Back
2002(2) Supreme 164
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
M.B. Shah and B.N. Agrawal, JJ.
Mahendra Pal -Appellant
versus
Shri Ram Dass Malanger & Ors. -Respondents
Civil Appeal No. 3993 of 2001
Decided on 1-3-2002
Counsel for the Parties :
For the Appellant : E.C. Agrawala, Rishi Agrawala, Mahesh Agarwal, Alok Agarwal, Ashwini Kumar and Vivek Yadav, Advocates.
For the Respondents : Satya Pal Jain, Sr. Advocate and Randhir Singh Jain, Advocates.
Held : From the aforesaid evidence, it cannot be held that there was any irregularity or illegality in counting of votes. The appellant has not even stated in his deposition that eight ballot papers were illegally inserted at the time of counting of votes. It is for the appellant to establish his case of irregularities or illegalities in counting of votes. If there is no evidence, in our view, the High Court rightly rejected the application for recounting. However, learned counsel for the appellant submitted that as there was discrepancy of eight ballot papers issued as per form 16-A and votes polled, it should be held that this was a fit case for recounting, particularly in the present case where difference of votes secured by the appellant and respondent was only by three votes. In our view, this submission cannot be accepted. Section 100(1)(d)(iii) of the Representation of the People Act, 1951 inter alia provides that in such cases petitioner has no establish-
(a) election has been materially affected;
(b) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void.
From the evidence on record, there is nothing even to suggest that there was reception of any invalid or void vote. No foundation or evidence is led by the appellant that there was improper reception, refusal or rejection of any vote not there is any submission made by him that any vote which was void was taken into consideration in favour of the respondent. (Paras 8 to 11)
Held after discussing case law : In view of the aforesaid discussion, as the appellant has not led any evidence or laid foundation stating that there was improper reception of vote in favour of the respondent or improper rejection of any vote which were in his favour, and that he has not raised any objection at the time of counting of votes on the basis of so-called excess of 8 ballot papers, the High Court rightly refused to re-counting of votes. The discrepancy of 8 ballot papers could be attributed to accidental slip or clerical or arithmetical mistakes which might have been committed at the time of preparation of the statements in Forms 16 and 20. In the result, the impugned order passed by the High Court does not call for interference in this appeal. The appeal is, therefore, dismissed with costs throughout. (Paras 14 and 15)
JUDGMENT
Shah, J.-This appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") is filed against the final judgment and order dated 4.5.2001 passed by the High Court of Himachal Pradesh at Shimla in Election Petition No. 1 of 1998.
2. The election petition was filed by the appellant for setting aside the election of respondent No. 1. It is submitted that the appellant contested the election as a candidate sponsored by the Indian National Congress while respondent No. 1 contested the election as candidate sponsored by the Bhartiya Janta Party. Appellant secured 11,657 votes and respondent No. 1 secured 11,660 votes. Therefore, respondent No. 1 was declared elected by a margin of three votes only. It was alleged that the said election result was vitiated because of improper reception of invalid votes in favour of respondent No. 1 and improper rejection of valid votes in favour of appellant. It was also contended that many irregularities were committed during the course of counting which had materially affected the result of election insofar as the returned candidate is concerned. It was pointed out that total number of ballot papers which were shown to have been distributed were 35310, but after counting the votes, ballot papers as per Form 20-A were shown to be 35318, which indicated that eight votes which had been counted in excess had been illegally counted in favour of the returned candidate.
3. Firstly it is to be stated that election petition filed by the appellant was rejected on preliminary issue namely - election petition lacks in material facts and particulars and do not furnish a cause of action, as alleged. That order was challenged before this Court in Civil Appeal No. 4085 of 1998 and this Court allowed the appeal by judgment and order dated 27.10.1999 {reported as Mahendra Pal v. Ram Dass Malanger and Ors., [(2000) 1 SCC 261]}, by holding that election petition did contain an adequate statement of material facts on which the allegations of irregularities and illegalities in counting were founded. The Court, therefore, directed the designated Judge to decide the election petition afresh on merits expeditiously.
4. Learned counsel for the appellant relied upon the observations of this Court in said appeal [in paragraphs 30 and 31] and contended that the High Court ought to have granted application for recount of the votes. The said observations read thus :-
"30. In the present case, it is not disputed, as indeed it cannot be, that in Form 20-A, Ex.P-2, it is recorded that the total number of votes found in the ballot boxes of 82 polling stations pertaining to this constituency were 35,310 whereas a perusal of the statement of "roundwise detailed result of counting", certified copy whereof is Ex.P-3, records that the total number of valid and rejected votes counted for the purpose of declaring the result were 35,318. A difference of 8 votes had been projected in Annexure P2 and Annexure P3. The margin of difference between the votes polled by the election petitioner and the returned candidate, in the present case, was only 3 votes. Unless a satisfactory explanation was furnished during the trial about the discrepancy, there would be need to inspect the ballot papers to clarify doubts regarding the excess counting of 8 votes, allegedly in favour of the returned candidate. This was also necessary to dispel doubts about the allegations of irregularity in counting. Had the Returning Officer, instead of rejecting the application for re-count made a test check, soon after the declaration of result, he could have silenced the scepticism and removed all doubts but since that was not done, the learned Designated Judge ought to have considered the matter in its correct perspective.
31. Indeed, re-count of ballot papers cannot be ordered just for the asking but it is equally well settled that while maintenance of secrecy of ballot is sacrosanct, maintenance of purity of election
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
