1983 (9) TMI 329 - SC - Indian Laws

Summary

Issues Involved:
1. Adequacy of particulars in the election petition.
2. Justification for inspection of ballot papers.
3. Applicability of the proviso in Rule 56(2) of the Conduct of Election Rules, 1961.
4. Necessity of a recrimination petition under Section 97 of the Representation of the People Act, 1951.

Detailed Analysis:

1. Adequacy of particulars in the election petition:
The appellant contested that the particulars furnished in paragraph 9 of the election petition were inadequate and did not meet the requirements of the law. The court examined Section 83(1)(a) of the Representation of the People Act, 1951, which requires an election petition to contain a concise statement of material facts. The court found that the election petition provided adequate details, including the number of ballot papers alleged to have been wrongly rejected, the counting table number, and the booth number. The court noted that the particulars of the ballot papers were not available to the counting agents, which justified the lack of specific serial numbers. Thus, the court held that the pleading in paragraph 9(i) was adequate and met the statutory requirements.

2. Justification for inspection of ballot papers:
The appellant argued that the High Court erred in allowing the inspection of ballot papers. The court referred to the conditions laid down in Bhabhi v. Sheo Govind and Ors. [1975] suppl. S.C.R. 202, which emphasized the importance of maintaining the secrecy of the ballot, the need for clear and specific allegations supported by material facts, and the requirement for the court to be prima facie satisfied about the truth of the allegations. The court found that the allegations in paragraph 9(i) were clear and definite, and the lack of serial numbers was justified. The court concluded that the High Court's decision to allow inspection was appropriate and not open to dispute.

3. Applicability of the proviso in Rule 56(2) of the Conduct of Election Rules, 1961:
The court examined the 74 rejected ballot papers and found that they bore the distinguishing mark but lacked the Presiding Officer's signature. Rule 38(1) requires both the distinguishing mark and the Presiding Officer's signature on the ballot paper. The court considered whether the absence of the signature was due to the Presiding Officer's failure. Evidence showed that the Presiding Officer was absent from the polling booth for a significant period, during which the unsigned ballot papers were issued to voters. The court held that this constituted a failure on the part of the Presiding Officer, making the proviso to Rule 56(2) applicable. Consequently, the ballot papers should not have been rejected, and the High Court correctly counted them in favor of respondent No. 1.

4. Necessity of a recrimination petition under Section 97 of the Representation of the People Act, 1951:
The appellant contended that in the absence of a recrimination petition, the inspection and recount should have included all rejected ballot papers, not just the 74 in question. The court referred to the established legal principle that a recrimination petition is necessary when the returned candidate seeks to challenge the validity of votes counted in favor of the election petitioner. The court cited Jabar Singh v. Genda Lal [1964]6SCR54 and P. Malaichami v. Mr. Andi Ambalam and Ors. [1973]3SCR1016, which emphasized the mandatory nature of Section 97. The court held that in the absence of a recrimination petition, the appellant could not challenge the validity of the election petitioner's votes. Therefore, the inspection and recount were rightly confined to the 74 ballot papers.

Conclusion:
The court dismissed the appeal, affirming the High Court's decision to set aside the appellant's election and declare respondent No. 1 as the duly elected candidate. The court directed the parties to bear their respective costs.