An order for inspection and recount of ballot papers is justified if the election petition contains an adequate statement of the material facts on which the petitioner relies and the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary.

B.D.Singh, J.

1. This application has been filed by the sole petitioner, Bishundeo Narain Singh, under Articles 226 and 227 of the Constitution of India, against an order dated the 22nd July 1970 (Annexure 2) passed by the Election Tribunal (respondent No. 5) directing the recounting of ballot papers with reference to the marked copy of the electoral rolls.

2. The petitioner along with respondents Nos. 1 to 4 contested for the election of Mukhiya of Katahan Gram Panchayat in the district of Champaran. In the said election, the petitioner was declared as elected. Thereafter Babu Lal Sah (respondent No. 1) filed an election petition before the Election Tribunal (Respondent No. 5) challenging the validity of the election of the petitioner. Subsequently, respondent No. 1. also filed a petition on the 8th July 1970, (Annexure 3) before respondent No. 5 praying for recount and rescrutiny of rejected votes at all the polling booths and recount and re-scrutiny of the votes which the petitioner secured at polling booth No. 3. After hearing the parties as well as examining the evidence of some of the witnesses adduced on behalf of respondent No. 1, the Election Tribunal passed the impugned order (Annexure 2).

3. Mr. Karuna Nidhan Keshava, learned Counsel appearing on behalf of the petitioner, contended that the said order of the Tribunal was bad as it was not founded on adequate evidence. According to him, it did not apply its mind before passing the order for inspection and rescrutiny of ballot papers. He urged that the Tribunal has violated the well established principles of maintaining the secrecy of ballot papers. In order to substantiate his contention he relied on a decision of the Supreme Court in the case of Ramsewak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 wherein their Lordships have observed that a Tribunal would be justified in granting an order for inspection provided two conditions are fulfilled:-

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"(i) That the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary."

Learned Counsel also referred to another decision of the Supreme Court in Dr. Jagiit Singh V/s. Giani Kartar Singh, AIR 1966 SC 773 where their Lordships were considering the provisions of Sections 83 and 92 of the Representation of the People Act regarding the inspection and scrutiny of ballot papers. Their Lordships also reiterated the principles laid down in AIR 1964 SC 1249 (Supra) and observed that "it may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect ballot boxes and consider his objections about the improper acceptance or improper rejection of 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 inquiry in the ballot boxes so as to justify their claim that the returned candidates election is void". Their Lordships further held that "an application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting". In my opinion, their Lordships have not laid down the general principles of law, as it may be seen, that in Jagjit Singhs case their Lordships themselves have said that no hard and fast rule can be laid down in this matter; for, attempt t