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SUPREME COURT OF INDIA
N.L. UNTWALIA AND S. MURTAZA FAZL ALI, JJ.
Bhabhi, Appellant
Versus
Sheo Govind and others, Respondents.
Civil Appeal No. 63 of 1975,
D/- 21-4-1975.
Advocates Appeared
M/s. J. P. Goyal, Pranab Chatterjee and G. S. Chatterjee, Advocates, for Appellant; M/s. R. K. Garg, S. C. Agrawala and V. J. Francis, Advocates of M/s. Ramamurthi and Co., for Respondent No, 1.
– as enumerated in Bhabhi v. Sheo Govind, AIR 1975 SC 2117:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should 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 specified and must be supported by adequate statement 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 recount.
(4) 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 enquiry with a view to fish materials for declaring the election to be void.
(5) 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.
–The Court was be justified in ordering a recount of ballot papers only where
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting and
(3) the Court 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, as held in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 = 1975 (Supp.) SCR 202. In the case of N. Narayanan v. S. Semmalai, AIR 1980 SC 206, relying on the principles deduced from the authorises as above and the evidence led in the case by the parties, the Supreme Court was satisfied that this was not a case in which a recount should have been ordered by the High Court.
–In fact, in an election appeal under Section 116A of the Act, the Supreme Court does not ordinarily interfere with the finding of fact reached by the High Court particularly when the High Court comes to a conclusion on appreciation of all material evidence placed before it. As a corollary, the Supreme Court would be slow to interfere with such findings of fact based on appraisal of evidence unless there is something radically wrong with the approach of the learned Judge trying the election petition, as held in S. Raghubir Singh Gill v. S. Gurchan Singh, AIR 1980 SC 1362. See also decision in Ramji Lal v. Ram Babu Maheshwari, AIR 1970 SC 2075; D. Gopala Reddy v. S. Bai Talpaliar 1972 (39) ELE 305 (SC); Sumitra Devi v. Sheo Shankar Prasad, AIR 1973 SC 215 = 1973 (2) SCR 920.
–Section 116C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of the appeal filed under the Act. Since the substance and principle embodied in Section 96(1) of the Code is not in consistent with anything in the Act, we may legitimately look for guidance to Section 96(1) and other provisions of the Code and also the general principles which govern the right of appeal thereunder.
–The Court was be justified in ordering a recount of ballot papers only where
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting and
(3) the Court 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, as held in Bhabhi v. Sheo Govind, AIR 1975 SC 2117 = 1975 (Supp.) SCR 202. In the case of N. Narayanan v. S. Semmalai, AIR 1980 SC 206, relying on the principles deduced from the authorises as above and the evidence led in the case by the parties, the Supreme Court was satisfied that this was not a case in which a recount should have been ordered by the High Court.
Judgment
FAZL ALI, J. :- By virtue of an order dated December 20, 1974 Banerji, J., of the Allahabad High Court who was designated as the Election Judge passed an order granting the application of the respondent No. 1 for a sample inspection of the ballet papers. The order directed that a sample inspection of 20 bundles of 50 ballot papers each of the votes counted in favour of the appellant may be taken out and examined along with the 5 bundles of the rejected ballot papers. It is against this order that the appellant has filed the present appeal by special leave and has assailed the order of the learned single Judge on the ground that the learned Judge has exercised his discretion illegally and improperly in allowing the sample inspection of the ballot papers without there being sufficient proof of the allegations made by the respondent in his petition for setting aside the election of the appellant.
2. The facts giving rise to the present appeal may be briefly summarised as follows :
3. The appellant was elected to the U.P. Legislative Assembly from 218, Mubarakpur Constituency in the District of Azamgarh,U. P.The last date of nomination for election to the said assembly was January 24, 1974. The date of scrutiny was January 25, 1974 and that of withdrawal January 28, 1974. The poll was held on February 26, 1974 and the counting of votes done on February 27, 1974. The result of thc election was declared on February 28, 1974. The respondent filed an election petition before the Election Judge of the Allahabad High Court some time in March 1974. The appellant secured 19,728 votes while the respondent No. 1 had secured 19,634 votes and thus the appellant defeated respondent No. 1 by a margin of 94 votes and was duly elected to the U.P. Legislative Assembly. In the petition filed by the respondent before the Allahabad High Court the respondent in paragraph 8 of the said petition made a large number of allegations regarding the improper reception and rejection of votes and regarding wrong arithmetical counting of votes and acceptance of votes which were void. The material facts with respect to the allegations were set out in paragraph 9 of the petition which broadly are as follows.
(1) That the election staff engaged in the work of counting was suffering from serious physical strain as they had to work without any rest on that day as a result of which there were a number of arithmetical mistakes in the counting of votes.
(2) That the staff had become drowsy and was actually dozing and could not efficiently discharge its function of counting the votes properly.
As regards the facts relating to improper rejection of valid ballot papers it is said that a large number of ballot papers in which valid votes had been marked for the petitioner (respondent No. 1) were declared invalid despite oral protests made by the counting agents of the respondent. Similarly a large number of ballot papers had distinct marks of stamp in the column of the petitioner near the symbol of cow and calf and yet they were improperly rejected by the counting staff on the ground that there were no distinct marks. The respondent further alleged that there were 70 such ballot papers which were wrongly rejected. It was also pleaded that a number of ballot papers which had a valid Vote for the petitioner were illegally rejected on the ground that there were some accidental marks made in the column of some other candidate which was not a mark of the stamp or a voting mark and the number of such ballot papers rejected was 50. Finally it was said that a number of ballot papers which carried valid votes for the petitioner were illegally rejected on the ground that there was no seal mark or there was no signature of the returning Officer on those ballot papers although it was far from the truth. Such were said to be the obvious mistakes in the rejection of the ballot papers and the counting of votes which formed the sheet-anchor of the case of the respondent in challenging
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