Holding

A recount may be ordered only on the basis of specific, material allegations proved true; the High Court was correct in setting aside the Tribunal’s order and the appeal is dismissed.

Summary

The appellant contested the election for President of Vannavalkudi Village Panchayat, losing by a single vote. After his application for a recount was rejected by the Returning Officer, he filed an election petition alleging various irregularities in the counting process. The Election Tribunal, finding no specific material facts, nevertheless ordered a recount, which resulted in the appellant being declared elected. The respondent filed a revision petition under Article 227, and the Madras High Court set aside the Tribunal’s order, holding that a recount can be ordered only on specific, proven allegations and that the appellant’s application was not made in accordance with Rule 66. On appeal, the Supreme Court affirmed the High Court’s decision, emphasizing the need for detailed material facts to justify a recount and confirming the revisional court’s power to correct jurisdictional errors. The appeal was dismissed.

Issues considered

The election tribunal’s authority to order a recount when the election petition contains only vague, general allegations.
Whether the appellant’s application for recount complied with Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995.
Whether the alleged irregularities, if any, materially affected the result under Section 259(2) of the Tamil Nadu Panchayats Act, 1994.
The correct interpretation of Rules 51 and 63 regarding rejection of postal ballot papers.
The scope of revisional powers of a High Court under Article 227 of the Constitution.

Legislation cited

Constitution of Indias. Article 227
Tamil Nadu Panchayats Act, 1994s. Section 259(2)(d)(iii), s. Section 259(2)(d)(iv)

Subjects

Election petitionRecount of votesPanchayat electionsElection TribunalRevision under Article 227Material factsBallot paper rejectionSecrecy of ballotRevisional jurisdiction

Judgment

A VADIVELU
....
v.
SUNDARAM AND ORS.

OCTOBER I 0, 2000

B [DR. A.S. ANAND, CJ., R.C. LAHOTI AND
K.G. BALAKRISHNAN, JJ.]

Election
c Panchayat Elections-Recounting of votes-Grant of-Allegations of
illegality or irregularity in counting of votes-Mere general and bald
allegations without any material facts-Election Tribunal-Order for
~
recounting ofvotes set aside by High Court-Justification of-Held, recounting
can be ordered only if there is specific a/legation in the pleading regarding
D irregularity or illegality in counting and Court is satisfied about the
truthfulness of the said allegations-Thus, High Court was justified in holding
that Election Tribunal erred in ordering recounting of votes-Tamil Nadu
Panchayats (Elections) Rules, 1995-Rule 122.
·../-

Tamil Nadu Panchayats (Elections) Rules 1995-Rule 66-Election-
E Allegations of illegality or irregularity in counting of votes-Application for
recounting of votes before the Returning Officer-Filing of-Held, has to be
made before the declaration of result but after the completion of counting.

Tamil Nadu Panchayats Act, /994-S.259(2)(d)(iii) & (iv)-Election-
Grounds for declaring election to be void-Held, could successfully be urged
F
only if it is proved that the election of the returned candidate had been
materially affected

Interpretation of Statutes

G Rule of Harmonious construction-Applicability of-Election-Postal
ballot papers-Rejection of-Held, a harmonious construction of Rules
provides that a postal ballot paper can be rejected only if it lacks the
signature of the Presiding Offic... · :s well as the distinguishing mark of the
polling station-'!amil Nadu Panchayats (Elections) Rules, 1995-Rules 51
and 63.
H 642
~-
- ......
V ADIVELU v. SUNDARAM

Constitution of India, 1950-Article 227-Revisional power of High
Court-Scope and Extent of-Held, in case oferror ofjurisdiction or flagrant
violation of the law Court can set aside the order passed by the Tribunal.
643
A

Appellant and respondents contested Village Panchayat elections for the
post of President. Respondent No. 1 was declared elected by a margin of one
vote. Appellant's application for recounting of votes was rejected by the B
Returning Officer. Thereafter, appellant filed an Election Petition alleging
that certain irregularities were committed in counting of votes. Respondent
No. 1 filed a counter affidavit contending that the allegations in the Election
Petition were vague and insufficient to set aside the election. However,
Election Tribunal appointed a Commissioner and ordered recounting of votes.
On recounting, appellant secured more number of votes than respondent No.
c
1 and was declared elected. Aggrieved, respondent No. 1 filed a writ petition
before the High Court which was allowed by Single Judge holding that the
Election Tribunal was not justified in ordering recount of votes when no prime
facie case for recounting was made out. Hence the present appeal.
D
On behalf of the appellant it was contended that the High Court was not
justified in holding that the election petition did not contain the necessary
pleading for seeking recount ofvotes; that the powers of the Revisional Court
>'
are not as wide as the powers of the Appellate Court and, therefore, Single
Judge of High Court should not have set aside the order passed by the Election
Tribunal E

On behalf of respondent No. 1 it was contended that Election Tribunal
should not have ordered recount of votes when there was no foundation in the
pleadings raised in the election petition; that in view of the proviso to Rule 63
of the Tamil Nadu Panchayats (Elections) Rules, the Commissioner should
have treated 31 ballot votes cast in favour of respondent No. 1 as valid even
F
though they did not contain distinguishing mark of the polling station; that
the appellant had filed an application for recount before the Returning Officer
after the d~claration of election and failure to file a proper application for
recount before the Returning Officer would disentitle him from making a
similar prayer before the Election Tribunal. G
Dismissing the appeal, the Court

HELD : 1. Re-count ofvotes could be ordered very rarely and on specific
allegation in the pleadings in the election petition that illegality or irregularity
........ was committed while counting. The petitioner who seeks re-count should H
644 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A allege and prove that there was improper acceptance of invalid votes or
improper rejection of valid votes. If only the Court is satisfied about the
truthfulness of the above allegation, it can order re--count of votes. In the instant
case, on perusal of appellant's election petition, it is evident that he has not
set forth material facts or particulars required for re:.couitt of votes, except
B certain general and bald allegations. Thus, High Court was justified in holding
that the Election Tribunal erred in appointing a Commissioner and ordering
the recount of votes. [652-D-E; 653-G; 657-B]

Satyanarain Dudhani v. Uday Kumar Singh and Ors., [1993] Supp. 2
SCC 8; Jitendra Bahadur Singh v. Krishna Behari and Ors., AIR (1970) SC
C 276; D.P. Sharma v. Commissioner and Returning Officer and Others, [1984]
Supp. SCC 157; P.K.K. Shamsudeen v. KA.M Mappillai Mohindeen and Ors.,
(1989) 1 SCC 526; Ram Sewak Yadav v. Hussain Kami/ Kidwai, (1964] 6 SCR
238; S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra and Ors., [1980] Supp.
SCC 53 ; R. Narayanan v. S. Semmalai and Ors., (1980] 2 SCC 537 and MR.
Gopalakrishnan v. Thachady Prabhakaran and Ors., [1995] Supp. 2 SCC 101,
D relied on.

2. Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995
provides that an application to the Returning Officer for recount shall be made
before the declaration of the result of the election, but after ~he completion of
E the counting. However, in the instant case, the appellant-Election Petitioner
has not stated as to when did he file the application for recount He has merely
stated that he had given an application to the Returning Officer for recounting
of votes and the request for recounting was not accepted. On the other hand
respondent No. 1 when examined, deposed that in all probability, the appellant
filed an application for re-count after the result of the election was declared.
F Therefore, it cannot be held that the application for re-count was filed in
accordance with Rule 66 of the Tamil Nadu Panchayats (Elections) Rules,
1995. [654-C-D-F-G]

4. Appellant sought to set aside the election of respondent No. 1 under
G Section 259(2)(d)(iii) and (iv) of the Tamil Nadu Panchayats Act, 1994. But in
the Election Petition, the appellant has not stated that by the alleged improper
acceptance or refusal of any vote or reception of any vote, which is void, or by
the alleged non-~ompliance with the P• • ··isions of the Act or of any rules or
orders made thereunder, the result of the election of respondent No. 1 had
been materially affected. At the time of the evidence also, he had not stated
H that because of the alleged illegality or irregularity, the result of the election
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 645
had been materially affected. Grounds under Section 259(2) could successfully A
be urged only if it is proved that the election of the returned candidate had
been materially affected. (654-H; 655-A-E-F]

5. Rule 63(l)(h) of the Tamil Nadu Panchayats (Elections) Rules, 1995
dealing with rejection of ballot papers provides that a postal ballot paper shall
contain the signature of the Presiding Officer as well as the distinguishing B
mark of the polling station. The procedure for issuance of postal ballot papers
is given under Rule 51 of the Rules, which says that before any ballot paper
is delivered to an elector, the Presiding Officer shall sign his name in full on
the back of each ballot paper and affix the distinguishing mark of the polling.
station. Therefore, a harmonious construction of Rule 51 and Rule 63 would C
show that in order to reject a postal ballot paper, the same should have lacked
both the features, viz. the signatures of the Presiding Officer as well as the
distinguishing mark of the polling station. In the instant case, it is evident
that due to so~e mistake or inadvertence, the Presiding Officer did not sign
the ballot papers. The absence of signatures under the circumstances could
not invalidate the ballot paper, which bore the distinguishing mark of the D
polling station. Therefore, the Commissioner went wrong in declaring these
votes as invalid. [655-H; 656-A-F-G]

6. When there is error of jurisdiction or flagrant violation of the law
laid down by this Court, by exercising the revisional powers, the Court can
set aside the order passed by the Tribunal to do justice between the parties. E
In the instant case, the illegality committed by the Election Tribunal has been
rightly corrected by the Revisional Order. (657-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6543 of 1999.

From the Judgment and Order dated 9.11.98 of the Madras High Court F
in C.R.P. No. 2935 of 1998.

Ms. Indu Malhotra and Ms. Madhu Sweta for the Appellant.

R. Sundaravardan and Hari Shankar K. for the Respondent.

The Judgment of the Court was delivered by G
BALAKRISHNAN, J. The appellant contested the election for the post
of President ofVannavalkudi Village Panchayat, Pudukkottai District in Tamil
Nadu. The respondent nos. I, 2, & 3 were also the candidates for the same
election. The polling took place on 12.10.96 and the votes were counted on
14.10.96. The lst respondent, Sundaram secured 1011 votes and the appellant H
646 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Vadivelu secured 1010 votes and the 1st respondent was declared elected~
The other respondents had secured only lesser number of votes. The appellant
filed an Election Petition under Rule 122 of the Tamil Nadu Panchayats
(Elections) Rules, 1995 before the District Judge, Pudukkottai, challenging the
election of the 1st respondent. In the Election Petition, the appellant contended
B that certain irregularities were committed while the counting of votes was
made. According to the appellant, the names of the dead persons were not
deleted from the electoral roll and the first respondent took advantage of this,
and despite the objection raised by the agents of the appellant, impersonation
had taken place at the time of polling. The appellant also alleged that at the
time of counting, a number of valid votes polled in favour of the appellant
C were treated as invalid by the Returning Officer and though the appellant's
agents raised objection, the Returning Officer did not pay heed to it. The
appellant further alleged that the counting officers had no knowledge as to
which was valid vote and which was invalid one. The counting was done in
a hasty manner and the agents of the appellant were not allowed to closely
peruse the ballot papers. Certain ballot papers contained thumb impression,
D but they were rejected as invalid votes. The appellant filed a petition before
the Returning Officer for recounting votes, but that prayer was not allowed
and. on the above grounds, the appellant filed Election Petition for setting
aside the election of the 1st respondent.

E The 1st respondent filed counter affidavit denying the allegations in the
Election Petition. The 1st respondent contended. that the allegations in the
Election Petition are vague and insufficient to set aside the election. He
contended that no material particulars are furnished in the Election Petition
and only bald allegations have been made and, therefore, the Election Petition
was liable to be dismissed. The 1st respondent also alleged that the appellant
F had not given any particulars regarding inclusion of names of dead persons
in the electoral roll. According to the 1st respondent, there was no irregularity
or illegality in the counting of votes.

Four witnesses were examined on the side of the appellant. On the
G respondent's side, RWI and RW2 were examined. The Election Tribunal held
that no details were available as to how many votes were secured by the
appellant-Election Petitioner and the 1st respondent after the first round of
counting and that the appellant had filed an application for recount before the
Returning Officer. Therefore, the Election Tribunal ordered re-count of votes
and an Advocate-Commissioner was appointed for recounting of votes and
H he submitted a detailed commission report. On re-count made by the
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 647
commissioner, the appellant had secured 1002 votes and the 1st respondent, A
Sundaram, had secured 975 votes. Based on the report of the Commissioner,
the Election Tribunal declared the appellant-Vadivelu as the person elected as
President of District Panchayat and the Election Petition was accordingly
allowed.

Aggrieved by the order of the Election Tribunal, the 1st respondent, B
Sundaram, filed a Revision Petition before the Hon'ble High Court, Madras
under Article 227 of the Constitution oflndia. The learned Single Judge held
that the Election Tribunal was not justified in ordering the recount of votes
as the appellant had not made out a' prima facie ground for recounting. The
learned Single Judge held that the Election Petition is bereft of any material C
facts and only vague allegations have been made and the appointment of the
Commissioner for recounting of votes was illegal and incorrect and, therefore,
without jurisdiction. The Revision was allowed and it was held that the
Election Petition would stand dismissed with costs. Aggrieved by the above
facts, the present appeal is filed.
D
We heard the appellant's Counsel Ms. Indu Malhotra and the Counsel
for the lst respondent, Mr. R. Sundaravardan. The main contention urged by
the appellant's Counsel is that the learned Single Judge seriously flawed in
holding that the Election Petition did not contain the necessary pleadings for
seeking recount of the votes. The appellant's Counsel also contended that E
the 1st Respondent had never raised any objection when the Commissioner
was appointed by the Election Tribunal and the Commissioner had correctly
conducted the recounting of votes and declared the appellant elected. The
Counsel for the I st respondent contended that the Election Tribunal should
not have ordered re-count of votes and there was no foundation in the
pleadings raised in the Election Petition. It was urged by the Counsel for the F
l st respondent that the Election Petition itself was liable to be dismissed for
want of necessary pleadings.

It was also argued by the counsel for the l st respondent that the
Commissioner, who conducted the recounting, wrongly rejected 31 ballot G
votes cast in favour of the 1st respondent and according to the Counsel, in
view of the Proviso to Rule 63 of the Tamil Nadu Panchayat's (Election) Rules
1995, the Commissioner should have treated those votes as valid votes even
though they did not contain the distinguishing mark of the polling station.
Counsel for the lst respondent further argued that the Election Petitioner had
filed the application for recount before the Returning Officer after the declaration H
648 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A of the result of the election and the failure to file a proper application for
recount before the Returning Officer would disentitle the Election Petitioner
from making a similar prayer before the Election Tribunal.

The main arguments of Counsel on either side centered round the
question weather in the instant case the Election Tribunal was justified in
B ordering a recount. The circumstances under which a recount could be ordered
have been considered by this Court in various decisions. A survey of at least
some of the cases would be of much assistance to know how this Court made
pronouncements on this legal question in the settings of various factual
background.
c In Satyanarain Dudhani v. Uday Kumar Singh and Ors., [1993) Supp.
2 SCC 8, it was held that the secrecy of the ballot papers cannot be permitted
to be tinkered lightly and an order of recount cannot be granted as a matter
of course: Only when the High Court is satisfied on the basis of material facts
pleaded in the petition and supported by the contemporaneous evidence, that
D the recount can be ordered. When there was no contemporaneous evidence
to show any irregularity or illegality in the counting, ordinarily, it would not
be proper to order re-count on the basis of bare allegations in the Election
Petition.

In Jitendra Bahadur Singh v. Krishna Behari and Ors., AIR (1970) SC
E 276, the election-petitioner, who claimed to be a counting agent filed Election
Petition alleging that there was irregularity and illegality in the counting of
votes. The learned Single Judge, who was trying the Election Petition permitted
the petitioner to inspect the packets of the ballot papers containing the
accepted as well as the rejected votes of the candidates. This Court, while
F allowing the appeal, held that the basic requirements to be satisfied before
the Election Tribunal can permit the inspection of ballot papers are that ( l)
the petition for setting aside the election must contain an adequate statement
of material facts on which the petitioner relies in support of his case and (2)
the Tribunal/must be prima facie satisfied that in order to decide the dispute
and to do complete justice between the parties, inspection of ballot papers
G is necessary. The material facts required to be stated are those facts, which
can be considered as materials supporting the allegations made. In other
words, they must be such facts as to afford a basis for the allegations made
in the petition.

In D.P. Sharma v. Commissioner and a Returning Officer and Ors.,
H (1984) Supp. SCC 157, allegations were made in the Election Petition that there
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 649
was discrepancy between the total number of ballot papers issued and ballot A
papers taken out and counted from the ballot boxes. This Court held that the
discrepancies alleged in the statements prepared under Rule 45 and 56 of the
Conduct of Election Rules, 1967 do not make out a case for directing a re-
count of votes especially when the discrepancy is marginal and insignificant.
In Para 4 of the said Judgment, it was held that in order to obtain re-count
of votes, a proper foundation is required to be laid by the Election Petitioner B
indicating the precise material on the basis of which it could be urged by him
with some substance that there has been either improper reception of invalid
votes in favour of the elected candidate or improper rejection of valid votes
in favour of the defeated candidate or wrong counting of votes in favour of
the elected candidate, which had in reality been cast in favour of the defeated C
candidate.

P.K.K. Shamsudeen v. K.A.M Mappillai Mohindeen and Ors., [1989] I
sec 526 is a case where the petitioner contested the election for the post of
President of a Panchayat in Tamil Nadu. In the election, the 1st respondent
.. was declared elected and the petitioner challenged the election on the ground D
that while counting, 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 ballot papers at the time of counting. The Tribunal after E
recording the evidence of all candidates and the Assistant Returning Officer
ordered re-count of votes. On recounting of votes, it was found that there
was no difference in the number of votes secured by the petitioner but insofar
as the I st 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 F
re-count, the Election Petitioner was declared duly elected as he had secured
28 votes more than the I st respondent on recount. This order was challenged
by the lst respondent in Civil Revision Petition before the High Court. The
learned Single Judge allowed the Revision Petition and held that the Tribunal
had erred in ordering a recount of the votes when the petitioner had not made G
out a prima facie case for an order of recount of votes cast. This Order was
challenged before this Court. This Court held in para 13 of the said Judgment
as under :

"Thus the settled position of law is that the justification for an,
order for examination of ballot papers and recount of votes is not to H
650 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A be derived from hindsight and by the result of the recount of votes.
On the contrary, the justification for an order of recount of votes
should be provided by the material placed by an Election Petitioner
on the threshold before an order for recount of votes is actually made.
The reason for this salutary rule is that the preservation of the secrecy
of the bal.Iot is a sacrosanct principle which cannot be lightly or
B hastily broken unless there is prima facie genuine need for it. The
right of a defeated candidate to assail .the validity of an election result
and seek recounting of votes has to be subject to the basic principle
that the secrecy of the ballot is sacrosanct in a democracy and hence
unless the affected candidate is able to allege and substantiate in
c acceptable measure by means of evidence that a prima facie case of
a high degree of probability existed for the recount of votes being
ordered by the Election Tribunal in the interests of justice, a Tribunal
or Court should not order the recount of votes."
In Ram Sewak Yadav v. Hussain Kami/ Kidwai, [1964] 6 SCR 238, this
D Court held that an order for inspection of ballot papers can be granted under
the following circumstances :

"An order for inspection may not be granted as a matter of
course: having regard to the insistence upon the secrecy of the: ballot
papers, the Court would be justified in granting an order for inspection
E provided two conditions are fulfilled :

(i) that the petition for setting aside an election contains an
adequate statement of the material facts on which the petitioner relies
in support of his case; and

(ii) The Tribunal is primafacie satisfied that in order to decide the
F
dispute and to do complete justice between the parties inspection of
the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to
support vague pleas made in the petition not supported by material
facts or to fish out evidence to support such pleas. The case of the
G
petitioner must be set out with precision supported by averments of
material facts. To establish a case so pleaded an order for inspection
may undoubtedly, if the interests of justice require, be granted. But
a mere allegation that the petitioner suspects or believes that there
has been an improper reception, refusal or rejection of votes will not
H be sufficient to support an order for inspection."

I
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 651
In S. Raghubir Singh Gill v. S. Gurcharan Singh Tohra & Ors., [1980] A
Supp. SCC 53, in paragraph 31 of the Judgment, it was held as under :

"True, re-count cannot be ordered just for the asking. A petition
for re-count after inspection of the ballot papers must contain an
adequate statement on material facts on which the petitioner relies in
support of his case and secondly the Tribunal must be prima facie B
satisfied that in order to decide the dispute and to do complete justice
between the parties an inspection of the ballot papers is necessary.
The discretion conferred in this behalf should not be exercised in
such a way so as to enable the applicant to indulge in a roving inquiry
with a view to fishing out materials for declaring the election void." C
In R. Narayanan v. S. Semmalai and Others, [1990] 2 SCC 537, the
Election Petitioner challenged the election on the ground that there were a
number of errors in the counting of votes and that the electoral roll itself was
inaccurate. The petitioner sought for recount of votes. The High Court ordered
a re-count holding that although there was no clear evidence of any irregularity D
in counting in the first two rounds, there was a possibility of the counting
staff being completely exhausted in the third round which may have led to
erroneous sorting and counting of votes. In ordering a re-count the High
Court was also influenced by the fact that the margin of the "returned
candidate" was only 19 votes. The Order of the High Court was challenged
before this Court. This Court reversed the order passed by the High Court E
and after referring to various decisions on this point, it was held as under :

"The Court would be justified in ordering re.:count of the ballot papers
only where:

(1) The Election Petition contains an adequate statement of all the F
material facts on which the allegations of 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 G
(3) The Court trying the petition is prima 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."

In MR. Gopalakrishnan v. Thachady Prabhakaran and Ors., [1995] H
652 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A Supp. 2 SCC 1O1, the Election Petitioner alleged that the counting was not
done in a congenial atmosphere. The allegation was that counting was held
in a small hall and there were several tables and chairs and counting agents
of all the candidates along with other officials were present in the hall;
therefore, it became very crowded and sorting out of the bundles of the ballot
B papers was done hastily and, therefore, it was not possible for the agents of
the petitioner to carefully keep track of the process of sorting-out and it was
alleged that the Returning Officer rejected many votes as invalid in spite of
the protest made by the petitioner. On these allegations, the petitioner sought
for re-count of votes. That prayer was rejected by the High Court and the
same was challenged before this Court. After referring to the various decisions,
C it was held that the demand of the defeated candidate for re-count of votes
has to be considered keeping in view that secrecy of the ballot is sacrosanct
in a democracy and, therefore, unless the Election Petitioner is able not only
to plead ·and disclose the material facts but also substantiate the same by
means of evidence of reliable character~~at there existed a prima facie case
D for re-count, no Tribunal or Court would be justified in directing a re-count.

The result of the analysis of the above cases would show that this
Court has consistently taken the view that re-count of votes could be ordered
very rarely and on specific allegation 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
E of invalid votes or improper rejection of valid votes. If only the Court 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 dist11rbed lightly by bare
allegations of illegality or irregularity in counting. But if it is proved that
F 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.

In the instant case, the appellant in his Election Petition alleged in
G paragraphs 5 and 6 of the Election Petition as under :
" ........... The wrong electoral roll was utilized by the Presiding
Officer. The appellant and his agents strongly protested against the
wrong electoral roll. The dead persons names were not deleted from
the electoral roll, and other Panchayat Villagers names were in the
H · electoral roll. The 1st Respondent utilized the same. The appellant and
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 653
his agent strongly objected by the Presiding Officer, has not taken A
any care about the electoral roll and impersonation. The said votes
polled in favour of the I st respondent are void and, therefore, has to
be excluded.
While counting of votes, the appellants and his agents represented
these facts and requested the counting officers and the Returning B
Officers both orally and in writing to reject these votes polled by
these persons. But they refused to consider the said objections. Their
such acts are illegal... ................ The Counting Officers wantonly put
the appellant's valid votes to invalid vote box. The appellant's valid
votes were added in the invalid votes. The appellant and his agents C
strongly objected but the Counting Officers and Returning Officers
did not care about the objections. The Counting Officers counted the
votes in favour of I st Respondent.
.
"Furthermore, the Counting
.
Officers
did not know which is valid vote and which is invalid vote. During
the polling votes, the Booth Officers received the thumb impression
from some voters and gave the ballot papers. The thumb impression D
ink marks available in the ballot papers. The same votes were rejected
and put into the invalid votes. The Counting Officers were newly
appointed. They were not properly counting the votes. The Counting
Officers were counting the votes very fast and they had not shown
the ballots to the agents, even when they raised objection. The
Counting Officers threatened the Appellant's agent and told him that E
they are supreme authority for counting votes ................ Finally, the
Returning Officer announced that the 1st Respondent had secured
I 011 votes. Appellant secured IO IO votes. The difference is only one
vote. More than I 00 votes were added in the invalid votes by the
Counting Officers. Some invalid votes were included to the 1st F
Respondent which were void and which ought to have been rejected.
The Counting Officers and the Returning Officers had not seen the
intention of the voters in the ballot."
From the above pleadings, it is evident that the appellant has not set
forth material facts or particulars required for re-count of votes. To justify his G
contention that there was irregularity or illegality in the counting, except
making some general and bald allegations, no other details are given. Though
an allegation is made that electoral roll contained the names of dead persons,
that the l st respondent took advantage of the same, and that some persons
had impersonated and cast votes in his favour, no details are given as to who
committed such irregularity. The appellant has also not mentioned as to how H
654 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A fuany such votes had been cast in favour of the 1st respondent. So also, the
appellant has not alleged the nature of the illegality or irregularity said to have
been com.mitted by the counting officers. How and in what manner there was
improper acceptance of invalid votes and impfoper rejection of valid votes
-
also is not explained by the appellant. In short, the Election Petition is bereft
B of all details and the appellant, while examined as PWl, could not supplement
anything by way of evidence.

The appellant has contended that an application for re-count was made
by him before the Returning Officer. Rule 66 of the Tamil Nadu Panchayats
(Elections) Rules, 1995 states that after the completion of counting and
recording in Form 22 the total number of votes polled by each candidate
C under sub-rule (2) of rule 64, the Returning Officer shall announce the same.
After such announcement, and before the declaration of the result of the
election, a contesting candidate or in his absence, his election agent may
apply in writing to the Returning Officer for a recount of all or any of the
votes already counted stating the grounds on which he demands such recount.
D Sub-rule (2) of Rule 66 further says that on such application being made, the
Returning Officer shall decide the matter and may allow the application in
whole or in part, or may reject it in toto if it appears to him. to be frivolous

-
or unreasonable. Therefore, an application for recount shall be made before
the declaration of the result of the election, but after the completion of the
counting, when such result is entered in part II of Form 20. This form is to
E be signed by the Counting Supervisor and the Returning Officer.

The appellant-Election Petitioner in this case has not stated as to when
did he file the application for re-count. He has stated that he had given an
application to the Returning Officer for recounting of votes and the request
for recounting was not accepted. At the time of !he evidence also, the
F appellant has not stated as to when did he file the application. In cross-
examination, he stated that at about 10.00 p.m. on 14.10.1996, it was announced
through loud speaker that the l st respondent was elected and he denied the
allegation that the application for re-count was made at 11.45 p.m. The 1st
respondent was examined as RWl. He deposed that the result of the election
G was declared at l 0.30 p.m. and in all probability, the appellant filed an application
for re-count after the result of the election was declared. Therefore, the
application for re-count was not filed in accordance with Rule 66 of the Tamil
Nadu Panchayats (Elections) Rules, 1995.

It is all the more important to note that the appellant sought to set aside
H the election of the I st respondent and in the Election Petition urged the
VADIVELU v. SUNDARAM [BALAKRISHNAN, J.) 655
grounds under Section 259 (2)(d)(iii) & (iv) of the Tamil Nadu Panchayats Act, A
1994 and the relevant provision is to the following effect :

"259. Grounds for declaring elections to be void.-(1) Subject to the
provisions of sub-section (2), if the District Judge is of the opinion-

(a) xxx xxx xxx B
(b) xxx xxx xxx

(c) xxx xxx xxx

(d) that the result of the election in so far as it concerns a returned
~

candidate has been materially affected- c
(i)-(ii) xxx xxx xxx

(iii) by the improper acceptance or refusal of any vote or reception
of any vote which is void; or
D
(iv) by the non-compliance with the provisions of this Act or of any
rules or orders made thereunder.

the Court shall declare the election of the returned candidate to be
void."
But in the Election Petition, the appellant has not stated that by the E
alleged improper acceptance or refusal of any vote or reception of any vote,
which is void, or by the alleged non-compliance with the provisions of the
Act or of any rules or orders made thereunder, the result of the election of
the 1st respondent had been materially affected. The appellant was examined
as PWl. At the time of the evidence also, he had not stated that because of F
the alleged illegality or irregularity, the result of the election had been materially
affected. Grounds under Section 259(2) could successfully be urged only if
it is proved that the election of the returned candidate had been materially
affected.

The Counsel for the I st respondent contended that the Commissioner G
while counting postal ballot papers illegally rejected 31 votes cast in favour
of the I st respondent on the ground that these ballot papers did not contain
the signature of the Presiding Officer. Three votes cast in favour of the
appellant also were rejected by the Commissioner on the same ground. The
Commissioner held the view that Rule 63(1)(h) of the Tamil Nadu Panchayat
(Election) Rules, 1995 requires that the postal ballot paper shall contain the H
656 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A signature of the Presiding Officer as well as the distinguishing mark of the
polling station. The procedure for issuance of postal ballot papers is given
under Rule 51, which says that before any ballot paper is delivered to an
elector, the Presiding Officer shall sign his name in full on the back of each
ballot paper and affix the distinguishing mark of the polling station.

B The relevant portion of Rule 63 of Tamil Nadu Panchayat (Election)
Rules, 1995 reads as follows:-

"63. Rejection of ballot papers.-(1) A ballot paper shall be rejected.-

(a)-(g) XXXX
c
(h) if it does not bear both the distinguishing mark and/or the signature
of the Presiding Officer which it should have borne under the provisions
of sub-rule (I) of rule 51 or the words "elector on election duty" under
sub-rule (I) of rule 52, or

D (i) xxxx
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, the ballot
paper shall not be rejected merely on the ground of such defect.
E
XXXXX"

The rejected ballot paper did not contain the signature of the Presiding
Officer, though it contained the distinguishing mark of the polling station.
Rule 63(1)(h) dealing with rejection of ballot papers provides that in order to
F reject ballot papers it should be one not bearing "both the distinguishing
mark and/or the signature of the Presiding Officer". Therefore, a harmonious
construction of Rules, 51 and 63 would show that in order to reject a postal
ballot paper, the same should have lacked both the features, viz; the signature
of the Presiding Officer as well as the distinguishing mark of the polling
G station. In the instant case, it is evident that due to some mistake or
inadvertence, the Presiding Officer did not sign these ballot papers. The
absence of signatures under the circumstances could not invalidate the ballot
paper, which bore the distinguishing mark of the polling station. Therefore,
the Commissioner went wrong in declaring these votes as invalid. That apart,
it may be noted that had these votes been treated as valid by the Commissioner,
H even on re-count, the I st respondent would have secured the highest number
V ADIVELU v. SUNDARAM [BALAKRISHNAN, J.] 657
of votes. A
The appellant-Election Petitioner could not make out a case for re-count
of votes. He filed the application for re-count before the Returning Officer
only after the declaration of result and that was rightly rejected by the1

Returning Officer. The appellant had no case that the illegality or irregularity,
if any, committed had materially affected the result of the election. Taking all B
the aspects into consideration, we are of the view that the learned Single
Judge was perfectly justified in holding that the Election Tribunal erred in
appointing a Commissioner and ordering the re-count of votes. The Counsel
for the appellant contended that the powers of the Revisional Court are not
as wide as the powers of the Appellant Court and, therefore, the learned C
Single Judge should' not have set aside the order passed by the Election
Tribunal. We do not find any force in this contention. When there is error
of jurisdiction or flagrant violation of the law laid down by this Court, by
exercising the revisional powers, the Court can set aside the order passed by
the Tribunal to do justice between the parties. The illegality committed by the
Election Tribunal has been corrected by the Revisional Order. We find no D
merit in the present appeal and the same is dismissed.

- Having regard to the facts and circumstances, there will be no order as
to costs.

S.V.K.I. Appeal dismissed. E