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PETITIONER: JITENDRA BAHADUR SINGH

       Vs.

RESPONDENT: KRISHNA BEHARI & ORS.

DATE OF JUDGMENT: 13/08/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. RAY, A.N.

CITATION:  1970 AIR  276            1970 SCR  (1) 852  1969 SCC  (2) 433  CITATOR INFO :  E          1972 SC1251  (16)  E          1973 SC 215  (9)  RF         1973 SC 581  (1)  RF         1973 SC2077  (2)  F          1975 SC 283  (45)  R          1975 SC 403  (7)  RF         1975 SC 693  (9)  RF         1975 SC2117  (4,7)  E          1980 SC 206  (19)  RF         1980 SC1362  (33)

ACT:     Election--Petition        for       setting        aside election--Application   for scrutiny of ballot  papers--When can be ordered.

HEADNOTE:     The   first  respondent,  an  elector,  challenged   the election  of  the appellant to the Lok  Sabha.   He  alleged inter  alia,  in the  election-petition that: (1)  only  one counting  agent of the defeated candidate was  permitted  at each table where three persons were counting simultaneously, and  hence,  it was impossible ’for the  counting  agent  to detect the wrong acts of the counting staff who had  adopted an  attitude  hostile  to the defeated  candidate;  and  (2) several  votes  of the defeated  candidate  were  improperly rejected ignoring the protests of the election agent of that candidate,  while  invalid votes and votes of  the  defeated candidate  were  counted in favour of  the  appellant.   The Schedule to the petition gave some figures of such  improper rejection and improper acceptance.  In the verification   to the petition it was stated that the allegations were made on the basis of information ’received from the workers and  the counting  agents  of  the defeated candidate  and  that  the election-petitioner believed the information to be  correct. It  was however not stated in the petition who  the  workers were  and  what  was the basis  of  their  information.   No written  objection was flied during the counting, either  to the  acceptance  or the rejection of any vote, nor  was  any such application made for a recount.     Before the trial of the election-petition the  election-

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petitioner  filed an application for permission to.  inspect the  packets.  of ballot papers containing the  accepted  as well  as rejected votes of the candidates. In the  affidavit in  support  of the petition he averred that on one  of  the days of counting. he was the counting agent of the  defeated candidate   and  had  personal knowledge  of  Such  improper rejection and acceptance. No other affidavit of persons  who could  have had personal knowledge of the matter was  flied. The  High  Court  allowed  the  application  and   permitted scrutiny  solely  on  the basis of the  allegations  in  the election  petition  and  the affidavit  in  support  of  the application seeking scrutiny. In appeal to this Court,     HELD.:  In  view of the importance  of  maintaining  the secrecy  of the ballot papers, scrutiny can only be  ordered if  the election-petition contains an adequate statement  of the material facts on which the petitioner relies, that  is, the material facts disclosed must afford  an adequate basis     the  allegations;  and, the election  tribunal  must  be prima  facie satisfied that in order to decide  the  dispute and to do complete justice between the parties inspection of the ballot papers is necessary. [855 G-H; 856 A]     In  the present case, the High Court stated that it  was so. satisfied on the mere statement of ’some figures in  the petition and affidavit.  It also did not give any reason  in support  of its satisfaction as to the need for  inspection. [857 G-H]     (1)  The  petitioner had not stated  that  any.  of  the counting  agents appointed by the defeated candidate or  his election agent, in accordance 853 with  the rules, had been refused  admission  to  the  place of counting. Therefore, the allegation that enough number of counting agents were not permitted was not supported by  any statement of material facts. [857 B-C]     (2)  Similarly,  with regard to the  rejection   of  the votes   polled  in favour of the defeated  candidate,  under the  rules,  before  a vote is rejected the  agents  of  the candidates  must   be  permitted to  examine  the  concerned ballot  paper,  and  therefore, the serial  numbers  of  the concerned ballot papers could have been noted.  The election petition, however,  is silent as to the inspection and notes of  the  ballot  papers and other  material  facts  such  as raising objections and asking for a ’recount. [857 C-E]     Therefore, the scrutiny of the ballot papers was  sought on  the basis of mere assertions and allegations which  were neither  accompanied  by a statement of material  facts  nor were  they  supported by any evidence; and hence,  the  High Court  should have rejected  the application  for  scrutiny. [857 F]     Ram Sewak Yadav v. Hussain Kamil Kidwai, [1964] 6 S.C.R. 238 and Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R.  1966 S.C. 773, followed.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1483  of 1958.     Appeal  by  special leave from the  judgment  and  order dated  May  21, 1968 of the Allahabad  High  Court,  Lucknow Bench  in Civil Misc. Applications Nos. 41 (E) and 42(E)  of 1968 in Election Petition No. 7 of 1967.     C.B.  Agarwala,  V.P. Joshi and S.S. Khanduia,  for  the appellant.

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   G.N.   Dikshit,  R.N.  Dikshit  and  O.P.   Saini,   for respondents Nos. 1 and 9. The Judgment of the Court was delivered by     Hegde,  J.   This appeal by special  leave  is  directed against  the  order  made by Sahgal, J.  on  May  21,  1968, permitting  the 1st respondent, an elector  challenging  the validity of the election of the appellant to Lok Sabh’a from 15,   Shahabad   Parliamentary Constituency in  the  general election  held  in 1967, to inspect the  packets  of  ballot papers containing the accepted as well as the rejected votes of the candidates.     In  the  election  in question as  many  as  10  persons contested.  The  appellant, the Jan Sangh  nominee  was  the successful  candidate.   The 9th  respondent,  Shri  Nevatia Rameshwar  Prasad,  the  Congress nominee  was  his  nearest rival.   In the election petition, the petitioner  not  only wants  the  appellant’s election to. be held void,  he  also wants that the 9th respondent should,, be declared  elected. The election of the appellant has been challenged on various grounds, with most of which we are not at present concerned. We  are only concerned with the allegations relating to  the irregularity   in  the scrutinising and counting  of  votes. The 854 averments  relating thereto are, found in paragraphs 13  and 14 of the election petition.  They are as follows:     (1)  only  one  counting agent was  permitted  at   each table  whereas  three persons were doing the  counting  work simultaneously  and  it was impossible for one man  to  look into and detect the wrong acts of three persons at the  same time.     Under  this  head  it was  further  mentioned  that  the counting staff was from amongst the government servants  who had gone on two months strike before the election and during the elections they had adopted hostile attitude towards  the congress  candidates  and had made efforts  to  bring  about their defeat;     (2)  the  bundles of votes of  either  candidates   were neither properly made nor properly scrutinised;     (3)  about 5,000 votes of the congress  candidates  were improperly  rejected ignoring the protests of Mr.  Malhotra, the election agent of the congress nominee;     (4)  invalid  votes  were counted  in  favour   of   the returned  candidate.  The votes of the  congress  candidates were counted for the returned candidate.     In   Sch  ’E’  certain  figures  showing   the   alleged improperly rejected as well as accepted votes pertaining to. certain  booths are mentioned.  It also shows the number  of votes  of the  congress nominee counted as the votes of  the returned candidate.  Neither the petition nor the   Schedule discloses the basis for arriving at those figures.     The election petitioner is neither the candidate nor his election  agent.    In  the election petition,  it  was  not stated  that  he  was  even  the  counting  agent.   In  the verification  appended  to  the election  petition,  it  was averred  that the allegations contained in paragraphs 12  to 15 of the election petition were believed by the  petitioner to be true on the basis of the information received from the workers of the congress nominee and others which means  that the  allegations made by him in_paragraphs 13 and 14 of  the election  petition  were based on hearsay  information.   He does not and he could not vouchsafe their accuracy though he claims  to have believed the information given to him to  be correct.   Similarly  in the verification appended  to  Sch. ’E’,  the election petitioner stated that he has  given  the

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information  contained in that Schedule on the basis of  the information  received  from  the  counting  agents  of   the congress  nominee.  Neither in the election petition nor  in the Schedule he mentioned that the counting agents had given him  the information in question on the basis of any  record made by them.          855     In  the affidavit filed by the petitioner in support  of his  application  seeking permission to inspect  the  ballot papers,  he went one step further.  Therein he averred  that on one of the days when the counting was going on, he  acted as  one  of the counting agents for  the  congress  nominee. Hence  he  claims  to   have   personal  knowledge  of   the rejection  of some valid votes ’and the acceptance  of  some invalid votes.  No affidavit of either the congress  nominee or  his election agent or any of the persons who could  have had  personal knowledge of the matter was filed  in  support of   that application.  No. oral evidence has been taken  in the  case  till now. The returned candidate has  denied  the allegations  referred to earlier.  It is true that  some  of the  defeated  candidates in their written  statements  have lent  support  to  the ,allegations  made  by  the  election petitioner.   The reason for the same is obvious.  But  even they  have  not  filed  any  affidavit  in  support  of  the concerned allegations.  Solely on the basis of the averments made in the election petition and the facts sworn to in  the affidavit filed by the election petitioner in support of his application seeking scrutiny of the ballot papers, the trial court had issued the impugned direction.     Before  proceeding to. consider the material in  support of the impugned order, it is necessary to mention that it is not  the  case of the election petitioner that  any  written objection  had been filed during the counting either to  the acceptance  or  to  the  rejection  of  any  vote.   In  the petition, it is averred that "the Returning Officer on being pointed out by the election ’agent of respondent No. 9, Shri P.C.  Malhotra,  said  his decision was  final  and  can  be questioned  through  Election  Petition".   Evidently   this averment  relates to the objections said to have been  taken by  Shri  Malhotra  in respect of the  orders  made  by  the returning officer as to the validity. of some of the  votes. Apart from the fact that the allegation in question. is very vague and lacking in details, not even an affidavit of  Shri Malhotra   has  been filed in support of  that   allegation. Admittedly no application was made to the returning  officer for  recounting the votes.  We have to examine the facts  of this case bearing in mind these circumstances.     The  importance  of maintaining the  secrecy  of  ballot papers and the circumstances under which that secrecy can be violated has been considered by this Court in several cases. In particular we may refer to the decisions of this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and ors. (1) and Dr. Jagjit  Singh  v. Giani Kartar Singh(2).   These  and  other decisions  of this Court ’and of the High Courts  have  laid down  certain basic requirements to be satisfied  before  an election  tribunal  can  permit  the  inspection  of  ballot papers.  They are:     (1)  that  the petition for setting aside  the  election must contain an adequate statement of the material facts  on which the peti- (1) [1964] 6 S.C.R. 238.   (2) A.I.R. 1966 S.C. 773. 856 tioner  relies in support of h/s case and (2)  the  tribunal must  be prima facie satisfied that k1 order to  decide  the dispute  and  to do complete justice  between  the  parties,

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inspection of the ballot papers is necessary.     The  trial court was of the opinion that if an  election petitioner  in his election petition gives some figures  ’as to  the rejection of valid votes and acceptance  of  invalid votes, the same must be considered as an adequate  statement of  material facts.  In the instant case apart  from  giving certain  figures whether true or imaginary,  the  petitioner has  not  disclosed in the petition the basis  on  which  he arrived  at those figures.  His bald assertion that he   got those  figures  from  the counting agents  of  the  congress nominee  cannot afford the necessary basis.  He did not  say in the petition who those workers were and what is the basis of  their  information  ?  It is  not  his  case  that  they maintained  any  notes or that he examined their  notes,  if there  were any.  The material facts required to  be  stated are  those  facts  which can  be  considered  ’as  materials supporting  the allegations made.  In other words they  must be such facts as to afford a basis for the allegations  made in  the petition.  The facts stated in paragraphs 13 and  14 of  the  election  petition and in  Schedule  ’E’  are  mere allegations  and  are not material  facts  supporting  those allegations.   This  Court in insisting  that  the  election petitioner  should state in the petition the material  facts was referring to a point of substance and not of mere  form. Unfortunately the trial court has mistaken the form for  the substance.   The material facts disclosed by the  petitioner must afford an adequate basis for the allegations made.     The  learned  trial judge while deciding  the  point  in issue  overlooked  certain  important  circumstances.    The election  petition  is silent as regards  certain  important aspects.   This   omission  has bearing on the point  to  be decided.  The allegation that the returning officer did  not permit the appellant more than one counting ’agent for  each counting  table is an extremely vague allegation. It is  not the election petitioner’s case that the congress nominee had appointed  more  than one counting agent for  any   counting table  but  the  returning  officer  did  not  accept  their appointment.  Under  s. 47 of the Representation  of  People Act, 1951, a contesting candidate or his election agent  may appoint in the prescribe manner one or more persons but  not exceeding such number as may be prescribed by the rules,  to be  present as his counting agent or agents at the  counting of  votes and when any such ’appointment is made  notice  of the  appointment shall be given in the prescribed manner  to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may  appoint. The form of the notice required to be given trader s. 47  of the  Act  is  given in the rules.  The  appointment  of  the counting agents 857 is to be made in the prescribed forms in duplicate, one copy of  which is to be forwarded to the returning officer  while the  other copy should be made over to. the counting  agent. Rules also provide that no counting agent shall be  admitted into the place fixed for counting unless he has delivered to the  returning officer the second copy of the instrument  of his  appointment  after  duly  completing  and  signing  the declaration contained therein.  The petitioner did not state in  the  election petition that any of the  counting  agents appointed by the congress candidate or his election agent in accordance with the rules had been refused admission to  the place of counting.  Hence the allegation that the  returning officer  did not permit enough number of counting agents  to be  appointed  is not supported by any  statement  of  facts necessary  to be stated. In other words the  material  facts

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relating to the allegations made have not been stated.     Now  coming  to  the rejection of the  votes  polled  in favour  of  the congress nominee, under the rules  before  a vote  is  rejected  the agents of  the  candidates  must  be permitted to examine the concerned ballot paper.   Therefore it was quite easy for them to note down the serial number of the  concerned  ballot  papers.  The  election  petition  is silent as to the inspection of the ballot ’papers or whether the  counting  agents had noted down the serial  numbers  of those  ballot  papers  or whether those  agents  raised  any objection  relating to the validity of those ballot  papers; if  so who those agents are and what are the serial  numbers of  the  ballot papers to which each one  of  them  advanced their  objections.   These  again  are  the  material  facts required to be stated.     As  seen  earlier the allegations made in  the  election petition   are  purported  to  have  been  rounded  on   the information   given   by  others.  No   one   takes   direct responsibility  for those allegations. No oral evidence  was given in support of them, not even affidavits were filed  in support of the allegations.  The scrutiny of  ballot  papers was  sought  on the basis of assertions which  were  neither accompanied  by a statement of material facts nor  supported by any evidence.     The  trial court correctly came to the conclusion   that before  an order of inspection of the ballot papers  can  be made  it  must  be prima facie satisfied that  in  order  to decide  the dispute and to do complete justice  between  the parties,  inspection of the ballot papers is  necessary.  It did  say  that it was so satisfied but it  gave  no  reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations.  There is absolutely no proof in this case to.  support  the  allegations on the  basis  of  which  the scrutiny  of  the ballot papers was prayed for.   The  trial court  did not mention in its order even a single reason  in support of its satisfaction as to the need for 858 inspecting the ballot papers.  Every judicial order must  be based on reasons and those reasons must be disclosed in  the older  itself.  Unfortunately the learned  trial  judge  had overlooked  the importance to be attached to the secrecy  of the ballot papers.     We have earlier referred to the principles enunciated by this  Court to be followed before ordering the  scrutiny  of ballot papers. The legal position in England is the same  as in this country.  In fact our election, law is patterned  on the  basis of the English Election Law.  In Halsbury’s  Laws of  England  (Vol.  14 at page 310, paragraph  559),  it  is observed:                      "The   usual   practice   is   for   an               application  for  a  recount to.  be  made  by               summons to. a judge on the rota for the  trial               of  parliamentary election  petitions   before               the trial on an affidavit showing the  grounds               on which the application is based.  A  recount               is not granted as of right, but on evidence of               good grounds for believing that there has been               a  mistake  on  the  part  of  the   returning               officer."               In Rogers on Elections (Vol. II at p. 199)  it               is  observed that an application  for  recount               should   be  made  by  summons  supported   by               affidavits showing grounds.  Fraser in his Law               of   Parliamentary  Elections   and   Election

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             Petitions observes at p. 222:                      "A   strong  case  must  be   made   on               affidavit before an order can be obtained  for               inspection of ballot papers or counter foils". Even before the Representation of  the People Act, 1951  was enacted  the law in this country relating to. inspection  of ballot papers was as stated earlier. The election  tribunals in  this  country  have refused to permit  the  scrutiny  of ballot  papers  unless  there was prima  facie  evidence  in support   of   the   allegations  made   in   the   election petition--see  Tanjore,  N.M.R.  (Hammond’s  Election  Cases 673);  Punjab  North Case (Hammond’s Election.  Cases  569), Karnal  Mohammadan Constituency Case (2 Doabia 235  );Karnal (South) General Constituency Case (2,Doabia 80);  Chingleput Case (Hammond’s Election Cases 307); see also R. Swaminath’s Case  (2, E.L.R. 51); Seshaiah v. Koti Reddi (3, E.L.R.  39) and Lakshumanayya v. Rajam Aiyar (58 M.L.J. 118).     For the reasons mentioned above we allow this appeal and set  aside  the order made by the learned trial  judge.   He with  now proceed with the trial of the case  in  accordance with law. The 1 st respondent, the election petitioner shall pay the costs of the appellant in this appeal. V.P.S.           Appeal allowed. 859