Appeal No 1064 of 1963
Appeal by special leave from the judgment and order dated July 23 1963 of the Allahabad High Court Lucknow Bench in First Civil Appeal No 11 of 1963
N C Chatterjee and J P Goyal for the appellant
section P Sinha and section Shaukat Hussain for respondent No 1
January 17 1964
The Judgment of the Court was delivered by SHAH J
At the general elections held in February 1962 five candidates contested the election to the House of the People from the Barabanki single member constituency
The appellant Ram Sewak Yadav who will be referred to as Yadav was at the counting of votes found to have secured the highest number of votes and he was declared elected
Hussain Kamil Kidwai hereinafter called Kidwai who was one of the candidates at the election submitted a petition on April 6 1962 to the Election Commission for an order declaring the election of Yadav void and for an order that he Kidwai be declared duly elected
The Election Tribunal Lucknow to which the petition was referred for trial dismissed the petition
In appeal to the High Court of Allahabad the order passed by the Election 240 Tribunal was reversed and the proceedings were remanded for trial with a direction among others that the Tribunal do give reasonable opportunity to both the parties to inspect the ballot papers and other connected papers
With special leave Yadav has appealed against the order of the High Court
The principal grounds set up by Kidwai in support of his petition were 1 that there had been improper reception refusal and rejection of votes at the time of counting and in consequence thereof the election was materially affected 2 that there were discrepancies between the total number of votes mentioned in Form 16 and Form 20 3 that the tendered votes were wrongly rejected by the returning officer and on that account the election was materially affected 4 that at the polling station No 29 Majgawan in Bhitauli Unit and Kursi polling station in Kursi Assembly Unit the polling officers did not give ballot papers to the voters 5 that the counting of votes of Bhitauli Assembly Unit continued till 8 30 pm in insufficient light notwithstanding the protest lodged by the petitioner and 6 that on a true count he Kidwai would have received a majority of valid votes and that he was entitled to be declared duly elected
These allegations were denied by Yadav
At the trial before the Tribunal the parties led no oral evidence
In respect of the pleas 3 4 and 5 the burden of proof lay upon Kidwai and as no evidence was led to  substantiate the same those pleas failed
Again in the view of the Tribunal Kidwai could discharge the burden of proof which lay upon him to establish that there were discrepancies between the original and the certified copies of Forms Nos 241 16  20 and as the original forms were not called for by Kidwai his second ground must also fail
Kidwai claimed that he would be able to establish his case on pleas 1  6 from the ballot papers and submitted that an order for inspection of the ballot papers be made and that he be per mitted to show from the ballot papers that the Returning Officer had improperly received refused or rejected the votes and that on a true count he would get the largest number of valid votes
The Tribunal rejected the applica tion for inspection holding that ballot papers may be allowed to be inspected only if it is necessary in the interest of justice and to support an order for inspection facts must be brought to its notice making out a prima facie case disclosing that errors were committed in the reception refusal or rejection of votes at the time of counting and unless a prima facie case was made out the Tribunal would be justified in declining to make an order for inspection
The High Court however held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal that there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court and that the Tribunal had rejected the application for inspection without any adequate reasons for so doing
The only question which falls to be determined in this appeal is whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been pursuant to its order in that behalf lodged before it in sealed boxes by the Returning Officer
In considering this question the material provisions of the Representation of the People Act 1951 and the rules framed thereunder may first be noticed
Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI
Section 831 states what the election petition shall contain
It states Art election petition a shall contain a concise statement of the material facts on which the petitioner relies 159 SC 16 242 b shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as posssible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 for the verification of pleadings The rest of the section is not material
Section 901 prescribes the procedure to be followed by the Tribunal
It states Subject to the provisions of this Act and of any rules made thereunder every election petition shall be tried by the Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of suits  Section 92 enumerates the powers which a Tribunal trying an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil Procedure when trying a suit may exercise in respect of discovery and inspection enforcing attendance of witnesses compelling production of documents receiving evidence taken on affidavits and issuing commissions for the examination of witnesses
Rules have been framed under the Act relating to production and inspection of election papers
By rule 93 of the Conduct of Election Rules 1961 it is provided that 1 While in the custody of the returning officer a the packets of unused ballot papers b the packets of used ballot papers whether valid tendered or rejected c the packets of the marked copy of the electoral roll or as the case may be the list maintained under sub section 1 or sub section 2 of section 152 and 243 d the packets of the declarations by electors and the attestation of their signatures shall not be opened and their contents shall not be inspected by or produced before any person or authority except under the order of a competent court or tribunal
2 All other papers relating to the election shall be open to public inspection subject to such fee if any as the Election Commission may direct
3 Copies of the returns by the returning officer forwarded under rule 64 or as the case may be
under sub rule 3 of rule 84 shall be furnished by the chief electoral officer of the State concerned on payment of a fee of two rupees for each such copy
 The rule makes a clear distinction between ballot papers and other election papers ballot papers may be inspected only under the order of a competent court or tribunal but other documents are subject to certain conditions open to public inspection
In this case on an oral request made by Kidwai all the ballot papers in sealed boxes were lodged with the Election Tribunal
Kidwai claimed in the first instance that the Tribunal was bound to grant an order for inspection because he had tendered the sealed boxes of ballot papers in evidence and on that account all the ballot papers were part of the record
The Tribunal rightly rejected this plea to by the mere production of the sealed boxes pursuant to its order the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice
An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case
If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invest 244 ed under the Code of Civil Procedure when trying a suit
But the power which the civil court may exercise in the trial of suits is confined to the narrow limits of 0
II Code of Civil Procedure
Inspection of documents under 0
II Code of Civil Procedure may be ordered under rule 15 of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party and under rule 182 of other documents in the possession or power of the other party
The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under 011 Code of Civil Procedure
But the Election Tribunal is not on that account without authority in respect of the ballot papers
In a proper case where the interests of justice demand it
the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers
That power is clearly implicit in sections 1001diii 101 102 and rule 93 of the Conduct of Election Rules 1961
This power to order inspection of the ballot papers which is apart from 011 Code of Civil Procedure may be exercised subject to the statutory restrictions about the secrecy of the ballot paper prescribed by sections 94 and 1281
An order for inspection may not be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers the Court would be justified in granting an order for inspection provided two conditions are ful filled i that the petition for setting aside an election con tains 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 the ballot papers is necessary But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas
The case of the petitioner must be set out with pre 245 cision supported by averments of material facts
To estab lish a case so pleaded an order for inspection may undoubt edly if the interests of justice require be granted
But a mere allegation that the petitioner suspects or believes that there has been an improper reception refusal or rejection of votes will not be sufficient to support an order for inspection
It must be remembered that the rules framed under the Representation of the People Act 1951 set up an elaborate machinery relating to the stage of counting of votes by the Returning Officer and provide ample opportunity to the can didate who has contested the election or his agents to remain present and to keep an eye on any improper action which may be taken by the Returning Officer
Rule 53 provides for the admission of only certain classes of persons to the place fixed for counting and amongst such persons are expressly included candidates their election agents and counting agents who may watch the counting subject to the directions which the returning officer may give
Rule 55 deals with the procedure for scrutiny and opening of ballot boxes
The Returning Officer has to satisfy himself that none of the ballot boxes has in fact been tampered with and before any ballot box is opened at the counting table the counting agents present at that table are allowed to inspect the seal affixed thereon and to satisfy themselves that it is intact
If the Returning Officer is satisfied that any ballot box has in fact been tampered with he is prohibited from counting the ballot papers contained in that box and he has to follow the procedure prescribed in that behalf in section 58
Clause 1 of rule 56 provides for the scrutiny and rejection of ballot papers
Clause 2 sets out detailed provisions relating to cases in which the Returning Officer shall reject a ballot paper By cl
3 it is provided that before rejecting any ballot paper under sub rule 2 the returning officer shall allow each counting agent present a reasonable opportunity to inspect such ballot papers
The Returning Officer has then to record on every ballot paper which he rejects the grounds of rejection
All the rejected ballot papers are required to be put in one bundle
Rule 57 deals with the counting of votes
Each ballot paper which is not rejected is counted 246 as one valid vote
The Returning Officer has to make the entries in a result sheet in Form 20 after counting of the ballot papers contained in all the ballot boxes used at the polling stations
Clause 3 of rule 57 enacts an elaborate set of rules about the entries to be made in respect of the counting and scrutiny of the ballot papers
By rule 60 counting has to be continuous and rule 631 provides that after the completion of the counting the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the result
By cl
2 of rule 63 it is provided that after such announcement is made a candidate or his election agent may apply in writing to the Returning Officer for  a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount
The Returning Officer must decide the application and record his reasons in support of his decision and he may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable
After the total number of votes polled by each candidate has been announced the Returning Officer must complete and sign the result sheet in Form 20 and after such form is completed no application for recount may be entertained
Under rule 64 the declaration of the result of the election is made by declaring elected a candidate who has secured the largest number of valid votes and the Returning Officer is required to complete and certify the return of election
There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes watching the proceedings of the Returning Officer inspecting any rejected votes and to demand a are count
Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened and the votes were counted
He has also opportunity of inspecting rejected ballot papers and of demanding a re count
It is in the light of the provisions of section 831 which require a concise statement of material facts 247 on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting of watching and of claiming a recount that the application for inspection must be considered
In the petition filed by Kidwai the material allegations in support of the claim that there had been improper reception refusal or rejection of votes were contained in paragraphs 6H 6K and 12
In paragraph 6H it was averred that numerous ballot papers cast in favour of the petitioner were wrongly included in the bundles of the respondents
 In paragraph 6K it was averred that due to a deficiency in the supply of sealing ink marks on some ballot papers though not quite clear yet the marks clearly indicating the intention of the voters were wrongly rejected as invalid by the returning officer
 In paragraph 12 it was averred that the petitioner is confident that if the votes actually cast in favour of the petitioner are counted as votes of the petitioner and if the improperly accepted votes which have been counted in favour of other respondents are taken out and if the ballot papers are correctly sorted counted and bundled
the respondent No 1 will be found to have polled less votes as compared to 
petitioner
The petitioner further submits that the result of the Election has been materially affected by the improper acceptance and refusal of votes and by the incorrect sorting counting and bundling of ballot papers
 These averments in the petition for setting aside the election on the ground of improper acceptance or rejection of votes were vague and did not comply with the statutory requirements of section 831a
Paragraph 12 is deficient in the recital of material facts which must be deemed to be within the knowledge of the petitioner and merely asserts that if the votes actually cast in favour of the petitioner are counted the total number of valid votes found in his favour would exceed the number of votes received by Yadav
Having regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim
The Tribunal has undoubtedly to exercise its discretion if it appears to be in the interests of justice but the discretion has manifestly to be exercised having regard to the nature of the allegations made
The Tribunal would be Justified ir 248 refusing an order where inspection is claimed with a view to fish out materials in support of a vague plea in the case set out in the petition
The Tribunal was conscious of the true principle it stated in its order dated August 25 1962 that nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at that stage
The Tribunal further observed If in future from facts that may be brought to the notice of the Tribunal it appears that in the interests of justice inspection should be allowed necessary orders allowing an inspection could always be passed
Relying upon these observations another application was submitted by Kidwai asking for inspection but no additional materials were placed before the Tribunal
As we have already observed Kidwai led no real evidence at the trial
In his second application for inspection he merely averred that the petitioner was almost sure that on inspection and scrutiny of ballot papers the allegations contained in the various paragraphs would be proved
The allegation of Kidwai that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception refusal or rejection of votes was wholly insufficient to justify a claim for inspection
He had to place before the Tribunal evidence prima facie indicating that an order for inspection was necessary in the interests of justice which he failed to do
Reliance was placed before this Court and the High Court upon the decision of this Court in Bhim Sen vs Gopali and others1 in support of the plea that mere absence of parti culars will not furnish a ground for declining to grant ins pection and that a defeated candidate is entitled to establish his case that void votes had been counted and included in the votes of the successful candidate from the evidence collected from inspection of the ballot papers
In Bhim Sen s case1 a petition was filed for setting aside an election of a candidate in a reserved seat in a double member constituency
The principal ground in support of the petition 1 249 was that it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of section 631 of the Representation of the People Act and that the Returning Officer having failed to discharge his duty to reject ballot papers cast in contravention of section 63 the petitioner believed that the successful candidate could receive many void votes
 The ballot boxes were opened and it was found that 37 void votes were counted in favour of the successful candidate and in view of the disclosure made by the inspection of the ballot papers the petitioner applied for leave to amend the petition by adding a specific averment that 37 void votes had in fact been counted in favour of the successful candidate and that the words alleges and did be substituted respectively for the words believes and could
Along with the petition for leave to amend he filed a list giving the particulars of the void votes
This application was allowed by the Tribunal but the order was reversed by the High Court on the ground that the Tribunal had erred in allowing the amendment
In appeal to this Court it was held that in a case like the one before the Court definite particulars about the number and  nature of the void votes that had been counted could only be supplied after inspection of the ballot papers and the election petition as originally presented must therefore be regarded as having furnished the material particulars and the amendment petition must be treated merely as an application for clarification of the pleadings
We do not think that Bhim Sen s case1 lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception refusal or rejection of votes at the time of counting
To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge
The nature of the allegations must of course depend  upon the facts of each case
But if material facts are not 22 ELR288
250 stated he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers
In Bhim Sen s case1 the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted
It was alleged by the defeated candidate that there had been contravention of the provisions of section 63 1  of the Act by the Returning Officer and the election was materially affected on that account
The applicant had stated that he believed that the respondents had received many votes which were void
When the ballot box was opened it was found that among the votes credited to the successful candidate were 37 votes which were void
Thereafter the applicant applied to substitute the words  alleges for believes and did for could
In that case the Court was not concerned to decide whether the order for inspection was properly made the propriety of the order granting inspection does not appear to have ever been questioned
The principal question raised in the appeal was whether the amendment of the petition should in the circumstances be granted and the observation of the Court that definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers was not intended to be a general statement of the law that whenever an allegation is made in a petition to set aside an election that void votes have been included in the counting of votes received by a successful candidate definite particulars with regard to the said void votes may only be supplied after the ballot papers are inspected and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie case in support of the claim made
In our view the High Court was in error in interfering with the exercise of discretion by the Election Tribunal which proceeded upon sound principles
The appeal therefore is allowed and the order of the High Court is set aside
The order of the Tribunal is restored with costs in this Court and the High Court
Appeal allowed


Summary:
The respondent challenged the election of the appellant inter alia on the ground that there had been improper reception refusal and rejection of votes at the time of counting and that on a true count he would have received a majority of valid votes and that he was entitled to be declared duly elected
He claimed that by inspection of the ballot papers he would be able to establish his case on the aforesaid allegations and that the Tribunal was bound to grant an order for inspection because he had tendered the sealed boxes of ballot papers in evidence and on that account all the ballot papers were part of the record
The Tribunal in its order stated that nothing was brought to its notice which would justify granting an order for inspection
It further observed If in future from the facts that may be brought to the notice of the Tribunal it appears that in the interests of justice inspection should be allowed necessary orders allowing an inspection could always be passed
Thereupon another application was submitted by the respondent asking for inspection but no additional materials were placed before the Tribunal and no oral evidence was led at the trial
The Tribunal rejected the application for inspection
On appeal the High Court held that ballot papers had actually been called for from the Returning Officer and were before the Tribunal and there was nothing in the Code of Civil Procedure which prevented the Tribunal from allowing inspection of the ballot papers in the custody of the Court
The Tribunal had therefore rejected the application for inspection without any adequate reasons
The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers which had been pursuant to an order in that behalf lodged before the Tribunal in sealed boxes by the Returning Officer
Held By the mere production of the sealed boxes the ballot papers did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that such inspection was in the circumstances of the case necessary in the interests of justice
239 The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be made under 0
XI of the Code of Civil Procedure
But the Election Tribunal is not on that account without authority in respect of the ballot papers
Where the interests of justice demand it the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers that power is clearly implicit in sections 1001diii 101 102 of the Representation of the People Act 1951 and rule 93 of the Conduct of Election Rules 1961
This power to order inspection of the ballot papers which is apart from 0
XI Code of Civil Procedure may be exercised subject to the statutory restrictions about the secrecy of the ballot papers prescribed by sections 94 and 1281 of the Act
Bhim Sen vs Gopali  distinguished