2014 (2) TMI 1404 - SC - Indian Laws

Validity of election petition - certain invalid votes had been counted in favour of the Appellant and certain valid votes which were cast in favour of the Respondent No. 1 - HELD THAT - This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been materially affected . There can be no dispute to the settled legal proposition that as a rule relief not founded on the pleadings should not be granted . Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them - the court cannot exercise discretion of ordering recounting of ballots just to enable the election Petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the Petitioner sets out his case with precision supported by averments of material facts. It is a settled legal proposition that the instructions contained in the handbook for Returning Officer are issued by the Election Commission in exercise of its statutory functions and are therefore, binding on the Returning Officers. Such a view stands fortified by various judgments of this Court in Ram Sukh v. Dinesh Aggarwal 2009 (9) TMI 1062 - SUPREME COURT and Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil 2009 (5) TMI 934 - SUPREME COURT . Instruction 16 of the Handbook deals with cases as to when the ballot is not to be rejected. The Returning Officers are bound by the Rules and such instructions in counting the ballot as has been done in this case. The inescapable conclusion that can be reached is that even after deciding the Recrimination Petition, the Appellant and the Respondent No. 1 have received equal number of votes - in such a fact-situation the decision as to who will be the returned candidate is to be decided by the draw of lots by virtue of the provisions of Section 102 of the Act. Appeal disposed off.

Summary

Issues Involved:
1. Validity of certain votes counted in favor of the appellant and respondent.
2. The High Court's direction for recounting all votes.
3. The interpretation and application of rules regarding invalid votes.
4. The simultaneous trial of election petition and recrimination petition.
5. The secrecy of ballot principle.
6. The final determination of the election result.

Detailed Analysis:

1. Validity of Certain Votes Counted in Favor of the Appellant and Respondent:
The respondent challenged the election result on the grounds that three valid votes in their favor were wrongly rejected and one invalid vote was wrongly counted in favor of the appellant. The High Court scrutinized the disputed votes and concluded that the Returning Officer had wrongly rejected the three votes in favor of the respondent, thereby validating them. The Supreme Court reviewed these findings and agreed with the High Court on two votes but invalidated the third due to ambiguity and additional markings. The Supreme Court also invalidated the vote counted in favor of the appellant due to the presence of a legible signature.

2. The High Court's Direction for Recounting All Votes:
The appellant contended that the High Court exceeded its jurisdiction by ordering a recount of all votes instead of limiting the scrutiny to the disputed votes mentioned in the election petition. The Supreme Court held that the High Court's direction for a full recount was impermissible and should have been restricted to the specific disputed votes as per the pleadings.

3. The Interpretation and Application of Rules Regarding Invalid Votes:
The Supreme Court emphasized the importance of adhering to statutory requirements and rules governing the election process, particularly Rule 73(2) of the Conduct of Elections Rules, 1961. The Court clarified that a ballot paper should be invalidated only if the markings or writings reasonably indicate the identity of the voter, and not merely on a speculative basis. The Court invalidated the vote with a signature as it could lead to the identification of the voter.

4. The Simultaneous Trial of Election Petition and Recrimination Petition:
The Supreme Court noted that in a composite election petition, the recrimination petition filed by the returned candidate must be tried simultaneously with the election petition. The Court examined the grounds raised in the recrimination petition by the appellant and found them either non-descriptive, vague, or without merit, except for one vote which was rightly rejected by the Returning Officer.

5. The Secrecy of Ballot Principle:
The Supreme Court reiterated the sacrosanct nature of ballot secrecy as per Section 94 of the Representation of the People Act, 1951. The Court acknowledged that while the principle of secrecy is fundamental, it has been somewhat diminished by the rule of whip as prescribed in the Tenth Schedule to the Constitution of India.

6. The Final Determination of the Election Result:
After modifying the High Court's judgment, the Supreme Court concluded that both the appellant and the respondent received an equal number of votes. In accordance with Section 102 of the Representation of the People Act, 1951, the Court decided the winner by drawing lots in open court. The appellant was declared the successful candidate by the draw of lots.

Conclusion:
The Supreme Court modified the High Court's judgment, invalidating certain votes and ultimately determining the election result by drawing lots, thereby declaring the appellant as the successful candidate. The appeals were disposed of accordingly, with no costs awarded.