CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10062 & 10063 of 1983.
Appeals by Special leave from the Judgment and Order dated the 8th September & 19th September, 1983 of the Delhi High Court in Election Petition No. 2/83.
F. S. Nariman, S. P. Pandey and N. N. Agarwal for the Appellant.
S. N. Marhva and K. C. Dua for the Respondent.
The Judgment of the Court was delivered by
FAZAL ALI. J. By an order dated 15th November, 1983 we had allowed the appeal of the appellant and set aside the order of the High Court without making any order as to costs. This election appeal arises out of an interlocutory by order passed by the Delhi High Court on an application given by the respondent for directing the Returning Officer to produce the marked electoral rolls for inspection. The Court also granted further prayer of the respondent for allowing inspection of the counterfoils. The High Court granted both the prayers and hence this appeal.
The appeal arises out of the election held for the Metropolitan Council from the Narela Constituency. As a result of 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 appellant but in the present appeal we are only concerned with the interlocutory prayer made by the respondent for inspection of marked electoral rolls and the counterfoils.
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 material placed before the Court in order to allow the prayer which would result in adversely affecting the secrecy and sacrosanct nature of the electoral process. In our opinion, the contention of the appellant is well founded and must prevail.
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 to 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:-
"Thus on a close and careful consideration of the
various authorities of this Court from time to time it
is manifest that the following conditions are
imperative before a Court can grant inspection, or for
that matter sample inspection, of the ballot papers:
(1) 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 be clear
and specific and must be supported by adequate
statements of material facts;
(5) That the discretion conferred on the Court should
not be exercised in such a way so as to enable the
applicant to indulge in a roving inquiry with a
view to fish (out) materials for declaring the
election to be void; and
(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 fishing
out materials."
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 no case for inspection was at all made out and the High Court erred in allowing the prayers of the respondent and acted against the settled principles as extracted above.
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 due respect, the approach of the High Court was legally incorrect. Furthermore, in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors.(1) this Court while interpreting the provisions of Rule 93 of the Conduct of Election Rules, 1961 framed under the Act, made the following observations:-
By rule 93 of the Conduct of Election Rules, 1961, it
is provided that:
"(1) 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 (1) or sub-
section (2) of section 152; and
(d) the packets of the declarations by electors
and the attestation of their signatures;
shall not be opened and their contents shall
not be inspected by, or produced before, any
person or authority except under the order or
a 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
concerned 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
inspected only under the order of a competent court or
tribunal, but other documents are, subject to certain
conditions, open to public inspection." The Court further observed :
"The Returning Officer is not a party to an
election petition, and an order for production of the
ballot papers cannot be made under O.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...
An order for inspection may not be granted as a
matter of course: having regard to the insistence upon
the secrecy of the ballot papers, 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 materiel
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 between the parties inspection of the
ballot papers is necessary.
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."
A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. So far as the counterfoils and the market copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same; whereas documents mentioned in clauses (a) & (b) of sub-rule 2 of Rule 93 (as amended) could be liberally allowed to be inspected.
We are afraid that the 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 votes 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 that votes 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 frightfully vague. There is no allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counterfoils, was concerned, even the respondent did not press for the same realising that he had not made out any strong case for such an action.
For the reasons given above, we, therefore, allow the appeal and set aside the order of the High Court dated 19th September, 1983 and reject the prayers for inspection of marked rolls and counterfoils. There will be no order as to costs. S.R. Appeal allowed