Case: Ram Autar Singh Bhadauria Vs. Ram Gopal Singh And Others

officer had rightly accepted 301 votes be cause Rule 47 was directory and not mandatory. It was contended that the electors were not at fault and that the wrong ballot papers were issued due to the lapse on the part of the Returning officer and that to reject the votes of the electors for the failure of the Polling officer to deliver the correct ballot papers under Rule 23 would be to disfranchise them, and that a construction which involve such a consequence should not be adopted. This Court repelled the contention in these terms:"If the word shall is thus to be construed in a mandatory sense in Rule 47(1) (a), (b) and (d), it would be proper to construe it in the same sense in Rule 47(1) (c) also. There is another reason which clinches the matter against the 1st respondent. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed in the case of the latter it is sufficient that it is substantially complied with. How is this rule to be worked when the Rule provides that a ballot paper shall be rejected ? There can be no degrees of compliance so far as rejection is concerned, and that is conclusive to show that the provision i s mandatory."16. The above observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merely directory.17. It was contended by the learned Counsel for the respondent before us, that the Provisos to sub-rule (2) of Rule 56 are only illustrative and not exhaustive, and consequently, the principles underlying these Provisos would give a discretion to the Returning Officer not to reject a ballot paper on the ground of a defect caused by mistake or negligence of the Presiding officer/or Polling officer, notwithstanding that such defect is one mentioned in clauses (a), (b), (c), (d), (e) and (f) of Rule 56(2). This contention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of these questions.18. Times out of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of the Act.19. We have said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."20.

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

Explanation:
1[ds]Having heard learned Counsel on both sides, we are or opinion that the order made by the High Court for a general scrutiny and recount of all the ballot papers cast at the election, was notreturned candidate had not categorically and specifically admitted the allegations made in the election petition with regard to the improper rejection of the ballot-papers. This will be clear from a comparative reading of Paragraph 11 (a) and (b) of the petition and the answers thereto given in the written statement, which have been reproduced above verbatim. It is to be noted that the reply of the returned candidate to the contents of the aforesaid sub-paras (a) and (b) starts with a denial or a non-admission. Such a traverse is then followed by qualified and vague admissions that some ballot-papers were rejected because they were not marked with the instrument meant for this purpose, or bore the names or signatures of the voters on the counter-foils that remained attached to them, owing to the mistake of the Presiding Officer. After having thus replied to the petitioners allegations, the returned candidate said that most of these rejected ballots had been cast for him and not for the petitioner. This was a counter-assertion which was not, strictly speaking, relevant to the case set up in thethis place it will be sufficient to say that since the returned candidate in his written statement did not specifically and fully admit all the facts alleged in Paragraph 11 (a) and (b) of the petition, the Court could not dispense with proof of those factsinstance, in reply to the facts alleged in Para 11 (a) of the petition, the returned candidate did not admit that the instrument with which such rejected ballot papers were found stamped, was supplied by the Presiding officer. On the contrary, the reply to sub-para (a) begins with a clear traverse: "that the contents of paragraph No. 11 (a) of the petition are wrong and denied". This denial notwithstanding, the learned Judge appears to have erroneously assumed this fact as admitted by the returned candidate. The parties being at variance on this material point, this issue of fact was required to be proved by the party allegingwe come to the finding of the learned Judge as to the wrong reception and rejection of votes being a common ground between the parties. We have catalogued this finding as ground (b) which is one of the four pillars on which the impugned order rests. This ground, according to Mr. Mukherji, draws particulars support from the "Additional Pleas" set up in the written statement. We do not propose to over-burden this judgment by reproducing all that has been stated in Paragraph 47 to 56 of the written statement under the caption "Additionalwe may say so with respect, in taking these Additional Pleas into account, the learned Judge completely misdirected himself. He overlooked the fact that these Pleas were irrelevant to and beyond the scope of the enquiry into the allegations in the election-petition falling under s. 100(1)(d)(iii) of the Representation of the people Act, 1951. These "Additional Pleas" were in the nature of recriminatory` pleas which could not be investigated in this electionhe instant case, it is a matter of controversy to be decided as to whetherthe recriminatory petition filed by the appellant is within time orabove being the law on the point, it is clear that the learned Judge was in error in ordering general inspection and recount of the total votes polled at the election, merely because in these Additional Pleas the returned candidate also had by way of recrimination, complained of wrong reception and rejection of votes and wrong counting of votes. The pleas at this stage could not be investigated even in the recriminatory petition filed by the returned candidate. They were beyond the scope of the enquiry into the petitioners case which (as set up in Para 11 of the petition) fall under s. 100(1)(d)(iii) of the, the High Court did not properly apply its mind to the question, whetheron the facts alleged in Para 11 (a) and (b) of the petition-assuming the same to be correct-a prima facie case for improper rejection of The 50 ballot papers referred to therein, had been made out.In other words, if the defects in these SO ballot papers were attributable to the mistakes or negligence of the Presiding officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56(2) of the Conduct of Election Rules,object of these rules is to secure not only the secrecy of the ballot but also to eliminate chances of sharp practices in the conduct of elections. Their requirements are therefore mandatory, and a defect arising from their non-observance inexorably entails rejection of the defective ballot paper except to the extent covered by the Provisions to Rulewill be sufficient to reiterate that the provisions of Rules 38 and 56(2) (a) and (b) with which we are concerned in this case are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in clauses (a) or (b) of Rule 56(2) has been committed, there is no option left with the Returning officer but to reject the faulty ballot paper. We would further make it clear that eve n if any such defect as is mentioned in clauses (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning officer or Polling Officer, the Returning officer would be bound to reject the ballot paper on the ground o f such defect. That such is the imperative of Rule 56(2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56(2) which gives a limited discretion in the matter of rejection to the Returning officer only where the defect is of a kind mentioned in clauses (g) and (h) of thisabove observations are apposite. Judged by the guiding principle enunciated therein, it can safely be said that the provisions of rule 56(2) (a) and (b) read with Rule 38, are mandatory and not merelycontention is not tenable. The word shall used in the opening Part of sub-rule (2) read in the context of the general scheme of this Rule shows that it is mandatory. Sub-rule (5)puts the matter beyond doubt. It says that "every ballot paper which is not rejected under this sub-rule shall be counted as one valid vote". Rule 56 is a complete code by itself. The Provisos to Sub-rule (2) are exhaustive of the kinds of defects which the Returning officer may con done, if those defects are caused by the mistake or failure of the Polling Staff. The first Proviso is in terms limited to defects falling under Clause (g) or (h). Neither of these Provisos appears to be attracted if the A defects is any of the defects mentioned in clauses (a) or (b).The learned Judge of the High Court has not applied his mind as to whether the facts alleged in Paragraph 11(b) of the petition, if correct, would fall within the mischief of clause (d) of Rule 5 6(2). This will necessarily require consideration of the issue whether there has been an infringement if any of the provisions of Rule 38, referable to clause (a) of Rule 56(2). Another point in this context, for consideration will be whether the "counterfoil" can be said to be an integral part of the "ballot paper" so that any writing or marks of identification of the voter on a counterfoil issued to the voter by mistake, is to be deemed to be a defect of the nature mentioned in clause (a) of Rule 56(2). The High Court has not at all addressed itself any of theseout of number, this Court has pointed out that a general Scrutiny and recount of the ballot papers should not be lightly ordered. Before making such an extraordinary order, the Court must be satisfied that all the material facts have been pleaded and proved and that such a course is imperatively necessary in the interest of justice. In the case in hand. the allegations in the election petition (vide Paragraph 11) are confined to 41 plus 9, total 50 votes only (vide Paragraph). There was no foundation in the petition for ordering a general recount. Nor could the Additional Pleas in the written statement of the returned candidate be take n into account for making an order for general inspection of the ballots, because investigation of those pleas was beyond the scope of the case alleged in Para 11 of the petition falling under section 100(1) (d) (iii) of thehave said enough. We will close the discussion by repeating the note of caution that this Court speaking through V. Krishna Iyer J. recently sounded in Chanda Singh v. Ch. Shiv Ram(1)."A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots a re interfered with by too frequent and flippant recounts by courts a new system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."