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PETITIONER: SUMITRA DEVI

       Vs.

RESPONDENT: SHRI SHEO SHANKER PRASAD YADAV & ORS.

DATE OF JUDGMENT09/11/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN GROVER, A.N. MUKHERJEA, B.K.

CITATION:  1973 AIR  215            1973 SCR  (2) 920  1973 SCC  (3) 330  CITATOR INFO :  F          1975 SC 283  (45)  R          1975 SC 403  (7)  R          1975 SC 693  (14)  RF         1975 SC2177  (4,10)  RF         1980 SC1362  (33,38)  R          1985 SC  89  (12)

ACT: Election Petition-Appeal-This Court will not interfere  with finding  of  fact  by High Court unless there  is  grave  or pulpable error-Principles for allowing inspection of  ballot papers.

HEADNOTE: The appellant challenged the election of Respondent No. 1 to the  Parliament at the, 1971 General Election on the  ground that  there  were irregularities in the counting  of  votes. She  asked  for inspection of the ballot papers.   The  High Court   disallowed  the  application  for   inspection   and dismissed the election petition. in appeal under s. 116-A of the  Representation of the People Act .1951,  the  appellant submitted (i) that the evidence of the witnesses examined by her  proved  the  several  illegalities  committed  in   the counting of the ballot papers and (ii) that, in any  event, the appellant’s application for inspection should have  been allowed. HELD  : (i) The High Court had taken into consideration  all the material circumstances and had appreciated the  evidence from  the  correct perspective. It has been  the  consistent practice of this Court not to interfere with findings     on questions  of  fact unless there is some grave  or  palpable error     in  the appreciation of the evidence on the  basis of which the findings were arrived at. [922 E] Dr.   Jagjit Singh v. Giani Kartar Singh and Others,  A.I.R. 1966 S.C. 773. referred to. (ii) The   High  Court  was  justified  in   rejecting   the application for inspection.  The allegations in the election petition  were  vague- and the petition did not  contain  an adequate  statement  of  the matrial  facts.   The  evidence adduced by the appellant to prove the allegations was  found unreliable.  No definite particulars were also given in  the

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application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers.  A recount will not be granted as a matter of right but only on the  basis  of evidence of good grounds for  believing  that there  has  been a mistake in the counting.  It  has  to  be decided  in each case whether a prima facie ground has  been made out for ordering an inspection. [923 H] Ram Sewak Yadav v. Bussain Kamil Kidwai and Others, [1964] 6 S.C.R. 238, 244, Dr. Jagjit Singh v. Giani Kartar Singh  and Others,  A.I.R.  [1966] S.C. 773, 783 and  Jitendra  Bahadur Singh  v.  Krishna Bebari and Others, [1970] 1  S.C.R.  852, applied. Bhim Sen v. Gosali, [1960] 22 Election Law Reports, 288.

JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 1015 of 1972. Appeal  under s. 116-A of the R.P. Act 1951, from the  judg- ment  and order dated March 8, J972 of the Patna High  Court in Election Petition No, 2 of 1971. D.   V. Patel and U. P.  Singh for the appellant, J.   P.  Goyal, Syama Prasad Mukherjee and R. A. Gupta,  for respondent No.1. The Judgment of the Court was delivered by MATHEW, J. This is an appeal under S. 116-A of the Represen- tation of the People Act, 1951, from a judgment of the High 921 Court  of  Patna,  by which the  High  Court  dismissed  the petition of the appellant for setting aside the election  of Respondent No. 1 as a Member of Parliament from  31-Khagaria Parliamentary  Constituency, in the election held in  March, 1971,  and  to  declare the appellant as  the  duly  elected member from the aforesaid constituency. According to the election programme, the nominations were to be  filed  from January 27, 1971 to February 3,  1971;  they were  to  be  scrutinized  on February  4,  1971;  poll,  if necessary  was  to  be taken on March 5,  1971;  the  ballot papers  were to be counted on March 10, 1971 and the  result of  the election was to be declared on March 11, 1971.   It was  in pursuance to this programme that the  appellant  and Respondent  No.1.,  along with 10  other  candidates,  filed their nomination papers.  Two of the candidates subsequently withdrew and the contest was among the remaining candidates. The  poll  was held on March 5, 1971.  The counting  of  the ballot papers took place on March 10, 1971.  The  respondent No. 1 obtained 73,594 votes and the appellant, 73,046.   So, Respondent  No.  1  was declared elected  by  the  Returning Officer. The appellant challenged the election of respondent No. 1 in her  petition  on the following allegations : There  was  no proper lighting arrangement in the segments where the  votes were   counted   and  there  were   frequent   failures   of electricity.   Taking advantage of this, the counting  staff showed partiality to respondent No. 1 by counting the  votes cast in favour of the other candidates for respondent  No.1. Several  undesirable  persons  who  had  been  working   for respondent No. 1 managed to enter the counting  compartments and  created confusion.  They also manoeuvred  the  counting staff  and thereby illegally managed to increase the  number of votes in favour of respondent No.1. Several ballot papers which  had  clear seal on the symbol of the  appellant  were illegally  rejected.   The counting staff took  out  several ballot papers of the appellant and mixed them with  doubtful ballot papers and, without paying any heed to the objections

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raised  by  the counting agents of the  appellant,  rejected them  mechanically  by putting the rejection seal  on  their back.   A  large number of ballot papers which  should  have been  rejected  were counted in favour of  respondent  No.1. Ballot papers having seal on more than one symbol or seal on the  shaded  area or seal on the back or having no  seal  or having  no official seal on the symbol of respondent  No.  1 were illegally counted in favour of respondent No.1. A large number of ballot papers bearing no signature of the  Presid- ing Officer or identifying mark on the back were counted  in favour  of  respondent No. 1 merely because  they  had  been placed  in the ballot boxes illegally by  those  controlling the polling booths. 922 Several  bundles  having  less than 50  ballot  papers  were counted  in favour of respondent No. 1 as having  50  ballot papers.  As a result of these irregularities in the counting of the ballot papers, about 3,000 ballot papers which should have been rejected were counted in favour of respondent  No. 1 and 1,000 ballot papers which should have been counted  in favour  of  the appellant were illegally rejected  and  this materially affected the result of the election. To substantiate these allegations, the appellant examined as many as 23 witnesses including herself.  After the  evidence was  closed,  the  appellant  had  put  in  a  petition  for inspection  of the ballot papers.  The High  Court  rejected the  petition  for  the reason that the  appellant  had  not pleaded the material facts in the petition to set aside  the election. The  High  Court,  after  a  careful  consideration  of  the evidence of the witnesses found, that the allegations in the election  petitions were vague and that evidence adduced  to prove them was unreliable, and so, dismissed the petition. The  appellant submitted before us that the evidence of  the witnesses   examined   by  her  would  prove   the   several illegalities alleged to have been committed in the  counting of the ballot papers and that, in any event, the appellant’s application for inspection should, have been allowed. We  are  satisfied  that  the  High  Court  has  taken  into consideration   all  the  material  circumstances  and   has appreciated  the evidence from the correct perspective.   It has  been  the  consistent practice of  this  Court  not  to interfere with findings on questions of fact unless there is some  grave  or palpable error in the  appreciation  of  the evidence on the basis of which the findings were arrived  at [see Dr. Jagjit Singh v. Giani Kartar Singh and Others(1). We  also think that there is no substance in the  contention of  the  appellant  that  the High Court  was  in  error  in rejecting  her  application  for inspection  of  the  ballot papers.   As  already stated, the High  Court  rejected  the application  for  the  reason that the  allegations  in  the election  petition were vague and that the petition did  not contain an adequate statement of the material facts.  In Ram Sewak  Yadav  v. Hussain Kamil Kidwai and others  (2),  this Court said that an order for inspection would not be granted as a matter of course : that having regard to the insistence upon  the secrecy of the ballot papers, the Court  would  be justified in granting an order for inspection only where 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 it is (1) A..I.R. 1966 S.C. 773. (2) [1964] 6 S.C.R. 238, 244. 923 necessary  to decide the dispute and to do complete  justice

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between the parties.  The Court also said that an order  for inspection of ballot papers would not 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 Court  emphasized that mere allegations 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  Dr. Jagjit Singh v. Giani Kartar Singh and Others(1) this  Court again  said  that  an election  petition  should  contain  a concise  statement  of  the  material  facts  on  which  the petitioner  relies, that vague or general  allegations  that valid  votes were improperly rejected or invalid votes  were improperly  accepted, would not serve the purpose  and  that in ap plication 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.  The Court  further  said that  in dealing with this question, the importance  of  the secrecy of the ballot papers cannot be ignored and that,  it has  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.   The   Court emphasized  that  in some cases, the ends of  justice  would make it necessary for the tribunal or Court to allow a party to inspect the ballot boxes and consider his objection 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 into the ballot boxes so as to justify their claim that the returned candidate’s election is void. In  Jitendra Bahadur Singh v. Krishna Behari  and  Others(2) ,this  Court  observed  that in view of  the  importance  of maintaining .the secrecy of the ballot papers, scrutiny  can only  be  ordered  if  the  election-petition  contains   an adequate  statement  of  the material  facts  on  which  the petitioner  relies,  that is, the material  facts  disclosed must afford an adequate basis for the allegations; and,  the election  tribunal  must be prima facie  satisfied  that  in order  to  decide  the dispute and to  do  complete  justice between  the  parties, inspection of the  ballot  papers  is necessary. In  the  case  at  hand, the  allegations  in  the  election petition were  vague and the petition did not  contain  an adequate  statement of the material facts.   The  evidence adduced by the appellant to prove the allegations was  found unreliable.  No definite particulars were also given in  the application for inspection as to the illegalities alleged to have been committed in the counting of the (1) A.I.R. [1966] S.C. 773, 783. (2) [1970] 1 S.C.R. 852. 924 ballot papers.  A recount will not be granted as a matter of right but only on the basis of evidence of good grounds  for believing that there has been a mistake in the counting.  It has to be decided in each case whether a prima facie  ground has been made out for ordering an inspection. Counsel  for the appellant relied on Bhim Sen  v.  Gomali(1) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out  by the  allegations  in the election petition.  That  case  was considered by this Court in Ram Sewak Yadav v. Hussain Kamil Kidwai  and  ors.  (2) and the Court was of  the  view  that

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unless  an election petition contains an adequate  statement of  the  material facts, an election tribunal would  not  be justified  in ordering an inspection of the  ballot  papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application.   In these  circumstances,  we  do not think that  there  is  any substance  in the prayer of the appellant for a  recount  of the votes. We dismiss the appeal with costs. G.C.                             Appeal dismissed.. (1)  [1960] 22 Election Law Reports, 288. (2)  [1964] 6 S.C.R. 238, 244. 925