Supreme Court of India
UDEY CHANDversusSURAT SINGH AND ANR.
- Citation
- 2009 INSC 1182
- Decided
- 9 October 2009
- Disposal
- Appeal(s) allowed
- Bench
- D K JAIN
Holding
A recount under Section 176(4)(b) of the Haryana Panchayati Raj Act may be ordered only if the petition contains a detailed statement of material facts and is supported by contemporaneous evidence establishing a prima facie case; otherwise the order is ultra vires.
Summary
The appellant, Udey Chand, was declared Sarpanch of a Gram Panchayat by a margin of four votes. The election petitioner, Surat Singh, filed an election petition under Section 176(4)(b) of the Haryana Panchayati Raj Act, 1994, seeking a recount of votes alleging irregularities in counting and misconduct by the Returning Officer. The Election Tribunal and the High Court ordered a recount, relying mainly on the narrow margin of votes, without requiring an affidavit or contemporaneous evidence. The Supreme Court held that a recount order under Section 176(4)(b) can be issued only when the petition sets out adequate material facts and is supported by evidence that establishes a prima facie case, to protect the sanctity of ballot secrecy. It found the petition vague, lacking essential facts and evidence, and therefore the Tribunal’s order was mechanically made and unlawful. Consequently, the Supreme Court set aside the recount order and allowed the appeal, restoring the original election result.
Issues considered
- The adequacy of the election petition under Section 176(4)(b) for ordering a recount of votes.
- Whether a bare allegation without contemporaneous evidence can justify a recount order.
- Whether the petitioner is estopped from raising objections after signing the result sheet.
Legislation cited
- Haryana Panchayati Raj Act, 1994s. 176(4)(b), s. 183
- Representation of the People Act, 1951
Subjects
election petitionrecountsecrecy of ballotHaryana Panchayati Raj ActSection 176Election Tribunalprima facie caseballot recountprocedural fairness
Judgment
[2009] 15 (ADDL.) S.C.R. 147
UDEY CHAND A
v.
SURAT SINGH AND ANR.
(Civil Appeal No. 5462 of 2008)
OCTOBER 9, 2009
B
[D.K. JAIN AND AFTAB ALAM, JJ.]
Election Laws - Haryana Panchayati Raj Act, 1994 -
s. 176 - Gram Panchayat Elections - Election petition
challenging election of appellant under s.176(4)(b); seeking C
re-counting of votes - Petition allowed by Election Tribunal -
Order of Tribunal for re-counting of votes - Propriety of- Held:
Not proper - In an election petition seeking order u/
s.176(4)(b), the Court is obliged to apply its mind to material
~ facts, disclosed in the petition, on which allegations are D
founded, alongwith contemporaneous evidence - An order for
re-count on basis of bare a/legations in election petition would
"'·
not be a proper exercise of jurisdiction under the provision -
On facts, allegations in the election petition were not only
vague, even basic material facts were missing in the petition E ·
- Affidavit in support of the allegations, was neither filed nor
called for - Tribunal passed the order of re-count
~mechanically without application of mind - Haryana
Panchayati Raj Election Rules, 1994 - rr. 69 and 70.
Appellant was declared elected as Sarpanch in the F
Gram Panchayat elections by a margin of four votes,
having secured 881 votes as against 877 votes secured
by his nearest rival, respondent No.1.
Respondent no.1 filed election petitlon chal.lenging G
\ the election of appellant under Section 176(4)(b) of 'the
Haryana Panchayati Raj Act, 1994 and seeking re-
counting of votes, on the ground that there was
irregularity in counting and declaration of result by the
147 H
148 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
A Returning Officer. Serious allegations of misconduct were
levelled against the Returning Officer. The Election t-
Tribunal allowed the election petition and passed order
for re-counting of the votes. The order was upheld by the
High Court.
8
Before this Court, the appellant contended that "
before directing re-count in terms of Section 176(4)(b) of
the Act, the Tribunal was obliged to record a finding, on
the basis of material on record, that a prima facie case for
re-count had been made out but in the present case there
c was neither any documentary nor oral evidence ,,.,
record on the basis whereof the Tribunal could have
recorded such a finding. The appellant also submitted that
having failed to apply for re-count in terms of Rule 69(2)
of the Haryana Panchayati Raj Election Rules, 1994 after
D announcement of the result by the Returning Officer and
having signed the result sheet in Form 19, the election
petitioner was estopped from raising any objection in
regard- to the counting at a later stage.
E Allowing the appeal, the Court
HELD:1.1. The salutary principle in election law-is
that since an order for inspection and re-count of the
ballot papers affects the secrecy of ballot, such an order .>-
cannot be made as a matter of course. In the entire
F election procass, the secrecy of ballot is sacrosanct and
inviolable except where strong prima facie circumstances
to suspect the pur~ty, propriety and_ legality ,in the
counting are mf.jat: out. Before an Election Tribunal can·
permit scrutiny ',1 Lallot papers and order re-count, two
G basic requirements viz. (i) the,election petition seeking re-
count of the ballot papers must contain an adequate
statement of all the material facts on which the allegations
of irregularity or illegality in counting are founded, and (ii)
on the basis of evidence adduced in support of the
H
UDEY CHAND v. SURAT SINGH AND ANR. 149
allegations, the Tribunal must be prima facie satisfied that A
in order to decide the dispute and to do complete and
effectual justice between the parties, making of such an
order is imperatively necessary, are satisfied. [Para 9)
[158-A-E]
B
1.2. The sole object of the Legislature in giving wide
powers to the Election Tribunal is to decide the
objections under clause (b) of sub-section (4) of Section
176 of the Haryana Panchayati Raj Act, 1994,
expeditiously without holding a full-fledged regular C
enquiry, as postulated in clause (a) of the said provision,
so that the actual mandate of the electorate is given effect
to without any delay; the successful candidate is able to
utilise his complete tenure for the purpose he has been
elected and above all the purity of election process is
safeguarded. Nonetheless, the secrecy of the ballot D
being sacrosanct, it cannot be permitted to be tinkered
with lightly and an order of re-count cannot be granted
just for the asking. No doubt the legislature in its wisdom
has not i_ncorporated in clause (b) of sub-section{4) of
Section 176 of the Act, the expression "on the holding of E
such inquiry", as it appears in clause (a), but bearing in
mind the importance and the sanctity of the secrecy of a
ballot, it cannot be the intention of the legislature that a
bald allegation of irregularity in the counting process
would ipso facto warrant a re-count. Such an F
interpretation of the provision, would not only
tantamount to automatic conversion of a petition under
Section 176(1) of the Act into an order for recounting, it
would be destructive of the settled principle of secrecy
of poll, as also violative of letter and spirit of Section 183 G
of the Act, which mandates every officer, agent etc.; who
performs duty in connection with the recording or
counting of votes, to maintain the secrecy of votes. A
petition for re-count as contempf~tgd under clause (b) of
Section 176(4) of the Act must contain adequate H
150 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A statement of material facts on which the election
petitioner relies in support of his allegation(s) and it must
also be supported by some contemporaneous evidence
to show irregularity or illegality in the counting. On this
basic material, which affords the basis for the allegations
B in the petition and the response of the opposite party
thereon; the Tribunal is required to record its prima facie
satisfaction that in order to decide the issue raised in the
petition and in order to do complete justice between the r-
parties the "scrutiny and computation of the votes"
c recorded in favour of each candidate is necessary. The
need to record reasons in support of th~ satisfaction can
hardly be over-emphasised because reasons are the soul
of the orders/judgment. [Para 17) [166-E-H;167-A-D]
1.3. Though in an election petition seeking an order
D under Section 176(4)(b) of the Act, it may not be
necessary for the Court to hold a regular enquiry as
postulated under clause (a) of Section 176(4) of the Act
but the Court is obliged to apply its mind to the material
facts, disclosed in the petition, on which the allegations
E of irregularity or illegality are founded, along with some
contemporaneous evidence, which would depend on the
facts and circumstances of each case. An order for re-
'
c9unt on the basis of bare allegations in the election
p~~ition would not be a proper exercise of jurisdiction
F un~er the provision. [Para 17) [167-C-D]
I
\ .
'~ .4. In the_ present case, the Tribunal as also the High
Court lost sight of the parameters to be applied while
consldering the petition seeking re-counting of votes.
G The allegations in the election petition were not only
vague, \even the basic material facts, as could have made
the Tribunal reach· a prima facie satisfaction that re-count
of ballots was necessary, were missing in the petition.
Affidavit in support of the allegations, was neither filed
.H nor called for, more so, in a case where serious
UDEY CHAND v. SURAT SINGH AND ANR. 151
1
allegations of misconduct were levelled against the A
Returning Officer. Having regard to the fact that
concededly the result sheet had been signed by the
election petitioner, perhaps, it was a fit case where the
examination of the Returning Officer was necessary to
elicit the correctness of the allegations in the petition. It B
is manifest from the observations of the Tribunal, that the
sole factor which had weighed with it to order re.:.count
-. was the margin of only 4 votes between the appellant
and the election petitioner. A narrow margin of 4 votes
does not per se give rise to a presumption that there had c
been an irregularity or illegality in the counting of votes.
[Para 18] [167-E-H;. 168-A-B]
1.5. Apart from laying the foundation in the
pleadings, the onus to prove the allegation of irregularity
~ or illegality on the part of the Returning Officer was on D
the election petitioner, which he failed to discharge. The
allegation against the Returning Officer of obtaining the
signatures of the election petitioner on a blank result
sheet and filling up the same after the election petitioner
had left the polling station, was a serious allegation E
involving dereliction of duty. It could not be accepted at
its face value and had to be proved with cogent material,
. . which was not done. In order to overcome his lapse in
not availing of the statutory remedy for re-counting of
votes as provided in Rule 69 as also the factum of his F
signing the result sheet in Form 19, the plea of incorrect
recording of the result after his departure from the polling
station was raised by the election petitioner. Clearly, it
was an afterthought. [Para 18] [168-8-E]
..i 1.6. There was no material on record on the basis G
whereof the Tribunal could have arrived at a positive
finding as to how a prima facie case had been made out
to order a re-count of the ballot papers. The order of re-
count was passed by the Tribunal mechanically without H
152 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
A any application of mind and, therefore, the High Court
erred in upholding it. [Para 19] [169-A-B]
1.7. In the re-count carried out in furfheranc~-of
Tribunal's order, the election petitioner was found to have
secured 878 votes as against 873.·votes secured by the
8
appellant and as ,cf consequence 'thereof the election
petitioner has been declared elected as the Sarpanch. The
contention raised by the election petitio~er (respondent
no.1) to the effect that re-counting having taken place in
-terms of the Tribunal's order, the present appeal is
C rendered infructuous, cannot be accepted. An order of re-
count of votes has to stand or fall on the nature of the
averments made in the election petition and the material
produced in support thereof before -the order of re-count
is made and not from the result emanating from the re-
0 count of votes. [Paras 8, 20] [157-F-169-C-D]
1.8. In the present ~ase, the election petition, lacking
material facts, is rejected and consequently, the order
passed by the Election Tribunal directing re-count of the
E votes is set aside. [Para 22] [170-8]
Suresh Prasad Yadav v. Jai Prakash Mishra and Ors.
(1975) 4 SCC 822; P.K.K. Shamsudeen v. K.A.M. Mappillai
Mohindeen & Ors. (1989) 1 SCC 526; Vadivelu v. Sundaram
& Ors. (2000) 8 SCC 355 and Satyanarain Dudhani v. Uday
F Kumar Singh and Ors. (1993) Supp (2) SCC 82; V. S.
Achuthanandan v. P.J. Francis & Anr. (2001) 3 SCC 81;
Chandrika Prasad Yadav v. State of Bihar & Ors. (2004) 6
SCC 331 and M. Chinnasamy v. K. C. Palanisamy & Ors.
(2004) 6 sec 341, relied on.
G
Radha Kishan v. Election Tribunal-Cum-Sub Judge
1999 (2) PLJ 8 and Janak Singh v. Ram Das Rai & Ors.
(2005) 2 sec 1, referred to.
H
UDEY CHAND v. SURAT SINGH AND ANR. 153
Case Law Reference: A
1999 (2) PLJ 8 referred to Para 5
(2005) 2 sec 1 referred to Para 7
l
(2000) 8 sec 355 relied on Para 7 B
mi
(2001) 3 sec 81 relied on Para 7
1 (2004) G sec 331 relied on Para 7
(1975) 4 sec 822 relied on Para 10 c
(1989) 1 sec 526 relied on Para 11
(1993) Supp (2) sec 82 relied on Para 21
(2004) 6 sec 341 relied on Para 21 D
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5462 of 2008.
From the Judgment & Order dated 19.10.2007 of the High
Court of Punjab & Haryana at Chandigarh in Civil Revision No. E
5432 of 2007.
.. Mahabir Singh, Rakesh Dahiya, Nikhil Jain, Gagan Dep
Sharma, Rameshwar Prasad Goyal for the Appellant.
lndu Malhotra, Sunieta Ojha, Rishi Malhotra, Prem F
Malhotra, Vibhuti, Ram Naresh Yadav, Dr. Kailash Chand for
the Respondents.
_... The Judgment of the Court was delivered by
G
D.K. JAIN, J. 1. This appeal, by Special Leave, is directed
~
against the judgment and order dated 19th October, 2007,
rendered by the High Court of Punjab & Haryana at Chandigarh
in Civ"il Revision No.5432 of 2007. By the impugned judgment,
the High Court has affirmed order dated 12th October, 2007
H
154 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.
A passed by the Civil Judge (Jr. Division), Hansi (hereinafter
referred to as "The Election Tribunal") in Civil Suit No.4C of
2006, directing the re-counting of votes cast in the election for
the post of Sarpanch, Gram Panchayat, Village Bas
Badshahpur, Tehsil Hansi, District Hissar.
B
2. The facts, giving rise to the present appeal, may be
briefly summarised as follows:
Re-poll for the said post was held on 18th December,
2005. In the result declared the same evening, the appellant
C was declared elected by a margin of four votes, having secured
881 votes as against 877 votes secured by his nearest rival,
respondent No.1 (hereinafter referred to as 'the election
petitioner'), in this appeal. The result was compiled by the
Returning Officer in Statutory Form No.19, prescribed under
D Rule 70(1) of the Haryana Panchayati Raj Election Rules, 1994
(for sho1t 'the Rules'). The Form was signed by the appellant
as well as the election petitioner. The result was declared
thereafter.
E 3. Being dissatisfied with the election result, the election
petitioner filed an election petition under Section 176 of the
Haryana Panchayati Raj Act, 1994 (for short 'the Act'). The
election of the appellant was challenged on several grounds (all
in paragraph 3 of the petition in the narrative form) viz. (i) on ~
completion of- election and counting of votes, the election
F petitioner was found to have secured 877 votes as against 871
votes cast in favour of the appellant; (ii) the Returning Officer
declared the election petitioner as elected to the post of
Sarpanch; he got Form No.19 signed from him and after the
election petitioner had left for his residence to celebrate his
G victory, the Returning Officer, in connivance with the appellant
and under political pressure, wrongly recorded the number of ~
votes secured by each of them and declared the appellant as
elected for the said post; and (iii) on account of political
pressure and ill-will, the Returning Officer wrongly cancelled a
H number of votes cast in favour of the election petitioner and,
UDEY CHAND v. SURAT SINGH AND ANR. 155
[D.K. JAIN, J.]
therefore, "re-counting" of votes was illegal. It was alleged that A
since the Returning Officer had violated the provisions of the
Act and the Rules framed thereunder and had committed
"certain" illegality, the election of the appellant was a nullity. It
was prayed that the election of the appellant be set aside; re-
counting of votes be ordered and the election petitioner may B
be declared as elected to the said post.
4. The election petition was contested by the appellant. It
was pleaded that case for re-counting was not made out as the
counting of votes was in the presence of the contesting
candidates as well as their agents; the allegations in the election C
petition were frivolous and the election petition was an abuse
of the process of law.
\
5. From the record it appears that neither issues were
framed nor any affidavit by way of evidence was filed or oral o
evidence in support of the respective pleas was adduced. Upon
hearing oral submissions and relying on a Full Bench decision
of the High Court in the case of Radha Kishan Vs. Election
Tribunal-Cum-Sub Judge 1 , the Tribunal allowed the petition,
observing thus: E
"From the above discussed case law it can be said
that the recounts of votes can only be ordered on the basis
of material facts which have been asserted by the
petitioner and which are duly supported by some evidence
thus, making out prima facie case for recounting and there F
must be some contemporaneous evidence in support of
the fact of any irregularity of illegality in the counting.
In the instant case, there is margin of only four votes
between the petitioner and the respondent No.1 whereby G
the respondent No.1 has been declared as elected
candidate. It is the plea of the petitioner that earlier he was
declared elected in the said election, however, the
1. 1999 (2) PLJ 8
H
156 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A respondent No.2 by coming under political pressure etc.,
declared the respondent No.1 to be an elected candidate."
6. Being aggrieved, the appellant took the matter to the
High Court by preferring a Civil Revision petition. As stated
above, the High Court has dismissed the revision petition,
B holding that in view of the decision of the Full Bench in Radha
Kishan's case (supra), when there is sufficient evidence
available on record warranting a re-count, no documentary
evidence was required to direct the re-counting of votes under
Section 176(4)(b) of the Act. Aggrieved by the said decision,
C the appellant is before us.
7. Assailing the decisions of the Tribunal as also of the
High Court, Mr. Mahabir Singh, learned senior counsel
appearing on behalf of the appellant strenuously urged that the
o High Court committed a serious illegality in upholding the order
passed by the Tribunal, directing a re-count, inasmuch as it was
passed mechanically without understanding and appreciating
the ratio of the decision in Radha Kishan's 9ase (supra). It was
contended that before directing the re-count in terms of Section
E 176(4)(b) of the Act, the Tribunal was obliged to record a
finding, on the basis of the material on record, that a prima facie
case for re-count had been made out. It was argued that in the
present case there is neither any documentary nor oral
evidence on record on the basis whereof the Tribunal could have
F recorded such a finding. It was also submitted that having failed
to apply for re-count in terms of Rule 69(2) of the Rules after
the announcement of the result by the Returning Officer and
having signed the result sheet iD Form 19, the election petitioner
was estopped from raising any objection in regard to the
counting at a later stage. Learned counsel also urged that the
G High Court did not notice insertion of clause (aa) in sub-section
(4) of Section 176 of the Act, which contemplates an enquiry
into the allegation of non-compliance with or violation of the
provisions of the Act etc. In support of the proposition that an
order of re-count should not be made unless a definite case
H
UDEY CHAND v. SURAT SINGH AND ANR. 157
[D.K. JAIN, J.]
for re-count with specific allegation is made out, reliance was A
placed on the decisions of this Court in Janak Singh Vs. Ram
Das Rai & Ors. 2 , Vadive/u Vs. Sundaram & Ors. 3 , and V.S.
Achuthanandan Vs. P.J. Francis & Anr. 4 • Reference was also
made to Chandrika~Prasad Yadav Vs. State of Bihar & Ors5•
to contend that having failed to furnish any explanation as to B
why application for re-count had not been made in terms of Rule
69(2) at the time of counting, the Tribunal should have rejected
the prayer for re-count.
f
8. Ms. lndu Malhotra, learned senior counsel, appearing C
on behalf of the election petitioner, on the other hand,
supported the decision of the lower courts and submitted that
sufficient material was available on record, on the basis
whereof the Tribunal had recorded its prima facie satisfaction
that a case for re-count had been made out. Learned counsel
argued that since challenge to the election was laid under D
Section 176(4)(b) of the Act, a detailed enquiry as
contemplated in clause (a) of the said section was not required.
Learned counsel also pointed out that in the re-count carried
out in furtherance of Tribunal's order dated 12th March, 2007,
the election petitioner was found to have secured 878 votes as E
against 873 votes secured by the appellant herein and as a
consequence thereof the election petitioner has been declared
l elected as the Sarpanch. It was, thus, asserted that order dated
12th October, 2007 having been given effect to, the present
appeal is rendered infructuous and deserves to be dismissed. F
It was, however, conceded that the order of the Civil Judge
declaring the election petitioner as having been elected is under
challenge before the High Court and the operation of the said
order has been stayed.
G
9. Before adverting to the merits of the issue raised by the
2. (2005) 2 sec 1
3. (2000) a sec 355
4. (2001) 3 sec a1
5. (2004) 6 sec 331 H
158 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A parties with reference to the statutory provisions, it would be
appropriate to bear in mind the salutary principle laid down in
the election law that since an order for inspection and re-count
of the ballot papers affects the secrecy of ballot, such an order
cannot be made as a matter of course. Undoubtedly, in the
B entire election process, the secrecy of ballot is sacrosanct and
inviolable except where strong prima facie circumstances to
suspect the purity, propriety and legality in the counting are
made out. The importance of maintenance of secrecy of ballot
papers and the circumstances under which that secrecy can be
c breached, has been considered by this Court in several cases.
It would be trite to state that before an Election Tribunal can
permit scrutiny of ballot papers and order re-count, two basic
requirements viz. (i) the election petition seeking re-count of the
ballot papers must contain an adequate, statement of all the
material facts on which the allegations of irregularity or illegality
0
in counting are founded, and (ii) on the basis of evidence
adduced in support of the allegations, the Tribunal must be
prima facie satisfied that in order to decide the dispute and to \.
do complete and effectual justice between the parties, making
E of such an order is imperatively necessary, are satisfied.
10. In Suresh Prasad Yadav Vs. Jai Prakash Mishra and
6
Ors. , summarising the principles laid down by this Court from
time to time in granting prayer for inspection of ballot papers
1 f
and/or re-counting, a three-Judge Bench of this Court
F adumbrated the circumstances in which such a prayer could be .....•
considered. Speaking for the Bench, Sarkaria J. observed as
follows: (SCC pages 824-825)
"... this Court has repeatedly said, that an o~~cr for
inspection and recount of the ballot papers cannot be
G
made as a matter of the course. The reason is two-fold.
Firstly such an order affects the secrecy of the ballot which
under the law is not to be lightly disturbed. Secondly, the
Rules provide an elaborate procedure for counting of ballot
H 6. (1975) 4 sec a22
UDEY CHAND v. SURAT SINGH AND ANR. 159
[D.K. JAIN, J.]
papers. This procedure contains so many statutory checks A
and effective safeguards against mistakes and fraud in
counting, that it can be called almost trickery foolproof.
~
Although no hard and fast rule can be laid dowr:i, yet the
broad guidelines, as discernible from the decisions of this
Court, may be indicated thus. B
The Court would be justified in ordering a recount of
the ballot papers only where:
"' t
( 1) the election-petition contains an adequate statement
of all the material facts on which the allegations of c
irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are
prima facie established, affording a good ground for
believing that there has been a mistake in counting; and
D
(3) the court trying the petition is pri~a facie satisfied that
the making of such an order is imperatively necessary to
decide the dispute and to do complete and effectual justice
between the parties."
E
11 ~ In P.K.K. Shamsudeen Vs. K.A.M. Mappillai
Mohindeen & Ors. 7 , the petitioner contested the election for the
, post of the President of a Panchayat in Tamil Nadu. In the
election, the 1st respondent was declared elected and the
I(
petitioner challenged the election on the ground that while F
CQUnting, the Returning Officer had wrongly treated some valid
votes cast in favour of the petitioner as invalid votes and certain
invalid votes were treated as valid votes which were cast in
favour of the 1st respondent and that the Returning Officer had
not permitted the petitioner's agents to have scrutiny of the
G
ballot papers at the time of counting. The Tribunal, after
-1 recording the evidence of all candidates and the Assistant
Returning Officer, ordered re-count of votes. On re-counting of
\Jotes, it was found that there was no difference in the number
7. (1989) 1 sec s26 H
160 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A of votes secured by the petitioner but insofar as the 1st
respondent was concerned he had secured only 528 votes as
against 649 votes he was originally held to have secured. 121 "'
)'
votes cast in his favour had been found to be invalid votes. ~>
Based on the figures of the re-count, the election petitioner was
~
B declared duly elected as he had secured 28 votes more than
;,
;
the 1st respondent on re-count. This order was challenged by
the 1st respondent in a Civil Revision petition before the High
Court. The learned Single Judge allowed the revision petition p
and held that the Tribunal had erred in ordering a re-count of t
the votes when the petitioner had not made out a prima facie
c case for an order of re-count of votes cast. This order was
challenged before this Court. Upholding the view taken by the
High Court, it was held as under: (SCC p. 531-)
"13. Thus the settled position of law is that the justification ~
D for an aider for examination of ballot papers and re-count
of votes is not to be derived from hindsight and by the result t:-
of the re-count of votes. On the contrary, thejustification
for an order of re-count of votes should be provided by
the material placed by an election petitioner on the
E threshold before an order for re-count of votes is actually
made. The reason for this salutary rule is that the
preservation of the secrecy of the ballot is a sacrosanct
principle which cannot be lightly or hastily broken unless
there is prima facie genuine need for it. The right of a
F defeated candidate to assail the validity of an election
i
result and seek re-counting of votes has to be subject to r
the basic principle that the secrecy of the ballnt is·
sacrosanct in a democracy and hence unless the affected
candidate is able to allege ar.d substantiate in
acceptable measure by means of evidence that a prima
G
facie case of a high degree of probability existed for the
re-count of votes being ordered by the Election Tribunal ~
in the interests of justice, a Tribunal or court should not
order the recount of votes."
H
1
'
UDEY CHAND v. SURAT SINGH AND ANR. 161
[D.K. JAIN, J.]
(Emphasis supplied by us) A
12. In Satyanarain Dudhani Vs. Uday Kumar Singh and
8
Ors. , observing that re-count of votes should not be ordered
as a matter of course, it was held as under:
"A cryptic application claiming recount was made by 8
the petitioner-respondent before the Returning Officer. No
details of any kind were given in the said application. Not
even a single instance showing any irregularity or illegality
in the counting was brought to the notice of the Returning
Officer. We are of the view when there was-'flo C
contemporaneous evidence to show any irregularity or
illegality in the counting ordinarily, it would not be proper
to order recount on the basis of bare allegations in the
election petition. We have been taken through the
"' - pleadings in the election petition. We are satisfied that the D
grounds urged in the election petition do not justify for
ordering recount and allowing inspection - of the ballot
papers. It is settled proposition of law that the secrecy of
the ballot papers cannot be permitted to be tinkered lightly.
An order of recount cannot be granted as a matter of E
course. The secrecy of the ballot papers has to be
maintained and only when the High Court is satisfied on
the basis of material facts pleaded in the petition and
supported by the contemporaneous evidence that the
recount can be/ordered." F
13. Yet again in Vadivelu's case (supra), a case pertaining
to an election for the post of the President of a village
Panchayat in Tamil Nadu, the result was challenged on the
ground of various irregularities in voting and counting. The
difference of votes secured by the winning candidate and his G
-1 nearest rival was only one vote. The election petition by the
losing candidate was allowed by the Election Tribunal and a
re-count was ordered. As a result, the election petitioner got
8. (1993) Supp (2) sec 82 H
l
162 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
,I
A 1002 votes and the elected candidate got only 975 votes.
'~
Revision petition filed against the order of the Tribunal was
allowed by the High Court and it was held that a re-count ought !'-
not to have been ordered, because the election petition did not >-
r
contain material facts and did not make out a prima facie
B case for re-counting. The election petition was, thus, dismissed.
Affirming the decision of the High Court, a three-Judge Bench,
speaking through K.G. Balakrishnan, J. (as His Lordship then
was), exposited thus: t
" ... Re-count of votes could be ordered very rarely
c and on specific a/legation in the pleadings in the election
petition that illegality or irregularity was committed while
counting. The petitioner who seeks re-count should allege
and prove that there was improper acceptance of invalid
votes or improper rejection of valid votes. If only the court ):-
D is satisfied about the truthfulness of the above allegation,
it can order re-count of votes. Secrecy of ballot has
always been considered sacrosanct in a democratic
process of election and it cannot be disturbed lightly by
bare allegations of illegality or irregularity in counting. But
E if it is proved that purity of elections has been tarnished
and it has materially affected the result of the election
whereby the defeated candidate is seriously prejudiced,
the court can resort to re-count of votes under such
circumstances to do justice between the parties."
F
(Emphasis added)
14. In the backdrop of the afore-stated principles,
enunciated whii( J~aling with election petitions under the
Representation of the People Act, 1951 and Conduct of
G Election Rules, 1961, as also under some of the State Election
Laws, the moot question arising for consideration is as to what ..
is the ~cope of enquiry under clause (b) of sub-section (4) of
Section 176 and whether the language of the said provision
carves out" an exception to the afore-mentioned general
H principles to be borne in mind while dealing with an election
UDEY CHAND v. SURAT SINGH AND ANR. 163
[D.K. JAIN, J.]
petition seeking inspection of ballots and re-counting? A
15. To appreciate the rival submissions in this behalf, it
would be necessary to refer to Section 176 of the Act. Insofar
as it is relevant for this appeal, it reads as follows:
"176. (1) Determination of validity of election enquiry by 8
judge and procedure.-lf the validity of any election of a
t
member of a Gram Panchayat, Panchayat Samiti or Zila
Parishad or Sarpanch of Gram Panchayat, Chairman or
Vice-Chairman, President or Vice-President of Panchayat
Samiti or Zila Parishad respectively is brought in question C
by any person contesting the election or by any person
qualified to vote at the election to which such question
relates, such person may at any time, within thirty days after
the date of the declaration of results of the election, present
an election petition to the Civil Court having ordinary D
jurisdiction in the area within which the election has been
or should have been held, for the determination of such
question.
(2) xxx xxx xxx
E
(3) xxx xxx xxx
(4) (a) If on the holding of such enquiry the Civil Court finds
that a candidate has, for the purpose of election committed
a corrupt practice within the meaning of sub-section (5), F_
he shall set aside the election and declare the candidate
disqualified for the purpose· of election and fresh election
may be held.
(aa) If on holding such enquiry the Civil Court finds that G
(i) on the date of his election a returned candidate was
not qualified to be elected;
(ii) any nomination has been improperly rejected; or H
164 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A (iii) the result of the election, in so far as it concerns a
returned candidate, has been materially affected by
improper acceptance of any nomination or by any
corrupt practice committed in the interest of the
- returned candidate by an agent other than his
B - election agent_or by the improper reception, refusal
or rejection of any vote or the reception of any vote
which is void or by any non-compliance with or
Violation of the provisions of the Constitution of
India or of this Act, or any rules or orders made
c under this Act,
election of such retuned candidate shall be set
aside and fresh election may be held.
(b) If, in any case to which clause (a) or clause (aa) does
D not apply, the validity of an election is in dispute between
two or more candidates, the Court shall after a scrutiny and
computation of the votes recorded in favour of each
candidate, declare the candidate who is found to have the
largest number of valid votes in his favour, to have been
E duly elected:
Provided that after such computation, if any, equality
of votes is found to exist between any candidate and the
addition of one vote will entitle any of the candidates to be
declared elected, one additional vote shall be added to the
F total numbi;r ot valid votes found to have been received in
the favour of such candidate or candidates, as the case
may be, elected by lot drawn in the presence of the judge
in such manner as he may determine.
G (5) A person shall be deemed to have committed a
corrupt practice
xxxxxxxxx"
16. Sub-section (1) of Section 176 enables a contesting
H
UDEY CHAND v. SURAT SINGH AND ANR. 165
[D.K. JAIN, J.]
candidate or any person who is qualified to vote at the election A
to question before a civil court of competent jurisdiction the
validity of any election of a member of Gram Panchayat,
Panchayat Samiti or Zila Parishad etc. The petition so filed is
to be adjudicated upon in accordance with the provisions of
sub-section (4) of Section 176, depending upon the averments B
made and the nature of the allegations. A perusal of the said
provision would show that an election can be challenged only
on two grounds viz., (i) that the returned candidate committed
a corrupt practice within the meaning of sub-section (5), and
(ii) that some irregularities were committed during the course c
of counting. Sub-section (5) of Section 176 defines what a
corrupt practice means and when a person shall be deemed
to have committed the same. In the present case, although a
question of corrupt practice, falling within the ambit of sub-
section (5) of Section 176 was sought to be raised in the D
election petition, but the same was not pressed before the·
Tribunal. The only issue canvassed before the Tribunal was
regarding irregularity in counting and declaration of result by the
Returning Officer and, therefore, as such, it is unnecessary to
delve on the scope of clause (a) of sub-section (4) of the said
section. However, in order to appreciate the nature and scope E
of enquiry by the Election Tribunal in an election petition,
questioning the validity of election on a ground other than
corrupt practice, reference to both the clauses {a) and (b) of
sub-section (4) of Section 176 would be necessary. It is
manifest from the language of clause (a) that while trying a F
petition containing an allegation of corrupt practice in terms of
clause (a) of sub-section (4), the Court is required to hold an
enquiry to return a finding whether a candidate had indulged in
corrupt practice as defined in sub-section (5) of Section 176
of the Act. Significantly, unlike in clause (a), in clause (b) of sub- G
section (4) of Section 176, the expression "on the holding of
such enquiry" is missing and instead the expression used
therein is "after scrutiny and computation of votes". Thus, the
question is whether in view of the absci ice of expression, "on
the holding of such enquiry" in clause (b) an enquiry into t~e \ H
166 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
+
A allegation of irregularity or illegality in the counting of ballot
papers, be it· on account of acceptance or rejection of ballots
or counting simplicitor is required to be conducted by the
Tribunal or a bare allegation of some irregularity or illegality in
the counting of ballots is sufficient to order a re-count?
8
17. It is no doubt true that the legislature in its wisdom has
not incorporated in clause (b) the expression "on the holding
of such inquiry", as it appears in clause (a), but bearing in mind t-
the importance and the sanctity of the secrecy of a ballot, in
our considered opinion, it cannot be the intention of the
c legislature that .a bald allegation of irregularity in the counting
process would ipso facto warrant a re-count_ Such an
interpretation of the provision, in our view, would'not only
tantamount to automatic conversion of a petition under Section ~
176(1) of the Act into an order for recounting, it would be
D destructive of the settled principle of secrecy of poll, as alsc:>
violative of letter and spirit of Section 183 of the Act, which
mandates every officer, agent etc.; who performs duty in
connection with the recording or counting of votes, to maintain
the secrecy of votes. In our judgment, the sole object of the
E Legislature in giving wide powers to the Election Tribunal is to
decide the objections under clause (b) of sub-section (4) of
Section 176 of the Act expeditiously without holding a full-
fledged regular enquiry, as postulated in clause (a) of the said
provision, so that the actual mandate of the electorate is given
F effect to without any delay; the successful candidate is able to
utilise his complete tenure for the purpose he has been elected
and above all the purity of election process is safeguarded.
Nonetheless, the secrecy of the ballot being sacrosanct, it
'•
cannot be permitted to be tinkered with lightly and an order of
G re-count cannot be granted just for the asking. We have no
hesitation in holding that a petition for re-count as contemplated
under clause (b) of Section 176(4) of the Act must contain
adequate statement of material facts on which the election
petitioner relies in support of his allegation(s) and it must also
H be ·supported by some contemporaneous' evidence to show
UDEY CHAND v. SURAT SINGH AND ANR. 167
-
[D.K. JAIN, J.]
irregularity or illegality in the counting. On this basic material, A
which affords the basis for the allegations in the petition and
the response of the opposite party thereon, the Tribunal is
required to record its prima facie satisfaction that in order to
decide the issue raised in the petition and in order to do
complete justice between the parties the "scrutiny and B
computation of the votes" recorded in favour of each candidate
is necessary. The need to record reasons in support of the
satisfaction can hardly be over-emphasised because reasons
are the soul of the orders/judgment. Therefore, we hold that
though in an election petition seeking an order under Section c
176(4)(b) of the Act, it may not be necessary for the Court to
hold a regular enquiry as postulated under clause (a) of Section
176(4) of the Act but the Court is obliged to apply its mind to
the material facts, disclosed in the petition, on which the
allegations of irregularity or illegality are founded, along with D
some contemporaneous evidence, which would depend on the
facts and circumstances of each case. An order for re-count
on the basis of bare allegations in the election petition would
not be a proper exercise of jurisdiction under the provision.
18. Having viewed the matter in the light of the principles E
enunciated above, we are constrained to note that the Tribunal
as also the High Court lost sight of the parameters to be
applied while considering the petition seeking re-counting of
votes. We find that the allegations in the election petition were
not only vague, even the basic material facts as could have F
made the Tribunal reach a prima facie satisfaction that re-count
of ballots was necessary were missing in the petition. Affidavit
in support of the allegations, summarised in paragraph 3, was
_., neither filed nor called for, more so, in a case where serious
allegations of misconduct were levelled against the Returning G
Officer. Having regard to the fact that concededly the result
sheet had been signed by the election petitioner, perhaps, it
was a fit case where the examination of the Returning Officer
was necessary to elicit the correctness of the allegations in the
petition. It is manifest from the observations of the Tribunal, H
,..
168 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
It--
A extracted in para 5 above, that the sole factor which had
weighed with it to order re-count was the margin of only 4 votes
between the appellant and the election petitioner. In our opinion,
a narrow margin of 4 votes does not per se give rise to a
presumption that there had been an irregularity or illegality in
B the counting of votes. Apart from laying the foundation in the
pleadings, the onus to prove the allegation of irregularity or
illegality on the part of the Returning Officer was on the election
petitioner, which he failed to discharge. The allegation against !'-
the Returning Officer of obtaining the signatures of the election
c petitioner on a blank result sheet and filling up the same after
the election petitioner had left the polling station, was a serious
allegation involving dereliction of duty. It could not be accepted
at its face value and had to be proved with cogent material,
which was not done. We are convinced that in order to
overcome his lapse in not availing of the statutory remedy for
D
re-counting of votes as provided in Rule 69 as also the factum
of his signing the result sheet in Form 19, the plea of incorrect
recording of the result after his departure from the polling station
was raised by the election petitioner. Clearly, it was an
afterthought. In this regard, the following observations by a three-
E Judge Bench of this Court in Chandrika Prasad Yadav's case
(supra) are quite apposite: (SCC page 339):
"Ordinarily, thus, it is expected that the statutory
remedies provided for shall be availed of. If such an
F opportunity is not availed of by the election petitioner; he
has to state the reasons therefor. If no sufficient
explanati<;m is furnished by the election petitioner as to why
G
such statutory remedy was not availed of, the Election
Tribunal may consider the same as one of the factors for
accepting or rejecting the prayer for re-counting. An order
-
of the prescribed authority passed in such application
would render great assistance to the Election Tribunal in
arriving at a decision as to whether a prima facie case for
issuance of direction for re-counting has been made out."
H
·1
i.
UDEY CHAND v. SURAT SINGH AND ANR. 169
[D.K. JAIN, J.]
19. In the light of the afore-stated factual scenario, we are A
of the opinion that in the present case there was no material
:
on record on the basis wl:lereof the Tribunal could have arrived
at a positive finding as to how a prima facie case had been
made out to order a re-count of the ballot papers. The order of
re-count was passed by the Tribunal mechanically without any B
application of mind and, therefore, the High Court erred in
upholding it.
20. Before parting with the case, we may also deal with
the contention urged on behalf of the election petitioner to the C
effect that re-counting having taken place in terms of the
Tribunal's order, this appeal is rendered infructuous. The
argument is noted to be rejected. An order of re-count of votes
has to stand or fall on the nature of the averments made in the
election petition and the material produced in support thereof
before the order of re-count is made and not from the result D
emanating from the re-count of votes. A similar view was
echoed by a three-Judge Bench of this Court in V. S.
Achuthanandan's case (supra). Speaking for the Bench, R.C.
Lahoti, J. (as His Lordship then was) held thus:
E
"... if the validity of an order passed by the High Court
permitting inspection of ballot papers and directing a re-
count is brought in issue before the Supreme Court, the
facts revealed by re-count cannot be relied upon by the
election petitioner to support the prayer and sustain the F
order for re-count if the pleadings and material available
on record anterior to actual re-count did not justify grant of
the prayer for inspection and re-count."
21. A similar contention was rejected by another three-
Judge Bench of this Court in M. Chinnasamy Vs. K.C. G
Palanisamy & Ors. 9 , wherein it was held that even if on re-
count it was found that the returned candidate had not secured
majority of votes, the result could not have been disturbed
9. (2004) 6 sec 341 H
170 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A unless prima facie case of high degree of probability existed
for re-count of votes, which is not the case here. Accordingly,
we reject the contention.
22. In view of the afore-going discussion, the appeal is
allowed; the election petition, lacking matefial facts, is rejected
8
and consequently, the order passed by the Election Tribunal
directing re-count of the votes is set aside. The appellant shall
be entitled to costs in this appeal.
8.8.B. Appeal allowed.
(
•
-
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