P.P. Dominic vs M.S. Gopalakrishnan and others

Jagannadha Rao, C.J.—This appeal, directed against the judgment of the learned single Judge in OP 2170 of 1992-H dated 30.7.1992, raises important questions relating to adjudication of election disputes. The dispute in the present case arises in the context of an election to the office of the Chairman of a Municipally in Kerala. Inasmuch as a fundamental mistake which goes to the root of the matter has come to light during in the hearing of the appeal, it has become necessary to deal with it lest other Election tribunals may commit similar mistakes. In fact, the point is clearly covered in favour of the respondent, by the judgment of the Supreme Court in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, . There was a vacancy in the office of the Chairman of the Palaghat Municipality on the death of Mr. N.A. Karim in July 1991. A special meeting of the Municipal Council was called for electing a new Chairman on 9.8.1991. At that election, Sri M.S. Gopalakrishnan (first respondent) was declared elected as Chairman, Thereafter, the appellant in this Writ Appeal, Sri P.P. Dominic, who was the unsuccessful candidate, filed the Election Petition before the District Judge, Palakkad as Election OP No. 56 of 1991. It was declared in the election that 33 members out of 35 cast their votes and it was found by the Returning Officer that 17 votes were cast in favour of Sri M.S. Gopalakrishnan while the appellant, Sri P.P.Dominic got 16 votes. The case of the appellant was that certain invalid votes polled in favour of the first respondent were treated as valid. It was pleaded that while the mark (X) is to be put against the name of the candidate in the ballot paper, a different mark was put and that, inspite of that, the Returning Officer had treated the said votes as validly polled in favour of the first respondent.

The learned Tribunal initially passed an order on 18.11.1991 directing the ballot box to be opened and upon looking into the ballot papers came to the conclusion that the irregularity mentioned above in the marking of the ballot papers was a fact and he then considered whether the ballot paper which contained mark other than (X) was valid or not. He then recorded evidence of witnesses on 19.12.1991 and 10.1.1992 and passed a final order in the Election Petition of 12.2.1992 allowing the Election Petition holding that one ballot paper counted in favour of the first respondent did not contain the prescribed mark (X) and was invalid. He set aside the election of the first respondent and ordered re-election to the office of chairman.

The first respondent then filed the present Writ Petition, OP 2176 of 1992 and the learned single Judge, by judgment dated 30.7.1992, allowed the Writ Petition and quashed the order of the Tribunal. The learned single Judge, after referring to the provisions of the Kerala Municipalities (Election of Chairman and Vice Chairman) Rules, came to the conclusion that the decision of this court in Walter D. Paul v. Ummer (1990(1) KLT 492) which dealth with the rules under the Panchayat Act was distinguishable and so was Bihari Lall and Others Vs. Bindeshwari Prasad and Others, According to the learned single Judge, what was more important under the rules was to find out the intention of the voter. If the mark put at a wrong place but which indicated the preference of the voter could be valid as held by the Supreme Court in S. Sivaswami Vs. V. Malaikannan and Others, and in Era Sezhiyan Vs. T.R. Balu and others, , the fact that a mark other than (X) was put against the name of the first respondent, did not make the ballot invalid. On that basis, the learned single Judge disagreed with the Election Tribunal and held the vote containing the mark other than (X) mark as valid and allowed the Writ Petition holding the election of the first respondent as valid. Aggrieved by the said judgment, the election petitioner, Sri P.P. Dominic, has come up in appeal.

In this appeal, it is the case of the appellant that the learned single Judge went wrong in treating a mark other than (X) mark as valid and that this is not permitted by the Rules. It is argued that Rule 5 which says:

Every Councillor wishing to vote shall then proceed to the place set apart for the purpose and there place a mark (X) against the name of the candidate for whom he wishes to vote

is mandatory and does not make an exceptions. It is also argued that the fact that the case does not come within the three categories in Rule 7 which reads as follows:

Any voting paper which contains the signature or writing of any of the voting Councillors or on which the mark (X) is placed against more than one name, shall be treated as invalid

is immaterial inasmuch as the situations for rejection of ballot papers as set out in Rule 7 are not exhaustive.

On the other hand, it is contended by learned counsel for the first respondent, that the ballot paper thouth not bears (X) mark but another mark, is valid.

During the course of the arguments, a question arose as to whether, before opening the ballot box, the Tribunal had first given a decision, on the basis of the pleading or any evidence, that the irregularities in the counting of votes had occurred and a case for ordering scrutiny and recount was made. Surprisingly, it was noticed that the learned Tribunel, ignored one of the basic concepts of secracy of ballot papers and scrutinised the votes and gave a finding that one ballot counted in favour of the first respondent did not contain (X) mark and then proceeded to decide the validity thereof. In feel fact, in para 9 of the final order dated 12.2.1992, allowing the Election Petition, the Tribunal curiously observed:

The ballot papers produced by the Commissioner in a cover pursuant to the order of the Court was opened in the course of the proceedings as per order of the Court dated 16th Nov. 1991 (the facts observed in such opening are recorded in that order itself). As it is felt that for the purpose of reference, the 4 controversial ballot papers and the cover in which the ballot papers were submitted are to be marked, they are marked as Exts. X1 to X5. I shall now proceed to consider the points.

In other words, the cover containing the ballot papers, was opened pursuant to the order dated 18.11.1991 without any evidence being adduced as to whether any irregularities as to scrutiny and counting of the ballot papers. The order dated 18.11.1991, which is placed before us, clearly shows that no evidence was adduced by the appellant to first make out a case that certain irregularities were committed at the stage of scrutiny and counting by the Returning officer and that the cover containing the ballot papers should, therefore, be opened. It is not disputed before us that only at a later stage, i.e. on 19.12.1992 and 10.1.1992 the evidence was adduced. In fact, in the preliminary order dated 18.11.1991, it was merely stated that only arguments were heard (i.e. no evidence was adduced) and that:

In view of the pleadings, I feel that first of all I should ascertain whether any ballot paper contains marking other than the marking prescribed by the rules. The question whether ballet papers containing such marking are liable to be excluded is to be decided in one way or other only later. I am therefore of the view that the cover containing ballot papers is to be opened and perused first.

This procedure followed by the learned Tribunal is, in our view, wholly unwarranted and centrary to the fundamental principle in election law that the court cannot allow the secrecy of the ballot papers to be violated without evidence being first adduced by the unsuccessful party for making out a case for fresh scrutiny and counting of the ballot papers by the court. In fact, if a wrong procedure has been adopted and the ballot papers are scrutinised and recounted without first giving a finding that the evidence adduced as to irregularities (in scrutiny and counting by the Returning Officer) is acceptable, even if the opening of the ballot box in violation of the secrecy results in the unsuccessful party being declared as successfully elected, the said result cannot be given effect to. We cannot judge the election by ''hindsight''.

An identical question came up before the Supreme Court in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, . In that case, the election to the office of the President of a Panchayat in Tamil Nadu took place and the first respondent therein was declared elected on Securing 649 votes as against 556 secured by the petitioner is SLP and 55 votes were declared invalid. The petitioner filed an election petition contending that the Returning Officer had wrongly treated some invalid votes cast in his favour as invalid votes and certain number of invalid votes as votes validly cast in favour of the first respondent and that the Returning Officer objected to scrutiny of some votes by the petitioner and his agents. He, therefore, sought the relief of (a) setting aside the election of the first respondent and (b) ordering a recount of votes and (c) a declaration that he had been duly elected. The petition was opposed by the first respondent. In fact, evidence was led by the parties on these pleadings and the Tribunal, without any discussion of the evidence, gave a cryptic finding that the ''counting is not correct'' and that even if the petitioner did not object to certain votes being counted, he had a ''right to approach the Tribunal for recounting'' and that:

If recounting is ordered, no prejudice will be caused to the respondents.

In fact, the fresh scrutiny and recount by the court resulted in petitioner getting 556 and the first respondent 528 as against 649 he was originally held to have secured and the Tribunal gave a declaration that the petitioner as elected. On revision by the first respondent, a learned single judge of the Madras High Court allowed the revision and held that the ''secrecy of the ballot papers is sacrosant'' and should not have been violated unless a prima facie case of a compulsive nature had been made out by the defeated candidate for fresh scrutiny and recount by the Tribunal. The Supreme Court referred to the concept of secrecy of ballot papers as decided in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, , Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , R. Narayanan Vs. S. Semmalai and Others, and held that an order of inspection may not be granted as a matter of cause unless

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

(ii) the Tribunal is prima facie satisfied that upon evidence adduced, in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessry.

(iii) An order for inspection of ballot papers is not to 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.

(iv) A mere allegation that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes will not be sufficient to support an order of inspection.

In P.K.K. Shamsuddeen''s case (supra), the Tribunal, upon an unsupportable finding had, in fact, opened the box, scrutinised and declared the election result bad and also declared election petitioner as duly elected. Even so, the Madras High Court and the Supreme Court held that the result of the scrutiny and recount by the Court cannot be pleaded as justification. A recount is not to be derived from ''hindsight'',

The various principles applicable to the nature of pleadings and evidence to secure a fresh scrutiny and recount were adverted to by one of us (Jagannadha Rao, C.J.) in T. Penchalaiah v. Election Court (1990(1) ALT 669), in a case again under the Panchayat Act and there too, the result of the illegal recount made by the court which/went in favour of the election petitioner, was held to be no justification. It was also pointed out that there are four types of pleadings - (1) the first category of cases where the allegations in the election petition are absolutely vague (as in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, and other cases): (ii) The second category where some details are given but held to be not sufficient, as in Beliram Bhalaik Vs. Jai Beharilal Khachi and Another, and R. Narayanan Vs. S. Semmalai and Others, : (iii) The third and important category where facts are stated in the petition in great detail but are seen to have been given only for the purpose of satisfying principles laid down in rulings of Supreme court as the basis of facts is not set out and no contemperaneous documents (such as objections raised during the counting) are referred to in the pleadings, (as in Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, ; Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, ; Baldev Singh v. Teja Singh - AIR 1975 SC 695); and (iv) The fourth category of cases is one where details of facts are set out in the pleadings substantiated by contemporaneous or acceptable materials which could raise a justifiable claim for leading evidence as in (Nathuram Mirdha v. Gurdhan Soni - (1968) Elec, Law Rep. 16; P. Malaichami Vs. M. Andi Ambalam and Others, ; Manphul Singh Vs. Surinder Singh, and 1975 SC 502; and Bhabhi Vs. Sheo Govind and Others, ). It is only in the fourth calse of class that the court could venture to proceed further.

But, even in a case coming under the fourth category above mentioned, the evidence led must lead to a preliminary order that a compulsive case is made by the petitioner prima facie proving his case regarding irregularities in the scrutiny and counting and that fresh scrutiny and recount was necessary. In the present case, assuming that the pleadings fall into the the fourth category of cases above stated, no evidence was led to prove the case regarding the counting of invalid votes in favour of the first respondent. In fact, as stated earlier, evidence was led only after the ballor papers were opened and sorutinised by the Court. The result of such scrutiny notwithstanding, the secrecy of election was violated without justification. As the procedure adopted by the Tribunal is contrary to basic canons of election law, the order of the Tribunal was liable to be quashed on this very ground. We are, therefore, refraining from going into the larger question whether the mark other than the prescribed (X) mark would invalidate one of the votes cast in favour of the first respondent.

We confirm the judgment of the learned single Judge quashing the Tribunal''s order, though for different reasons. The appeal is accordingly dismissed. No costs.