M. Madhavan Nair, J.
1. This election petition is to declare the election of the 1st respondent void and the petitioner elected.
2. The petitioner and respondents 1 and 2 contested for a seat in the Kerala Legislative Assembly from the Ollur Constituency in the general election held on February 20, 1987. After counting of votes the next day the Returning Officer rejected 1763 ballot papers as invalid and announced them to have polled 24, 421; 24, 569 and 1,025 votes respectively and declared the 1st respondent elected. The petitioner challenges the election on the following allegations:
(1) "the chief counting agent of the petitioner applied in writing to the Returning Officer to recount the votes polled" but he "read through the same and returned it. ... for getting the petition typed and before the typed copy could be brought declared the 1st respondent duly elected:
(2) "many ballot papers which were validly marked for the petitioner were rejected as invalid" by the counting supervisors finally, though they "have no jurisdiction to do so";
(3) many ballot papers having had "two marks, one on the symbol of the 1st respondent and the other on the symbol of the 2nd respondent." were counted by the counting supervisors as votes of the 1st respondent in spite of opposition by the counting agents of the petitioner;
(4) "many votes marked for the petitioner and the 2nd respondent were wrongly included in the bundle of the 1st respondent;" and though "some such cases were detected and the votes taken out." as the petitioner was allowed only one counting agent at one table where three officers were sorting, counting and bundling simultaneously" a very effective check was not possible:"
(5) the counting went on from 8 a.m. to 8 p.m. without a break "either for food or for answering the calls of nature and that resulted in miscounting of votes:"
(6) there were opportunities for removing ballot papers from the polling station, and a large number of ballot papers "brought outside the polling booth and handed over to agents of the 1st respondent for Improper motives. . . were marked outside and taken back to the polling station through the trusted persons of the 1st respondent and put into the ballot boxes;"
(7) votes marked for the petitioner have been removed from the counting table:
(8) there are 51 tendered votes by real electors in the constituency who had been "falsely personated by the workers of the 1st respondent;" which tendered votes have to be counted for the petitioner;
(9) "sorted bundles of votes for one candidate were misplaced with that of the other candidate".
(10) a large number of postal votes were illegally rejected.
(11) as the margin of votes between the petitioner and the 2nd respondent is very narrow, a recount of votes should have been ordered by the Returning Officer:
(12) the simultaneous issue of two ballot papers, one for the Assembly and the other for the Parliament, caused confusion in the voters and wrong marking of their ballots and this novel method which was adopted in Kerala alone was discriminatory and therefore the entire election conducted in the State has to be set aside:
(13) the result of the election had been materially affected by improper reception and rejection of votes and by reception of votes which are void as also by non-compliance of the Act and the Rules and the provisions of the Constitution; and
(14) if votes are recounted the petitioner would get majority of the valid votes polled.
3. By a written statement the 1st respondent denied all the allegations made against his election and contended that the petitioner having not made an application in time for recount before the Returning Officer, cannot claim it in election petition; but has not recriminated under Section 97 of the Representation of the People Act, 1951 hereafter 'the Act'.
4. 17 issues were settled for trial on May 25, 1967, after hearing counsel on both sides. They read as follows:
(after giving the 17 issues the judgment proceeded)
5. The petitioner examined 7 persons who have given tendered votes as P. Ws. 1 and 4 to 9, a counting agent of his as P. W 2 and his chief counting agent (the one who sat at the Returning Officer's table) as P.W. 3, the Returning Officer as P. W. 10 and himself as P. W. 11; and proved the typed petition presented by P. W. 3 before the Returning Officer for a recount of ballot papers as Ext. P-1. The 1st respondent examined himself as P. W. 1.
6. Issue No. 1. The first question is whether an application for recount under Rule 63 (2) of the Conduct of Election Rule 1961. -- hereafter 'the Rules' -- had been presented in time. That the application, Ext. P-1, was belated is not disputed. The order thereon says;
The result was announced at 4.45 p.m after the result sheet was signed. This petition requesting for recount was presented to me only at 6.03 p.m." P. W. 3, an Advocate, aged 44, who was the petitioner's chief counting agent, has conceded that the counting of votes was over by 4 p.m. the formal announcement of the total number of votes polled by each candidate was at 4.45 p. m. and the declaration of the result of the election was 5 or 10 minutes thereafter.
(Translation of Malyalam script)
"(The counting of votes in the assembly constituency was over by about 4 p.m. on 21st February 1967 When it was quarter to 5 the Returning Officer announced the total number of votes polled by each candidate and the number of invalid votes. . . Between declaration of result and announcement of the number of votes there was an interval of five or ten minutes.)"
Rule 63(6) of the Rules commands "on application for a recount shall be entertained' after the Returning Officer has completed and signed the result sheet. The presentation of the application (Ext P-1) for recount long after even the declaration of the result of election was obviously too belated to serve the purpose
7. The petitioner's case is that he had not been to the counting place at any time on the counting day; but an application for recount had been presented in time on his behalf by P. W 3. his chief counting agent, and the same was received and read through and then returned by the Returning Officer for getting it typed and that as Ext P-1 is only the typed copy of the original application handed over to the Returning Officer before his signing the Result Sheet it must be found that an application for recount had been given to the Returning Officer in time under Rule 83 of the Rules. The Returning Officer, as P. W. 10, denied to have been Riven any application before 3 minutes past 8 P. M. when Ext. P-1 was given to him. P. W. 3 has sworn to have delivered to the Returning Officer a handwritten petition for recount of which Ext. P-1 is a typed fair copy; and counsel for petitioner urged me to act on his testimony. I proceed, therefore, to analyse the testimony of P. W. 3 to see if it proves an application in time. It reads:
(Translation of Malyalam script)
"( ....... The counting of votes In the assembly constituency was over by 4 p.m. on 21-2-1967. When it was quarter to 5 the Returning Officer announced the total number of votes polled by each candidate and the number of invalid votes ... I, as the petitioner's chief counting agent, gave a petition written at the spot requesting a recount of votes to the Returning Officer in person before he announced the total number of votes etc. Since there were one two scorings and corrections in that petition and since it did not look neat having been written in haste at the spot and as the result has not been declared and as the parliamentary votes were still being counted the Returning Officer told me that it would be good if the petition was got neatly typed. I got the petition (back) and sent it for typing. As there was no facility anywhere in the vicinity of the Government Training College where the votes were being counted to get the petition typed the petition had to be taken to a typewriting Institute at the Swaraj Round at Trichur Town and brought typed. As soon as it was brought I signed it and gave it to the Returning Officer. What is shown to me now is the petition I gave then. The signature seen therein is mine. Marked as Ext P-l . . . .
. . . Between declaration of result and the announcement of the number of votes there was an interval of 5 or 10 minutes. I was there itself all along. It was 20 or 25 minutes before announcement of the number of votes that I handed over the handwritten original of Ext. P-1 to the Returning Officer and it was returned. . .
When the counting of votes in each polling station was completed, were the votes polled by each candidate and the invalid votes therein announced on the blackboard? Yes (Ans.) After counting of postal ballots was completed, were the postal votes polled by each candidate and those that were invalid announced on the blackboard? Yes (Ans.). At the time (you) said the votes on all tables had been counted completely, had those polled by each candidate and those that were invalid among such votes been published? Had been (Ans.) Was It after all such publication or before that that you gave the handwritten petition? Yes, it is after that.)"
It is contended that the Returning Officer ought to have waited till the counting of Parliamentary ballot papers, which was being done in the same hall, was over (it lasted till 7.30 p.m.) and that his declaration of result of the Assembly election before 5 p.m. was too hasty and in effect it deprived the petitioner of the benefit of the Rule 68 (2) of the Rules. P. W. 3 admits that the counting of Assembly ballot papers was over by 4 p.m. As the total number of Parliamentary ballot papers and the number of counting supervisors and Assistants employed to count them are the same as in the Assembly election, it is natural to think that the time taken for counting the Parliamentary ballot papers must have been almost the same as that taken for the Assembly papers. The Returning Officer as P. W. 10 has sworn definitely to that effect;
"The counting for the Assembly constituency was over by about 4 p.m. The counting for the Parliamentary constituency was also over by the same time. The counting for the Assembly constituency and the Parliamentary constituency was over by almost the same time perhaps with the difference of a few minutes. Assembly constituency counting was finished earlier .... At the time when you received Ext. P-1 were you not continuing the counting of Parliamentary votes (Q). Yes, But we were not doing any counting at all. We are doing the test checking etc. (A). The counting assistants had completed their counting work by about 4 p.m."
Nobody has sworn otherwise in this regard. That the work in connection with the counting of the Parliamentary ballot papers went on till 7.30 p.m. is of no relevance here. The Returning Officer's evidence is that the counting of Parliamentary papers at the counting tables was over by about 4 p.m. and thereafter time was taken for his scrutiny of doubtful ballot papers and the test-checking of bundles of valid ballot papers. He has sworn that though the scrutiny of the doubtful ballot papers of the Assembly election was attended to mainly by the Assistant Returning Officer, disputed cases were placed before him for decision:
"In the case of the Assembly the Assistant Returning Officer also has taken final decision when they were not objected to by the agents and when the parties had objection, they were passed on to me for my final decision."
That must naturally have caused the scrutiny of doubtful ballot papers and test-checking of valid ballot papers of the Parliamentary election, which he has to do himself, to fall in arrears to be attended to after completion of the work concerning the Assembly election. There is nothing wrong therein. So, no complaint can legitimately be made that the Returning Officer finished his work in the Assembly election and declared the result thereof before h" finished the counting of Parliamentary papers. The question relevant can only be whether the Returning Officer has evaded the direction, in the proviso to Rule 63 (6) of the Rules, to give a reasonable opportunity for making an application for recount. (8) The Returning Officer as P. W. 10, and the successful candidate as R. W. 1 have sworn that there was an interval of half-an hour between the announcement of the poll and the declaration of the result of the election. Their testimony is this regard has not been challenged in further examination and the evidence of P. W. 3 is also substantially to the same effect as he said that by 4 p.m. the vote polled by each candidate at every polling station had been announced on the blackboard at the counting hall and that the Returning Officer made in his formal announcement of the total votes polled by each candidate at 4.45 p.m and declaration of the result of election 5 or 10 minutes thereafter. Obviously, after the counting agents had been notified of all, and therefore, in effect, of the total number of the votes polled by each candidate, more than 30 minutes' time was given for making an application for a recount under Rule 63 (2).
Ext. P-l is a one-page petition, whose typing would not have normally taken more than 10 minutes. It was given to the Returning Officer at 3 minutes past 6 p.m. P. W. 3 attributes that inordinate delay to the time taken in getting it typed. The pleas of non-availability of a typist in the vicinity of the counting place and of necessity for taking it to the Swaraj Round, Trichur, which is within two furlongs of the counting hall, do not appear to me convincing. If the original petition he drafted had scorings and corrections and therefore did not look neat, he could well have written another copy of it and given to the Returning Officer in time. As a reasonable man P. W. 3 could well have known that time was hanging heavy on all concerned after the completion of the counting and the announcement of the result thereof. No reasonable man could have expected the Returning Officer to put off the declaration of result of election too long.
P. W. 3 admits that he was near the Returning Officer all along, and that though the counting was over by 4 p. m. the Returning Officer waited till 4.45 p.m. make his formal announcement of total votes polled by each candidate and even thereafter waited 5 or 10 minutes before he made the declaration of the result of the election after signing the Result Sheet. He does not say that at any time before the declaration of the result, he requested the Returning Officer to wait for his petition for recount which was being typed for presentation. In the circumstances I find no fault on the part of the Returning Officer and no ground to hold that he had been too hasty in signing the Result Sheet and declaring the result of the election or to find that he had not given a reasonable opportunity to the petitioner or P W 3 to make an application in writing for a recount of votes. The plea that P W. 3 had handed over a handwritten petition before the signing of the Result Sheet appears, to me not convincing. That handwritten application has not been produced in the case. P. W. 8 admits that he took it back from the Returning Officer to prepare a typewritten faircopy thereof to be formally presented to the Returning Officer. As the taking back of the handwritten petition was admittedly with the idea of not presenting it again, it was not an interim or temporary act but a final act so far as that petition was concerned, and therefore it annuls its earlier delivery to the Returning Officer. No case can thereafter be advanced on the basis of the earlier presentation thus annulled. Thus, even on giving full credit to the evidence of P. W, 3 and the allegations of the petitioner, the first question in Issue No. 1 goes against the petitioner, though, as I have already held in Election Petition No. 3 of 1967, it will not be a legal bar to a motion for recount before the Election Court if the petitioner provides that the counting by the Returning Officer has been affected by miscounts to the petitioner's material prejudice. Issue No. 1 is found accordingly.
9. Issue No. 2. The allegation is that the ballot papers with two marks, one on the symbol of the 1st respondent and the other on the symbol of the 2nd respondent, have been counted as votes for the 1st respondent. It is conceded in the petition itself that no objection was raised to that by any on behalf of the 2nd respondent. The only evidence in support of this issue is the testimony of P W. 2 which runs thus:
(Translation of Malyalam script)
"(We showed the supervisors the ink in the seal on the ballot papers having made an impression also in another column on following. We requested that such papers should be rejected on the ground that there were seals in two columns. Without heading it the supervisors said that it was the vote of one person only and counted it for him,)"
Obviously this is a general statement: it does not refer to votes counted for the 1st respondent but to one and all. To the extent the statement is, it does not spell anything wrong Ballot is the seal affixed by the elector on the ballot paper indicating his choice of the candidate. An impression or a smudge in the column of any other candidate which is not the conscious act of the voter cannot be characterised as his ballot. The following instructions given by Election Commission in the Handbook for Returning Officers is instructive in this regard:
"Do not reject any ballot paper simply because--
X X X X
the original mark is patently in the column of one candidate but an Impression due to wrong folding appears in the column of another candidate; or
there is a mark in the column of one candidate, but a smudge appears against that of another candidate: ....."
It follows that the impression unconsciously caused by a folding of the ballot paper has only to be ignored and the ballot reckoned for the candidate in whose favour the voter has marked it.
Though P. W. 3 and P. W. 11 have stated that ballot papers, wherein the ink of the seal affixed on the symbol of the 2nd respondent has made an impression on the symbol of the 1st respondent, have been counted as votes for the 1st respondent, their testimony is mere hearsay from counting agents and no explanation Is given for non-citation of those informants. P. W. 3 has conceded in cross-examination:
(Translation of Malyalam Script.)
"(My statement to the Returning Officer that some such (having ink in the seals affixed oh the symbol of hut for Vareed spread on the symbol for the 1st respondent when ballot papers were folded) votes have been reckoned as votes for the 1st respondent was based on information given by counting agents. I have not seen any such ballot papers having been reckoned as valid.)"
And P. W. 11 has stated:
"Counting--(Translation of Malyalam script) (I have not gone to the counting.)
Hearsay evidence cannot carry conviction to Court -- Vide Laliteshwar Prasad Bhai v. Bateshwar Prasad, AIR 1966 SC 580 at p.
The issue has therefore to be found as been unproved.
10. Issue No. 3. No evidence has been adduced to show that any ballot paper marked for the petitioner has been counted as a vote for the 1st respondent The allegation is that it was done by the counting supervisors and assistants at the counting tables. P. W. 2, the only counting agent cited who had been at a counting table, has not spoken to that allegation. The statements of P. W, 3 and the petitioner, who admittedly had no opportunity to see the sorting and counting on any counting table, are mere hearsay and must as such be disregarded, P W. 3 has said:
(Translation of Malyalam script)
"(It was at a side of the table put for the Returning Officer that I sat. . . I was not attending matters going on on other counting tables. It was impossible for me. I have no direct knowledge of matters that took place on other counting tables. (I) have only the information told by counting agents. It was roughly after 4 p.m. that the counting agents told me this matter for the first time.)"
The petitioner said that he had not been to the counting place at all. The allegation in the election petition itself is vague and general. The issue is therefore found against the petitioner.
11. Issue No. 4. P. Ws. 1 and 4 to 9 have been examined to show that they are the real voters included in the relevant electoral roll and that they had to give tendered voter as somebody falsely personating them has voted earlier. There evidence as to their identity has not been broken by cross-examination. The identity of many of them was not even challenged; nor has any counter evidence been given by the 1st respondent. The 7 tendered votes given by P. Ws. 1, 4, 5, 6, 7, 8 and 9 have therefore to be accepted as valid votes, and the votes recorded in their names earlier have to be removed as false. There is nothing in proof to connect the 1st respondent or his agents with such false personation had at the poll.
It is not known at this state whether, those original votes were all for the 1st respondent and whether all the tendered, votes are for the petitioner. An inspection to ascertain that fact need be made only when it is shown sufficient to affect the result of the election, which cannot be unless the present difference of 148 voles in favour of the 1st respondent is reduced to 14 or less by the discovery of other miscounts. The issue is found accordingly.
12. Issue No, 5. This relates to two species of miscount: one caused by inadequacy of arrangements for counting, and the other by misplacement of bundles of votes for one candidate with those for another. No material facts in regard to either have been given in the election petition, I am afraid that the allegations have been made in too general terms. No evidence has been given to substantiate the allegations. It is argued that the allowance of one counting agent for a candidate to watch the work on one counting table where three officers were simultaneously sorting, counting and bundling the ballot papers was too inadequate for an effective check and that the benches provided for counting agents to sit were lower than the chairs given to the counting officers. Identical grounds urged in Election Petition No. 3 of 1967 have been met in paragraphs 15 to 19 of my judgment in that case and, as no new aspect not met there has been urged here the observations made therein would apply to these arguments too. I have observed there,
"That the counting agents were asked to be seated and that the bench given to them to sit was low do not appear to me material as there was no objection to their standing at their places to oversee the ballot papers. .......
Thus, even if the complaint that the allowance of one counting agent for one table, where three officers are counting, is not adequate has any force; it is well compensated by the three opportunities for check afforded to each counting agent in the process of counting. Conversely, it may be said that since three opportunities are afforded at different stages of the counting, the allowance of one agent to watch three officers working on the same table appears reasonably adequate."
Admittedly, the counting officers sat at two consecutive sides of a table and the counting agent at a third side wherefrom he could see without obstruction the work of the officers. The issue is found against the petitioner,
13. Issue No. 6. This relates to the claim of the petitioner to have a general recount of the valid papers. In support of the prayer, counsel for the petitioner has put forth six grounds:
(i) Avoidance of an application for recount by the Returning Officer;
(ii) Miscount by counting officers;
(iii) Inadequacy of supervision allowed to candidates;
(iv) Violation of Rule 60 of the Rules;
(v) Narrowness of the difference in poll; and
(vi) Counting of invalid ballot papers at valid by counting supervisors without authority.
14. In dealing with Issue No. 1, I have observed that, even according to P. W. 3, counting, accompanied by announcement on blackboard of the number of votes polled by each candidate, was over by 4 p.m. and that in spite thereof a formal announcement of the total number of votes polled by each candidate was made by 4.45 p.m. and the declaration of result of the election at 5 or 10 minutes thereafter. Admittedly by 4 p.m. when the counting was over, everybody concerned knew the total number of votes polled by each candidate, and the number of ballot papers rejected as invalid. The petitioner and his agent had more than 45 minutes therefore to make an application in writing to the Returning Officer to recount the votes. In the circumstances the complaint that the Returning Officer did not given a reasonable opportunity to make an application for recount appears to have no force.
15. As regards miscounts, the petitioner has examined P. Ws. 2 and 3 and himself as P. W. 11. As already stated the only specific act of miscount spoken to by P. W. 2 is of ballot papers with a seal in the column of one candidate and a blot thereof in the column of another candidate having been reckoned as valid votes for one candidate only and counted as such. He has not said that the counting was not in favour of the person in whose favour the voter has put the original seal, and the presumption can only be in favour of regularity of official acts
P. W. 3 who had attended only Returning Officer's table and P. W. 11 who had not been to the counting place had no opportunity to note any miscount at the counting tables where it was that the valid votes were sorted, counted and bundled. P. W. 3 could have direct knowledge of miscounts only in regard to ballot papers sorted as doubtful by the counting officers and thereafter scrutinised by the Returning Officer. There is no case that any miscount has been committed by the Returning Officer himself.
P. W. 3 has sworn to have given definite instructions to the petitioner's counting agents to communicate to him any irregularity observed in counting at their respective tables, and that in spite thereof no complaint was taken to him by any of the counting agents till the entire counting was over:
(Translation of Malyalam script)
(I had, in my capacity as the chief counting agent, given instructions to the other counting agents. I had told the other counting agents that if any complaint arose regarding counting (it) should be brought to my notice. I know Mr. Lazar (P. W. 2), the counting agent examined here earlier. I do not remember Lazar to have made any complaint to me during the counting. After counting was over complaint was made to me. From my seat some agents could be seen. I do not remember any counting agent to have made a complaint during the counting about the manner of counting.)
This admission militates largely against any miscounts having been found by the counting agents at the counting tables.
It follows that no case of miscount has been proved in the case.
16. The complaint as to inadequacy of facilities for supervision of counting afforded to candidates has been found unsubstantial in paragraph 12 above.
17. As regards the violation of Rule 60 of the Rules, no such allegation has been made in the election petition. On the other hand, the allegation therein is that the counting went on continuously from 8 a.m. to 8 p.m. without a break for taking food or for answering the calls of nature. Relying on the testimony of the Returning Officer as P. W. 10 that he had allowed breaks, three or four times, for bite and sup during the counting and that during such breaks he did not put the ballot papers back in the ballot boxes and seal them, counsel contended vehemently that a mandatory provision In Rule 60 has been violated by the Returning Officer and that it affords a good reason for a recount of the ballot papers. The Rule 60 reads thus:
"The returning officer shall, as far as practicable, proceed continuously with the counting and shall, during any intervals when the counting has to be suspended, keep the ballot papers, packets and all other papers relating to the election sealed with his own seal and the seals of such candidates or election agents as may desire to affix their seals and take sufficient precaution for their safe custody during such intervals."
Obviously it relates to a suspension of counting for an interval when the counting officers and counting agents may be away from the counting tables, necessitating the keeping of the ballot papers taken out of the ballot boxes in sealed packets and some precaution for their safe custody during the interval. A transient break for a bite and sup while the three counting officers and the several counting agents of the contesting candidates remain round the table, does not require any such security-measures to be taken. There is no case that anybody other than the authorised officers, counting agents and candidates, had been in the hall. It would be a mockery to call such a transient break in counting as a suspension of counting that requires any particular security measure. The objection that Rule 60 of the Rules has been violated appears in my view too superficial and hypertechnical to carry any conviction.
18. As regards near-parity of votes polled by the candidates, the petitioner and the 1st respondent, counsel contended that that by itself is a reasonable and a sufficient ground for ordering a recount by the election Court. In the Stepney case, (1886) 4 O.' H. & H. 34 strongly relied on by counsel, where the return was 2141 votes for the successful candidate and 2119 for the election petitioner, and the motion for recount was by the successful candidate who had recriminated in the proceedings, it was held:
"We do not accede to the argument of Mr. Gully that, by merely asking for a recount in any case, upon grounds reasonable or unreasonable, a party has the right to have the votes recounted."
It must be noted that before recount was ordered evidence was given in that case "which showed that considerable mistakes and inaccuracies had taken place at the counting of the votes" Mr. Justice Denman observed:
"We decided against the contention that the respondent was entitled to a recount as a matter of right, but offered to hear any evidence tending to show that there has been a mistake on the part of the returning officer. We heard witnesses on both sides upon the point, and were satisfied. . . . .that there were strong grounds for thinking that the return could not be strictly relied upon. We therefore determined upon directing a recount. ....."
This decision shows clearly that even if the margin of difference is narrow -- in that case it was only 22 -- good proof has to be adduced that there were mistakes at the counting which make the return, unreliable. This is far from saying that a close poll as such is a ground for ordering recount.
Inayatullah Khan v. Diwanchand Mahajan, AIR 1959 Madh Pra 58 has been cited by counsel, with a stress on decision having been by Hidayatulla C. J. (as he then was). Apart from the fact that the observation in that decision "...... .we think that regard being had to the close fight which had taken place between the two candidates a recount might well have been allowed" relates to a re- count claimed before the Returning Officer, the decision Itself had been overruled by a Constitution Bench of the Supreme Court in Jabar Singh v. Genda Lal, AIR 1964 SC 1200 Para 14:
"We ought to add that the view taken by the Madhya Pradesh High Court in the case of Inayatullah Khan, in regard to the scope of the enquiry under Section 101 (a) does not correctly represent the true legal position in that behalf."
Reliance is also placed by counsel on a Division Bench decision of this Court in C. Achutha Menon v. Election Tribunal, Trichur, 1960 Ker LT 1252=(AIR 1961 Ker 186). It was an appeal against the dismissal of a writ motion for a certiorari to quash an order for recount made by an election tribunal. The decision shows that an earlier motion made for recount had been rejected by the election tribunal and that thereafter evidence was adduced by both sides on hearing which the tribunal allowed a second motion for recount. It was to quash the latter that the writ was sought. This Court, in dismissing the appeal, observed:
"It is further well established that the writ is generally not issued where the orders asked to be vacated be on interlocutory applications before the lower tribunals. Therefore in dismissing this appeal we should not be taken as approbating all the conclusions by the Election Tribunal when it passed the order for recount. Indeed some of the conclusions would not be sustained had the exercise of our appellate powers been invoked for vacating the Tribunal's order ...... (Referring to the argument that a recount should not have been ordered at the Initial stage of the enquiry, the learned Chief Justice continued). It is therefore, clear that should grounds to the satisfaction of the Election Tribunal be made, re-count can be ordered at the initial stages. It is not disputed that the number of votes, by which the appellant has succeeded is not large, that an application for recount was made to the returning officer, which he rejected, on ground that did not appear to the Election Tribunal to be cogent, that some bundles of votes were misplaced, and that the returning officer at some time was absent. We are not now determining whether such grounds would persuade us to order a recount, for the jurisdiction now being invoked is under Article 226. We are only to determine whether such reasons are relevant. on which recount can be ordered, and It cannot be said that they are irrelevant."
This Court has not said in the about precedent that the difference in poll being narrow is a sufficient ground for recount but has said only that the 4 reasons stated by the election tribunal for its direction to recount are not irrelevant. Even so, this Court has not approved the said reasons as been sufficient for a recount, but only refused jurisdiction to interfere under Article 226 of the Constitution.
In K. Kunju Raman v. V.R. Krishna Iyer, 1960 Ker LT 1267-(AIR 1961 Ker 188) also, other reasons than mere close contest have weighed for an order for recount:
"It cannot be stated that in this case there is no evidence on record for the Tribunal for commit to the conclusion that there are good grounds to believe that the counting was not in order and that the final figures might have been affected by a likely miscount .... .
The Tribunal has also taken into account in this case the further fact that an application for recount was made by the first respondent to the Returning Officer which was rejected and which rejection does not appeal to the Election Tribunal In view of all these circumstances, in my opinion, the order for recount passed by the Tribunal cannot be said to be without jurisdiction."
Thus, none of the decisions cited by counsel for petitioner is a clear authority for the contention that a narrow difference in poll would, by itself, warrant an order for recount by an election Court
19. Counsel contended that certain ballot papers objected to as invalid by the counting agents have been counted as valid by the counting supervisors and assistants who had no authority to do so. The Act by its Section 64 allows votes to be counted "by, or under the supervision and direction of the returning officer" in the presence of the contesting candidates, their election agents and/or their counting agents. Authorisation to do an act necessarily involves authorisation to take every step preliminary thereto The authorisation to count under the supervision and direction of the Returning Officer conceded to the assistants employed by the Returning Officer would therefore involve authority to reckon particular ballot papers as valid, sort them as such and count them to the credit of a candidate; if it is held otherwise, T am afraid the entire process of counting through assistants employed by the Returning Officer would be frustrated.
The contention that counting in the context of Section 64 of the Act means only a mechanical process of enumeration and not reckoning of particular ballot papers as valid therefore does not carry conviction. If any counting agent had any objection to a particular ballot paper being counted as valid by the counting officers he ought to have taken the matter before the Returning Officer who was (and must be) present at the counting ball throughout the counting It is admitted that no such complaint had been taken to the Returning Officer by any of the counting agents of the petitioner It is pertinent to note here that in spite of a specific instruction by P. W. 3 to the other counting agents of the petitioner to communicate to him any miscount or error they observe in the process of counting none if them had made any complaint to him during the counting. The inference can only be that they had no complaint at all then. It then follows that the present allegation is an after-thought. That it is put forth as a vague and general allegation, without a concise statement of material facts tends only to corroborate that inference.
20. The contention that what may be relevant consideration for the Returning Officer on a motion under Section 63(2) of the Act must be a relevant ground for a motion for recount before the election court is also not convincing. The motion before the Returning Officer is before crystallization of the poll by the completion of the Result Sheet. At that stage a recount by way of checking the entire ballot papers would be an innocuous process. But. after matters have gone further, after the poll has crystallised, after a candidate has been returned, a recount becomes a process for annulment of an established fact which is a serious matter. It then requires proof of facts to show that the return made is prima facie incorrect and unreliable. Unless such facts are proved, the machinery of the Court cannot be availed to disturb the return made by a competent authority.
21. In the result, none of the grounds urged by counsel for petitioner to support the claim for a general inspection and recount of votes is found to be substantial. The Issue has to be found against the petitioner.
22. Issue No. 7. No material facts in regard to this allegation has been stated in the election petition and no evidence has been adduced to show prima facie that any ballot paper marked for the petitioner had been rejected. The issue therefore stands unproved.
23. Issue No. 11. No evidence has been adduced of any ballot paper having been removed from any polling station. The tall allegation made in the election petition stands without an iota of proof and has therefore to be repelled.
24. Issue No. 12. Absolutely no evidence has been adduced by the petitioner of any instance of removal of ballot paper from the counting table, much less of one marked for the petitioner. The issue is found against the petitioner.
25. Issue No. 13. No evidence has been adduced in this case of any prejudice or confusion having been caused by the simultaneous issue of two ballot papers, one for the Assembly election and the other for Parliamentary election, to the voters entering the polling booth. No voter has been cited in this regard. No provision prohibiting such simultaneous issue of two ballot papers has been cited either The identical contention raised in Election Petition No. 3 of 1967 has been repelled by me and no new aspect has been brought to bear in this case by counsel. Issue is found against the petitioner.
26. Issue No. 14. It is contended that the simultaneous issue of two ballot papers in the Kerala State, inclusive of the Ollur constituency, was discriminatory as it has not been done in any other State in India. No proof has been adduced as in the manner in which ballot papers were distributed in other States. Conceding for arguments sake that the same has been done in this Slate alone, it does not, in my view, spell an unworthy discrimination. As has been observed in my judgment in Election Petition No. 3 of 1967, a reasonable classification is an integral part of a rational doctrine of equality and the fact that the Kerala has a reputation for its high percentage of literacy and high standard of common political consciousness justifies the first introduction of the experiment in this State. It therefore affords no ground to challenge the election.
Under Section 81 of the Act, 'an election petition calling in question any election may be presented .... .by any candidate at such election' or any elector' and Section 80 prohibits an election being called in question except by an election petition presented in accordance with Section 81. 'Election' in this context means not the general election or the entirety of the elections held in the State, but one election held in one constituency, A challenge to the entirety of elections held in the State is therefore within the taboo of Section 80 of the Act. Issue No. 14 goes against the petitioner.
27. Issue No. 8. According to P. W. 3 the rejection of ballot papers in this constituency had been done by the counting supervisors and counting assistants at the counting tables, and the Returning Officer has accepted their assortment as such in spite of repeated demands by him to the Returning Officer to check them. It is asserted that only 2 or 3 bundles out of the numerous ones placed before the Returning Officer have been checked by him. The testimony of P. W. 3 runs thus:
(Translation of Malyalam Script)
(I requested the Returning Officer to open, check, decide and count several of the bundles of votes placed on the Returning Officer's table by the counting supervisors and particularly the bundles of invalid votes. The Returning Officer decided that there is no need to open and check all the invalid bundles and that in the time limit it was not possible to do so ..... On account of my insistence some sample bundles were opened and checked .... My recollection is that two or three bundles of invalid votes were checked).
The Returning Officer, examined as P. W. 10, has said that the majority of the work in rejection of invalid ballot papers had been turned by the Assistant Returning Officer and it is only when a controversy arose between the Assistant Returning Officer and the counting agents that he had looked into the matter. The Assistant Returning Officer has not been cited to explain what he did in the matter.
The 1st respondent, examined as R, W. 1, has stated,:
(Translation of Malayalam Script)
(During counting, it was as bundles of valid, invalid and doubtful votes that the counting assistants brought the votes on to the Returning Officer's table. At the counting tables it was in consultation with the counting agents that the "counting offices decided (ballot papers) to be invalid. It was the votes which were objected by counting agents that the counting officers brought to the Returning Officer as doubtful votes. Doubtful votes were checked, invalid voles were not checked either by the Returning Officer or by the Assistant Returning Officer).
Thus, the petitioner speaking through his chief counting agent (P. W. 3) and returned candidate are agreed that the Returning Officer has not scrutinised or checked all the ballot papers that the counting assistants sorted as invalid or doubtful. As has been observed in my judgment in Election Petition No, 3 of 1967 officers below the rank of a Returning Officer and Assistant Returning Officer, as the counting supervisors are, have no authority to reject any ballot paper as invalid. As the act of the counting supervisors and assistants in that regard is without jurisdiction it has to be disregarded in law. There is a complaint that their rejection was not correct. It then follows that the rejection of invalid ballot papers has to be scrutinised and checked in this case.
28. Issue No. 9. The Returning Officer, examined as P. W. 10, has conceded that ha has rejected many postal ballot papers for want of a seal of the attesting officer in the declaration form. No provision, either in the Act or in the Rules or even in the instructions given by the Election Commission, has been shown to me which requires such a seal as a necessary condition of their validity. It must then follow that if there is proper attestation by a properly authored officer the rejection of postal ballot papers for mere want of a seal by the attesting officer in the relative declaration form cannot be sustained in law. The rejected postal ballot papers also required a checking by this Court.
29. In the result, the District Election Officer, Trichur, will be called to produce in court the rejected ballot papers (inclusive of rejected postal ballot papers) of the Ollur constituency in the general election of 1967 before 30th August, 1967. He may be intimated that his presence for examination is not required and it is enough if the called papers are produced before the Court before the said date. The hearing will continue after inspection of those rejected papers.
30. In compliance with my direction in the preliminary judgment dated 24th August, the rejected ballot papers have been produced. They are in one sealed packet. It is opened after verification of seals in the pretence of counsel on either side, and the ballot papers taken out and inspected. There are 1717 of them apart from the 46 rejected postal ballot papers which are not opened as counsel for petitioner conceded their inspection to be unnecessary. None of these 1717 ballot papers has been initialled by anybody; and in many of them the around of rejection is either not indicated at all or given by an irrelevant seal as detailed below
(After inspecting the rejected ballot papers and noting details therein the judgment proceeded.)
(None of the ballot papers rejected as 'Not genuine' has any indication for suspecting it to be such)
In my opinion, the above defects and errors show clearly that the rejection of the ballot papers in this constituency was neither by the Returning Officer nor by the Assistant Returning Officer. The lack of an initial in every one of the 1717 ballot papers that have been rejected affirms that inference. The patent errors in many of the seals on the ballot papers indicating the ground of rejection appear to show that the seals were affixed on them by some irresponsible employee. The case of the parties that the rejection of ballot papers have not been by the Returning Officer and that the assortment made by the counting supervisors and assistants as invalid was accepted by the Returning Officer blindly stands proved Issue No. 8 is found accordingly.
The attention of the Election Commission is invited to these irregularities, which are. in my view of a serious nature, though they are not proved to have materially affected the result of the election in this case.
31. Issue No. 9 is found against the petitioner as not been pressed (as mentioned above)
32. Issue No. 10. Counsel for the petitioner picked out 59 ballot papers in which the mark is on the back of the ballot paper, just in the reverse of the petitioner's column; but after counting them he submitted that the question whether such ballot papers are to be counted as valid votes of the petitioner need not be decided in this case and that the packet of rejected postal ballot papers -- it contains only 46 ballot papers - need not be opened for inspection, as. even if all those ballot papers --(59 plus 48) 105 in all -- are counted for the petitioner, it will not annul the majority of 148 votes that the 1st respondent has gained over him The submission is accepted and the question is left open here and the rejected postal ballot papers are left unopened It then follows that Issue No 10 has to go against the petitioner as been unsubstantiated by him
33. Issues Nos. 15, 16 and 17 These issues relate to the reliefs to be granted in this case. On the findings recorded above, the petitioner is not entitled to any relief in this election petition. The petition falls. It is accordingly dismissed.
Under Section 119 of the Act, the returned candidate has to get his costs. It is allowed hereby, inclusive of counsel's fee Rs. 350.