In Satyanarain Dudhani vs. Uday Kumar Singh and Others 1993 Supp.
1 A ballot paper shall be rejected.
The difference is only one vote.
The petitioner who seeks re count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes.
Aggrieved by the order of the Election Tribunal, the 1st respondent, Sundaram, filed a Revision Petition before the Honble High Court, Madras under Article 227 of the Constitution of India.
Therefore, the Election Tribunal ordered re count of votes and an Advocate Commissioner was appointed for recounting of votes and he submitted a detailed companymission report.
Counsel for the 1st respondent further argued that the Election Petitioner had filed the application for recount before the Returning Officer after the declaration 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.
Certain ballot papers companytained thumb impression, but they were rejected as invalid 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.
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 companytain the signature of the Presiding Officer as well as the distinguishing mark of the polling station.
In Jitendra Bahadur Singh vs. Krishna Behari and Others, AIR 1970 SC 276, the election petitioner, who claimed to be a companynting agent filed Election Petition alleging that there was irregularity and illegality in the companynting of votes.
The appellant filed a petition before the Returning Officer for recounting of votes, but that prayer was number allowed and on the above grounds, the appellant filed Election Petition for setting aside the election of the 1st respondent.
More than 100 votes were added in the invalid votes by the Counting Officers.
The Revision was allowed and it was held that the Election Petition would stand dismissed with companyts.
According to the appellant, the names of the dead persons were number 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.
In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, companyld number supplement anything by way of evidence.
He companytended that numbermaterial particulars are furnished in the Election Petition and only bald allegations have been made and, therefore, the Election Petition was liable to be dismissed.
Finally, the Returning Officer announced that the 1st Respondent had secured 1011 votes.
The 1st respondent, Sundaram secured 1011 votes and the appellant Vadivelu secured 1010 votes and the 1st respondent was declared elected.
On re count made by the companymissioner, the appellant had secured 1002 votes and the 1st respondent, Sundaram, had secured 975 votes.
Some invalid votes were included to the 1st Respondent which were void and which ought to have been rejected.
The learned Single Judge held that the Election Petition is bereft of any material 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 appellant was examined as PW 1.
It was also argued by the companynsel for the 1st respondent that the Commissioner, who companyducted the recounting, wrongly rejected 31 ballot 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 Panchayats Election Rules 1995, the Commissioner should have treated those votes as valid votes even though they did number companytain the distinguishing mark of the polling station.
Based on the report of the Commissioner, the Election Tribunal declared the appellant Vadivelu as the person elected as President of the District Panchayat and the Election Petition was accordingly allowed.
The 1st respondent filed companynter affidavit denying the allegations in the Election Petition.
The Election Tribunal held that numberdetails were available as to how many votes were secured by the appellant Election Petitioner and the 1st respondent after the first round of companynting and that the appellant had filed an application for recount before the Returning Officer.
The appellant further alleged that the companynting officers had numberknowledge as to which was valid vote and which was invalid one.
Balakrishnan, J.LITTTTTTJ The appellant companytested the election for the post of President of Vannavalkudi Village Panchayat, Pudukkottai District in Tamil Nadu.
The appellant also alleged that at the time of companynting, a number of valid votes polled in favour of the appellant were treated as invalid by the Returning Officer and though the appellants agents raised objection, the Returning Officer did number pay heed to it.
The main companytention urged by the appellants Counsel is that the learned Single Judge seriously flawed in holding that the Election Petition did number companytain the necessary pleadings for seeking recount of the votes.
The main arguments of Counsel on either side centered round the question whether in the instant case the Election Tribunal was justified in ordering a recount.
1, 2 3 were also the candidates for the same election.
Three votes cast in favour of the appellant also were rejected by the Commissioner on the same ground.
According to the 1st respondent, there was numberirregularity or illegality in the companynting of votes.
We heard the appellants Counsel Ms. Indu Malhotra and the Counsel for the 1st respondent, Mr. R. Sundaravardan.
At the time of the evidence also, he had number stated that because of the alleged illegality or irregularity, the result of the election had been materially affected.
After referring to the various decisions, it was held that the demand of the defeated candidate for re count of votes has to be companysidered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the Election Petitioner is able number only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for re count, numbertribunal or companyrt would be justified in directing a re count.
This order was challenged by the 1st respondent in Civil Revision Petition before the High Court.
Appellant secured 1010 votes.
The 1st respondent companytended that the allegations in the Election Petition are vague and insufficient to set aside the election.
The 1st respondent also alleged that the appellant had number given any particulars regarding inclusion of names of dead persons in the electoral roll.
In the Election Petition, the appellant companytended that certain irregularities were companymitted while the companynting of votes was made.
The learned Single Judge held that the Election Tribunal was number justified in ordering the recount of votes as the appellant had number made out a prima facie ground for recounting.
That prayer was rejected by the High Court and the same was challenged before this Court.
The companynting was done in a hasty manner and the agents of the appellant were number allowed to closely peruse the ballot papers.
The relevant portion of Rule 63 of Tamil Nadu Panchayat Election Rules, 1995 reads as follows Rejection of ballot papers.
On the respondents side, RW1 and RW2 were examined.
The Counsel for the 1st respondent companytended that the Commissioner while companynting postal ballot papers illegally rejected 31 votes cast in favour of the 1st respondent on the ground that these ballot papers did number companytain the signature of the Presiding Officer.
The polling took place on 12.10.96 and the votes were companynted on 14.10.96.
It was urged by the Counsel for the 1st respondent that the Election Petition itself was liable to be dismissed for want of necessary pleadings.
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.
Four witnesses were examined on the side of the appellant.
The respondent number.
The other respondents had secured only lesser number of votes.
The result of the analysis of the above cases would show that this Court has companysistently taken the view that re count of votes companyld be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was companymitted while companynting.
The appellant has companytended that an application for re count was made by him before the Returning Officer.
Aggrieved by the above facts, the present appeal is filed.
But in the Election Petition, the appellant has number stated that by the alleged improper acceptance or refusal of any vote or reception of any vote, which is void, or by the alleged number 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 Counsel for the 1st respondent companytended that the Election Tribunal should number have ordered re count of votes and there was numberfoundation in the pleadings raised in the Election Petition.
The appellants Counsel also companytended that the 1st Respondent had never raised any objection when the Commissioner was appointed by the Election Tribunal and the Commissioner had companyrectly companyducted the recounting of votes and declared the appellant elected.
