Important point
An order for recounting cannot be made as a matter of course. Unless the election petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner, a recount normally cannot be ordered.

Headnote:Bombay Provincial Municipal Corporations Act, 1949—Section 16 rw/s 403—Election petition—Recounting of votes—Order for recounting cannot be made as a matter of course—Allegations that scrutiny and counting of votes were not according to the procedure laid down in the Municipal Corporation Act—Allegations that votes validity cast in favour of election petitioner were wrongly rejected and votes which were really invalid were accepted as valid in the case of the winning candidate—Commissioner of Pune Municipality had announced a prize for the Returning Officer who finished the counting first and announced the result—Election petitioner contended that the whole process of counting was hasty and it was undertaken without adequate care and this has vitiated the result of the election—Prayer for an order directing a fresh scrutiny and recounting of votes—There was no material available in the case which would suggest that announcement of prize by the Commissioner had by itself resulted in any irregularity in the process of counting—Whether there was any irregularity in counting that would justify an order for recount—(No)—Election Tribunal had not considered whether specific and concrete material has been made available, for it to exercise its jurisdiction to order a recount—High Court had not applied its mind adequately to the question.
       Held : It is seen from the election petition that the allegations are to the effect that there was hurry in the process of segregation of votes by colour, in the process of identifying the votes secured by each candidate and in the matter of identifying the invalid votes. The election petitioner had a case that after the counting and before the result was declared, she had made an application before the Returning Officer praying for a recount of the invalid votes. It must be noted that the prayer in that application was only for recounting of the invalid votes and not for a general recount. Though no doubt in the pleading of the returning officer it was admitted that an application in that behalf had been filed and it was asserted that the said application was rejected leading to the inference that the election petitioner had in fact made an application before the results were declared, it has to be noted that the election petitioner did not cite or seek production of the said petition filed by her before the results were declared. In our view, the election petitioner ought to have cited the said document so as to establish her case regarding the specific allegations she had made contemporaneously with the conclusion of the process of counting. Except generally stating that the counting process was hurried, that while one person was engaged in stacking 25 ballot papers as secured by each candidate, the others were segregating the votes secured by each candidate and it was difficult for the one agent present at the table to keep an eye on everything simultaneously, nothing specific has been established regarding irregularity in the process that was undertaken. It is one thing to say that it is doubtful whether the bundle of votes polled by a candidate which is supposed to contain 25 ballots might not have contained 25 ballot papers and another thing to establish that, that is the case. Same is the position regarding the segregation of the votes secured by each of the candidates. The election petitioner admitted that 40 bundles were given to each table for counting, that ballot papers were separated as per symbols and counted as early as possible. The bundles of 25 ballot papers were again counted before the main counting officer. She has further admitted that it was true that all invalid ballot papers were shown to all before putting them in the box kept for invalid ballot papers. She has also admitted that during the counting procedure (not after the counting was over) she did not make any written complaint and that she had given only one written complaint on the point that each bundle was made wrongly. PW2, one of the agents of the petitioner has stated that he cannot say whether each bundle contained 25 ballot papers. He was attentive at the time of making bundles. It was true that each bundle containing 25 ballot papers was opened one by one and the same were put in separate boxes. Invalid ballot papers were kept aside after showing the same to the representatives. After separation of ballot papers of each of the candidates the same were prepared in bundles each containing 25 ballot papers. He could not say whether each bundle contained 25 ballot papers. He had not lodged any complaint orally or in writing from the time of starting of the counting till the declaration of the results. (Para 7)
       It was true that the votes polled in favour of the contesting candidates were separated. It was not true that there was no reason to complain about the counting as it was done according to the rules and in a smooth manner. The separating was done after showing the ballot papers to the representatives of the candidates and only thereafter such ballot papers were put in different boxes. However, the same were being shown in haste, that is to say, they were shown, but in haste. He had not given written complaint about there being less or more than 25 ballot papers in each bundle. (Para 7)
       The requisites for ordering recount are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. Going by the tests laid down by these decisions, it is clear that the election petitioner in the case on hand has not made out a specific case for recount. In other words, except generally asserting that the process of counting was undertaken hurriedly and suggesting that mistakes might have occurred because of the haste shown, she has not been able to establish specifically any flaw either in the matter of segregation of votes polled in the ward by colour, segregation of the votes polled by each candidate, or in the matter of bundling of the votes into 25 or in the matter of identification of the invalid votes which were clearly shown to all the counting agents before being deposited in the box kept separately for invalid votes. It is true that there could be a suspicion that in view of the announcement of an award for the returning officer who finished the counting process first, there might have been some hurry in the process of counting. But such a general feeling or possibility cannot be a substitute for clear pleading and evidence in support of a prayer for recounting of the votes. After all, only 15,000 odd votes were involved and there were 10 tables and each table dealt with only about 40 ballot boxes. Admittedly, each ballot paper was shown to the agents before it was deposited into the receptacle kept for it and at best the evidence is that it was done with some haste. The election tribunal was carried away by the fact that the Commissioner had announced an award and it felt that that might have resulted in undue haste being shown, resulting in improper counting. But the tribunal had not considered whether specific and concrete material has been made available, for it to exercise its jurisdiction to order a recount. It has not referred to any specific irregularity as having been proved in support of its order. The findings if any, in support of the order for recount are akin to general observations. The High Court had not applied its mind adequately to the question arising for its decision and seems to have been influenced by the announcement of the prize by the Commissioner. We have already indicated that the said act was not mala fide but at best lacked prudence and it is not shown that that by itself, has lead to any irregularity in counting that would justify an order for recount. (Paras 8 and 9)
       Thus, on the whole we are of the view that the election petitioner has not supplied adequate material in support of her prayer for an order of recount and there is no sufficient reason for ordering a recount. In that view, the orders of the Small Causes Court and that of the High Court have to be set aside. Since the election petition has not been finally disposed of by the Small Causes Court, the election petition has necessarily to be remanded to that Court for rendering a final decision thereon. (Para 10)

Judgment

P.K. Balasubramanyan, J.—Leave granted.

1. Elections to the Pune Municipal Corporation were held on 10.02.2002 and 03.03.2002. Election to the ward Prabhag 7A Pashan was held on 03.03.2002. The appellant and respondent No.1 before us were the main candidates. On 5.3.2002 the counting took place. The appellant was declared elected by a majority of 13 votes. At the counting it was announced that the total number of votes polled were 15,288; 828 votes were invalid, 5 were tendered votes and the total valid votes polled were 14,455. The appellant was declared to have secured 5,607 votes whereas respondent No.1 was declared to have secured 5,594 votes. Consequently, the appellant was declared elected.

2. On 15.3.2002, respondent No.1 filed EP 21/2002 under Section 16 read with Section 403 of the Bombay Provincial Municipal Corporations Act, 1949 in the Court of Small Causes, Pune challenging the election of the appellant. According to the election petition, the scrutiny and counting of votes were not according to the procedure laid down in the Municipal Corporations Act and the Rules framed thereunder. It was alleged that the ballot papers had first to be segregated with reference to colours used for the particular ward. The colour of ballot paper for Ward No. 7-A was white. Thereafter the ballot papers had to be segregated with reference to each candidate and stacked into bundles containing 25 ballot papers each. It was pleaded that the bundling of the ballot papers each with 25 ballots was not done properly and the bundling was done without showing the individual ballot papers to the candidates or their election agents. The scrutiny of the ballot papers according to symbol marks and the preparing of bundles of 25 each according to the symbols, were going on simultaneously. Since only one counting agent was present at one table - there were in total, ten tables for this Ward - it was not possible for the agent to scrutinize all these procedures going on simultaneously. The election petitioner and her counting agents had taken strong objection to the procedure that was being followed by the four employees engaged in each table for the counting. The ballot papers were not shown to the candidate or to their counting agents at the time of the actual counting. This failure of the counting staff had materially affected the result of the election. It was doubtful whether a bundle, supposed to contain 25 number of ballot papers, did in fact contain 25 ballot papers. The second ground was that the total number of invalid votes was declared as 828. While identifying the invalid votes, votes validly cast in favour of the election petitioner were wrongly rejected and votes which were really invalid were accepted as valid in the case of the winning candidate. Even though the intention was clear from the markings in the ballot papers, some of them were rejected wrongly and most of the votes rejected were cast in favour of the election petitioner. Thus, the failure to properly identify the invalid votes had also materially affected the election. The counting was interrupted every half an hour for 10 to 20 minutes and because of such interruptions, there was no proper or steady counting of the ballot papers. The Commissioner of Pune Municipality had announced a prize for the Returning Officer who finished the counting first and announced the result and since the Returning Officers were competing for the prize, the whole process of counting was hasty and it was undertaken without adequate care and this has vitiated the result of the election. The election petitioner further averred that several objections have been raised by the election petitioner and her agents and ultimately a written complaint was also given with a specific request for recounting of the invalid votes. No order was passed on that application. Since the whole process of counting was not proper, the election petitioner was entitled to have a declaration that the election of

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2006 Supreme(SC) 76

Important pointAn order for recounting cannot be made as a matter of course. Unless the election petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner, a recount normally cannot be ordered.

Cases Referred (3)

Important point
An order for recounting cannot be made as a matter of course. Unless the election petition had laid the foundation and there is clinching evidence to support the case set up by the election petitioner, a recount normally cannot be ordered.