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PETITIONER: T.H.  MUSTHAFFA

       Vs.

RESPONDENT: M.P.  VARGHESE & ORS.

DATE OF JUDGMENT:       23/09/1999

BENCH: R.C.Lahoti, S.R.Babu

JUDGMENT:

RAJENDRA BABU, J.  :

     Elections  were  held on April 27, 1996 to the  Kerala Legislative Assembly.  The appellant and respondents Nos.  1 to  19 contested in the said election from Kunnathunadu  No. 78  Assembly Constituency.  Counting took place on May 8 and 9,  1996.  Appellant secured 49,974 votes, while  respondent No.   1  secured 50,034 votes.  Thus respondent No.   1  was declared  elected  by  a  margin of 60  votes.   Before  the declaration  of the result the appellant made an application for  recount  on  several grounds.   The  Returning  Officer rejected  the said application.  The appellant filed another application  styled  as Review Application which was  also rejected.   The  appellant,  thereafter, filed  an  Election Petition  before  the High Court of Kerala.  The High  Court dismissed  the said Election Petition.  Hence, this  appeal. The  principal  allegations raised by the appellant  in  the Election Petition are as follows :-

     (i)  Votes  cast by 36 persons ( a list of  names  and other  particulars  of the said 36 persons was  produced  as Annexure-5  to the election petition) voted twice in  either the   same   Constituency   of    Kunnathunadu   or    other constituencies.   The  votes  cast by them  are  void  under Section  62(3) and (4) of the Act.  All the 36 persons  have voted for the respondent.  (ii) In addition to the above 36, 17  persons have voted in two polling stations.  Their names appeared  in electoral rolls of two polling stations of  the same  Kunnathunadu  Constituency.  A list of the  names  and other  particulars  of the said 17 persons was  attached  as Annexure-5(a)  to  the Election Petition.  (iii) 12  persons (whose  names and particulars were given Annexure-6) are not voters of this constituency, their names having been deleted from  the  final voters list but they have voted in  Polling Station  Nos.  195 and 158 taking advantage of the fact that their names found a place in the original voters list.  (iv) Annexure-7  is  a list of the names, addresses etc.   of  56 persons  who are employees of Kitex Ltd., an industrial unit in  the constituency and who are voters in Booth Nos.   194, 195 etc.  in the constituency.  They are natives of far away places  and were not in Kunnathunada Constituency during the election including the polling day so as to cast their votes due to the long day off of the factory.  However their votes are seen as cast by impersonation.  These voters are invalid under  Sec.  62(1) of the Act.  (v) About 300 votes are cast

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in  violation of Rules 39(2)(b) and 56(2)((b) of the Conduct of Election Rules, 1961, in as much as in the polling booths at   Puttannoor   school  and   Varikoli  school  etc.    in Vadavucode-Puthencruz Panchayat about 300 voters voted using an  instrument  other  than  the   arrow  cross  mark  stamp prescribed  by the Election Commission.  The said votes  are invalid.   (vi)  5633 votes were wrongly  declared  invalid, majority  of  which  were  cast in favour  of  the  Election Petitioner, and (vii) There are various other irregularities in  mixing,  sorting  and  bundling  of  the  ballot  papers contrary  to  Rules and instructions issued by the  Election Commission.

     Respondent  No.   1  in the written  statement  raised certain  preliminary points as to non- compliance of Section 81(3) of the Representation of People Act, 1951 [hereinafter referred  to as the R.P.  Act].  He also raised objections as to the manner in which the signature has been put and the verification  made  in the petition in violation of  Section 83(1)  and  (2)  of the R.P.  Act.  He  contended  that  the entire   counting  process  had   been  conducted   legally, regularly  and correctly.  He denied the allegation that the Counting  Supervisor  and  the   Counting  Assistants   were pro-left minded and indulged in manipulations.  He contended that  the  facilities provided in the Counting Centres  were adequate with full opportunity to the counting agents of the candidates  to observe or scrupulously watch the scrutiny of the  ballot  papers.  He claimed that the ballot  papers  in favour  of  the candidates were accurately bundled  with  25 ballots  in each of the bundles and not even a single ballot paper  of  the  appellant  was  bundled  with  that  of  the respondent.   He contended that test checking had been  done by the Returning Officer in accordance with the instructions in   the  Hand  Book.   He   asserted  that  there  was   no impersonation  in  voting,  or any of them had  voted  twice either  in Kunnathunada Constituency or elsewhere.  On these pleadings  17  issues have been raised.  As  regards  Issues Nos.   1,  2,  3, 4 and 5 pertaining to  preliminary  points raised  by  respondent No.  1, the High Court held that  the Election  Petition  was  not  liable   to  be  rejected  for non-compliance  with Section 86(1) of the R.P.  Act and  the parties  were  directed to go for trial.  67 witnesses  were examined  on  behalf of the petitioners, while on behalf  of respondent No.  1, he examined himself as sole witness.  The learned  Judge in the course of the order recorded as  under :-

     Issues Nos.  7, 8, 9, 10, 11, 12 and 13:  Counsel for the  petitioner Shri K.  Ramakumar fairly conceded that  the petitioner  was not successful in his attempt to prove  that more than 60 votes were invalid on account of double voting, voting by ineligible persons, impersonation, etc.  and hence he  is not pressing those issues.  According to him, at  the most  the invalid votes would come to only 54 and as it  has not reached 60, the margin by which the first respondent was declared  elected, there is no useful purpose in considering the points which arise for consideration on the basis of the above  issues.  So, recording the submission, the issues are answered against the petitioner.

     Thus   the   principal   issue    that   remains   for consideration  is Issue No.  6 and other issues 14 to 17 are consequential to the finding to be recorded on Issue No.  6. The  averments  contained  in the Election Petition  are  as

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follows :-

     Paragraph 2

     Upon  such  announcement  the   petitioner  who  was present  at  the  counting   station  submitted  a  petition requesting  a recounting on the basis of several allegations of  manipulations  in the sorting and bundling of votes,  in the  wrong  acceptance of invalid votes polled for  the  Ist respondent as valid, the rejection of valid votes polled for the  petitioner as invalid, irregularities committed by  the Counting Supervisors and Counting Assistants, the absence of test checking of the bundles of 25 of all the candidates and several  other  grounds  which  has   caused  error  in  the announcement of the number of votes of each candidate..

     Paragraph 4

     ..In  several  instances votes which were invalid  as per  the instructions issued by the Election Commission in a pamphlet  showing  illustrative cases of valid  and  invalid papers  were  honoured  in  the breach  to  favour  the  Ist respondent.

     In the course of the trial evidence was adduced to the effect   that  the  instrument   supplied  by  the  Election Commission for the purpose of exercising the preference of a voter  is  the arrow cross mark rubber stamp in all  polling stations  but  in  two of the polling stations  at  Varikole school and Koothmannoor school, votes had been cast by using the  instrument  meant for the polling officials for  making distinguishing  mark  of the polling station.  Thus a  wrong instrument had been used in these two polling stations.  The Returning  Officer  (P.W.   46) admitted in  his  deposition before  the  High  Court that the Polling Officers  had,  by mistake,  handed  over  the  wrong seal to  the  voters  for exercising  their  preference.   Reliance was placed  on  A Pamphlet  Showing  Illustrative Cases of Valid  and  Invalid Postal  and  Ordinary Ballot Papers issued by the  Election Commission  of  India in 1996.  It is indicated  therein  as illustrations  II  and  III in respect of  Ordinary  Ballot Papers  Invalid Cases at pages 24 and 25 to treat a  ballot paper containing a mark not made with instrument supplied to be  treated  as  invalid and to be put in  the  doubtful bundle  by the Counting Party and rejected by the  Returning Officer.   The learned trial Judge adverted to the pleadings of  the case and noticed that there is no plea in the entire election  petition  as to using a wrong instrument  for  the purpose  of  expressing preference by the voters so that  an instrument to be used for distinguishing mark of the polling station  had  been used instead of arrow cross  mark  rubber stamp,  nor was any reference made to the pamphlet issued by the  Election  Commission thereby putting the respondent  on notice  thereof.   The learned Judge, therefore, found  that the pleading was insufficient in election petition to base a claim  to attract Rules 39(2)(b) and 56(2)(b) of the Conduct of  Election  Rules, 1961 [for short the Rules].   In  the absence  of  any pleading regarding the violation  of  Rules 39(2)(b)  and  56(2)(b)  of the Rules in the course  of  the election  petition  with  reference  to  the  facts  alleged therein,  no issue could arise on that aspect of the matter. The  learned  counsel for the appellant submitted  that  the

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claim  for  recount  was  based on  two  grounds.   Firstly, violation  of Rules 39(2)(b) and 56(2)(b) inasmuch as in the polling  booths  at Varikole school and Koothmannoor  school instrument  other than the arrow cross mark rubber stamp had not been used contrary to the one prescribed by the Election Commission   and   secondly,  there    are   various   other irregularities such as wrong mixing, sorting and bundling of ballots  papers.   The pleading raised in the case does  not refer  to either Rule 39 or 56 of the Rules much less to the pamphlet  showing  illustrative cases of valid and  invalid postal  and  ordinary ballot papers issued by the  Election Commission  of India, nor any specific allegations are found in  the  case.   The allegation made in the  course  of  the petition  is that there is wrong acceptance of invalid votes polled  for  respondent No.  1.  It is not made clear as  to how  many  votes are liable to be rejected for  using  wrong instrument  by  the voters for expressing their  preference. There  is no further indication as to how many of such votes had  been  polled  in favour of respondent No.  1 so  as  to materially  affect  the  result  of the  election.   In  the absence  of  such  plea  the learned Judge  could  not  have granted the relief of recount.  Therefore, the view taken by the  High Court that the pleadings are insufficient to order recount  is perfectly in order.  So far as the evidence that had  been adduced in the case is concerned, it need not have been  looked  at  by  the learned Judge in  the  absence  of appropriate  pleadings in that regard.  However, Shri E.M.S. Anam,  the learned counsel for the appellant, submitted that the  fact that votes in the two polling stations at Varikole school  and  Koothmannoor  school had been cast by  using  a wrong  instrument was not in dispute and the evidence of the Returning  Officer  clearly indicated the use of  the  wrong instrument  in the two polling stations which amounted to an admission in the case and, therefore, even in the absence of an appropriate pleading in that regard the evidence could be looked at.  We fail to appreciate this argument.  Unless the appellant  had  put forth his case in the pleading  and  the respondents  are put on notice, the respondents cannot  make an  admission  at all and there is no such admission in  the course  of the pleadings.  If the pleadings did not  contain the  necessary foundation for raising an appropriate  issue, the same cannot go to trial.  Any amount of evidence in that regard,  however excellent the same may be, will be  futile. Therefore,  the  learned counsel is not justified in  making the  said submission and the same is rejected.  The  learned Judge   noticed  that  the   appellant,  though  had  raised objection in this regard in the application for recount, did not  reiterate the same in second application much less  any averment  is made in the petition.  The learned Judge  held, in  our  view,  rightly that there is no  pleading  in  this regard  and the evidence adduced cannot be looked into as no issue  thereto arises.  The learned Judge did not,  however, rest  his  decision on that basis but examined the scope  of Rules  39(2)(b) and 56(2)(b) of the Rules.  After  adverting to  decisions in Hari Vishnu v.  Ahmad Ishaque, AIR 1955  SC 233;   Manni  Lal v.  Parmai Lal, AIR 1971 SC 330;  and  Era Sezhiyan v.  T.R.  Balu, 1990 Supp.  (3) SCC 22, the learned Judge  came  to the conclusion that the Rules are  mandatory and  held that when the marking of the ballot papers is made by an instrument other than the one supplied for the purpose it  will  invalidate the ballot papers.   While  considering question  whether the marking of the ballots in this case is made  otherwise  than  by the instrument  supplied  for  the purpose, the learned Judge took the view that Rules 39(2)(b) and  56(2)(b) of the Rules should be read with clause 10F of

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the  Handbook  for Candidates under the  heading  Marking System  of Voting and concluded that a voter has no control over  the  instrument  supplied  to him  and  when  a  wrong instrument  is handed over to him by the Polling Officer, he will  naturally exercise his preference with the aid of that instrument  and in such cases he cannot be found fault with. The  learned  Judge made it clear that the present is not  a case  where a voter had made use of an instrument which  was not  supplied  to  him  for   the  purpose  of  marking  his preference,  but one where preference was exercised with the instrument  supplied to him for the purpose and,  therefore, there  is  no violation of the Rules in marking  the  ballot papers.   The learned Judge also took note of the fact  that the  evidence of Returning Officer (P.W.  46) discloses that in  respect  of  two  polling  stations  in  question  wrong markings  were  done  with a wrong instrument in  the  votes polled  in  favour  of almost all the  candidates  and  such mistake  was on the part of the Polling Officers in  handing over  a  wrong  instrument  for marking  a  vote.   All  the candidates  had taken advantage of votes having been cast in their  favour by using a wrong instrument and did not  raise any  objection.  Therefore, he took those votes to be valid.      On this analysis of the evidence the learned Judge held that  no objection was taken to the same at the time  second petition  for recounting.  of counting or even  subsequently when  the  appellant filed Shri E.M.S.Anam, learned  counsel for  the appellant, relied on the observations of this Court in  Ram  Autar Singh Bhadauria v.  Ram Gopal Singh  &  Ors., 1976  (1) SCR 191, to the effect that once it is established that  the  fault  specified in Rule 56(2)(a) or (b)  of  the Rules  has been committed, there is no option left with  the Returning Officer but to reject the faulty ballot paper.  He further  submitted  that  even if such defect is  caused  by mistake  or  failure  of the polling officer or  members  of staff,  the Returning Officer was bound to reject the ballot paper  on  the ground of such defect.  It is no  doubt  true that  at the first blush one is impressed with this argument appearing  to  derive support from the observations made  in that  decision.   However,  a closer scrutiny  of  the  said decision  will  unveil  the spell.  The facts in  that  case reveal  that  41  ballot papers were alleged  to  have  been rejected  on the ground that electors choice was  expressed through a wrong instrument.  Dealing with this aspect of the matter,  this Court observed that the court had to apply its mind  as  to whether these facts were sufficient to  attract Rule  56(2)(b) of the Rules and to do so had to consider two questions  :   (i)  Was the stamping instrument  with  which these  41 electors marked the ballot papers, given to them by  the Presiding Officer or any member of his staff?   (ii) If  so,  could  these ballot papers be deemed to  have  been marked with the instrument supplied for the purpose within the contemplation of Rules 39(2)(b) and 56(2)(b) ?  Although certain  observations  were made in regard to the  mandatory nature  of  the provisions of Rules 39 and  56(2)(b),  still ultimately  this Court remanded the matter for consideration of  these two questions and stated that if both these issues are  answered  in the affirmative, then and only  then,  the trial  Judge may proceed to inspection and recount of  these 41 votes referred to earlier.  Therefore, the contention put forth  on behalf of the appellant in this case that the mere fact  of  certain  ballot papers have been marked  with  the wrong  instrument would not by itself lead to the conclusion that such ballot papers are liable to be rejected unless the two  questions raised in Ram Autar (supra) to which we  have adverted to above are answered.  On the question whether the

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stamping  instrument with which the ballot papers are marked in the two polling stations are given by the Polling Officer or  any  member  of his staff, the answer is  given  by  the learned  Judge  in  the  affirmative,  on  analysis  of  the evidence  and particularly from what has been stated by  the Returning  Officer who was examined in the case.  Therefore, the  learned  Judge proceeded to consider the next  question whether  such instrument could have been deemed to have been supplied  for  the  purpose of marking ballot  papers.   The learned  Judge  took the view on the admission made  by  the Returning  Officer that the said instrument was supplied  to the  electors  for that purpose by the officers by  mistake. This  question again arose for consideration in the decision of this Court in Era Sezhiyan v.  T.R.Balu (supra), in which this  Court  again  took  the view that  if  the  instrument supplied  to  the voters, though mistakenly, was other  than the  one  intended  for  marking   the  ballot  papers,  the instrument  must  be  deemed to have been  supplied  by  the officers  concerned  for the purpose of marking  the  ballot papers.   If  we read the relevant Rules 39 and 56(2)(b)  of the  Rules with the instructions given at clause 10F in  the Handbook  for the Candidates it will be clear that the voter will  record his vote by stamping a mark on the ballot paper with  the rubber stamp supplied to him by one of the polling officers.   In  this  case, admittedly, it  is  the  polling officer  who  had  supplied the instrument for  marking  the ballot  paper.   It is thus clear that the appellant  cannot take  advantage  of  the mistake, if any, in  supplying  the instrument for marking the ballot papers.

     The  next argument advanced by the learned counsel for the  appellant  is that the intention of Rules 39 and 56  of the  Rules is to maintain the secrecy in voting and when the ballot  papers are marked with a distinguishing mark by  the voters  it  would  certainly  be possible  to  identify  the voters.   If  the appellant contends that about  100  voters cast their votes using the wrong instrument, respondent No.1 would  put  that figure at 300 in the two polling  stations. The appellant and respondent No.1 appear to have made only a guess work and have not laid any foundation in the pleadings or  by  way of evidence to draw such an inference.   On  the other  hand,  the  Returning Officer is categorical  in  his testimony  that  almost  all the voters in the  two  polling stations  marked their votes using the wrong instrument.  If all the voters in the two polling stations had marked in the manner  stated  by  the Returning Officer, and  we  have  no reason  to doubt the correctness of his statement, the whole case,  as  sought  to  be  set up by  the  appellant  as  to violation of secrecy in voting, falls to ground.  Thus, none of  the arguments raised on behalf of the appellant based on Rules  39  and  56 of the Rules are tenable and  they  stand rejected.

     After adverting to various principles as enunciated by this  Court  in  various decisions  regarding  recount,  the learned  Judge examined the case put forth by the  appellant as  to the various irregularities committed in the course of counting.   The  first  irregularity  pointed  out  is  non- observance  of the requirement that 5 per cent of the  total number  of  bundles  of  valid ballot  papers  of  different contesting  candidates should be counted again at the  table of  the Returning Officer by making selection of 5 per  cent of  ballot papers in such a manner that it contains  bundles pertaining to different contesting candidates.  The evidence of  the  Returning Officer is to the contrary.  The  learned

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Judge  believed  him and held that test  of  checking/random checking  cannot  be stated to have been not done.  He  held that  the averments in the pleadings or evidence as to other irregularities   alleged  regarding   mixing,  sorting   and bundling  of  ballots papers were very vague and  no  weight could  be  attached  to  the same.   Thus,  the  High  Court concluded  that  the allegations contained in  the  election petition and evidence adduced were not sufficient to warrant recount or inspection of the ballot papers.

     The  learned counsel for the appellant in spite of his strenuous  efforts  is unable to point out any error in  the reasoning  or conclusion in the judgment under appeal as  to laying any foundation for recount.  Mere smallness of margin of votes by which the election is decided is irrelevant.  Of course,  in  a given case on the totality of  pleadings  and evidence, smallness of margin may gain importance but not in this  case.   The pleadings do not indicate the errors  made either with reference to number of ballot papers or table or round in which such mistakes occurred.  Except to make vague statements,  the  appellant has not either pleaded or  given any testimony through witnesses.  Hence the appeal is liable to  be  dismissed.   In  the   result,  this  appeal  stands dismissed  but in the circumstances of the case the  parties shall bear their respective costs in this appeal.