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.SUPREME COURT OF INDIA
D.A. DESAI AND A.P. SEN, JJ.
Km. Shradha Devi, Appellant
Versus
Krishna Chandra Pant and others, Respondents.
Civil Appeal No. 277 of 1980
Decided on 26-10-1982.
Advocates appeared
Mr. A. P. S. Chauhan, Mr. C. K. Ratnaparkhi and Mr. D. P. S. Chauhan, Advocates, for Appellant; Mr. A. N. Sen, Sr. Advocate, Mr. C. P. Lal, Advocate with him (for No. 1) and Miss. Kamlesh Bansal, Advocate (for No. 16), for Respondents.
* Election Petn. No. 2 of 1978, D/- 11-12-1979 (All.).
– when the petition is for relief of scrutiny and recount on the allegations of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of Valid votes which is covered by the board spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. Low does not require that while giving proof of prima facie error in counting each head of the error must be tested by only sample examination of some of the ballot papers which answer the error and then into consideration only those ballot papers and for believing that there has been a mistake on the part of the Returning Officer, as held in Shardha Devi v. Krishna Chandra Pant, AIR 1982 SC 1569.
– it is a matter of common knowledge that elections in our country are fought on the basis of symbols. It must but logically follow as a necessary conoffary that the Symbols Order is an order made under the Act. Any other view would be destructive of the very fabric of our system of holding parliamentary and assembly constituency elections in the country of the basis of adult suffrage, as held in Roop Lal Sethi v. Nachhatar Singh, AIR 1982 SC 1569.
– the High Court has power to direct the striking out the certain paragraphs of the election petition, provided a finding is reached to the effect that such averments made are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the election or that it will constitute an abuse of the process of the court, as held in Roop Lal Sethi v. Nachhattar Singh, AIR 1982 SC 1569.
– when a person is for relief of scrutiny and recount on the allegations of miscount, the petitioner has to offer prima facie proof of errors in counting and, if errors in counting are prima facie established recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the corelation is established, the approach would work havoc in a Parliamentary constituency where more than often it is found 10000 or more votes are being rejected as invalid law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then taken into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True it is that “a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer”, as held in Shardha Devi v. Krishna Chandra, AIR 1982 SC 1569.
– the mark or identification should be such as to unerringly reveal the identity of the voter and the evidence of prior arrangement connecting the mark must be made available, as held in Shardha Devi v. Krishna Chandra, AIR 1982 SC 1569.
–When a petition is for relief of scrutiny and recount on the allegations of miscount, the petitioner has to offer prima facie proof of errors in counting and, if errors in counting are prima facie established recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by brood spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established, the approach would work havoc in a Parliamentary constituency where more than often it is found 10000 or more votes are being rejected as invalid law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then taken into consideration only those ballot papers and not others. This is not the area of inquiry in a petition for relief of recount on the ground of miscount. True it is that “a recount is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer”, as held in Shardha Devi v. Krishna Chandra, AIR 1982 SC 1569.
JUDGMENT
DESAI, J.:— An unsuccessful candidate for election to Council of State (Rajya Sabha) at the election held on March 28, 1979, is the appellant. At the biennial election for electing members to Council of States from the constituency of elected members of the Uttar Pradesh Legislative Assembly, 19 candidates including the appellant and the 1st respondent were duly nominated as candidates. 11 members were to be elected. Election was to be held as mandated by Clause (4) of Article 80 of the Constitution in accordance with the system of proportional representation by means of the single transferable vote. After the poll was closed according to the time prescribed by the Election Commission under Section 56 of the Representation of the People Act, 1951 (1951 Act for short), the Returning Officer, R. W. 4 Satya Priya Singh commenced counting of votes. As the election was to be in accordance with the system of proportional representation by means of the single transfarable vote, the Returning Officer as required by Rule 76 of the Conduct of Election Rules, 1961 (Rules for short), proceeded to ascertain the quota. In all 421 members exercised the franchise. Eleven ballot papers were rejected by the Returning Officer as invalid. Accordingly the quota was worked out at the value of 3417. Respondents 2 to 11 were declared elected as each of them secured the value of ballot papers greater than the quota in the course of counting. As the counting proceeded further the contest was between the election petitioner (appellant) and the 1st respondent and the 1st respondent was declared elected in the 14th count. Once all the 11 vacancies were filled in, counting was closed.
2. Petitioner filed an election petition under Section 81 of the 1951 Act in the High Court of Judicature (Lucknow Bench), Lucknow. The petition was for scrutiny and recount on the allegation of miscount and directed against the 1st respondent because be was declared elected to the last vacancy.
3. Petitioner alleged that the result of the election in so far as it concerns the returned candidate - 1st respondent - has been materially affected by the improper rejection of valid votes by wrongly declaring them invalid as well as by improper reception of what otherwise would have been the invalid 1572 votes if the Returning Officer had been consistent in his approach and, therefore, the election of the returned candidate not only should be declared void but in his place by a proper computation of votes the petitioner should be declared elected to the 11th vacancy. The petition primarily being for relief of scrutiny and recount on the allegation of miscount it was necessary to allege and offer prima facie proof of the possible errors in the counting which, if satisfactorily established, would enable the Court to direct a recount. It may be stated that no prima facie proof has been offered of the improper reception of an otherwise invalid vote in favour of the 1st respondent and that allegation may be excluded from further consideration. Petitioner alleged that there has been an improper rejection of the valid votes cast in her favour and that has materially affected the result of the election. Petitioner states that even though it was obligatory upon the Returning Officer to show all the ballot papers which he rejected as invalid to the candidates and/or their counting agents, he only showed four out of the eleven ballot papers held invalid by him and did not show the rest of them. To the question as to why votes were rejected as, invalid it is alleged that the Returning Officer informed the counting agents that there were marks and cuttings in the ballot papers which may possibly identify the voters and, therefore, such ballot papers have been rejected on the ground set out in Rule 73 (2) (d) of the Rules. Four specific allegations of error, improper rejection of votes otherwise valid necessitating scrutiny and recount are set out in paragraphs 14, 15, 17 and 18 of the el
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