http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: RAM SEWAK YADAV

       Vs.

RESPONDENT: HUSSAIN KAMIL KIDWAI & ORS.

DATE OF JUDGMENT: 17/01/1964

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1249            1964 SCR  (6) 235  CITATOR INFO :  RF         1966 SC 773  (33)  R          1970 SC 276  (7)  E          1972 SC1251  (13)  RF         1973 SC 215  (8,11)  RF         1973 SC2077  (2)  F          1975 SC 283  (45,46)  R          1975 SC 693  (14)  RF         1975 SC2117  (4,5,7)  C          1980 SC 206  (19)  F          1984 SC 396  (6)  E&R        1989 SC 640  (4)  R          1992 SC1163  (9)

ACT: Election--challenge  on  the ground of  improper  reception, refusal   and   rejection   of  votes   at   the   time   of counting--Tribunal  rejecting  claim for inspection  of  the ballot  papers--Validity--Representation of the People  Act, 1951  (43  of  1951), ss. 100, 101 and 102  and  conduct  of Election Rules, 1961. r. 93.

HEADNOTE: The  respondent  challenged the election of  the  appellant, inter  alia,  on  the ground that there  had  been  improper reception,  refusal  and rejection of votes at the  time  of counting  and that on a true count he would have received  a majority  of  valid  votes and that he was  entitled  to  be declared duly elected.  He claimed that by inspection of the ballot papers he would be able to establish his case on  the aforesaid  allegations  and that the Tribunal was  bound  to grant  an order for inspection, because he had tendered  the sealed  boxes  of  ballot papers in evidence,  and  on  that account all the ballot papers were part of the record.   The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection. It  further observed: "If in future from the facts that  may be brought to the notice of the Tribunal, it appears that in the  interests  of  justice inspection  should  be  allowed, necessary  orders  allowing an inspection  could  always  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

passed".   Thereupon, another application was  submitted  by the  respondent  asking  for inspection  but  no  additional materials  were  placed  before the  Tribunal  and  no  oral evidence  was led at the trial.  The Tribunal  rejected  the application for inspection.  On appeal, the High Court  held that  ballot  papers had actually been called for  from  the Returning  Officer and were before the Tribunal,  and  there was  nothing in the Code of Civil Procedure which  prevented the  Tribunal from allowing inspection of the ballot  papers in  the  custody of the Court.  The Tribunal  had  therefore rejected the application for inspection without any adequate reasons. The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been, pursuant to an order in that  behalf, lodged before the Tribunal in sealed boxes  by the Returning Officer. Held:     By  the mere production of the sealed  boxes,  the ballot  papers  did not become part of the record  and  they were  not  liable to be inspected unless  the  Tribunal  was satisfied  that such inspection was in the circumstances  of the case necessary in the interests of justice.                             239 The  Returning  Officer  is  not  a  party  to  an  election petition,  and an order for production of the ballot  papers cannot  be made under 0. XI of the Code of Civil  Procedure. But  the  Election Tribunal is not on that  account  without authority  in  respect  of the  ballot  papers.   Where  the interests  of justice demand it, the Tribunal may call  upon the  Returning Officer to produce the ballot papers and  may permit  inspection  by the parties before it of  the  ballot papers:   that   power   is   clearly   implicit   in    ss. 100(1)(d)(iii), 101, 102 of the Representation of the People Act,  1951  and rule 93 of the Conduct  of  Election  Rules, 1961.   This power to order inspection of the ballot  papers which  is  apart from 0. XI Code of Civil Procedure  may  be exercised,  subject to the statutory restrictions about  the secrecy of the ballot papers prescribed by ss. 94 and 128(1) of the Act. Bhim Sen v. Gopali, 22 E.L.R. 288, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1064 of 1963. Appeal  by special leave from the judgment and  order  dated July  23, 1963, of the Allahabad High Court (Lucknow  Bench) in First Civil Appeal No. 11 of 1963. N.   C. Chatterjee and J. P. Goyal, for the appellant. S.   P. Sinha and S. Shaukat Hussain, for respondent No. 1. January  17, 1964.  The Judgment of the Court was  delivered by SHAH J.-At the general elections held in February 1962, five candidates contested the election to the House of the People from   the   Barabanki  single-member   constituency.    The appellant Ram Sewak Yadav-who will be referred to as  Yadav- was  at  the  counting of votes found to  have  secured  the highest  number  of  votes  and  he  was  declared  elected. Hussain  Kamil Kidwai-hereinafter called Kidwai-who was  one of  the candidates at the election submitted a  petition  on April  6,  1962,  to the Election Commission  for  an  order declaring  the election of Yadav void and for an order  that he   (Kidwai)  be  declared  duly  elected.   The   Election Tribunal,  Lucknow, to which the petition was  referred  for trial  dismissed the petition.  In appeal to the High  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

of Allahabad the order passed by the Election 240 Tribunal was reversed and the proceedings were remanded  for trial  with a direction, among others, that the Tribunal  do give  reasonable opportunity to both the parties to  inspect the ballot papers and other connected papers.  With  special leave,  Yadav  has appealed against the order  of  the  High Court. The  principal  grounds set up by Kidwai in support  of  his petition were-               (1)   that there had been improper  reception,               refusal and rejection of votes at the time  of               counting,  and  in  consequence  thereof   the               election was materially affected;               (2)   that  there were  discrepancies  between               the total number of votes mentioned in Form 16               and Form 20;               (3)   that  the  tendered votes  were  wrongly               rejected by the returning officer and on  that               account the election was materially affected;               (4)   that  at  the polling  station  No.  29,               Majgawan  in Bhitauli Unit and  Kursi  polling               station  in Kursi Assembly Unit,  the  polling               officers  did  not give ballot papers  to  the               voters;               (5)   that  the counting of votes of  Bhitauli               Assembly  Unit  continued till  8-30  p.m.  in               insufficient light notwithstanding the protest               lodged by the petitioner; and               (6)   that  on a true count he (Kidwai)  would               have  received a majority of valid  votes  and               that  he  was  entitled to  be  declared  duly               elected. These allegations were denied by Yadav. At  the  trial before the Tribunal the parties led  no  oral evidence.   In  respect of the pleas (3), (4)  and  (5)  the burden  of proof lay upon Kidwai and as no evidence was  led to  .-substantiate the same, those pleas failed.   Again  in the view of the Tribunal, Kidwai could discharge the  burden of  proof  which lay upon him to establish that  there  were discrepancies ,between the original and the certified copies of Forms Nos 241 16  & 20, and as the original forms were not called  for  by Kidwai,  his second ground must also fail.   Kidwai  claimed that  he would be able to establish his case on pleas (1)  & (6) from the ballot papers, and submitted that an order  for inspection of the ballot papers be made and that he be  per- mitted  to  show from the ballot papers that  the  Returning Officer  had  improperly received, refused or  rejected  the votes,  and  that on a true count he would get  the  largest number  of valid votes.  The Tribunal rejected the  applica- tion  for  inspection  holding that  ballot  papers  may  be allowed  to  be  inspected only if it is  necessary  in  the interest  of justice and to support an order for  inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception, refusal  or rejection of votes at the time of counting,  and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection.  The High Court however held that ballot papers had actually been called  for from the Returning Officer and were  before  the Tribunal,  that  there  was nothing in  the  Code  of  Civil Procedure   which  prevented  the  Tribunal  from   allowing inspection of the ballot papers in the custody of the Court,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

and  that  the  Tribunal had rejected  the  application  for inspection without any adequate reasons for so doing. The  only  question  which falls to be  determined  in  this appeal  is whether the Election Tribunal erred in  declining to grant an order for inspection of the ballot papers  which had  been,  pursuant  to its order in  that  behalf,  lodged before  it  in sealed boxes by the  Returning  Officer.   In considering  this  question the material provisions  of  the Representation of the People Act, 1951, and the rules framed thereunder  may  first be noticed.  Section 80  of  the  Act provides that no election shall be called in question except by  an  election petition presented in accordance  with  the provisions  of  Part  VI.  Section  83(1)  states  what  the election petition shall contain.  It states:               "Art election petition-               (a)   shall contain a concise statement of the               material               facts on which the petitioner relies;                159 S.C-16               242               (b)   shall set forth full particulars of  any               corrupt practice that the petitioner  alleges,               including as full a statement as posssible  of               the  names  of  the parties  alleged  to  have               committed  such corrupt practice and the  date               and  place  of  the commission  of  each  such               practice; and               (c)   shall  be signed by the  petitioner  and               verified  in the manner laid down in the  Code               of Civil Procedure, 1908, for the verification               of pleadings: The rest of the section is not material. Section 90(1) prescribes the procedure to be followed by the Tribunal.  It states:               "Subject to the provisions of this Act and  of               any  rules  made  thereunder,  every  election               petition  shall be tried by the  Tribunal,  as               nearly  as  may  be, in  accordance  with  the               procedure  applicable under the Code of  Civil               Procedure, 1908, to the trial of suits: " Section 92 enumerates the powers which a Tribunal trying  an election petition may exercise and the powers so  enumerated are  the  powers  which  a Court under  the  Code  of  Civil Procedure,  when trying a suit, may exercise in  respect  of discovery and inspection, enforcing attendance of witnesses, compelling production of documents, receiving evidence taken on affidavits and issuing commissions for the examination of witnesses.  Rules have been framed under the Act relating to production and inspection of election papers. By rule 93  of the Conduct of Election Rules, 1961, it is provided that:               "(1)  While  in the custody of  the  returning               officer-               (a)   the packets of unused ballot papers;               (b)   the   packets  of  used  ballot   papers               whether valid,               tendered or rejected;               (c)   the  packets of the marked copy  of  the               electoral  roll  or, as the case may  be,  the               list maintained under sub-section (1) or  sub-               section (2) of section 152; and                                    243               (d)   the  packets  of  the  declarations   by               electors   and   the  attestation   of   their               signatures;               shall  not be opened and their contents  shall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

             not  be inspected by, or produced before,  any               person or authority except under the order  of               a competent court or tribunal.               (2)   All   other  papers  relating   to   the               election shall be               open  to  public  inspection subject  to  such               fee,  if any, as the Election  Commission  may               direct.               (3)   Copies  of the returns by the  returning               officer forwarded under rule 64 or as the case               may be. under sub-rule (3) of rule 84 shall be               furnished  by the chief electoral  officer  of               the State concerned on payment of a fee of two               rupees for each such copy." The rule makes a clear distinction between ballot papers and other  election papers: ballot papers may be inspected  only under the order of a competent court or tribunal, but  other documents are, subject to certain conditions, open to public inspection. In  this  case, on an oral request made by  Kidwai  all  the ballot papers in sealed boxes were lodged with the  Election Tribunal.   Kidwai  claimed in the first instance  that  the Tribunal was bound to grant an order for inspection, because he  had  tendered  the  sealed boxes  of  ballot  papers  in evidence,  and  on that account all the ballot  papers  were part  of  the record.  The Tribunal  rightly  rejected  this plea, to by the mere production of the sealed boxes pursuant to  its order the ballot papers did not become part  of  the record  and they were not liable to be inspected unless  the Tribunal  was  satisfied  that such inspection  was  in  the circumstances  of  the case necessary in  the  interests  of justice. An election petition must contain a concise statement of the material facts on which the petitioner relies in support  of his  case.  If such material facts are set out the  Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest- 244 ed  under  the Code of Civil Procedure when trying  a  suit. But  the  power which the civil court may  exercise  in  the trial  of suits is confined to the narrow limits of  0.  II, Code  of Civil Procedure.  Inspection of documents under  0. II, Code of Civil Procedure may be ordered under rule 15, of documents  which  are  referred  to  in  the  pleadings   or particulars  as disclosed in the affidavit of  documents  of the other party, and under rule 18(2) of other documents  in the  possession or power of the other party.  The  Returning Officer is not a party to an election petition, and an order for  production  of the ballot papers cannot be  made  under 0.11 Code of Civil Procedure.  But the Election Tribunal  is not  on  that account without authority in  respect  of  the ballot  papers.   In a proper case where  the  interests  of justice demand it. the Tribunal may call upon the  Returning Officer  to  produce  the  ballot  papers  and  may   permit inspection  by the parties before it of the  ballot  papers. That  power is clearly implicit in ss. 100(1)(d)(iii),  101, 102  and  rule 93 of the Conduct of  Election  Rules,  1961. This power to order inspection of the ballot papers which is apart  from 0.11 Code of Civil Procedure may  be  exercised, subject  to the statutory restrictions about the secrecy  of the ballot paper prescribed by ss. 94 and 128(1). 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  ful-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

filled:               (i)   that  the petition for setting aside  an               election con-               tains  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, 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 pre- 245 cision supported by averments of material facts.  To  estab- lish a case so pleaded an order for inspection may  undoubt- edly, 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. It  must  be  remembered that the  rules  framed  under  the Representation of the People Act, 1951, set up an  elaborate machinery relating to the stage of counting of votes by  the Returning Officer, and provide ample opportunity to the can- didate  who  has  contested the election or  his  agents  to remain  present  and to keep an eye on any  improper  action which  may  be  taken by the  Returning  Officer.   Rule  53 provides  for  the  admission of  only  certain  classes  of persons  to  the place fixed for counting and  amongst  such persons  are expressly included candidates,  their  election agents  and  counting  agents, who may  watch  the  counting subject  to the directions which the returning  officer  may give.   Rule  55 deals with the procedure for  scrutiny  and opening  of  ballot  boxes.  The Returning  Officer  has  to satisfy  himself that "none of the ballot boxes has in  fact been  tampered with" and before any ballot box is opened  at the  counting  table, the counting agents  present  at  that table are allowed to inspect the seal affixed thereon and to satisfy  themselves  that it is intact.   If  the  Returning Officer  is satisfied that any ballot box has in  fact  been tampered  with,  he is prohibited from counting  the  ballot papers  contained  in  that box and he  has  to  follow  the procedure prescribed in that behalf in s. 58.  Clause (1) of rule  56 provides for the scrutiny and rejection  of  ballot papers.   Clause (2) sets out detailed  provisions  relating to,  cases  in which the Returning Officer  shall  reject  a ballot paper By cl. (3) it is provided that before rejecting any  ballot paper under sub-rule (2), the returning  officer shall  allow  each  counting  agent  present  a   reasonable opportunity  to inspect such ballot papers.   The  Returning Officer  has then to record on every ballot paper  which  he rejects  the grounds of rejection.  All the rejected  ballot papers are required to be put in one bundle.  Rule 57  deals with the counting of votes.  Each ballot paper which is  not rejected is counted 246 as  one valid vote.  The Returning Officer has to  make  the entries  in a result sheet in Form 20 after counting of  the ballot papers contained in all the ballot boxes used at  the polling stations.  Clause (3) of rule 57 enacts an elaborate set of rules about the entries to be made in respect of  the counting  and  scrutiny of the ballot papers.   By  rule  60

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

counting has to be continuous, and rule 63(1) provides  that after the completion of the counting, the Returning  Officer shall record in the result sheet in Form 20 the total number of  votes polled by each candidate and announce the  result. By  cl.  (2)  of  rule 63 it is  provided  that  after  such announcement is made, a candidate or his election agent  may apply in writing to the Returning Officer for’ a recount  of all or any of the ballot papers already counted stating  the grounds  on  which he demands such recount.   The  Returning Officer  must decide the application and record his  reasons in support of his decision and he may allow the  application in whole or in part or may reject it if it appears to him to be  frivolous  or unreasonable.  After the total  number  of votes  polled  by  each candidate has  been  announced,  the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application  for recount  may be entertained.  Under rule 64 the  declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes, and  the  Returning  Officer is  required  to  complete  and certify the return of election. There  can therefore be no doubt that at every stage in  the process  of scrutiny and counting of votes the candidate  or his  agents have an opportunity of remaining present at  the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a are- count.   Therefore  a candidate who seeks  to  challenge  an election  on  the  ground  that  there  has  been   improper reception,  refusal  or rejection of votes at  the  time  of counting, has ample opportunity of acquainting himself  with the  manner in which the ballot boxes were  scrutinized  and opened, and the votes were counted.  He has also opportunity of inspecting rejected ballot papers, and of demanding a re- count.  It is in the light of the provisions of s.     83(1) which require a concise statement of material facts                             247 on which the petitioner relies and to the opportunity  which a  defeated  candidate  had  at the  time  of  counting,  of watching and of claiming a recount that the application  for inspection must be considered. In the petition filed by Kidwai the material allegations  in support of the claim that there had been improper reception, refusal  or rejection of votes were contained in  paragraphs 6(H),  6(K) and 12.  In paragraph 6(H) it was  averred  that numerous ballot papers cast in favour of the petitioner were wrongly  included  in the "bundles of the  respondents."  In paragraph  6(K) it was averred that due to "a deficiency  in the  supply  of sealing ink, marks on  some  ballot  papers, though not quite clear, yet the marks clearly indicating the intention of the voters, were wrongly rejected as invalid by the returning officer." In paragraph 12 it was averred  that "the petitioner is confident that if the votes actually cast in  favour  of the petitioner are counted as  votes  of  the petitioner  and if the improperly accepted votes which  have been  counted in favour of other respondents are taken  out, and  if the ballot papers are correctly sorted, counted  and bundled.  the respondent No. 1 will be found to have  polled less votes as compared to . . . petitioner.  The  petitioner further  submits  that the result of the Election  has  been materially  affected by the improper acceptance and  refusal of votes and by the incorrect sorting, counting and bundling of  ballot  papers."  These averments in  the  petition  for setting  aside  the  election  on  the  ground  of  improper acceptance  or  rejection of votes were vague, and  did  not comply  with  the  statutory requirements  of  s.  83(1)(a).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

Paragraph  12 is deficient in the recital of material  facts which  must  be  deemed to be within the  knowledge  of  the petitioner,  and merely asserts that if the  votes  actually cast  in  favour of the petitioner are  counted,  the  total number  of valid votes found in his favour would exceed  the number  of votes received by Yadav.  Having regard  to  this infirmity the Tribunal was justified in declining to make an order  for  inspection of the ballot papers unless  a  prima facie  case  was  made out in support  of  the  claim.   The Tribunal  has undoubtedly to exercise its discretion  if  it appears  to  be  in  the  interests  of  justice,  but   the discretion  has manifestly to be exercised having regard  to the  nature of the allegations made.  The Tribunal would  be Justified ir 248 refusing an order where inspection is claimed with a view to fish  out materials in support of a vague plea in  the  case set out in the petition.  The Tribunal was conscious of  the true  principle:  it stated in its order  dated  August  25, 1962,  that  nothing was brought to its notice  which  would justify  granting an order for inspection prayed for by  the petitioner at that stage.  The Tribunal further observed:               "If  in future from facts that may be  brought               to the notice of the Tribunal, it appears that               in the interests of justice inspection  should               be  allowed,  necessary  orders  allowing   an               inspection could always be passed". Relying  upon  these observations  another  application  was submitted by Kidwai asking for inspection but no  additional materials  were  placed  before the Tribunal.   As  we  have already  observed Kidwai led no real evidence at the  trial. In  his second application for inspection he merely  averred that "the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in  the various  paragraphs  would  be proved.   The  allegation  of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that  there had  been wrong counting on account of  improper  reception, refusal  or  rejection of votes was wholly  insufficient  to justify a claim for inspection.  He had to place before  the Tribunal  evidence prima facie indicating that an order  for inspection was necessary in the interests of justice,  which he failed to do. Reliance  was  placed before this Court and the  High  Court upon  the decision of this Court in Bhim Sen v.  Gopali  and others(1) in support of the plea that mere absence of parti- culars will not furnish a ground for declining to grant ins- pection  and  that  a  defeated  candidate  is  entitled  to establish  his  case that void votes had  been  counted  and included  in the votes of the successful candidate from  the evidence collected from inspection of the ballot papers.  In Bhim Sen’s case(1) a petition was filed for setting aside an election  of  a  candidate in a reserved seat  in  a  double member constituency.  The principal ground in support of the petition (1)  22 E.L.R. 288.                             249 was  that it was incumbent upon the Returning Officer to  go into  each case of double voting in order to reject  one  of the  two  votes  cast in contravention of s.  63(1)  of  the Representation  of  the People Act, and that  the  Returning Officer having failed to discharge his duty to reject ballot papers  cast  in  contravention  of  s.  63  the  petitioner believed  that the successful candidate "could receive  many void  votes." The ballot boxes were opened and it was  found

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

that 37 void votes were counted in favour of the  successful candidate  and  in  view  of  the  disclosure  made  by  the inspection  of the ballot papers the petitioner applied  for leave  to amend the petition by adding a  specific  averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words "alleges" and  "did" be  substituted  respectively for the words  "believes"  and "could".   Along  with the petition for leave  to  amend  he filed a list giving the particulars of the void votes.  This application  was allowed by the Tribunal but the  order  was reversed  by the High Court on the ground that the  Tribunal had  erred  in allowing the amendment.  In  appeal  to  this Court  it  was held that in a case like the one  before  the Court, definite particulars about the number and’ nature  of the void votes that had been counted could only be  supplied after  inspection  of the ballot papers,  and  the  election petition as originally presented must therefore be  regarded as  having  furnished  the  material  particulars,  and  the amendment petition must be treated merely as an  application for  clarification of the pleadings.  We do not  think  that Bhim  Sen’s case(1) lays down any general principle  that  a party  is  entitled without making allegations  of  material facts  in  support of his plea to set aside an  election  to claim an order for inspection of the ballot papers and  seek to supply the lacuna in his petition by showing that if  all the  votes  are  scrutinized again by the  Tribunal  it  may appear  that there had been improper reception,  refusal  or rejection of votes at the time of counting.  To support  his claim  for setting aside the election the petitioner has  to make  precise,  allegations of material facts  which  having regard  to the elaborate rules are or must be deemed  to  be within his knowledge.  The nature of the allegations must of course depend’ upon the facts of each case.  But if material facts are not 22 E.L.R.288. 250 stated, he cannot be permitted to make out a case by fishing out  the evidence from an inspection of the  ballot  papers. In Bhim Sen’s case(1) the Court was primarily concerned with the question whether amendment of the petition to set  aside an  election  should  be granted.  It  was  alleged  by  the defeated candidate that there had been contravention of  the provisions of s. 63 (1 ) of the Act by the Returning Officer and  the election was materially affected on  that  account. The   applicant  had  stated  that  he  believed  that   the respondents  had received many votes which were void.   When the ballot box was opened it was found that among the  votes credited  to  the successful candidate were 37  votes  which were  void.  Thereafter the applicant applied to  substitute the  words " alleges" for "believes" and "did" for  "could". In  that case the Court was not concerned to decide  whether the order for inspection was properly made: the propriety of the  order granting inspection does not appear to have  ever been  questioned.   The  principal question  raised  in  the appeal was whether the amendment of the petition should,  in the  circumstances,  be granted and the observation  of  the Court that "definite particulars about the number and nature of  the  void  votes that had been  counted  could  only  be supplied  after  inspection of the ballot  papers"  was  not intended to be a general statement of the law that  whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of  votes received  by  a successful candidate,  definite  particulars with  regard  to the said void votes may  only  be  supplied after  the ballot papers are inspected, and that a  defeated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

candidate may claim inspection of the ballot papers  without making  any  specific  allegations  of  material  facts  and without  disclosing  a prima facie case in  support  of  the claim made. In our view the High Court was in error in interfering  with the  exercise of discretion by the Election  Tribunal  which proceeded  upon sound principles.  The appeal  therefore  is allowed  and the order of the High Court is set aside.   The order  of the Tribunal is restored with costs in this  Court and the High Court. Appeal allowed. (1)  22 E.L.R. 288 251