ORDER
1. This is a writ petition under Articles 226 and 227 of the Constitution by one Brij Sunder Sharma (hereinafter referred to as the petitioner) whose election to the Rajasthan Legislative Assembly from the Bundi constituency was challenged by Shri Ram Dutt, respondent No. 1 (hereinafter referred to as the respondent) by an election petition, challenging an order of the Election Tribunal Kota directing a recount of the ballot papers.
2. The election was contested by five candidates and the result of the counting was as follows:
(2) The election was contested by five candidates and the result of the counting was as follows:1.Shri Brij Sunder Sharma... 88492.Shri Ram Dut... 88213.Shri Ram Chandra... 46614.Shri Ranglal... 23605.Shri Ravi Dutta... 782
3. The Returning Officer rejected 1032 ballot papers as invalid. The petitioner, who secured 28 votes more than the respondent, was declared elected. The respondent challenged the election of the petitioner inter alia on the ground that about 100 valid votes cast in his favour were improperly rejected by the Returning Officer, that a number of invalid votes were wrongly counted in favour of the petitioner, that mistakes were made in sorting the ballot papers with the result that votes cast in his favour were counted in favour of the petitioner and that in consequence the result of the election was materially affected.
It was asserted in the election petition that it was not physically possible for the petitioner or his election and counting agents to note the particulars of such ballot papers and that their full particulars will be furnished after an inspection of the ballot papers for which permission of the Tribunal will be sought. A prayer was made for general scrutiny and recount. It was alleged that most of the officers entrusted with the work of the counting were under the influence of the petitioner. It was stated that he was a Minister in the Rajasthan Government from 1952 to 1957. It was mentioned that two applications for recount (Exs. 1 and 2) were made by him to the Returning Officer but they were improperly rejected.
4. The above allegations were denied by the petitioner in his written statement. It was contended that it was not physically impossible for the respondent or his election and counting agents to note the particulars of the ballot papers improperly rejected, improperly accepted or impoperly sorted and that para 9 of the petition containing the allegations about them should be struck off for want of particulars. It was also asserted that there was no provision of law under which the respondent was entitled to make an inspection of the ballot papers. It was alleged that the respondent or his agents did not raise any objection with regard to the above matters during counting and the two applications for recount were rightly rejected by the Returning Officer.
5. The Tribunal framed the following issues on this part of the case of the respondent:
11(A). Whether the counting officers had declared about 100 ballot papers cast in favour of the petitioner as doubtful invalid votes and reserved them for final checking by the Returning Officer?
11(B). Whether the Returning Officer did not check up the aforesaid votes in spite of application by the petitioner, the certified copy of which is Ex. 1 and if so, with what effect?
11(C). Whether neither the petitioner nor any of his agents raised any objection to the rejection of any of the ballot papers at the time of counting and with what effect?
11(D). Whether in the absence of any parti-culars regarding the alleged wrongly rejected 100 ballots the allegations contained in para 9(a) of the petition cannot be enquired into and the para is liable to be struck off?
12(A). Whether the scrutiny was done by 30 officers and their assistants detailed for work with the Returning Officer?
12(B). Whether it was physically impossible for the petitioner, his election and counting agents to know and note the particulars of improperly accepted votes in favour of respondent No. 1?
12(C). Whether any votes were improperly accepted or rejected in favour of respondent No. 1 as alleged in the petition?
12(D). Whether the petitioner is entitled to inspect the ballot papers at this stage?
12(E). Whether in the absence of any particulars regarding the votes improperly accepted or rejected para 9(b) is liable to be struck off?
12(F). Whether the election has been materially affected by the alleged improper acceptance and/or rejection of votes?
13(A). Whether there has been any wrong counting of votes ?
13 (B). Whether most of the counting officers were under the influence of respondent No. 1?
13 (C). Whether after the counting was done by the Returning officer the petitioner came to know from his counting agents that votes cast in favour of the petitioner were counted as votes polled for respondent No. 1?
14. Whether the application Ex. 2 was made by the petitioner after the Returning Officer had signed the resultsheet and had made the declaration of the result of the election and granted a certifiacte to respondent No. 1 as provided in Rule 66 of the Rules and after respondent No. 1 had left the place of counting?
15. Whether in the absence of any particulars regarding the ballot papers alleged to have been wrongly counted paragraph 9 (c) of the petition is liable to be struck off?
16. Whether neither the petitioner nor any of his agents nor any other candidate nor any other person raised any objection regarding the wrqng counting of votes and what is its effect?
17. Whether the petitioner is entitled to general scrutiny and recount in the circumstances of the case?
6. The evidence of both the parties was re-corded on the above issues and after hearing them the Tribunal recorded findings on them and held that a case for recount (including scrutiny) had been made out by the respondent. Against this order the present writ petition has been filed.
7. A preliminary objection was taken on be-half of the respondent on the strength of the deci-sion of this Court in Satis Kumar v. Election Tribunal, Alwar, 1963 Raj LW 85 : (AIR 1963 Raj 157) and Manphool Singh v. Man Singh, Civil Writ Petn. No. 55 of 1962, D/- 25-3-1963 (Raj) that we should decline to go into the merits of this writ petition as it is directed against an interlocutory order of the Election Tribunal which can be challenged in an appeal against the final decision.
8. Haying heard the learned counsel for the parties we are satisfied that the preliminary objection is well founded.
9. In Veluswami Thevar v. Raja Nainar, AIR 1959 SC 422 it was observed by their Lordships of the Supreme Court:
'As the question has also been raised as to the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided the life of the Legislatures for which thai election was held would have itself very nearly come to an end thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, (S) AIR 1955 SC 610. It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under Sectioi n6-A and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption and that any error in its decision should be set right in an appeal under that section. In this view it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory order.'
10. The above decision was followed by this Court in 1963 Raj LW 85 : (AIR 1963 Raj 157) and in Civil Writ Petn. No. 55 of 1962, D/- 25-3-1963 (Raj) referred to above. In the last named case the order which was challenged was one al-lowing a recount as in the present case.
11. On behalf of the petitioner reliance was placed on the observations made by their Lordships of the Supreme Court in Venkateswaran v. R. S. Wadhwani, AIR 1961 SC 1506 that the wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution un-less (1) there is compiled lack of jurisdiction in the authority concerned to pass the impugned order or (2) where the order has been passed in violation of the principles of natural justice cannot be accepted and even beyond these two exceptions a discretion vests in the High Court to grant relief to the petitioner and it was argued that the present case is an exceptional case.
12. We are unable to accept the contention that there is any exceptional circumstance in the present case. However, as the learned counsel for the petitioner has argued out the whole case on merits, we shall deal with it on merits also in this judgment.
13. Before doing so we would like to advert to the scope of this writ petition. In Hari Vishnu Kamath v. Ahmad Ishaque, 10 Ele LR 216 : ((S) AIR 1955 SC 233) their Lordships of the Supreme Court laid down the following rules for the guidance of the High Courts in a case where prayer to issue a writ of certiorari is made:-
(1) Certiorari is only available to quash a decision for an error of law if the error appears on the face of the record.
(2) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(3) Certiorari will also be issued when the Court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(4) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the in-terior Court or tribunal, even if they be erroneous.
14. Para 9 of the election petition containing the grounds relevant to this writ petition runs as follows.-
9. (a) That respondent No. 1 has been declared elected by a margin of 28 votes only above your petitioner. That in the counting of votes, the counting officers had declared about 100 ballot papers (votes) cast in favour of your petitioner as doubtful invalid votes and had reserved them for the final checking by the Returning Officer, but the Returning Officer did not check up the same in spite of application given on the spot by your petitioner to the Returning Officer to that effect. A certified copy of the application of your petitioner dated 26-2-62 and the order of the Returning Officer on the same is enclosed and marked as Ex. 1.
(b) That apart from this the scrutiny was done by 30 officers and their assistants detailed for work to the Returning Officer and the count-ing of votes was done by them, and it was physi-cally impossible for your petitioner, his election and counting agents to know and note the parti-culars of improperly rejected votes cast in favour of the petitioner and improperly accepted votes in favour of the respondent No. 1. The particulars of these improperly rejected and accepted votes can be submitted after inspection for leave to do, which your petitioner has reason to believe that if the improperly accepted votes are taken out, the respondent No. 1 will be found to have polled less votes as compared to your petitioner and similarly if the improperly rejected votes are added to the votes polled by the petitioner, your petitioner would be found to have polled more votes than respondent No. 1. Your petitioner submits that the result of the election has been materially affected by the improper acceptance and rejection of votes.
(c) That apart from improper acceptance and rejection of votes by the Returning Officer your petitioner has reason to believe that there has been wrong counting of votes. Most of the counting officers were under the influence of respondent No. 1. After the counting was done by these officers, your petitioner came to know from his counting agents that valid votes cast in favour of the petitioner were counted as votes polled for the respondent No. 1. Your petitioner on hearing this report, made an application on spot to the Returning Officer praying for recounting of votes but this request was turned down by him. A certified copy of the application of your petitioner and orders of the Returning Officer dated 26-2-62 is enclosed and marked as Ex. II.'
The drafting of the above paragraph is some-what defective and an attempt was made on behalf of the petitioner to misconstrue sub-para (a). But in our opinion there could have been no misapprehension in the mind of the petitioner as to what were the allegations of the respondent. Counting of ballot papers was done at 15 tables. At each table there was a supervisor and two counting assistants. They sorted out the ballot papers and kept them in six separate piles. The ballot papers which were yalidly marked for a particular candidate in the opinion of the supervisor and counting assistants were kept in the pile of that particular candidate. The ballot papers which were either invalid or of doubtful validity in their opinion were kept in another pile. These doubtful invalid votes were reserved for the decision of the Returning Officer who scrutinised them. He accepted some of these ballot papers but rejected 1032 out of them. The allegation made in para 9 (a) of the election petition obviously is that out of 1032 ballot papers rejected by the Returning Officer about 100 were such as were validly marked in favour of the respondent. According to the latter they were improperly rejected by the Returning Officer. Further although the allegation that the counting officers were under the influence of the petitioner is made in para 9 (c) it is equally applicable to paras 9 (a) and (b).
15. The first objection of the petitioner is that it was possible for the respondent and his agents to note down the numbers of the ballot papers and the names of the polling stations to which they related at the time of counting and to have given them in the election petition and that the finding of the Tribunal to the contrary is based on conjectures. We are unable to agree with this contention. As we have already pointed cut above the counting was done at 15 tables and the scrutiny of doubtful invalid votes was made by the Returning Officer at the 16th table. One counting agent of the respondent was seated near the table of the Returning Officer. The petitioner himself and his election agent were taking a round of all the tables. Only the remaining five counting agents of the respondent were thus available to watch the counting at 15 tabels. Under the instructions issued by the Election Commission the respondent was entitled to have six counting agents inside the room where counting was done. At these 15 tables between the hours of 8 a. m. and 4 p. m. 26,505 assembly ballot papers and almost an equal number of parliamentary ballot papers, that is more than fifty three thousand in all, were sorted in separate piles after scrutinising them. The counting agents were not allowed to move about from their seats.
Further these seats are placed behind the of supervisors as shown in the sketch plan at page 55 of the Hand-Book for Returning Officers (Ex. A-5) so that between the chair of the counting agent and the table at which counting is done there is the chair of the supervisor. In these circumstances it cannot be said that the finding of the Tribunal that it was difficult for the petitioner or his agents to note down the numbers of ballot papers and the names of the polling stations to which they related, all improperly rejected, improperly accepted and wrongly sorted out ballot papers can be regarded either as an unreasonable finding or as one based on conjectures and surmises. It is one thing to be able to see that stray ballot papers were wrongly sorted or improperly accepted or improperly rejected and quite another thing to note down the numbers and names of polling stations of all such ballot papers.
We may mention here that although the Tribunal has used the expression 'impossible to note the particulars' what it meant was that it was reasonably impracticable or 'difficult' to do so. That is all that the respondent was required to prove in this connection in our opinion. We may here refer to the following observations made by their Lordships of the Supreme Court in Bhim Sen v. Gopali, 22 Ele LR 288 at p. 296: -
'In this connection it must be borne in mind that particulars in regard to the allegation of this kind could be more definitely supplied only after the ballot box is opened and not till then. Rule 138 provides for the production and inspection of election papers. Until the said papers are produced and inspected as provided by the said rule it would be difficult, if not impossible, for any party to allege affirmatively how many void votes had been counted in favour of the candidate declared to be duly elected. Considerations which apply to the allegations of misconduct specified in Section 83(i)(b) would not be relevant in the case of the present allegations and so reading the original petition itself we are satisfied that the material allegations had been made with sufficient clarity by the appellant.'
The facts of the above case were diffierent in-asmuch as there some electors had cast their votes more than once for the same candidate in a plural member constituency but the above observa-tions are in our opinion applicable to all cases where the Tribunal finds that it is difficult for the election petitioner to give full particulars of the ballot papers improperly rejected improperly accepted or wrongly sorted out without inspecting the ballot papers.
We would like to lay emphasis on the distinction drawn by their Lordships between particulars required to be given in case of a corrupt practice and those required in case of other grounds. In case of corrupt practice Section 83(1)(b) requires full particulars to be given including date and place of commission of each such practice. The trial of an election petition based on the ground of corrupt practice is quasi-criminal in nature. But the trial of an election petition based on other grounds is like the trial of an original civil suit and all that is required under Section 83(i)(a) is that the election petition shall contain a concise statement of the material facts on which the election petition relies.
The material facts in a case where the election petition is based on the ground contained in Section 100(1)(d)(iii) of the Representation of the People Act are the particulars of ballot papers improperly received, refused or rejected. It is not necessary to give in such a petition particulars of any partiality, which is alleged to have been shown by the officers entrusted with the counting of votes, to the returned candidate.
We may here point out that failure to give full particulars of a ground is not a defect of jurisdiction but is only a procedural defect, as held by their Lordships of the Supreme Court in Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770 and the ground itself cannot be struck off by the Tribunal on account of such failure. In this connection we may refer to the decision of this Court in Krishna Kumar v. Krishna Gopal, Civil Misc. Appeal No. 5 of 1963, D/- 7-5-1963 : (AIR 1964 Raj 21).
16. It was also argued that the allegations contained in para 9 of the petition are vagus. We do not agree with this contention either. Positive averments have been made in this paragraph that about 100 ballot papers marked in favour of the respondent were improperly rejected by the Returning Officer, that some inyalid ballot papers were counted for the petitioner and that some ballot papers marked for the respondent were counted for the petitioner. In this connection we may again refer to the decision of their Lordships of the Supreme Court in 22 Ele LR 288 (SC). The following allegations were made in petition in that case:-
(1) The result of the election has been materially affected inter alia because respondents Nos. 1 and 2 received votes which were void and because the provisions of the Representation of the People Act, 1951 and the rules and orders made thereunder were not complied with (para 8).
(2) The Returning Officer himself did not discharge the duty of rejecting the ballot papers and being a double member constituency it was incumbent upon him to go into each case of double voting in order to reject one of the two votes cast in contravention of Section 63(i) of the Act (Para 10-A).
The appellant believed that respondents Nos. 1 and 2 received many void votes (para 10-B). Their Lordships observed as follows :-
'It is quite clear from those allegations that the appellant had specifically averred that the failure of the returning officer to discharge his duty under Section 63 of the Act had inevitably resulted in the fact that double votes had been obtained by respondent 1. Paragraph 8 as well as paragraph 10-B positively stated that void votes had been received by respondent 1. It is in the light of these positive averments that paragraph 10-B must be construed. Thus construed, the averment in the said paragraph also indicates that according to the plea of the appellant, respondent 1 could get void votes because of the failure of the returning officer to discharge his duty. In the context 'could receive' really meant 'did receive' and not 'might have received'.
It will thus be seen that the respondent in the present case made positive averments in para 9 of the election petition. According to the finding of the Tribunal it was difficult for him to give better particulars without inspecting the ballot papers. The averments made in para 9 of the petition cannot thus be regarded as vague. They fulful the requirements of law in the circumstances of the present case.
17. Next we come to the allegation made by petitioner that the finding of the Tribunal that 3 or 4 ballot papers are missing is not supported by any evidence on record. We find that this finding is supported by ballot paper accounts Ext. A1/12, A1/24, A1/60 and A1/68. Ex. A1/12 shows that 454 ballot papers were issued to the voters whereas only 452 were found in the ballot box. There was thus a shortage of 2 ballot papers. Similarly ballot paper accounts Exs. A1/24, A1/60 and A1/68 show that there was shortage of one ballot paper at each of these polling stations. Thus 5 ballot papers which were issued to the voters were not found in the ballot boxes. Now it may be that a voter to whom a ballot paper is issued may not put it in the ballot box but may walk out of the polling station with it. In that case also there will be a shortage in the ballot papers found in the ballot boxes as compared to the number issued. But the shortage may also be due to miscount. We think that it is very rarely that a voter who takes a ballot paper does not put it in the box. There are thus greater chances of the shortage being due to a miscount. This is therefore a circumstance which may well be taken into consideration in arriving at a prima facie finding on the question as to whether there are good grounds for believing that there may have been a miscount.
18. It was not disputed before us that a recount cannot be demanded as of right but that it can be ordered only if the election petitioner makes out a prima facie case that if the ballot papers had been properly scrutinised and counted he would have got a majority of votes.
Under Section 92(a) of the Representation of the People Act read with Rule 93 (1) of the Conduct of Election Rules, 1961 the Tribunal has power to allow an inspection of the ballot papers in its discretion. We are of the opinion that the Tribunal should allow such an inspection only on being satisfied that a prima facie case has been made out that if the ballot papers had been properly scrutinised and counted the party applying for inspection would have got a majority of votes.
19. On behalf of the petitioner an attempt was made to draw a distinction between counting of votes and their scrutiny. We are of the opinion that both under the Representation of the People Act 1951 and under the Conduct of Election Rules 1961 the expression 'counting of votes' has been used in a comprehensive sense and includes the sorting and scrutiny of ballot papers in addition to the physical act of counting. The heading of Chapter V of part V of the Representation of the People Act 1951 and of part V of the Conduct of Election Rules 1961 which deal with all these three processes is 'Counting of votes'. Only such ballot papers are to be counted as are not rejected. It follows that by the expression 'recount of votes' as used in Rule 63 of the Conduct of Election Rules 1961 is meant not only the physical act of recounting but includes resorting and re-scrutiny. If a ballot paper marked for a candidate A is kept in the bundle of candidate B then this mistake is also to be rectified during the process of recounting as envisaged in Rule 63. Further the recount involves re-scrutiny of all the ballot papers including those which are rejected by the Returning Officer and those which are counted as valid votes.
20. It is not disputed that application Ex. 1 was filed by the respondent before the Returning Officer at the proper stage prescribed under Rule 63. It contained a limited prayer for the recount of the rejected ballot papers only. It was based on the ground that they had been wrongly rejected. This application was rejected by the Returning Officer on the ground that there was no provision in law for reviewing his decision. This application was erroneously rejected by the Returning Officer in the opinion of the Tribunal. We agree with this finding. The Returning Officer had the power to review his decision rejecting a ballot paper if on looking at it again he finds that he had made an apparent error in rejecting it. The Returning Officer admitted that the petitioner had objected to a recount on this application on the ground given by him in his order. In other words this application of the respondent was wrongly rejected by the Returning Officer at the instance of the petitioner.
21. With regard to the second application Ex, 2 the allegation of the respondent was that he made it after the rejection of his first application) on the ground mentioned above before the declaration of the final result. This allegation was supported by the evidence of the respondent and of his election agent Shri Bhagwan Sahai P. W. 2. The Tribunal framed an issue on this question. No direct finding was recorded by the Tribunal on it. The Tribunal however found that the Returning Officer acted with haste in declaring the result and that in the circumstances of the case he should have allowed a recount. What the Tribunal obviously meant was that the Returning Officer acted with undue haste. This finding is supported by the evidence on record. Bal Mukand D. W. 6 who was a counting supervisor and was examined on behalf of the petitioner before the Tribunal admitted in cross-examination that as soon as the first application for recount was rejected by the Returning Officer, the writing of the second application was commenced but the Returning Officer did not wait for its completion and declared the result before it could be submitted to him.
In this connection we would like to refer to the following instruction at page 60 contained in the Hand-Book for Returning Officer (Ex. A-5)--
'You should, however, ensure that on the completion of counting, but before you sign the result sheet, the candidates and the election agents present are given a reasonable opportunity to exercise their right to ask for a recount.'
The above instruction was violated by the Returning Officer, in this case. It is open to a candidate to make successive applications for a recount after the rejection of his first application for a limited recount. The respondent had a right to make a second application. The Returning Officer could not have been unaware of the fact that the respondent was getting a second application for recount written and he was duty bound to enable him to complete it and present it. Despite this he declared the result with undue haste.
If he had allowed the recount which was demanded and which the law contemplates when there is such a close fight between two candidates in a heavy poll he would not be facing the allegation of partiality.
22. Evidence was given by the respondent and his witnesses to the effect that some of his ballot papers were wrongly rejected by the Returning Officer, some ballot papers marked for him were wrongly placed in the bundle of the petitioner and some invalid ballot papers marked for the petitioner were wrongly accepted as valid. It was alleged by these witnesses that the Returning Officer and three supervisors all of whom are Government servants did not act impartially in the discharge of their duties in connection with counting of votes at this election and did not heed to the complaints made to them by the respondent and his agents about the above matters. One of these supervisors was granted a loan of Rs. 10,000/- for purchasing a tractor by Government, a loan of Rs. 4,000/- for cultivating sugar cane by a panchayat Samiti and a non-returnable subsidy of Rs. 1400/-for the same purpose. He was posted repeatedly to his home district. He admitted that he is a friend of the petitioner. Another of these supervisors had received an order transferring him to another station but in spite of the fact that his relieving officer had arrived to take charge his transfer was cancelled. The Tribunal found that in his statement before it he suppressed the truth and had no hesitation in making false statements. The third of these supervisors also received orders for his transfer in November, 1961, to Dholpur and the officer who was to replace him also arrived from Balotra to take charge. But in spite if this his Transfer was cancelled. The suggestion on behalf of the respondent was that the above favours were granted to these three officers by the efforts of the petitioner.
The Tribunal has referred to the above facts in its order and has also referred to the evidence of the respondent and his witnesses on the above points. It has also discussed the evidence of the petitioner and his witnesses who were examined in rebuttal. It ultimately came to the conclusion that a case for recount had been made out. It was argued on behalf of the petitioner that the Tribunal should have recorded categorical findings on the questions as to whether it believed the evidence of the respondent and his witnesses and if so to what extent. We are unable to agree with this criticism. A reading of the entire order as a whole goes to show that the Tribunal has sufficiently indicated that in its opinion the evidence of the respondent and his witnesses on the points referred to by it in the judgment was worthy oft serious consideration and that at the present stage of the proceedings it is inclined to believe that part of the evidence of these witnesses to which it has referred in its order. That is all that the Tribunal was required to do at this stage in our opinion. It should not be forgotten that only prima facie findings can be recorded by the Tribunal without examining the best evidence on the point namely the ballot papers. Categorical findings on the material issue framed in this case can only be given on an inspection of the ballot papers.
It will thus be seen that the prima facie find-ings of the Tribunal are not based on conjectures or surmises but are based on positive evidence.
23. The Tribunal also drew an inference from the fact that the majority of postal ballots were cast in favour of the petitioner; it was that Government servants in general were favourably dispos-ed towards the petitioner. This inference is undoubtedly unwarranted. In an election on party lines voters are more influenced by the party label of a candidate than by his personal qualifications. Further the fact that a Government servant votes for a particular political party cannot lead to an inference that he will not discharge his official duty impartially. However on the basis of this one erroneous inference it cannot be argued that the findings of the Tribunal are based on extraneous circumstances. As we have shown above the findings of the Tribunal are based on probabilities arising from facts. In this connection we may refer to the following passage in the judgment of their Lordships of the Supreme Court in H. J. Gheesta v. Commr. of Income-tax Bombay City, AIR 1961 SC 1135:-
'We must read the order of the Tribunal as a whole to determine whether every material fact for and against the assessee has been considered fairly and with due care; whether the evidence pro and con has been considered in reaching the final conclusion; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice .......... We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by senence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law (fact?). In view of the arguments advanced before us it is perhaps necessaryto add that in considering probabilities properlyarising from the facts alleged or proved the Tribunal does not indulge in conjectures, surmises orsuspicions.'
24. To sum up, the Tribunal was fully aware of the legal proposition that recount cannot be demanded as of right but that it can be ordered only if the election petitioner makes out a prima facie case that if the ballot papers had been properly scrutinised and counted he would have got a majority of votes. It framed comprehensive issues which gave both parties an adequate opportunity of proving and disproving the existence of a prima facie case for recount. Its findings are based substantially on the evidence adduced before it and not on conjectures, surmises or extraneous considerations. These findings are:
1. That the election petitioner could not give full particulars of the ballot papers improperly re-jected, improperly accepted or wrongly counted without inspecting the ballot papers.
2. That the contest between the petitioner and the respondent was very close.
3. That an application for recount was made at the proper stage but was improperly rejected by the Returning Officer.
4. That prima facie there is ground for believ-ing that there was miscount on the part of the Returning Officer and other counting officers. On the basis of the above findings the Tribunal was perfectly justified in ordering a recount. See Lakshumanayya v. Rajam Ayyar, AIR 1930 Mad 195 and Kunju Raman v. Krishna Iyer, AIR 1961 Ker 188.
There is no error of jurisdiction or of law--apparent or otherwise in the order.
We accordingly dismiss the petition with costs in favour of the respondent. We assess counsel's fee at Rs. 250/-. Before parting with the case we would like to draw the attention of the Tribunal to the follow-sing passage occurring in Schofield's Parliamentary Elections, Third Edition, at page 536 --
'The petitioner, respondent their counsel, solicitors, and agents are at liberty to be present at the inspection which takes the form of a recount. They may make copies of ballot papers and may photograph them.
The procedure on the recount is that the ballot papers for the respondent are counted by the petitioner's counsel the petitioner and by an enumerator representing the respondent to the petition.
The petitioner's counsel may take exception to any paper and if the respondent's counsel does not agree to the exception the ballot paper is referred to the judges on the trial of the petition. The reverse procedure then takes place. The respondent's counsel then counts the petitioner's ballot papers. Again any votes not agreed are set aside for the determination of the Court.'
Recounting necessarily involves an inspection of the ballot papers by the parties.
The Tribunal has in fact not decided issue No. 12 (D). The issue is whether the election petitioner is entitled to inspect the ballot papers. Inspection cannot be refused merely because the opposite party opposes it.
Let the record of the election petition be returned to the Tribunal forthwith. The parties are directed to appear before it for a recount on 27th May, 1963. More than a year has already elapsed since the filing of the election petition and it is necessary that it may now be disposed of expeditiously.