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TMI Blog1983 (9) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... lected on the footing that he had received 24 more votes than the respondent No. 1. Respondent no, 2 had polled13285 votes. As the election dispute has been confined to the appellant and respondent no, 1 it is not necessary to refer to the other candidates or indicate particulars of their performance at the election. Respondent No. 1 filed an election petition Under Section 81 of the Act asking for the appellant's election to be set aside and for a declaration that he should be declared as the successful candidate. In paragraph 9 of the election petition he pleaded the details of the illegalities and irregularities committed in the course of counting of ballot papers. It is not necessary to refer to the other details excepting what was pleaded in paragraph 9(i) as respondent No. 1 did not press the election petition on those grounds. The pleading in the sub-paragraph was to the following effect. On table No. 10 booth No. 10 (Fukbandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer. Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genuine. However, after announcement of the votes of last round and conclusion of counting of the votes and completion and submission of result sheet in Form 20 by the Assistant Returning Officer to the Returning Officer, the petitioner having lost the ejection by a small margin lost all his senses and like a drowning man catching the last straw, made out a false case of illegality in counting and thus on 2.6.1980 at 1.50 a.m. for the first time raised an objection by filing a petition which was frivolous in nature to count the rejected ballot papers in his favour. 4. After the evidence of both parties had been recorded, on February 19, 1982, the learned trial Judge made the following order: Having considered the arguments of learned Counsel for the parties and the materials on the record and in view of the decisions referred to above, I am satisfied that the petitioner in his election petition has given adequate statements of material facts on which he relies in support of his case and has made out prima facie case for inspection of the ballot papers which have been cast in his favour and rejected. Without expressing any opinion regarding the merit of the claim of the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial judge of the High Court that in the absence of a prayer for recrimination Under Section 97 of the Act, the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law. 7. Before entering into an examination of the tenability of these contentions, it would be proper to take note of the decision in the case of Jagan Nath v. Jaswant Singh and Ors. [1954]1SCR892 , of a five Judge Bench of this Court. Mahajan, C.J. spoke for the Court thus : The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. What was said in Jagan Nath's case continues to be the law binding this Court and in the recent case of Jyoti Basu and Ors. v. Debi Ghosal and Ors: [1982]3SCR318, this Court reiterated the position by saying : A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1)(a) of Section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Since there is no allegation of any corrupt practice in this case there is no necessity to refer to Clause (b) of Sub-section(1) of Section 83. Though initially Mr. Rangarajan had contended that the verification was not in accordance with law, he has abandoned this contention during the hearing in view of the statutory form of verification prescribed and the verification in the instant case conforms to it. According to Mr. Rangarajan the pleading in paragraph 9(i) does not amount to a concise statement of the material facts. Appellant's learned Counsel has placed reliance on the observation in Samant N. Balakrishna. etc. v. George Fernandez and Ors. etc. [1969]3SCR603, where, with reference to Section 83 of the Act it has been said that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars should be given. Material facts and material particulars may overlap. Balakrishna's case where Hidayatullah, CJ. made these observations was one where allegations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case the pleading in paragraph 9(1) set out the material facts in a proper way and no defect can be found with it 9. Mr. Rangarajan next canvassed that the High Court went wrong in allowing inspection of the ballot papers. Reliance was placed on the decision of this Court in the case of Bhabhi v. Sheo Govind and Ors. [1975] suppl. S.C.R. 202, where it has been held that the following conditions were imperative before the Court could grant inspection or sample inspection of ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate, must be clear and specific and must be supported by adequate statement of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount. (4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fying mark was also wanting. The ballot papers have been scrutinised by us as also by learned Counsel for both the parties. Mr. Rangarajan has conceded on seeing the ballot papers that each of them bears the mark. Admittedly none of them contains the signature of the Presiding Officer. Rule 56 of the Conduct of Election Rules; 1961, makes detailed provision for counting of votes. Sub-rule (2) requires the Returning Officer to reject a ballot paper when any of the seven infirmities indicated therein is found. In view of the contentions advanced before us the relevant infirmities would be as provided in Subclause(e), i.e. the ballot paper is a spurious one and (h), i.e. it does not bear both the mark and the signature which it should have borne under the provisions of Sub rule(1) of Rule 38. Rule 38(1) provides: Every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer. 12. These 74 ballot papers cast in favour of the respondent No. 1 which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... got to be of the Presiding Officer and obviously he has to personally do that job. There is evidence that the Presiding Officer had been taken ill on the date of poll. He has been examined as PW2. From his evidence it appears that this was his first experience as a Presiding Officer of a booth. He has stated: On the day of poll my bowls was upset and I had visited the pokhra (tank) once on the day of poll and during that period all the ballot papers were kept on the table. I had not put my signature on all the ballot papers. I had deputed one of the polling officers at the booth to watch the ballot papers when I had gone to the pokhra. For 5 to 10 minutes that I was absent from the polling booth on the day of poll, I cannot say what had happened during that period. The appellant had cross-examined this witness and suggested to him that he had gone to attend to the call of nature three or four times. The appellant's witness No. 2 who was also a candidate at the election (and is a respondent here) has stated : I found the Presiding Officer at booth No. 10 sleeping under a Neem tree at some distance from the booth when I visited the booth in the noon. 14. Once it is held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cceed for the additional relief as he had riot received the majority of the votes polled at the election. We have already indicated that the appellant as the elected candidate in his written statement had pleaded that the counting was in accordance with law and not objectionable. The effect of such a plea is that the ballot papers which had been cast in his favour but credit had not been given thereof had been validly rejected. In the election petition two reliefs had been claimed, firstly, for setting aside the election of the returned candidate, i.e. the appellant, and secondly, for a declaration that the election petitioner (respondent No. 1) was the duly elected candidate. The relief claimed was in terms of Section 100(1)(d)(iii) and Section101(a) of the Act. The election petitioner had claimed that there was improper rejection of votes cast in his favour and that he had received a majority of the valid votes at the election. The Act makes in Section 97 provision for recrimination. Subsection(i) of that section which is material reads thus : When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to which Section 97 of the Act applied. This Court was considering a case of recount simpliciter. The position of law as to the imperative necessity of a recrimination in cases as before us is well settled. A Five Judge Bench in Jabar Singh v. Genda Lal [1964]6SCR54, examined at length the provisions of Section 100 and Section 97 of the Act. That was a case where the difference was of two votes and an application had been made asking for reliefs both Under Section 100(1)(d)(iii) as also Section 101. In that background the question for consideration was whether in the absence of a petition for recrimination relief could be granted. Gajendragadkar, J. (as the learned Judge then was), spoke for himself and three other learned Judges. In the majority judgment it was held : Confining ourselves to Clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate for whether there has been a reception of any vote which is void and this can only be the reception of a void vote in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(l) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held Under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will not be allowed to lead any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue course is accepted to be the law of the country. As we shall presently show, the ratio in the majority opinion is still holding the field and on the plea that the minority view may some day become the law, relief in the present case cannot be granted. We are bound by the decision of the larger Bench. 18. This Court in P. Malaichami v. Mr. Andi Ambalam and Ors. [1973]3SCR1016, considered this question again. Alagiriswami, J. spoke for the Bench which heard the appeal. There it had been contended by counsel that in view of the facts of that case, recrimination and the requirement of Section 97 need not have been insisted upon. This is how that contention was answered : The question still remains whether the requirements of Section 97 have to be satisfied in this case. It is argued by Mr. Venugopal that the gravamen of the respondent's petition was breach of many of the election rules and that he asked for a total recount, a request to which the appellant had no objection and that there was, therefore, no rule or need for filing a recrimination petition Under Section 97. This, we are afraid, is a complete misreading of the petition. No doubt the petitioner asked for a rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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