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2001(1) Supreme 574
SUPREME COURT OF INDIA
(From Kerala High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Shivaraj V. Patil, JJ.
V.S. Achuthanandan -Appellant
versus
P.J. Francis & Anr. -Respondents
Civil Appeal No. 4681 of 2000
Decided on 31-1-2001
Counsel for the Parties :
For the Appellant : Dr. A.M. Singhvi and K. Sudhakaran, Sr. Advocates, Ms. Malini Poduval, P.K. Bansal, Ms. Lan Singlu Rongmei, Advocates.
For the Respondents : K. Rama Kumar, Roy Abraham, Himinder Lal, Advocates.
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. 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. 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 Section 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. 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. 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. 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. (Para 13)
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. (Para 14)
In the instant case 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 circumstances of the case is nothing beyond a wishful thinking of the petitioner. What was needed was proof of prima facie case of availability of good grounds wherein the election petitioner/appellant has failed. 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. (Paras 11, 15 & 16)
JUDGMENT
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
2. 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.
3. 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 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 v. P.J. Francis & Anr.1, 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 appe
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