H. R. Gokhale vs Bharucha Noshir C. and Ors.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1967 Supreme(Bom) 79

IN THE HIGH COURT OF BOMBAY
Vimadalal J.R., J.
Appellants: H.R. Gokhale
Vs.
Respondent: Bharucha Noshir C. and Ors.
Election Petn. No. 5 of 1967Decided On: 01.09.1967
Counsels:
For Appellant/Petitioner/Plaintiff: F.S. Nariman and M.O. Chinoy, Advs.
For Respondents/Defendant: H.M. Seervai, Adv. General and M.R. Mody, A.N. Mody and R.J. Joshi, Advs.

Headnote:
ELECTION LAW - INSPECTION OF BALLOT PAPERS - CONDITIONS PRECEDENT - INTERESTS OF JUSTICE - SECRECY OF VOTING - SERIAL NUMBERS OF BALLOT PAPERS - ADEQUATE STATEMENT OF MATERIAL FACTS - PRIMA FACIE CASE - REJECTION OF VOTES - IMPROPER ACCEPTANCE OF VOTES - NON-COMPLIANCE WITH ACT AND RULES - COUNTING BY COUNTING AGENTS - REMOVAL OF BALLOT BOXES - IMPROPER SEALING OF BALLOT BOXES.
Fact of the Case:

Petitioner, an unsuccessful candidate in an election, filed an application for inspection of ballot papers and the contents of ballot boxes under Section 100(l)(d)(iii) and (iv) of the Representation of the People Act, 1951, challenging the election of the 8th Respondent on the grounds of improper reception and rejection of votes, and non-compliance with the provisions of the Act and Rules. The 9th Respondent was the Returning Officer.
Finding of the Court:

The Court held that an order for inspection of ballot papers could not be granted as a matter of course, but the Court would be justified in making such an order, provided two conditions were fulfilled: (i) that the petition for setting aside the election contains an adequate statement of material facts on which the petitioner relies in support of his case, and (ii) that 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. The Court further held that the law does not require the petitioner, in a case like the present one which does not relate to corrupt practice, to furnish the serial numbers of the ballot papers in the petition.
Issues: 1. Whether an order for inspection of ballot papers could be granted as a matter of course? 2. What are the conditions precedent for granting an order for inspection of ballot papers? 3. Whether the law requires the petitioner to furnish the serial numbers of the ballot papers in the petition?
Ratio Decidendi: 1. An order for inspection of ballot papers could not be granted as a matter of course. 2. The conditions precedent for granting an order for inspection of ballot papers are: (i) that the petition for setting aside the election contains an adequate statement of material facts on which the petitioner relies in support of his case, and (ii) that 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. 3. The law does not require the petitioner, in a case like the present one which does not relate to corrupt practice, to furnish the serial numbers of the ballot papers in the petition.
Final Decision: The Court ordered that the District Election Officer give inspection to the petitioner and his legal advisers of all bundles of ballot papers rejected at all the Counting Centres in the constituency, and of all ballot papers of all the respondents accepted at the Borivli and Malad Centres, and permit them to make copies or extracts or take notes of the same. The Court also directed the District Election Officer to reseal and produce in Court all the ballot papers, of which inspection had been ordered.

JUDGMENT - 1. This is an application for inspection of ballot papers and the contents of ballot boxes by the petitioner in an election petition flied by him under Section 100(l)(d)(iii) and (iv) of the Representation of the People Act, 1951, challenging the election of the 8th Respondent to the House of the People from the Bombay North-West Parliamentary Constituency at the general election held on the 21st of February 1967, on the ground of improper reception as well as improper rejection of votes, as well as on the ground of non-compliance with certain provisions of the said Act and of the Rules framed thereunder. Respondents Nos. 1 to 7 are the other candidates who had contested the election to the said seat, and respondent No. 9 is the Returning Officer within the meaning of the said Act. By the present application, the petitioner has prayed, (a) that the 9th respondent be ordered to give inspection, or to cause inspection to be given, of all the rejected votes cast at the said election, (b) that the 9th respondent be ordered to give inspection, or to cause inspection to be given, of the contents of all the ballot boxes from each of the Counting Centres in the said Constituency and (c) that, in the alternative to the above two prayers, the petitioner be permitted to inspect the contents of the packets of used ballot papers, whether valid, tendered or rejected, mentioned in the petition.

2. This application for inspection was sought to be supported by Mr. Nariman on two grounds: (1) on the ground that the 9th respondent having in paragraph 12 of his Written Statement, expressly referred to ballot papers, the petitioner is entitled, under the provisions of Order 11, Rule 15 of the Code of Civil Procedure which is made applicable by Section 87 of the Representation of the People Act, 1951, to have inspection of all documents to which reference is made in the pleadings; and (2) on the ground that inspection should be granted of the documents to which the present application related under Rule 93(1) of the Conduct of Election Rules 1961, framed under Section 169 of the Representation of the People Act, 1951. This application for inspection was strenuously opposed not only by Mr. Mody on behalf of the 8th respondent who was the successful candidate at the said election, but also by the learned Advocate-General on behalf of the Returning Officer (Respondent No. 9). None of the other respondents has appeared at the hearing of this application before me.

3. The first question that arises for my consideration is, what are the principles on which an order for inspection of ballot papers should be made in an election petition. That question has been the subject-matter of numerous decisions, some of them of the Supreme Court, and several authorities were cited in the course of the protracted argument of this application before me. The authorities cited before me on the point, in the chronological order, were the following:-

Harish Chandra V. Triloki Singh, AIR 1957 SC 444 Paras 8-11; Hidayatullah J. (particularly p. 72), Inayatullah Khan v. Divanchand Mahajan, AIR 1959 Madh Pra 58 at Pp. 71-74; N. Pethu Peddiar v. V. A. Muthian, AIR 1963 Mad 390; Jabar Singh v. Genda Lal, AIR 1964 SC 1200; Ram Sewak Yadav v. Kidwai, AIR 1964 SC 1249; Unreported Supreme Court decision D/- 18-3-1964 in C. A. No. 222 of 1964, Dr. Sushila Balrajs case; Begum Mafida v. Rajendra Nath, AIR 1965 Assam 62 (FB), Hukum Singh v. Banwari Lal, AIR 1965 All 552, Tribani Ram v. Satyadeo Singh, AIR 1966 All 20, Unreported Supreme Court decision D/-l0-2-1965 in C. A. No. 45 of 1965, Sitaram Mehtas case; Jagjit Singhs case, AIR 1966 SC 773.

In my opinion, however, it is necessary for me to deal with only two of the above cases cited before me viz. the case of AIR 1964 SC 1249 and the case of AIR 1957 SC 444, the former of which must be regarded as the leading case laying down the law in regard to the granting of inspection in election petitions. It will, however, be necessa

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