BALARAM v. ARAVINDAKSHAN — 1987 DIGILAW 464 (KER)

Judgment :- 1. In the General Election for the Kerala State Legislative Assembly for which poll was taken on 23-3-1987 the petitioner and respondents 1 to 12 were the contesting candidates (or the seat in the Kunnamkulam Assembly Constituency No. 56. The main contest was between the petitioner who was a candidate of the Indian National Congress (1) and the first respondent sponsored by the Communist Party of India (Marxist) which respectively were allies of the United Democratic Front and the Left Democratic Front. , Petitioner was defeated by the first respondent by a margin of 409 votes. Respondents 2 to 11 got only nominal votes. 2. Petitioner wants declaration of the election of the first respondent void and to have him declared elected. There is no allegation of any corrupt practice. The grounds alleged are mainly (1) The counting ball was so small to accommodate the large crowd making it impossible for the counting staff to do their work correctly and the counting agents to oversee sorting and counting. (2) This was the only constituency where counting lasted till 3 a.m. of the next day, namely, 25-3-1987. By 6 or 7 p.m. on 24-3-1987 the news that the Left Democratic Front bad obtained majority in the Assembly came. This had adverse effect on the petitioner as several of the counting staff who owed their allegiance to the Left Democratic Front took advantage of the confusion to help the first respondent in counting. (3) On account of the confusion and overcrowding the counting agents of the petitioner could point out and get rectified only some instances of wrong counting. Exhaustion of the counting staff also resulted in mistakes. (5) The ballot papers happened to be printed in a misleading fashion which was most disadvantageous to the petitioner. (6) This resulted in more than 600 of the votes polled in favour of the petitioner, though near his symbol, being on the shaded area immediately to the right of his symbol. All those votes were rejected for that reason wrongly, and (7) There were large number of errors in sorting and counting. The prayer seems to be for a partial recount of the 600 and odd votes alleged to be illegally rejected and if necessary to have a general recount also. There is the further allegation that the prayer for recount was also illegally rejected. 3. The prayer seems to be for a partial recount of the 600 and odd votes alleged to be illegally rejected and if necessary to have a general recount also. There is the further allegation that the prayer for recount was also illegally rejected. 3. Before taking evidence the first respondent wanted the election petition to be dismissed on three preliminary points. They are (1) The petition and the security deposits were out of time. (2) The petition does not contain a concise statement of the material facts on which the petitioner relies and therefore the pleadings will have to be struck out under Order VI R.16 of the Code of Civil Procedure as no cause of action is made out, and (3) Many of the statements in the petition are barred by law and hence the petition has to be rejected under Order VII R.11 CPC. On these three points both sides addressed elaborate arguments. 4. Subject to the provisions of the Representation of the People Act, 1951 (for short 'the Act') and of any rules made thereunder, the election petition has to be tried, as nearly as may be, in accordance with the procedure applicable under the CPC. to the trial of suits as provided in S.87. The provisions of the Act and Rules do not in any way oust the applicability of Order VI R.16 and Order VII R.11 CPC. Therefore those provisions are applicable. On a combined reading of S.81, 83, 86 and 87 of the Act, it is apparent that those paras in the election petition which do not disclose any cause of action, are liable to be struck off under Order VI R.16 CPC. as the court is empowered at any stage of the proceedings to strike out or delete pleadings which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarass or delay the fair trial of the petition or the suit. If on examination of the plaint or the election petition the court finds that it does not disclose any cause of action it would be justified in striking out the pleadings. For that purpose the court need not wait till the final stage or even till the defendant or respondent files the written statement or objection. If on examination of the plaint or the election petition the court finds that it does not disclose any cause of action it would be justified in striking out the pleadings. For that purpose the court need not wait till the final stage or even till the defendant or respondent files the written statement or objection. Issue of process or trial of a suit or election petition which do not disclose a cause of action would prejudice, embarass and delay the proceedings, and therefore without waiting for the written statement to be filed the court can proceed to hear the preliminary objections and strike out the pleadings. (See Agarwal v. Rajiv Gandhi AIR, 1987 SC. 1577). For the same reason in appropriate cases the plaint or petition could be rejected under Order VII R.11 CPC. when the suit or petition appears from the statement thereof to be barred by any law as provided in R.11(d). These propositions are not disputed, 5. But when the defendant or respondent asks the court to decide an issue or some of the issues preliminarily on the very allegations in the plaint or petition without allowing evidence to be let in, he must be taken to admit for the sake of argument that the allegations of the plaintiff or the petitioner in his pleadings are true reserving him the right to show that those allegations are wholly or partly false in further stages of the action, should the preliminary point be overruled. For the purpose of deciding that preliminary point the averments of the opposite party will have to be taken on the face value; otherwise he will be prejudiced because he is being denied the opportunity of substantiating his allegations. For that purpose the denial of the person, who wants the preliminary issue to be heard, will have to be ignored. (See Fatechand Ganeshram v. Wasudeo Shrawan Dalai AIR. 1948 Nagpur 334). It is true that as held in Ram Singh v. Col. Ram Singh (AIR. 1986 SC. For that purpose the denial of the person, who wants the preliminary issue to be heard, will have to be ignored. (See Fatechand Ganeshram v. Wasudeo Shrawan Dalai AIR. 1948 Nagpur 334). It is true that as held in Ram Singh v. Col. Ram Singh (AIR. 1986 SC. 3) in the trial of election petitions courts have to undertake the onerous task of disengaging the truth from falsehood, to separate chaff from the grain and if two views are reasonably possible on a particular point, the one in favour of the elected candidate and the other against him, courts should not interfere with the expensive electoral process and instead of setting at naught the election of the winning candidate, should uphold his election giving him benefit of doubt. But that should not be at the preliminary stage, but after giving an effective opportunity of establishing the allegations. The question of giving benefit of doubt at the threshold without giving an opportunity to prove the allegations may result in prejudice. 6. Without going further into that aspect let me consider the first objection that the petition has to be dismissed on the ground that it was filed out of time and the security deposit was also likewise belated. The argument was that S.4 or S.5 to 24 of the Limitation Act and S.10 of the General Clauses Act are not applicable inasmuch as the provision in S.81 of the Representation of the People Act to file the election petition within 45 days of the election of the returned candidate is not a period of limitation but a condition precedent to the maintainability of the petition because a petition filed out of time has to be dismissed under S.86. S.117 says that at the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of Rs. 2,000/- as security for costs of the petition. The further argument was that even if S.10 of the General Clauses Act is applicable to the filing of the flection petition, it cannot be availed of so far as the security deposit is concerned. 7. 2,000/- as security for costs of the petition. The further argument was that even if S.10 of the General Clauses Act is applicable to the filing of the flection petition, it cannot be availed of so far as the security deposit is concerned. 7. The provisions of the Limitation Act intended to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by some enactment; the extent of such application being governed by S.29(2) of the Limitation Act. But the provisions of the Limitation Act cannot apply to proceedings like an election petition in as much as the Representation of the People Act is a complete and self contained Code which does not admit of the introduction of the principles or the provisions of the law contained in the Limitation Act. Therefore S.4 to 24 of the Limitation Act also cannot apply. After the expiry of 45 days no election petition is maintainable and the High Court has no jurisdiction to extend the period of limitation. These positions are now well settled. (See Venkateswara v. Narasimha (1969 (1) SCR. 679). AIR 1987 SC. 1577 and Hukumdev Narain Yadav v. L. N. Mishra (1974) 2 SCC 133). 8. But the other arguments have no force. High Court is the forum where the election petition has to be filed and it is the court having jurisdiction under S.80A of the Act to try an election petition. An individual judge acts jurisdiction to exercise the powers only when the Chief Justice assigns the judge for that purpose under S.80A (2) Filing of the election petition is to the High Court and not to the judge sitting during vacation. Adjournment during summer recess is always understood as closing of the Courts for that period. Nomination of one or more judges by the Chief Justice during vacation is only for exercise of the powers under S.8 of the High Court Act for bearing matters to be promptly and urgently heard. Adjournment during summer recess is always understood as closing of the Courts for that period. Nomination of one or more judges by the Chief Justice during vacation is only for exercise of the powers under S.8 of the High Court Act for bearing matters to be promptly and urgently heard. Such nomination will not amount to conferring of powers by the Chief Justice under S.80A (2) of the Act to try election cases and by such nomination the concerned judges will not get powers to entertain and try election cases which are to be filed in the High Court and tried by a judge or judges nominated by the Chief Justice. In the present instance, two judges were nominated by the Chief Justice to try election cases only a few days after the reopening of courts after midsummer recess in 1987. During vacation the High Court was closed and it was not functioning. In such a situation the argument of Mr. C. K. Sivasankara Panicker that (he election petition could have been filed in the office of the High Court and S.10 of the General Clauses Act will not apply, has no force. Even though S.4 of the Limitation Act will not apply S.10 of the General Clauses Act must apply when any proceeding is directed by any Central Act or Regulation to be taken in any court or office on a certain day or within a prescribed period and court or office is closed on that day or the last day of the prescribed period. In such a contingency it is enough if it is taken on the next day afterwards when the court or office is open. Since 45 days expired during the currency of the vacation the filing of the petition on the reopening date was proper because that was the first day on which the High Court was functioning after the holidays. This position is well recognised by the decisions in K. K. Mohammed Koya v, P. M. Sayeed (AIR 1977 Kerala 160), Harinder Singh v. S. Karnail Singh (AIR 1957 SC 271), Hukumdev Narain Yadav v L. N. Mishra (1974) 2 SCC 133) and M/s. Flowmore Pvt. Ltd. v. Keshav Kumar Swarup (AIR 1983 Delhi 143). 9. This position is well recognised by the decisions in K. K. Mohammed Koya v, P. M. Sayeed (AIR 1977 Kerala 160), Harinder Singh v. S. Karnail Singh (AIR 1957 SC 271), Hukumdev Narain Yadav v L. N. Mishra (1974) 2 SCC 133) and M/s. Flowmore Pvt. Ltd. v. Keshav Kumar Swarup (AIR 1983 Delhi 143). 9. The argument that even if S.10 of the General Clauses Act is applicable for the filing of the petition, that benefit is not available to the security deposit under S.117 does not deserve consideration. It is true that security deposit under S.117 is a condition precedent to maintainability of the petition and without such a deposit at the time of the presentation of the election petition it is not complete and has to be dismissed under S.86. But when the petition could be filed on the reopening date, I was not able to understand the logic behind the argument that the High Court Office was functioning during vacation and hence the deposit had to be made during vacation itself before the expiry of 45 days. It is true that as held in Jagannath v. Rama Chandra (AIR 1959 Orissa 26) the election petition may not be complete without the deposit and as held in Mayor, Councillors & Burgessees v. T. E. Power Board (AIR 1933 PC. 216), words are used in statutes correctly and exactly and not loosely or inexactly and burden to prove otherwise is on the person who asserts so. As laid down in A. Madan Mohan v. K. Chandrasekhara (1984)2 SCC 288) at para 13 whenever a statute contains stringent provisions they roust be liberally and strictly construed so as to promote the object of the Act. M. Karunanidhi v. H. V. Hands (1983)2 SCC 473 interpreted S.117(1) of the Act as meaning that though the first part regarding deposit is mandatory, the second part regarding requirement of its deposit in the High Court is only directory and the mode of making deposit is only an internal matter of the concerned High Court. The deposit made along with the petition on the reopening date was sufficient compliance of S.117(i). The first preliminary objection has therefore no merit. 10. The second objection is based. on S.83 (1)(a) of the Act which says that an election petition shall contain a concise statement of the material facts on which the petitioner relies. The deposit made along with the petition on the reopening date was sufficient compliance of S.117(i). The first preliminary objection has therefore no merit. 10. The second objection is based. on S.83 (1)(a) of the Act which says that an election petition shall contain a concise statement of the material facts on which the petitioner relies. A whimsical and bald statement of the candidate that he is not satisfied with the counting is not sufficient. All the material facts on which the allegations of irregularity or illegality in counting are founded, should be pleaded adequately and the court trying the petition must be prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and do complete and effectual justice between the parties Baliram Bhataik v. Jai Beharilal Khachi (1975)4 SCC 417) What are the material facts is then the question. All primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. Material facts would mean all the basic facts constituting the ingredients of the particular cause of action the party is bound to establish before court in order to succeed in that cause of action. (Udhav Singh v. M.R. Scindia (1976) 2 SCC 246). Whether a particular fact is material or not and as such required to be pleaded and proved or not is a question which depends upon the nature of the challenge levelled, the grounds relied on and the special circumstances of the case. Several primary or material basic facts may be available to a party to establish a cause of action. Whether he has compulsorily to allege all of them in order to avoid his pleading being struck off under Order VI R.16 is a question that will have to be decided on the facts of cases and the questions of law involved. If maintainability of a cause of action is conditional on the allegation and proof of a particular fact that will have to be alleged and proved. Though several facts are available but some of them alone will be sufficient to establish the cause of action, the inclusion or omission of others may be a matter for option. If maintainability of a cause of action is conditional on the allegation and proof of a particular fact that will have to be alleged and proved. Though several facts are available but some of them alone will be sufficient to establish the cause of action, the inclusion or omission of others may be a matter for option. If the omission amounts to an admission of the non-availability of the cause of action or if it creates a situation in which the applicant is estopped from alleging the other facts, there also the position may be different. On the other hand if the omission only precludes him from relying on the other available facts, but be could base his cause of action successfully on the facts alleged, he cannot be compelled to allege the other facts or penalised for the omission. 11. The case in hand has to be considered bearing these facts in mind. It is true that proof of exhaustion of the counting staff and the resultant possibility of error based purely on speculation is not sufficient to order recount. (See R. Narayanan v. Sammalai (1980) 2 SCC. 537). There cannot be any dispute that some of the allegations on the petition are general and not specific. General allegations are not sufficient to order a re-count. There must be specific allegations supported by concrete facts. So also secrecy of the ballot cannot be allowed to be violated on flimsy grounds. Allegation and proof of specific violations must be there. Court must be satisfied of the truth of the allegations and recounting should be found absolutely necessary for doing justice between the parties So also the petitioner should not be allowed to indulge in a roving enquiry and go on a fishing expedition to find out facts when he has none substantial to allege. Sample inspection should also be only for lending support to the primary satisfaction of the court (See Bhabhi v. Sheo Govind AIR 1975 SC 2117 AIR 1984 SC 396, AIR 1980 SC 1362 and AIR 1975 SC 293). But we are only at the preliminary stage where no evidence is adduced. Sample inspection should also be only for lending support to the primary satisfaction of the court (See Bhabhi v. Sheo Govind AIR 1975 SC 2117 AIR 1984 SC 396, AIR 1980 SC 1362 and AIR 1975 SC 293). But we are only at the preliminary stage where no evidence is adduced. Going through paras 4 to 10 of the petition T was able to find at least some specific allegations which, if proved to the satisfaction of the court, may justify at least a primary satisfaction of the court that recount could be had partially, if not fully. True that specific instances of wrong counting were not pointed out. But if some other facts alleged are proved, actual wrong counting itself as well as its further possibility and the difficulty in finding out such possibilities also could be established. It is true that there is no allegation that the petitioner objected to the form of the ballot paper or the insufficiency of space in the counting hall. Whether the absence of such allegations is fatal or involved any question of estoppel are matters that could be more justly and fairly decided only after evidence. Admittedly at least 600 and odd votes were rejected on the sole ground that they are in the shaded area. The invalidity of the rejection of those votes has been specifically raised. At any rate that allegation will have to be gone into on the merits, subject to the finding on the contention that the allegation is barred by law. On the whole I do not feel that this is a fit case to strike off the pleading under 0.6 R.16. 12. Then what remains to be considered is the last objection that the averments in the petition are barred by law. This objection relates to the prayer for partial recount of 600 and odd votes. It is true that according to the law in India which is a deviation from the English Law burden of proof is always on the petitioner. As already stated, in the discharge of that burden, a roving enquiry to find out facts cannot be allowed and proof must be on adequate statement of material facts maintaining secrecy of ballot ensured and safeguarded under S.94 and 128 and R.39,54 and 93. As already stated, in the discharge of that burden, a roving enquiry to find out facts cannot be allowed and proof must be on adequate statement of material facts maintaining secrecy of ballot ensured and safeguarded under S.94 and 128 and R.39,54 and 93. Inspection of ballot papers and counterfoils should be allowed very sparingly and only when it is absolutely essential to determine the issue. The prohibition contained in R.93(1) particularly speaks eloquently of the intention to maintain secrecy. 13. At the same time though secrecy of ballot is an indispensable adjunct of free and fair election and ordinarily this secrecy has to be guarded; the principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair election namely purity of election (S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra (1980 SCC. 53). When secrecy is sought to be availed of as protective shealth against disclosure of fraud, forgery or wrongful conduct or when it is absolutely necessary to do justice, it must yield to the larger public interest to ensure purity and fair election. Voluntary waiver of disclosure of identity by a voter is not prohibited. 14. But so far as this case is concerned none of these questions may arise for consideration. If at all partial or even full recounting is ordered there will be no question of secrecy of ballot being interfered with. So far as the 600 and odd rejected votes are concerned the only question for verification will be whether it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the votes had been given. That does not involve disclosure of the identity of the voter which could be had only if some other papers are also looked into. For such a verification identity of the voters may not be necessary unless it is for the purpose of examining them to prove their intention. It is not a disputed fact that in these 600 and odd ballot papers the markings are on the shaded area just on the right side of the column of the petitioner. Rejection was only for that reason and not for the reason that it was doubtful as to whom the votes were intended. 15. It is not a disputed fact that in these 600 and odd ballot papers the markings are on the shaded area just on the right side of the column of the petitioner. Rejection was only for that reason and not for the reason that it was doubtful as to whom the votes were intended. 15. The contention of the first respondent is that shaded area is nobody's area and it cannot be said to be on or near the symbol. Since it is admitted by the petitioner that the markings are on the shaded area the objection is that contention in this respect is barred by the provisions of the rules and the instructions in the election manual and hand book to presiding officers. I do not think I will be justified in accepting the argument at this preliminary stage to reject the petition under 0.7 R.11. So also I do not find any justification at this stage to accept the objection that these 600 and odd voters might have had on faith in any candidate and therefore they consciously exercised their franchise to avoid impersonation by anybody else and at the same time ensure that their votes are not counted in favour of any candidate. 16. Under R.56(2) of the statutory rules and orders a ballot could be rejected by the returning officer only on any one of the eight grounds specified therein. The rules relevant here are only 56(2)(b) and (d). Apparently (d) is not applicable because admittedly rejection was not on the ground of doubt as to which candidate votes was given. There were thirteen candidates and petitioner's name was the 7th which is the last name in the left hind column. The right hand column consisted only six names and the last column against that of the petitioner is blank and hence it is also shaded. The markings are said to be made only on the shaded area in between the column of the petitioner and the blank shaded column to the right of it. Rejection was only on the ground that the markings are on the shaded area. Therefore R.56(2)(b) alone is applicable and what it says is that "to indicate the vote, it bears a mark elsewhere than on or near the symbol". Rejection was only on the ground that the markings are on the shaded area. Therefore R.56(2)(b) alone is applicable and what it says is that "to indicate the vote, it bears a mark elsewhere than on or near the symbol". The question is whether the words "on or near the symbol" will exclude the shaded margin on the right side of it. If such an interpretation is given the rejection of votes will be according to the rule and contention to the contrary could be said to be barred by law. The rule does not specifically exclude the shaded margin. 17. In the Kerala Election Manual Vol. II revised in 1979 dealing with conduct of elections, instructions were issued at pages 126 and 128 that ballot papers shall not be treated as doubtful or rejected simply because the mark is only partially within the column of one candidate and the rest of the mark is in the blank area. This instruction and the diagram shown in the book are capable of creating an impression that in order to validate a vote at least a nominal portion of the marking should be inside the column of the candidate though the remaining portions could be in the shaded area. Such an Interpretation is prima facie not possible from R.56(2) of the statutory rules. What is relevant is only intention. In the band book for Returning Officers issued by the Election Commission of India in 1977 at page 86 instructions were issued to reject ballot papers when the mark is in the blank area, that is to say, at the back or entirely on the shaded area. This is a deviation from the provisions contained in R.56(2) of the statutory rules. The question may arise whether such directions or instructions are in conformity with the rules and if not whether they are competent or not because according to the rules the grounds provided in R.56(2) are the only grounds on which ballot papers could be rejected. The statutory rules regarding grounds of rejection are exhaustive and not illustrative. Proof of invalid rejection of each and every ballot paper is also not necessary. More reasons than those given in the statutory rules cannot be given for rejection. Shradha Devi v. Krishna Chandra Pant (1982 (3) SCC. 389 or AIR. 1982 SC 1569). 18. The statutory rules regarding grounds of rejection are exhaustive and not illustrative. Proof of invalid rejection of each and every ballot paper is also not necessary. More reasons than those given in the statutory rules cannot be given for rejection. Shradha Devi v. Krishna Chandra Pant (1982 (3) SCC. 389 or AIR. 1982 SC 1569). 18. It is true that Art.324 of the Constitution does not authorise the Election Commission to exercise powers of superintendence, direction and control of preparation of electoral rolls and the conduct of elections. But the powers under Art.324 would operate only in areas left unoccupied by legislation. The Commission cannot take upon itself a purely legislative authority which has been reserved under the scheme of the constitution only to the Parliament and State Legislatures. When the Representation of the People Act and the Rules prescribed only particular provisions for rejecting ballot papers the Commission cannot make additions to it. (A.C. Jose v. Sivan Pillai & others (1984 KLT 510 SC.). It is not open to the Commission to override the provisions of the Act and Rules. 19. In this back ground the question has to be considered. The trend of judicial pronouncements is that so long as the ballot paper bears a mark with the instrument supplied, it shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given. (S. Sivaswami v. Malaikannan (1984) 1 SCC. 296). The reason is that a good majority of the voters of our country are uneducated rural folk totally unacquainted with the intricacies of the roles and technicalities of procedure pertaining to elections and even the best endeavour may not be capable of enlightening them. So also if the right conferred on the people to elect their representatives is to be meaningful, clear indication of their choice should be given effect to inspite of slight errors. That was a case in which markings were made either on the demarcation line at the bottom of the first respondent's column or partly on the demarcating line and partly on the first respondent's column. It was in such a case that the above guidelines were given. That was a case in which markings were made either on the demarcation line at the bottom of the first respondent's column or partly on the demarcating line and partly on the first respondent's column. It was in such a case that the above guidelines were given. R.39(2)(b) of the Statutory Rules directing the voters to make a mark on or near the symbol came up for consideration in that case. K. Raghbir Singh Gill v. S. Gurucharan Singh Tohra (1980 Supp. SCC 53) also held that it is the imperative duty of the returning officer to ascertain the intention of the voter by finding out for whom the vote was cast and add the vote accordingly and that instruction given by the Election Commission in derogation of R.56 cannot stand. 1984 (1) SCC 91, AIR 1980 SC 1362, AIR 1975 SC 2177 and AIR 1982 SC 1569 are cases where clearer indications are given in the matter of acceptances of votes. With those guidelines in view, it may not be legal at this stage of the trial to reject the plea as barred by law. 20. Now it is only the preliminary stage in which the general allegations alone need be considered and that too only on the averments in the petition. I am not in a position to find on the allegations that any of them is barred by law. That is an aspect on which final verdict could be given only when the matter is considered on the merits. It is now premature to find that any allegation is barred by law necessitating rejection of the petition under Order VII R.12. The preliminary objection for striking out pleadings and rejection of the petition is therefore disallowed and the election petition is ordered to posted for trial.