# BANAMALI DAS v. RAJENDRA CHANDRA MARDARAJ HARICHANDAN & ORS

- **Citation:** [1976] 1 S.C.R. 212
- **Court:** Supreme Court of India
- **Decided:** 1975-08-01
- **Case number:** Civil Appeal No. 576 of 1975
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/banamali-das-v-rajendra-chandra-mardaraj-harichandan-ors-6488
- **Pages:** 7

## Headnote

Representation of the People Act 1951-Sections 64 (Ind 169-Conduct of
Election Rules, 1')61-Rule 56(7)-Recount when to
be
ordered-Evidence
Act-Sections 74 and 17-Proof of Public documents.
Six candiPates contested the mid·term election to the Orissa Legislative
Assembly from Nilgiri Constituency. The appellant was declared elected by a
margin of 49 votes over respondent no. 1.
Respondent No. 1 filed an Election
Petition challengEng the election of the appellant and praying that instead of tne
appellant he should be declared as the .successful candidate. 'fhe appellant's
election was challenged by respondent no. 1 mainly on the ground that through
an error the returning officer did not enter the results of the second round of
counting on table No. 13 in Form No. 20 as prescribed by rule 56(7 J of the
Conduct of Election Rules 19.61.
The allegation was that the results of the
second round of counting on table No. 14 were erroneously enter<.!d twice in
form No. 20, once against as the second round of table No. 14 and once aga!nst
the second round of table ~o. 1_3. During the hearing of the petition, the learned
Judge enquired whether the parties were agreeable to a recount being taken of
aH ballot papers. Counsel appearing for appelJant and respondents Nos. 1 and
2 agreed to the course suggested by the learned Judge. Respondents Nos. 3 to
5 did not appear at the trial. After the recount was taken the Depu!y Regif.trar
submitted a detailed report which was made a part of the record of the Court.
Section 64 of the Act provides that in ~very election where a pol.l is taken
votes shall be counted by or under the supervision of the returning officer and
each contesting candidate.., his election agent and counting a_~ent shall have a right
to be present at the time of eounting Section 169 of the Act .empowers the Cen..;
tral Govt. after consultation with the El-ection Commission to make rules for
carrying out the ur.r?lcses of the Act.
Rule 56 (7) of the Conduct of Election
Rules 1961 provides that after the L:OUniing of all ballot papers contained in all
the liaHot boxes used in a constituency has been comDleted the n~turning ctlicer
shall make the entries in a result sheet 'in form No. 20 and announce the particulars. The Elect~-011 Commission has com!)iled a hand-book for the use of the
returning officers in order to avoid errors in counting of votes. Para 14-B in
chapter VIII of th~ hand-book directs that the officer in charge of distribution
of the ballot papers for counting should take out sufficient number of bundles
from the drums so &s to make up 1000 ballot papers and distribute them to each
table for counting at each round. After the counting of every such 1000 ballot
paper<; is over the bundles are given back to the supervisor of the conntlng table
with the Check :\femo duly filled in and signed bv the Assistant.
The form of
the check memo is at Annexure XII-A and a sample form is at Annexure XII-B
of the handbook. The original check memo of the 13th table in which the results
of the second round \Vas entered was not produced during the trial but a
cert~
fied copy thereof v.r..s admitted in eVidence.
The appellant objected to its admissibility.
Dismissing the appeal,
HELD : The certified C01'V of the check memo is admissible in evidence.
Under section i 4 of the Evidence Act. documents forming acts or records of the
act<; of public officers are public documents. By section 77. such certified. ccpies
may be produced in proof of the contents of the documents of ·.vhich they purported to be cof)ies. The check memo is a document form£.ng records of the acts
of a public officer and, therefore, a ·certified covy thereof given by the Collector
in whose custody the document is kept can be admitted in eviden~e in riroof of
the ccnten1s of the original document. [216A-Dl
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BANAMALI DAS v. RAJENDRA (Chandmchud, !.)
213
In form No. 20 votes secured by the various candidates in the second rcund
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## Text

212
BANAMALI DAS
v.
RAJENDRA CHANDRA MARDARAJ HARICHANDAN & ORS.
August 1, 1975
[Y. V. CHANDRACHUD, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Representation of the People Act 1951-Sections 64 (Ind 169-Conduct of
Election Rules, 1')61-Rule 56(7)-Recount when to
be
ordered-Evidence
Act-Sections 74 and 17-Proof of Public documents.
Six candiPates contested the mid·term election to the Orissa Legislative
Assembly from Nilgiri Constituency. The appellant was declared elected by a
margin of 49 votes over respondent no. 1.
Respondent No. 1 filed an Election
Petition challengEng the election of the appellant and praying that instead of tne
appellant he should be declared as the .successful candidate. 'fhe appellant's
election was challenged by respondent no. 1 mainly on the ground that through
an error the returning officer did not enter the results of the second round of
counting on table No. 13 in Form No. 20 as prescribed by rule 56(7 J of the
Conduct of Election Rules 19.61.
The allegation was that the results of the
second round of counting on table No. 14 were erroneously enter<.!d twice in
form No. 20, once against as the second round of table No. 14 and once aga!nst
the second round of table ~o. 1_3. During the hearing of the petition, the learned
Judge enquired whether the parties were agreeable to a recount being taken of
aH ballot papers. Counsel appearing for appelJant and respondents Nos. 1 and
2 agreed to the course suggested by the learned Judge. Respondents Nos. 3 to
5 did not appear at the trial. After the recount was taken the Depu!y Regif.trar
submitted a detailed report which was made a part of the record of the Court.
Section 64 of the Act provides that in ~very election where a pol.l is taken
votes shall be counted by or under the supervision of the returning officer and
each contesting candidate.., his election agent and counting a_~ent shall have a right
to be present at the time of eounting Section 169 of the Act .empowers the Cen..;
tral Govt. after consultation with the El-ection Commission to make rules for
carrying out the ur.r?lcses of the Act.
Rule 56 (7) of the Conduct of Election
Rules 1961 provides that after the L:OUniing of all ballot papers contained in all
the liaHot boxes used in a constituency has been comDleted the n~turning ctlicer
shall make the entries in a result sheet 'in form No. 20 and announce the particulars. The Elect~-011 Commission has com!)iled a hand-book for the use of the
returning officers in order to avoid errors in counting of votes. Para 14-B in
chapter VIII of th~ hand-book directs that the officer in charge of distribution
of the ballot papers for counting should take out sufficient number of bundles
from the drums so &s to make up 1000 ballot papers and distribute them to each
table for counting at each round. After the counting of every such 1000 ballot
paper<; is over the bundles are given back to the supervisor of the conntlng table
with the Check :\femo duly filled in and signed bv the Assistant.
The form of
the check memo is at Annexure XII-A and a sample form is at Annexure XII-B
of the handbook. The original check memo of the 13th table in which the results
of the second round \Vas entered was not produced during the trial but a
cert~
fied copy thereof v.r..s admitted in eVidence.
The appellant objected to its admissibility.
Dismissing the appeal,
HELD : The certified C01'V of the check memo is admissible in evidence.
Under section i 4 of the Evidence Act. documents forming acts or records of the
act<; of public officers are public documents. By section 77. such certified. ccpies
may be produced in proof of the contents of the documents of ·.vhich they purported to be cof)ies. The check memo is a document form£.ng records of the acts
of a public officer and, therefore, a ·certified covy thereof given by the Collector
in whose custody the document is kept can be admitted in eviden~e in riroof of
the ccnten1s of the original document. [216A-Dl
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BANAMALI DAS v. RAJENDRA (Chandmchud, !.)
213
In form No. 20 votes secured by the various candidates in the second rcund
oi counting on tr.ble 13 was wrongly mentioned. Whereas the apriellant had
se1..1.ucd 21 votes only in the second round of counting on table No. 13. the final
result sheet form No. 20 showed that he had secured 144 votes and whereas respondent No. 1 had secured 86 votes he was shown to have secured 109 vctes.
The error vvas favourable to both the oarties. But whereas the error in favour
of the appellatlt Vi'1.s to the extent of 123 votes, that in favour of
respondent
No. 1 was to the extent of 23 votes only. As the appellant was declared to have
\Von the election by a margin of 49 votes only, it is respondent No. 1 aild not the
appellant who polled the largest number of votes. It must follow that respondent No. 1 has secured the maximum number of valid votes and is, therefore, entitled to be declared as the successful candidate. [2160-H; 217C-D]
The Hi·gla Court was !.n error in directing that the COurt will recount all the
ballot papers. Jn the election petition filed by respondent No. 1 there \Vas Do
request for reconnt.
The consent to the recount was given only by respondents
No. 1 and 2. The other respondents had no notice that recount would be suggested or accepted, when there was no plea about. it in the pleadings of the parties.
The High Court ·widened unduly the scope of the election petition and landed
!tself into an unforeseen difficulty of having to decide points on which there \vas
neither a pleading nor an issue. True, that elections are not a matter of technicalities but even a strong and "Sensitive conscience must not book an endless litigation in which parties w!U fish for new challenges based on accidental discoveries of no 1nore than plausible ooints to ponder. The new errors on \vhich
the appellant relied had an air of plausibility and no more. The new argument
founded on 1hose errors had therefore to fail. [217E-218C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 576 of 1975.
From the judgment and order dated the 6th March, 1975 of the
Orissa High Court in E.P. No. 3 of 1974.
:Somnath Chatterjee, and Ratin Das, for the appellant.
Vinoo Bh~at, for the respondent.
The Judgment of the Court was delivered by
CHANDRA CRUD, J .-Six candidates contested the mid-term election
to the Orissa Legislative Assembly from the Ni!giri constituency. The
polling was held on February 26, 1974 and on March 1 the result of
the election was declared.
The appellant who contested the election
on the ticket of the Communist Party of India (Marxists) was declared
as the successful candidate. According to the results declared on March
1, the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bharti Lok Dal secured 14297
:'Otes. The other contestants, respondents 2 to 5, secured votes rangmg between 12,312 and 5961. Respondent 6 is1 the Returning Officer.
On April 13, 197 4 respondent 1 filed an election petition under
section 81 of Representation of the People Act 1951
(hereinafter
called. "the Act") _challenging the election of the ~ppellant and praving
th~t, mstead, he himself should be declared as the successful candidate.
Th~ appellant's election was challenged by respondent 1 on the ground,
mainly, that through an error the Returning Officer did not enter the
results of the second rouud of counting on Table No. 13 in Form
No. 20, ~s prescribed bv Rule 56(7) of the Conduct of Election Rules
1961. It was alleged that instead of incoroorating the results of th~
second round of counting on Table No. 13 in Form No. 20,
the
214
SUPREME COURT REPORTS
[1976]' 1 S.C.R.
Returing Officer wrongly incorporated the results of the second round
of counting on Table No. 14 in the column meant for the corresponding count of Table No. 13 .. In other words, the allegation was· that
the results of the second round of couhting on Table No. 14 were
erroneously entered twice in Form No. 20, once as against the second
round of Table No. 14 and once as against the second round of Table
No. 13 ..
The appellant denied this allegation contending that he had secured
the largest number of votes and that there was a clear difference of
49 votes between him and respondent No. 1. The appellant also raised
several other contentions touching the maintainability of the election
petition on the ground of non-compliance with statutory requirements.
On these pleadings, the learned Judge of the High Court of Orissa,
Cuttack, who tried the election petition framed 8 issues but they were
re-cast after the evidence was recorded.
Issues Nos. 1 to 5 pertained
to the maintainability of the election petition aP;d on these issues the
learned Judge found in favour of respondent J.
Those findings are
not challenged before us and, therefore, we must proceed on the basis
that the election petition as presented did not suffer from any illegality.
Issues Nos. 6 to 8 are the ones with which alone we are concernd
in this appeal and those issues arise out of the contentions in regard
to the entries made. by the Returning Officer in Form No. 20. The
ninth issue is consequential.
Respondent l examined himself and one Khagendranath Naik who
was his Counting Supervisor on Table No. 13.
On behalf of the
appellant, an election agent and a counting agent of his were examined
as witnes~es. Neither party examined the Returning Officer nor indeed
did the Returning Officer who was respondent 6 to the petition offer
to give evidence oni the question as to whether the resu1ts of the second
round of counting of Table No. 14 were erroneously entered as against
the corresponding column of Table No. 13.
During the hearing of the petition, the learned Judge inquired of
the oarties whether they were agreeable to a recount being takell of
all the ballot oapcrs. Counsel appearing for the appellant and re~pon
dents 1 and 2 agreed to the course suggested by the learned Judge.
Respondents 3 to 5 who had con'ested the election but were defeated
did not appear at the trial nor indeed did the Returning Officer.
On
Februarv 3, 1975 the learned Judge passed an order directing that
"the entire ballot papers should he recounted".
The ballot papers were accordinQly sent for.
Twenty.one sealed
trunks were .received bv the court and the recounting was done by the
Deputv Registrar of the High Court in the presence of the counsel
for '.he contending oarties.
After the recount was taken, the Deputy
Reg1st,,1r submitted a detailed renort which was made a nart of the
record under an order passed by the learned Judge on February 21
1975.
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BA,NAMALI DAS v. RAJENDRA (Chandrachud, J.)
215
In view of the fact that the find~s recorded by the learned Judge
in favour of respondent 1 on issues 1 to 5 are not challenge~ before
us, the only question for decision is whether respondent 1 has d1scha_rged the onus of proving that the result of the second round of countmg
on the 13th Table was not at all recorded in -Form No. 20 and whether
the result of the second round of counting on-Table No. 14 was erroneously entered as against the second round of Table No. 13.
Section 64 of the Act provides that at every election where a poll
is taken votes shall be counted by or under the supervision and direction of lhec returning officer and each contesting candidate, his electioDI
agent and his counting agents, shall have rii;ht to be present at the time
of counting.
Section 169 of the Act which empowers the Central
Government after consultation with the Election Commission to make
rules for carrying out the purposes of the Act provides by sub-section
(2)(g) that such rules may provide flor the scrutiny and counting of
votes. Rule 56(7) of the Conduct of Election Rules, 1961 provides
that after the counting of all ballot papers contained in all the ballot
boxes used in a constituency has been completed, the returning officer
shall make the entries in a result sheet in Form 20 and announce the
particulars. Form 20 called the "Final Result Sheet" requires the re·
turning officer to enter therein the total number of valid votes recorded
for the various candidates as also the total number of rejected ballot
papers, at each round separately.
In order to avoid errors in counting of votes, the Election Commission has compiled a hand-book for the use of returning officers
containing instructions for their guidance at various stages of the elections. Before the results of the electiori are entered in Form No. 20,
it is neces_sary that a record be maintained of the result of counting of
'each round. Paragraph 14-B in Chapter VIII of the hand-book directs
that the officer-in-eharge of distribution of the ballot papers for countfog >hould take out a sufficient number of bundles from the drum so as
to make up 1000 ballot papers and distribute them to each table for
counting at each round. After the counting of every such thousand
ballot papers is over, the bundles are given back to the supervisor of
the counting table with the "Check Memo" duly filled in and signed
by the assistant.
The Check Memo shows the votes polled by the
various candidates in the particular ronnd as also the total number of
rejected votes. When the distribution and counting of bundles is thus
completed on all the counting tables, one round of counting is said to
be over: The _next round of counting will then begin. The same procedure is reqmred to be followed for every round of counting so that
the result of each round of counting on each table is reflected in the
Check Memo rel~ting t? each round. As many Check-Memos as many
rounds of counting.
fhe form of the Check Memo is at annexure
XII-A and a sample form duly filled in is at annexure XII-B of the
hand-book.
These forms are not prescribed by the Act or the rules
made thereimder but the directions in regard <hereto have to be carried
out on the mstrucl!ons of the Election Commission in which the overall control and supervision of elec'ions is vested. The directions and
216
SUPREME COURT REPORTS
[1976] 1 S,C.R.
forms contained in the hand-book for the use of returning officers are
intended to facilitate the holding of fair and error-free elections and no
objection can be taken to either.
The original Check Memo of the 13th Table in which results of
the second round were entered was not produced during the trial but
a certiikd copy thereof was admitted in evidence a~ E~ .. 1, subject to
the objection raised by the appellant as to its admissibility. There is
no substance in that objection.
Section 7 4 of the Evidence A\:t
provides that documents forming the acts . or records .of the acts of
public officers are. public documents. Section 76 provides th~t every
public officer havmg the custody of a pubhc document which any
person has a right to inspect shall give that perso!). a copy of it tcgether with the certificate that it is a true copy of the document. By
section 77, such certified copies may be produced in proof of the contents of the documents of which they purport to be copies.
The
Check Memo which is required to be maintained by the officer in
charge of the counting table is a document forming record of the acts
of a public officer and therefore, a certified copy thereof given by the
Collector in whose custody the document is kept, can be admitted in
evidence in proof of the contents of .the original document.
The certified copy (Ex. I) of the Check Memo concerning the
second round of counting on Table No. 13 shows that 40 bundles each
containing 25 ballot papers (i.e. 1000 ballot papers), were distributed
for counting in the second round. Part I of Ex. 1 contains these
deiails.
Part II of Ex. 1 shows the result of counting at the second
round.
According to the entries contained therein, the appellant secured 21 valid votes, respondent 1 secured 86, while respondents 2
to 5 secured 304, 7,, 15 and 524 votes respectively. Forty-two ballet
papers were rejected, thus making up a total of 999 ballot papen.
Evidently, there was an error regarding one ballot paper either at tho
stage of distribution or at the stage of counting. What is relevant is
not that there was an error in the counting of one ballot paper but that
the result of counting which is entered in the Check Memo ought to
have been incorporated in Form No. 20 in the appropriate column.
Surprisin~ly, in Form No. '.W, the votes secured by the various candidates in the second round of counting on Table No. 13 were shown as :
the appellant-144 votes instead ofl 21; respondent 1-109 votes instead
of 86; respondent No. 2-360 votes instead of 304; respondent No. 3--
19 votes instead of 7; respondmt No. 4-74 votes instead of 15, and
respondent No. 5-225 votes mstead of 524. In short, whereas the
appellant had truly secured 21 votes only in the second round of counting on Table No. 13, the Final Result Sheet., Form No. 10 showed
that he had secured 144 votes; and whereas respondent No. 1 had
secured 86 votes, he was shown to have secured 109 votes. The error
was favourable to both the parties but whereas the error in favour o t
the appellant was to the extent of 123 votes, that in favour of respon ..
dent 1 was to the extent of 23 votes only. As the appellant was dee ..
Jared to have won the election by a man~in of 49 votes orily over res-·
pondem 1, it is plain that respondent 1 and not the
appellant had.
polled the largest number of votes.
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BANAMALI DAS v. RAJ.ENDRA (Chandr11Chud, !.)
217
A
A mere look at the entries in Form No. 20 relating to the second
'.(
round of counting on Table Nos.
13 .and 14 would disclose. the error
committed in making the entries therein. The entnes made m respect
of Table No. 14 were accur>ite, but precisely those very figures were
through some error carried to the secor..ct round of Table No. 13. It
j,
can seldom happen that five contesting candidates would se.cure prcc1sely the same number of votes in the same ro·und .of ~ountmg on two
B
different tables, when a thousand ballot papers are d1stnbuted to the two
t
tables by picking them up at random from a common drum or reccpiacle. It is, however, unnecessary to speculate about any such possibilily because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the apprnpriate column of Form No. 20.
We therefore uphold the finding of the learned Judge that the result of the second
c
round of the 14th Table came to be recorded twice and that the true
result. of the second round of counting on Table No. 13 was entirely
omitted while making entries in Form No. 20. It must follow that resK
pendent 1 has secured the maximum number of valid votes and is there-
~
fore entitled to be declared as the successful candidate.
.
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This really should be an end of the matter because the only ground
I
on which respondent 1 had challenged the appellant's election 'vas
that the relevant entries in Form No. 20 did not reflect the true picture.
I
But the order passed by the learned Judge that a recount shall be taken
'
of all the ballot papers has furnished to the appellant an opportunity
' I
to raise a doubt, here and a doubt there regarding the manner in which
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the votes were counted and the ballot papers preserved. In our opinion
J
the learned Judge was in error in directing, merely because his suggesI '
tion was accepted by the parties appearing before him. that the court
.,
should take a recount of all the ballot papers. Respondent 1 who filed
'
the election petition had not asked for such a recount and the defence
\
of the appellant to the petition wa9 that the entries in Form No. 20
'
reflected a true picture and contained no error.
The consent to the
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recount was given onJy by the appellant and respondents 1 and 2. The
other respondents who had contested the election did not appear at the
trial of the election petition but they certainly had no notice that. a
>!k'
recount would be suggested or accepted when there was no plea about
,it in the pleadings of the parties. The learned Judge widened unduly
the scope of the election petition and landed himself into an unforeseen
,.
difficulty or having to decide noints on which there was neither a pleadG
ing nor an issue. After the Deputy Registrar submitted his report, the
learned Jud~e felt "serious douhts ahout the correctness nf the recount"
but all that he did in order to allay those doubts was to take a re-recount
i ~'
of a packet of votes where he thought the error of the recount could
with assurance be located. And so we have to countenance an argu-
'1
ment based on no pleadings, arising out of no iss,ues and founded solely
/
on errors, real or 'Supposed, which are said to have happened to see the
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light of the day as a result of the recount and the recount. Even election
\
petitions must end at some stage and they cannot, for the reason that
!
ele".1ions are a democrntic venture, be permited to procreate paints
dunng the course of their pendency.
As we were listening to the
218
SUPREME COURT REPORTS
(1976) 1 S.C.R.
appellant's argument, we thought we were hearing an ,independent election petition filed by the appellant in order to challenge the result ofl the
recount.
Mr. Somnath Chatterjee, appearing for the appellant, argued that
the facts which have emerged out of the recount throw considerable
doubt on the manner in which the election was held and therefore instead of declaring respondent No. l as the successful candidate we
should order that a fresh election be held. Election9, says the learned
counsel, are not a matte_r of technicalities and the court must sat.isfy.
its conscience that the elect.ion before it was free and nair. Justice mav
be a matter of the Judge's conscience but even a strong and sensitiv;,
conscience mu•t not brook an endless litigation in which parties w;ill
fish for new challenges based on accidental discoveries of no more than
plausible points to ponder. The new errors on which the appellant now
relies have an air of plausibility and no more.
The new argument
founded on those errors must therefore fail.
As respondent I truly secured the maxjmum number of votes1 and
as the appellant was, through an error, shown to have secured the maximum number of votes, we must uphold the judgment of the Clrissa
High Court setting aside the appellant's election and declaring respondent J as the successful candidate.
The appeal is accordingly dismissed with costs in favour of respondent l.
P.H.P.
Appeal dismissed.
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