Holding

A recount cannot be ordered unless the petitioner establishes, on evidence, that irregularities materially affected the result; here, no such evidence was adduced, so the appeal is dismissed.

Summary

In a Himachal Pradesh assembly election, Mahendra Pal (appellant) lost to Ram Dass Malanger (respondent) by three votes. The appellant claimed a discrepancy of eight votes between the total ballots recorded in Form 20‑A (35,310) and the round‑wise count (35,318) and sought a recount under Section 100(1)(d)(iii) of the Representation of People Act, 1951. The High Court, after remand from the Supreme Court, dismissed the petition, finding no evidence of illegal addition, improper reception, or wrongful rejection of votes. The Supreme Court held that the appellant failed to produce any witness testimony or documentary proof to substantiate the alleged excess ballots, and the discrepancy could be explained as a clerical or arithmetic error. Consequently, the Court affirmed the High Court’s refusal to order a recount and dismissed the appeal with costs.

Issues considered

Whether the appellant is entitled to a recount of votes under Section 100(1)(d)(iii) of the Representation of People Act, 1951 when a discrepancy of eight ballots is noted and the margin of victory is three votes.
Whether the appellant has discharged the evidentiary burden of proving improper reception, rejection, or counting of votes that materially affected the election result.

Legislation cited

Representation of People Act, 1951s. 100(1)(d)(iii), s. 16-A

Subjects

election petitionrecount of votesRepresentation of People Actballot discrepancyevidentiary burdenclerical errormargin of victory

Judgment

MAHENDRA PAL A
v.
SHRI RAM DASS MALANGER AND ORS.

MARCH I, 2002

[M.B. SHAH AND B.N. AGRAWAL, JJ.] B

Election Laws:

Representation ofPeople Act, I 95 I-Section I 00 (I) (d) (iii)-Election--
Recount of votes-Appellant defeated by a margin of 3 votes-Demand for C
recount alleging irregularities during counting-Held, since the appellant failed
to produce evidence or examine witness alleging discrepancy in counting of
votes, the demand for recounting was rightly rejected by the High Court.

Appellant and respondent 1 were the contesting candidates in an D
election. Respondent 1 was declared elected defeating the appellant by a
margin of 3 votes. The appellant filed an election petition before High Court
for declaring the election of the respondent void and declaring the appellant
as elected on the ground of various irregularities committed during the course
of counting of ballots. The High Court dismissed the election petition on the
ground that the petition lacks in material facts and did not disclose a cause E
of action warranting recount of ballots. In appeal, this Court remitted the
matter back to the High Court for deciding the election petition afresh on
merits holding that the election petition did contain an adequate statement
of material facts. The High Court, after examining the witnesses and evidence,
dismissed the election petition forming an opinion that n~ case for re-count F
of the ballot papers was made out by the appellant.
... In appeal, the appellant contended that as per Form 20-A, the total
number ofvotes found in the ballot boxes were 35, 310 whereas the statement
#
of round wise detailed result of counting disclosed that the total number of
valid and rejected votes were 35, 318; and that as there was discrepancy of8 G
votes, the recounting of ballot papers should be done since the vote margin is
only 3 votes.

Dismissing the appeal, the Court

HELD: 1.1. After remand to the High Court, the appellant has not H
169
170 SUPREME COURT REPORTS [2002] 2 S.C.R.

A examined any witness to establish that 8 ballot papers, which were found to
be in excess were unauthorisedly added by s_omeone. From the evidence, it
cannot be held that there was any irregularity or illegality in counting of votes.
The appellant has not even stated in his deposition that 8 ballot papers were
illegally inserted at the time of counting of votes. There is nothing to suggest
B that there was reception of any invalid or void votes. No foundation or
evidence is led by ~he appellal'lt that there was improper reception, refusal or
rejection of any vote nor there is any submission that any vote which was
void was taken into consideration in favour of the respondent [174-C-GJ

1.2. As the appellant had not led any evidence or laid foundation stating
C that there was improper reception of vote in favour of the respondent or
improper rejection of any vote which were in his fa\·our, and that he has not
raised any objection at the time of counting of votes on the basis of so-called
excess of 8 ballot papers, the High Court rightly refused to the recounting of
votes. The discrepancy of 8 ballot papers could be attributed to accidental
slip or clerical or arithmetical mistakes which might have been committed at
D the time of preparation of the statements. [176-F)

R. Narayanan v. S. Semmalai and Ors., r1980J.2 SCC 537; D.P. Sharma ·
v. Commissioner and Returning Officer and Ors., [1984) Supp. SCC 157; P.K.K.
Shamsudeen v. K.A.M Mappillai Mohindeen and Ors., AlR (1989) SC 640;
Satyanarain Dudhani v. Uday Kumar Singh and Ors., (1993) Supp. 2 SCC 82;
E Vadivelu v. Szmdaram and Ors., (200018 sec 355 and V.S. Achuthanandan v.
P.J Francis and Anr., (2001) 3 SCC 81, relied on.

Mahendra Pal v. Ram Dass Ma/anger and Ors .. [2000) 1 Sec 261,
referred to.

F CIVIL APPELLATE JURISDICTION C. iii Appeal No. 3993 of
2001.

From the Judgment and Order dated 4.5.2001 of the Himachal Pradesh
High Court in E.P. No. l of 1998. ,

G E.C. Agrawala, Rishi Agrawala, Mahesh Agarwal, Alok Agarwal,
Ashwini Kumar and Vivek Yadav for the Appellant.

Satya Pal Jain, and Randhir Singh Jain for the Respondents.

The Judgment of the Court was delivered by

H SHAH, J. Thie appeal under Section 1,16-A of the Representation of
1

MAHENDRA PAL v. RAM DASS MALANGER [SHAH, J.J 171

the People Act, 1951 (hereinafter referred to as "the Act") is filed against the A
final judgment and order dated 4.5.2001 passed by the High Court ofHimachal
Pradesh at Shimla in Election Petition No. I of 1998.

The election petition was filed by the appellant for setting aside the
election of respondent No. I. It is submitted that the appellant contested the
election as a candidate sponsored by the Indian National Congress while B
respondent No. I contested the election as candidate sponsored by the Bhartiya
Janta Party. Appellant secured 11,657 votes and respondent No. 1 secured
11,660 votes. Therefore, respondent No. 1 was declared elected by a margin
of three votes only. It was alleged that the said election result was vitiated
because of improper reception of invalid votes in favour of respondent No. C
I and improper rejection of valid votes in favour of appellant. It was als.o
contended that many irregularities were committed during the course of
counting which had materially affected the result ofelection insofar as the
returned candidate is concerned. It was pointed out that total number of ballot
papers which were shown to have been .distributed were 35310, but after
counting the votes, ballot papers as per Form 20-A were shown to be 35,318, D
which indicated that eight votes which had been counted in excess had been
illegally counted in favour of the returned candidate.

Firstly it is to be stated that election petition filed by the appellant was
rejected on preliminary issue namely-election petition lacks in material facts
and particulars and do not furnish a cause of action, as alleged. That order E
was challenged before this Court in Civil Appeal No. 4085of1998 and this
Court allowed the appeal by judgment and order dated 27.10.1999 (;·eported
as Mahendra Pal v. Ram Dass Ma/anger and Ors., [2000] I SCC 261, by
holding that election petition did contain an adequate statement of material
facts on which the allegations of irregularities and illegalities in counting F
were founded. The Court, therefore, directed the designated Judge to decide
the election petition afresh on merits expeditiously.

Learned counsel for the appellant relied upon the observations of this
court in said appeal [in paragraphs 30 and 31] and contended that the High
Court ought to have granted application for recount of the votes. The said G
observations read thus: .

"30. In the present case, it is not disputed, as indeed it cannot be,
that in Form 20-A, Ex. P-2, it is recorded that the total number of
votes found in the ballot boxes of 82 polling stations pertaining to
this constituency were 35,310 whereas a perusal of the statement of H
172 SUPREME COURT REPORTS [2002) 2 S.C.R..

A "roundwise detailed result of counting", certified copy whereof is Ex.
P-3, records that the total number of valid and rejected votes counted
for the purpose of declaring the result were 35,318. A difference of
8 votes had been projected in Annexure P-2 and Annexure P-3. The
margin of difference between the votes polled by the election petitioner
and the returned candidate, in the present case, was only 3 votes.
B Unless a satisfactory explanation was furnished during the trial about
the discrepancy, there would be need to inspect the ballot papers to
clarify doubts regarding the excess counting of 8 votes, allegedly in
favour of the returned candidate. This was also necessary to dispel
doubts about the allegations of irregularity in counting. Had the
>--.
c Returning Officer, instead of rejecting the application for re-count
made a test check, soon after the declaration of result, he could have
silenced the scepticism and removed all doubts but since that was not
done, the learned Designated Judge ought to have considered the
matter in its correct perspective.

D· 31. Indeed, re-count of ballot papers cannot be ordered just for
the asking but it is equally well settled that while maintenance of
secrecy 9f ballot is sacrosanct, maintenance of purity of election is
equally important."

E Undisputedly, after remand of this matter. the appellant was required to
lead necessary evidence. The appellant has not examined any witness to
establish that eight ballot papers which were found to be in excess in ballot
boxes of 82 polling stations, were unauthorisedly added by someone. No

F
such exercise was undertaken by the appellant. There was no reason for the
appellant not to examine the Returning Officer or such other officer who was
at the relevant time Counting Supervisor. In support of his case, it is true that
-
'·

the appellant has examined PWI Kamlesh Kumar Pant, Deputy Commissioner-
cum-District Election Officer. However, he has stated that he was not the
Returning Officer at the time when the elections of State Assembly were held
in February, 1998. No questions were asked to hiin whether there was any
G mistake in total number of35,3 l0 original forms 16-A or original forms 20-
A prepated by the Returning Officer. On the contrary, he has stated that two
tendered votes which were recorded were not reflected in polling booth nos.10
and 78. Similarly, one tendered vote was also not reflected in Ex.P.83. He
has also ·produced on record original consolidated statement of counting of
votes, wherein total number of votes counted (valid and rejected) were 35,318.
H He has also clarified that he was not present at the time of counting and he
MAHENDRA PAL v. RAM DASS MALANGER [SHAH, J.] 173

cannot identify the signatures of the officers on the documents which were A
produced on record. Thereafter, the appellant has not examined any other
witnesses in support of his case except examining himself.

In his deposition, appellant has stated that he was personally present at
the time of counting; there were six tables for counting of votes and all ballot
boxes pertaining to 82 polling booths were brought to the hall; after separating B
the ballot papers, counting of the total ballot boxwise was carried out and
thereafter form 16-A was prepared. It was his say that the staff deployed for
counting of votes of the Parliamentary Constituency had also crossed over to
the tables set up for counting of votes of Assembly Constituency. The other
persons who were working in the offices had also entered the counting hall C
and to that he had objected but his protest was not acceded to by the Returning
Officer. It is his say that it appeared to him that some bungling might have
taken place during such time resulting into the difference in total number of
votes by eight in order to favour respondent No. I. He has also produced on
record a copy of application for the purpose of recounting of votes given to
the Returning Officer. In cross-examination, he has admitted that he had D
appoi~ted two polling agents each in all the booths and that he had received
complaint from polling agents only in respect of three fake votes having been
cast i.e. one each at polling booth No. I 0, 76 and 78. He admits that he was
not remembering as to who were his polling agents at booth number IO. He
also admits that no written complaint was made by him to the authorities with E
regard to the fake votes having been cast at booth No. IO. Similar is the
statement for booth nos. 76 and 78. He also admitted that he has not stoled
aforesaid facts in his election petition or in the rejoinder. He pertinently
admitted that no objection was raised by him with the Returning Officer
during the course of any of the counting and the fact regarding the differences
of votes was also not mentioned by him in his application for re-counting. It F
is his say that he had come to know about the difference of votes only after
he had obtained the certified copy of the various statements and that he.
claimed re-counting only on the ground of small margin of victory of
respondent No. I. No other irregularity in the counting was pointed out by
him in such counting. Further, it is admitted by him that he has not filed any G
complaint against any member of election staff either before or after declaration
of result. Finally, he also admitted that all the votes polled were counted in
six rounds in presence of his counting agents and during the course of counting
no objection was made by him with regard to number of votes found in each
bundle either less or more. He denied the suggestion that total number of
votes polled and found in counting were 35,318 and a mistake was committed H
174 SUPREME COURT REPORTS [2002) 2 S.C.R:

A in mentioning a total as 35,310 in Ex. P.83.

As.against this, respondent has led his evidence and stated that counting
was in accordance with set procedure and no objection or complaint was
made by any of the candidates during the course of counting. There was no
dispute with regard to the correctness of the note prepared by the counting
B staff. It is his say that the appellant filed application for recounting after
about half an hour of counting and that was rejected by the Returning Officer
there and then after due consideration by a detailed order.

From the aforesaid evidence, it cannot be held that there was any
irregularity or illegality in counting of votes. The appellant has not even ;-....
C stated in his deposition that eight ballot papers were illegally inserted at the
time of. counting of votes. It is for the appellant to establish his case of
irregularities or illegalities in counting of votes. If there is·no evidence, in our
view, the High Court rightly rejected the application for recounting.

D However, learned counsel for the appellant submitted that as there was
discrepancy of eight ballot papers issued as per form 16-A and votes·polled,
it should be held that this was a fit case for recounting, partieularly' in the "
present case where difference of votes secured by the appellant and respondent
was only by three votes.

E In our view, this submission cannot be accepted. Section 100 (l)(d)(iii)
of the Representation of the People Act, I 95 I inter alia provides that in such
cases petitioner has to establish-

(a) election has been materially affected;
(b) by the improper reception, refusal or rejection of any vote or the
F reception of any vote which is void.

From the evidence on record, there is nothing even to suggest that there
was reception of any invalid or void vote. No foundation or evidence· is led
by·the appellant that there was improper reception, refusal or rejection of any
G vote nor there is any submission made by him that any vote which was void
was taken into consideration in favour of the respondent.

The law on this aspect is well settled. While dealing with similar
'Contention, this·Court in R. Narayanan v. S. Semmalai and Ors., [1980] 2
sec 537 held that election, being a technical matter, the authorities choose
H experienced persons to do the counting and took every possible care to see
MAHENDRA PAL v. RAM DASS MALANGER [SHAH,!.] 175

that the members of the staff do not commit any error. Moreover, the relief A
· · of re-counting cannot be accepted merely on the possibility of there being an
error. The Court observed, "it is well settled that such allegations must not
only be clearly made but also proved by cogent evidence." The Court also
held that the margin by which the appellant succeeded was very narrow. This
was undoubtedly an important factor to be considered but would not by itself
vitiate the counting of votes or justify re-counting by the court. Thereafter B
the Court referred to earlier decisions and held (in para-26) thus:-

"The court would be justified in ordering re-count of the ballot papers
only where:

(I) The election petition contains an adequate statement of all the C
material facts on which the allegations of irregularity or illegality
in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie
established, affording a good ground for believing that there has
been a mistake in counting; and D
(3) The court trying the petition is prima facie satisfied that the making
of such an order is imperatively necessary to decide the disp1,1te
and to do complete and effectual justice between the parties.''- '

The aforesaid law is well settled and it does not require further E
elaboration. In D.P. Sharma v. Commissioner and Returning Officer and
Ors., (1984] Supp. SCC 157 the Court dealt with the discrepancy as regards
finding of less ballot papers from the ballot boxes than what had been issued
and used by the voters as well as the discrepancy which pertains to finding
of excess ballot papers from the ballot boxes over and above those which had
been issued and used by the voters and on the facts of that case observed that F
these discrepancies are insignificant in character and could be safely attributed
to accidental slip or clerical or arithmetical mistakes that must have been
committed at the time of counting and preparation of the statements in Forms
16 and 20. The Court pertine11tly further observed that these discrepancies by
themselves do not make out a case for directing a recount of votes and that G
it is well established that in order to obtain re-count of votes a proper
foundation is required to be laid by the election petitioner indicating the
precise material on the basis of which it could be urged by him with some
substance that there has been either improper reception of invalid votes in
favour of the elected candidate or improper rejection of valid votes in favour
of the defeated candidate or wrong counting of votes in favour of the elected H
176 SUPREME COURT REPORTS [2002] 2 S.C.R.

A candidate which had in reality been cast in favour of the defeated candidate.
In P.K.K. Shamsudeen v. K.A.M Mappillai Mohindeen and Ors., AIR (1989)
SC 640 this Court in para 15 held that an order ofrecount of votes must stand
or fall on the nature of the averments made and the evidence adduced before
the order of recount is made and not from the results emanating from the
B recount of votes. In Satyanarain Dudhani v. Uday Kumar Singh and Ors.,
[1993] Supp. 2 SCC 82 this Court observed that an order of recount cannot
be granted as a matter of course and unless the High Court is satisfied on the
basis of material facts pleaded in the petition and supported by
contemporaneous evidence, recount cannot be ordered. Similarly, in Vadivelu
v. Sundaram and Ors., [2000] 8 SCC 355, this Court (in para 16) held that
C re-count of votes could be ordered very rarely and the petitioner who seeks
re-count should allege and prove that there was improper acceptance of invalid
votes or improper rejection of valid votes. If only the court is satisfied abo.ut
the truthfulness of the allegation, it can order re-count of vot~s. But if it is
proved that purity of elections has been tarnished and it has materially affected
the result of the election whereby the defeated candidate is seriously prejudiced,
D the court can resort to re-count of votes under such circumstances to do
justice between the parties. In V.S. Achuthanandan v. P.J. Francis and Anr.,
[2001] 3 SCC 81, the Court held that the election petitioner cannot be permitted
to make out a case for re-count of ballot papers on a ground for which there
is no foundation laid by him, not even a whisper, in the pleadings and which
E does not appear to have a ring of truth, even prima facie.
In view of the aforesaid discussion, as the appellant has not led any
evidence or laid foundation stating that there was improper reception of vote
in favour of the respondent or improper rejection of any vote which were in
his favour, and that he has not raised any objection at the time of counting
F . of votes on the basis of so-called excess of 8 ballot papers, the High Court
f
rightly refused to re-counting of votes. The discrepancy of 8 ballot papers
could be attributed to accidental slip or clerical or arithmetical mistakes
which might have been committed at the time of preparation of the statements
in Forms 16 and 20.

G In the result, the impugne~ order passed by the High Court does not
call for interference in this appeal. The appeal is, therefore, dismissed with
costs throughout.

B.S. Appeal dismissed.