Govindaraj vs Uthirapathi and Another

Thiru Govindaraj the petitioner seeks to challenge the validity of the order passed by the Panchayat Election Tribunal, Mannargudi dismissing O.

P. No. 14 of 1970 filed by him u/s 2(1) of Notification 10 of the Madras Panchayats Act to set aside the election of the first respondent Thiru

Uthirapathi after recounting the votes and to declare him (revision petitioner) as the successful candidate in the Panchayat Board President Election

held on 31-7-1970.

On counting the votes the Chief Presiding Officer held that, out of 1408 votes polled, the petitioner secured 515 votes, the first respondent 523

votes and the second respondent 299 votes; and 71 votes were declared invalid. Various allegations were made in support of the application for

setting aside the election of the first respondent; but the only point now pressed in the course of arguments is that the Panchayat Election Tribunal,

was wrong in rejecting the petitioner''s request for a scrutiny of 71 votes declared invalid by the Chief Presiding Officer. The petitioner examined

himself as P.W. 1, his election agent as P.W. 2 and another voter as P.W. 3; and the first respondent examined himself as P.W. 1. On a survey of

the entire oral evidence, the Panchayat Election Tribunal has rejected the petitioner''s plea for recount of the invalid votes, holding that he had not

made out a case by the oral evidence adduced by him for recount of the 71 invalid votes.

The learned counsel contends that the Panchayat Election Tribunal was in error in deciding the plea by reference to the oral evidence adduced

by the parties and that he ought to have decided the question by reference only to the allegations made by the petitioner in the affidavit filed by him

in support of the application. The learned counsel for the respondents, on the other hand, pleads that the Panchayat Election Tribunal was justified

under the law in deciding the question of the recount of the invalid votes by reference to the oral evidence adduced by the parties and that a

decision on the facts alleged in the affidavit in support of the application is not warranted by the provisions of the Panchayat Act or the rules framed

thereunder.

Part V of the Tamil Nadu Panchayats (Conduct of Election President of Village Panchayat) Rules, 1970 sets out the following procedure for the

counting of the votes. Rule 33 provides that the counting of votes shall take place on the day and at the place and hour appointed in that behalf and

that the votes shall be counted by, or under the supervision of the Returning Officer. Each contesting candidate and one counting agent for each

candidate appointed in writing by the candidate shall have a right to be present at the time of counting. Rule 34 states that the ballot boxes relating

to each of the polling stations provided for each ward shall be taken up separately for counting. Before any ballot box is opened at the counting

table, the counting agents present at the table, shall be allowed to inspect the seal on the ballot box and to satisfy themselves that it is intact. The

Returning Officer shall satisfy himself that none of the ballot boxes has in fact been tampered with. Rule 35 which purports to relate to scrutiny and

rejection of ballot papers is to the effect that the Returning Officer shall allow the candidate and their agents reasonable opportunities to inspect,

without handling, all ballot papers which in his opinion are liable to be rejected under Rule 36 and shall endorse on every ballot paper which is

rejected the letter ""R"" and the ground of rejection in abbreviated form either in his own hand or by means of a rubber stamp. The Returning Officer

shall, as far as practicable, proceed continuously with the counting of the votes; and shall during any necessary intervals during which the counting

has to be suspended, place the ballot papers, packets and other documents relating to the election under his own seal and the seals of such

candidates or agents as may desire to affix them, and shall cause adequate precautions to be taken for their custody. He shall verify the statement

submitted by the Polling Officer under Rule 31(5) by comparing it with the number of accepted ballot papers and of rejected ballot papers and the

unused ballot papers in his possession.

Rule 36 provides that a ballot paper shall be rejected (a) if it bears any mark or writing by which the elector can be identified, or (b) if no vote is

recorded thereon or (c) if votes are given on it in favor of more than one candidate to be elected, or (d) if the mark indicating the vote thereon is

placed in such manner as to make it doubtful to which candidate the vote has been given, or (e) if it is a spurious ballot paper, or (f) if it is so

damaged or mutilated that its identity as a genuine ballot paper cannot be established; or (g) if it bears a serial number, or is of a design, different

from the serial numbers, or, as the case may be, design, of the ballot papers authorized for use at the particular polling station, or (h) if it does not

bear the distinguishing mark which it should have borne under the provision of sub-rule (2) of Rule 22, or (i) if it does not bear the signature of the

Polling Officer on the reverse side, provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (g), clause

(h) of clause (i) has been caused by any mistake or failure on the part of a Polling Officer, the ballot paper shall not be rejected merely on the

ground of such defect; and provided further that the ballot paper shall not be rejected merely on the ground that the mark indicating the vote is

indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is

marked. Sub-rule (2) states that all ballot papers taken out of the ballot box used at a polling station and rejected under this rule shall be made into

a separate bundle. Sub-rule (3) provides that the decision of the Returning Officer shall be final, subject only to the decision of the Court on an

election petition.

It is thus seen from Rule 36(3) that a Court has, on an election petition the right to scrutinize the rejection made by the Returning Officer and to

uphold or set aside the rejection; but there is no provision either in the Tamil Nadu Panchayats Act or in the rules framed thereunder as to the stage

at which such scrutiny can be made or the quantum of proof necessary for enabling a Court to make such scrutiny.

The learned counsel have not been able to cite any direct authority under the Tamil Nadu Panchayats Act regarding the election of presidents of

the Panchayats on this question. Kuppuswamy Goundar v. Pichaikara Goundar, (1967) 1 Mad LJ 256 is a decision under the Panchayats Act on

the election of a member and the question involved therein was whether the rejection of 22 votes was improper, invalid and illegal. The

observations of Anantanarayanan, C. J., in this case indicate that the question has to be resolved at an interlocutory stage itself only on the basis of

the allegations made by petitioner. The learned Judge has said:

All that the petitioner states is that the rejection of 22 votes was ""improper, invalid and illegal"". This is not at all sufficient compliance with the

requirement laid down in the Supreme Court decision. The petitioner should specifically state why he was impugning the rejection of these votes

and what were the grounds therefor. If the Tribunal is satisfied that inspection and recount are necessary in the light of the averments, it may

certainly proceed to order these steps.

There has been so Supreme Court decision so far on the question under the Madras Panchayats Act, and the Supreme Court cases cited are

under the Representation of the People Act, 1951; and they relate to the question of the recount of the ballot papers. In Ram Sewak Yadav Vs.

Hussain Kamil Kidwai and Others, , the Supreme Court has made the following observations:

An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts

are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a Civil Court is invested under the

CPC when trying a suit. x x x The Returning Officer is not a party to an election petition and an order for production of the ballot papers cannot be

made under Order 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers.

In a proper case where the interest of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may

permit inspection by the parties before it of the ballot papers: that power is clearly implicit in Secs. 100(1)(d)(iii), 101, 102 and Rule 93 of the

Conduct of Election Rules 1961. x x x An order for inspection may not be granted as a matter of course; having regard to the insistence upon the

secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the

petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and (ii)

the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers

is necessary.

To the same effect is the decision of the Supreme Court in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, . Their Lordships have made the

following observations:

In a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objection raised by the parties in

relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain

important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on

which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot papers, the Tribunal must

enquire whether the application made by the petitioner for the inspection of the ballot boxes, contains a concise statement of the material facts on

which he relies.

Following these two decisions Vimadalal, J., has in H.R. Gokhale Vs. Bharucha Noshir C. and Others, , has observed:

In order to justify an order of inspection of the ballot papers, it is necessary that the petition for setting aside the election should contain an

adequate statement of material facts on which the petitioner relies in support of his case and the interest of justice must require that inspection

should be given. The petitioner is not required to establish a prima facie case on merits of the petition itself, but the court must be prima facie

satisfied that an order for inspection is necessary in the interests of justice.

While referring to the observations made by the Supreme Court in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, and Dr. Jagjit

Singh Vs. Giani Kartar Singh and Others, cited above, with approval the Supreme Court has in Shri Jitendra Bahadur Singh Vs. Shri Kirshna

Behari and Others, further observed ""that the material facts required to be stated are those facts which can be considered as materials supporting

the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition.

In view of these observations made by the Supreme Court, it is difficult to accept the contention of the learned counsel for the respondents that

no recount can be ordered unless the petitioner has adduced satisfactory proof of an irregularity at the counting of votes. It is pointed out by the

learned counsel that Ramachandra Iyer, C. J. and Venkataraman, J., have observed in N. Pethu Reddiar Vs. V.A. Muthiah and Another, , that

there was no justification for directing a recount of the votes in that case, as there was no proof, not even suspicion of any irregularity at the

counting in that case. But then this decision, which is also under the Representation of the People Act, 1951, was rendered long before the

observations referred to above in 1964; and I am bound by the Supreme Court decisions.

In my view, the observations of the Supreme Court can as well apply with equal force to cases arising under the Tamil Nadu Panchayats Act

relating to the election of presidents, involving questions relating to rejection of invalid votes. It appears to me that the question whether there

should be a scrutiny of the rejected votes or not may be properly decided at the interlocutory stage itself before the regular enquiry commences.

The inspection of the rejected ballot papers will provide the evidence necessary for supporting the petition for setting aside the election; and no

useful purpose will be served by insisting upon regular proof by oral evidence relating the impropriety or illegality in the rejection of votes. All that

the Court required at that stage is that a prima facie case should be made by the allegations in the main or the interlocutory application itself for a

scrutiny of the rejected votes. If the petitioner chooses to adduce evidence at that stage, it would be his privilege; but the Court will not normally

insist upon such an oral proof.

As I have already observed, the Panchayat Election Tribunal had rejected the claim for scrutiny of the invalid votes on the ground that the oral

evidence adduced by the petitioner and his witnesses does not justify the demand for scrutiny of the rejected votes. In my view, the procedure

followed by the learned Tribunal is not in accordance with law. He must have decided whether a prima facie case had been made out for scrutiny

of the rejected votes by the allegations in the main or interlocutory application itself.

The further question is whether the allegations made by the petitioner in his petition are sufficient in law to warrant his demand for a scrutiny of

the invalidated votes. The Supreme Court has made the following observations in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, cited

supra regarding the averments which ought to be set out in the application for sustaining the claim for scrutiny:

An order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish

out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish

a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner

suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

x x x The rules for the conduct of elections clearly show that at every stage in the process of scrutiny and counting of votes the candidate or his

agents have an opportunity of remaining present at the counting of votes the candidate or his agents have an opportunity of remaining present at the

counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes and to demand a recount. It is in the light of the

provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a

defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered.

To the same effect are the observations of the Supreme court in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, cited above:

Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies;

and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application

made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid

votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot

boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected

or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that

the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for

their proper counting. It may be that in some case, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot

boxes and consider his objection about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in

considering the requirements of justice, case must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry

in the ballot boxes so as to justify their claim that the returned candidate''s election is void. No bard and fast rule can be laid down in this matter

for, attempt to lay down such a rule would be inexpedient and unreasonable. x x The scheme of the rules prescribed in Part V of the Conduct of

Election Rules, 1961 emphasizes the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting

papers before they are counted and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely

the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that S. 83(1)

of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the

material facts.

In Tribeni Ram Vs. Satyadeo Singh and Others, , a Division Bench of the Allahabad High Court has observed:

A mere assertion or an expression of a suspicion by a petitioner that there has been a mistake in counting votes will not justify a recount or an

inspection of ballot papers which a recount necessarily pre-supposes. x x The closeness of the voting or a narrow majority of votes does not in

itself justify a recount. There must be prima facie evidence of good grounds for believing that there may have been a miscount on the part of the

Returning Officer.

In Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, cited above the Supreme Court has said:

The material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words they

must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his election petition gives some figures as

to the rejection of valid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in

the petition the basis on which he arrived at those figures. x x x Similarly, as to the rejection of the votes polled in favor of the unsuccessful

candidate, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper.

Therefore it is quite easy for them to note down the serial number of the concerned ballot papers. Therefore if the election petition is silent as to the

inspection of the ballot papers or whether the counting agents raised any objection relating to the validity of those ballot papers; if so who those

agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material

facts required to be satisfied.

The question for consideration is whether the allegations made in the election petition make out a prima facie case for the re-counting of the

rejected votes. The allegations are found in paragraphs 7 and 11; and they may be summarized briefly thus. The counting of the votes for the

election of the President was held between 2 A.M. to 6-30 A. M. and the counting was held throughout in the night and also in darkness. The

counting was clouded with a lot of suspicions and doubts; and during counting the petitioner''s counting agent was not given full opportunity to

scrutinize the ballot papers. There was a large crowd in the counting hall and considerable excitement, tension and confusion. The petitioner''s

agent was not given reasonable opportunity to inspect the ballot papers liable to be rejected. 51 votes in the first ward were rejected as invalid.

Most of the votes were rejected as multiple voting and some were rejected as marked on blank area and as such contained no marking. In the

third ward 14 votes were rejected as invalid.

On the whole, I am not impressed with the allegations made in the election petition. The allegations made are vague and do not inspire any

confidence. It is incredible that counting should have been done and rejection made in darkness without any light; and it is not suggested that any

protest was made by the petitioner or his agent to such illegal procedure. The allegation that the petitioner''s agent was not given reasonable

opportunity to inspect the rejected ballot papers also does not inspire confidence. The allegation is grave in character and one would have

expected any election agent to have made a protest to the election officers in charge. The further allegations that most of the votes in the first ward

were rejected as multiple voting and some were rejected as marked on blank area is also vague. The materials required to be stated in a petition

should generally contain an averment that the inspection of the ballot papers was made by the petitioner''s agent, that he raised objections relating

to the rejection of the papers and also that the rejected papers in respect of which objection was made contained the particular serial numbers.

Admittedly the election rules provide opportunity for the election agent to scrutinize the ballot papers including the rejected ones; and election

agents are deputed by the candidates mainly for the purpose of scrutinizing whether irregularities are committed in the counting of votes. Diligence

in the discharge of duties is expected of these agents and if they fail to exercise the requisite diligence at the time of the counting or rejection of

votes, the candidates have to thank themselves, and cannot insist that the rejected votes must be recounted merely by making vague allegations,

suggesting that the rejection of the votes was irregular. No Prima facie case is made out by the allegations in the election petition; and I am satisfied

that the Tribunal was perfectly justified in rejecting the claim for recount of the rejected votes.

In the result, the civil revision petition fails and is dismissed; but, under the circumstances, without costs.

Petition dismissed.