Kripa Shankar Chatterjee v. Guru Das Chatterjee — 1992 DIGILAW 493 (PAT)

ORDER ON THE PETITION DATED 7.1.1991 FOR INSPECTION OF THE BALLOT PAPERS R.N. SAHAY, J. 1. The election petitioner has challenged the election of the elected candidate Sri. Guru Das Chatterjee, interalia on the ground of mis-counting of votes and has claimed declaration in his favour. The petitioner claims that be had secured majority of valid votes and if recounting is ordered it will be established that serious irregularities were committed at the time of counting and a large number of valid votes cast in favour of the petitioner was rejected or counted in favour of the respondent no.1 and large number of invalid votes counted in favour of the respondent no. 1 2. The petitioner has stated in detail particularly in paragraph 30 (a) of the petition about illegal rejection of about 1800/of his valid ballot papers and improper acceptance and counting of 3100/-in valid ballot papers in favour of Respondent no. 1. The allegation in paragraph 30 (c) of the election petition is also relevant. Respondent no. 12 in his recriminatory petition under section 97 of the Representation of the People Act, 1951 has alleged commission of gross illegalities and irregularities in counting of ballot papers in the impugned election. The election petitioner further relies on the statement of the respondent no. 1 himself in his written statement. 3. The contention of counsel for the election petitioner is that it is common case of the parties that various illegalities and irregularities were committed in counting of the ballot papers. It is therefore essential that inspection of ballot papers be allowed. In paragraph 9 of the petition for inspection ballot papers, it has been stated that election-petitioner was not present at the time of counting as he was ill but his election agent was present and had opportunity to witness the various irregularities the details of which are mentioned in the election petition in support of the allegation made in the election petition a large number of the witnesses have been examined. The learned counsel for the petitioner referred to the evidence of these witnesses and strenuously argued that there is strong prima facie case fop inspection of ballot papers. 4. Respondent no.1 has denied the allegation or the election petitioner in the election petition and petition for inspection of ballot papers respondent no.1 won the election by a comfortable margin of 1450 votes. 4. Respondent no.1 has denied the allegation or the election petitioner in the election petition and petition for inspection of ballot papers respondent no.1 won the election by a comfortable margin of 1450 votes. His counsel submitted inspection of ballot papers cannot be-allowed in the facts and circumstances of the case and petition has been filed only to harass the respondent. His counsel submitted that the petitioner wants inspection to be ordered on the basis of vague and false evidence adduced on behalf of the petitioner. The allegations made in the election petition are purely imaginary. The allegations are not supported by any documents or satisfactory oral evidence. The entire allegation is based on the information derived from the election agent and counting agents and other candidates. The election petitioner has admitted that he was not present at the time of counting and as regards his election agent B.B. Das. it has been stated that he was too not aware of irregularities and illegalities committed during counting of vote). 5. The learned counsel for the respondent no. 1 has referred to the evidence of P.W. 15 and stated there were 20 agents from the side of the election petitioner but they did not file any complaint before Returning Officer about any irregularities having been committed. It has been submitted that counting agents of the election petitioner in their evidence were unable to state about the voting figures of any booth. The witnesses admitted that final rejection or acceptance of ballot papers was being done at the central table on which the only election agent of the petitioner were sitting all through. The election agent of the petitioner Sri. B.B. Das has been examined as P.W. 17. He has stated as follows :- "I have seen the section petition. The petitioner has correctly written that his election agent Mr. B.B. Das was not aware of all these irregularities and illegalities". The Election agent of the petitioner B.B. Das is practicing lawyer in Dhanbad Civil Court. The learned counsel for the respondent no.1 has submitted that the only document which was filed on behalf of the election-petitioner in respect of the allegations is Ext - 3 which is a petition filed by the election agent. In the said petition Ext-3 no specific allegation has been made as regards the counting. The learned counsel for the respondent no.1 has submitted that the only document which was filed on behalf of the election-petitioner in respect of the allegations is Ext - 3 which is a petition filed by the election agent. In the said petition Ext-3 no specific allegation has been made as regards the counting. It may be stated that the petitioner has examined four witnesses who were themselves candidates in the election. They are P.W.2, 11, 15 and 16 who were present at the time of counting. The evidence of there witnesses is vague and none has given any particulars of irregularities. Thus according to the contention of the learned counsel fop the respondents these material witnesses have not supported the election petition that they were present at the time of central table at the time of counting, 6. It is well settled by, the authorities cited at the bar that re-counting of ballot papers cannot be ordered unless the petition contains material facts and adequate statement of material facts on which the petitioner relies and such allegations are prima facie established on the basis of the evidence adduced and the court is satisfied that recount is necessary to decide the dispute and to meet the ends of justice. The petitioner must lay proper foundation indicating the precise material on the basis -of which it could be urged by him with some substance that there has been either improper reception of valid votes in favour of the elected candidate or improper rejection of valid votes cast in favour of the petitioner. 7. One of the earliest decision on the subject is the case of Ram Sewak Yadav Vs. Hussain Kamil Kidwai A.I.R. 1964 SC 1949. The Hon'ble Supreme Court laid down the guide lines as follows :- "An order for inspection way not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers, the court would be justified in granting an order for Inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot paper's is necessary. 8. In Case of Dr. 8. In Case of Dr. Jagjit Singh V. Gani Kartar Singh AIR 1966 SC 733 it was held that vague or general allegation that valid votes were improperly rejected or in valid votes Were improperly accepted would not serve the purpose which section 83(1) (a) has in mind and an application made for inspection of ballot boxes must give material facts which would enable the tribunal to consider whether in the interest of justice ballot boxes should be inspected or not. 9. The question of inspection and recount and Rule 83 of the Conduct of Elections Rules came up for consideration before the Supreme Court in the case of Bhabhi V. Sheo Govind AIR 1975 Supreme Court 2117. Fazal Ali, J, speaking for the court laid down six conditions which according to the learned judge are of imperative nature and must be satisfied before the court can order inspection of ballot papers in an election petition. Those conditions are:- 1. That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations : 2. That before inspection is allowed, the allegations made against the elected candidate most be clear and specific and must be supported by adequate statements of material facts:- 3. The court must be prima facie satisfied on the materials produced before the court regarding the truth of allegations made for a recourt. 5. That this court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties. 5. That the discretion conferred on the court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and 6. That on special facts of a given case sample inspection may be ordered to land further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials. 10. In. Pokai Haokip V. Rishang, AIR 1969 SC 663 , it was held by the Hon'ble Supreme Court that the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected. 11. 10. In. Pokai Haokip V. Rishang, AIR 1969 SC 663 , it was held by the Hon'ble Supreme Court that the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected. 11. In Kanhaiyalal V. Manalal AIR 1976 SC 1886 . It was held :- "Oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mounthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. The matter would have been different if there had been au immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers. An election dispute is not a prove feud between one individual and another. The whole constituency is intimately involved in such a dispute Shaky and wavering oral testimoney of handful of witnesses cannot still the dominant voice of the majority of an electorate". 12. On the principles formulated by the Hon'ble Supreme Court in the above mentioned decisions it has to be examined whether the election petitioner has discharged his burden by leading adequate and sufficient prima facie evidence. 13. The allegation in para-30 of the election petition bas been reiterated in petition for recount. It has been submitted that there was miscounting of votes and commission of various illegalities and irregularities in counting of the ballot papers. The petitioner alleges that about 1800/-ballot of the petitioner which bore stamp marking in his favour were illegalities rejected on flimsly ground that the arrow mark was not visible on the ballot papers. The petitioner has also given details of the rejected votes on different counting tables. The petitioner further alleges that about 3100/-ballot papers of respondent no. 1 on which marking was not done by the prescribed instrument were accepted as valid votes of the respondent no.1 and counted in his favour. 14. All the allegations have been denied in para 31 of the written statement of the respondent no.1. 15. The petitioner has no doubt led evidence in respect of the allegation. The question for consideration as to whether the evidence deserves to accept in the light of surrounding circumstances. 16. There is no documents to support the allegations. The petitioner according to his own case, was not present at the time of counting. 15. The petitioner has no doubt led evidence in respect of the allegation. The question for consideration as to whether the evidence deserves to accept in the light of surrounding circumstances. 16. There is no documents to support the allegations. The petitioner according to his own case, was not present at the time of counting. The petitioner in para-31 of the election petition, admits that he Was ill on the date of the counting. His election agent namely B. B. Das was not aware of all these irregularities and illegalities committed during the counting of the votes. There is no evidence nor any assertion that any oral or written objection was filed before the Returning Officer in respect of the so called irregularities and illegalities. There is no evidence that counting agent employed by the petitioner had noted down particulars of the ballot papers which were wrongly counted in favor of the election petitioner and particulars of valid votes of the petitioner rejected by the counting supervisors. It is, therefore difficult to reconcile as to how the election petitioner was able to furnish the details of the ballot papers counted or rejected. 17. Ext-3 (quoted below) is an application filed by B.B. Das election agent of the petitioner which was filed on 1.3.1990 at 4 a.m. and below it is note of Returning Officer rejecting the prayer for recount. " To The Returning Officer, 283 Nirsha, Sub :-Recounting of the votes polled in 283 Nirsha in all the booths. Respected sir, I have reason to believe that some mistake foul play in committing and dishonestly has been played by some of the counting table over which was verbely protested. I am sure that K.S. Chatterjee has won the Election and succeed more votes. 1, therefore, request that your goodself be pleased to order for fresh counting. Yours faithfully B. B. Das Election Agent K. S. Chaterjee 1.3.1970 (4 A.M.) Filed after announcement of the result. Hence rejected 1.3.90 S.D.O. Dhanbad. 18. It is apparent from the above application that the election agent had made some vague allegations and no specific allegation has been made in the said petition. The objection was filed after result was announced by the Returning Officer. There is no explanation as to any no written objection was filed on behalf of the petitioner, when the counting was in progress. 19. The objection was filed after result was announced by the Returning Officer. There is no explanation as to any no written objection was filed on behalf of the petitioner, when the counting was in progress. 19. In almost identical situation, In Kanak Vardhan Singhdeo V. Sri Bibekananda Meher AIR 1991 (Orissa) 231, the learned Election judge of Orissa High Court rejected the application for inspection of the ballot papers. 20. The learned Judge in para 21 of the report observed as follows : "But the undisputed fact remains that there is no document to support the petitioner's allegations that while the counting supervisor and his assistants were overruling each and every objection raised on behalf of the petitioner's counting agents on the counting tables and the counting was made for ten rounds but no application in writing has been made either by the candidate or by his election agent or any of the counting agents. It is further important to notice that even if the observer had the occasion to go round the counting hall as disclosed by the witnesses for respondent no.1, yet no complaint had been made to the said observer by either the petitioner or his election agent or any of his counting agents with regard to the alleged improper acceptance or rejection of the votes." The above quoted observation applies with full force in the facts and circumstances of the present case. 21. The learned counsel for the election petitioner argued with emphasis that the respondent no. 1 having admitted in, para 32 of the written statement that large number of the defective ballot papers were counted in favour of the election petitioner irregularities is admitted and so the election petitioner is entitled to recount without further evidence. The contention of the learned counsel is wholly unacceptable as the statement does not come within definition of the admission as the defined Section 17 of the Indian Evidence Act. The entire burden is Oil the election petitioner to satisfy the court by adequate and convincing evidence that conditions laid down by the Supreme Court for inspection are satisfied. Inspection of ballot papers cannot be ordered on vague and contradictory evidence as in the present case. 22. In the light of discussion made above I find and hold that the election petitioner has not been able to make out case for allowing the inspection of the ballot papers. Inspection of ballot papers cannot be ordered on vague and contradictory evidence as in the present case. 22. In the light of discussion made above I find and hold that the election petitioner has not been able to make out case for allowing the inspection of the ballot papers. The application appears to me to be frivolous and vexations and ought to be rejected. The petition for inspection of ballot papers is rejected. Petition rejected.