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2000(7) Supreme 57
SUPREME COURT OF INDIA
(From Madras High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & K.G. Balakrishnan, JJ.
Vadivelu -Appellant
versus
Sundaram & Ors. -Respondents
Civil Appeal No. 6543 of 1999
Decided on 10-10-2000
Counsel for the Parties :
For the Appellant : Ms. Indu Malhotra and Ms. Madhu Sweta, Advocates.
For the Respondents : R. Sundaravardan, Sr. Advocate, Hari Shankar K., Advocate.
(ii) Election-Petition for recount before Election Court-When permissible-Condition precedent to order recount.
Re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties. (Para 16)
(iii) Tamil Nadu Panchayat (Elections) Rules, 1995-Rule 63 read with Rule 51-Rejection of ballot paper-Postal ballot paper containing signature of Presiding Officer but not distinguishing mark of polling station-Rejection cannot be made-In order to reject postal ballot paper it should lack both signature of Presiding Officer as well as distinguishing mark of polling station.
Held : The rejected ballot paper did not contain the signature of the Presiding Officer, though it contained the distinguishing mark of the polling station. Rule 63(1)(h) dealing with rejection of ballot papers provides that in order to reject ballot papers it should be one not bearing "both the distinguishing make and/or the signature of the Presiding Officer". Therefore, a harmonious construction of Rule 51 and 63 would show that in order to reject a postal ballot paper, the same should have lacked both the features, viz., the signature of the Presiding Officer as well as the distinguishing mark of the polling station. In the instantcase, it is evident that due to some mistake or inadvertence, the Presiding Officer did not sign these ballot papers. The absence of signatures under the circumstances could not invalidate the ballot paper, which bore the distinguishing mark of the polling station. Therefore, the Commissioner went wrong in declaring these votes as invalid. (Para 25)
(iv) Tamil Nadu Panchayat (Elections) Rules, 1995-Rule 66-Application for recount-Point of time to file-Application should be made before declaration of result of election, but after completion of counting, when such result is entered in Part II of Form 20-Application for recount made after declaration of result, rightly rejected by Returning Officer. (Paras 19, 20 & 21)
JUDGMENT
Balakrishnan, J.-The appellant contested the election for the post of President of Vannavalkudi Village Panchayat, Pudukkottai District in Tamil Nadu. The respondents Nos. 1, 2 and 3 were also the candidates for the same election. The polling took place on 12.10.96 and the votes were counted on 14.10.96. The 1st respondent, Sundaram secured 1011 votes and the appellant Vadivelu secured 1010 votes and the 1st respondent was declared elected. The other respondents had secured only lesser number of votes. The appellant filed an Election Petition under Rule 122 of the Tamil Nadu Panchayats (Elections) Rules 1995 before the District Judge, Pudukkottai, challenging the election of the 1st respondent. In the Election Petition, the appellant contended that certain irregularities were committed while the counting of votes was made. According to the appellant, the names of the dead persons were not deleted from the electoral roll and the first respondent took advantage of this, and despite the objection raised by the agents of the appellant, impersonation had taken place at the time of polling. The appellant also alleged that at the time of counting, a number of valid votes polled in favour of the appellant were treated as invalid by the Returning Officer and though the appellant s agents raised objection, the Returning Officer did not pay heed to it. The appellant further alleged that the counting officers had no knowledge as to which was valid vote and which was invalid one. The counting was done in a hasty manner and the agents of the appellant were not allowed to closely peruse the ballot papers. Certain ballot papers contained thumb impression, but they were rejected as invalid votes. The appellant filed a petition before the Returning Officer for recounting of votes, but that prayer was not allowed and on the above grounds, the appellant filed Election Petition for setting aside the election of the 1st respondent.
2. The 1st respondent filed counter affidavit denying the allegations in the Election Petition. The 1st respondent contended that the allegations in the Election Petition are vague and insufficient to set aside the election. He contended that no material particulars are furnished in the Election Petition and only bald allegations have been made and, therefore, the Election Petition was liable to be dismissed. The 1st respondent also alleged that the appellant had not given any particulars regarding inclusion of names of dead persons in the electoral roll. According to the 1st respondent, there was no irregularity or illegality in the counting of votes.
3. Four witnesses were examined on the side of the appellant. On the respondent s side, RW 1 and RW 2 were examined. The Election Tribunal held that no details were available as to how many votes were secured by the appellant-Election Petitioner and the 1st respondent after the first round of counting and that the appellant had filed an application for recount before the Returning Officer. Therefore, the Election Tribunal ordered re-count of votes and an Advocate-Commissioner was appointed for recounting of votes and he submitted a detailed commission report. On re-count made by the commissioner, the appellant had secured 1002 votes and the 1st respondent, Sundaram, had secured 975 votes. Based on the report of the Commissioner, the Election Tribunal declared the appellant-Vadivelu as the person elected as President of the District Panchayat and the Election Petition was accordingly allowed.
4. Aggrieved by the order of the Election Tribunal, the 1st respondent, Sundaram, filed a Revision Petition before the Hon ble High Court, Madras under Article 227 of the Constitution of India. The learned Single Judge held that the Election Tribunal was not justified in ordering the recount of votes as the appellant had not made out a prima facie ground for recounting. The learned Single Judge held that the Election Petition is bereft of any material facts and only vague allegat
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