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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.