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CASE NO.: Appeal (civil) 4681  of  2000

PETITIONER: V.S.  ACHUTHANANDAN

       Vs.

RESPONDENT: P.J.  FRANCIS & ANR.

DATE OF JUDGMENT:       31/01/2001

BENCH: R.C.Lahoti, S.V.Patil

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     R.C.  Lahoti, J.

     The  general  election to the Legislative Assembly  of the  State  of  Kerala was held on 27th  April,  1996.   The appellant,  the  respondent  No.1 and the  respondent  No.2, contested   election  from   No.99  Mararikulam  Legislative Assembly  Constituency (Alappuzha District).  Counting  took place  on  8.5.1996  and  continued upto the  wee  hours  of 9.5.1996.    The  respondent  No.1   was  declared   elected defeating  his nearest rival candidate, the petitioner, by a margin  of  1965  votes.  The distribution of votes  was  as under:-  Total  number of electors 1,68,873 Total number  of valid  votes polled 1,38,452 Total number of rejected  votes 2,107 Total number of tendered votes 14

     Votes secured by candidates :- 1.  V.S.  Achuthanandan (appellant)  66337 2.  Peter Markose (respondent No.2)  3813 3.  P.J.  Francis (respondent No.1) 68302

     On  22.6.1996 the appellant filed an election petition before  the  High  Court  of Kerala  putting  in  issue  the election  of  the respondent No.1 mainly on  three  grounds, namely,  (i)  corrupt practice committed in the interest  of returned  candidate  by his agents, election agents  or  the returned  candidate himself;  (ii) the improper reception of votes  which  were void, and (iii) non compliance  with  the provisions  of  the Constitution and the provisions  of  the Representation of the People Act, 1951.  It was also alleged that  the  result of the election, in so far as it  concerns the  returned candidate, was materially affected on  account of  the grounds alleged in the petition, as abovesaid.   The reliefs  sought  for  were  __  declaring  the  election  of respondent  No.1  as  void and declaring  the  appellant  as elected.

     All  the material averments made in the petition  were denied  in  the written statement filed by  respondent  No.1 wherein preliminary objections to the maintainability of the petition  were also raised.  The learned designated election

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Judge heard the parties on the preliminary objections.  Vide order  dated 8.1.1997, the High Court directed the  election petition  to be dismissed on the ground that the allegations in  the  petition  did  not   disclose  a  cause  of  action warranting  trial of the election petition and also that the averments  made in the petition were not sufficient to grant the  relief  of recount of ballots.  This order was  put  in issue by the appellant in Civil Appeal No.1808 of 1997 filed before  this  court which was allowed on 22nd  March,  1999. The order of the High Court dated 8.1.1997 was set aside and the  case  was remitted back to the High Court for trial  of the  same on merits and affording the parties an opportunity of  leading  evidence.   In  its  order,  reported  as  V.S. Achuthanandan  Vs.  P.J.  Francis & Anr., (1999) 3 SCC  737, this court held that the election petition was not liable to be  rejected  under Section 83 of the Representation of  the People Act, 1951 read with Order 7 Rule 11(a) of the Code of Civil  Procedure.  This court further held:- Similarly, the learned  trial  Judge  was not justified  in  rejecting  the election   petition   without    affording   the   appellant opportunity  to place on record the circumstances justifying the re-count as prayed for by him.  It is true that on vague and ambiguous evidence no court can direct re-count.  But it is equally true that the doors of justice cannot be shut for a   person  seeking  re-count   without  affording  him   an opportunity  of  proving  the   circumstances  justifying  a re-count.   In his petition the appellant had given  details of  the alleged illegalities and irregularities committed by Respondent 1 which according to him justified the holding of a  re-count.   The  learned  trial Judge  relied  upon  some judgments  where  re-count was not allowed after  trial  and wrongly  dismissed  the  election   petition  filed  by  the appellant   without  affording  him   the   opportunity   to substantiate  the  allegations  made in the petition  or  to bring  on record the evidences justifying a re-count.  It is a  settled position of law that the court trying an election petition  can direct inspection and re-count of votes if the material  facts  and particulars are pleaded and proved  for directing  such  re-count  in the interest of  justice.   In doing so, the provisions of Section 94 of the Act have to be kept  in  mind  and  given   due  weight  before   directing inspection and re-count.

     xxx xxx xxx xxx Xxx xxx xxx xxx

     Without  commenting upon the merits of the case,  lest it may prejudice the rights of the parties, we feel that the trial  Judge  was  not justified in rejecting  the  election petition   at  the  initial   stage  without  affording  the appellant   an  opportunity  to   prove  the  existence   of circumstances  prima  facie  justifying   the  existence  of grounds requiring re- count.

     [underlining by us]

     On remand, the issues framed by the learned designated election  Judge  were  put  up for  trial.   The  petitioner examined  13  witnesses including himself and  exhibited  35 documents.   The  respondent  No.1   examined  2   witnesses including  himself and exhibited 6 documents.  After hearing the  learned counsel for the parties once again the  learned designated election Judge has directed the election petition to be dismissed forming an opinion that no case for re-count of the ballot papers was made out.  The aggrieved petitioner has   filed   this  appeal  under   Section  116A   of   the

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Representation of the People Act, 1951 (hereinafter RPA, for short).

     At the hearing, Dr.  A.M.  Singhvi, the learned senior counsel  for  the appellant submitted, while  attacking  the judgment of the High Court, that in order to make out a case for  re-count a prima facie case was required to be  shown leaving the issue as to material affect on the result of the election  to  be determined when the result of the  re-count was available but the High Court has committed a grave error of  law in insisting on the election petitioner making out a good  case  for re-count.  In other words, the High  Court has  insisted  on  demanding a higher degree  of  proof  for claiming  a re-count, which error has resulted in  vitiating the  judgment  of the High Court.  In the submission of  the learned senior counsel for the appellant the following three circumstances  were  shown  to  exist  prima  facie  by  the election  petitioner  on the evidence adduced by  him:-  (i) that 2100 excess ballot papers were got printed and retained by  Shri Ayyappan Pillai, the Taluk Tehsildar, who was  also the  Election Registration Officer and was shown to have  an affiliation  or  intimacy with the political party to  which the  respondent  No.1  belongs,  raising a  high  degree  of probability  of  such  excess   ballot  papers  having  been misutilised  to the advantage of the respondent No.1;   (ii) that  on  opening  the ballot boxes it was  found  that  the number of ballots polled were in excess of the ballot papers issued  to different polling stations __ a strong pointer to the  fact of gross irregularity having been committed at the polling;   and  (iii) that a number of ballot papers  issued and used for election of parliamentary candidates were found to  have  been  mixed up with  legislative  assembly  ballot papers.  In the submission of the learned senior counsel for the  election petitioner/appellant, the abovesaid facts made out  a sufficient ground for directing a re-count of  ballot papers  and if only a re-count would have been directed  the election  petitioner/appellant would have been found to have secured  the  highest number of votes and should  have  been declared  elected.   The learned counsel for the  respondent No.1 has disputed the correctness of the submissions so made and  submitted,  supporting the judgment under appeal,  that the  appellant was not entitled to any relief and the appeal was  liable  to be dismissed.  We will examine the worth  of the  contention  so advanced by testing if any of the  three circumstances  have been shown to the satisfaction of  court to  so exist as to enable a finding of prima facie case  for ordering re-count being recorded.

     Circumstance  (i) :- It is not disputed that the total number  of  voters in the constituency was 1,68,873.   There were  in  all  194 polling stations.  The actual  number  of ballot  papers  distributed was 1,69,900, though  the  total number  of  ballot papers got printed was 1,73,000.  It  was also  not  disputed before this court that on  the  evidence adduced  by the parties it was proved that the ballot papers were  got  printed  under  the  instructions  of  the  Chief Electoral  Officer  who was the District Collector and  Shri Ayyappan  Pillai,  P.W.11 had no role to play either in  the printing  of  the ballot papers or in appointing  the  total number  of  ballot  papers  to be  printed.   Any  rules  or instructions  relevant to fixing the number of ballot papers to  be printed for any constituency were neither brought  to the  notice  of  the learned designated election  Judge  nor placed  before this court.  We have, therefore, no reason to disbelieve  the statement of Ayyappan Pillai, P.W.11, as has

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been done by the learned designated election Judge that some number of excess ballot papers are required to be printed as some  ballot  papers  may be defective and may  have  to  be rejected  and provision has to be made for unforeseen myriad contingencies by keeping a few ballot papers in reserve.  In fact,  the learned senior counsel for the appellant did  not raise  any  serious grievance about printing  of  marginally excessive ballot papers than required.  The evidence adduced by  the parties goes to show that 2100 excess ballot  papers were  kept in the custody of the Taluk Tehsildar.   1,69,900 ballot  papers  were  issued to  different  polling  station officers  by rounding up the odd number of exact requirement of  any polling station to the next higher ten.  1000 ballot papers  issued earlier to P.W.2 Mini Antony, who was  Deputy Collector   (Revenue  Recovery),   Alappuzha  and  Returning Officer   for  Mararikulam   Legislative  Assembly  Election Constituency for being used as postal ballots, were found to be  deficient  and therefore another 200 ballot papers  were issued  to  her.   Ayyappan Pillai, P.W.11  was  transferred after  the  elections  were  over and  subsequently  he  has retired  also.   At the time of transfer he handed over  the envelope  containing  1900  unused   ballot  papers  to  his successor  R.D.   Subrahmanyam,  R.W.1, while  handing  over charge of Tehsil.  The envelope then remained in his custody and he produced the same in the High Court.  He deposed that the envelope which was being produced by him before the High Court was sealed and was in the same position as it was when he  had  received the envelope in his charge.  The  envelope bore  a  superscription  certifying   the  contents  of  the envelope  to be ballot papers 2100 in number bearing  serial numbers  169901  to 172000.  Just below, it was  noted  that ballot papers serial numbers 171801 to 172000 were issued to the  Returning  Officer, Mararikulam and the balance in  the envelope was 1900.

     The  envelope  of  unused ballot  papers  having  been produced  in  the  court, the opportunity should  have  been utilised  by the election petitioner in making a request  to the  learned designated election Judge to open the  envelope in  the  presence of the witness producing the same  in  the Court  or  at  any time thereafter so as to  verify  if  the envelope  did  contain the ballot papers in conformity  with the  superscribed endorsement appearing on the envelope  and the  cat would have been out of the bag if that be so.   The learned  designated election Judge has noted in the impugned judgment  that  the  election- petitioner did not  seek  for opening  and  examining the contents of the envelope  marked Exhibit-XI.  After the hearing was concluded, the respondent No.1  moved  an  application  praying  for  opening  of  the envelope   and  examining  the   contents   thereof.    This application  filed by the respondent No.1 was objected to by the election-petitioner submitting that the envelope was not produced  from proper custody and therefore it was not to be opened.   We  fail  to  appreciate the stand  taken  by  the election petitioner.  The conduct of the parties in the High Court  clearly suggests that the election petitioner himself entertained  a  doubt  about the contents  of  the  envelope Exhibit-XI and apprehended that the envelope, if opened, the contents  thereof would falsify his own plea.  There was  no substance  in  the plea of the election petitioner that  the envelope  was  not produced from a proper custody.   In  our opinion,  on  the  evidence adduced, seen in  the  light  of conduct  of the election petitioner and the respondent No.1, no  fault  can be found with the finding arrived at  by  the learned  designated election Judge that neither the printing

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of  the ballot papers in excess of the number of  registered voters  was  contrary to any statutory provisions,  nor  the excess ballot papers were misused as alleged in the election petition.  It is true that during cross-examination Ayyappan Pillai,  P.W.11,  candidly admitted that he was a member  of Kerala  Gazetted Officers Union, which was a union sponsored by  Congress(I),  the  political  party  which  had  set  up respondent  No.1 as candidate.  Merely from this  admission, we  cannot infer that the officer was helping the respondent No.1  by misutilising excess ballot papers to the  advantage of  respondent  No.1.   Thus no case of  any  illegality  or irregularity  much  less the provisions of the RPA or  Rules made  thereunder  having  been  breached  was  made  out  by reference to circumstance (i).

     Circumstance  (ii)  :-  The  petitioner  had  counting agents  appointed  when  the ballot boxes  were  opened  and subjected  to  counting.   At the end of  the  counting  the result  of voting at polling stations, as specified in  Rule 56  of  the  Conduct of Election  Rules,  1951  (hereinafter Rules,  for  short) was recorded polling station  wise  in Form  16 and the final result sheet was prepared in Form  20 in  accordance with Rule 56(7).  Copies of such Form 16  and final  result  sheets in Form 20 were made available to  the counting  agents  for the contesting candidates.   Based  on such  Forms  16  and  Form 20 the  petitioner  compiled  the statement  of the ballot papers issued by Presiding Officers at various polling stations and the total votes found in the ballot  boxes and set out the compilation in a tabular  form in  sub-para  (c) of Para 11 of the election petition.   The table  compiled  by the petitioner shows that in almost  all the polling stations (excepting 5) the number of total votes found  in  the  ballot boxes fell short by 1 or 2  than  the number  of ballots issued.  In polling station Nos.2 and 30, the shortage was of 6 and 10 votes respectively.  In polling station  Nos.119 and 120, 2 votes each were found in excess. On these facts, the learned senior counsel for the appellant very  fairly  submitted that nothing much turned out  in  as much  as  the possibility of a voter or two not casting  the ballot  paper  issued to them and taking it away  or  having wasted  the  same could not be ruled out.  The excess  of  2 ballot papers each in polling station Nos.  119 and 120 also was  not  very material.  However, according to the  learned senior  counsel, it was the excess of 99 ballot papers found in  the ballot box referable to polling station No.79  which was  material  and was a positive indicator  of  unauthentic ballot papers having been used and cast in the election.

     We  have  very  minutely  examined this  plea  of  the learned  senior  counsel for the appellant and we find  that the submission is based on factually wrong premises.  In the final  result  sheet (Form 20) figures referable to  polling station No.79 appear at page 118 of the Paper Book (Vol.II). It  appears  that  the number of total votes  found  in  the ballot boxes of polling station No.79 was typed as 828 + 1 tendered  vote.   However,  this figure  828  contained  a typing  error  and  therefore  the  first  digit  of  8  was corrected by hand to read as 7 making the figure 728.  The correction  so made was initialled by the Returning Officer. This  final result sheet (Form-20) runs into 13 pages,  each page  containing the number of ballots relating to 10 to  13 polling stations approximately and totalled up at the bottom of every page.  The total of preceding page has been carried forward to the next page and then added to the total of that page.   The  figure of 728 being the total number  of  votes

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found  in the ballot box referable to polling station  No.79 tallies with and fits in with the total of that page and the grand  total  at the end.  It is pertinent to note that  the figures  of total on individual pages or the grand total  at the  end  does not bear any correction.  It  is,  therefore, very  clear that the total votes found in the ballot box  of polling  station  No.79 was 728 and not 828.  In  the  table contained  in  para  11(c)  of  the  election  petition  the petitioner has taken the figures of the votes issued and the votes  found in the ballot box referable to polling  station No.79  as  729 and 828 respectively.  The latter  figure  is incorrect.   The very foundation of the plea that the number of  votes  found in that ballot box exceeded the  number  of votes  issued  at the polling station falls to ground.   The factum of two votes found in excess each in the ballot boxes of  polling  station Nos.  119 and 120 is  immaterial.   The variation  is so marginal as not to have any material effect on the result of the election.

     Circumstance  (iii)  :-  The record  of  ballot  paper account  kept  in Form 16 [referable to Rules 45, 56(7)  and 56A(7)] of the Conduct of Election Rules was summoned by the election petitioner and produced in the court by P.W.2, Mini Antony,  the Returning Officer.  It is an admitted fact that the  elections of the legislative assembly and parliamentary constituency  in  Alappuzha District were held on  the  same day.   Voting of the two was conducted simultaneously.   The same  ballot  box was used for casting ballots referable  to legislative  assembly and parliament both.  However, at  the time  of  counting, on opening the ballot boxes, the  ballot papers  were separated and separate bundles of ballot papers relating  to  legislative assembly and parliament were  made and  then counted.  Before the High Court when the bundle of Forms 16 of legislative assembly election was opened, it was found  to  contain  a  few Form 16 (about  four  in  number) referable  to  parliamentary election placed in  the  bundle amidst Forms 16 referable to legislative assembly elections. Such forms have been produced at pages 102, 104, 107 and 109 of  the Paper Book (Vol.II).  The High Court has found  that when  the  election  process was over and the  records  were being  sorted  out, arranged and consigned to safe  custody, some  Forms 16 referable to parliamentary election got mixed up  with  the  Forms 16 referable  to  legislative  assembly election  and that it was a bonafide mistake.  Such  mistake could  have  been  positively identified  by  summoning  the record  of  Form  16 referable  to  parliamentary  election. However,   the  record  of   election  papers  referable  to parliamentary  constituency of Alappuzha District was weeded out  and destroyed after the lapse of 6 months from the date of  election  as no election petition was filed  challenging the   election  of  parliamentary   seat  and  the  election petitioner  did not make a prayer for summoning that  record before the expiry of the said period of 6 months.

     There  are  additional reasons also as to why we  find this ground to be without any merit and substance.  Firstly, the four Form 16 referable to the parliamentary election and found  contained  in  the  bundle of Form  16  referable  to legislative assembly election in question contain the serial numbers of the ballot papers and those serial numbers are of the ballot papers used in the parliamentary election and not of  the  legislative  assembly   election.   Secondly,   the possibility of ballot papers cast for parliamentary election having  been  taken into account and included in the  ballot papers of legislative assembly election is very very remote,

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virtually  nil,  as  the  two  ballot  papers  would  be  of different  size,  with  names of  different  candidates  and different  election symbols.  Even if a single ballot  paper would  have  been  wrongly  included at  the  counting,  the counting  agent  of any of the political parties would  have taken  a  strong  exception  to it then and  there.   It  is pertinent  to  note  that  it is also not the  case  of  the petitioner  in  the election petition that the counting  was vitiated   on   account  of   ballot  papers  referable   to parliamentary election having been included in the bundle of ballot  papers referable to legislative assembly election at the  time  of counting.  It appears that when the bundle  of Form-16  was  opened in the court the mistake of about  four Form  16  referable  to parliamentary election  having  been placed  in  the bundle of Form 16 referable  to  legislative assembly  election  came  to  the   fore  and  the  election petitioner sprang up to cash on such discovery.  The mistake appears  to  be  bonafide  and  inadvertent.   The  election petitioner  cannot  be  permitted  to make out  a  case  for re-count  of ballot papers on a ground for which there is no foundation laid by him, not even a whisper, in pleadings and which  does  not appear to have a ring of truth, even  prima facie.

     That  apart admittedly a prayer for re-count in  terms of Rule 63(2) of the Conduct of Election Rules, 1951 was not made  by  or on behalf of any of the  contesting  candidates including  the petitioner before the Returning Officer which the  election petitioner would ordinarily have made if there was  any  truth  in  any  of  the  pleas  canvassed  by  the petitioner before the High Court or this court.

     The  power vesting in the court seized of an  election dispute  to order for inspection and re-count of the  ballot papers  has been subject matter of several decisions of this Court which have by authoritative exposition settled the law thereon.  Without burdening this judgment with the series of available decisions, it would suffice to mention a few only, namely,  Constitution  Bench  decision in  Ram  Sewak  Yadav Vs.Hussain Kamil Kidwai and Ors.  - AIR 1964 SC 1249, three- Judges  bench  decision  in  Suresh Prasad  Yadav  Vs.   Jai Prakash  Mishra & Ors.  - AIR 1975 SC 376, Bhabhi Vs.   Sheo Govind  and Ors.  - AIR 1975 SC 2117 which refers to all the decisions  available till then and a recent decision in M.R. Gopalkrishnan  Vs.   Thachady  Prabhakaran &  Ors.   -  1995 Suppl.   (2)  SCC 101 to which one of us (Dr.  A.S.   Anand, J.,  as  his Lordship then was) is a party.  We may  briefly restate the principles as under:-

     1.   The secrecy of the ballot is sacrosanct and shall not  be  permitted  to be violated lightly  and  merely  for asking  or on vague and indefinite allegations or  averments of  general  nature.   At the same time purity  of  election process  has  to be preserved and therefore  inspection  and re-count  shall  be  permitted  but only  on  a  case  being properly made out in that regard.

     2.   A  petition  seeking inspection and  re-count  of ballot-papers  must  contain averments adequate,  clear  and specific  making  out  a  case  of  improper  acceptance  or rejection   of  votes  or   non-compliance  with   statutory provisions  in counting.  Vague or general allegations  that valid  votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.

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     3.   The  scheme of the rules prescribed in Part V  of the  Conduct  of Election Rules, 1961 emphasises  the  point that  the  election petitioner who is a defeated  candidate, has  ample  opportunity to examine the voting papers  before they  are counted, and in case the objections raised by  him or  his  election agent have been improperly over-ruled,  he knows  precisely the nature of the objections raised by  him and the voting papers to which those objections related.  It is  in the light of this background that S.83 (1) of the Act has  to  be applied to the petitions made for inspection  of ballot  boxes.   Such an application must contain a  concise statement of the material facts.

     4.   The election-petitioner must produce  trustworthy material  in support of the allegations made for a  re-count enabling the Court to record a satisfaction of a prima-facie case  having  been  made out for grant of the  prayer.   The Court  must come to the conclusion that it was necessary and imperative  to  grant the prayer for inspection to  do  full justice  between  the  parties  so   as  to  completely  and effectually adjudicate upon the dispute.

     5.   The power to direct inspection and re-count shall not  be  exercised  by  the Court to show  indulgence  to  a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.

     6.   By  mere  production  of   the  sealed  boxes  of ballot-papers or the documents forming part of record of the election  proceedings before the Court the ballot papers  do not  become  a  part of the court record and  they  are  not liable  to  be  inspected unless the court is  satisfied  in accordance  with the principles stated hereinabove to direct the inspection and re-count.

     7.   In  the peculiar facts of a given case the  court may exercise its power to permit a sample inspection to lend further  assurance  to the prima-facie satisfaction  of  the court regarding the truth of the allegations made in support of  a prayer for re-count and not for the purpose of fishing out materials.

     Once  a  re-count  is validly ordered  the  statistics revealed  by the re-count shall be available to be used  for deciding  the election dispute.  However, if the validity of an  order  passed  by High Court  permitting  inspection  of ballot  papers  and directing a recount is brought in  issue before  the  Supreme Court, the facts revealed  by  re-count cannot  be relied upon by the election-petitioner to support the  prayer  and  sustain  the order  for  re-count  if  the pleadings  and  material  available on  record  anterior  to actual  re-count  did  not justify grant of the  prayer  for inspection and re-count.

     On  the facts as set out hereinabove we are clearly of the  opinion that the averments made in the petition and the material  brought  on record by the election-petitioner  did not  make  out  a  case for re-count.   The  petitioner  has indulged  into  a roving enquiry and has tried to  fish  out materials  in  the  hope that the re-count  if  allowed  may probably  twist the balance of votes in his favour which  in the  facts and circmstances of the case is nothing beyond  a wishful thinking of the petitioner.

     We  also  do  not  agree with the  submission  of  the

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learned senior counsel for the appellant that this court had directed the High Court to permit an inspection and re-count if  a prima facie case was made out for such relief but  the High  Court  has  unreasonably insisted on  availability  of ’good  grounds  before allowing the relief of recount.   In Suresh  Prasad  Yadavs case (supra) the law stated by  this Court  is that the order for recount of ballot papers  would be  justified  if,  inter alia, on the  basis  of  evidence adduced   the   requisite  allegations   are   prima   facie established,  affording  a  good ground for  believing  that there  has  been  a mistake in counting. This  answers  the submission  which is more a play on jugglery of words.  What was needed was proof of prima facie case of availability of good  grounds wherein the election petitioner/appellant has failed.

     For  the foregoing reasons we find ourselves  entirely in  agreement with the view taken by the learned  designated election Judge declining the prayer for re-count and finding the  election  petitioner not entitled to such relief.   The appeal is devoid of any merit and is liable to be dismissed. It is dismissed accordingly, though, without any order as to the costs in the facts and circumstances of the case.