# RAM SEW AK Y ADAY v. HUSSAIN KAMIL KIDW AI & ORS

- **Citation:** [1964] 6 S.C.R. 238
- **Court:** Supreme Court of India
- **Decided:** 1963-07-23
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, K. c. DAS GUPTA, J. C. Shah, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-sew-ak-y-aday-v-hussain-kamil-kidw-ai-ors-3070
- **Pages:** 13

## Headnote

Election-Challenge on the ground of improper reception, re/u!al and
rejection of votes at the time of counting-Tribunal rejec:ting claim.
far inspection of the ballot papers-Validity-Representation of
the People A.ct, I95I (43 of I95I), SJ. 100, IOI and 102 and conduct of Election Rules, 1961. r. 93.
The respondent challenged the election of the appellant, inter alia,.
on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he
would have received a majority of valid votes and that he was entitled
to be declared duly elected.
He claimed that by
inspection of theballot papers he would be able to establish his
case on the aforesaid
alleg<ition, anrl that the Tribunal was bound to grant an order for in!-
pection. bec<!nse he h2'1 tendered the sealed boxes of ballot papers in
evidence, and on that account all the ballot papers were part of the
record.
The Tribunal in its order stated that nothing was brought to
its notice which \\'ou!d justify granting an order for inspection. It
•
further observed:
"If in future from the facts that may be brought to
the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed,
necessary
orders allo\\·ing an inspection
could always be passed".
Thereupon, another application was submitted by the respondent asking for inspection but no additional n1aterialA
were placed before the Tribunal and no oral evidence was led at the
trial.
The Tribunal rejected the application for inspection.
On appeal,
the High Court held that ballot papers had actually been called for
from the Returning Officer and were before the Tribunal, and there was
nothing in the Code of Civil Proceduq! which prevented the Tribunal
from allowing inspection of the ballot papers in the
custody of the
Court. The Tribunal had therefore rejected the application for inspection without any adequate reasons.
The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of th!! ballot
papers Y.'hich had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the R.eturnina: Officer.
Held: By the mere production of the sealed boxes, the ballot papers
did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that l!luch inspection was in the
circumstances of the case necessary in the interests of jusfce.
6 S.C.R.
SUPREME COURT REPORTS
239
The Returnins Officer is not a party to an election petition, and a11
1964
order for production of the ballot papers cannot be made under 0. XI Ram s;;;;;l y....,
of the Code of Civil Procedure.
But the Election Tribunal is not on
Y.
·
that account without authority in respect of the ballot papers.
Where Hus1ain
~
the interests of ju•tice deman'd it, the Tribunal may call upon the ReturnKidwoJ
ing Officer to produce the ballot papers and may permit in!pection by
the parties before it of the ballot papers:
that power is clearly implicit
in ss. JOO(r)(d)(iii), 101, 102 of the Representation of the People Act.
1951 and rule 93 of the Conduct of Election Rules, 1961. This power
to order inspection of the ballot papers which is apart from 0. XI Code
of Civil Procedure may be exercised, subject to the statutory restrictions
about the .ecrecy of the ballot papers pmcribed by ss. 94 and 128(1) of
the AcL
Bhim Sen •· Gopali, 22 E.L.R. 288, distinguished.
CML APPELLATE JURISDICTION: Civil Appeal No. 1064
of 1963.
Appeal by special leave from the judgment and order
dated July 23, 1963, of the Allahabad High Court (Lucknow
Bench) in First Civil Appeal No. 11 of 1963.
N. C. Chatterjee and J. P. Goyal, for the appellant.
S. P. Sinha and S. Shaukat Hussain, for respondent
No. 1.
January 17, 1964.
Tue Judgment of the Court was
delivered by
SHAH J .-At the general elections held in February 1962, Shah 1.:
five candidates contested the election to the House of the
People

## Text

1964
January, 17
SUPREME COURT REPORTS
[1g64]
RAM SEW AK Y ADAY
v.
HUSSAIN KAMIL KIDW AI & ORS.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS
GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)
Election-Challenge on the ground of improper reception, re/u!al and
rejection of votes at the time of counting-Tribunal rejec:ting claim.
far inspection of the ballot papers-Validity-Representation of
the People A.ct, I95I (43 of I95I), SJ. 100, IOI and 102 and conduct of Election Rules, 1961. r. 93.
The respondent challenged the election of the appellant, inter alia,.
on the ground that there had been improper reception, refusal and rejection of votes at the time of counting and that on a true count he
would have received a majority of valid votes and that he was entitled
to be declared duly elected.
He claimed that by
inspection of theballot papers he would be able to establish his
case on the aforesaid
alleg<ition, anrl that the Tribunal was bound to grant an order for in!-
pection. bec<!nse he h2'1 tendered the sealed boxes of ballot papers in
evidence, and on that account all the ballot papers were part of the
record.
The Tribunal in its order stated that nothing was brought to
its notice which \\'ou!d justify granting an order for inspection. It
•
further observed:
"If in future from the facts that may be brought to
the notice of the Tribunal, it appears that in the interests of justice inspection should be allowed,
necessary
orders allo\\·ing an inspection
could always be passed".
Thereupon, another application was submitted by the respondent asking for inspection but no additional n1aterialA
were placed before the Tribunal and no oral evidence was led at the
trial.
The Tribunal rejected the application for inspection.
On appeal,
the High Court held that ballot papers had actually been called for
from the Returning Officer and were before the Tribunal, and there was
nothing in the Code of Civil Proceduq! which prevented the Tribunal
from allowing inspection of the ballot papers in the
custody of the
Court. The Tribunal had therefore rejected the application for inspection without any adequate reasons.
The sole question for determination was whether the Election Tribunal erred in declining to grant an order for inspection of th!! ballot
papers Y.'hich had been, pursuant to an order in that behalf, lodged before the Tribunal in sealed boxes by the R.eturnina: Officer.
Held: By the mere production of the sealed boxes, the ballot papers
did not become part of the record and they were not liable to be inspected unless the Tribunal was satisfied that l!luch inspection was in the
circumstances of the case necessary in the interests of jusfce.
6 S.C.R.
SUPREME COURT REPORTS
239
The Returnins Officer is not a party to an election petition, and a11
1964
order for production of the ballot papers cannot be made under 0. XI Ram s;;;;;l y....,
of the Code of Civil Procedure.
But the Election Tribunal is not on
Y.
·
that account without authority in respect of the ballot papers.
Where Hus1ain
~
the interests of ju•tice deman'd it, the Tribunal may call upon the ReturnKidwoJ
ing Officer to produce the ballot papers and may permit in!pection by
the parties before it of the ballot papers:
that power is clearly implicit
in ss. JOO(r)(d)(iii), 101, 102 of the Representation of the People Act.
1951 and rule 93 of the Conduct of Election Rules, 1961. This power
to order inspection of the ballot papers which is apart from 0. XI Code
of Civil Procedure may be exercised, subject to the statutory restrictions
about the .ecrecy of the ballot papers pmcribed by ss. 94 and 128(1) of
the AcL
Bhim Sen •· Gopali, 22 E.L.R. 288, distinguished.
CML APPELLATE JURISDICTION: Civil Appeal No. 1064
of 1963.
Appeal by special leave from the judgment and order
dated July 23, 1963, of the Allahabad High Court (Lucknow
Bench) in First Civil Appeal No. 11 of 1963.
N. C. Chatterjee and J. P. Goyal, for the appellant.
S. P. Sinha and S. Shaukat Hussain, for respondent
No. 1.
January 17, 1964.
Tue Judgment of the Court was
delivered by
SHAH J .-At the general elections held in February 1962, Shah 1.:
five candidates contested the election to the House of the
People from the Barabanki single-member constituency.
The appellant Ram Sewak Yadav-who will be referred to
as Yadav-was at the counting of votes found to have
secured the highest number of votes and he was declared
elected.
Hussain
Kami!
Kidwai-hereinafter
called
Kidwai-who was one of the candidates at the election
submitted a petition on April 6, 1962, to the Election Commission for an order declaring the election of Y ada v void
and for an order that he (Kidwai) be declared duly elected.
Tue Election Tribunal, Lucknow, to which the petition was
referred for trial dismissed the petition.
In appeal to the··
High Court of Allahabad the order passed by the Election
SUPREME COURT REPORTS
1964
.
.
_
Tribunal was reversed and the proceedmgs were remanded
·Ram Sewak Yadav for trial with a direction amonn others that the Tribunal
T.
.
'
•
o
'
Hussain Kami/
do give reasonable opportumty to both the parties to inspect
Kidwai
the ballot papers and other connected papers. With special
Shah J.
leave, Yadav has appealed against the order of the High
Court.
The principal grounds set up by Kidwai in support of
his petition were~
( 1) that there had been improper reception, refusal
and rejection of votes at the time of counting,
and in consequence thereof the election
was
materially affected;
(2) that there were discrepancies between the total
number of votes mentioned in Form 16 and
Form 20;
(3) that the tendered votes were wrongly rejected by
the returning officer and on that account the
election was materially affected:
(4) that at the polling station No. 29, Majgawan in
Bhitauli Unit and Kursi polling station in Kursi
Assembly Unit, the polling officers did not give
ballot papers to the voters;
( 5) that
the
counting
of
votes of Bhitauli
Assembly Unit
continued till 8-30
P.M. in
insufficient light notwithstanding the
protest
lodged by the petitioner; and
(6) that on a true count he (Kidwai) would
have
received a majority of valid votes and that he
was entitled to be declared du! y elected.
These allegations were denied by Yadav.
At the trial before the Tribunal the parties led no oral
evidence. In respect of the pleas (3), (4) and (5) the burden
of proof lay upon Kidwai and as no evidence was led to
substantiate the same, those pleas failed. Again in the view
of the Tribunal, Kidwai could discharge the burden of proof
which lay upon him to establish that there were discrepancies
'between the original and the certified copies of Forms Nos
6 S.C.K
SUPREME COCRT REPORTS
16 & 20, and as the original forms were not called for by
19M
Kidwai, his second ground must also fail.
Kidwai claimed Rams;;;;; Yoda
that he would be able to establish his case on oleas (I) &
"·
(6) from the ballot papers, and submitted that a~ order fe>r Huss"k~dwaf•mfi
inspection of the ballot papers be made and that he be permitted to show from the ballot papers that the Returni•~
Officer had improperly received, refused or rejected
the
votes, and that on a true count he would get the largest
number of valid votes.
The Tribunal rejected the application for inspection holding that ballot papers may be allowed
to be inspected only if it is necessary in the interest of justice
and to support an order for inspection facts must be brought
to its notice making out a prima facie case disclosing that
errors were committed in the reception, refusal or rejection
of votes at the time of counting, and unless a prima facie
case was made out the Tribunal would be justified in declining to make an order for inspection. The High Court however held that ballot papers had actually been called for
from the Returning Officer and were before the Tribunal, that
there was nothing in the Code of Civil Procedure which
prevented the Tribunal from
allowing inspection of
the
ballot papers in the custody of the Court, and that the Tribunal had rejected the application for inspection without any
adequate reasons for so doing.
The only question which falls to be determined in this
appeal is whether the Election Tribunal erred in declining
to grant an order for inspection of the ballot papers which
had been, pursuant to its order in that behalf, lodged before
it in sealed boxes by the Returning Officer. In considering
this question the material provisions of the Representation
of the People Act, 1951, and the rules framed thereunder
mav first be noticed.
Section 80 of the Act provides that
no -election shall be called in question except by an election
petition presented in accordance with the
provisions
of
Part VI. Section 83(1) states what the election petition shall
contain. It states:
"An election petition-
(a) shall contain a concise statement of the material
facts on which the petitioner reli~s:
-159 SG-16
Shah /.
1964
Ram Sewak Yadav
v.
lfussain Kamil
Kidwai
Shah J.
242
SUPREME COURT REPORTS
[1964]
(b) shall set forth full particu '.ars of any
corrupt
practice that the petitioner alleges, including as
full a statement as posssible of the names of
the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in
the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings:''.
The rest of the section is not material.
Section 90(1) prescribes the procedure to be followed by the
Tribunal. It states:
"Subject to the provisions of this Act and of any
rules made thereunder, every election petition
shall be tried by the Tribunal, as nearly as may
be, in accordance with the procedure applicable
under the Code of Civil Procedure, 1908, to the
trial of suits: "
Section 92 enumerates the powers which a Tribunal trying
an election petition may exercise and the powers so enumerated are the powers which a Court under the Code of Civil
Procedure, when trying a suit, may exercise in respect of
discovery and inspection, enforcing attendance of witnesses,
compelling production of documents, receiving evidence
taken on affidavits and issuing commissions for the examination of witnesses. Rules have been framed under the Act
relating to prpduction and inspection of election papers.
By rule 93 of the Conduct of Election Rules, 1961, it is
provided that:
"(!) While in the custody of the returning officer-
(a) the packets of unused ballot papers:
(b) the packets of used ballot papers whether valid,
tendered or rejected:
(c) the packets of the marked copy of the electoral
roll or, as the case may be, the list maintained under sub-section (I) or sub-section (2) of
section 152; and
6 S.C.R.
SUPREME COURT REPORTS
(d) the packets of the declarations by electors
the attestation of their signatures;
243
and
1964
Ram Sewak Yada•
v.
shall not be opened and their contents shall not Hussai~
Kamll
K1dwai
be inspected by, or produced before, any per-
-
.
son or authority except' under the order of a
Shah 1·
competent court or tribunal.
(2) All other papers relating to the election shall be
open to public inspection subject to such conditions and to the payment of such fee, if any,
as the Election Commission may direct.
(3) Copies of the returns by the returning officer forwarded under rule 64 or as the case may be_
under sub-rule (3) of rule 84 shall be furnished
by the chief electoral officer of the State con-
. cerned on payment of a fee of two rupees for
each such copy."
The rule makes a clear distinction between ballot papers
and other election papers: ballot papers may be il)spected
only under the order of a competent court or tribunal, but
other documents are, subject to certain conditions, open to
public inspection.
In this case, on an oral request made by Kidwai all the
ballot papers in sealed boxes were lodgd with the Election
Tribunal.
Kidwai claimed in the first instance that the
Tribunal was bound to grant an order for inspection,
because he had tendered the sealed boxes of ballot papers in
evidence, and on that account all the ballot -papers were
part of the record. The Tribunal rightly rejected this plea,
fo~ by the m'ere production of the sealed boxes pursuant to
its order the ballot papers did not become part of the record
and they were not liable to be inspected unless the Tribunal
was satisfied that such inspection was in the circumstances
of the case necessary in the interests of justice.
An election petition must contain a concise statement
of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and
inspection of documents with which a civil court is invest-
244
SUPREME COURT REPORTS
[ r964]
1964
ed under the Code of Civil Procedure when trvin2 a suit.
ilam s.;;;;;: Yadav But the power which the civil court may exe;cis; in the.
Riulllli/· Kamrl trial of suits is confined to the narrow limits of 0.11, Code of
Kidwai
Civil Procedure. Inspection of documents under 0.11, Code
Shah 1
of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as
disclosed in the affidavit of documents of the other party, and
under rule 18(2) of other documents in the possession ur
power of the other party. The Returning Officer is not a
party to an election petition, and an order for production of
the ballot papers cannot be made under 0.11 Code of Civil
Procedure. But the Election Tribunal is not on that account
without authority in respect of the ballot papers. In a proper case where the interests of justice demand it. the Tribunal may call upon the Returning Officer to produce the
ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit
in ss. IOO())(d)(iii), IOI, 102 and rule 93 of the Conduct of
Election Rules, 1961.
This power to order inspection of
the ballot papers which is apart from 0.11 Code of Civil
Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by
ss. 94 and 128()).
An order for inspection may not be granted as a !!latter
of course: having regard to the insistence upon the secrecy
of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains an adequate statement of the material facts
on which the petitioner relies in support of his
case; and
(ii) the Tribunal is prima facie satisfied that in order
to decide the dispute and to do complete justice
betv.·een the parties inspection of the ballot
papers is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported
by material facts or to fish out evidence to support such
pleas. The case of the petitioner must be set out with pre-
6 S.C.R.
SUPREME COURT REPORTS
245
cision supported by averments of material facts. To e>tab1964
· lish a case so pleaded an order for inspection may undoubt· Ram s1;;;;t Yada•
edly, if the interests of justrce require, be granted. But a
•·
H UJ1ain
Kam/I
mere allegation that the petitioner suspects or believes that
Kidwal
there has been an improper reception, refusal or rejection
of votes will not be sufficient to support an order for inspection.
It must be remembered that the rules framed under the
Representation of the People Act, 1951, set up an elaborate
machinery relating to the stage of counting of vote:; by the
Returning Officer, and provide ample opportunity to the can·
didate who has contested the election or his agents to remain
present and to keep an eye on any improper action which
may be taken by the Returning Officer. Rule 53 provides
for the admission of only certain classes of persons to thr
place fixed for counting and amongst such persons are ex·
pressly included candidates. their election agents and counting agents, who may watch the counting subject to the directions which the returning officer may give.
Rule 55 deals
with the procedure for scrutiny and opening of ballot boxes.
The Returning Officer has to satisfy himself that "none of
the ballot boxes has in fact been tampered with" and before
any ballot box is opened at the counting table, the counting
agents present at that table are allowed to inspect the seal
affixed thereon and to satisfy themselves that it is intact. If
the Returning Officer is satisfied that any ballot box has in
fact been tampered with, he is prohibited from counting the
ballot papers contained in that box and he has to follow the
procedure prescribed in that behalf in s. 58. Clause (I) of
rule 56 provides for the scrutiny and rejection of
ballot
papers.
Clause (2) sets out detailed provisions relating to
cases in which the Returning Officer shall reject a ballot
paper. B:; cl. ( 3) it is provided that before rejecting any
ballot paper under sub-rule ( 2), the returning officer shall
allow each counting agent present a reasonable opportunity
to inspect such ballot papers. The Returning Officer has then
to record on every ballot paper which he rejects the grounds
of rejection. All the rejected ballot papers are required to
be put in one bundle. Rule 57 deals with the counting of
votes. Each ballot paper which is not rejected is counted
Shah J.
SUPREME COURT REPORTS
[1g64)
1964
as one valid vote. The Returning Officer has to make the.
Ram Sewak Yadav entries in a result sheet in Form 20 after counting of the
8
I "'· Kam"l ballot papers contained in all the ballot boxes used at the
uua n
1
11.
.
Kldwai
po mg stations. Clause (3) of rule 57 enacts an elaborate
Sha/• J.
set of rules about the entries to be made in respect of the
counting and scrutiny of the ballot papers.
By rule 60
counting has to be continuous, and rule 63 ( 1 ) provides that
after the completion of the counting, the Returning Officer
shall record in the result sheet in Form 20 the total number
of votes polled by each candidate and announce the result.
By cl. ( 2) of rule 63 it is provided that after such announcement is made, a candidate or his election agent may apply
in writing to the Returning Officer for a re-count of all or
any of the ballot papers already counted stating the grounds
on which he demands such re-count. The Returning Officer
must decide the application and record his reasons in support
of his decision and he may allow the application in whole
or in part or may reject it if it appears to him to be frivolous
or unreasonable.
After the total number of votes polled
by each candidate has been announced, the Returning Officer
must complete and sign the result sheet in Form 20 and
after such form is completed no application for re-count may
be entertained.
Under rule 64 the declaration of the result
of the election is made by declaring elected a candidate who
has secured the largest number of valid votes, and the Returning Officer is required to complete and certify the return
of election.
There can therefore be no doubt that at every st2 ge in
the process of scrutiny and counting of votes the candidate
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 the manner in which the ballot boxes were scrutinized
and opened, and the votes were counted.
He has also
opportunity of inspecting rejected
ballot papers, and of
demanding a re-count. It is in the light of the provisions of
s. 83 ( 1) which require a concise statement of material facts
6 S.C.R.
SUPREME COURT. REPORTS
247
on which the petitioner relies and to the· opportunity which
1964
a defeated candidate had at the time of counting, of watching Ram s;;;;k Y""-
and of claiming a recount that the application for inspection
. v.
b
"d
Hussain
Kanoll
must e cons1 ered.
Kidwal
In the petition filed by Kidwai the material allegations in
Shah 1.
support of the claim that there had been improper reception,
refusal or rejection of votes were contained in paragraphs
6(H), 6(K) and 12. In paragraph 6(H) it was averred that
numerous ballot papers cast in favour of the petitioner were
· wrongly included in the "bundles of the- respondents." In
paragraph 6(K) it was averred that due to "a deficiency in
the supply of sealing ink, marks on some ballot papers, though
not quite clear, yet the marks clearly indicating the intention
of the voters, were wrongly rejected as invalid by the return·
ing officer."
In paragraph 12 it was averred that "the petitioner is confident that if the votes actually cast in favour of
the petitioner are counted as votes of the petitioner and if the
improperly accepted votes which have been counted
in
favour of other respondents are taken out, and if the ballot
papers are correctly sorted, counted and bundled, the respondent No. I will be found to have polled less votes as com·
pared to . . . petitioner.
The petitioner further submit&
that the result of the Election has been materially affected
by the improper acceptance and refusal of votes and by the
incorrect sorting, counting and bundling of ballot papers."
These averments in the petition for setting aside the election
on the ground of improper acceptance or rejection of votes
were vague, and did not comply with the statutory requirements of s. 83(l)(a).
Paragraph 12 is deficient in the recital
of material facts which must be deemed to be within the
knowledge of the petitioner, and merely asserts that if the
votes actually cast in favour of the petitioner are counted,
the total number of valid votes found in his favour would
exceed the number of votes received by Yadav.
Having
regard to this infirmity the Tribunal was justified in declining to make an order for inspection of the ballot papers unless a prima facie case was made out in support of the claim.
The Tribunal has undoubtedly to exercise its discretion if it
appears to be in the interests' of justice, but the discretic;n
has manifestly to be exercised having regard to the nature of
the allegations made.
The Tribunal would be justified in
SUPREME COURT REPORTS
1V64
refusing an order where inspection is claimed with a view to
.._ .;;;t Yadav fish out materials in support of a vague plea in the case set
• "· K
.1 out in the petition. The Tribunal was conscious of the true
B,,_,.
ami
• 'I. ed'.
d
A
25
9
Kitlwai
p1'Ulc1p e: 1t stat
m its or er dated
ugust
, I 62, that
SWJ.
nothing was brought to its notice which would justify granting an order for inspection prayed for by the petitioner at
that stage.
The Tribunal further observed:
"If in future from facts that may be brought to the
notice of the Tribunal, it appears that in
the
interests of justice inspection should be allowed,
necessary orders allowing an in~pection could
always be passed".
Relying upon these observations another application was
submitted by Kidwai asking for inspection but no additional
materials were placed before the Tribunal.
As we have
already observed Kidwai Jed no real evidence at the trial. In
his second application for inspection he merely averred that
"the petitioner was almost sure" that on inspection and scrutiny of ballot papers, the allegations contained in the various
paragraphs would be proved. The 1llegation of Kidwai
that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had
been wrong counting on account of improper reception,
refusal or rejection of votes
was
wholly insufficient to
justify a claim for inspection.
He had to place before the
Tribunal evidence prima facie indicating that an order for
inspection was necessary in the interests of justice, which he
failed to do.
Reliance was placed before this Court and the High Court
upon the decision of this Court in Bhim Sen v. Gopali and
others( 1) in support of the plea that mere absence of particulars will not furnish a ground for declining to grant inspection and tltat a defeated candidate is entitled to establish
his case that void votes had been counted and included in
the votes of the successful candidate from the evidence collected from inspection of the ballot papers.
In Bhim Sen's
case ( 1) a petition was filed for setting aside an election of a
candidate In a reserved seat in a double member constil'-'Cncy.
The principal ground in support of the petition
(') 22 E.L.R. 288.
'
6 S.C.I<.
SUPREME COURT REPORTS
249
was that it was incumbent upon the Returning Officer to go
1964
into each case of double voting in order to reject Qne of the Ram Sewak Yadov·
two votes cast in contravention of s. 63(1) of the Represen- Ht1ssain v. Kamil
ration of the People Act, and that the Returning Officer
Kidwai
having failed to discharge his duty to reject b~llot papers
Shah J.
cast in contravention of s. 63 the petitioner belie~·ed that
the successful candidate "could receive many void votes."
The ballot boxes were opened and it was found that 37 vmd
votes were counted in favour of the successful candidate and
in view of the disclosure made by the inspection of the ballot
papers the petitioner applied for leave to amend the petition
by adding a specific averment that 37 void votes had in fact
been counted in favour of the successful candidate and that
the words "alleges" and "did" be substituted respectively for
the words "believes·· and "could". Along with the petition
for leave to amend he filed a list giving the particulars of the
void votes.
This application was allowed by the Tribunal
but the order was reversed by the High Court on the ground
that the Tribunal had erred in allowing the amendment. In
appeal to this Court it was held that in a case like the one
before the Court, definite particulars about the number and
nature of the void votes that had been counted could only
be supplied after inspection of the ballot papers, and the
election petition as originally presented must therefore be
regarded as having furnished the material particulars. and
the amendment petition must be treated merely as an application for clarification of the pleadings.
We do not think
that Bhim Sen's case(') lays down any general principle
that a party is entitled without making allegations of material
facts in support of his plea to set aside an election to claim
an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes
are scrutinized again by the Tribunal it may appear
that
there had been improper reception, refusal or rejection of
votes at the time of counting. To support his claim for
setting aside the election the petitioner has to make precise
allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge.
The nature of the allegations must of course depend
upon the facts of each case.
.But if material facts are not
(1) 22 E.L.R .. 188.
250
SUPREME COURT REPORTS
1964
stated, he cannot be permitted to make out a case by fishing
.Ram Sewak Yadav out the evidence from an inspection of the ballot papers. In
Hussai~· Kamil
Bhim Sen's case(1) the Court was primarily concerned with
Kidwai
the question whether amendment of the petition to set aside
Shah!.
an election should be granted. It was alleged by the defeated candidate that there had been contravention of the provisions of s. 63 ( I ) of the Act by the Returning Officer and
the election was materially affected on that account.
The
applicant had stated that he believed that the respondents had
received many votes which were void.
When the ballot box
was opened it was found that among the votes credited to
the successful candidate were 37 votes which were
void.
Thereafter the applicant applied to substitute
the words
"alleges" for "believes" and "did" for "could". In that case
the Court was not concerned to decide whether the order for
inspection was properly made: the propriety of the order
granting inspection does not appear to
have ever
been
questioned.
The principal question raised in the
appeal
1 was whether the amendment of the petition should, in the
circumstances, be granted and the observation of the Court
that "definite particulars about the number and nature of the
void votes that had been counted could only be supplied
after inspection of the ballot papers" was not intended to be
a general statement of the law that whenever an allegation
is made in a petition to set aside an election that void votes
have been included in the counting of votes received by a
successful candidate, definite particulars with regard to the
said void votes may only be supplied after the ballot papers
are inspected, and that a defeated candidate may claim inspection of the ballot papers without making any specific allegations of material facts and without disclosing a prima facie
<:ase in support of the claim made.
In our view the High Court was in error in interfering
with the exercise of discretion by the Election Tribunal
which proceeded upon sound principles.
The appeal therefore is allowed and the order of the High Court is set aside.
The order of the Tribunal is restored with costs in this Court
and the High Court.
Appeal allowed.
") 22 E.L.R. 288
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