Preet Mohinder Singh Vs. Kirpal Singh
EmailAppeal: Civil Appeal No. 5960 of 1999
Petitioner: Preet Mohinder Singh
Respondent: Kirpal Singh
Apeal: Civil Appeal No. 5960 of 1999
Judges: Dr. A.S. ANAND, CJI., R.C. LAHOTI & K.G. BALAKRISHNAN, JJ.
Date of Judgment: Aug 08, 2000
Head Note:
ELECTION
Punjab State Election Commission Act, 1994
Section 77 – Election of Sarpanch of Gram Panchayat – Margin of votes between returned and defeated candidate only 27 – Allegations that certain votes illegally rejected and invalids illegally counted in favour of returned candidates – Plea vague – Absence of material facts and material particulars – Allegations bald. Held that Tribunal was not justified in ordering recounting and High Court was justified in setting aside the said order.
Held:
In the absence of material facts and particulars which are sine-qua-non for letting an election petition proceed to trial, the Tribunal was not justified in ordering a recount in a rather mechanical manner. The courts have always opined that mere allegations not supported by material facts do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon.
(Para 5)
Cases Reffered:
1. V.S. Achuthanandan v. P.J. Francis and Anr. ((1993) 3 SCC 737)
JUDGEMENT:
ORDER
1. Elections to Gram Panchayat, Bhai-Ke-Bhasaur, District Sangrur, Punjab took place on 21st of June, 1998. Appellant and respondent no. 1 contested the election to the office of Sarpanch. Respondent no. 1 was declared elected by a margin of 27 votes. Appellant filed an election petition before the Tribunal under Section 77 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as ‘the Act’). One of the main reliefs claimed in the election petition by the appellant was for recount of votes and that the appellant be declared elected to the post of Sarpanch. It was alleged that illegal votes had been counted in favour of the returned candidate while valid votes of the appellant had been left out from counting. After framing of issues and recording of evidence, the Tribunal vide order dated 6th of July, 1999 directed recount of votes. Respondent no. 3 – SDM, Moonak was directed to recount the votes on 19th July, 1999. The order of recount was challenged by the returned candidate in the High Court and on 24th August, 1999, the challenge succeeded and order of the Tribunal dated 19th July, 1999 was set aside. Hence, this appeal by special leave by the appellant – the defeated candidate (Election petitioner).
2. The High Court considered various submissions raised before it. It noticed that whereas respondent no. 1 secured 970 votes the appellant had secured 943 votes and that there was a difference of 27 votes. The High Court noticed that the Tribunal had ordered recount of votes but was of the opinion that in doing so, the Tribunal had exceeded its jurisdiction. According to the High Court, the secrecy of ballot papers had been violated by ordering recount on the basis of insufficient and vague allegations. In coming to this conclusion, the High Court noticed averments made in the election petition filed by the appellant.
3. Mr. G.S. Chadha, learned Counsel appearing for the appellant submitted before us that keeping in view the small margin by which respondent no. 1 had been declared elected and the fact that during counting, Sohan Singh, a brother of the returned candidate and a colleague of the returning officer, was present in the counting hall, he had influenced the process of counting and therefore, the Tribunal was justified, in the peculiar facts and circumstances of the case, to order a recount. Learned Counsel also submitted that there have been various illegalities and irregularities committed during the counting process and those also justified an order of recount and that the High Court ought not to have interfered with the order of the Tribunal directing recount. Reliance was placed on various judgments in support of the proposition that where the Court is satisfied that there has been illegality and irregularity in the counting of votes, an order of recount can be made.
4. With a view to satisfy ourselves about the justification for the Tribunal to have ordered recount, we have gone through the election petition filed by the appellant (annexure P-2 in the paper book) with the assistance of Mr. Chadha. The averments in the election petition, on the basis of which the Tribunal had ordered
recount, are admittedly contained only
in paragraphs 10, 11, 12 and 13. Those paragraphs read thus:
“10. That after the close of election, the Presiding Officer of the Booth opened the ballot boxes. The Presiding Officer before opening the ballot boxes did not allow the checking of the seal, nor at the time of counting allowed the checking of the ballot papers by the petitioner and his agents. It is pertinent to mention that respondent no. 1 was sitting by the side of Presiding Officers while counting the votes. However, the request of the petitioner to the Presiding Officer to allow them to inspect the bundles of valid and invalid votes, was turned down and a deaf ear was turned to their request.
11. That the Presiding Officer illegally rejected 57 votes whereas infact, these were only 37 votes of such nature.
12. That it is pertinent to mention that Sohan Singh, who is the brother of the respondent, is also working as Instructor in the ITI i.e. he was a colleague and close friend of the Presiding Officer. Sohan Singh took part in the election process at Bhai Ke Bhasaur and got votes cast in favour of respondent no. 1. The said Sohan Singh did not attend to his duty in the election for which case has been registered against him.
13. That illegally, 109 rejected votes
were counted in favour of respondent no. 1 which is arbitrary and against the rules. In fact, those votes were cast in favour of the petitioner.”
5. A bare reading of the above averments shows that these paragraphs contain nothing but bald allegations. No facts, muchless material facts and particulars have been furnished. The averment to the effect that the Presiding Officer had illegally rejected 57 votes whereas in fact these were only 37 votes of such nature, is a hopelessly vague and bald allegation. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been arrived at, has not been disclosed in the election petition. No particulars at all have been furnished of allegedly wrongfully rejected votes as mentioned in paragraphs 11 and 13. Same is the position with regard to the allegations contained in other paragraphs (supra). The pleadings on this aspect are hopelessly vague. Neither material facts nor material particulars have been furnished. In the absence of material facts and particulars which are sine-qua-non for letting an election petition proceed to trial, the Tribunal was not justified in ordering a recount in a rather mechanical manner. The courts have always opined that mere allegations not supported by material facts do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon.
6. In V.S. Achuthanandan v. P.J. Francis and Anr. ((1993) 3 SCC 737) this Court reiterated the settled propositions of law in the matter of inspection and recount of ballot papers. Some of the guidelines and conditions reiterated in that judgment are :
“(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 statements 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 Court must come to the
conclusion that in order to grant prayer for inspection it is necessary and
imperative to do full justice between the parties;
(5) 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 enquiry with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be ordered to land further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.”
7. On the touchstone of those guidelines, the pleadings in the present case being hopelessly deficient the Tribunal fell in error in ordering recount. There was no material before it on the basis of which it could arrive at a conclusion to order recount. The High Court was, under the circumstances, justified in setting aside the order of the Tribunal. We are not persuaded to take a view contrary to the one taken by the High Court either. This appeal, therefore, fails and is dismissed but with no order as to costs.
8. We clarify that we have not considered any other aspect of the case and all other grounds raised in the election petition are open for consideration.
1. Elections to Gram Panchayat, Bhai-Ke-Bhasaur, District Sangrur, Punjab took place on 21st of June, 1998. Appellant and respondent no. 1 contested the election to the office of Sarpanch. Respondent no. 1 was declared elected by a margin of 27 votes. Appellant filed an election petition before the Tribunal under Section 77 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as ‘the Act’). One of the main reliefs claimed in the election petition by the appellant was for recount of votes and that the appellant be declared elected to the post of Sarpanch. It was alleged that illegal votes had been counted in favour of the returned candidate while valid votes of the appellant had been left out from counting. After framing of issues and recording of evidence, the Tribunal vide order dated 6th of July, 1999 directed recount of votes. Respondent no. 3 – SDM, Moonak was directed to recount the votes on 19th July, 1999. The order of recount was challenged by the returned candidate in the High Court and on 24th August, 1999, the challenge succeeded and order of the Tribunal dated 19th July, 1999 was set aside. Hence, this appeal by special leave by the appellant – the defeated candidate (Election petitioner).
2. The High Court considered various submissions raised before it. It noticed that whereas respondent no. 1 secured 970 votes the appellant had secured 943 votes and that there was a difference of 27 votes. The High Court noticed that the Tribunal had ordered recount of votes but was of the opinion that in doing so, the Tribunal had exceeded its jurisdiction. According to the High Court, the secrecy of ballot papers had been violated by ordering recount on the basis of insufficient and vague allegations. In coming to this conclusion, the High Court noticed averments made in the election petition filed by the appellant.
3. Mr. G.S. Chadha, learned Counsel appearing for the appellant submitted before us that keeping in view the small margin by which respondent no. 1 had been declared elected and the fact that during counting, Sohan Singh, a brother of the returned candidate and a colleague of the returning officer, was present in the counting hall, he had influenced the process of counting and therefore, the Tribunal was justified, in the peculiar facts and circumstances of the case, to order a recount. Learned Counsel also submitted that there have been various illegalities and irregularities committed during the counting process and those also justified an order of recount and that the High Court ought not to have interfered with the order of the Tribunal directing recount. Reliance was placed on various judgments in support of the proposition that where the Court is satisfied that there has been illegality and irregularity in the counting of votes, an order of recount can be made.
4. With a view to satisfy ourselves about the justification for the Tribunal to have ordered recount, we have gone through the election petition filed by the appellant (annexure P-2 in the paper book) with the assistance of Mr. Chadha. The averments in the election petition, on the basis of which the Tribunal had ordered
recount, are admittedly contained only
in paragraphs 10, 11, 12 and 13. Those paragraphs read thus:
“10. That after the close of election, the Presiding Officer of the Booth opened the ballot boxes. The Presiding Officer before opening the ballot boxes did not allow the checking of the seal, nor at the time of counting allowed the checking of the ballot papers by the petitioner and his agents. It is pertinent to mention that respondent no. 1 was sitting by the side of Presiding Officers while counting the votes. However, the request of the petitioner to the Presiding Officer to allow them to inspect the bundles of valid and invalid votes, was turned down and a deaf ear was turned to their request.
11. That the Presiding Officer illegally rejected 57 votes whereas infact, these were only 37 votes of such nature.
12. That it is pertinent to mention that Sohan Singh, who is the brother of the respondent, is also working as Instructor in the ITI i.e. he was a colleague and close friend of the Presiding Officer. Sohan Singh took part in the election process at Bhai Ke Bhasaur and got votes cast in favour of respondent no. 1. The said Sohan Singh did not attend to his duty in the election for which case has been registered against him.
13. That illegally, 109 rejected votes
were counted in favour of respondent no. 1 which is arbitrary and against the rules. In fact, those votes were cast in favour of the petitioner.”
5. A bare reading of the above averments shows that these paragraphs contain nothing but bald allegations. No facts, muchless material facts and particulars have been furnished. The averment to the effect that the Presiding Officer had illegally rejected 57 votes whereas in fact these were only 37 votes of such nature, is a hopelessly vague and bald allegation. Leaving aside the question whether the figure as mentioned above is true or imaginary, the basis on which this figure had been arrived at, has not been disclosed in the election petition. No particulars at all have been furnished of allegedly wrongfully rejected votes as mentioned in paragraphs 11 and 13. Same is the position with regard to the allegations contained in other paragraphs (supra). The pleadings on this aspect are hopelessly vague. Neither material facts nor material particulars have been furnished. In the absence of material facts and particulars which are sine-qua-non for letting an election petition proceed to trial, the Tribunal was not justified in ordering a recount in a rather mechanical manner. The courts have always opined that mere allegations not supported by material facts do not give rise to a triable issue particularly where the allegations are made to seek recounting of votes. Secrecy of ballot cannot be lightly impinged upon.
6. In V.S. Achuthanandan v. P.J. Francis and Anr. ((1993) 3 SCC 737) this Court reiterated the settled propositions of law in the matter of inspection and recount of ballot papers. Some of the guidelines and conditions reiterated in that judgment are :
“(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 statements 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 Court must come to the
conclusion that in order to grant prayer for inspection it is necessary and
imperative to do full justice between the parties;
(5) 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 enquiry with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be ordered to land further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.”
7. On the touchstone of those guidelines, the pleadings in the present case being hopelessly deficient the Tribunal fell in error in ordering recount. There was no material before it on the basis of which it could arrive at a conclusion to order recount. The High Court was, under the circumstances, justified in setting aside the order of the Tribunal. We are not persuaded to take a view contrary to the one taken by the High Court either. This appeal, therefore, fails and is dismissed but with no order as to costs.
8. We clarify that we have not considered any other aspect of the case and all other grounds raised in the election petition are open for consideration.
