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1929 Supreme(Mad) 365
IN THE HIGH COURT OF MADRAS
Curgenven
M. Lakshumana Aiyar And Ors.
Versus
S. Rajam Aiyar And Ors.
Decided On : 1 October, 1929
The main legal point established in the judgment is the requirement for evidence of miscounting to order a recount and the determination of proper parties in an election petition.
Headnote:
Election - Wallajah Municipality - Rule 6 of the Election Dispute Rules for District Municipalities - English Law on recount - Miscounting evidence - Jurisdiction of the Court
Fact of the Case:
The case involved an election petition filed by a candidate alleging irregularities in the election process, including undue partiality by the Chairman, miscounting of votes, and lack of verification. A recount was granted, resulting in a change in the candidates declared elected. The defeated candidates sought further scrutiny of the ballot papers, which was disallowed by the Lower Court.
Finding of the Court:
The Court found that there was a reasonable ground for the petitioner's belief that there had been a miscount, and the Lower Court had jurisdiction to order a recount. The Court also held that the Chairman was not a proper party to the petition and set aside the order making him liable for costs.
Issues: The issues included the jurisdiction of the Court to order a recount, the requirement for evidence of miscounting, and the propriety of making the Chairman a party to the petition.
Ratio Decidendi: The Court relied on Rule 6 of the Election Dispute Rules for District Municipalities and English Law on recount, emphasizing the need for evidence of good grounds for believing that there had been a mistake on the part of the returning officer to order a recount. The Court also applied the terms of Order 1, Rule 3 of the Civil Procedure Code to determine the propriety of making the Chairman a party to the petition.
Final Decision: The Court dismissed certain petitions with costs to respondents and set aside the order making the Chairman liable for costs.
Curgenven, J.
1. These petitions arise out of an election held on 27th August, 1928, to fill three vacancies in the 3rd Ward of the Wallajah Municipality. The election was conducted by the Chairman and the result, so far as it concerns us, stood as follows:
1. T. K. Ratnavelu Chetti .. 170 votes |
2. M. Lakshumana Aiyar .. 127 " |
3. K.S. Mallappa Chettiar .. 123 " | Elected.
4. S. Rajam Aiyar .. 116 " |
5. P. Venkataswami Naidu .. 109 " |
2. Accordingly Nos. 1, 2 and 3 were declared elected. An election petition (O. P. No. 11 of 1928) was then filed by S. Rajam Aiyar (No. 4) in the Subordinate Judges Court, Vellore, alleging that the Chairman had shown undue partiality, that he had counted votes in favour of the successful candidates which ought to have been rejected, that he employed an inadequate staff, that the results were announced without checking or verification, and that if there had been subsequent check the petitioner and other candidates who had failed would have been elected. This petition was filed on 3rd September and on 24th October, before the hearing had commenced, the petitioner applied for a recount (I.A. No. 692 of 1928). This was granted, and the recount was carried out by a Commissioner with the following result:
1. T.K. Ratnavelu Chettiar .. 160 votes |
2. S. Rajam Aiyar .. 124 " |
3. P. Venkataswami Naidu .. 123 " | Elected.
4. M. Lakshumana Aiyar .. 120 " |
5. K.S. Mallappa Chettiar .. 116 " |
3. It will be seen that Nos. 4 and 5 in the prior list have displaced Nos. 2 and 3. The two candidates who were now defeated, M. Lakshumana Aiyar and K. S. Mallappa Chettiar, thereupon applied (I.A. No. 752 of 1928) for a scrutiny of the ballot papers, with a view to ascertaining whether they had been tampered with, but: this was disallowed by the Lower Court.
4. In arguing the main revision petition the contentions are raised that the learned Sub-judge ordered the recount in circumstances not sufficient to give him jurisdiction, and that he was in error in not directing the further scrutiny asked for. On the first point it is urged, more specifically, that a Court before ordering a recount must have evidence before it that the original count was or may have been incorrect. Mr. K. S. Krishnaswami Aiyangar has recourse to English Law in support of this position. In The Stepney case the questions which arose were as to the stage in the proceedings at which a recount could be applied for and ordered, which does not now concern us, and whether or not it could be claimed as a right. Dennian, J., in delivering judgment, referring to an interlocutory conversation during the course of the hearing, says We decided against the contention that the respondent was entitled to a recount as a matter of right, but offered to hear any evidence tending to show that there had been a mistake on the part of the returning officer. We heard witnesses on both sides upon the point, and were satisfied, I may say mainly, upon the evidence of one of the witnesses called by the petitioner, that there were strong grounds for thinking that the return could not be strictly relied upon. We therefore determined upon directing a recount. . . . .
5. This case forms the sole cited authority for the exposition of the law on this point in Halsbury (Vol. XII, para. 891) 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 the Court will make an order for a recount.
6. In Rogers on Elections, 19th Edition, Vol. II, page 301, it is stated that The practice now is to order a recount before the trial where there is reason to believe there has been a miscount. Application for it should be made by summons supported by affidavits showing grounds.
7. The form of order for recount (No. 35 at page 933 of the same volume) contemplates the order being passed "upon hearing counsel for the petitioner and respondent and upon reading the affidavits of, etc."
8. Thus although in Th
