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PETITIONER: P.K.K. SHAMSUDEEN

       Vs.

RESPONDENT: K.A.M. MAPPILLAI MOHINDEEN & ORS.

DATE OF JUDGMENT24/11/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) DUTT, M.M. (J)

CITATION:  1989 AIR  640            1988 SCR  Supl. (3) 950  1989 SCC  (1) 526        JT 1988 (4)   473  1988 SCALE  (2)1445  CITATOR INFO :  D          1989 SC2023  (16)

ACT:      Tamilnadu  Panchayats Act, 1958: Sections 30 and  178-- Panchayat  election--Recount of votes--When to be  ordered-- Preservation of secrecy of ballot---Sacrosanct principle.

HEADNOTE:      At  an  election held on 23rd February, 1986,  for  the post  of Panchayat President, the votes were counted on  the 25th  February, 1986, and the first respondent was  declared elected  having  secured 649 votes. The petitioner  and  the second  respondent  who  were  the  other  contestants  were declared  to  have  secured  only  556  votes  and  X  votes respectively,  and  55  votes were declared  to  be  invalid votes.      Two  days after the results were declared i.e. on  27th February. 1986, the petitioner sent telegrams and registered notices  alleging  irregularities  in the  counting  of  the votes,  and thereafter he filed an election  petition  under section  178  of  the Tamil Nadu Panchayat  Act,  1958.  The reliefs  claimed  in  the petition were  that  the  Election Tribunal  should  set  aside  the  election  of  the   first respondent   as  the  President  of  the  Panchayat,   order recounting  of votes, and a declaration that the  petitioner has  been  duly elected. The first  respondent  opposed  the election petition and filed a counter statement denying  all the allegations contained in the election petition.      The  Tribunal  after  recording  the  evidence  of  the candidates  and the Assistant Returning Officer came to  the conclusion  that the petitioner was entitled to ask for  re- count  of  votes and ordered recounting and called  for  the ballot  papers. In the recount of votes, it was  found  that there  was no difference in the number of votes  secured  by the petitioner, namely, 556 votes but in so far as the first respondent  was concerned he had secured only 528  votes  as against  the  649  votes, he was  originally  held  to  have secured.  The excess of 121 votes were found to  be  invalid votes  and  consequently the total number of  invalid  votes came to 126 (sic) as against 55 votes originally held to  be invalid.  There was no difference in the number of  8  votes

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secured  by the third contestant. Based on these figures  of the  recounting, the Tribunal declined to order  re-election and  instead  declared  the petitioner  to  have  been  duly                                                   PG NO 950                                                   PG NO 951 elected   because  the  recount  clearly  proved  that   the petitioner  has  secured  28  votes  more  than  the   first respondent.      Aggrieved  by  the  aforesaid  order  of  the  Election Tribunal,  the  first  respondent  filed  a  Civil  Revision Petition  in  the  High Court. A Single  Judge  allowed  the revision  petition  holding that the Tribunal had  erred  in ordering a recount of the votes when the petitioner had  not made  out  a prima facie case for an order of  recount,  and observed  that the secrecy of the ballot was sacrosanct  and should  not  be  violated unless a prima  facie  case  of  a complusive  nature  had  been  made  out  by  the   defeated candidates.  The  High  Court set aside  the  order  of  the Tribunal  and restored the election result in favour of  the first respondent.      Dismissing the Special Leave Petition,      HELD:  1. The right of a defeated candidate  to  assail the  validity of an election result and seek  recounting  of votes  has  to be subject to the basic  principle  that  the secrecy of the ballot is sacrosanct in a democracy and hence unless  the  affected  candidate  is  able  to  allege   and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of  probability  existed for  the  recount  of votes being ordered  by  the  Election Tribunal  in the interests of justice, a Tribunal  or  Court should not order the recount of votes. [957D-E]      2.  The salutary rule is that the preservation  of  the secrecy of the ballot is a sacrosanct principle which cannot he  lightly  or hastily broken unless there  is  prima-facie genuine need for it. [957D]      3.  The justification for an order for  examination  of ballot papers and recount of votes is not to be derived from high sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should  be  provided by the material placed by  an  election petitioner  on the threshold before an order for recount  of votes is actually made. [957C-D]      4.  An order or recount of votes must stand or fall  on the  nature of the averments made and the  evidence  adduced before the order of recount is made and not from the results emanating from the recount of votes. [958C]      In  the instant case, the petitioner has  neither  made such averments in the petition nor adduced evidence of  such a compulsive nature as could have made the Tribunal reach  a                                                   PG NO 952 prima   facie   satisfaction   that   there   was   adequate justification  for  the secrecy of  ballot  being  breached. [957F]      Ram Sewak Yadav v. Russain Kamil Kidwai & Ors.,  [1964] 6  SCR 238; Dr. Jagjit Singh v. Giani Kartar Singh,  [1967]1 SCJ  762; R. Narayanan v. Sommalai, [1980] 1 SCR 571 and  N. Gopal  Reddy  v. Bonala Krishnamurthy & Ors., JT 1987  1  SC 406, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 12662 of 1988.      From  the  Judgment and Order dated  7.10.1988  of  the

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Madras High Court in C.R.P. No. 704 of ]988.      M.N. Padmanabhan and K.K. Mani for the Petitioner.      R.K. Garg, V. Balachandran and V. Krishnamurthy for the  Respondents.      The Judgment of the Court was delivered by      NATARAJAN, J. This special leave petition to seek leave to  appeal  under Article 136 of the Constitution  has  been filed  against the order of the Madras High Court  in  Civil Revision  Petition  No.  704  of  1988  filed  by  the   1st respondent  herein.  After  hearing  the  arguments  of  the counsel for the petitioner and the 1st respondent (Caveator) we  are  not  persuaded  to  grant  special  leave  and  are dimissing the petition for the reasons given below.      For  an  election  held on 23.2.1986,  the  votes  were counted  on  25.2.1986 and the 1st respondent  was  declared elected,  having  secured        649 votes for  the  post  of  the President  of  the Keelpaguthi Panchayat,  Kulithalai  Taluk Tamil  Nadu. The petitioner and the 2nd respondent who  were the  other contestants were declared to have  secured  only. 556  votes  and  8 votes  respectively.  Besides  the  voles secured  by  the contestants, 55 votes were declared  to  be invalid votes.      Two  days  after  the results  were  declared  i.e.  On 27.2.1986,  the  petitioner sent  telegrams  and  registered notices  alleging  irregularities  in the  counting  of  the votes.  Thereafter, he filed an election petition  O.P.  No. 7/86  under  Section 178 of the Tamil  Nadu  Panchayats  Act before  the Election Tribunal (District Munsif),  Kulithalai for setting aside the election of the 1st respondent as  the                                                   PG NO 953 President  of  Keelpaguthi  Panchayat.  He  alleged  in  the petition  that  the Returning Officer (3rd  respondent)  had wrongly  treated  some  valid votes cast in  his  favour  as invalid votes and a certain number of invalid votes as votes validly  cast in favour of the 1st respondent and  that  the third respondent had failed to permit him and his agents  to have scrutiny of the ballot papers at the time of  counting. He,  therefore, sought the reliefs of (a) setting aside  the election  of the first respondent, (b) ordering of  re-count of  votes  and  (c)  a declaration that  he  had  been  duly elected.      The first respondent opposed the election petition  and filed  a  counter  statement  denying  all  the  allegations contained in the election petition .      The  Tribunal, after recording the evidence of all  the candidates  and the Assistant Returning Officer came to  the conclusion  that  "the  petitioner is entitled  to  ask  for recount of votes" and ordered recounting and called for  the ballot  papers. In para 7 of the order wherein the  Tribunal has  accepted the plea of the petitioner for  recounting  of votes, the Tribunal has merely set out the evidence  adduced by  the petitioner on the one hand and respondents 1  and  2 and the Assistant Returning Officer on the other and without any discussion whatever upon the merits and demerits of  the evidence  of  the parties, has given a  cryptic  finding  as follows: "I accept the evidence given by the petitioner that he (Returning Officer) has sided the first respondent in the election."   The  Tribunal  has  then  stated   as   follows immediately  after  the election-results were  announced  on 25.2.86  he has sent notice Ex. A1 on 27.2.86  stating  that the counting is not correct. Further he has deposed that  on the  date  of  counting  he  objected  to  he  counting  and requested for recounting. Even though the petitioner has not given  ,any  petition  in  writing  for  recounting  on  the counting  date,  he has right to approach the  Tribunal  for

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recounting.  The petitioner has filed this  petition  within the stipulated time. the petitioner prays for recounting  of votes  and  he  petition may be admitted  on  the  basis  of recounting.  If  recounting ordered, no  prejudice  will  be caused  to the respondents Because their arguments  is  that the votes were counted according to law. Therefore I  decide that  the  petitioner  is entitled to  ask  for  recounting. Recounting is ordered."      In the recount of of votes it was found that there  was no  difference  in  the  number  of  votes  secured  by  the petitioner  viz.  556  votes  but in so  far  as  the  first respondent  is  concerned he had secured only 528  votes  as against  649 votes he was originally held to  have  secured. The  excess of 121 votes were found to be invalid votes  and                                                   PG NO 954 therefore  the total number of invalid votes came to 126  as against 55 votes originally held to be invalid votes.  There was  no difference in the number of 8 votes secured  by  the third contestant viz. the second respondent.      All  the three contestants accepted the correctness  of the  recounting  of votes and signed a memo to  that  effect before the Tribunal. Based on the figures of the recount the petitioner  pressed for a declaration that he had been  duly elected  to the post of the President of the  Panchayat.  On the  other  hand,  the  first  respondent  prayed  that  the Tribunal  should direct a fresh election to be held for  the post  of  President.  The tribunal  declined  to  order  re- election  and instead declared the petitioner to  have  been duly  elected because the recount clearly proved  "that  the petitioner  has  secured  28  votes  more  than  the   first respondent" .      Against the order of the Tribunal the first  respondent filed Civil Revision Petition No. 704/88 to the High  Court. A  learned  single  judge  of the  High  Court  allowed  the revision  holding that the Tribunal had erred in ordering  a recount of the votes when the petitioner had not made out  a prima  facie  case for an order of recount  of  votes  being made. The High Court has pointed out that the secrecy of the ballot  is sacrosanct and as such the secrecy of the  ballot should not be violated by any Tribunal unless a prima  facie case  of  a  compulsive  nature had been  made  out  by  the defeated candidate for the rule of secrecy being broken  and the  ballot  papers  being  inspected  and  counted  afresh. Consequently  the  High  Court set aside the  order  of  the Tribunal  and restored the election result in favour of  the first  respondent. It is against the said order of the  High Court the petitioner has filed this special leave petition.      Mr.  M.N.  Padamanabhan and Mr. Garg,  learned  counsel appearing  for  the  petitioner and  the  first  re  pondent respectively presented the case of their respective  parties before  us  with all the persuasiveness  at  their  command. While  Mr. Padmanabhan’s contention was that the  petitioner had placed sufficient materials before the Tribunal to  make out a prima facie case for a recount of votes being  ordered and   that  the  result  of  the  recount  of  votes   amply established  the  truth of the petitioner  contentions,  Mr. Garg  argued that the allegations made by the petitioner  in the  petition  were of a very general and vague  nature  and such  vague  averments can by no stretch of  imagination  be considered  adequate  material by the Tribunal  to  conclude that there was compulsive need for the secrecy of the ballot being violated and a recount of votes being ordered.                                                   PG NO 955      Before examining the contentions of the parties we  may set  out  the position in law as regards the  need  for  the

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secrecy  of the ballot being maintained and as to  when  the well  established  rule  can be  departed  from.  Since  the principle  of law has already been enunciated by this  Court in several cases, we may refer to three of those  decisions. In Dr. Jagjit Singh v. Giani Kartar Singh, [1967] 1 SCJ 762, the  appellant  had  challenged the election  of  the  first respondent  to  the  Punjab  Legislative  Assembly.  In  the recount  of votes ordered by the Tribunal it was found  that the  appellant  had  secured  22,491  votes  and  the  first respondent  had secured 22,412 votes. The  Tribunal  allowed the  election  petition and declared the appellant  to  have been duly elected. The High Court set aside the order of the Tribunal and the judgment of the High Court was confirmed by this Court. In doing so this Court observed as follows:      "Therefore,in a proper case, the Tribunal can order the inspection  of the ballot boxes and may proceed  to  examine the  objections  raised by the parties in  relation  to  the improper  acceptance or reject of the voting papers. But  in exercising  this  power, the Tribunal has to  bear  in  mind certain  important considerations. Section 83(1)(a)  of  the Act  requires  that  an election petition  shall  contain  a concise  statement  of  the  material  facts  on  which  the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes,  the Tribunal  must enquire whether the application made  by  the petitioner  in that behalf contains a concise  statement  of the  material  facts on which he relies.  Vague  or  general allegations  that valid votes were improperly  rejected,  or invalid votes were improperly accepted, would not serve  the purpose  which section 83(I)(a) has in mind. An  application made  for the inspection of ballot boxes must give  material facts which would enable the Tribunal to consider whether in the  interests  of  justice,  the  ballot  boxes  should  be inspected  or  not.  In  dealing  with  this  question,  the importance  of  the secrecy of the ballot papers  cannot  be ignored,  and  it  is always to be borne in  mind  that  the statutory Rules framed under the Act are intended to provide adequate  safeguard for the examination of the  validity  or invalidity of votes and for their proper counting. It may be that  in  some  cases. the ends of  justice  would  make  it necessary  for the Tribunal to allow a party to inspect  the                                                   PG NO 956 ballot boxes and consider his objections about the  improper acceptance or improper rejection of votes tendered by voters at  any given election; but in considering the  requirements of  justice,  care  must  be  taken  to  see  that  election petitioners do not get a chance to make a roving or  fishing enquiry  in  the ballot boxes so as to justify  their  claim that the returned candidate’s election is void."      In  Ram  Sewak Yadav v. Hussain Kamil  Kidwai  &  Ors., [1964]  6 SCR 238, this Court has set out the  circumstances when an order for inspection of ballot papers can be ordered in the following terms:      "An order for inspection may not be granted as a matter of course; having regard to the insistence upon the  secrecy of  the  ballot  papers, the Court  would  be  justified  in granting an order for inspection provided two conditions are fulfilled:      (i)  that  the petition for setting aside  an  election contains  an  adequate statement of the  material  facts  on which the petitioner relies in support of his case; and      (ii)  The  tribunal is 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.

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    But an order for inspection of ballot papers cannot  be granted  to  support vague pleas made in  the  petition  not supported  by  material  facts or to fish  out  evidence  to support  such pleas. The case of the petitioner must be  set out  with  precision  supported by  averments   of  material facts.  To  establish  a  case  so  pleaded  an  order   for inspection  may  undoubtedly, if the  interests  of  justice require,  be  granted.  But  a  mere  allegation  that   the petitioner  suspects  or  believes that there  has  been  an improper  reception, refusal or rejection of votes will  not be sufficient to support an order for inspection."      In R. Narayanan v. Semmalai, [1980]  SCR  571, the same principle  has  been reiterated. That was a case  where  the difference of votes between the candidates declared  elected and  his nearest rival, who filed an election  petition  was only  19  votes and which figure would have come down  to  9                                                   PG NO 957 votes only if the postal ballots were included. Even so this Court   after  referring  to  a  number  of  decisions   and Halsbury’s   Laws   of  England  and  Fraser   on   Law   of Parliamentary  Elections  and Election Petitions  held  that without  their  being  an  adequate  statement  of  all  the material  facts on which the allegations of irregularity  or illegality  in  counting  of  votes  are  founded  and  such averments being backed by acceptable evidence and the  Court trying  the  petition being prima facie  satisfied  that  an order  for  recount of votes is  imperatively  necessary  to decide  the  dispute  and do complete  justice  between  the parties, an order of recount of votes cannot be passed.      Thus   the  settled  position  of  law  is   that   the justification for an order for examination of ballot  papers and  recount of votes is not to be derived from  high  sight and by the result of the recount of votes. On the  contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the  threshold  before  an order for  recount  of  votes  is actually made. The reason for this salutary rule is that the preservation  of the secrecy of the ballot is  a  sacrosanct principle  which cannot be lightly or hastily broken  unless there  is  prima facie genuine need for it. The right  of  a defeated  candidate  to assail the validity of  an  election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in  a democracy and hence unless the affected  candidate  is able  to  allege and substantiate in acceptable  measure  by means  of evidence that a prima facie case of a high  degree of  probability  existed  for the  recount  of  votes  being ordered  by  the  Election  Tribunal  in  the  interests  of justice, a Tribunal or court should not order the recount of votes.      Viewed   in   the  light  of  these   well   enunciated principles,  we  find that the petitioner has  neither  made such averments in the petition nor adduced evidence of  such a compulsive nature as could have made the Tribunal reach  a prima   facie   satisfaction   that   there   was   adequate justification  for the secrecy of ballot being  breached  in the  petitioner’s  case.  Factors urged  before  us  by  Mr. Padamanabhan such as that the first respondent had  accepted the correctness of the recount. and that he had conceded his defeat and wanted a re-election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal.      Mr.  Padamanabhan also contended that the  purpose  and object  of  the  election law is to ensure  that  only  that person  should represent the constituency who is  chosen  by

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the  majority  of the electors and that is  the  essence  of                                                   PG NO 958 democratic process, and this position has been observed by a Bench of this Court in their order of reference of the  case of  N.  Gopal Reddy v. Bonala Krishnamurty &  Ors.,  CA  No. 3730(NCE) of 1986 reported in JT 1987(1) SC-406 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post  of  the President of the Panchayat  when  the  recount disclosed  that  he  had  secured 28  votes  less  than  the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes  must stand  or fall on the nature of the averments made  and  the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.      It  was  also  brought to our  notice  that  the  first respondent  has resumed charge of the post of the  President from  the petitioner, although with unseemly hurry with  the aid  of  police after the High Court’s order, and  that  the term  of office of President is to come to a close in  about ten weeks time.      In  the  light of our conclusions we do  not  find  any merit in the special leave petition and accordingly  dismiss the same.         N . V . K .         Petition dismissed .