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PETITIONER: M.R. GOPALAKRISHNAN

       Vs.

RESPONDENT: THACHADY PRABHAKARAN  &  ORS.

DATE OF JUDGMENT13/12/1994

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) ANAND, A.S. (J)

CITATION:  1995 SCC  Supl.  (2) 101 JT 1995 (1)   202  1994 SCALE  (5)192

ACT:

HEADNOTE:

JUDGMENT:     FAIZAN UDDIN, J.:     1.      This   appeal  under  Section   116-A   of   the Representation of People Act, 1951 (hereinafter referred  to as  the Act) has been directed against the judgment  of  the High Court of Kerala dismissing the Election Petition of the appellant   whereby  he  had  challenged  the  election   of respondent No. 1 as a member of Kerala Legislative  Assembly from  constituency  No. 104 Kayamkulam, and  for  a  further declaration that the appellant was duly elected for the said seat  for which the election was held on 12.6.1991  and  the result of which was declared on 16.6.1991. 2.     In all there were eight candidates in the  field  i.. the  appellant and respondents No. 1 to 7 who contested  the said  election  for the Legislative Assembly seat  from  104 Kayamkulam  constituency.  The  appellant  was  a  candidate fielded  by  the  Communist Party of  India  (Marxist).  The respondent  No. 1 herein was the candidate sponsored by  the Indian  National Congress which was a constituent  party  of the  United  Democratic  Front. The total  number  of  votes polled  in the said election were 97,969 out of which  1,375 were  rejected  as  invalid  votes  and  96,594  votes  were received  as valid votes. At the end  of the final  counting which  took place on  June 16, 1991 the result was  declared and the respondent No. 1 was returned as a 205 successful  candidate  by a margin of 33 votes  against  his nearest  rival,  the petitioner/appellant herein.  The  main contest was between the appellant and the respondent No.  1. The  appellant had polled 46,649 votes while the  respondent No. 1 had polled 46,682 votes and thus the respondent No.  1 had  won  the  election by a margin of  33  votes  over  his nearest   rival,   the  petitioner/appellant   herein   and, therefore, he was declared elected.     The  appellant challenged the election of  the  returned candidate  respondent No.-. 1 herein by filing  an  Election

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Petition  under the relevant provisions of the Act,  in  the High  Court of Kerala on several grounds. It was alleged  by the appellant that the counting of votes for the Legislative Assembly  Constituency as well as counting of votes for  the Kayamkulam segment of Mavelikara Parliamentary  Constituency both took place simultaneously in the same hail which was of the  size of 80 x 20 feet and as there were  several  tables and chairs in the said counting hall and the counting agents of  all the candidates and other officials were  present  in the hall, it became crowdy and the sorting out of bundles of ballot  papers was done hastily and, therefore, it  was  not possible   for  the  counting  agents  of  the   petitioner/ appellant  to  carefully  keep a track  of  the  process  of sorting  out.  It was, therefore alleged that  a  reasonable opportunity was not given to the appellant’s agents to  note and  satisfy themselves that the bundles were really of  the candidates  for whom the votes were cast or the  correctness of  the ballot papers in each bundle. It was   alleged  that the Returning Officer rejected the votes as invalid  inspite of the protest by the petitioner/appellant’s election agent. The   petitioner/appellant’s   election   agent   made    an application for recount ’alleging specific irregularities in the  counting but the same was unreasonably rejected by  the Returning  Officer  and the respondent No.  1  was  declared elected.  It  has been further alleged that on  17.6.91  the petitioner/  appellant  submitted  an  application  10   the District Collector, Alapuzha for recounting and the election agent  of  the  petitioner/  appellant  had  also  sent   an application  to the Chief Election Officer pointing out  the irregularities  in the counting.   The  petitioner/appellant further  alleged that several postal ballots  were  rejected without  valid  reason and the votes cast in favour  of  the appellant  were  treated  as invalid  and  in  many  polling stations  the  figure in the ballot paper  account  did  not tally. 4.    The petitioner/appellant further made allegations that several  persons had cast their votes by committing acts  of impersonation, in place of the real and genuine voters.  The appellant  also alleged that 32 voters had cast their  votes twice  in the same constituency as their names were  entered in  the  electoral roll in more than one place and  that  18 persons had voted in more than one constituency the  details of  which were given in Annexure IV and V annexed  with  the Election Petition. It was therefore alleged that the  result of  the election had been materially affected in so  far  as the returned candidate is concerned. 5.    The petitioner/appellant also made allegations against respondent  No.  1 for committing corrupt practices  in  the said  election  by  publishing news  item  in  the  Malayala Manorma  Daily  dated  18.8.91  with a  view  to  create  an impression  in  the mind of the voters of  the  constituency that  the petitioner/appellant was indulging in  undesirable activities  to  secure  the release  of  convicts  who  were undergoing  life imprisonment for the purpose of making  use of  their  services  in the  election.  The  appellant  also alleged that with a view to prejudice the election prospects of the appellant a pamphlet was published and circulated  in the  constituency  which  contained false statement  to  the knowledge  of respondent No. 1 and his election  agent.  The petitioner/appellant alleged that  a news item was published on 7.6.91 in Malayala Manorma Daily followed by an  election pamphlet  which  was  widely circulated  in  the  Kayamkulam Assembly  Constituency the contents of which were false  and designed  to  prejudice  the minds of muslim voters  in  the constituency as there was a number of muslim voters in Wards

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No.  7, 9 and 10. The petitioner/appellant alleged that  due to the distribution of said pamphlet he lost large number of votes. The appellant also alleged that another pamphlet  was also  published  after  the  death  of  Shri  Rajiv   Gandhi mentioning  that the workers of the appellant had  destroyed the photos’of Shri Rajiv Gandhi and burnt Bhagwat Gita, Holy Quran and Holy Bible. The petitioner/appellant alleged  that this  pamphlet  was  published after 23.5.91  and  prior  to 12.6.91  with the consent and knowledge of respondent No.  1 with  a  view to prejudice the minds of the  voters  of  the constituency against the petitioner/appellant. 6.      The  Petitioner/appellant  further  alleged  in  the Election  Petition  that  out of the total  number  of  1280 postal ballots, 246 postal ballots were rejected by  violat- ing  Rule  27(1) and Rule 54-A of the  Conduct  of  Election Rules.   The petitioner/appellant alleged that his  election agent  requested  the  Returning Officer to  count  all  the postal ballots but the Returning Officer illegally  rejected 246 postal ballots and the request for recount of those  246 ballot papers was also rejected without assigning any reason for  such rejection. On these grounds the  appellant  prayed for declaration of the election of respondent No. 1 as  void and to declare the petitioner as duly elected candidate  for the said constituency. 7.   The returned candidate respondent No. 1  contested  the Election Petition filed against him by controverting all the adverse  allegations. The respondent No. 1 pleaded that  the Returning  Officer had afforded adequate opportunity to  the election  agents  and counting agents of the  candidates  to carefully watch the sorting out of the ballot papers and the Chief  Election  Agent  of  the  Petitioner/appellant    was present  throughout the process of counting.  But  as  there were no irregularities nobody raised any objection regarding the  sorting out or counting of votes. The respondent No.  1 pleaded  that  on the demand of the election  agent  of  the appellant  a  second round of counting of votes  of  certain polling stations was done but no fault was noticed.  He  has pleaded  that  246 postal ballots were  rejected  for  valid reasons  and  no illegality was committed by  the  Returning Officer  in the matter of dealing with postal ballots.   The respondent No. 1 further pleaded that no person had cast any vote  by committing acts of impersonation as alleged by  the appellant  in his election petition.  The respondent  No.  1 emphatically   denied  that  Annexure  VII  and  VIII   were published  by him or by any one with either his consent  and knowledge  or’ that of his election agent. He asserted  that his  election agents were in no way concerned or  associated with the a leged publication of Annexure VII and 207 VIII.  He  also  refuted the allegation  of  publication  of Annexure  IX and X either with his consent or  knowledge  or that of his election agent. 8..    The respondent No. 1 while refuting  the  allegations made   against   him  and  his  election   agent   filed   a recrimination petition under Section 97 of the Act  alleging that   the  petitioner/appellant  himself  was   guilty   of committing corrupt practice as defined in Section 123 of the Act.  He alleged that one M.R. Rajasekharan was the election agent of the petitioner/appellant who was also the Secretary of  the  Election Committee and it was he  who  printed  and published  a  notice  under the  caption  (English  version) "Elect  the  candidate of Left Front", the copies  of  which were  distributed  in various parts of the  constituency  on 10.5.91.   He  further  alleged  that  another  notice   was published  on 7.6.91 by the election agent of the  appellant

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under  the  caption (English version) "let the  devotees  of Shri  Narayana think".  The said two notices were  filed  by the respondent No. 1. as Annexure ’A’ and ’B’ alongwith  the recrimination petition. Annexure ’A’ contained an appeal  to the  muslim  community  to vote  for  L.D.F.  candidate  and Annexure  ’B’  contained an appeal to  voters  belonging  to Ezhuva  community  which according to the respondent  No.  1 amounted  to corrupt practice as defined under  Section  100 read  with sub-section (3) of Section 123 of the  Act.   The respondent  No. 1 further made allegations of double  voting by  some  voters  while names of  some  voters  appeared  in neighbouring  constituency as well. On these allegations  in the  recrimination petition the respondent No.  1  submitted that  even  if the appellant had been declared  elected  his election would have been void on the aforesaid grounds. 9.      The  High  Court  framed  necessary  issues  on  the aforesaid  pleadings  and  after  the   evaluation  of   the evidence adduced by the parties and taking into ’account the material  on record held that there was no  irregularity  in the counting of votes which may have materially affected the result  of  the election; that the rejection of  the  postal ballot. papers was for valid reasons; that it is clear  from the evidence that as and when the petitioner’s agent  raised any objection regarding the counting there was checking  and rechecking  and  according  to  the  evidence  of  Returning Officer.  PW  16 at least 40 per cent of the  ballot  papers were subjected to test checking but no difference was  found in such test checking and. therefore. in the absence of  any specific   irregularity  pointed  out  by  the   petitioner/ appellant’s  agent  regarding  the  counting.  P.W  16   was justified  in rejecting the request for recount and as  such no  case  was  made  out for  directing  recount;  that  the petitioner/appellant  had  failed  to  establish  that   the pamphlets  Ext.  P  158  and  Ext.P  159  were  printed  and published  with the consent and knowledge of the  respondent No.  1 and that the alleged publication do not  fail  within the  purview  of corrupt practice as  envisaged  under  sub- section (4) of Section 123 of the Act; that the  petitioner/ appellant  had failed to prove that annexures VIII. IX  &  X i.e.  Ext.  P 161. Ext. P 162 and Ext. P 157  were  printed. published  and  circulated by the respondent No.  1  or  his election agent or by any other person with their consent and knowledge;  that  the petitioner also failed to  prove  that four  persons had cast votes by impersonation as alleged  in para 4 of. the election petition. However. the High Court on issue No. 8 with regard to the petitioner/appellant’s al- 208 legation of double voting by 32 voters recorded the  finding that Seethabhai Sanjivan, PW 2 had cast two votes in respect Of electoral roll No. 051419, Ext. P 7 and No. 048734 Ext. P 9  and,  therefore, both were declared as  void.   The  High Court also recorded the finding that voter No. 375 and voter No.  1271  in the electoral roll-relate to the  same  person Achuthan  Sukumaran, PW 3 and Achuthan had cast his vote  in Kayamkulam  constituency against voter No. 1271 in Ext  P  5 and  that some one else had cast his vote against voter  No. 375  in Ext, P 8 which the High Court declared to  be  void. Similarly  the High Court further recorded the finding  that Pulikkandathil  Sujatha Achuthan, voter No. 376 in Ext. P  8 is the same whose name appears in the polling station No. 43 as  well as polling station No. 45 and, therefore, one  vote has  been declared as void.  The High Court also  held  that voter  No. 1221 in Ext. P 15 and voter No. 143 in Ext. P  16 is one and the same person Sagar Yunus Kunju, PW 5 and  that someone  had cast the vote On behalf of PW 5  against  voter

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No.  143 in Ext. P 16 and, therefore, one vote against P  16 has also been declared void.  The High Court also held  that Madhavan Neelakanthan, PW 11 had cast two votes in the  same constituency (Ext. P 43 and Ext. P 44) and, therefore,  both have  been declared void.  The High Court also declared  one vote of PW 12 to be void. It was also found that the name of Kunjumuthu  @  Kunju, PW 13 and Anjali Siril Kunju  Muthu  @ Muthu  is  one and the same person whose  name  appeared  in polling station No. 7 as well as in polling station No.  35, who  .had cast vote at both the places and, therefore,  both the votes are declared void.  The High Court also found that one vote of PW 27 cast against counterfoil No. 001475  (Ext. P  89)  was liable to be declared void.   Similarly  it  was found  that  Madhuradha Krishnan, PW 29 had  cast  his  vote twice and, therefore, both the votes against counterfoil No. 041933  (Ext. P 97) and counterfoil No. 090465 (Ext.  P  98) were also declared void. One vote of Radhakrishnan Kunju, PW 30  was  also declared as void as his name appeared  in  two polling  stations  and  he had cast his  vote  only  in  one polling station while someone else had cast the vote at  the other polling station by impersonation.  Similarly one  vote of  Suresh  Kumar Dasappan Pillay, PW 31 was  also  declared void  for the same reasons. The High Court also  found  that Abdul Rasheed Ayyar Kunju, PW 32 had cast his vote twice  in the  same  constituency and, therefore, both the  votes  are declared  void. Thus under issue No. 8 the High Court  found in  all 20 votes to be void. The High Court therefore,  took the  view that since the improper reception of 20 votes  did not materially affect the result of election of the returned candidate  as  it only reduced the margin from 33 to  13  by reason  of  which  the election of  the  returned  candidate respondent  No.  1  herein cannot be declared  to  be  void. Consequently, the question of declaration of the  petitioner as  the  returned candidate did not arise.  Since  the  High Court  found  that  even  after  giving  a  discount  of  20 improperly received votes, the election of respondent No.  1 could  not be cancelled or declared void and, therefore,  it dismissed  the  election petition. The High  Court  did  not consider it necessary to go into the allegations and grounds raised    by    the   respondent   No.   1    against    the petitioner/appellant in his recrimination application  filed under  Section  97 of the Act and the  evidence  adduced  in support of the same. 209 10.     Though  Shri  P.S.  Poti,  learned  senior   counsel appearing  for  the petitioner/ appellant assailed  all  the findings  recorded  by  the High  Court  in  dismissing  the election petition but his main attack was that:     (i)   The   counting  was  not  cOnducted  legally   and properly  and in a congenial atmosphere by reason  of  which the  Returning  ’Officer  ought not  to  have  rejected  the application for recount and that in any case the prayer made to that effect in the election petition should not have been rejected  by  the  High  Court in  view  of  the  facts  and circumstances  mentioned  in para 4 and 7  of  the  election petition.     (ii)  Out of the total No. of 1280 postal  ballots,  the Returning  Officer  rejected 246 ballot papers and,  out  of these  246, 24 postal ballot in Ext. P 54 series  only  were rejected giving reasons in accordance with Rule 54(A)(4)  of the Conduct of Election Rules, 1961 while 222 ballot  papers of  Ext. P 55 series were rejected without  any  endorsement for  such  rejection  which  is  clearly  repugnant  to  the mandatory  provisions  contained  in  Rule  54  (A)(4)  and, therefore,  this reason alone was sufficient . to hold  that

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the  result  of  the election  was  materially  affected  as according  to the appellant there were valid postal  ballots in  favour  of  the  appellant  amongst  those  which   were improperly rejected and;     (iii)  That invalid votes were counted in favour of  the returned  candidate  respondent No. 1 and out of  the  total rejected  votes of 1375 quite a large number of valid  votes in  favour of the appellant were rejected  which  materially affected the result of the election. 11. In order to appreciate the first contention advanced  by the learned counsel for the appellant and referred to  above it has to be seen whether the appellant has pleaded material facts  and  laid  adequate foundation for  a  direction  for inspection  and recount. In this regard learned counsel  for the  appellant submitted that the pleadings with  regard  to the material facts for a direction for recount arc contained in  paras 4 and 7 of the election petition.  Briefly  stated the allegations made in para 4 of the election petition  arc that  the counting of 104, Kayamkulam Assembly  Constituency as  well  as  the counting  of  Parliamentary  election  was simultaneously  don in a Hall which had a length of 80  feet and  width  of 20 feet which was  insufficient  to  properly accommodate  the  stag  of the  Returning  Officer  and  the assistants  as  wIl as the counting  staff,  candidates  and their   counting   agents  by  reason   of   which   various irregularities  wre  either  consciously  committed  by  the counting staff or occurred on account of the hurried sorting out   and   putting  the  ballot   papers   into   different compartments of the candidates or the compartments meant for the  doubtful votes while bundling up the ballot  papers  of respective candidates into bundles of 50 each. It is  stated that  it  was difficult for the agents  of  the  petitioner/ appellant  to  carefully keep track of the  sorting  out  or identifying the voters mark on the ballot papers before they were  put into different compartments.  It has been  further alleged  that a partisan attitude of the  counting  officers and  supervisors  was visible.  The counting agents  of  the petitioner  raised objection on several occasions  and  Shri M.R.     Rajesekharan,     election     agent     of     the petitioner/appellant mentioned these facts to the  Returning Officer  who told him that it was up to the counting  agents to watch the process and the whole count- 210 ing  is  to be done without delay as the result  has  to  be declared as early as possible.  It is further alleged in the same  para  4  of the petition that as  the  petitioner  was aware-of several specific irregularities at the counting and the  fact  that the Returning Officer himself  had  rejected several  votes  as invalid over ruling the  protest  of  the petitioner’s election agent that they were the votes  polled by  the petitioner, so the petitioner’s election agent  made an  application for recount of the votes but  the  Returning Officer  rejected the application without any  justification and unilaterally declared the first respondent as elected by a  margin  of  33  votes despite  vehement  protest  of  the petitioner’s election agent. His pleadings contained in para 7  of the election petition relate to the  allegation  about casting  of several votes by impersonation giving the  names of  four  persons  who were alleged to have  voted  for  the persons whose name appeared in the electoral roll in polling booths  No. 15, 30 and 3.  According to the learned  counsel for the appellant these. facts in addition to the fact  that 222  postal ballots were rejected contrary to the  mandatory rule constituted material facts for direction for inspection and  recount of all the ballot papers. But on a careful  and

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critical examination of the facts and the evidence on record we find that they speak contrary to the allegations referred to  above  in the petition which shall be discussed  in  the paras hereinafter. 12.    We shall first discuss the evidence relating  to  the alleged  irregularities said to have been  committed  during the  counting. Shri M.Siraj Kunju, PW 16, District  Planning Officer  was  the  Returning  Officer  of  104,   Kayamkulam Assembly Constituency for the general election held on  June 12,  1991.  He  deposed that the Chief  Election  Agents  of various   candidates  were  sitting  near   him   (Returning Officer).  There were two independent observers  deputed  by the  Election Commission who visited the Counting  Hail.  He also    stated    that   the   election   agent    of    the petitioner/appellant wanted recounting of the entire  ballot papers  but as he had not specifically requested in  respect of  rejection  of any ballot paper in a  particular  polling station he did not allow the application for recount. But on demand  by  the Chief Election Agent of the  petitioner  the entire  ballot  papers of polling booths No.96 to  111  were counted twice. He also stated that he himself had supervised the second counting in respect of some of the tables and his Assistant Returning Officers supervised in respect of  other tables.  He further deposed that before a final decision was taken  in  the application for counting,  he  consulted  the officials who were Incharge of the preparation of the  final sheets whether there was any mistake and he himself  checked the  result  sheets.   He stated that  during  the  time  of counting  the  actual  number  of  votes  secured  by   each candidate was shown in the Display Board and this was  being done  till  the  counting was over  but  nobody  raised  any objection.  A  perusal  of the  evidence  of  the  Returning Officer,  PW  16  will  go  to  show  that  no  question  in cross’examination  on behalf of the appellant  was  directed against  the alleged uncongenial atmosphere in the  counting hail  or  any difficulty in the sorting out or  putting  the ballot papers in different compartments or in the bundles of different candidates. No question was also directed that the agents felt any difficulty in carefully keeping the track on the  sorting  out or identifying process  or  regarding  the indifferent attitude of the counting staff. No question  was also put to the Rturning Officer that proper opportunity 211 to  the appellant’s agents was not afforded with  regard  to the  verification of marks made by the voters on the  ballot papers. 13.    It  is no doubt true that M.R. RaJasekharan,  PW  98, election   agent   of  the  Petitioner/appellant   made   an application on 16.6.91 purporting to have been made at 10.35 PM   to  the  Returning  Officer  for  recount.   The   said application which is Ext. P 207 reads as under:-   EXT. P.207   From       M.R. Rajsekharan,       Election agent of       Shri MR Gopalakrishnan.       104. Kayamkulam       Assembly Constituency.   To       The Returning Officer,       104. Kayamkulam       Assembly Constituency. Respected Sir,     It  is understood to me that them are irregularities  in the counting of votes. which began from 8-15. today morning.

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of   many  polling  station  of  104.  Kayamkulam   Assembly Constituency  and  also I have doubt about the  counting  of Postal  Ballots  and  also votes are not  tailing  with  the records.     In addition to this that many number of votes have  been unauthorisedly  and illegally declared invalid and  so  that entire  votes of this station may be subjected  to  recount. otherwise it will cause irrepa-. rable loss to me and to  my candidate.     Hence  it is requested that the result of  this  station may be announced only after the recount is conducted.  Yours faithfully. Sd/- 10.35 PM M.R. RAJASEKHARAN Harripad, 16-6-1991.     Plain  reading of this application will go to show  that it  is  written In most vague terms without  specifying  any irregularities    whatsoever   which   according   to    the petitioner/appellant  were  committed during the  course  of counting. 14.    The apPellant M.R. Gopalakrishnan who appeared as  PW 100 himself made an application Ext. p 211 on 19.6.91  three days after the declaration of result to the Chief  Electoral Officer.   Trivendrum  for  recount  which   is   reproduced hereunder :. EXT. P. 211 From: M.R. Gopalakrishnan, Candidate 104. Kayamkulam Assembly Constituency, KAYAMKULAM. To    The Chief Electoral Officer,    1991 Assembly Elections,    TRIVENDRUM.    SUB:  Rejection  of  application for recounting  and  re- verification  of  Postal  Ballot  Papers.  Request  for  re- counting and reverification. Sir,      I  was  a candidate for the Assembly  Election  in  104 Kayamkulam Constitu- 212 ency.   My opposite candidate Shri Thachadi Prabhakaran  was declared for 33 votes by the Returning Officer.      Knowing that there was irregularities and illegality in the  matter  of  counting,  my chief  Agent  has  placed  an application for re-counting.     The  Returning Officer has declared hundreds of  invalid votes  as valid in favour of Shri Thachady  Prabhakaran.  My valid votes have been declared as invalid.     About 300 postal ballot papers have been declared by the Returning Officer as invalid votes.     For  the reasons stated above, I request you to be  good enough to take urgent steps to re-count the ballots as  soon as possible.                                  Yours faithfully,                                         Sd/-                                  (MR. Gopalakrishnan) Kayamkulam, 19-6-1991     Copy to: Chief Election Commission, New Delhi. A  cursory look at this application will go to show that  no specific   allegation   with  regard   to   any   particular irregularity in the counting was made but vague  application

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for  recounting  was  submitted.  Not  only  this  but  M.R. Rajasekharan,  PW  98 the election agent  of  the  appellant again made an application on 21.6.91 to the Chief  Electoral Officer,  Thiruvanthapuram  requesting for  recount  of  the votes  of  104, Kayamkulam Assembly Constituency.  The  said application Ext. P.208 is reproduced herein below. From:     M.R. RAJASEKHARAN,     Election Agent of     M.R. Gopalakrishnan,     Kayamkulam. To     The Chief Electoral Officer     State of Kerala,     Thiruvananthapuram.     Sub: Assembly Election - Counting     of Votes of 104 Kayamkulam     Assembly Constituency at     Haripad - Irregularities recount-     ing and Verification request re-     garding Sir,.     I  was  Election Agent of Shri  M.R.  Gopalakrishnan,  a candidate  of  104  Kayamkulam  Assembly  Constituency.  The counting of the votes of the Constituency was held at  Govt. H.S. for Girls, Haripad on 16-6-1991. After the counting  of votes,   having   doubts   and   having   noticed   specific irregularities  in the counting, before the  declaration  of the  results  I gave in writing a request to  the  Returning Officer for recounting of votes on reasonable grounds.  But, to  the  surprise  of all present,  the  Returning  Officer, unilaterally  declared Shri Thachady Prabhakaran elected  by 33   votes,  under  out  vehement  protest.   Against   this arbitrary  decision of the Returning Officer  the  candidate filed a petition to the District Collector Alleppey.     The immediate rejection of our demand for recounting  of votes  was  illegal  and  against  rules.   Our  demand  for recounting was based on the following grounds :- 1.  A good number of postal ballots 213 were rejected without valid reason. 2.   Votes  which were valid in our favour were  counted  as invalid. 3.    In many booths, the ballots in the box did  not  tally with the statement. 4.    Many counting Officers were the relatives and partymen of  the  U.D.F. Candidate and they Purposefully  helped  the U.D.F. Candidate. 5.    The  conjection  in the counting  Hall,  the  frequent outbursts of impatience and protest of the counting officers prevented the peaceful counting. For  the  above reasons I request you to be good  enough  to take  steps for the recounting of votes of 104,  Kayamkulam, for which I shall be grateful to you.                                  Yours faithfully,                                          Sd/-                                   (M.R. Rajasekharan) Kayamkulam, 21-6-1991   In   this   application   it  may  be   noted   that   the irregularities  pointed  out  in  paras 1  to  5  of     the application  were  not  mentioned  in  the      earlier  two applications Ext. P 207 and    Ext. P 211. This clearly goes to show that  the irregularities pointed out in this  latter application  are only after thought and not    based on  any

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true facts. If in fact any of the irregularities of the kind alleged in paras   4 and 7 of the election petition or those as     mentioned in the applications dated 21-6.- 1991  were in fact committed, then why   these irregularities were  not pointed out to    the Returning Officer or to any of the ob- servers  when  they  visited the  ’counting  hall       when counting was going on.  No complaint about any  irregularity or about the uncongenial atmosphere of the hall was reported either  orally or in writing to the Returning Officer or  to any  official  connected with the affairs  of  the  counting during the course of counting on 16-6-1991.. In these  facts and circumstances it is difficult to accept the  allegations that  the atmosphere of Counting Hall was not  congenial  or there was any difficulty in the counting due to the size  of the hall or any irregularities were committed as alleged  by the  appellant in the election petition. In these facts  and circumstances  the High Court is fully justified  in  taking the  view that no case for a direction for recount was  made out.    15.    It may be pointed out here that the    true  legal position in the matter of allowing or disallowing a  request for  recount is   no longer in doubt but well settled.  That the  Tribunal or the Court trying an election  petition  has power  to  direct  inspection and recount of  votes  if  the material  facts  and particulars are  pleaded  and  adequate grounds are found to exist for directing such recount in the interest  of  justice is now well settled. While  doing  so, however,  the provisions contained in Section 94 of the  Act may  not  be ignored but the same be given  due  weight  and consideration  before  directing  inspection  and   recount. Section  94 of the Act directs that ’secrecy’ of voting  not to be ’infringed’It directs that no witness or other  person shall  be required to disclose for whom he has voted  at  an election  particularly in view of the statutory rules  which provide  adequate  safeguard  for  proper  conduct  of   the counting  and for testing the validity or invalidity of  the ballot  papers.  The rules relating to counting of votes  in parliamentary  and assembly constituencies are contained  in Part IV of the Conduct or Elec- 214 tion  Rules,  1961 hereinafter referred to as  the  election rules.  Rule  51  provides for the time and  place  for  the counting  of  votes. Rule 52 relates to the  appointment  of counting  agents and revocation of such  appointments  while Rule  53 makes provision for admission of counting  officers and  counting assistants as may be appointed to  assist  the Returning Officer in the counting; persons authorised by the Election  Commission; public servants on duty in  connection with the election and; candidates, their election agents and counting agents; fixing the place for counting. Further Rule 54  contemplates  that the Returning Officer  shall  apprise all  persons present in the counting hall the provisions  of Section  128 which relate to the maintenance of  secrecy  of voting.  Rule  55  deals with scrutiny and  opening  of  the ballot  boxes after the same are inspected by  the  counting agents  present at the particular table with regard  to  the seal which may be affixed thereon to satisfy themselves that they are in tact.  In addition to this the Returning Officer himself  has to satisfy that none of the ballot  boxes  have been tampered with and in the event the Returning Officer is satisfied  that  any ballot box has in  fact  been  tampered with  he   shall  refrain from counting  the  ballot  papers contained in that box and take steps in accordance with Rule 58  of  the  Act.  Further Rule  56  provides  the  mode  of counting,  scrutiny  and rejection of the ballot  papers  if

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found to be invalid for any reasons pointed out in the  said rule.   Rule  56.  also  makes  provision  for  raising   of objections with regard to any ballot paper and deal with  it in accordance with law. From this elaborate procedure  right from the point of opening of the ballot box up to the  stage of sealing the ballot papers after the counting is over,  it is  evidently clear that the rule and procedure of  counting provide the candidates and their, counting agents sufficient and  adequate  opportunity  to see  and  examine  and  raise objections,  if  any,  in respect of any ballot  paper  with regard  to  its validity or otherwise and it is  only  after objections, if any, the ballot paper is admitted as valid or invalid  as the case may be.  Not only this but  even  after the  completion  of the process of counting a  provision  is made  in Rule 63 to make a demand to the Returning  Officers for  recount of the votes either wholly or in  part  stating the grounds on which the demand for such recount is made. It is  only  after the compliance of this  elaborate  procedure that the Returning Officer prepares the result sheet in form 20 and declares the result. 16.    After  a cursory glance of  the  relevant  provisions discussed  above it is thus evidently clear that  the  rules provide  adequate opportunity to a candidate,  his  election agent  and counting agent to have a watch over the  counting process before the result is declared and if they raise  any objection  as  to the validity or otherwise  of  any  ballot paper and if the said objection is improperly rejected,  the candidate  his counting and election agent are wII  informed of  the nature of the objection that was raised with  regard to the ballot paprs and make a concise statement of material facts  in the election petition in relation thereto.  It  is for  hiss reasons that this Court has repeatedly  held  that the secrecy of the vote has to be maintained and a demand of recount should not ordinarily be granted unless the election petitioner  makes out a prima facie case with regard to  the errors  in the counting and is able to show that the  errors are of such magnitude that the result of the election of the 215 returned  candidate  is materially  affected.  The  election petitioner,  in  order to seek an order of recount,  has  to place  material  and  make out a prima  facie  case  on  the threshold  and before an order of recount is actually  made. The demand of a defeated candidate for recount of votes  has to be considered keeping in view that secrecy of the  ballot is  sacrosanct  in a democracy and,  therefore,  unless  the election  petitioner is able not only to plead and  disclose the  material facts but also substantiate the same by  means of evidence of reliable character that there existed a prima facie  case for the recount, no Tribunal or Court  would  be justified in directing the recount. 17.   This Court in Bhabhi v.  Sheo Govind and others [ 1976 (1)  SCC 687 ] while dealing with the question of  direction for   inspection  and  recount,  on  a  close  and   careful consideration of various authorities of This Court laid down certain  guidelines  and  conditions  which  are  imperative before  a court can grant inspection of the  ballot  papers. The said conditions and guidelines are set out below :-               "1.   That  it is important  to  maintain  the               secrecy of the ballot which is sacrosanct  and               should  not  be  allowed  to  be  violated  on               frivolous, vague and indefinite allegations;               2.  That  before inspection  is  allowed,  the               allegations made against the elected candidate               must  be  clear  and  specific  and  must   be               supported  by adequate statements of  material

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             facts;               3. The Court must be prima facie satisfied  on               the   materials  produced  before  the   Court               regarding  the truth of the  allegations  made               for a recount;               4.  That the Court must come to the conclusion               that  in order to grant prayer for  inspection               it  is  necessary and imperative  to  do  full               justice between the parties;               5.    That  the discretion  conferred  on  the               Court should not be exercised in such a way so               as  to  enable the applicant to indulge  in  a               roving  inquiry with a view to fish  materials               for declaring the election to be void; and               6.  That on the special facts of a given  case               sample  inspection  may  be  ordered  to  lend               further   assurance   to   the   prima   facie               satisfaction of the Court regarding the  truth               of the allegations made for a recount, and not               for the purpose of fishing out materials." In  a recent decision in Satyanarayan Dudham v.  Uday  Kumar Singh   [  1993  Supple  (2)  SCC  82  ]  this  Court  again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and  an  order of recount cannot be granted as a  matter  of course.  It is only when the High Court is satisfied on  the basis  of  material  facts  pleaded  in  the  petition   and supported by the contemporaneous evidence that rcount can be ordered.  When there is no contemporaneous evidence to  show any  irregularity or illegality in the counting,  ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition. 18.    As discussed in the foregoing paras, in  the  present case, there is no any specific instance or allegation in the petition with regard to any particular irregularity and  the meagre  and  vague allegations that have been made  are  not supported by any contemporaneous evidence making out a prima facie case for recount and, therefore, the Returning Officer as well as the 216 High Court were fully justified in rejecting the demand  for recount. 19.  This brings us to the second ground of attack  advanced by the learned counsel for the appellant with regard to  the rejection  of 246 postal ballot papers of Ext. P  55  series which  are  alleged  to  have  been  rejected  without   any endorsement  and  without  assigning  any  reason  for  such rejection in violation of the mandatory provisions contained in  Rule 54(A)(4) of the election rules which  according  to the  learned counsel for the appellant  materially  affected the result of the election. It was submitted that since  the rejection  of postal ballot papers was improper, keeping  in view  the low margin between the appellant and the  returned candidate  respondent  No. 1 herein, the High  Court  should have  allowed  the prayer of recount. As against  this  Shri Joseph,  learned counsel appearing for the respondent No.  1 submitted  that  the mere fact of non-recording  of  reasons could  not  lead  to the inference that the  result  of  the election  has been materially affected nor could it  justify recount, without proper pleadings,, and material facts being furnished  in the election petition. He submitted  that  the case’  of the petitioner/ appellant was not that  his  valid postal ballots had been wrongly rejected or that the invalid postal ballots of the returned candidate had been improperly accepted from Ext. P 55 series and, therefore, the  omission

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on the part of the Returning Officer to endorse the  reasons for  rejecting the postal ballots on the grounds which  were otherwise valid, would be of no consequence.  However, after very  lengthy  arguments  advanced by  the  learned  counsel for  the  parties on this point, Shri Poti,  learned  senior counsel for the appellant made an application on 13.9.94  in this Court which was taken on Board, praying that the postal ballot papers (Ext. P 55 series) be subjected to  inspection by this Court in view of the narrow margin of votes  between the  appellant and the returned candidate respondent No.  1. Learned counsel for the respondent No. 1 was good enough and fairly  recorded  his ’No Objection’ to the prayer  made  on behalf  of the appellant in the aforesaid  application.  We, therefore,  with a view to do complete justice  between  the parties  and to satisfy our judicial conscience,  since  the finding of the High Court was not clear as to whether or not the rejected postal ballot papers Ext. P 55 series had  been subjected  to any inspection or scrutiny when the  Returning Officer  PW 16 was being examined in the Court, granted  the prayer  of the counsel for the appellant and the  inspection of the postal ballot papers, Ext. P 55 series was  conducted by  us in the Court in the presence of learned  counsel  for the  parties  who  also  Participated  in  the  process   of inspection. On inspection of the postal ballot papers Ext. P 55  series we found that except a few postal  ballot  papers from the said series where incomplete declaration forms  had been filed, the details whereof are given, the other  postal ballot papers did not include any declaration form at all as required by Rule 54-A, in the outer cover. The longer  outer cover  contained  only a small cover containing  the  ballot paper itself.  After inspecting more than half of the ballot papers  we did not deem it necessary to inspect all the  246 ballot  papers  as  the  learned  counsel  for  the  parties conceded  that no further exercise was necessary to  inspect the  postal  ballot papers of Ext. P 55 series  because  the rejection of the ballot papers by the Returning Officer were found to be in order by us in the Court in the presence of 217 the counsel for the parties in the random sample  inspection of more than 150 postal ballots of Ext.  P 55 series and the same  were found to have been rightly rejected.  The  postal ballot  papers  in which the declaration  forms  were  found alongwith  the  smaller cover containing the  ballot  papers reveal the following position: 1.   P.55 (176) All the entries in the declaration form  are totally blank. 2.   P.55  (181)  The entries in the  declaration  form  are totally blank. 3.   P.55 (165) The declaration form in the  outer cover  is totally blank. 4.   P.55 (161) The declaration form is totally   blank. 5.   P.55 (160) The declaration form is totally   blank. 6.   P.55 (159) The declaration form is totally   blank. 7.   P.55  (154) and P.55 (156)  The larger  cover  contains two small envelopes,containing ballot papers of Assembly and Parliamentary   Constituencies, but no declaration     form at all. 8.   P.55   (86)  Does  not  even  have  a  let  alone   the declaration form. 9.   P.55  (92)   There is no declaration form  and  instead along   with   the  small  cover,  Form   13-D,   containing instructions for the guidance of electors has been  enclosed in the outer cover. Faced  with  the  aforesaid situation,  Shri  Poti,  learned counsel for the appellant candidly submitted that in view of

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the result of the inspection carried out by us in the  Court he was not in a position to support his submissions that the postal  ballot papers had been wrongly rejected by  the  Re- turning Officer.  Thus this ground of attack also fails. 20.We  now come to the third ground advanced by the  learned counsel for the appellant that invalid votes were counted in favour  of the returned candidate respondent No. 1 and  that out  of  the  total rejected votes of 1375,  quite  a  large number  of  valid  votes in favour  of  the  appellant  were rejected,  which  materially  affected  the  result  of  the election.  Learned counsel for the respondent submitted that the  appellant  has not set forth the concise  statement  of material  fact  with regard to the  allegation  of  counting invalid  votes  in favour of the respondent No.  1  nor  has given  any  particulars  of such  invalid  votes  which  are alleged  to have been counted in favour of respondent No.  1 He  also submitted that similarly there are  no  particulars with regard to the rejection of valid votes in favour of the appellant  nor number of such votes in order to support  the allegation  that such rejection of valid votes in favour  of the   appellant  materially  affected  the  result  of   the election.   In  our opinion there is no substance  in  these submissions  made by the learned counsel for the  appellant. In  fact the appellant has neither pleaded the  details  and the  number  of  such invalid votes which  were  counted  in favour of respondent No. 1 nor has given the particulars  of the  number of such valid votes in favour of die,  appellant which   were  wrongfully  rejected  during  the  course   of counting.   This apart, the Returning  Officer,  Supervisors and  other officials were also present in the counting  hall throughout  the process of counting and the  observers  also visited the counting hall, 218 but  neither  the appellant nor any of his  counting  agents pointed  out  or objected either orally or in  writing  that invalid votes were counted in favour of the respondent No. 1 or  valid  votes in favour of the appellant  were  rejected. The evidence of the Returning Officer, PW 16 clearly goes to show  that no such complaint was made by any one during  the course of counting.  In these facts and circumstances it  is difficult  to accept the allegations made by  the  appellant which  seem  to  be only an after thought  and  without  any evidence or material to support the same. 21.  Learned counsel for the appellant,  however,  submitted that  having regard to the size of counting hall  which  was packed  and  uncongenial atmosphere  prevailing  therein  as stated    earlier    it   was   not   possible    for    the petitioner/appellant  or his agents to watch,  over-see  and check the ballot papers so that they could take note of  the particulars of ballot papers which were not correctly placed in the respective bundles of the candidates in whose  favour the votes were cast or the particulars of those votes  which were  rejected  as invalid though the  same  were  otherwise valid   and,  therefore,  it  was  not  possible  for   the, petitioner/appellant  to  make a mention or plead  any  more facts and particulars beyond those already stated in paras 4 and  7 of the petition.  After giving our anxious  consider- ation  to  the  submissions made above,  we  are  unable  to persuade ourselves to accept the same.  In the earlier  part of this judgment, we have already discussed the evidence and material  on record and found ,.,,at there is absolutely  no basis to show that there prevailed any kind of confusion  or irregularity  in the counting which could have disabled  the appellant  or  his  agents  from  watching  the  process  of counting.  As said above no such grievance was ever advanced

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by  the  appellant  or his agents at the  time  of  counting either  orally or in written to the Returning Officer or  to the observers or to any member of the counting staff deputed for  the  purpose.  The applications for recount  were  made only after the counting was over and the result was declared and that too with vague allegations.  This submission has no merit and the same is accordingly rejected. 22.. Learned counsel for the appellant lastly contended that the  election of respondent No. 1 was liable to be  declared void  and cancelled on the ground of corrupt practice  under sub-section 3(A) of Section 123 of the Act as the respondent No.  1  tried to promote the feelings of enmity  and  hatred between   different  communities  of  the  constituency   by publication and distribution of the pamphlets Annexures  VI, VII, VIII, IX and X which are marked as Ext.  P 158, Ext.  P 159, Ext. 162, Ext. 161 and Ext. 157.  In this connection it may  be  pointed out that the High Court  has  minutely  and critically  examined  the evidence adduced  by  the  parties which  has  been discussed at length in paras 22  to  37  of judgment and the High Court has recorded the conclusion that the  appellant had failed to establish that these  pamphlets were  published  or distributed by respondent No. 1  or  his agent or any other person with the consent of the respondent No.  1  or  his election agent.   Learned  counsel  for  the parties took us through the entire evidence on the point and after analysing the same we find ourselves in agreement with the  view taken by the High Court.  It has been the  consis- tent  practice  of  this Court not to  interfere,  with  the findings on the questions of fact unless there is some grave or palpable 219 error in the appreciation of evidence on the basis of  which the finding were arrived at by the Tribunal/High Court.   In the present case after scrutinising the evidence adduced  by the parties we find no error or infirmity much less grave or palpable  which  may  call for  any  interference  with  the finding.    We   are,  therefore,  unable  to   accept   the submissions,  made by the learned counsel for the  appellant on this count also. 23.  In view of the foregoing discussion and the conclusions recorded by us, even if we accept the submissions of learned counsel for the appellant that further 9 votes in favour  of Respondent  No. 1 should also have been rejected for  double voting  by  the  said nine voters as  pointed  out  by  him, although there is no sound basis for the same, yet it  would only  reduce  the  margin from 13 to  4  without  materially affecting the result of the election. 24.  Thus even after giving all the possible discounts   the election of respondent No. 1  cannot   be   set   aside   or declared void as he still remains a winner’ In view of these facts and circumstances it would be a futile exercise to  go into  the  question of recrimination petition  made  by  the respondent  No.  1 making certain  allegations  against  the petitioner/appellant.  We, therefore, decline to examine the same. 25.  For  the reasons stated above the appeal fails  and  is hereby dismissed with costs.  Costs quantified at Rs.5000/-. 220