Case Note & Summary
In an election for the 168-Katoria Bihar Legislative Assembly constituency, respondent No.1 was declared elected with 16,649 votes against the appellant's 16,074; 1,219 votes were rejected as invalid. The appellant, a nominee of Indian National Congress (R), filed an election petition under the Representation of the People Act, 1951 challenging the counting. The Patna High Court framed issues, recorded evidence, and dismissed the petition on 25 September 1973, declining recount. On appeal, the Supreme Court examined the principles for ordering recount and the specific allegations. The appellant contended four irregularities: four unauthorised persons acted as Counting Supervisors at tables 4, 5, 7 and 9; the Assistant Returning Officer violated Rule 93(1) by opening and inspecting a packet of unused ballot papers after 50 unsigned ballot papers were found in excess at table 4; the tablewise detailed result sheet was deliberately suppressed; and 600-700 uncounted ballot papers were kept below the Assistant Returning Officer's table, with 600 votes counted twice in favour of respondent No.1, causing appellant to lose despite leading by 2205 votes at end of third round. The respondent denied the allegations and argued that the petition lacked material facts and evidence. The Court reiterated that a recount cannot be ordered as a matter of course due to ballot secrecy and statutory safeguards. It laid down three cumulative conditions: adequate pleading, prima facie proof of mistake, and imperative necessity for complete justice. On the first contention, the Court noted the election petition contained no hint of unauthorised supervisors; the plea was raised late, and the four persons were government officials. Absence from list Ex.6 did not rule out separate appointment orders, and waiting list evidence supported their appointment; the maxim omnia praesumuntur rite esse acta applied. On the second, the Court held that Rule 93 custody is post-election, and opening the packet to inspect unused ballot papers upon objection under Rule 38(1) was necessary, not illegal. On the third, the absence of detailed result sheet did not impede verification because Check Memos contained tablewise figures. On the fourth, the original recount application only alleged 600 votes recounted again, not uncounted bundles; the grand total was correct, and the later allegation was an afterthought. Accordingly, the Supreme Court dismissed the appeal, affirmed the High Court's refusal to order recount, and upheld the election of respondent No.1.
Headnote
A) Election Law - Recount of Ballot Papers - Court's Power to Order Recount - Representation of the People Act, 1951 and Conduct of Election Rules, 1961 - The court would be justified in ordering a recount of ballot papers only where: (1) the election petition contains adequate statements of all material facts on which 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 (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 this case, because the allegations were not adequately pleaded or proved and statutory safeguards existed, the High Court's refusal to order recount was upheld. Held that recount cannot be ordered as a matter of course and must meet the three cumulative conditions (Paras 23-24). B) Election Law - Counting Supervisors - Appointment of Unauthorised Persons - Conduct of Election Rules, 1961, Rule 53 - Allegation that four unauthorised persons worked as Counting Supervisors at tables 4, 5, 7 and 9 was not pleaded in the election petition and was raised belatedly only at final arguments after evidence closed. Evidence showed the four persons were government officials, and absence from list Ex.6 did not exclude the possibility of their being appointed and kept in reserve by a separate order; waiting list evidence supported their appointment. Held that no violation of Rule 53 or any other statutory provision was established, and the maxim omnia praesumuntur rite esse acta applied (Paras 24-25). C) Election Law - Custody and Inspection of Unused Ballot Papers - Rule 93(1) and Rule 38(1) Conduct of Election Rules, 1961 - The Returning Officer opened a packet of unused ballot papers and inspected/counted them after an objection was raised that fifty unsigned ballot papers in the packet did not bear the mark or signature required by Rule 38(1). The language of Rule 93 indicated that custody of the District Election Officer or Returning Officer is post-election custody, and such opening and inspection were necessary for due performance of duty. Held that the act of opening the packet and counting unused ballot papers was not illegal and the Returning Officer was fully competent to do so (Para 28). D) Election Law - Suppression of Detailed Result Sheet - Verification of Counting Figures - Conduct of Election Rules, 1961, Form 20 and Check Memos - Appellant alleged deliberate suppression of the tablewise detailed result sheet prepared as per Election Commission instructions. The court found that absence of such detailed result sheet does not make verification of figures in final result sheet Form 20 impossible or difficult because figures can be checked with the aid of Check Memos which contain tablewise figures of each round. Held that no adverse inference could be drawn on this ground (Para 29). E) Election Law - Double Counting of Votes - Pleading and Proof of 600 Uncounted Votes - Representation of the People Act, 1951 - Appellant alleged that 600-700 uncounted ballot papers were kept below the Assistant Returning Officer's table and 600 votes were counted twice in favour of respondent No.1. The application for recount to the Returning Officer only alleged that 600 votes were recounted again, not that 600 uncounted bundles were found; grand total was correct and result sheet falsified the subsequent contention. Held that the allegation of double counting was an afterthought and not substantiated (Para 30).
Issue of Consideration
Whether the High Court was justified in declining to order inspection and recount of ballot papers; whether the alleged irregularities in counting (unauthorised counting supervisors, opening of unused ballot paper packets, suppression of detailed result sheet, and double counting of 600 votes) were established; and what are the legal principles governing recount of ballot papers in election petitions.
Final Decision
The Supreme Court dismissed Civil Appeal No. 208 of 1973, affirmed the Patna High Court's judgment dated 25 September 1973 in Election Petition No. 4 of 1972, declined to order inspection and recount of ballot papers, and upheld the election of respondent No.1.
Law Points
- Recount of ballot papers cannot be ordered as a matter of course
- three cumulative conditions must be satisfied: adequate pleading of material facts
- prima facie establishment of mistake in counting
- and imperative necessity for complete justice
- ballot secrecy is not lightly disturbed
- statutory counting procedures provide safeguards
- post-election custody of unused ballot papers by Returning Officer under Rule 93 permits opening and inspection upon objection under Rule 38(1)
- absence of detailed result sheet does not impede verification through Check Memos
- belated pleas of unauthorised counting supervisors not pleaded in election petition are not entertainable
- maxim omnia praesumuntur rite esse acta applies to official appointments.
