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

1. 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 Sweak Yadav - who will be referred to as "Yadav" - was at the counting of votes found to have secured to 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 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.

Reasoning: 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.