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

The appellant, Shri Ram Autar Singh Bhadauria. Respondent No. 1 Chaudhari Ram Gopal Singh and Respondents 2 to 11 contested election, as rival candidates from U. P. Legislative Assembly Constituency (No. 293), Sarsaul. The poll was held on 24-2-1974. The appellant was declared elected. The total number of votes polled was 72735. Out of these, the appellant secured 23626 and Respondent 1, his nearest rival polled 23604, the margin being of 22 votes1 filed an election petition challenging the election of the appellant inter alia on the ground (vide para 9(1) of the petition) that the result of the election so far as the returned candidate was concerned materially affected by improper reception and rejection of votes and mistakes in counting. It was alleged:"para 11(a). That in a number of polling stations, the instruments supplied to the electors for the purposes of stamping on or near the symbol of the candidate to whom he intends to vote, was seal of Presiding officer which was meant to be put on the reverse of the ballot papers. Since the electors were supplied these instruments by the Presiding officer for marking the ballot papers the electors indicated their choice by marking in the column of the petitioner with that instrument. There were 41 such ballot papers which were clear votes for the petitioner that were illegally rejected by the Presiding officer on the ground that the electors choice was expressed through the instrument meant for the Presiding officer for stamping on the reverse side of the ballot papers. Particulars of such ballot papers are given in Schedule I attached to the Election Petition.(b) That in a number of polling stat ions, the electors were issued ballot papers along with the counter-foil. While issuing the ballot papers to the electors, the polling staff . deputed there did not detach the counter foil and the electors after putting seal mark put the ballot papers along with the counter foil in the ballot box. It was due to the mistake of the staff deputed at the polling station. The number of some of such ballot papers are-100976, 100977, 100978, 100979, 100980, 100982, 100983 and 100984. These ballot papers clearly indicate the votes for the petitioner but they were illegally rejected on the ground that the identity of the elector can be established. The reason on which it was r ejected was wholly illegal. The particulars of such bal lot papers are given in Schedule IT attached to this electionhis written statement, the successful candidate stated:"65(1). That the contents of paragraph No. 9(1) of the Election Petition are not admitted. The result of the election in so far as the answering respondent is concerned has not been materially affected by any improper reception or rejection, or by wrong arithmetical and clerical mistake in counting of votes and/or counting and acceptance of void votes in favour of the answering respondent. In fact no improper reception or rejection or arithmetical mistake or any clerical mistake was done in favour of the answering respondent16. That the contents of paragraph No. 11 (a) of the petition are wrong and denied. It is wrong to say that 41 ballot papers mentioned in Schedule I or any ballot paper counted in favour of the respondent No. 1 by marking with the seal of the Presiding officer. It is admitted that the ballot papers on which unauthorised seal was found were rejected. Some of these rejected ballot papers may be of the petitioner but most of them were of respondent No. 1 and other contesting candidates.17. That the contents of para 11 (b) of the petition and Schedule II are not admitted as stated. Only on one polling station, due to the mistake of the Presiding officer some bal lot papers were issued along with their counter-foils. The counterfoils did contain the name and signature or thumb impression of the voters attached to the ballot paper. In these circumstances such ballot papers were rejected by the Returning officer. It is submitted that such ballot paper were in respect of all the candidates including the respondent No. 1.Further, no such objection was raised at the time of counting by the Petitioner or his election agent and/or his counting Agent.56. That no different criteria was adopted by the Returning officer in the matter of acceptance or rejection of ballot papers and the respondent No. 1 maintains that many ballot papers in which the Electors expressed their choice in favour of the respondent No. 1 by putting the seal of the Presiding officer as supplied by the Presiding officer, were wrongly rejected during the counting by the Returning1 did not adduce any evidence in support of the allegations extracted above. But on 24-2-1975, he made an application before the High Court, praying for scrutiny and recount of the ballot papers. The allegations in para 11(a) and (b) of the election petition were reiterated in the application. The appellant in reply filed a counter-affidavit which was substantially a reproduction of his reply in the writtenlearned Judge of the High Court by his order, dated 9-4-1975, allowed that application and directed scrutiny and recount of ballot papers on the view that:(a) The appellant "was declared to have won by a very small margin of only 22 votes".(b) "It is not in dispute that a number of ballot papers were rejected by the Returning officer as invalid be cause the polling staff of a particular polling station forgot to detach the counter-foils of a number of ballot papers. As the counter-foils contained the identity of the voters, the ballot papers were rejected for no fault of the voters, but because of negligence or incompetence on the part of the polling staff".(c) "It is also the admitted case of the parties that a number of ballot papers were rejected because the voters cast their votes by putting their mark not with the marking instrument issued by the Election Com mission but with the marking or stamping instrument issued by the Election Commission for the use of the Presiding officers. This happened because instead of the instrument which the polling staff should have given to a voter to put the mark showing for which candidate he wanted to vote, the polling staff by mistake handed over to the voter the stamp meant for the Presiding officer.. to affix on the back of the ballot paper."(d) It "The petition, the written statement, the recriminatory petition filed by the respondent (now appellant) and the reply thereto filed by the petitioner would show that this is a case in which both parties have pleaded that there was wrong reception, rejection and u counting of votes."It is against this order dated 9-4-75 of the High Court that this appeal has been filed by the returned candidate after obtaining special leave.

Reasoning:
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."