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2003(8) Supreme 386
SUPREME COURT OF INDIA
(From Madras High Court)
V.N. Khare, CJI., S.B. Sinha and AR. Lakshmanan, JJ.
M. Chinnasamy -Appellant
versus
K.C. Palanisamy and Ors. -Respondents
Civil Appeal No. 33 of 2003
Decided on 21-11-2003
Counsel for the Parties :
For the Appellant : M.N. Rao, Sr. Advocate, C. Paramasivam, S. Thananjayan, Rakesh K. Sharma, Advocates.
For the Respondents : K.K. Mani, Ms. Manika Pandey, Advocates, Atishi Dipankar, Advocate (NP).
Held : The law operating in the field is no longer res integra. Inspection of ballot papers can be ordered when in the facts and circumstances obtaining in the case, the Tribunal finds it necessary to so direct in the interest of justice. Discovery and inspection of documents with which the civil court is invested with power under the Code of Civil Procedure when trying a suit may be applied but such an order would not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers. Such an inspection may be ordered when 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; and
(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 papers is necessary. (Para 28)
The High Court has not arrived at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting. It is well-settled that prima facie case must be made out for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. (Para 46)
The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. (Para 47)
JUDGMENT
S.B. Sinha for himself and CJI.-To what extent an election tribunal should exercise its jurisdiction to direct inspection of the ballot papers and recounting of votes polled while determining an election petition in terms of the provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act , for the sake of brevity) is in question in this appeal which arises out of a judgment and order dated 07.11.2002 passed by the High Court of Judicature at Madras in Election Petition No. 7 of 2000.
Background facts :
2. An election took place for Karur Parliamentary Constituency (26) consisting of six assembly segments on 05.09.1999. Eleven candidates contested the said election. Total number of votes polled was 719705 and the appellant herein who is the returned candidate having the election symbol of two leaves secured 334407 votes whereas Respondent No. 1 herein (the election petitioner) who contested the said election on the election symbol of rising sun secured 331560 votes. The margin of votes between the returned candidate and the election petitioner was, thus, 2847.
3. It is also not in dispute that 16906 votes were rejected. The chief election agent of the election petitioner on or about 06.10.1999 lodged a complaint alleging irregularities in counting of votes. The said counting of votes took place on 6.10.1999 and the result thereof was declared at 5.10 A.M. on 7.10.1999.
4. The relevant portion of the said complaint reads thus:
"Today (6.10.1999) during counting of the votes in all the Six Segments of Karur parliamentary constituency about 15,000 votes polled in Rising Sun Symbol of the Candidate K.C. Palanisamy has been rejected in violation of the Act and Rules without reason by the Assistant Returning Officers. The oral and written objections raised by the Agents were not accepted. So our candidate winning prospect was prevented.
In Election each and every vote is important and even one vote difference decides the result. Therefore, I kindly request you to recount the rejected invalid votes and thereafter election result may be declared."
5. It is also not dispute that upon holding an inquiry in relation to the aforementioned complaint (Ex.P9), the returning officer who examined himself as CW1 rejected the same holding:
"...The Assistant Returning Officer who were incharge of the Counting of Ballot Papers in all the 6 Assembly Segments comprised in 26 Karur Parliamentary Constituency were enquired about the issue raised by the Objection Petitioner. All of them have reported that they have decided the rejected Ballot Papers only in the presence of the Counting Agents deputed by the contesting Candidates for this purpose, and the decisions were taken only in the presence of such counting Agents and with their concurrence. No one raised any objection to the decision taken by Assistant Returning Officers in the matter of rejection of Ballot Papers. In fact, all of them had appreciated the fairness in the rejection of Ballot Papers by the Assistant Returning Officers. The Assistant Returning officers have stated that no Objection Petition was presented to them at the time of Counting over the Rejection of Ballot Papers. Even the Poll Observers deputed by the Election Commission had been campaigning in the Counting Centres and no Objections were made to them over this issue. The Objections were analysed to find out whether they are substantiated. It is brought to my notice by the Assistance Returning Officers that most of the Ballot Papers were rejected on the ground "No Marking" and "Multiple Voting". The analysis of the votes polled and Votes rejected during the present Poll and the previous polls reveals that the total rejected votes during the previous poll was 25,292 as against the total valid votes of 6,49880 whereas the Ballot Papers rejected in the present election is only 16.906 as against the total valid Votes of 7,19,705.
I find no reason to Order Recounting of rejected Ballot Papers a
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