Case: Banamali Das Vs. Rajendra Chandra Mardaraj Harichandan &amp; Ors

1. Six candidates contested the mid-term election to the Orissa Legislative Assembly from the Nilgiri constituency. The polling was held on February 26, 1974 and on March 1 the result of the election was declared. The appellant who contested the election on the ticket of the Communist Party of India (Marxists) was declared as the successful candidate. According to the results declared on March 1, the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bhartiya Lok Dal secured 14297 votes. The other contestants, respondents 2 to 5, secured votes ranging between 12,312. and 5961. Respondent 6 is the Returning Officer.2. On April 13, 1974 respondent 1 filed an election petition under Section 81 of Representation of the People Act, 1951 (hereinafter called "the Act") challenging the election of the appellant and praying that, instead, he himself should be declared as the successful candidate. The appellants election was challenged by respondent 1 on the ground, mainly, that through an error the Returning Officer did not enter the results of the second round of counting on Table No. 13 in Form No. 20, as prescribed by Rule 56 (7) of the Conduct of Election Rules, 1961. It was alleged that instead of incorporating the results of the second round of counting on Table No, 13 in Form No. 20, the Returning Officer wrongly incorporated the results of the second round of counting on Table No. 14 in the column meant for the corresponding count of Table No. 13. In other words, the allegation was that the results of the second round of counting on Table No. 14 were erroneously entered twice in Form No. 20, once as against the second round of Table No. 14 and once as against the second round of Table No. 13.3. The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference of 49 votes between him and respondent No, 1. The appellant also raised several other contentions touching the maintainability of the election petition on the ground of noncompliance with statutory requirements.4. On these pleadings, the learned Judge of the High Court of Orissa,Cuttack, who tried the election petition framed 8 issues but they were re-cast after the evidence was recorded. Issues Nos, 1 to 5 pertained to the maintainability of the election petition and on these issues the learned Judge found in favour of respondent 1. Those findings are not challenged before us and, therefore, we must proceed on the basis that the election petition as presented did not suffer from any illegality.

Reasoning:
5. Issues Nos. 6 to 8 are the ones with which alone we are concerned in this appeal and those issues arise out of the contentions in regard to the entries made by the Returning Officer in Form No. 20. The ninth issue is consequential.In order to avoid errors in counting of votes, the Election Commission has compiled a hand-book for the use of returning officers containing instructions for their guidance at various stages of the elections. Before the results of the election are entered in Form No. 20, it is necessary that a record be maintained of the result of counting of eachCheck Memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer and therefore, a certified copy thereof given by the Collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original document.13. The certified copy (Ex. 1) of the Check Memo concerning the second round of counting on Table No. 13 shows that 40 bundles each containing 25 ballot papers (i.e. 1000 ballot papers) were distributed for counting in the second round. Part I of Ex. I contains these details. Part II of Ex. 1 shows the result of counting at the second round. According to the entries contained therein, the appellant secured 21 valid votes, respondent 1 secured 86, while respondents 2 to 5 secured 304, 7, 15 and 524 votes respectively. Forty-two ballot papers were rejected, thus making up a total of 999 ballot papers. Evidently, there was an error regarding one ballot paper either at the stage of distribution or at the stage of counting. What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No. 20 in the appropriate column. Surprisingly, in Form No. 20, the votes secured by the various candidates in the second round of counting on Table No. 13 were shown as: the appellant - 144 votes instead of 21; respondent 1-109 votes instead of 86; respondent No. 2 - 360 votes instead of 304; respondent No. 3 - 19 votes instead of 7; respondent No. 4 - 74 votes instead of 15, and respondent No. 5-225 votes instead of 524. In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No.13, the Final Result Sheet, Form No.20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes. The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only. As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.14. A mere look at the entries in Form No. 20 relating to the second round of counting on Tables Nos. 13 and 14 would disclose the error committed in making the entries therein. The entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No, 13. It can seldom happen that five contesting candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle. It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.We therefore uphold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No.13 was entirely omitted while making entries in Form No. 20. It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.15. This really should be an end of the matter because the only ground on which respondent 1 had challenged the appellants election was that the relevant entries in Form No. 20 did not reflect the true picture. But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt here and a doubt there regarding the manner in which the votes were counted and the ballot papers preserved. In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the parties appearing before him, that the court should take a recount of all the ballot papers. Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in Form No. 20 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and respondents 1 and 2. The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parties. The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue. After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re-recount of a packet of votes where he thought the error of the recount could with assurance be located. And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the re-recount. Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture be permitted to procreate points during the course of their pendency. As we were listening to the appellants argument, we thought we were hearing an independent election petition filed by the appellant in order to challenge the result of the recount.As respondent 1 truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellants election and declaring respondent 1 as the successfulnew errors on which the appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail.