Case: Ram Sewak Yadav Vs. Hussain Kamil Kidwai &amp; Ors

oral evidence at the trial. In his second application for inspection he merely averred that "the petitioner was almost sure" that on inspection and scruting of ballot papers, the allegations contained in the various paragraphs wold 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.11. Reliance was placed both before this Court and the High Court upon the decision of this Court in Bhim Sen v. Gopali, 22 Ele. LR 288 (SC) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection 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 Sens case, 22 Ele LR 288 (SC) 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 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 S. 63(1) 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 S. 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 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 Sens case, 22 Ele. LR 288 (SC) 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 stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers. In Bhim Sens case, 22 Ele. LR 288 (SC) the Court was primarily concerned with the question whether amendment of the petition to set aside an election should be granted. It was alleged b the defeated candidate that there had been contravention of the provisions of S. 63(1) of the cl. 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 allegation of material facts and without disclosing a prima facie case in support of the claim made.12. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. 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 invested under theCode 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 O. 11.Code of Civil Procedure. Inspection of documents under O. 11.Code of Civil Procedure may be ordered under R. 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 R. 18(2) 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 O. 11Code 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 Ss. 100(1) (d) (iii), 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 O. 11Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Ss. 94 and 128(1).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 re-count. Therefore a candidate who seeks to challenge an election on the ground the 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 S. 83(1) which require a concise statement of material facts 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 re-count that the application inspection must beapplicant 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 allegation of material facts and without disclosing a prima facie case in support of the claim made.12. 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.