Jiwan vs Election Tribunal (Deputy Commissioner)

V.K. Jhanji, J.—In this petition, challenge is to order dated 15.6.1995 of the Election Tribunal-cum-Deputy Commissioner, Mansa, whereby election record'' of Ward No. 3 of Nagar Panchayat, Bhikhi, has been summoned for fresh scrutiny and rechecking of withdrawal forms and rejected votes. This order has been impugned by the petitioner on the ground that no case had been made out for ordering recount of votes. Counsel for the petitioner has also contended that secrecy of the ballot is a sacrosanct and as such secrecy of the ballot should not have been violated by the Tribunal unless a prima-facie case had been made out by Election petitioner for inspection and recount. Opposed to this, Mr. H.S. Mattewal, Sr. Advocate, counsel for election petitioner, has contended that the Tribunal has not ordered recount of all the votes but has ordered only rechecking of rejected votes which are eleven in number. He also contended that there was sufficient material before the Tribunal for coming to the conclusion that there was a need for rechecking of rejected votes.

Counsel for the petitioner has not disputed the legal position that in an appropriate case the Tribunal can examine the objection raised by the parties in relation to the improper acceptance or rejection of voting papers by calling the election record. But before exercising this power, the Tribunal on the basis of material on record, must come to the conclusion that a case had been made out for exercise of such discretion. Discretion is not to be exercised on vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted. In Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, the Apex Court has set out the circumstances when an order for inspection of ballot papers can be ordered in the following terms.

"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.

But 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."

In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, , the afore-said principle was reiterated by the Apex Court and it was held:-

"Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reasons for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to alleg and substantiate in acceptable measure by means of evidence that a prima-facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interest of justice, a Tribunal or court should not order the recount of votes."

The impugned order if viewed in the light of judgments of the Apex Court referred to above, the inevitable conclusion would be to maintain the order of the Election Tribunal. It is the case of the election petitioner in his pleadings that the petitioner had withdrawn his nomination papers but subsequently in connivance with Gulzar Singh, S.D.O. was allowed to contest the election. Apart from this, it has been alleged that when counting of votes was going on in the polling station on 20.11.1994, out of 498 votes only 8 were declared invalid. Election petitioner had secured 168 votes whereas the petitioner had secured 165 votes and respondent No. 2 namely Sham Lal had obtained 157 votes. However, in collusion with Gulzar Singh and Sher Singh Gaguwalia, M.L.A. Congress-I, Mansa and in order to help the petitioner, three valid votes cast in favour of election petitioner were declared invalid. Petitioner, of course, has denied this averment in his written statement. On conclusion of the evidence, the election petitioner filed an application for summoning the record to inspect/verify the nomination forms and rejected votes. After inviting reply to the application and hearing the counsel for the parties, the Election Tribunal vide order dated 7.6.1995 dismissed the application for the time being as the Tribunal was of the view that without appreciating the evidence on record and hearing the arguments of counsel for the parties, it would not be safe or proper to conclude that any case is made out for rechecking of reject votes. The Tribunal was of the view that only after appreciating the evidence on the file, scrutiny and evaluation of the same and hearing the view points of counsel for the parties, one could come to a definite conclusion about the summoning of record and rechecking of rejected votes. The Tribunal adjourned the case to 14.6.1995 for hearing of the arguments in the main case. After appreciating the evidence on record and hearing the arguments of counsel for the parties, the Tribunal concluded that there is sufficient evidence on the file to show that the petitioner had withdrawn his nomination papers and also that after completion of counting, only 8 votes were rejected and subsequently three valid votes cast in favour of the election petitioner were rejected with a view to help the petitioner. He was also of the view that since the election petitioner and the petitioner had polled equal number of votes, "It becomes all the more necessary to recheck and reverify all 11 rejected votes in view of the evidence of the witnesses and pleadings of the respondents. Only a fresh scrutiny of rejected votes will clinch the matter and put an end to the dispute between the parties." The learned Tribunal thus, has ordered for summonjng of election record for fresh scrutiny and rechecking of withdrawal form and rejected votes. This order has been passed after the Tribunal was prima-facie satisfied that in order to settle the dispute and do complete justice between the parties, inspection of nomination forms and rechecking of rejected votes which are eleven in number, is necessary. It is thus, erroneous for the counsel for the petitioner to contend that there was no sufficient material before the Tribunal to come to such a conclusion. As a matter of fact, the order has been passed after due application of mind. Moreover, the Tribunal has not ordered recount of votes but has only ordered inspection of nomination forms and rechecking of rejected votes (eleven in number) which in no way is going to prejudice the case of the petitioner. In this view of the matter, order under revision calls for no interference.

Consequently, the revision petition is dismissed. No costs.