R.C.LAHOTI - (1.) THE general election to the Legislative Assembly of the State of Kerala was held on 27/04/1996. THE appellant, the respondent No. 1 and the respondent No. 2, contested election from No. 99 Mararikulam Legislative Assembly Constituency (Alappuzha District). Counting took place on 8-5-1996 and continued up to the wee hours of 9-5-1996. THE respondent No. 1 was declared elected defeating his nearest rival candidate, the petitioner, by a margin of 1965 votes. THE distribution of votes was as under :- JUDGEMENT_337_JT2_2001Html1.htm
(2.) ON 22-6-1996 the appellant filed an election petition before the High Court of Kerala putting in issue the election of the respondent No. 1 mainly on three grounds, namely, (i) corrupt practice committed in the interest of returned candidate by his agents, election agents or the returned candidate himself; (ii) the improper reception of votes which were void, and (iii) non-compliance with the provisions of the Constitution and the provisions of the Representation of the People Act 1951. It was also alleged that the result of the election, in so far as it concerns the returned candidate, was materially affected on account of the grounds alleged in the petition, as abovesaid. The reliefs sought for were - declaring the election of respondent No. 1 as void and declaring the appellant as elected. All the material averments made in the petition were denied in the written statement filed by respondent No. 1 wherein preliminary objections to the maintainability of the petition were also raised. The learned designated election Judge heard the parties on the preliminary objections. Vide order dated 8-1-1997, the High Court directed the election petition to be dismissed on the ground that the allegations in the petition did not disclose a cause of action warranting trial of the election petition and also that the averments made in the petition were not sufficient to grant the relief of recount of ballots. This order was put in issue by the appellant in Civil Appeal No. 1808 of 1997 filed before this Court which was allowed on 22/03/1999. The order of the High Court dated 8-1-1997 was set aside and the case was remitted back to the High Court for trial of the same on merits and affording the parties an opportunity of leading evidence. In its order, reported as V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737 : (1999 AIR SCW 1760 : AIR 1999 SC 2044), this Court held that the election petition was not liable to be rejected under Section 83 of the Representation of the People Act, 1951 read with Order 7, Rule 11(a) of the Code of Civil Procedure. This Court further held (paras 17 and 18 of AIR) :- "Similarly, the learned trial Judge was not justified in rejecting the election petition without affording the appellant opportunity to place on record the circumstances justifying the re-count as prayed for by him. It is true that on vague and ambiguous evidence no court can direct re-count. But it is equally true that the doors of justice cannot be shut for a person seeking re-count without affording him an opportunity of proving the circumstances justifying a re-court. In his petitioin the appellant had given details of the alleged illegalities and irregularities committed by respondent 1 which according to him justified the holding of a re-count. The learned trial Judge relied upon some judgments where re-count was not allowed after trial and wrongly dismssed the election petition filed by the appellant without affording him the opportunity to substantiate the allegations made in the petition or to bring on record the evidence justifying a re-count. It is a settled position of law that the Court trying an election petition can direct inspection and re-count of votes if the material facts and particulars are pleaded and proved for directing such re-count in the interest of justice. In doing so, the provisions of Section 94 of the Act have to be kept in mind and given due weight before directing inspection and re-count. xxxxxxxxxxxx xxxxxxxxxxxx Without commenting upon the merits of the case, lest it may prejudice the rights of the parties, we feel that the trial Judge was not justified in rejecting the election petition at the initial stage without affording the appellant an opportunity to prove the existence of circumstances prima facie justifying the existence of grounds requiring recount." (Underlining by us) On remand, the issues framed by the learned designated election Judge were put up for trial. The petitioner examined 13 witnesses including himself and exhibited 35 documents. The respondent No. 1 examined 2 witnesses including himself and exhibited 6 documents. After hearing the learned counsel for the parties once again the learned designated election Judge has directed the election petition to be dismissed forming an opinion that no case of re-count of the ballot papers was made out. The aggrieved petitioner has filed this appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter RPA, for short).
(3.) AT the hearing, Dr. A. M. Singhvi, the learned senior counsel for the appellant submitted, while attacking the judgment of the High Court, that in order to make out a case for re-count a 'prima facie case' was required to be shown leaving the issue as to material affect on the result of the election to be determined when the result of the re-count was available but the High Court has committed a grave error of law in insisting on the election petitioner making out a 'good case' for re-count. In other words, the High Court has insisted on demanding a higher degree of proof for claiming a re-count, which error has resulted in vitiating the judgment of the High Court. In the submission of the learned senior counsel for the appellant the following three circumstances were shown to exist prima facie by the election petitioner on the evidence adduced by him :- (i) that 2100 excess ballot papers were got printed and retained by Shri Ayyappan Pillai, the Taluk Tehsildar, who was also the Election Registration Officer and was shown to have an affiliation or intimacy with the political party to which the respondent No. 1 belongs, raising a high degree of probability of such excess ballot papers having been misutilised to the advantage of the respondent No. 1; (ii) that on opening the ballot boxes it was found that the number of ballots polled were in excess of the ballot papers issued to different polling stations - a strong pointer to that fact of gross irregularity having been committed at the polling; and (iii) that a number of ballot papers issued and used for election of parliamentary candidates were found to have been mixed up with legislative assembly ballot papers. In the submission of the learned senior counsel for the election petitioner/appellant, the abovesaid facts made out a sufficient ground for directing a recount of ballot papers and if only re-count would have been directed the election petitioner/appellant would have been found to have secured the highest number of votes and should have been declared elected. The learned counsel for the respondent No. 1 has disputed the correctness of the submissions so made and submitted, supporting the judgment under appeal, that the appellant was not entitled to any relief and the appeal was liable to be dismssed. We will examine the worth of the contention so advanced by testing if any of three circumstances have been shown to the satisfaction of court to so exist as to enable a finding of prima facie case for ordering re-count being recorded. Circumstances (i) :- It is not disputed that the total number of voters in the constituency was 1,68,873. There were in all 194 polling stations. The actual number of ballot papers distributed was 1,69,900, though the total number of ballot papers got printed was 1,73,000. It was also not disputed before this Court that on the evidence adduced by the parties it was proved that the ballot papers were got printed under the instructions of the Chief Electoral Officer who was the District Collector and Shri Ayyappan Pillai, P.W. 11 had no role to play either in the printing of the ballot papers or in appointing the total number of ballot papers to be printed. Any rules or instructions relevant to fixing the number of ballot papers to be printed for any constituency were neither brought to the notice of the learned designated election Judge nor placed before this Court. We have, therefore, no reason to disbelieve the statement of Ayyappan Pillai, P.W. 11, as has been done by the learned designated election Judge that some number of excess ballot papers are required to be printed as some ballot papers may be defective and may have to be rejected and provision has to be made for unforeseen myriad contigencies by keeping a few ballot papers in reserve. In fact, the learned senior counsel for the appellant did not raise any serious grievance about printing of marginally excessive ballot papers than required. The evidence adduced by the parties goes to show that 2100 excess ballot papers were kept in the custody of the Taluk Tehsildar. 1,69,900 ballot papers were issued to different polling station officers by rounding up the odd number of exact requirement of any polling station to the next higher ten. 1000 ballot papers issued earlier to P.W. 2 Mini Antony, who was Deputy Collector (Revenue Recovery), Alappuzha and Returning Officer for Mararikulam Legislative Assembly Election Constituency for being used as postal ballots, were found to be deficient and therefore another 200 ballot papers were issued to her. Ayyappan Pillai, P.W. 11 was transferred after the elections were over and subsequently he has retired also. At the time of transfer he handed over the envelope containing 1900 unused ballot papers to his successor R. D. Subrahmanyam, R.W. 1, while handing over charge of Tehsil. The envelope then remained in his custody and he produced the same in the High Court. He deposed that the envelope which was being produced by him before the High Court was sealed and was in the same position as it was when he had received the envelope in his charge. The envelope bore a superscription certifying the contents of the envelope to be ballot papers 2100 in number bearing serial numbers 169901 to 172000. Just below, it was noted that ballot papers serial numbers 171801 to 172000 were issued to the Returning Officer, Mararikulam and the balance in the envelope was 1900.;