IMPORTANT POINT
The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Representation of the People Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into.

Headnote:(i) Representation of the People Act, 1951-Section 100(1)(d)(iii)-Election petition-Relief sought was setting aside of election of respondent 1 and for declaring appellant as elected-Scope of enquiry.
       Held : In an election petition wherein the limited relief sought for is the declaration that the election of returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions : (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate. [Para 33(1)]
       (ii) Representation of the People Act, 1951-Sections 97(1) and 100(1)(d)(iii)-Election petition for declaring election of returned candidate as void-A recrimination by returned candidate or any other party can be filed when-Absence of recrimination petition deprives the returned candidate of right to challenge validity of votes cast in favour of candidate sought to be declared elected or to contend that any of his votes were improperly rejected.
       Held : A recrimination by the returned candidate or any other party can be filed under Section 97 (1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected. For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the election Court shall acquire jurisdiction to do so only on the two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) the recrimination petition under Section 97 (1) is filed. A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfill within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act. The bar on enquiry enacted by Section 97 read with Section 100 (1)(d) (iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a recount the election Judge finds the result of recount to be different from the one arrived at by the returning officer or when the election Judge finds that there was an error of counting the bar is not attracted because the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or recounting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub-clause (iv), and not sub-clause (iii) of Clause (d) of sub-Section (1) of Section 100 of the Act. (Para 33)
       (iii) Representation of the People Act, 1951-Section 100(1)(d)(iii)-Election petition-Rule of practice-Success of a winning candidate should not be lightly set aside.
       Held : The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law. (Para 26)
       (iv) Representation of the People Act, 1951-Sections 97 and 100-Recount-Power to direct inspection of ballot papers-Recount not to be ordered merely for asking-Pleadings and proof in matter of recount have relevance.
       Held : Though the inspection of ballot papers is to be allowed sparingly and the Court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging into a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice. (Para 27)
       It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount which has to be given effect to. So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to. (Paras 28 and 29)

JUDGMENT

R.C. Lahoti, J.-Unsuccessful as a candidate and also as an election petitioner, the appellant is in appeal, exercising his statutory right of appeal under Section 116 A of the Representation of the People Act, 1951, (hereinafter the, Act , for short) against the decision of the High Court dismissing his election petition.

2. Elections for the Kerala Legislative Assembly Seat from No. 125 Eravipuram Legislative Assembly Constituency were held on 10.5.2001. There were five candidates in the fray including the appellant and the respondent No.1. The results were announced on 13-.5-2001. The candidates secured the votes as under:-

S.No. Candidate Votes secured

1. Appellant, Ahammed Kabeer 55617

2. Respondent No. 1, A.A. Azeez 55638

3. Respondent No. 2 11108

4. Respondent No. 4 531

5. Respondent No. 5 2756

3. The first respondent was declared elected defeating his nearest rival, the appellant, by a margin of 21 votes.

4. The poll was held by using electronic voting machines.

5. An election petition was filed by the appellant laying challenge to the election of the respondent No. 1 on very many grounds. The appellant in his election petition submitted, inter alia, that there were three voters who had voted twice, that there were nine voters who were actually dead, thirty voters were actually abroad and twenty seven voters were actually out of station; and hence these forty voters were not available for voting on the date of polling and yet ballots in their names were cast by impersonators; that five voters who reached the polling station were told that impersonators had already cast ballots in their names and therefore they were permitted to cast tender ballots; that forty eight voters could not cast their ballot as the copy of the voter list supplied at booth No.185 was defective and the relevant pages on which the names of these voters appeared were missing; that six voters entitled to exercise their franchise through postal ballots could not do so as some impersonators had exercised franchise in their place; that there were postal ballots attested by incompetent officers and hence invalid and so on. There were other illegalities committed during polling and also at counting, alleged the election petition.

6. The relief sought for by the appellant was the setting aside of the election of the respondent No. 1 as also declaring the appellant as elected.

7. The respondent No.1 filed his written statement and also delivered a recrimination notice as contemplated by proviso to Section 97(1) of the Act. Briefly stated the pleas raised by way of recrimination by the respondent No. 1 are: that there were four persons who had voted twice in favour of the appellant and therefore the votes were liable to be excluded from the votes counted in favour of the appellant; that five persons were dead and not available for casting the ballots yet impersonators cast ballots in the names of the dead persons in favour of the appellant; that seven persons whose names were deleted from the voters list were also permitted to vote by the Presiding Officer, which ballots were cast in favour of the petitioner. The recrimination petition was filed within the prescribed period of limitation, in the prescribed manner, and was accompanied by the security deposit as required by Section 117 of the Act.

8. It is not necessary for us to go into other details of the pleadings and it would suffice to state that both the appellant and the respondent No. 1 in their respective election petition and recrimination petition pleaded the material facts with relevant particulars and no deficiency was to be found in the pleadings.

9. The learned designated Election Judge framed all the relevant issues arising from the pl

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2003 Supreme(SC) 443

Cases Referred (10)