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SUPREME COURT OF INDIA
17th January, 1964
P.B. GAJENDRAGADKAR, K.N. WANCHOO, K.C. DAS GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.
Ram Sewak Yadav, Appellant
Versus
Hussain Kamil Kidwai and others, Respondents.
Civil Appeal No. 1064 of 1963.
Advocates Appeared
Mr. N. C. Chatterjeee, Senior Advocate, (Mr. J. P. Goyal, Advocate, with him), for Appellant; Mr. S. P. Sinha, Senior Advocate, (Mr. S. Shaukat Hussain, Advocate, with him), for Respondent No. 1.
– the application for inspection of ballot papers must be considered on the light of the provisions contained in sub-section (1) of Section 83 – Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249. An order for inspect of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. A mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order of inspection. Vague or general allegation that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the propose of Section 83(1)(a). It may be that in some case the ends of justice would make it necessary to allow the party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection to votes tendered by voters at any given election; but in considering the requirements of justice care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate’s election is void – Jagit Singh v. Giani Kartar Singh, AIR 1966 SC 733; Jitender Bahadur Singh v. Krishan Bahadur, AIR 1970 SC 276. Court must be satisfied that inspection is necessary to do complete justice.
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and 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 must 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 the allegation made for a record.
(4) That the 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 material, for declaring the election to be void, and
(6) That on the special facts of a given case sample inspection may be ordered to lend 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.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper– Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 = 1964(6) SCR 238; Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773; Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276= 1970(1) SCR 852; Sumitra Prasad Yadav v. Seo Shankar Prasad, AIR 1973 SC 215 = 1973(2) SCR 920; Bhabhi v. Sheo Govind, AIR 1975 SC 2117.
– (1) That the petition for setting aside an election contains adequate statement of the material facts on which the petitioner relies in support of his case, and (2) the court 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 as held in Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249; Dr. Jagit Singh v. Giani Kartar Singh, AIR 1966 SC 773. A mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes is not sufficient to support an order for inspection.
– since the pronouncement of the Supreme Court in Ram Sewak Yadav v. Hussain Kamal Kidwai, AIR 1964 SC 1249 = 1964(6) SCR 238, it is settled law that Sections 100(1)(d)(iii) 101, 102 of the Act and Rule 93 of the conduct of Election Rules, implicitly give the court trying an election petition the power to order a recount or production of the ballot papers and permit their inspection by the parties. Since an order for a recount touches upon the secrecy of the ballot, it should not be lightly or as a matter of course. Although no caste iron rule of universal application can be or has been laid down, yet, from a beadroll of the decisions of the Supreme Court, as held in Beliram Bhalaik v. Jai Behari Lal Khachi, AIR 1975 SC 283, two broad guidelines are discernible; that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. See decisions in Dr. Jagit Singh v. Giani Kartar Singh, AIR 1966 SC 773; Jitender Bahahdur Singh v. Krishna Behari , AIR 1973 SC 276 = 1970(1) SCR 852; Sumitra Devi v. Sheo Shankar Prasad Yadav, AIR 1975 SC 215. In the case of Beliram, AIR 1975 SC 283 (Supra), the allegations of irregularities in counting appearing in the petition stem from such a “sure” belief turned “unsure”.
Judgment
SHAH, J. : At the general elections held in February 1962, five candidates contested the election to the House of the People from the Barabanki single-member constituency. The appellant Ram Sweak Yadav - who will be referred to as "Yadav" - was at the counting of votes found to have secured to highest number of votes and he was declared elected. Hussain Kamil Kidwai - hereinafter called "Kidwai" - who was one of the candidates at the election submitted a petition on April 6, 1962 to the Election Commission for an order declaring the election of Yadav void and for an order that he (Kidwai) be declared duly elected. The Election Tribunal, Lucknow, to which the petition was referred for trial dismissed the petition. In appeal to the High Court of Allahabad the order passed by the Election Tribunal was reversed and the proceedings were remanded for trial with a direction, among others, that the tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers. With special leave, Yadav has appealed against the order of the High Court.
2. The principal grounds set by Kidwai in support of this petition were -
1. that there had been improper reception, refusal and rejection of votes at the time of counting, and in consequence thereof the election was materially affected ;
2. that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20 ;
3. that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected ;
4. that at the polling station No. 29, Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit, the polling officers did not give ballot papers to the voters;
5. that on counting of votes of Bhitauli Assembly Unit continued till 8-30 p.m. in insufficient light notwithstanding the protest lodged by the petitioner; and
6. that on a true count he (Kidwai) would have received a majority of valid votes and that he was entitled to be declared duly elected.
These allegations were denied by Yadav.
3. At the trial before the Tribunal the parties led no oral evidence. In respect of the pleas (3), (4) and (5) the burden of proof lay upon Kidwai and as no evidence was led to substantiate the same, those pleas failed. Again in the view of the Tribunal, Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies between the original and the certified copies of Forms Nos. 16 and 20 and as the original forms were not called for by Kidwai his second ground must also fail. Kidwai claimed that he would be able to establish his case on pleas (1) and (6) from the ballot papers and submitted that an order for inspection of the ballot papers be made and that he be permitted to show from the ballot papers that returning officer had improperly received, refused or rejected the votes, and that on a true count he would get the largest number of valid votes. The Tribunal rejected the application for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interests of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in reception, refusal or rejection of votes at the time of counting, and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for from the returning officer and were before the Tribunal, that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing.
4. The only question which falls to be determined in this appeal is whether the election Tribunal erred in declining t
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