JIBONTARA GHATOWARversusSARBANANDA SONOWAL AND ORS.

A                            JIBONTARA GHATOWAR
                                           v.
                      SARBANANDA SONOWAL AND ORS.

                                    MAY 9, 2003

B                    [R.C. LAHOTI AND B.N. AGRA WAL, JJ.]


          Election laws:

          Conduct of Election Rules, 1961:
c
          Rule 63-Recount of votes-Application-Statutory obligation on the
    returning officer-Held: Is to either allow the application to the extent to
    which the prayer may be genuine and reasonable or reject to the extent to
    which it may be found frivolous or unreasonable depending on the facts and
D   circumstances of the given case-Such decision is to be in writing giving
    reasons for the same.

          Rules 38 (/) and 56-Ballot Paper-Rejection on the ground of absence
    of signature of Presiding Officer and distinguishing mark-Held: Where such
    defect is caused by mistake or failure on the part of Presiding Officer rejection
E   of ballot paper not justified

          General Elections to the State Legislative Assembly were held. 824
    number of votes were rejected and excluded from counting as they did
    not bear signature of the presiding officer nor were they stamped with
    any distinguishing mark. Respondent No. I was declared elected, defeating
F   the nearest rival, the appellant. Appellant filed an election petition. It
    challenged the election of respondent No.1 praying for recount of ballot
    papers and rescrutiny of the rejected ballot papers. High Court held that
    the rejection of 824 votes was justified and rejected the petition. During
    the counting the appellant had filed applications seeking a recount setting
G   out the grounds but it did not receive the attention of the returning officer
    and remained undisposed of. Hence the present appeal.

         Appellant contended that 824 number of votes could not have been
    excluded from the counting and serious error was committed at the
    counting by overlooking the rules.

H                                         152
          .llBONTARA GHA TOW AR v. SARBANANDA SONOWAL                   153

      Respondent No. I contended that if this Court feels convinced of Rule    A
63 having been violated and a case of strong likelihood of the result of
the election having been materially affected made out, in that case, the
Court may remand the case to the High Court with a direction to the
returning officer to record his satisfaction by reference to Rule 38 read
with Rule 63 and then his satisfaction being subjected to judicial scrutiny    B
by the High Court whereafter only recount may be carried out.

     Allowing the appeal, the Court

      HELD:!. Rule 63 of the Conduct of Elections Rules, 1961 spells out
a statutory obligation on the returning officer on an application being        C
made under sub-rule (2) to decide the matter. He may allow the application
in whole or in part depending on his satisfaction as to the availability of
the grounds in support of the prayer for recount and the genuineness and
reasonability thereof, which opinion shall, of course, be formed prima facie
depending on the facts and circumstances of the given case. Recording of
evidence or holding of an enquiry on the application is not required or        D
provided for by the rule. The application may be rejected to the extent to
which it appears to him to be frivolous or unreasonable. The expressions
'shall decide the matter', 'may allow the application' and 'if it appears to
him' employed in the language of sub-rule (3) cast an obligation on the
returning officer to take a decision on the prayer for recount depending
on the formation of prima facie opinion in a reasonable manner and as          E
dictated by the facts and circumstances of a given case which would
obviously defy definition or formation of any straight jacket formula. In
any case, a decision has to be taken. The decision has to be in writing and
has to contain the reasons for the decision. In the instant case, there was
a clear breach of Rule 63.1161-D, E, F, GI                                     F
      2.1. It is nobody's case that 824 ballot papers were spurious. The
instant case is not a case of booth capturing or rigging. Jn an election
dispute, there are not the candidates alone who are the persons interested.
In a democratic set up, as is ours, in an election, the fate of the whole
constituency is at stake and every voter and every citizen has, therefore,     G
an interest in that candidate being returned to assembly who has secured
the majority of the valid votes. An election dispute cannot be decided on
concessions contrary to law. 1164-D, EI

      2.2. Rules 38(1) and 56 of the Conduct of Elections Rules, 1961 shows
that the obligation is cast on the polling officer to stamp with such          H
    154                       SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A   distinguishing mark as the Election Commission may direct and to sign
    in full on the back of the ballot papers. The candidate has no role to play
    in the performance of such duty by the polling officer. Absence of mark
    and the signature renders the ballot paper liable to be rejected. However,
    still, where the returning officer feels satisfied that such defect has been
    caused by any mistake or failure on the part of the presiding officer or
B   polling officer, the ballot paper shall not be rejected merely on the ground
    of such defect. (163-F, G]

         2.3. A defect in the ballot papers in the light of Rule 38(1) read with
   Rule 56(2)(h) having been detected, the issue had to be decided by the
C satisfaction of the returning officer. The concession given by candidates
   or their election agents submitting to a decision arrived at by the returning
   officer in accordance with law may come in the way of that candidate
   turning around and disputing a doubtful position of law taken as resolved
   and conceded or accepted. In an election dispute, a consensus contrary to
   law or a failure to discharge statutory obligation cast on an election officer
D which has resulted in prejudicing the result of the election, cannot ipso
  facto claim immunity from challenge. 1164-E, Fl

          2.4. In the instant case, the returning officer has clearly failed in
    discharging his obligation cast by first proviso below clauses (g) and (h)
E   of sub-rule (2) of Rule 56. Therefore, 824 ballot papers should have been
    included for the purpose of counting. 1164-GI

          Aru11 Kumar Bose v. Mohd Furkan Ansari and Ors., (1984] I SCC 91,
    relied on.

          3. On the averments made in the pleadings and on the material made
F   available before the Court a clear case for directing a recount was made
    out. These facts coupled with the fact of breach of statutory duty cast on
    the returning officer by Rule 63 did make out a case for ordering a recount
    of ballot papers by the High Court. Certainly the election petitioner was
    not indulging into a roving inquiry or trying to fish out material. The High
G   Court has also not held so. Therefore, the High Court did acquire a
    jurisdiction to permit a recount. Once a recount was ordered the decision
    of the case would depend on the result of the recount which shall have to
    be given effect to. Thus, the High Court was not justified in rejecting the
    prayer for permitting a recount and the judgment of the High Court is
    set aside. The case is remanded back to the High Court. It shall permit a
H   recount and then decide the election petition after affording the parties
   JIBONTARA GHATOWAR v. SARBANANDA SONOWAL [LAHOTl.J.] 155

an opportunity of hearing and in accordance with law. 1167-A, B, E, Fl         A
      T.A. Ahammed Kabeer v. A.A. Azeez and Ors., JT 120031 4 SC 110,
relied on.

     Bhabhi v. Sheo Govind, 119761 1 SCC 687; Satyanarain Dudhani v.
Uday Kumar Singh, 119931Supp.2 SCC 82; MR. Gopalakrishnan v. Thachady          B
Prabhakaran and Ors., 119951Supp.2 SCC 101 and Bhag Mal v. Ch. Prabhu
Ram and Ors .. 119851 1 SCC 61, referred to.

      4. The result of the election has been declared. The election petition
has already been subjected to trial. Now, it is for the Court to form its
own judicial opinion on the issues raised and act in conformity with the       c
findings arrived at. The case cannot now be remanded with a direction to
the returning officer to now record his satisfaction with reference to Rule
38 read with Rule 56 and Rule 63. 1167-C, DJ

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4033 of2002.               D
     From the Judgment and Order dated 31.5.2002 of the Assam High
Court at Gauhati in E.P. No. 4 of 200 I.

     G.L. Sanghi Ms. Meghalee Borthakur, N.G.P R. Luwang, Ms. Krishna
Sanna, Ms. Asha G. Nair for M/s. Corporate Law Group for the Appellant.        E
      S.B. Sanyal, Manish Goswami, Ambar Qamaruddin and Rameshwar
Prasad Goyal, for the Respondents.

     The Judgment of the Court was delivered by
                                                                               F
      R.C. LAHOTI, J. General Elections to the Assam Legislative Assembly
were held in the months of April/May, 2001. For no. I 15, Moran Legislative
Assembly Constituency, the appellant, the respondent No.'I and respondent
No.2 filed their nomination papers respectively as candidates of the Indian
National Congress, Asom Gana Parishad and Nationalist Congress Party. The
respondents No.3, 4 and 5 filed their nomination papers as independent G
candidates. The appellant's election symbol was 'Hand' while that of
respondent No. I was 'Elephant'. The respondent No. I was declared elected,
defeating the nearest rival, the appellant, by a margin of 850 votes. The final
result sheet shows the distribution of votes as under:-
                                                                               H
    156                        SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A          ~Total votes   polled                              67,581
            No. of Rejected votes                               2,436
            Jibontara Ghatowar (App.)                         26,927
            Sarbananda Sonowal (R-1)                          27,777

B           Hareshwar Changmai (R-2)                            1,241
            Joy Chandra Nagbanshi (R-3)                         7,902
            Biren Borah (R-4)                                     995
            Lukua Changmai(R-5)                                   303

C          The appellant filed an election petition laying challenge to the election
    of the respondent No. I seeking its avoidance and also for declaring herself
    as duly elected. The success or failure of the election petition depended on
    the fate of the prayer for recount of ballot papers made in the election petition
    founded on the following grounds, as summed up by the High Court in its
D   judgment:-

            " I. Out of total 2436 votes rejected as many as 834 Nos. of votes in
            respect of polling station no.I I, 25, 60, 66, 76, 92, 102 and 103 were
            rejected for absence of the signature of the Presiding Officer and
            'distinguishing mark' or 'seal' on the ballot papers. According to the
E           petitioner, all these votes were cast in favour of the petitioner who
            had contested the election as a candidate of the Indian National
            Congress (I) with the symbol of the above votes were improper.

            2. Total No. of 634 ballot papers concerning polling station No. I, 8,
            11, 12 and 28 which were casted in favour of the petitioner were
F           illegally counted in favour of the respondents by placing these ballot
            papers in the box of the respondents. It is submitted that in some
            cases the Top and the Bottom ballot papers were in favour of the
            respondent, whereas the in-between 48 Nos. of ballot papers in the
            bundle of 50 belonged to the petitioner and the entire bundle was
            counted in favour of the respondent.
G
            3. The arrangement in the counting hall was far from satisfactory and
            there was congestion in the area earmarked for the counting agent for
            the various political parties. It is further alleged that a large no. of
            unauthorized persons entered into the counting hall and interfered
            into smooth counting of votes affecting the orderly counting of votes.
H
    J1130NTARA GHATOWAR v. SARBANANDA SONOWAL [LAHOTI, J.] 157

       4. The petitioner filed two applications for re-counting of the votes A
       but without passing any order, the results were declared in violation
       of the provisions of the Act."

       It is not necessary to reproduce the pleadings of the parties in this
judgment and it would suffice if the relevant issues are reproduced from the
record of the High Court which highlight the controversy around which the         B
trial election petition has moved. Issues Nos. l to 5 are as under:-

       "l. Whether the allegation contained in para 32 of the E.P. as well as
       the application for recounting of the votes made to the Returning
       Officer, made out a case for recounting of votes on the grounds of
       materially affecting the result of the Election.                           C
       2. Was there any improper rejection of valid votes of the petitioner
       in course of counting of No.115 Moran LAC in respect of polling
       station Nos. I, 11, 25, 60, 64, 66, 76, 92, I02 and I03?

       3. Was there any improper reception of votes and void votes in favour      D
       of the respondents No. I in course of counting of votes of 115 Moran
       LAC in respect of Polling Station No. I, 8, 11, 12, 28 and 64 by way
       of misplacing ballot papers containing votes cast in favour of the
       election petition in the compartment meant for respondent No. I and
       consequently counting the same in favour of respondent No. I?
                                                                                  E
       4. If issue No.4 is decided in favour of the election petitioner whether
       she is entitled to be declared as elected to No.115 Moran Legislative
       Assembly Constituency?

       5. To what other relief(s) the petitioner is entitled to?"
                                                                                  F
       Eleven witnesses, including himself were examined by the election
petitioner. The respondent No. I himself appeared in the witness box and
examined himself. The Returning Officer Shri B.K Pegu was examined. A
few official witnesses were also examined. The High Court found that during
the counting the election petitioner had preferred an application (Annexure-
3) seeking a recount. An identical copy thereof (Annexure-E) was also moved, G
the exact time whereof is not known. However, both the applications were
moved on 13.5.2001, the day of counting and when the counting was still
going on. These applications, Annexure-3 and Annexure-E, were quite brief
each containing two sentences only, reading as under:-
                                                                                  H
    158                         SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A          ''Sub.: Application for recounting.



           With reference to the subject cited above I hereby want to state that
           that the counting which has been taken place today is not satisfactory
           for me.
B
            So I want to request as a candidate of Indian National Congress from
            Moran Assembly Constituency for recounting of all !he ballot Boxes.

           Thanking you

c                                                                              Sd/-"

           These applications were rejected by the returning officer on the ground
    that the applications did not set out any ground for directing a recount.

         On the same day, the petitioner presented yet another application for
D   recount which reads as under:-

                                                           "Dated 13th May, 2001

           To
           The Returning Officer,
E          I I 5 Moran L.A.C.
           Sub.: Application for re-counting of the above 115 Moran Cons.

           Sir,

           With reference to the subject mentioned above, I have the honour to
F          request you to grant re-countig in the above Moran 115 LAC for the
           following reasons below stated.
           (I)    In Center No. I 03 where re-poll was ordered and re-poll was held
                  on I2th May under proper Security arrangement by the authority
                  and re-poll has done peacefully in the center. It is found that 435
G                 (approximately) ballot papers were cast in my favour but without
                  the signature of the Presiding Officer and distinguished marks
                  for no fault of mine. The same is the case in Center No. 46 about
                   I50 ballot papers were rejected on the above mentioned ground.
           (2) In center No. 30 as per Presiding Officer Diary 697 ballot papers
H              were issued and the same were casted after counting, it was
JIBONTARA GHATOW AR v. SARBANANDA SONOWAL [LAHOTI. .l.]              159
        found to be 721.                                                    A
   (3) Many of the countersigned ballot papers disputed were accepted
       in favour of opposite party candidate.     :~

       Therefore, I have great apprehension that justice was not done to
       me and 1 strongly urge upon you to order for recounting in the
       above mentioned 115 Moran Cons. LAC and also I have reason           B
       to believe that the with intention the presiding officer was
       malafide.
        Thanking you in anticipation.
        Received                                   Jibontara Ghatowar       C
                                                             13.5.2001
   Sd/- lllegible                       INC Candidate 115 Moran LAC
   13.5.2001
   P.A. to DC and DEO
   Dibrugarh
                                                                            D
   (Seal)
   Deputy Commissioner
   Dibrugarh District Dibrugarh.
   Verification
                                                                            E
   I, Smt. Jibontara Ghatowar, wife of Shri Paban Singh Ghatowar, aged
   about 40 years, resident of ushapur, Moran Town, P.O. Moranhat, in
   the District of Sibsgar, Assam , election petitioner of the accompanying
   election petition do hereby solemnly affirm and verify that the
   Annexure -4 to the election petition is a typed copy of the receipt F
   copy of another application dated 13.5.2001 sumitted by me to the
   returning officer of No. 115 Moran L.A.C praying for ordering recount
   of all the ballot papers in respect of No. I 15 Moran L.A.C receipt of
   which was acknowledged by the personal Assistant of Deputy
   Commissioner, Dibrugarh who is also the Returning Officer of No.
   115 Moran L.A.C on 13.5.2001.                                            G
   And in proof thereof, l sign this verification on this the 25th day of
   June, 2001 at Guwahati.

   (J ibontara Ghatowar)"
                                                                            H
    160                        SUPREME COURT REPORTS f2C103] SUPP. I S.C.R.

A       The Deputy Commissioner, Dibrugarh was the appointed returning
  officer. At the venue of counting he was accompanied by his P.A. The
  application Annexure P-3 was received by the P.A. and he made an
  endorsement on the application of having received the same on 13.5.200 I,
  signed the endorsement of presentation in the capacity of P.A. to DC and
B DEO, Dibrugarh and also affixed the rubber stamp of Deputy Commissioner
  thefeunder. PA, DC and DEO are abbreviations respectively for Personal
  Assistant, Deputy Commissioner and District Election Officer. The application
  Annexure P/3 was also received by the P.A. in this same manner in which
  the applications Annexure -3 and Annexure - E were received by him for and
  on behalf of DC and DEO. When the DEO Mr. Pegu appeared in the witness
C box he admitted that the application Annexure P-3 was not dealt with by him
  nor disposed of because it was not brought to his notice by the P.A. Thus it
  is an undisputed fact that the application for recount, though filed at an
  appropriate time and setting out the ground for permitting a recount, did not
  received the attention of the returning officer and remained undisposed of.
  The reason may be a lack of ~ommunication between the DEO and his P.A.
D but that is an internal matter of the two. The fact remains that the earlier two
  applications, similarly received by the P.A., were promptly brought by him
  the notice of the returning officer and received his attention. There is no
  reason why the application Annexure P-3 should not have been similarly
  brought by the P.A. promptly to the notice of the DEO and why it should not
E have received his attention and been disposed of.
          Rule 63 of the Conduct of Elections Rules, 1961 reads as under:-

            63. Re-count of votes.- (I) After the completion of the counting, the
            returning officer shall record in the result sheet in Form 20 the total
            number of votes polled by each candidate and announce the same.
F
                (2) After such announcement has been made, a candidate or, in
            his absence, his election agent or any of his counting agents may
            apply in writing to the returning officer to re-count the votes eihter
            wholly or in part stating the ground on which he demands such re-
            count.
G
                (3) On such an application being made the returning officer shall
            decide the matter and may allow the application in whole in part or
            may reject it in toto if it appears to him to be frivolous or unreasonable.
                (4) Every decision of the returning officer under sub-rule (3)
H           shall be in writing and contain the reasons therefor.
  JIBONTARA GI-IA TOW AR v. SARBANANDA SONOWAL [LAHOTI, .I.) 161

           (5) If the returning officer decides under sub-rule(3) to allow a   A
       re-count of the votes either wholly or in part, he shall-

       (a) do the recounting in accordance with rule 54A, rule 56 or rule
           56A, as the case may be;
       (b) amend the result sheet in Form 20 to the extent necessary after     B
           such re-count; and
       (c) announce the amendments so made by him.

           (6) After the total number of votes polled by each candidate has
       been announced under sub-rule (1) or sub-rule (5), the returning officer
       shall complete and sign the result sheet in Form 20 and no application C
       for recount shall be entertained thereafter:

           Provided that no step under this sub-rule shall be taken on the
       completion of the counting until the candidates and election agents
       present at the completion thereof have been given a reasonable
       opportunity to exercise the right conferred by sub-rule (2)."           D
The rule clearly spells out a statutory obligation on the returning officer on
an application being made under sub-rule (2) to decide the matter. He may
allow the application in whole or in part depending on his satisfaction as to
the availability of the grounds in support of the prayer for recount and the
genuineness and reasonability thereof, which opinion shall, of course, be E
formed prime facie depending on the facts and circumstances of the given
case. Recording of evidence or holding of an enquiry on the application is
not required or provided for by the rule. The application may be rejected to
the extent to which it appears to him to be frivolous or unreasonable. The
expressions 'shall decide the matter', 'may allow the application' and 'if it F
appears to him' employed in the language of sub-rule (3) cast an obligation
on the returning officer to take a decision on the prayer for recount depending
on the formation of prima facie opinion in a reasonable manner and as dictated
by the facts and circumstances of a given case which would obviously defy
definition or formation of any straightjacket formula. The application may be
genuine and reasonable. It may be rejected to the extent to which it may be G
found frivolous or unreasonable. In any case, a decision has to be taken. The
decision has to be in writing and has to contain the reasons for the decision.
There was a clear breach of Rule 63 in the present case.

       In addition, the learned senior counsel for the appellant has invited our
attention to the statement made in para 33 of the written statement replying H
     162                       SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A to the averments made in para 32 of the election petition. The respondent
    states that in the application filed before the DEO the only objection raised
    was in respect of rejection of votes in polling station nos. I03,46 and 30
    only. It is alleged that in polling station no.103 approximately 435 ballot
    papers bearing votes cast in favour of the petitioner were rejected but from
B   the result sheet (Annexure - I) it is clear that total number of rejected ballot
    papers were only 433. Similarly in polling station no.46 it is alleged that 150
    ballot papers were rejected: but from the perusal of the result sheet (Annexure
    - I) the total number of rejected ballot papers in the polling station no.46
    were only 64. Particulars of this rejection of 150 ballot papers as alleged by
    the Election Petitioner were not specifically pleaded.
c         The stand taken in the counter affidavit supports the plea of the appellant,
    at least partially, that there was a good number of ballot papers rejected
    though not invalid.

           Vide para 33 of the election petition, the petitioner has specifically
D averred-
            "33. That a recount and rescrutiny of the rejected ballot papers and
            the ballot papers counted in favour of the Respondent No. I will show
            that the Petitioner had in fact polled 28,474 (26,927+903+644) valid
            votes while the Respondent No. I had in fact polled not more than
E           27,133 (27,777-644) votes out of which 200 more ballot papers polled
            in Polling Station No.30 should have been rejected. Hence, on the
            aforesaid statements of material facts, it is pre-eminently a fit case
            where your Lordships would be pleased to order recount and scrutiny
            of the rejected ballot papers and ballot papers counted in favour of
            the Respondent No. I for upholding the sanctity and purity of election
F           process and for establishing the supremacy of the real mandate of
            election."

         During the course of hearing before the High Court, it was not disputed
  that 824 number of votes were rejected by reference to Rule 56(2) and excluded
G from counting for the reason that they did not bear the signature of the
  presiding officer, nor were they stamped with any distinguishing mark. It
  seems that at the time of counting there was orally a consensus arrived at that
  the votes having no seal or signature shall be rejected as invalid straightway.
  The High Court formed an opinion that such rejection of 824 votes was
  justified. The submission of the learned senior counsel for the appellant is
H that the votes could not have been excluded from the counting and a serious
   JIBONTARA GHATOWAR v. SARBANANDA SONOWAL [LAHOTI, J.] 163

error has been committed at the counting by overlooking of the rules.              A
     Sub-rule ( 1) of rule 38 and relevant part of Rule 56 provide as under;-

       "38. Issue of ballot papers to electors.-(1) Every ballot papers before
       it is issued to an elector, and the counterfoil attached thereto shall be
       stamped or. the back with such distinguishing mark as the Election B
       Commission may direct, and every ballot paper, before it is issued,
       shall be signed in full on its back by the presiding officer.

       xxx xxx xxx xxx
         56. Counting of votes.- ( 1) The ballot papers taken out of each ballot   C
        box shall be arranged in convenient bundles and scrutinized.
        (2) The returning officer shall reject a ballot paper-
       xxx xxx xxx xxx
       (h) if it does not bear both the mark and the signature which it            D
           should have borne under the provisions of sub-rule (I) of rule
           38:
           Provided that where the returning officer is satisfied that any
       such defect as is mentioned in clause (g) or clause (h) has been
       caused by any mistake or failure on the part of a presiding officer or      E
       polling officer, the ballot paper shall not be rejected merely on the
       ground of such defect:

           Provided further that a ballot paper shall not be rejected merely
       on the ground that the mark indicating the vote is indistinct or made
       more than once, if the intention that the vote-shall be for a particular    F
       candidate clearly appears from the way the paper is marked."

       A bare reading of the rules shows that the obligation is cast on the
polling officer to stamp with such distinguishing mark as the Election
Commission may direct and to sign in full on the back of the ballot papers.
The candidate has no role to play in the performance of such duty by the G
polling officer. Absence of mark and the signature renders the ballot paper
liable to be rejected. However, still, where the returning officer feels satisfied
that such defect has been caused by any mistake or failure on the part of the
presiding officer or polling officer the ballot paper shall not be rejected
merely on the ground of such defect. An analysis of this rule and the legal
implication thereof may not detain us any longer inasmuch as we find these H
    164                       SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A rules having been dealt with in Arun Kumar Bose v. Mohd. Furkan Ansari
    and Ors., [ 1984] I SCC 91, wherein this Court found that the absence of
    signature and distinguishing mark on 74 ballot papers was attributable to
    failure on the part of the presiding officer. Having found so, the Court held-

            "It was the obligation of the Presiding Officer to put his signature on
B           the ballot papers before they were issued to the voter. Every voter has
            the right to vote and in the democratic set up prevailing in the country
            no person entitled to share the franchise can be denied the privilege.
            Nor can the candidate be made to suffer. Keeping this position in
            view, we are of the definite view that the present case is one of
            failure on the part of the Presiding Officer to put his signature on
c           those ballot papers so as to satisfy the requirement oflaw. The proviso
            once it is applicable, has also a mandate that the ballot paper is not
            to be rejected. We, therefore, hold that the ballot papers were not
            liable to be rejected as the proviso applied and the High Court, in our
            opinion, came to the correct conclusion in counting these ballot papers
D           and giving credit thereof to the respondent no.1."

    It is pertinent to note that it is nobody's case that 824 ballot papers were
    spurious. The present one is not case of booth capturing or rigging. In an
    election dispute, they are not the candidates alone who are the persons
    interested. In a democratic set up, as is ours, in an election, the fate of the
E   whole constituency is at stake and every voter and every citizen has, therefore,
    an interest in that candidate being returned to assembly who has secured the
    majority of the valid votes. An election dispute cannot be decided on
    concessions contrary to law. A defect in the ballot papers in the light of Rule
    38(1) read with Rule 56(2)(h) having been detected, the issue had to be
F   decided by the satisfaction of the returning officer. The concession given by
    candidates or their election agents submitting to a decision arrived at by the
    returning officer in accordance with law may come in the way of that candidate
    turning around and disputing a doubtful position of law taken as resolved and
    conceded or accepted. In an election dispute, a consensus contrary to law or
    a failure to discharge statutory obligation cast on an election officer which
G   has resulted in prejudicing the result of the election, cannot ipso facto claim
    immunity from challenge. In the present case the returning officer has clearly
    failed in discharging his obligation cast by first proviso below clauses (g) and
    (h) of sub-rule (2) of Rule 56. Disagreeing with the High Court, therefore,
    we hold that these 824 ballot papers should have been included for the
H   purpose of counting.
    .llBONTARA GHA TOW AR v. SARBANANDA SONOWAL [LAHOTI, J.] l 65

       It is, therefore clear that so far as 824 votes are concerned it is a case A
of rejection of ballot papers contrary to the provisions contained in the rules
and to the law declared by this Court in case of Arun Kumar Bose (supra).
From the other material available on record a case for rejection of other
ballot papers was also made out. The averments made in the counter affidavit
itself show that the number of rejected ballot papers was 497 out of which B
433 ballot papers were in favour of the election petitioner. These facts coupled
with the fact of breach of statutory duty cast on the returning officer by Rule
63 did make out a case for ordering a recount of ballot papers by the High
Court.

       The High Court in its judgment has referred to the decisions of this        C
Court in Bhabhi v. Shea Govind, [1976) 1 SCC 687, Satyanarain Dudhani
v. Uday Kumar Singh, [1993] Supp. 2 SCC 82 and MR. Gopalakrishnan v.
Thachady Prabhkaran and Ors., [ 1995) Supp. 2 SCC 101 to read the law that
the secrecy of ballot papers cannot be permitted to be tinkered with lightly;
that an order for recount is not to be granted as a. matter of course; and that
the secrecy of ballot papers has to be maintained. In other words a recount        D
has to be ordered only when on the basis of material facts pleaded in the
petition and supported by the contemporaneous evidence a case for recount
is made out. A similar view has been taken in a host of other decisions. It
is not necessary to burden this judgment by cataloguing all the decisions
relevant to the point. Suffice it to refer to a recent decision of this Court in   E
TA. Ahammmed Kabeer v. A.A. Azeez and Ors., JT (2003) 4 SC 110. This
Court noted the observation made earlier in Bhag Mal v. Ch. Prabhu Ram
and Ors., [1985) l SCC 61 that the Constitution and connected laws aim at
ensuring true democracy functioning in the country and the will of the people
to prevail. That can be achieved by allowing the one to represent the
constituency who has obtained the majority of valid votes by proper and due        F
process of law. It would really be a mockery of the procedure of law in a
situation where it is demonstrated duly in the Court that a person who obtained
four votes less than the other next candidate should be declared elected in
preference to the others and allowed to represent the constituency.

       This Court further held in TA. Ahammmed Kabeer (supra) -"the last           G
befoi"e an Election Judge is ticklish. It is often urged and also held that the
success of a winning candidate should not be lightly set aside and the secrecy
of ballot must be zealously guarded. On account of a rigid following of these
principles the election courts are inclined to lean in favour of the returned
candidate and place the onus of proof on the person challenging the result of      H
    166                        SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A the election, insisting on strict compliance with the rules of pleadings and
    excluding such evidence from consideration as is in divergence with the
    pleadings. However, what has so developed as a rule of practice should not
    be unduly stretched; for the purity of the election process needs to be preserved
    unpolluted so as to achieve the predominant goal of democracy that only he
B   should represent the constituency who has been chosen by the majority of the
    electors. This is the purpose and object of the election law.

           "Though the inspection of ballot papers is to be allowed sparingly
            and the Court may refuse the prayer of the defeated candidate for
            inspection if, in the garb of seeking inspection, he was indulging into
            a roving enquiry in order to fish out materials to set aside the election,
c           or the allegations made in support of such prayer were vague or too
            generalized to deserve any cognizance. Nevertheless, the power to
            direct inspection of ballot papers is there and ought to be exercised
            if, based on precise allegations of material facts, also substantiated,
           a case for permitting inspection is made out as is necessary to
D          determine the issue arising for decision in the case and in the interest
           of Justice". It was also held, "it is true that a recount is not be ordered
           merely for the asking or merely because the Court is inclined to hold
           a recount. In order to protect the secrecy of ballots the Court would
           permit a recount only upon a clear case in that regard having been
           made out. To permit or not to permit a recount is a question involving
E          jurisdiction of the Court. Once a recount has been allowed the Court
           cannot shut its eyes to the result of recount on the ground that the
           result of recount as found is at variance with the pleadings. Once the
           Court has permitted recount within the well-settled parameters of
           exercising jurisdiction in this regard, it is the result of the recount
F          which has to be given effect to."

           "So also once the Court exercises its jurisdiction to enter into the
           question of improper reception, refusal or rejection of any vote, or
           the reception of any vote which is void by reference to the election
           result of the returned candidate under Section IOO(I)(d)(iii), as also
G          as to the result of the election of any other candidate by reference by
           to Section 97 of the Act and enters into scrutiny of the votes polled,
           followed by recount, consistently with its findings on the validity or
           invalidity of the votes, it cannot refuse to give effect to the result of
           its findings as to the validity or invalidity of the votes for the purpose
           of finding out the true result of the recount though the actual finding
H
    JIBONTARA GHATOWAR v. SARBANANDA SONOWAL [LAHOTL J.] 167

        as to the validity or otherwise of the votes by reference to number           A
        may be at variance with the pleadings. In short, the pleadings and
        proof in the matter of recount have relevance for the purpose of
        determining the question of jurisdiction to permit or not to permit
        recount. Once the jurisdiction to order recount is found to have been
        rightly exercised, thereafter it is the truth as revealed by the result of    B
        recounting that has to be given effect to".

       The law so laid down clinches the issue. On the averments made in the
pleadings and on the material made available before the Court in the present
case a clear case for directing a recount was made out. Certainly the election
petitioner was not indulging into a roving inquiry or trying to fish out material. C
The High Court has also not held so. Therefore, the High Court did acquire
a jurisdiction to permit a recount. Once a recount was ordered the decision
of the case would depend on the result of the recount which shall have to be
given effect to.

       Shri. Sanyal, the learned senior counsel for the respondent no. I,             D
submitted that if this Court feels convinced of Rule 63 having been violated
and a case of strong likelihood of the result of the election having been
materially affected made out, in that case, the Court may remand the case to
the High Court with a direction to the returning officer to record his satisfaction
by reference to Rules 38 read with 56 and Rule 63 and then his satisfaction
being subjected to judicial scrutiny by the High Court whereafter only recount        E
may be carried out. We do not find any authority or reasoning to support
such a proposition. The result of the election has been declared. The election
petition has already been subjected to trial. Now, it is for the Court to form
its own judicial opinion on the issues raised and act. in conformity wit!- the
finding arrived at.                                                                   F
      For the foregoing reasons we are of the opinion that the High Court
was not justified in rejection the prayer for permitting a recount. The judgment
of the High Court is set aside. The case is remanded back to the High Court.
The High Court shall permit a recount and then decide the election petition
after affording the parties an opportunity of hearing and in accordance with
law. The costs shall abide the result.

N.J.                                                             Appeal allowed.