M.R. GOPALAKRISHNAN

THACHADY PRABHAKARAN AND ORS.

DECEMBER 13, 1994

[DR. A.S. ANAND AND FAIZAN UDDIN, JJ.]

Election: Representation of People Act, 1951-Sections 51-58, 63, 94, JOO, 123(3) and 128 Election to Legislative Assembly-Irregularity not advanced orally or in writing at the time of counting of votes-Whether constitutes irregularity in counting of votes-Whether could affect the result of election of the returned candidate-Held: No-consistent practice is that Courts do not to interfere unless there is grave or palpable error in the appreciation Jf evidence-Stressed / I The appellant and respondents 1 to 7 were candidates for a Legislative Assembly seat. The total number of votes polled in the said election were 97,969, out of which 1,375 were rejected as invalid votes.- At the end of final counting, the result of election was declared and the respondent No. 1 was returned as successful candidate by a margin of 33 votes.

The appellant challenged the election of the returned candidate by filing an election petition before the High Court on the grounds mainly that the counting of votes for the Legislative Assembly as well as Parliamentary constituency both took place simultaneously in a small hall which was of the size of 80 x 20 feet; there were several tables and chairs in the said counting hall and the , counting agents of all the candidates and other officials were present in the hall, it became crowdy and the sorting out of bundles of ballot papers was done hastily and, therefore, it was not possible for the counting agents of the appellant to carefully keep a track of the process of sorting out and therefore a reasonable opportunity was not given to the appellant or his agents to note and satisfy themselves that the bundles were really of the candidates for whom the votes were cast or the correctness of the ballot papers in each bundle. It was also alleged that the Returning Officer rejected the votes as invalid despite the protest by the appellant's election agent, and he made an application for recounting, alleging specific irregularities in the counting but the same was unreasonably rejected by the returning officer and the respondent No. 1 was declared elected. It has been further alleged that on 17.6,91 the appellant had

M.R. GOPALAKRISHNAN v. T. PRABHAKARAN 461

submitted an application to the District Collector for recounting and A the election agent of the appellant had also sent an application to the Chief Election Officer pointing out the irregularities in the counting.

The appellant further alleged that several postal ballots were rejected without valid reason and the votes cast in favour of the appellant were treated as invalid and in many polling stations the figures in ballot paper account did not tally.

It was also alleged that several persons had cast their votes by committing acts of impersonation in place of real and genuine voters. It further alleged that 32 voters had cast their votes twice as their names were entered in the electoral roll in more than one place, and therefore, the result of the election had been materially affected in so far as the C returned candidate was concerned.

The appellant also made allegations of corrupt practices by respondent No. 1 in the said election by publishing news items in the Malayala Manorma Daily to create an impression in the mind of the voters of the constituency that the appellant was indulging in D undesirable activities to secure the release of convicts who were undergoing life imprisonment for the purpose of making use of their services in the election and also alleged publishing of pamphlet and circulating the same with a false statement of the knowledge of respondent No. 1 and his election agent and due to circulation of the E pamphlets he lost large number of votes and also alleged violation of Rule 27(1) and Rule 54-A of the Election Rules.

The Respondent No. 1 while refuting the allegations made against him and his election agent, filed a recrimination petition alleging that the appellant himself was guilty of committing corrupt practice as F defined in Section 123 of the Act. He further alleged that the appellant has committed corrupt practices namely publishing notices containing an appeal to voters belonging to Muslim and Ezhuva community to vote for L.D.F. candidate, which amounted to corrupt practice as defined under Section 100 read with sub-section (3) of Section 123 of the Act. On the allegation in the recrimination petition the respondent G No. 1 submitted that even if the appellant had been declared elected his election would have been void 9n the aforesaid grounds.

The High Court held that there was no irregularity in the counting of votes which may have materially affected the result of the election;

th~ the rejection of the postal ballet papers was for valid reasons.

on the allegation of double voting by 32 voters the High Court recorded the finding that respondent received 20 votes improperly. The High Court therefore, took the view that since the improper receipt of 20 votes did not materially affect the result of election of the returned candidates as it only reduced the margin from 33 to 13 and dismissed the election petition. High Court did not consider the allegations made against the petitioner in the recrimination petition filed by the respondent No. 1. Aggrieved by the said judgment the present appeal has been preferred.

Dismissing the appeal, the Court

HELD: 1. The irregularities pointed out in pareas 1 to 5 of the application were not mentioned in the earlier two applications. This clearly goes to show that the irregularities pointed out in their latter application are only after thought and not based on any true facts. If in fact any of the irregularities of the kind alleged in paras 4 and 7 of the election petition or those as mentioned in the applications dt. 21.6.91 were in fact committed, it is difficult to understand as to why these irregularities were not pointed out to the returning Officer or any of the observers when they visited the counting hall when counting was going on. No complaint about any irregularity or about the uncongenial atmosphere of the hall was reported either orally or in writing to the Returning Officer or to any official connected with the affairs of the counting during the course 'or counting on 16.6.1991. It is therefore difficult to accept the allegations that the atmosphere of counting hall was not congenial or there was any difficulty in the counting due to the size of the hall or any irregularity was committed as alleged by the appellant in the election petition. [476 F to HJ

2. The rules and procedure of counting provide the candidates and their counting agents sufficient and adequate opportunity to see and examine and raise objections, if any, in respect of any ballot paper with regard to its validity or otherwise and it is only after objections, if any the ballot paper is admitted as valid or invalid as the case may be. Not only this but even after the completion of the process of counting a provision is made in Rule 63 to make a demand to the Returning Officers for recount of the votes either wholly or in part stating the grounds on which the demand for such recount is made. It is only after compliance of this elaborate procedure that Returning Officer prepares the result sheet in form 20 and declares the result. [478 A to BJ

M.R. GOPALAKRISHNAN v. T. PRABHAKARAN 463

3. The rules provide adequate opportunity to a candidate, his A election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agents are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material B facts in the election petition in relation thereto. The demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the C recount, no Tribunal or Court would be justified in directing the recount. [478 D to FJ

Bhabhi v. Sheo Gobind and Others, [1976J 1 SCC 687 and Satyanarayana Dudhani v. Uday Kumar Singh, [1993J Suppl. 2 SCC 82, referred to.

4. There is no specific instance or allegation in the petition with regard to any particular irregularity and the meagre and vague allegations that have been made are not supported by any contemporaneous evidence making out a prima facie case for recount and, therefore, the Returning Officer as well as the High Court were E fully justified in rejecting the demand for recount. [479 G to HJ

5. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No. 1 nor has he given the particulars of the number of such valid votes in favour of the appellant and which were wrongly F rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing about invalid votes being counted in favour of the appellant were G rejected. The evidence of Returning Officer clearly goes to show that no such complaint was made by any one during the course of counting. (482 C to DJ

6. There is absolutely no basis to show that there prevailed any kind of confusion or irregularity in the counting which could have H 1

disabled the appellant or: his agents from watching the process of counting. No such grievance was ever advanced by the appellant or his agents at the time of counting either orally or in writing to the Returning Officer or to the observers or any member of the counting staff deputed for the purpose. The applications for recounting were made only after the counting was over and the result was declared, and that too with vague allegations. [482 H, 483 A to BJ

7. It has been the consistent practice of this Court not to interfere with the findings on the question of fact unless there is some grave or palpable error in the appreciation of evidence on the basis of which the findings were arrived at by the Tribunal/High Court. In the present case a scrutiny of the evidence adduced. by the parties shows no error or infirmity in the finding. [483 F]

8. Even if it is accepted that the 9 votes in favour of the respondent No. 1 should have been rejected for double voting by the said nine voters, although there is no sound basis for the same, yet it would only reduce the margin from 13 to 4 without materially affecting the result of the election. Thus even after giving all the possible discounts the election of Respondent No. 1 cannot be set aside or declared void as he still remains a winner. In view of these facts and circumstances it would be a futile exercise to go into the question of recrimination petition made by the respondent No. 1 making certain allegations against the appellant. [483 G to H, 484 A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3755 of 1992.

From the Judgment and Order dated 8.7.92 of the Kerala High Court in Election Petition No. 6of1991.

P.S. Poti and Ms. Malini Poduval for the Appellant.

Joseph Vallapally, R. Sasiprabhu, A. Jayaram, Mr. George Jacob and Mukti Sinha for the Respondent.

The Judgment of the Court was delivered by

FAIZAN UDDIN, J. This appeal under Section 116-A of the Representation of People Act, 1951 (hereinafter referred to as the Act.) has been directed against the Judgment of the High Court of Kerala dismissing the H Election Petition of the appellant whereby he had challenged the election of

respondent No. 1 as a member of Kerala Legislative Assembly from A constituency No. 104 Kayamkulam, and for a further declaration that the appellant was duly elected for the said seat for which the election was held on 12.6.1991 and the result of which was declared on 16.6.1991.

2. In all there were eight candidates in the field i.e. the appellant and respondents No. 1 to 7 who contested the said election for the Legislative B Assembly seat from 104 Kayamkulam constituency. The appellant was a candidate fielded by the Communist Party of India (Marxist). The respondent no. 1 herein was the candidate sponsored by the Indian national Congress which was a constituent party of the United Democratic Front.

The total number of votes polled in the said election were 97,969 out of which 1,375 were rejected as invalid votes and 96,594 votes were received C as valid votes. At the end of the final counting which took place on June 16, 1991 the result was declared and the respondent No. 1 was returned as a successful candidate by a margin of 33 votes against his nearest rival, the petitioner/appellant herein. The main contest was between the appellant and the respondent no. 1. The appellant had polled 46,649 votes while the respondent No. 1 had polled the 46,682 votes and thus the respondent No. 1 D had won the election by a margin of 33 votes over his nearest rival, the petitioner/appellant herein and, therefore, he was declared elected.

3. The appellant challenged the election of the returned candidate respondent No. l herein by filing an Election Petition under the relevant provisions of the Act, in the High Court of Kerala on several grounds. It E was alleged by the appellant that the counting of votes for the Legislative Assembly Constituency as well as counting of votes for the Kayamkulam segment of Mavelikara Parliamentary Constituency both took place simultaneously in the same hall which was of the size of 80 x 20 feet and as there were several tables and chairs in the said counting hall and the counting agents of all the candid11tes and other officials were present in the F hall, it became crowdy and the sorting out of bundles of ballot papers was done hastily and, therefore, it was not possible for the counting agents of the petitioner/appellant to carefully keep a track of the process of sorting out. It was, therefore alleged that a reasonable opportunity was not given to the appellant's agents to note and satisfy themselves that the bundles were G really of the candidates for whom the votes were cast or the correctness of the ballot papers in each bundle. It was alleged that the Returning Officer . rejected the votes as invalid inspite of the protest by the petitioner/appellants election agent. The petitioner/appellant's election agent made an application for recount alleging specific irregularities in the counting but the same was unreasonably rejected by the Returning Officer H

and the respondent No. 1 was declared elected. It has been further alleged that on 17.6.91 the petitioner/appellant submitted an application to the District Collector, Alapuzha for recounting and the election agent of the petitioner/appellant had also sent an application to the Chief Election Officer pointing out the irregularities in the counting.

The petitioner/appellant further alleged that several postal ballots were rejected without valid reason and the votes cast in favour of the appellant were treated as invalid and in many polling stations the figure in the ballot paper account did not tally.

4. The petitioner/appellant further made allegations that several persons had cost their votes by committing acts of impersonation, in place of the real and genuine voters. The appellant also alleged that 32 voters had cast their votes twice in the same constituency as their names were entered in the electoral roll in more than one place and that 18 persons had voed in more than one constituency the details of which were given in Annexure IV and V annexed with the Election Petition. It was therefore alleged that the result of the election had been materially affected in so far as the returned candidate is concerned.

5. The petitioner/appellant also made allegations against respondent No. l for committing corrupt practices in the said election by publishing news item in the Malayala Manorma Daily dated 18.8.91 with a view to create an impression in the mind of the voters of the constituency that the petitioner/appellant was indulging in undesirable activities to secure the release of convicts who were undergoing life imprisonment for the purpose of making use of their services in the election. The appellant also alleged that with a view to prejudice the election prospects of the appellant a pamphlet was published and circulated in the constituency which contained false statement to the knowledge of respondent No. l and his election agent. The petitioner/appellant alleged that a news item was published on 7 .6.91 in Malayala Manorma daily followed by an election pamphlet which was widely circulated in the Kayamkulam Assembly Constituency the contents of which were false and designed to prejudice the minds of Muslim voters in the constituency as there was a number of Muslim voters in wards No. 7,9 and IO. The petitioner/appellant alleged that due to the distribution of said pamphlet he lost large number of votes. The appellant also alleged that another pamphlet was also published after the death of Shri Rajiv Gandhi mentioning that the workers of the appellant had destroyed the photos of Shri Rajiv Gandhi and burnt Bhagwat Gita, Holy Quran and Holy Bible. The petitioner/appellant alleged that this pamphlet was published after 23.5.91 and prior to 12.6.91 with the consent and

M.R. (}OPALAKRISHNAN v. T. PRABHAKARAN [FAIZAN UDDIN, I.] 467

knowledge of.respondent No. I with a view to prejudice the mifids of the A voters of the constituency against the petitioner/appellant.

6. The petitioner/appellant further alleged in the Election Petition that out of the total number of 1280 postal ballots, 246 postal ballots were rejected by violating Rule 27(1) and Rule 54-A of the conduct of Election Rules. The petitioner/appellant alleged that his election agent requsted the B Returning Officer to count all the postal ballots but the returning Officer illegally rejected 246 postal ballots and the request for recount of those 246 ballots papers was also rejected without assigning any reason for such rejection. On these grounds the appellant prayed for declaration of the election of respondent No. 1 as void and to declare the petitioner as duly elected candidate for the said constituency. C

7. The returned candidate respondent No. contested the Election Petition filed against him by controverting all the adverse allegations. The respondent No. 1 pleaded that the Returning Officer had afforded adequate opportunity to tbe election agents and counting agents of the candidates to carefully watch the sorting out of the ballot papers and the Chief Election D agent of the petitioner/appellant was. present throughout the process of counting. But as there were no irregularities nobody raised any objection regarding the sorting out or counting of votes. The respondent No. I pleaded that on the demand of the election agent of the appellant a second round of counting of votes of certain polling stations was done but no fault was noticed. He has pleaded that 246 postal ballots were rejected for valid E reasons and no illegality was committed by the Returning Officer in the matter of dealing with postal ballots. The respondent No. I further pleaded that no person had cast any vote by committing acts of impersonation as alleged by the appellant in his election petition. The respondent No. I emphatically denied that Annexure VII and VIII were published by him or F by any one of either with his consent and knowledge or that of his election agent. He asserted that his election agents were in no way concerned or associated with the alleged publication of Annexure VII and VIII. He also refuted the allegation of publication of Annexure IX and X either with his consent or knowledge or that of his election agent.

8. The respondent No. I while refuting the allegations made against him and his election agent filed a recrimination petition under section 97 of the Act alleging that the petitioner/appellant himself was guilty of committing corrupt practice as defined in Section 123 of the Act. He alleged that one M.R. Rajasekharan was the election agent of the petitioner/appellant who was also the Secretary of the Election Committee H

and it was he who printed and published a notice under the caption (English Version) "Elect the candidate of left Front", the copies of which were distributed in various parts of the constituency Qn 10.5.91. He further alleged that another notice was published on 7.6.91 by the election agent of the appellant under the caption (English Version) "let the devotees of Shri Narayana think". The said two notices were filed by the respondent No. 1 as Annexure 'A' and 'B' along with the recrimination petition. Annexure 'A' contained an appeal to the Muslim community to vote for L.D.F. candidate and Annexure 'B' contained an appeal to voters belonging to Ezhuva community which according to the respondent No. 1 amounted to corrupt practice as defined under Section 100 read with sub-section (3) of Section 123 of the Act. The respondent No. 1 further made allegations of double voting by some voters while names of some voters appeared in neighbouring constituency as well. On these allegations in the recrimination petition the respondent No. 1 submitted that even if the appellant had been declared elected his election would have been void on the aforesaid grounds.

9. The High Court framed necessary issues on the aforesaid pleadings and after the evaluation of the evidence adduced by the parties and talking into account the material on record held that there was no irregularity in the counting of votes which may have materially affected the result of the election; that the rejection of the postal ballot papers was for valid reasons; that it is clear from the evidence that as and when the petitioner's agent raised any objection regarding the counting there was checking and rechecking and according to the evidence of Returning Officer; PW 16 at least 40 per cent of the ballot papers were subjected to test checking but no difference was found in such test checking and therefore, in the absence of any specific irregularity pointed out by the petitioner/appellant's agent regarding the counting, PW 16 was justified in rejecting the request for recount and as such no cru.e was made out for directing recount; that the petitioner/appellant had failed to establish that the pamphlets Ext. P .158 and Ext. P 159 were printed and published with the consent and knowledge of the respondent No. 1 and that the alleged publication do not fall within the purview of corrupt practice as envisaged under sub-section (4) of section 123 of the Act; that the petitioner/appellant had failed to prove that Annexures VIII, IX and X i.e. Ext. P 161, Ext. P 162 and Ext. P 157 were printed, published and circulated by the respondent No. 1 or his election agent or by any other person with their consent and knowledge; that the petitioner also failed to prove that four persons had cast votes by impersonation as alleged in para 4 of the election petition. However, the High Court on issue No. 8 with regard to the petitioner/appellant's

allegation of double voting by 32 voters recorded the finding that A Seethabhai Sanjivan, PW 2 had cast two votes in respect of electoral roll No. 051419, Ext. P 7 and No. 048734 Ext. P 9 and, therefore, both were _.. declared as void. The High Court also recorded the finding that voter No. 375 and voter no. 1271 in the electoral roll relate to the same person Achuthan Sukumar.an, PW 3 and Achuthan had cast his vote in Kayamkulam constituency against voter No. 1271 in Ext. P 5 and that B someone else had cast his vote against voter No. 375 in Ext. P 8 which the High Court declared !O be void. Similarly the High Court further recorded the finding that Pulikkandathil Sujatha Achuthan, voter No. 376 in Ext. P 8 is the same whose name appears in the polling station No. 43 as well as polling station No. 45 and therefore, one vote has been declared as void.

The High Court also held that voter No. 1221 in Ext. P 15 and voter No. C 143 in Ext. P 16 is one and the same person Sagar Yunus Kunju, PW 5 and that someone had cast the vote on behalf of PW 5 against voter No. 143 in Ext. P 16 and, therefore, one vote against P 16 has also been declared void.

The High Court also held that Madhavan Neelakanthan, PW 11 had cast two votes in the same constituency (Ext. P 43 and Ext. P 44) and, therefore, both have been declared void. The High Court also declared one vote of D PW 12 to be void. It was also found that the name of Kunjumuthu @ Kunju, PW 13 and Anjali Siril Kunju Muthu @ Muthu is one and the same person whose name appeared in polling station No. 7 as well as in polling station No. 35, who had cast vote at both the places and, therefore, both the votes are declared void. The High Court also found that one vote of PW 27 cast against counterfoil No. 001475 (Ext. P 89) was liable to be declared E void. Similarly it was found that Madhuradha Krishnan, PW 29 had cast his vote twice and, therefore, both the votes against counterfoil No. 041933 (Ext. P 97) and counterfoil No. 090465 (Ext. P 98) were also declared void.

One vote of Radhakrishnan Kun ju, PW 30 was also declared as void as his name appeared in two polling stations and he had cast his vote only in one F polling station while someone else had cast the vote at the other polling station by impersonation. Similarly one vote of Suresh Kumar Dasappan Pillay, PW 31 was also declared void for the same reasons. The High Court also found that Abdul Rasheed Ayyar Kunju, PW 32 had cast his vote twice in the same constituency and, therefore, both the votes are declared void.

Thus under Section No. 8 the High Court found in all 20 votes to be void. G The High Court therefore, took the view that since the improper reception of 20 votes did not materially affect the result of election of the returned candidate as it only reduced the margin from 33 to 13 by reason of which the election of the returned candidate respondent No. I herein cannot be declared to be void. Consequently, the question of declaration of the petitioner as the returned candidate did not arise. Since the High Court H

A found that even after giving a discount of 20 improperly received votes, the election of respondent No. 1 could not be cancelled or declared void and, therefore, it dismissed the election petition. The High Court did not consider it necessary to go into the allegations and grounds raised by the respondent No. 1 against the petitioner/appellant in his recrimination application filed under Section 97 of the Act and the evidence adduced in B support of the same.

10. Though Shri P.S. Poti, learned senior counsel appearing for the petitioner/appellant assailed all the findings recorded by the High Court in dismissing the election petition but his main attack was that :

(i) The counting was not conducted legally and properly and in a

congenial atmosphere by reason of which the Returning Officer ought not to have rejected the application for recount and that in any case the prayer made to that effect in the election petition should not have been rejected by the High Court in view of the facts and circumstances mentioned in paras 4 and 7 of the election petition.

(ii) Out of the total No. of 1280 postal ballots, the Returning Officer rejected 246 ballot papers and, out of these 246, 24 postal ballot in Ext. P 54 series only were rejected giving reasons in accordance with Rule 54(A) ( 4) of the conduct of Election Rules, 1961 while 222 ballot papers of ext. P 55 series were rejected without any endorsement for such rejection which is E clearly repugnant to the mandatory provisions contained in Rule 54 (A) (4) and, therefore, this reason _alone was sufficient to hold that the result of the election was materially affected as according to the appellant there were valid postal ballots in favour of the appellant amongst those which were improperly rejected and;

(iii) That invalid votes were counted in favour of the returned candidate respondent No. 1 and out of the total rejected votes of 1375 quite a large number of valid votes in favour of the appellant were rejected which materially affected the result of the election.

11. In order to appreciate the first contention advanced by the learned G counsl for the appellant and referred to above it has to be seen whether the appellant has pleaded. material facts and laid adequate foundation for a direction for inspection and recount. In this regard learned .counsel for the appellant submitted that the pleadings with regard to the material facts for a direction for recount are contained in paras 4 and 7 of the election petition.

Briefly stated the allegations made in para 4 of the election petition are that H the counting of 104, Kayamkulam Assembly Constituency as well as the

counting of Parliamentary election was simultaneously done in a Hall A which had a length of 80 feet and width of 20 feet which was insufficient to properly accommodate the stage of the Returning Officer and the assistants as well as the counting staff, candidates and their counting agents by reason of which various irregularities were either consciously committed by the counting staff or occurred on account of the hurried sorting out and putting the ballot papers into different compartments of the candidates or the B compartments meant for the doubtful votes while bundling up the ballot papers of respective candidates into bundles of 50 each. It is stated that it was difficult for the agents of the petitioner/appellant to carefully keep track of the sorting out or identifying the voters mark on the ballot papers before they were put into different compartments. It has been further alleged that a partisan attitude of the counting officers and supervisors was C visible. The counting agents of the petitioner raised objection on several occasions and Shri

M.R.

Rajesekharan, election agent of the petitioner/appellant mentioned these facts to the Returning Officer who told him that it was up to the counting agents to watch the process and the whole counting is to be done without delay as the result has to be declared as early as possible. It is further alleged in the same para 4 of the petition that as the D petitioner was aware of several specific irregularities at the counting and the fact that the Returning Officer himself had rejected several votes as invalid over ruling the protest of the petitioner's election agent that they were the votes polled by the petitioner, so the petitioner's election agent made an application for recount of the votes but the Returning Officer rejected the application without any justification and unilaterally declared E the first respondent as elected by a margin of 33 votes despite vehement protest of the petitioner's election agent. His pleadings contained in para 7 of the election petition relate to the allegation about casting of several votes by impersonation giving the names of four persons who were alleged to have voted for the persons whose name appeared in the electoral roll in polling booths No. 15, 30 and 3. According to the learned counsel for the appellant these facts in addition to the fact that 222 postal ballots were rejected contrary to the mandatory rule constituted material facts for direction for inspection and recount of all the ballot papers. But on a careful

and critical examination of the facts and the evidence on record we find that they speak contrary to the allegations referred to above in the petition G which shall be discussed in the paras hereinafter.

12. We shall first discuss the evidence relating to the alleged irregularities said to have been committed during the counting. Shri M.Siraj Kunju, PW 16, District Planning Officer was the Returning Officer of 104, Kayamkulam Assembly Constituency for the general election held on June H

A 12, 1991. He deposed that the Chief Election Agents of various candidates were sitting near him (Returning Officer). There were two independent observers deputed by the Election Commission who visited the Counting Hall. He also stated that the election agent of the petitioner/appellant wanted recounting of the entire ballot papers but as he had not specifically requested in respect of rejection of any ballot paper in a particular polling B station he did not allow the application for recount. But on demand by the Chief Election Agent of the petitioner the entire ballot papers of polling booths N. 96 to 111 were counted twice. He also stated that he himself had supervised the second counting in respect of some of the tables and his Assistant Returning Officers supervised in respect of other tables. He c

further deposed that before a final decision was taken in the application for counting, he consulted the officials who were Incharge of the preparation of the final sheets whether there was any mistake and he himself checked the result sheets. He stated that during the time of counting the actual number of votes secured by each candidate was shown in the Display Board and this was being done till the counting was over but no body raised any objection. A perusal of the evidence of the Returning Officer, PW 16 will go to show that no question in cross-examination on behalf of the appellant was directed against the alleged uncongenial atmosphere in the counting hall or any difficulty in the sorting out or putting the ballot papers in different compartments or in the bundles of different candidates. No question was also directed that the agents felt any difficulty in carefully keeping the track on the sorting out or identifying process or regarding the indifferent attitude of the counting staff. No question was also put to the Returning Officer that proper opportunity to the appellant's agents was not afforded with regard to the verification of marks made by the voters on the ballot papers.

13. It is no doubt true that M.R. Rajasekharan, PW 98, election agent of the petitioner/appellant made an application on 16.6.91 purporting to have been made at 10.35 PM to the Returning Officer for recount. The said application which is Ext. P 207 reads as under:-

EXT. P.207

G From

M.R. Rajsekharan, Election agent of Shri MR Gopalakrishnan,

104, Kayaip.kulam H Assembly Constituency.

To A

The Returning Officer,

104, Kayamkulam Assembly Constituency.

Respected Sir,

It is understood to me that there are irregularities in the counting of votes, which began from 8-15, today morning, of many polling station of 104, Kayamkulam Assembly Constituency and also I have doubt about the counting of Postal Ballots and also votes are not telling with the records.

In addition to this that many number of votes have been unauthorisedly C and illegally declared invalid and so that entire votes of this station may be subjected to recount, otherwise it will cause irreparable loss to me and to my candidate.

Hence, it is requested that the result of this station may be announced only after the recount is conducted.

10.35 PM

Harri pad,

16.6.1991.

Yours faithfully,

Sd/-

M.R. RAJASEKHARAN E

Plain reading of this application will go to show that it is written in most vague terms without specifying any irregularities whatsoever which according to the petitioner/appellant were committed during the course of F counting.

14. The appellant M.R. Gopalakrishnan who appeared as PW 100 himself made an application Ext. P 211 on 19.6.91 three days after the declaration of result to the Chief Electoral Officer, Trivendrum for recount G which is reproduced, hereunder:-

EXT. P.211

From:

M.R. Gopalakrishnan, H

SUPREME COURT REPORTS

Candidate 104, Kayamkulam Assembly Constituency,

KA YAMKULAM.

[1994] SUPP. 6 S.C.R

B The Chief Electoral Officer, 1991 Assembly Elections,

TRIVANDRUM.

SUB: Rejection of application for re-counting and re-verification of Postal Ballot Papers. Request for recounting and re- C verificaton.

Sir,

I was a candidate for the Assembly Election in 104 Kayamkulam Constituency. My opposite candidate Shri 'Thacl)adi Prabhakaran was D declared for 33 votes by the Returning Officer.

Knowing that there was irregularities and illegality in the matter of counting, my chief Agent has placed an application for recounting.

The Returning Officer has declared hundreds of invalid votes as valid E in favour of Shri Thachady Prabhakaran. My valid votes have been declared as invalid.

About 300 postal ballot papers have been declared by the Returning Officer as invalid votes.

F For the reasons stated above, I request you to be good enough to take urgent steps to re-count the ballots as soon as possible.

Yours faithfully,

Sd/- G (M.R. Gopalankrishnan)

Kayamkulam, 19.6.1991.

H Copy to: Chief Election Commission, New Delhi.

A cursory, look at this application will go to show that no specific A allegation with regard to any particular irregularity in the counting was made but vague application for recounting was submitted. Not only this but M.R. Rajasekharan, PW 98 the election agent of the appellant again made an application on 21.6.91 to the Chief Electoral Officer, Thiruvanthapuram requesting for recount of the votes of 104, Kayamkulam Assembly Constituency. The said application Ext P.208 is reproduced herein"below.

From:

M.R. RAJASEKHARAN, Election Agent of M.R. Gopalakrishnan, Kayamkulam.

The Chief Electoral Officer, State of Kerala, Thiruvananthapuram.

SUB: Assembly Election - Counting of Votes of 104 Kayamkulam Assembly Constituency at Haripad - Irregularities recounting and Verification request regarding

Sir,

I was Election Agent of Shri M.R. Gopalakrishnan, a candidate of 104 Kayamkulam Assembly Constituency. The counting of the votes of the constituency was held at Govt. H.S. for Girls, Haripad on 16-6-1991. After the counting of votes, having doubts and having noticed specific F irregularities in the counting, before the declaration of the results I gave in writing a request to the Returning Officer for recounting of votes on reasonable grounds. But, to the surprise of all present, the Returning Officer, unilaterally declared Shri Thachady Prabhakaran elected by 33 votes, under out vehement protest. Against this arbitrary decision of the G RetQrning Officer the candidate filed a petition to the District Collector Alleppey.

The immediate rejection of our demand for recounting of votes was illegal and against rules. Our demand for recounting was based on the following grounds :- H

A 1.

A good number of postal ballots were rejected without valid

reason.

Votes which were valid in our favour were counted as invalid.

In many booths, the ballots in the box did not tally with the statement.

Many counting officers were the relatives and partymen of the U.D.F. Candidate and they purposefully helped the U.D.F.

Candidate.

The conjection in the counting Hal~ the frequent outbursts of impatience and protest of the counting officers prevented the peaceful counting.

For the above reasons I request you to be good enough to take steps for the recounting of votes of 104, Kayamkulam, for which I shall be grateful D toyou.

Kayamkulam, 21-6-1991

Yours Faithfully,

Sd/- (M.R. Rajasekharan)

In this application it may be noted that the irregularities pointed out in paras 1 to 5 of the application were not mentioned in the earlier two applications Ext. p 207 and Ext. P 211. This clearly goes to show that the irregularities pointed out in this letter application are only after thought and not based on any true facts. If in fact any of the irregularities of the kind alleged in paras 4 and 7 of the election petition or those as mentioned in the applications dated 21-6-1991 were in fact committed, then why these irregularities were not pointed out to the Returning Officer or to any of the observers when they visited the counting hall when counting was going on.

No complaint about any irregularity or about the uncongenial atmosphere of the hall was reported either orally or in writing to the Returning Officer or to any official connected with the affairs of the counting during the course of counting on 16-6-1991... In these facts and circumstances it is difficult to accept the allegations that the atmosphere of Counting Hall was not congenial or there was any difficulty in the counting due to the size of the hall or any irregularities were committed as alleged by the appellant in

the election petition. In these facts and circumstances the High Court is A fully justified in taking the view that no case for a direction for recount was made out.

15. It may be pointed out here that the true legal position in the matter of allowing or disallowing a request for recount is no longer in doubt but well settled. That the Tribunal or the Court trying an election petition has B power to direct inspection and recount of votes if the materials facts and particulars are pleaded and adequate grounds are found to exists for directing such recount in the interest of justice is now well settled. While doing so, however, the provisions contained in the section 94 of the act may not be ignored but the same be given due weight and consideration before directing inspection and recount. Section 94 of the Act directs that 'secrecy' C of voting not to be 'infringed'. It directs that no witness or other person shall be required to disclose for whom he was voted at an election particularly in view of the statutory rules which provide adequate safeguard for proper conduct of the counting and for testing the validity or invalidity of the ballot papers. The rules relating to counting of votes in parliamentary and assembly constituencies are contained in part IV of the Conduct of D Election Ride, 1961 hereinafter referred to as the election rules. Rules 51 provides for the time and place for the counting of votes. Rule 52 relates to the appointment of counting agents and revocation of such appointments while Rule 53 makes provision for admissjon of counting officers and counting assistants as may be appointed to assist the Returning Officer in the counting, persons authorized by the Election Commission; public E servants on duty in connection with the election and; candidates, their election agents and counting agents, fixing the place for counting. Further Rule 54 contemplates that the Returning Officer shall apprise all persons present in the counting hall the provisions of Section 128 which relate to the maintenance of secrecy of voting. Rule 55 deals with scrutiny and F opening of the ballot boxes after the same are inspected by the counting agents present at the particular table with regard to the seal which may be affixed thereon to satisfy .themselves that they are intact. In addition to this the Returning Officer himself has to satisfy that none of the ballot boxes have been tampered with and in the event the Returning Officer is satisfied that ballot box has in fact been tampered with he shall refrain from counting G the ballot papers contained in that box and take steps in accordance with Rule 58 of the Act. Further Rule 56 provides the mode of counting, scrutiny and rejection of the ballot papers if found to be invalid for any reasons pointed out in the said rule. Rule 56, also makes provision for raising of objections with regard to any ballot paper and deal with it in accordance with law. From this elaborate procedure right from the point of opening of H

SUPREME COURT REPORTS [1994] SUPP. 6 s.c.rr

A the ballot box up to the stage of sealing the ballot papers after the counting is over, it is evidently clear that the rule and procedure of counting provide the candidates and their counting agents sufficient and adequate opportunity to see and examine and raise objections, if any, in respect of any ballot paper with regard to its validity or otherwise and it is only after objections, if any, the ballot paper is admitted as valid or invalid as the case may be.

B Not only this but even after the completion of the process of counting a provision is made in Rule 63 to make a demand to the Returning Officers for recount of the votes either wholly or in part stating the grounds on which the demand for such recount is made. It is only after the compliance of this elaborate procedure that the Returning Officer prepares the result sheet in form 20 and declares the result. c

16. After a cursory glance of the relevant provisions discussed above it is thus evidently clear that the rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is D improperly rejected, the candidate his counting and election agent are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of recount should not ordinarily be granted unless the election E petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner., in order to seek an order of recount, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. The demand of a defeated candidate for F recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no Tribunal or Court would be

G justified in directing the recount. ·

17. This Court in Bhabhi v. Sheo Govind and Others, (1976] 1 SCC 687, while dealing with the question of direction for inspection and recount, on a close and careful consideration of various authorities of this Court laid down certain guidelines and conditions which are imperative before a Court can grant inspection of the ballot papers. The said conditions and guidelines H are set out below:-

That it is important to maintain the secrecy of the ballot which is A sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; B

The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

That the Court must come to the conclusion that in order to grant C prayer for inspection it is necessary and imperative to do full justice between the parties;

That the discretion conferred on the Court should not be exercised in such a way so, as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to D be void; and

That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials." E

In a recent decision in Satyanarayan Dudhani v. Uday Kumar Singh, [1993] Supple 2 SCC 82 this Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and an order of recount cannot be granted as a matter of course. It is only when the High Court is satisfied on the basis of material F facts pleaded in the petition and supported by the contemporaneous _evidence that recount can be ordered. When there is a contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition.

18. As discussed in the foregoing paras, in the present case, there is no specific instance or allegation in the petition with regard to any particular irregularity and the meagre and vague allegations that have been made are not supported by any contemporaneous evidence making out a prima facie case for recount and, therefore, the Returning Officer as well as the High

Court were fully justified in rejecting the demand for recount.

19. This brings us to the second ground of attack advanced by the learned counsel for the appellant with regard to the rejection of 246 postal ballot papers of Ext. P 55 series which are alleged to have been rejected without any endorsement and without assigning any reason for such rejection in violation of the mandatory provisions contained in Rule 54(A)(4) of the election rules which according to the learned counsel for the appellant materially affected the result of the election. It was submitted that since the rejection of postal ballot papers was improper, keeping in view the low margin between the appellant and the returned candidate respondent No. 1 herein, the High Court should have allowed the prayer or recount. As against this Shri Joseph, learned counsel appearing for the respondent No. 1 submitted that the mere fact of non-recording of reasons could not lead to the inference that the result of the election has been materially affected nor could it justify recount, without proper pleadings and material facts being furnished in the election petition. He submitted that the case of the petitioner/appellant -was not that his valid postal ballots had been wrongly rejected or that the invalid postal ballots of the returned candidate had been improperly accepted from Ext. P 55 series and, therefore, the omission on the part of the Returning Officer to endorse the reasons for rejecting the postal ballots on the grounds which were otherwise valid, would be of no consequence. However, after very lengthy arguments advanced by the learned counsel for the parties on this point, Shri Poti, learned senior coursel for the appellant made an application on 13.9.94 in this Court which was taken on Board, praying that the postal ballot papers (Ext. P. 55 series) be subjected to inspection by this Court in view of the narrow margin of votes between the appellant and the returned candidate respondent No. 1. Learned counsel for the respondent No. 1 was good enough and fairly recorded his 'No Objection' to the prayer made on behalf of the appellant in the aforesaid application. We, therefore, with a view to do complete justice between the parties and to satisfy our judicial conscience, since the finding of the High Court was not clear as to whether or not the rejected postal ballot papers Ext. P. 55 series had been subjected to any inspection or scrutiny when the Returning Officer PW 16 was being examined in the Court, granted the prayer of the counsel for the appellant and the inspection of the postal ballot papers, Ext. P 55 series was conducted by us in the Court in the presence of learned counsel for the parties who also participated in the process of inspection. On inspection of the postal ballot papers Ext. P 55 series we found that except a few postal ballot papers from the said series where incomplete declaration forms had been filed, the details whereof are given, the other postal ballot papers did not include any declaration form at all as required by Rule 54-A, in the outer cover. The longer outer cover contained only a small cover containing

the ballot paper itself. After inspecting more than half of the ballot papers A we-did not deem it necessary to inspect all the 246 ballot papers as the learned counsel for the parties conceded that no further exercise was necessary to inspect the postal ballot papers of Ext. P 55 series because the rejection of the ballot papers by the Returning Officer were found to be in order by us in the Court in the presence of the counsel for the parties in the random sample inspection of more than 150 postal ballots of Ext. P 55 B series and the same were found to have been rightly rejected. The postal ballot papers in which the declaration forms were found along with the smaller cover containing the ballot papers reveal the following position:

I. P. 55 (176) All the entries in the declaration form are totally blank.

P. 55 (181) The entries in the declaration form are totally blank.

P. 55 (165) The declaration form in the outer cover is totally blank.

P. 55 (161) Thedeclaration form is totally blank.

P. 55 (160) The declaraion form is totally blank.

P.55 (159) The declaration form is totally blank.

P. 55 (154) and P.55 (156) The larger cover contains two small envelopes, containing ballot papers of Assembly and Parlia- E mentary Constituencies but no 4eclaration form at all.

P. 55 (86) Does not even have a smaller cover containing the ballot paper, let alone the declaration form.

P. 55 (92) There is no declaration form and instead along with the F small cover, Form 13-D, containing instructions for the guidance of electors has been enclosed in the outer cover.

Faced with the aforesaid situation, Shri Poti, learned counsel for the appellant candidly submitted that in view of the result of the inspection carried out by us in the Court he was not in a position to support his G submissions that the postal ballot papers had been wrongly rejected by the Returning Officer. Thus this ground of attack also fails.

20. We now come to the third ground advanced by the learned counsel for the appellant that invalid votes were counted in favour of the returned candidate respondent No. I and that out of the total rejected votes of 1375, H

quite a large number of valid votes in favour of the appellant rejected, which materially affected the result of the election. Learned counsel for the respondent submitted that the appellant has not set forth the concise statement of material fact with regard to the allegation of counting invalid votes in favour of the respondent No. 1 nor has given any particulars of such invalid votes which are alleged to have been counted in favour of respondent No. 1. He also submitted that similarly there are no particulars with regard to the rejection of valid votes in favour of the appellant tior number of such votes in order to support the allegation that such rejection of valid votes in favour of the appellant materially affected the result of the election. In our opinion there is no substance in the submissions made by the learned counsel for the appellant. In fact the appellant has neither pleaded the details and the number of such invalid votes which were counted in favour of respondent No. 1 nor has given the particulars of the number of such valid votes in favour of the appellant which were wrongfully rejected during the course of counting. This apart, the Returning Officer, Supervisors and other officials were also present in the counting hall throughout the process of counting and the observers also visited the counting hall but neither the appellant nor any of his counting agents pointed out or objected either orally or in writing such invalid votes were counted in favour of the respondent No. 1 or valid votes in favour of the appellant were rejected. The evidence of the Returning Officer, PW 16 clearly goes to show that no such complaint was made by any one during the course of counting. In these facts and circumstances it is difficult to accept the allegations made by the appellant which seem to be only an after thought and without any evidence or material to support the same.

21. Learned counsel for the appellant, however, submitted that having regard to the size of counting hall which was packed and uncongenial atmosphere prevailing therein as stated earlier it was not possible for the petitioner/appellant or his agents to watch, over-see and check the ballot papers so that they could take note of the particulars of ballot papers which were not correctly placed in the respective bundles of the candidates in whose favour the votes were cast or the particulars of those votes which were rejected as invalid though the same were otherwise valid and, therefore, it was not possible for the petitioner/appellant to make a mention or plead any more facts and particulars beyond those already stated in paras 4 and 7 of the petition. After giving our anxious consideration to the submissions made above, we are unable to persuade overselves to accept the same. In the earlier part of this judgment, we have already discussed the evidence and material on record and found that there is absolutely no basis to show that there prevailed any kind of confusion or irregularity in the

counting which could have disabled the appellant or his agents from A watching the process of counting. As said above no such grievance was ever advanced by the appellant or his agents at the time of countg either orally or in written to the Returning Officer or to the observers or to any member of the counting staff deputed for the purpose. The applications for recount were made only after the counting was over and the result was declared and that too with vague allegations. This submission has no merit B and the same is accordingly rejected.

22. Learned counsel for the appellant lastly contended that the election of respondent No. 1 was liable to be declared void and cancelled on the ground of corrupt practice under sub-section 3(A) of Section 123 of the Act as the respondent No. 1 tried to promote the feelings of enmity and hatred C between different communities of the constituency by publication and distribution of the pamphlets Annexures VI, VII, VIII, IX and X which are marked as Ext. P 158, Ext. P 159, Ext. P 162, Ext. P 161 and Ext. P 157. In this connection it may be pointed out that the High Court has minutely and critically examined the evidence adduced by the parties which has been D discussed at length in paras 22 and 37 of judgment and the High Court has recorded the conclusion that the appellant had failed to establish that these pamphlets were published or distributed by respondent No. 1 or his agent or any other person with the consent of the respondent No. 1 or his election agent. Learned counsel for the parties took us through the entire evidence on the point and after analysing the same we find ourselves in agreement E with the view taken by the High Court. It has been the consistent practice of this Court not to interfere with the findings on the questions of fact unless there is some grave or palpable error in the appreciation of evidence on the basis of which the findings were arrived at by the Tribunal/High Court. In the present case after scrutinizing the evidence adduced by the parties we find no error or infirmity much less grave or palpable which may call for F any interference with the finding. We are, therefore, unable to accept the submissions made by the learned counsel for the appellant on this count also.

23. In view of the foregoing discussion and the conclusions recorded by us, even if we accept the submissions of learned counsel for the G appellant that further 9 votes in favour of Respondent No. 1 should also have been rejected for double voting by the said nine voters as pointed out by him, although there is no sound basis for the same, yet it would only reduce the margin from 13 to 4 without materially affecting the result of the election.


(1994] SUPP. 6 S.C.R

24. Thus even after giving all the possible discounts the election of

respondent No. 1 cannot be set aside or declared void as he still remains a winner. In view of these facts and circumstances it would be a futile

exercis~ to go into the question of recrimination petition made by the respondent No. 1 making certain allegations against the petitioner/appellant.

We, therefore, decline to examine the same.

25. For the reasons stated above the appeal fails and is hereby dismissed with costs. Costs quantified at Rs. 5000.

K.S.D.

Appeal dismissed.