Case: R. Narayanan Vs. S. Semmalai &amp; Others

Civil Appeal No. 524 of 1978 has been filed by the appellant R. Narayanan who was the respondent before the High Court and in short would be referred to as the appellant. Civil Appeal No. 588 of 1978 has been filed by the appellant after obtaining special leave from this Court and is directed against that part of the order of the High Court which refused to entertain the recrimination petition filed by the appellant . The election petitioner before the High Court for the purpose of brevity will hereafter be referred to as the respondentBoth the appellant and the respondent contested the election held on. The appellant who was a Congress c andidate with the symbol of calf and cow wheras the respondent was put forward as a candidate of the All India Anna Dravida Munnetra Kazh agam and contested with the symbol of Two Leaves. There were 14 candidates in all whose nominations w ere found valid but out of them 7 withdrew. The appellant and respondents No. 1 to 6 before the High Court remained in the field as contesting candidates. The respondent filed an election petition in the High Court under sections 81 and 84 of th e Representation of the People Act, 1951 (hereinafter referred to as the Act) for a declaration that the election of the appellant to the 85 Taramangalam Assembly Constituency of the Tamil Nadu Legislative Assembly was void under section 100(1) (d)(i ii) and (iv) of the Act and further prayed that he may be duly declared to be elected under section 101 of the Act. The other candidates who were in the field lost the election and could not be electedThe sheet anchor of the case of the respondent was that there were number of errors in the counting of votes as a result of which number of votes were wrongly rejected or wrongly accepted. It was also alleged that the electoral roll was inaccurate as it contained the names of n umber of persons who were already dead who had supposed to have cast their votes. The main relief sought by the respondent was that ashould be ordered particularly because the margin by which the appellant succeeded was extremely narrow being only 19 votes and if the postal ballots are included then the difference would be only 9 votes. A number of allegations were made regarding the errors in the counting of votes. The appellant denied all the allegations made by the respondent in his election petition and after filing his written statement sought a petition for recrimination on the ground that a number of persons had impersonated as the appellant as a result of which the respondent got a number of wrong votes; otherwise the margin would have become larger. The High Court however found that the petition for recrimination was time barred, and, therefore, could not be entertained. The learned Judge who heard the election petition rejected the recrimination petition which is the subject matter of Civil Appeal No. 588 of 1978. In the view that we take in this case, it is not necessary for us to give any pronouncement regarding the validity of the order of the Judge rejecting the recrimination petition.The counting of votes took place at St. Marys Girls High School, Mettur on. The initial counting commenced at 11 a.m. and ended at 3 a.m. on the 15th June, 1977. The counting is alleged to have been done in three rounds. Afte r the counting was over the respondent filed an application before the Returning Officer for aon the ground that there were a number of counting errors due to the shortage of staff and the tables on which votes were counted, paucity of lig ht and the fact that the counting staff became absolutely exhausted and tired. The Returning Officer rejected the prayer of the respondent forwent ahead with the declaration of the resultsThe appellants case was that the re was sufficient space in the hall in which the counting took place and the polling agents of all the candidates were present when the counting was done and none of them raised any objection when the counting was actually done. It was also alleg ed that there were sufficient number of tube lights in the hall and that there was no question of there being any opportunity of committing mistakes in counting. All the ballot papers were opened in the presence of the counting agents including the coun ting agent of the respondent and kept in the box which contained the ballot papers of the candidates concerned. The allegation of the respondent that some outsiders including one Perumal were also allowed to enter the ball when the counting was going on was also denied by the appellantThe learned Judge after taking evidence of both the parties rejected most of the allegations made by the respondent but accepted the allegation that there were some counting errors at two tables, that there was paucity of light and that the counting staff was completely tired and exhausted, during the third round.

Court's reasoning:
In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover, the relief ofg cannot be accepted merely on the possibility of their being an error. It isd that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific ins tance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of P.W. 23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11.30 p.m. and the third round started at 12ended at 2 a.m. The witness w as asked inn whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that recount should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observedt is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find outwhether the third round of counting was carried on by the counting staff properly.In the nature of things it is not possible to assume that all the 7 2 persons were alert and attended to the process of counting with such keenness as it deservedThis finding is also based on pure speculation and cannot be maintainedLastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justifyIt would thus be seen that all the three grounds taken by the respondent before the Returning Officer were absolutely vague and could not make out a case forg by the Returning Offic er much less by the court. It may be relevant to note that in the application filed by the respondent the question that the appellant succeeded by a narrow margin was also not mentionedThus, on a consideration of the principles deduced from the authorities mentioned above and the evidence led in this case by the parties, we are satisfied that this was not a case in which ashould have been ordered by the learned JudgeThe law on the subject is absolutely clear and while the learned Judge had relied on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this caseIn the first place, this observation was really meant for the Returning Officer because at the time when request forthe Returning Officer is made the electoral process is still continuing and if there are any counting errors they can be rectified before the election process is complete. This however cannot apply to the Court while dealing with an election petition because if aordered at that stage then the electoral process has to be restarted afresh. In our country the election is an extremely expensive process and unless very clear case for recount is made out the candidates should not be put to unnecessary trouble and expense.