
\nwas required to be proved by the party alleging lt.\n<\/p>\n
     Now, we  come to the finding of the learned Judge as to
\nthe wrong  reception and  rejection of\tvotes being a common
\nground between\tthe parties. We have catalogued this finding
\nas ground  (b) which is one of the four pillars on which the
\nimpugned  order\t  rests.  This\t ground,  according  to\t Mr.
\nMukherji, draws\t particulars support  from  the\t “Additional
\nPleas” set up in the written statement. We do not propose to
\nover-burden this  judgment by  reproducing all that has been
\nstated in  Paragraph 47 to 56 of the written statement under
\nthe caption  “Additional Pleas”.  It will  be sufficient  to
\nextract some of it by way of sample :\n<\/p>\n
\t  “47. That  the Returning officer did not allow any
\n     improper acceptance  or rejection\tagainst the interest
\n     or the election-petitioner, rather mistakes of improper
\n     acceptance and  rejection of  ballot papers  were\tdone
\n     against the interests of the answering respondent.\n<\/p><\/blockquote>\n
\t  49. That  many ballot\t papers which bore the major
\n     portion of\t the stamp  mark within\t the column  of\t the
\n     Respondent No. 1 were wrongly rejected by the Returning
\n     officer at the time of counting.\n<\/p><\/blockquote>\n
\t  50. That as in the case of the Election-Petitioner
\n     the Ballot\t Papers in  favour of  the Respondent  No. 1
\n     with which counterfoils were attached were rejected. In
\n     case the Hon’ble Court finds that similar ballot papers
\n     in favour of
\n197<\/span>
\n     the election  petitioner are to be accepted, the ballot
\n     papers in\tfavour of  the Respondent  No. 1 in the same
\n     condition should  also be accepted and counted as valid
\n     votes in favour of the Respondent No. 1.\n<\/p><\/blockquote>\n
\t  51. That  many ballot\t papers containing  votes in
\n     favour of\tthe Respondent\tNo. 1..\t were wrongly put in
\n     the bundles  of the  votes in  favour of  the  Election
\n     Petitioner.\n<\/p><\/blockquote>\n
\t  53….. That\tthe  bundles  of  ballot  papers  in
\n     favour of\tthe Respondent\tNo. 1 in fact contained more
\n     than  SO\tballot\tpapers\tand  there  was\t thus  wrong
\n     counting……\n<\/p><\/blockquote>\n
\t  I say\t that the Respondent No. 1 filed application
\n     before  the   Returning  officer  on  27-2-74  but\t the
\n     Returning officer\twithout considering  the submissions
\n     made  therein   rejected  it  and\tdid  not  order\t for
\n     recount.”<\/p><\/blockquote>\n
     If\t we  may  say  so  with\t respect,  in  taking  these
\nAdditional Pleas  into account, the learned Judge completely
\nmisdirected himself. He overlooked the fact that these Pleas
\nwere irrelevant\t to and beyond the scope of the enquiry into
\nthe allegations\t in the\t election-petition falling  under s.
\n100(1)(d)(iii) of  the Representation  of  the\tpeople\tAct,
\n1951.  These  “Additional  Pleas”  were\t in  the  nature  of
\nrecriminatory` pleas which could not be investigated in this
\nelection petition. As clarified by this Court in Jabar Singh
\nv. Genda Lal<\/a>(1), the scope of the inquiry in a case under s.
\n100(1) (d)  (iii) is to determine whether any votes had been
\nimproperly cast\t in favour  of the returned candidate or any
\nvotes had  been improperly  refused or rejected in regard to
\nany other  candidate. These  are the  only two matters which
\nwould be  relevant for\tdeciding whether the election of the
\nreturned candidate  had been  materially affected or not. At
\nsuch an enquiry the burden is on the petitioner to prove his
\nallegations. In\t fact s. 97(1) of the Act has no application
\nto a  case falling  under s.  100(1) (d) (iii). The scope of
\nthe enquiry  is limited\t for the simple reason that what the
\nclause requires\t to be\tconsidered, is, whether the election
\nof the\treturned candidate  has been materially affected and
\nnothing else.\n<\/p>\n
     It is  true  that\tin  a  composite  election  petition
\nwherein the  petitioner claims not only that the election of
\nthe returned  candidate is void but also that the petitioner
\nor some\t other person be declared to have been duly elected,
\ns. 97  would also  come into  play and\tallow  the  returned
\ncandidate to  recriminate and raise counter-pleas in support
\nof his\tcase, “but the pleas of the returned candidate under
\ns. 97  have to\tbe tried  after a  declaration has been made
\nunder s.  100 of  the Act.  The first part of the enquiry in
\nregard to  the validity\t of the\t election  of  the  returned
\ncandidate has therefore to be tried within the narrow limits
\nprescribed by s. 100(1) (d) (iii) and the latter part of the
\nenquiry governed  by s.\t 101 (a)  will have to be tried on a
\nbroader basis  permitting the  returned\t candidate  to\tlead
\nevidence in  support of\t the please  taken  by\thim  in\t his
\nrecriminatory petition; but even in such a case the
\n198<\/span>
\nenquiry. necessary  while dealing  with the dispute under s.
\n101 (a)\t will not  be wider  if the  returned candidate\t has
\nfailed to  recriminate and  in a case of this type, the duty
\nof the Election Tribunal will not be to count and scrutinise
\nall the votes cast at the election.\n<\/p>\n
     Moreover, in  the instant\tcase,  it  is  a  matter  of
\ncontroversy to\tbe decided  as to  whether the recriminatory
\npetition filed by the appellant is within time or not.\n<\/p>\n
     The above\tbeing the law on the point, it is clear that
\nthe  learned   Judge  was   in\terror  in  ordering  general
\ninspection and\trecount of  the total  votes polled  at\t the
\nelection, merely  because  in  these  Additional  Pleas\t the
\nreturned  candidate   also  had\t by  way  of  recrimination,
\ncomplained of  wrong reception\tand rejection  of votes\t and
\nwrong counting\tof votes.  The pleas at this stage could not
\nbe investigated even  in the recriminatory petition filed by
\nthe returned  candidate. They  were beyond  the scope of the
\nenquiry into  the petitioner’s case which (as set up in Para
\n11 of the petition) fall under s. 100(1)(d)(iii) of the Act
\n     Further, the High Court did not properly apply its mind
\nto the question, whether on the facts alleged in Para 11 (a)
\nand (b)\t of the\t petition-assuming the\tsame to be correct-a
\nprima facie  case for  improper rejection  of The  50 ballot
\npapers referred\t to therein,  had been\tmade out.  In  other
\nwords, if  the\tdefects\t in  these  SO\tballot\tpapers\twere
\nattributable to\t the mistakes or negligence of the Presiding
\nofficer or  his staff, would it take those ballot papers out
\nof the\tmischief of clauses (a) and (b) of Rule 56(2) of the
\nConduct of Election Rules, 1961
\n     Rule 56 runs thus:\n<\/p>\n
\t  “(1)\tSubject\t  to   such   general\tor   special
\n     directions,  if  any,  as\tmay  be\t given\tby  Election
\n     Commission in  this behalf, the ballot papers taken out
\n     of all  boxes used\t in a  constituency shall  be  mixed
\n     together and  then arranged  in convenient\t bundles and
\n     scrutinised.\n<\/p>\n
\t  (2)  The returning  officer shall  reject a ballot
\n\t       paper-\n<\/p>\n
\t  (a)  if it  bears any mark or writing by which the
\n\t       elector can be identified, or\n<\/p>\n
\t  (b)  if, to indicate the vote, it bears no mark at
\n\t       all or  bears a mark made otherwise than with
\n\t       the instrument supplied for the purpose, or\n<\/p>\n
\t  (c)  if votes\t are given  on it  in favour of more
\n\t       than one candidate, or\n<\/p>\n
\t  (d)  if the  mark indicating\tthe vote  thereon is
\n\t       placed in  such manner as to make it doubtful
\n\t       to which\t candidate the\tvote has been given,
\n\t       or
\n199<\/span>\n<\/p>\n
\t  (e)  if it is a spurious ballot paper, or\n<\/p>\n
\t  (f)  if it  is so  damaged or\t mutilated that\t its
\n\t       identity as  a genuine ballot paper cannot be
\n\t       established, or\n<\/p>\n
\t  (g)  if it  bears a  serial number,  or  is  of  a
\n\t       design different from the serial numbers, or,
\n\t       as the  case may\t be, design,  or the  ballot
\n\t       papers authorised  for use  at the particular
\n\t       polling station, or\n<\/p>\n
\t  (h)  if it  does not\tbear (both, the mark and the
\n\t       signature) which\t it should  have borne under
\n\t       the provisions of sub-rule (1) of rule 38;
\n\t  Provided  that  where\t the  returning\t officer  is
\n     satisfied that  any such  defect  as  is  mentioned  in
\n     clause (g) or clause (h) has been caused by any mistake
\n     or failure\t on the\t part  of  a  Presiding\t officer  or
\n     polling officer, the ballot paper shall not be rejected
\n     merely on the ground of such defect;\n<\/p>\n
\t  Provided further  that a ballot paper shall not be
\n     rejected merely  on the ground that the mark indicating
\n     the vote  is indistinct  or made more than once, if the
\n     intention that  the vote  shall  be  for  a  particular
\n     candidate clearly\tappears from  the way  the paper  is
\n     marked.\n<\/p>\n
\t  (3) to (5): .. .. .. .\n<\/p>\n
\t  (6) Every ballot paper which is not rejected under
\n     this rule shall be counted as one valid vote:
\n     Clauses (a) and (b) of Rule 56(2) are referable to Rule
\n38 which  requires every  elector to  whom ballot  paper has
\nbeen issued  under Rule 38 to maintain secrecy of voting and
\n“to make  a mark  on the  ballot paper\twith the  instrument
\nsupplied for  the purpose  on or  near\tthe  symbol  of\t the
\ncandidate for whom he intends to vote.”\n<\/p>\n
     Rule 38  is also  relevant. This  Rule  requires  every
\nballot paper  and the  counterfoil attached  thereto  to  be
\nstamped on  the back  by the  Presiding\t officer  with\tsuch
\ndistinguishing mark  as the  Election Commission may direct.
\nEvery such  ballot paper  before it is issued is required to
\nbe signed in full on its back by the Presiding officer. Sub-
\nrule (2)  requires that\t at the\t time of  issuing of  ballot
\npaper, the  Polling officer  shall on its counterfoil record
\nthe electoral  roll number  of the  elector and\t obtain\t his
\nsignature or thumb-impression.\n<\/p>\n
     The object\t of these  rules is  to secure\tnot only the
\nsecrecy of the ballot but also to eliminate chances of sharp
\npractices in  the conduct  of elections.  Their requirements
\nare therefore  mandatory, and  a defect\t arising from  their
\nnon-observance inexorably entails rejection of the defective
\nballot paper  except to the extent covered by the Provisions
\nto Rule 56(2).\n<\/p>\n
200<\/span><\/p>\n
     In the  case of  41 ballot\t papers\t mentioned  in\tpara
\n11(a), what  happened was  that\t instead  of  marking  those
\nballot papers  with the instrument supplied for this purpose
\nby the Election Commission the electors concerned stamped it
\nwith the  instrument meant  to be  used exclusively  by\t the
\nPresiding officer for stamping the counterfoils and lacks of
\nthe ballot  papers. The\t Court had  to apply  its mind as to
\nwhether these facts by themselves were sufficient to attract
\nRule 56\t 2 (b)\t? This question would further resolve itself
\ninto two  issues: (i) Was the stamping instrument with which
\nthese  electors “marked” the ballot papers, given to them by
\nthe Presiding  officer cr  any member of his staff ? (ii) If
\nso, could  these ballot papers be deemed to have been marked
\nwith “the  instrument supplied\tfor the\t purpose” within the
\ncontemplation of  Rules 38  and 56(2)(b) ? The first one was
\nan issue of fact, the determination of which would depend on
\nevidence. The second issue would arise only on proof of tile
\nfirst, and involve the question of interpreting and applying
\nthe phrase  “instrument\t supplied  for\tthe  purpose”.\tThis
\nphrase\tis   capable  two   interpretations-one\t narrow\t and
\nliteral, and the other liberal and contextual. Without there
\nbeing any proof of the fact that the stamping instrument was
\nhanded\tover   to  the\t 41  electors\tby   the   Presiding
\nofficer\/Polling officer,  a final  expression of  opinion on
\nour part  would\t be  academic  and  premature.\tIt  will  be
\nsufficient to  reiterate that the provisions of Rules 38 and
\n56(2) (a)  and (b)  with which we are concerned in this case
\nare mandatory  and strict compliance therewith is essential.
\nOnce it\t is established\t that the fault specified in clauses\n<\/p>\n
(a) or\t(b) of\tRule 56(2)  has been  committed, there is no
\noption left  with the  Returning officer  but to  reject the
\nfaulty ballot  paper. We  would further\t make it  clear that
\neven if\t any such  defect as  is mentioned in clauses (a) or\n<\/p>\n
(b) of\tRule 56\t is caused  by any mistake or failure on the
\npart of\t the  Returning\t officer  or  Polling  Officer,\t the
\nReturning officer  would be bound to reject the ballot paper
\non the ground of such defect. That such is the imperative of
\nRule 56(2)  is clear from the fact that the said clauses (a)
\nand (b)\t have advisedly been excluded from the first Proviso
\nto Rule 56(2) which gives a limited discretion in the matter
\nof rejection  to the Returning officer only where the defect
\nis of  a kind  mentioned in clauses (g) and (h) of this sub-
\nrule.\n<\/p>\n
     In the  view that such Rules relating to the conduct of
\nelections, are\trequired to  be observed  strictly,  we\t are
\nfortified by  the ratio\t of this  Court’s decision  in\tHari
\nVishnu Kamath  v. Syed\tIshaque and  ors.<\/a>(1) In\t That  case,
\nvoters for  the House of the People in Polling Stations Nos.
\n316 and\t 317 in Sobhapur were given ballot papers with brown
\nbar intended  for the  State  Assembly,\t instead  of  ballot
\npapers with  green bar which had to be used for the House of
\nthe People. The total number of votes so polled was 443, out
\nof which,  62 were  in favour  of the then appellant, 301 in
\nfavour of  the first respondent therein and the remaining in
\nfavour of the other candidates. Rule 47(1)(c) of the Conduct
\nof the\tElection Rules,\t 1951 provided\tthat “a ballot paper
\ncontained in a ballot-box shall be rejected if it bears
\n201<\/span>
\nany serial  number or  mark different from the serial number
\nor marks  of ballot papers authorised for use at the polling
\nstation or  the polling\t booth at  which the  ballot-box  in
\nwhich it  was  found,  was  used.”  The\t election-petitioner
\ncontended that\tin accordance  with this  rule,\t the  ballot
\npapers received\t at the two polling stations, not having the
\nrequisite mark;\t should have  been  excluded.  The  returned
\ncandidate pleaded  that the  Returning officer\thad  rightly
\naccepted 301  votes be\tcause Rule  47 was directory and not
\nmandatory. It  was contended  that the\telectors were not at
\nfault and  that the  wrong ballot  papers were issued due to
\nthe lapse  on the  part of the Returning officer and that to
\nreject the  votes of  the electors  for the  failure of\t the
\nPolling officer\t to deliver  the correct ballot papers under
\nRule  23   would  be   to  disfranchise\t them,\tand  that  a
\nconstruction which  involve such a consequence should not be
\nadopted. This Court repelled the contention in these terms:\n<\/p>\n
\t  “If the  word ‘shall\tis thus to be construed in a
\n     mandatory sense  in Rule  47(1) (a),  (b) and  (d),  it
\n     would be  proper to  construe it  in the  same sense in
\n     Rule 47(1)\t (c) also.  There is  another  reason  which
\n     clinches the  matter against  the 1st  respondent.\t The
\n     practical\tbearing\t  of  the   distinction\t between   a
\n     provision which is mandatory and one which is directory
\n     is that  while the\t former must be strictly observed in
\n     the case  of the  latter it  is sufficient\t that it  is
\n     substantially complied  with. How\tis this\t rule to  be
\n     worked when the Rule provides that a ballot paper shall
\n     be rejected  ? There can be no degrees of compliance so
\n     far as  rejection is  concerned, and that is conclusive
\n     to show that the provision is mandatory.”<\/p><\/blockquote>\n
     The above\tobservations are  apposite.  Judged  by\t the
\nguiding principle  enunciated therein, it can safely be said
\nthat the provisions of rule 56(2) (a) and (b) read with Rule
\n38, are mandatory and not merely directory.\n<\/p>\n
     It\t was  contended\t by  the  learned  Counsel  for\t the
\nrespondent before  us, that  the Provisos to sub-rule (2) of
\nRule 56\t are  only  illustrative  and  not  exhaustive,\t and
\nconsequently, the principles underlying these Provisos would
\ngive a\tdiscretion to  the Returning Officer not to reject a
\nballot paper  on the ground of a defect caused by mistake or
\nnegligence of  the  Presiding  officer\/or  Polling  officer,
\nnotwithstanding that such defect is one mentioned in clauses\n<\/p>\n
(a), (b), (c), (d), (e) and (f) of Rule 56(2).\n<\/p>\n
     This contention  is not  tenable. The word ‘shall’ used
\nin the\topening Part  of sub-rule (2) read in the context of
\nthe general  scheme of this Rule shows that it is mandatory.
\nSub-rule (5)puts  the matter  beyond  doubt.  It  says\tthat
\n“every ballot  paper which  is not  rejected under this sub-
\nrule shall  be counted\tas one\tvalid vote”.  Rule 56  is  a
\ncomplete code  by itself.  The Provisos\t to Sub-rule (2) are
\nexhaustive of  the kinds  of  defects  which  the  Returning
\nofficer may  condone, if  those defects\t are caused  by\t the
\nmistake or  failure of\tthe Polling Staff. The first Proviso
\nis in terms limited to defects falling under Clause
\n202<\/span>\n<\/p>\n
(g)  or\t (h).  Neither\tof  these  Provisos  appears  to  be
\nattracted if  the A  defects is any of the defects mentioned
\nin clauses (a) or (b).\n<\/p>\n
     The learned Judge of the High Court has not applied his
\nmind as\t to whether  the facts alleged in Paragraph 11(b) of
\nthe petition,  if correct, would fall within the mischief of
\nclause (d)  of Rule  56(2). This  will\tnecessarily  require
\nconsideration  of  the\tissue  whether\tthere  has  been  an
\ninfringement if\t any of the provisions of Rule 38, referable
\nto clause  (a) of Rule 56(2). Another point in this context,
\nfor consideration  will be  whether the “counterfoil” can be
\nsaid to\t be an\tintegral part  of the “ballot paper” so that
\nany writing  or marks  of identification  of the  voter on a
\ncounterfoil issued  to the voter by mistake, is to be deemed
\nto be a defect of the nature mentioned in clause (a) of Rule
\n56(2). The High Court has not at all addressed itself any of
\nthese questions.\n<\/p>\n
     Times out\tof number, this Court has pointed out that a
\ngeneral Scrutiny and recount of the ballot papers should not
\nbe lightly  ordered. Before  making  such  an  extraordinary
\norder, the  Court must\tbe satisfied  that all\tthe material
\nfacts have been pleaded and proved and that such a course is
\nimperatively necessary\tin the\tinterest of  justice. In the
\ncase in hand. the allegations in the election petition (vide
\nParagraph 11) are confined to 41 plus 9, total 50 votes only
\n(vide Paragraph).  There was  no foundation  in the petition
\nfor ordering  a general\t recount. Nor  could the  Additional
\nPleas in  the written statement of the returned candidate be
\ntaken  into   account  for   making  an\t order\tfor  general
\ninspection of  the ballots,  because investigation  of those
\npleas was beyond the scope of the case alleged in Para 11 of
\nthe petition  falling under  section 100(1) (d) (iii) of the
\nAct.\n<\/p>\n
     We have  said enough.  We will  close the discussion by
\nrepeating the  note of\tcaution\t that  this  Court  speaking
\nthrough V.  Krishna Iyer J. recently sounded in Chanda Singh
\nv. Ch. Shiv Ram<\/a>(1).\n<\/p>\n
\t  “A democracy runs smooth on the wheels of periodic
\n     and pure  elections. The verdict at the polls announced
\n     by the  Returning Officers\t leads to  the formation  of
\n     Governments. A  certain  amount  of  stability  in\t the
\n     electoral process\tis essential. If the counting of the
\n     ballots  are   interfered\twith  by  too  frequent\t and
\n     flippant recounts\tby courts a new system is introduced
\n     through the  judicial instrument. Moreover, the secrecy
\n     of the  ballot which  is sacrosanct  becomes exposed to
\n     deleterious prying,  if recount  of votes is made easy.
\n     The general  reaction, if\tthere is judicial relaxation
\n     on this issue, may well be a fresh pressure on luckless
\n     candidates, particularly  when the\t winning  margin  is
\n     only of  a few  hundred votes  as here,  to ask  for  a
\n     recount  Micawberishly   looking  for   numerical\tgood
\n     fortune or\t windfall of  chance  discovery\t of  illegal
\n     rejection or  reception of\t ballots. This may tend to a
\n     dangerous disorientation  which invades  the democratic
\n     order by injecting widespread scope for reopen-\n<\/p><\/blockquote>\n
203<\/span><\/p>\n
     ing of  declared returns,\tunless the  Court  restricts
\n     recourse to recount to cases of genuine apprehension of
\n     miscount or  illegality or other compulsions of justice
\n     necessitating such a drastic step.”<\/p><\/blockquote>\n
     In the  result we\tallow the  appeal and  set aside the
\norder of  the High Court for general scrutiny and recount of
\nthe ballot  papers.   However, the  High Court\twill have to
\ndetermine, (after  taking such evidence as may be necessary)
\ninter alia,  (i) whether.  the instrument which was used for
\nmarking the  41 votes (referred to in the election petition)
\nwas supplied  to the  voters by the Presiding officer or any
\nother member  of his  Polling Staff. If on evidence adduced,
\nthe learned  Judge finds  this issue in the affirmative, the
\nfurther question to be considered would be (ii) whether such
\nsupply would  answer the  legal requirement  of\t “instrument
\nsupplied for  the purpose”  in Rule 56(2) (b). If both these
\nissues (i)  and (ii)  are answered in the positive, then and
\nthen only  he may proceed to inspection and recount of these
\nvotes  mentioned   in\tthe   petition.\t  Similarly,   after
\nconsidering the\t legal questions  indicated  above,  he\t may
\norder recount  of the  9 votes\talleged to have counterfoils
\nattached thereto.  There appears  to be no justification for
\nordering a general inspection of the ballots on the facts of
\nthis case.\n<\/p>\n
     The learned  Judge shall  proceed with the trial of the
\nelection petition  in the light of what has been said above.
\nCosts to abide the event in the High Court.\n<\/p>\n
P.H.P.\t\t\t\t\t     Appeal allowed.\n204<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Autar Singh Bhadauria vs Ram Gopal Singh And Others on 31 July, 1975 Equivalent citations: 1975 AIR 2182, 1976 SCR (1) 191 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: RAM AUTAR SINGH BHADAURIA Vs. RESPONDENT: RAM GOPAL SINGH AND OTHERS DATE OF JUDGMENT31\/07\/1975 BENCH: SARKARIA, RANJIT SINGH BENCH: […]<\/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-220604","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Autar Singh Bhadauria vs Ram Gopal Singh And Others on 31 July, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-autar-singh-bhadauria-vs-ram-gopal-singh-and-others-on-31-july-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Autar Singh Bhadauria vs Ram Gopal Singh And Others on 31 July, 1975 - 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