TMI Blog2003 (11) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant herein who is the returned candidate having the election symbol of 'two leaves' secured 334407 votes whereas Respondent No. 1 herein (the election petitioner) who contested the said election on the election symbol of 'rising sun' secured 331560 votes. The margin of votes between the returned candidate and the election petitioner was, thus, 2847. 3. It is also not in dispute that 16906 votes were rejected. The chief election agent of the election petitioner on or about 06.10.1999 lodged a complaint alleging irregularities in counting of votes. The said counting of votes took place on 6.10.1999 and the result thereof was declared at 5.10 A.M. on 7.10.1999. 4. The relevant portion of the said complaint reads thus : Today (6.10.1999) during counting of the votes in all the Six Segments of Karur parliamentary constituency about 15,000 votes polled in Rising Sun Symbol of the Candidate K.C. Palanisamy has been rejected in violation of the Act and Rules without reason by the Assistant Returning Officers. The oral and written objections raised by the Agents were not accepted. So our candidate winning prospect was prevented. In Election each and every v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in counting of votes, which were divided in five different heads, namely : Category 1 : Rejection of valid votes cast in favour of the petitioner by considering inadvertent thumb impression. Category 2 : Rejection of valid votes on the basis of Polling Officer's rubber stamp impression found on ballot paper apart from voter's instrument mark. Category 3 : Rejection of valid votes cast on border. Category 4 : Rejection of valid votes on ground that wrong instrument used by voter Category 5 : Rejection of postal votes cast in favour of the petitioner. 7. Evidences were led to the effect that the number of votes which are alleged to have been illegally rejected in Category-1 : 750 votes; in Category-2 : 250 votes; in Category-3 : 1500 votes; in Category-4 : 5000 votes and in Category-5 : 300 votes. 8. The allegations made in the election petition were denied and disputed by the elected candidate. He further raised a plea that the allegations made in the said election petition as regard illegal rejection of votes suffered from vagueness. It was pointed out that no particulars had been disclosed in the election petition as to at which center and at what time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Returning Officer had failed to carry out the mandatory requirements provided under the Guidelines issued by the Election Commission. The objections given under Ex.P.9 have not been properly considered and the alteration made in the date in Ex.P.10 coupled with the evidence of P.W. 1 and also the delay in declaring the result of about 7 hours, would only lead to the irresistible conclusion that recount of the entire votes is a must to decide the intention of the electoral. Simply because under Ex.p/9 only a request was made for recount of the rejected votes, it cannot be made use of presently and prevent the recount of entire voters. In the case cited above, it is made clear that it is not necessary that there should be a request for recount and if the Returning Officer comes to know about the irregularities, it is his duty to order recount of the votes. Moreover, neither P.W.1 nor his Chief Election Agent is qualified in law to expect that they would be able to give a petition for recount in accordance with law pointing out all irregularities one by one. When there is substantial compliance in the request under Ex. P/9 coupled with the irregularities highlighted and establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, on the other hand, would submit that in an election petition, it is not necessary to disclose the particulars of material facts in terms of Sub-section (1) of Section 83 of the Act. The learned counsel would contend that what is necessary to be stated is the material fact in a concise form as is required in terms of Clause (a) of Sub-section (1) of Section 83 of the Act and no particulars of such material facts are required to be pleaded as in the case of corrupt practice. According to the learned counsel, the chief election agent of the election petitioner having made, serious allegations as regard irregularities in counting of votes in relation to all the six segments of the Parliamentary Constituency, the rule of pleadings would not require disclosure or the detailed particulars. The learned counsel, would submit that as the High Court has passed the impugned judgment upon consideration of the evidences adduced by the parties, the same does not warrant any interference by this Court. STATUTORY PROVISIONS : 14. Chapter II of Part VI of the said Act provides for the presentation of election petitions to the Election Tribunal. Section 80 provides that no election shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court must proceed cautiously and with circumspection having regard to the requirement of maintaining secrecy of ballot papers. It is not disputed that the counting was done at four centers. It is further not disputed that the material facts, as regard as to which category of irregularities as enumerated in the election petition occurred, at which center and at what time, had not been pleaded. It has further not been disclosed the details as regards tables at which such objections were raised, nor the names of the counting agents had been disclosed. The very basis of the election petition centers round the objections of the Chief Election Agent of the election petitioner dated 6.10.1999 (Ex.P/9). We have set out the said objections in extenso hereinbefore. A bare perusal thereof would clearly show that the allegations contained therein are absolutely vague and lack material particulars. Details as regard commission of alleged irregularities police stationwise, assembly segmentwise, polling counter wise or table wise had not been disclosed. The same by itself goes to show that the Chief Election Agents of the election petitioner did not raise any objection before the returning offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulars in the election petition and the names of counting agents had not even been mentioned in the pleadings. 25. The High Court furthermore applied a wrong legal test in passing the impugned judgment insofar as it proceeded to hold that the first respondent would not be prejudiced, if a recounting is ordered. The test required to be applied for directing a recounting being well-settled, the High Court must be held to have misdirected itself in law. The question of prejudice of the election petitioner would not be a relevant factor keeping in view the constitutional and statutory scheme involving holding of an election and the consequences emanating from the direction of recounting which may lead to identification of voters as the same is not at all desirable. 26. In the instant case, it was all the mere necessary for the election petitioner to plead the material facts with certain precisions having regard to Ex.P/9 in terms whereof the recounting was prayed having regard to alleged rejection of 15000 votes. Furthermore although a distinction exists in terras of Clauses (a) and (b) of Section 83(1) of the Act, but it should be borne in mind that pleading of material fact woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the Returning Officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with manner in which the ballot boxes were scrutinised and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts or, which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered. 30. In Dr. Jagjit Singh v. Giani Kartar Singh and Ors. AIR1966SC773 , before a 3--Judge Bench of this Court, a contention was raised to the effect that when a Tribunal considering the evidence in the light of the allegations made by the election petitioner was satisfied that inspection should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvalid. Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot-papers which answer the error and then take into consideration only those ballot-papers and not others. This is not the area of enquiry in a petition for relief of re-count on the ground of miscount. True it is that 'a re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of Returning Officer' (See Halsbury's laws of England, 4th Edn., Vol. 15, para 940). This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected; then re-count is directed. 32. In D.P. Sharma v. Commissioner and Returning Officer and Ors.,: AIR1984SC654 , this Court laid down the law in the following terms : ...It is well established that in order to obtain re-count of votes a proper foundation is required to be laid by the election petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 6 of the petition is in the following terms :- Round No. 6, serial No. 79/9 i.e. table No. 9, there is a cutting on the votes secured by the petitioner as 462. None of these cuttings, alterations has been authenticated by the Returning Officer or any other officer concerned at any stage. We have seen the original Form 20 and we do not find any corrections made therein. It is only in the copies, that were typed thereafter, that discrepancies have crept in, which have been sought to be corrected and copies thereof are furnished to the appellant. On the basis of such copies no case could have been made out by the appellant. Thus there is no plea at all so far as round 6 is concerned pointing out any discrepancy or irregularity in the matter of counting. Hence we find no case is mace out by the appellant in the course of the petition. In the absence of any pleading thereof, we find it difficult to accept the case put forth by the appellant that there was any irregularity in the 6th round of counting. 36. In P.H. Pujar v. Kanthi Rajashekhar Kidiyappa and Ors. [2002]2SCR205 , it was laid down as under : ...The petitioner seeking re-count should allege and prove that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidentally to reduce costs. This function has been variously stated , namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. (See: Pleadings Vol. 36, para 38) 15. In Bullen and Leake and Jacob's Precedents of Pleadings 1975 Edn. at p. 112 it is stated: The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to save costs. The object of particulars is to 'open up' the case of the opposite party and to compel him to reveal as much as possible what is going to be proved at the trial, whereas, as Cotton L.J. has said, 'the old system of pleading at common law was to conceal as much as possible what was going to be proved at the trial', 16. The distinction between 'material facts' and 'particulars' which together constitute the facts to be proved -- or the facta probanda -- on the one hand and the evidence by which those facts are to be proved --facta probation - on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated 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 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. 40. Natarajan, J. having regard to the averments made in the election petition observed that neither the averments in the pleadings nor the evidence adduced were of such compulsive nature as could have made the Tribunal reach a (sic) prima facie satisfaction that there was adequate justification for the secrecy of ballot papers. The said decision, therefore, runs counter to the submissions of the learned counsel. 41. In Jibontara Ghatowar v. Sarbananda Sonowal and Ors. (2003)6SCC452 , wherein a case was made out that 824 ballot papers were rejected contrary to the provisions contained in Rule 63 of the Conduct of Elections Rules and in violation of the law la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration. It is now well-settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The court at a later stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence where for there does not exist any pleading. 43. Furthermore, the High Court has not arrived at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting. It is well-settled that prima facie case must be made cut for scrutiny and recounting of ballot papers where it is of the opinion that the errors are of such magnitude as to materially affect the election. [See M.P. Gopalakrishan v. Thachady Prabhakaran - 1994(5)SCALE192 ]. EXTENT OF PROOF : 44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See Mahender Pratap v. Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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