Hari Ram versus Hira Singh & Ors.

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HARi RAM
v.
HIRA SINGH & ORS.
November 25, 1983

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[S. MURTAZA.fAZAL,ALl, 0. CHINNAPPA REDDY.
AND ~.S. VERNKATARAMIAH, JJ.)

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Election LaW-secrecy and Sacrosanc; nature and maintennes. thereof-:- c ln an election petition, whether a court, on an. interlocutory application pass an order directing the Returnin_g Offeer to prodUce the rnarked electotal ·Rolls, for ln&pection and.allow the election Petitioner 10· inspect the counterfoils-Condur{ of EleCfion RUies, 1961 1 Rule" 93 read with Section 165 pf J_he Evide1ice·Act._ .

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In. the election held for the Metropolitan ·Council -from the NareJ.a Constitucpcy, 'th• appel1ant Hari Ram secured -12,369 votes· afld· was D declared elected.' The respondent Hira Singh who secured 12,131 vofes filed an· eICction petition ·befre the Delhi High Court aking a nUmber of nllega· tion's against the aJ)pe1lailt. He preferred &D_ interlcutory application praying. for ii directirin to the Returning Officer. to J'roduce. the. marked· eiectoral rolls. for inspection and afso .for allow.ing inspection of the . cbunte_r-foi!S; The-High · .Court granted bot the pra:Yers· and hen._ce this app~a1. E

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Allowing thi;: apPeat, the Court·.

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HELD:· t.1 Befote allowing the prayers. t an interlocutQry stage, the High Court must e;a1nine whether proper foundation Was laid for inspection ··and sufficient materials placed before it alld pass an ord€r Which would result . ·in adVefsely affecting the secrecy an·d ·sacrosanct natui'e Of thC electoraf F .Process. Inspection Of ballot paper's a·nd cu1tcrfoi1s should b allowed very ·-·sparingly and only when it is 3bsolute1y essentil to determine. the' issue. In the, garb of seeking inspection, the defe8.te .can.didate should not _be allowed to inake a· roving inquiry in ·order t~- fish out materials to set aside the election.· ... · ... •· . ~~

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·. Bhabhi v. Shea· Govl~d and Ors., (1975] Supl.J SCR 202, followed, •

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1.2 The pproach of the Hlgti Couft,. in the. ins,tarit case, at the very outset was legally incorrect. It wa·s ·.under a wrong impression that it· had ample powers to ditect production of any document under Section 165 of_ the · Indian Evidence Act and over-looked the· fact that_ the Representation of . People Act was a special Act and provisions of the Evidence Act or the Code H of Civil Procedure woutd:only apply wh_ere t11ey-are not ex.eluded. [93s·nEJ ..

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2.1 A perusal pf Rule 93 of the Conduct. of. Election ·Rules; 1961 clearly shows ihat the Lca;islature intended to.make a clear distincdon between

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HARi RAM v. HIRA SINGH (Faza/ Ali, J.) 933

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one set of do"cuments and another. ·so far as tl}e ounterfoils arid .the marked . copy of the electoral rolls were cdncerned, there was a strict prohibition for opening these doCumerttsunless the cOut was fully_ satisfied. that a cost iron caSe was tntde oµt for the same; whereas documents mentiQed in clauses "(a)· and (b) of Sub Rule (2) of Rule 93 (as amended) eould be liberally allowed to be inspected. [937 D·El · · ·

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' Ram Sewak Yadav v. Huisain Ka111il .Kidwai & 01'S., [196416 SCR 238; applied.

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2.2 In the .instant case, the attempt of the respondent petitioner for. inSpecting ·"marked electoral role hy making vague allegations was nothing but to fiah out material for challenging the election of the appellant and it -clearly • ·violated the sanctity ·and secrecy-of the electo_ra1 process. (9~7 _G]

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CIVIL APPELLATE.JURISDICTION : Civil· Appeal No•.· 10062 & .10063 oi.1983. •

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Appeals by Special leave from the J udmeut a11d Order dated the 8th September & 19t.h September, 1983 of the De.lhi High Court in Election Petition No. 2/83. · ·

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F. s. Nariman,_ S. P. Pandey and· N. N. Agarwal for the · Appellant.

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S. N. MarMa and K. C. Dua for th~ Respondent,· . The Judgpient of the Court was delivered by

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FAZAL Air. J. By ~n .Order dated 15th N;vember, i983 we had allowed the appeal of the appellant and set aside the order of the High Court witho.ut making any order as to costs. this election l!ipeal arises out of' an interlocutory by order passed by the Delhi · High Court on an application given by the respondent for directing . ihe Returning Officer to produce the marked· electoral rolls for inspec· · tion. The C9urt also granted further ~rayei of the respondent for allowing .inspection of the counterfoils. The High Court granted both the prayers and ·hence this appeal. · · .

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The appeal arises out of the election held for the Metropolitan Council. from the Narela Constituency. As a. result o_f the ·poll the . . appellant Hari Ram secured 12369 votes and Hira Singh (respondent)· 12131 votes, Thus the appellant was declared elected. The respondent-petitioner had made a .number of allegations against the· appel· !ant but in .the present appeal we . are. only concerned with the interlocutory prayer made by. the respondent for inspection of niarked electoral rolls and tb,e coun\erfoi!s, · ·

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(1984) 1 s.c.R.

SUPREME COURT REPORTS

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In support of the appeal, Mr. Nariman submitted that the High Court gravely erred in allowing the prayers at the interlocutory stage without examining whether proper foundation .was laid for inspection and sufficient meterial placed before !he Court in order io allow the prayer which would result 'in adversly affecting th• secrecy and sacrosanct nature of the electoral process. In our opinion, the contention of the appellant is well founded and must prevail.

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It is now well settled by a long course of decisions of this Court.that inspection of ballot papers and . conterfoils should be • allowed very·sparingly and only when it is absolutely ·essential t~ determine the issue. This Court has further laid down that in the garb of seeking inspection the defeated candidate should not be allowed to make a roving inquiry in order to fish out' materials to set aside the election. In the case of Bhabhi v. 'Sheo Govind & Ors,(¹ ) this Court clearly observed thus:-· .

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"Thus on a close and careful consideration o( the· various authorities of this Court from time to· time it is· manifest that the following conditions are imperaiive · before a Court can grant inspection, orcfor·that matter sample inspection, of the ballot papers : (!) That it^'is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations: (2) That before inspection is allowed the allegations made against the elected• candidate must. ~ clear and · specific and. must be supported by adequate statements of material facts; · • ...• (5) That the discretion conferred on the Court should not lie exercised in such a way so as to enable tho . applicant to indulge in a roving inquiry wiili a view to fish (out) materials fo; declaring the election to be voidJ and '- I (I}ll [19751 Suppl. s.c.R . 202.

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. 935

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HARi RAM v. HJRA 'SIN OH (Faz a/ Ali, J.)

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(6) That on. the special facts of a given. case sample inspection may be ordered. to lend further ·assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for. a •recount, and not for, the purpose of ~shing ·out .materials." ·

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After going through the judgment of the High Court and the application of the respondent-petitioner for · inspection of the · documents concerned, we are satisfied that n_o case for inspection was at all made out and the the High Court erred in allowing the prayers of the respondent and acted against the settled ·principles as extracted above.

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To begin with, the High Court seems to have been under . the impression that the Court had ample powers to 'direct production of . · any document under section 165 of the . Indian Evidence Act. In doing so with due'deference, the. High ·Court overlooked that the Representation of People Act was a special Act and provisions of the Evidence Act or the Code of .Civil . Procedure would only apply where they "are not excluded.-. Thus, at the· very outset, with dne respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kami/ Kidwai & Ors.(¹ ) this Court "'.liile interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961.framed under the Act, made the following observations:~ ·

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By rule 93 of the Conduct of Election Rules, 1961, it is provided that:

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"(l) While in the custody of the returning officer- · (a) the packets of unuaed ballot papers; (b) the packets of used ballot papers whether valid,

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• • tendered or rejected! (c) the packets of the marked copy of the .electoral roll or, as the case ·may be, the lot maintiined under. sub-section ( 1) or sub-section (2) of section 152.J and . ·

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· (I) [1964]6 S.C.R. 238; e

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SUPREME COURT REPORTS.

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j!984J l S.C.R.

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(d) the packets of the declarations by electors and · the atte~tation of their signatures;

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shal.I not· be opened and their. contents shl!II not be inspected by, or produced before, any person . or authority except under the order or a compe '. tent court or tribunal.

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·(2) All other papers relating to tli:e election shall be open to public inspection subject .to s.uch conditions .. arid to the payment of such fee, if any, as the Election Commission may direct.

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· (3) Copie_s _of the returns by the returning officer for· warded under.rule 64.or a8'the case ·may be under sub-rule (3) of rule 84 shall be furniShed by the chief ' . elector~! officer of the State concerned on payment .of a fee of two. r)Jpeesfor·each such copy.

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The rule makes a clear distinction between ballot papers and other election papers; ballot papers may .be .. inspected_ only under the order of a competent cou.rt or' . tribunal, but other documents are, subject to certain • E ~ conditions, open to public inspection."

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The Court further observed :

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"The Returning Officer i.s not a party. to an election F petition; and an order for pro<luction. of the ballot papers cannot be · made under 0.11 Code of Civil Procedure. But . the Election Tribunal is not cin 1hat . . account without authority. in respect of the. ballot papers. in a proper case_ where the mterests of justice demand it,. the Tribunal may call upon the Returning G . Officer to produee the ballot pape~s and. may permit ins,. pection by the parties before it of the ballot papers ...

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Ari order for inspection may not be granted as a • H matter of course: havfog regard to the insistence upon t.he seyrecy of ihe. baUot papers, Court would be i.ustified in granting· an order· for inspection provided two conditions are fulfilled;· . · · · •

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.HARi RAM v. HIRA SINGH (Fazal Ali, J.)

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(i) that the petition for setting;aside an election contains 1 an adequate statement of the materiel facts on which , the petitioner relies in suppporfofhis case; and

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(ii) the Tribunal is prima. facie satisfied that in order to decide the dispute and to. do complete justice between the P.arties inspection 'of the .ballot papers is necessary.·

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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 precision supported by averments of material facts."·

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A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set _<>f doGurnent, ·and .another. S~ far as the counterfoils and the. market copy of . the electoral rolls were concerned, there was a strict probibiiion for opening these documents unless the Court wa; frilly satisfied that a cast-iron case was made out for the same; whereas documents inen. tioned in. cla11ses (a) & (b) of.sub'rule 2 · of Rule 93 (as aincnded) could be liberally allowed to be inspe~ted. ·

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We are afraid that'!he High Court' has not kept these principles in view while. allowing the prayers of ·the· respondent. The main ground put forward by ·.'the respondent was. that ·there were a· number ·of dead .persons · for ·whom also voies were cast. Despite this allegation no details and particulars were given nor was .it even mentioned whether the Polling Agent of the ·respondent had ·made any note of the fact tbat votc;s were actually cast for dead ·persons and the number of these votes: The allegations made by . the respondent-petitioner in .his application for inspection are fright• fully vagne. There is no allegation as to whether any vote was cast . for the dead persons and this is what the rnspondent sought to· find . out by inspecting the marked electoral rolls. It is manifest that. this attempt of the responent was nothing ·but to. fish out ·the material for challenging the election of the app~llaut and.· it clearly ... vjolated the sanctity· and secrecy of the electoral pr_ocess. Thus, the High Conrt was clearly wrong in allowing such prayers for inspection. As· far a:s the inspection of co.unterfoi!s, was concerned, even ihe .rewondent did not press for the same realising t'hat he had not. :· lllade . ~ut any strong case for such a1{action . . - - . .

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SUPREME. COURT REPORTS (1984] I s.c.R.

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A For tbe reasons ' - given '. above, we, therefore, . . allow the appeal and set aside the order of the High Court dated l?th September, 1983 and reject the. prayers for inspection. of marked rolls and counterfoils. There will be no order as to costs.

S.R.

Ap~a/ allowed

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