P. C. GEORGE v. RETURNING OFFICER — 1987 DIGILAW 537 (KER)

Judgment :- 1. In the General Election for the Kerala State Assembly for which the poll was taken on 23-3-1987, the petitioner and respondents 2 to 13 contested as candidates for the Poonjar Assembly Constituency. Petitioner was the candidate for the Kerala Congress (J) Party. Fourth respondent was the candidate of the Janatha Party. Respondents 2, 3, 5, 6, 7, 8,10,11,12 and 13 were independent candidates. The 9th respondent was the candidate of the Bhara-thiya Janatha Party. Fourth respondent was declared elected by the Returning Officer on 24-3-1987. Petitioner seeks the declaration of the election of the 4th respondent from Poonjar Assembly Constituency as void and waits far a further declaration that he be declared to have been duly elected from the said constituency. 2. The 4th respondent filed written statement contending inter alia that the election petition does not constitute materials for allowing the petition. that the averments in the petition do not constitute any of the grounds mentioned in S.100 of the Representation of the People Act so as to invalidate the election and that the petition is liable to be dismissed far non-compliance with S.83(a) and (c) of the Act. Fourth respondent has also filed a recrimination statement contending that the counting of votes was done properly and as provided under the law and that the petitioner has no right to ask for a recount for the purpose of knowing for a second time the number of votes polled in favour of various candidates. 3. As the very maintainability of the election petition is challenged on the ground that it does not disclose any cause of action we have to consider whether the averments in the petition constitute any cause of action and whether sufficient grounds are there to order recounting. 4. It is alleged that the hall in which the counting took place was not spacious enough to accommodate the counting agents of the 13 candidates. that the counting agents of the petitioner were not permitted to watch the counting or to verify the sorting of votes by unauthorised persons who trespassed into the hall. that there was counting in another hall with regard to another constituency and that after the counting of votes in the other constituency supporters of the 4th respondent came to the hall and created unruly scene. Another allegation is that on table Nos. that there was counting in another hall with regard to another constituency and that after the counting of votes in the other constituency supporters of the 4th respondent came to the hall and created unruly scene. Another allegation is that on table Nos. 12.15 and 20 petitioner's counting agents had found out wrong sorting of votes by the counting staff who had political leniency towards the Left Democratic Front to which the 4th respondent belonged. It is alleged that one Mr. Sivaraman who is only an attender started counting of ballot papers unauthorisedly when the sorting was only in its initial process and the petitioner's counting agents complained about it to the Counting Officer and due to the unauthorised counting his counting agent was not able to watch the counting properly. Petitioner reasonably believes that Sivaraman might have manipulated to include the votes marked in his favour to the compartment set apart to the 4th respondent. In Para.7 of the petition it is stated that petitioner's polling agents were purposely kept away from the counting tables by the unauthorised persons who have managed to enter into the counting hall at the instance of the 4th respondent and that with regard to table No. 9 the petitioner's counting agent had found out that one bundle of votes consisting of 50 votes which was counted as votes marked for the 4th respondent. was really consisting of more than 45 votes marked in his favour and that he made an oral complaint and that it was not properly considered by the 1st respondent. 5. Counsel for the petitioner submitted that the allegations in the petition can be established only when evidence is taken in the petition and as several irregularities have been highlighted in the petition the petitioner should be afforded opportunity to establish his case by adducing evidence. Counsel for the 4th respondent contended that sweeping allegations in the petition without any specific details cannot be the basis for making a roving enquiry for recounting. 6. Petitioner filed a petition before the Returning Officer for recount of the votes. In that petition he stated that he suspects that the counting was defective. It is stated in the petition that the votes cast for him have not been properly reckoned and therefore if a recounting is ordered there is every possibility of he being elected by a majority. In that petition he stated that he suspects that the counting was defective. It is stated in the petition that the votes cast for him have not been properly reckoned and therefore if a recounting is ordered there is every possibility of he being elected by a majority. The certified copy of the application for recount with the Returning Officer's order is marked as Annexure-H. 7. The very serious allegation that one bundle of votes consisting of 50 votes was counted as votes marked for the 4th respondent and it really consisted of more than 45 votes marked in favour of the petitioner and that he made an oral complaint lacks details with regard to the identity of the counting agent who detected the foul play. The above allegation inconspicuously absent in the petition for recount filed before the Returning Officer. This is a significant circumstance to hold that the allegation has been made without any basis. 8. In Para.8 of the Election Petition it is stated that though the petitioner and his agent made repeated oral complaints regarding several irregularities the Returning Officer did not take any effective steps to prevent it. The above allegation and the allegation that unauthorised persons who entered into the hall at the instance of the 4th respondent had covered all the counting tables by forcefully keeping the counting agents of the petitioner away from the tables are not mentioned in the petition for recounting filed before the Returning Officer. Not even the name of a single such person is stated in the Election Petition. 9. In Para.9 of the Election Petition it is stated that on tables Nos. 4.8.9.12.14.15 and 20 the petitioner and his counting agents cad found more than 1500 votes marked in favour of the petitioner were counted along with the votes marked in favour of the 4th respondent and that the petitioner is confident that if all the ballot papers are scrutinised and if they are properly counted again the excess votes seen to have been obtained by the 4th respondent will be wiped out and the petitioner secured majority of votes. The allegations of such serious magnitude do not find a place in the petition for recounting before the Returning Officer. 10. If the petitioner had any complaints regarding the lack of space in the counting hall. The allegations of such serious magnitude do not find a place in the petition for recounting before the Returning Officer. 10. If the petitioner had any complaints regarding the lack of space in the counting hall. he ought to have preferred a complaint in writing to the Returning Officer before the counting started. He could have requested the Returning Officer to stop the counting. As there were 13 candidates the presence of their counting agents cannot in anyway be curtailed by the Returning Officer. The allegation that most of the counting officers were drawn from the N.G.O. Union which openly sided with the Left Democratic Front is too vague to be accepted as no specific details are cited even with regard to a single such officer. Such a complaint is conspicuously absent in the Annexure-H petition. Though in Para.11 of the Election Petition it is stated that several times mistakes were committed by the counting assistants to the advantage of the 4th respondent and to the detriment of the petitioner no specific details about it are even faintly hinted in the petition. There was no difficulty for the petitioner to mention the names of those counting assistants who were responsible for the aforesaid irregularities. 11. Another allegation is that after the counting was completed it was discovered that the statement given by the presiding Officers in Form No.16 and the statement given by the Returning Officer in Form No. 20 did not tally in so far as polling booth Nos. 51.113. 26. 33. 27 and 54 are concerned. It is contended that the discrepancies pointed out in the above polling booths are patent from the facts that the first announcement made by the Returning Officer immediately after the counting is totally different from the figures in Form No. 20 statement and therefore it is necessary that these discrepancies have to be investigated by this Court. But such discrepancies even assumed to be true are not sufficient to tilt the balance in favour of the petitioner or to order a recount as they are of little consequence compared to the lead whereby the 4th respondent got elected. 12. Petitioner has no complaint at all that the ballot boxes were found tampered at any stage before counting began. 12. Petitioner has no complaint at all that the ballot boxes were found tampered at any stage before counting began. Before counting of votes candidates and agents are allowed to inspect the ballot boxes to enable them to satisfy that the boxes were in tact. There was no complaint at the time of counting of the votes with regard to any malpractice. In paragraph IS of the petition it is stated that the petitioner informed the Returning Officer that he wanted recount and that the latter directed him to file a written petition immediately. and his request for time to file a petition incorporating all material facts was turned down and hence he had no alternative but to present the petition (Annexure-H) immediately. In the petition (Annexure-H) the petitioner has no case that the Returning Officer did not grant him sufficient time to prepare the petition with all details. In the Annexure-H petition the basis for the recounting is stated to be the suspicion of the petitioner over the manner in which the counting was done. It is stated that the petitioner entertains doubts about the counting and that he believes that the counting was marred by several irregularities. As Annexure-H petition does not unfold any specific instances of irregularities during the counting of votes and as it is based on mere suspicion the Returning Officer was justified in rejecting it. 13. Details are lacking for the substantiation of the allegations in the Election Petition. As the petition does not contain any material facts and particulars attracting S.100(1)(d)(iii) of the Act; the mere allegations are hardly sufficient to order recount of the votes. All that has been stated in Annexure-H petition is that several votes meant for the petitioner were not properly reckoned in his favour. that the counting was defective and hence a recount should be ordered. That petition is vouched in very general terms. There was no compliance with the mandatory requirement of R.63(2) of the Conduct of the Election Rules. 1961 which provides that after the announcement of the result after counting. a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds en which he demands such recount. 1961 which provides that after the announcement of the result after counting. a candidate or in his absence his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds en which he demands such recount. A whimsical or bald statement of the candidate that he is not satisfied with the counting will not amount to a ground within the contemplation of R.63(2). 14. S.100(1)(d)(iii),101 and 102 of the Representation of the People Act. 1951 and R.93 of the Conduct of the Election Rules. 1961 implicitly give the Court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. As held in Behiram v. Jai Behari Lal (AIR 1975 SC 283 at 289) an order for recount should not be made lightly or as a matter of course. The court would be justified in ordering a recount or permitting inspection of the ballot papers only where all the material facts on which the allegations of irregularity or illegality in counting are pleaded adequately in the election petition and the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. As the allegations in the petition are not precise and as they are mostly general and vague in character based on suspicions and beliefs of the petitioner it cannot be said that they are sufficient to justify recount. Mere allegations that the petitioner suspects or believes that there has been improper reception. refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection. 15. S.83(1)(a) is mandatory and it requires that the petitioner should give a concise statement of the material facts which he relies. The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action. 15. S.83(1)(a) is mandatory and it requires that the petitioner should give a concise statement of the material facts which he relies. The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action. The purpose of the Section is to call upon the petitioner to give a full picture of the cause of action with such further information so as to make the opposite party to understand the case that he will have to meet. As the order of inspection cannot be granted as a matter of course having regard to the secrecy of the ballot papers. the court would be justified in granting an order of inspection only if the election petition contains statement of material facts on which the petitioner relies in support of his case and if the court is satisfied that in order to decide the dispute and to do complete justice between the parties such a course has to be adopted. In Ram Sewak v. H.K. Kidwai (AIR 1964 SC 1249 at 1252) it is held that an order of inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleat. Mere allegation that the petitioner suspects or believes that there has been an improper reception. refusal or rejection of votes will not be sufficient to support an order for inspection. 16. The Rules framed under the Representation of the People Act. 1951 set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer. It provides ample opportunity to the candidate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer. R.53 provides for the admission of only certain classes of persons to the place where the counting is arranged. R.54 provides that the Returning Officer shall allow candidates. their election agents and counting agents to be present at the time of counting of votes. R.55 deals with the procedure for scrutiny and opening of ballot boxes. Returning Officer is bound to satisfy himself that none of the ballot boxes has in fact been tampered with. R.54 provides that the Returning Officer shall allow candidates. their election agents and counting agents to be present at the time of counting of votes. R.55 deals with the procedure for scrutiny and opening of ballot boxes. Returning Officer is bound to satisfy himself that none of the ballot boxes has in fact been tampered with. Before any ballot box is opened at the counting table the Returning Officer must allow the counting agents present at that table to inspect the seal affixed thereon and to satisfy themselves that it is intact. If he finds any ballot box being tampered with. R.55 commands him not to count the ballot papers in that box and he has to follow the procedure prescribed in S.58. R.56(1) provides for the scrutiny and rejection of ballot papers. R.56(2) sets out detailed provisions relating to cases in which the Returning Officer shall reject a ballot paper. R.56(3) states that before rejecting any ballot paper under sub-rule 2. the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers. The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection. All the rejected ballot papers would be required to be put in one bundle. R.57 deals with the counting of votes. It provides that the valid ballot papers of each candidate and the rejected ballot papers shall be bundled separately and the several bundles made up into a separate packet which shall be sealed with the seals of the returning officer and of such of the candidates. their election agents or counting agents as may desire to affix their seals thereon. The Returning Officer has to make the entries in a result sheet in Form No. 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations. Clause.3 of R.57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers. R.60 stipulates that the counting should be continuous. R.63(1) provides that after the completion of the counting. the returning officer shall record in the result sheet in Form No. 20 the total number of votes polled by each candidate and announce the same. R.60 stipulates that the counting should be continuous. R.63(1) provides that after the completion of the counting. the returning officer shall record in the result sheet in Form No. 20 the total number of votes polled by each candidate and announce the same. As provided under R.63(2) a candidate or his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. The Returning Officer has to make a decision on the application and record his reasons in support of the decision. Thus it can be seen that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes. watching the proceedings of the Returning Officer. inspecting any rejected votes and to demand a recount. Thus it can be seen that a candidate who seeks to challenge an election on the ground that there was improper reception. refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened and the votes were counted. It is in the light of the provisions of S.83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity he had at the time of counting. of watching and of claiming a recount that the application for inspection must be considered. Bald allegations would not be sufficient for the court to order recount. Mere allegation that the petitioner is satisfied that on inspection and scrutiny of ballot papers he would be able to establish that there was wrong counting on account of improper reception. refusal or rejection of votes is wholly insufficient to justify a claim for inspection. 17. In this context it is useful to refer to a decision reported in Jagjit Singh v. Kartar Singh (AIR 1966 SC 773). It has been held as follows: "Vague or general allegations that valid vales were improperly rejected. or invalid votes were improperly accepted. would not serve the purpose which S.83(1)(a) has in mind. An application made for the inspection of ballot boxes mast give material facts which would enable the Tribunal to consider whether in the interests of justice. It has been held as follows: "Vague or general allegations that valid vales were improperly rejected. or invalid votes were improperly accepted. would not serve the purpose which S.83(1)(a) has in mind. An application made for the inspection of ballot boxes mast give material facts which would enable the Tribunal to consider whether in the interests of justice. the ballot boxes should be inspected or not. In dealing with this question. the importance of the secrecy of the ballot papers cannot be ignored. and it is 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." 18. As the petitioner had ample opportunity to examine the ballot papers before they were counted and as he and his election agent were aware of the precise nature of the objection raised with regard to each ballot paper there would be no difficulty for him to state concisely those material facts on which he relies in support of the election petition. As the procedure contemplated under the Conduct of the Election Rules. 1961 enables the petitioner to state specifically the irregularities committed in the counting of votes with necessary details and as that has not been done the court cannot be expected to make a roving enquiry. On going through the allegations in the petition which are very vague and general in character it would appear that the object of the petitioner in asking for inspection of the ballot papers is only to make a roving enquiry with a view to find out some material to support his case. Unless the petitioner makes out a proper case for inspection it would not at all be proper for the court to open the ballot boxes and allow a party to inspect the ballot papers and examine the validity or invalidity of the ballot papers contained in it. If such a course is freely adopted by the court it would definitely lead to the opening of the ballot boxes almost in every case and that would be highly inconsistent with the scheme of the statutory rules and with the object of the keeping of the ballot papers secret. 19. If such a course is freely adopted by the court it would definitely lead to the opening of the ballot boxes almost in every case and that would be highly inconsistent with the scheme of the statutory rules and with the object of the keeping of the ballot papers secret. 19. In conclusion it is appropriate to refer to the decision reported in Hart Ram v. Hira Singh (AIR 1984 SC 396) where it is held as follows: "It is now well settled by a long course of decisions of this Court that inspection of ballot papers and counterfoils should be allowed very sparingly and only when it is absolutely essential to determine the issue. This Court has further laid down that in the garb of seeking inspection the defeated candidates should not be allowed to make a roving inquiry in order to fish out materials to set aside the election". 20. As the Election Petition does not disclose sufficient grounds to order a recounting of the ballot papers. I find that it is only to be dismissed. The Election Petition is therefore dismissed. with costs. Petitioner shall pay cost Rs. 1500/- to the 4th respondent.