S BALDEV SINGH Vs. TEJA SINGH SWATANTAR DEAD

JUDGEMENT

(1.) The dual prayers in the election petition, by the worsted appellant, related to (a) invalidation of the 1st respondent's election and (b) the further submission that instead, the petitioner / appellant be declared successful from the 12-Sangrur Parliamentary constituency. The petition was dismissed by the High Court and the appellant has repeated both his reliefs in this civil appeal. However, by the time the appeal came up for hearing, the 1st respondent, the returned candidate, passed away, but Shri Agarwala, Advocate, has sought to appear for an elector from the constituency, on the score that the whole constituency is, in a sense, before the Court and anyone from the constituency is entitled to oppose the election petition and also the election appeal. There is no doubt that the democratic order sustains itself on the rectitude at the polls and disputes affecting elections are not like private litigation but of public concern. Viewed thus, the question raised is not free from doubt and indeed it may be appropriate for Parliament to consider whether a provision analogous to Section 116 of the representation of the People Act, 1951 (hereinafter celled the Act, for short) enabling the constituency to be alerted and to intervene even at the appellate level, should not be explicitly provided for, as at the trial stage. Be that as it may, we do not think it necessary to do anything more than hear Shri Agarwala more as amicus curiae than by any right inhering in an elector to intervene in the appeal. The decisions brought to our notice do not clothe an officious elector with a right to be impleaded in appeal pro bono publico, absent express words to that effect. At the close of the appellant's submissions we did not feel the need to hear Shri Agarwala, since nothing in the persuasive arguments of Shri Hardev Singh induced us to alter the finding of the High Court on the sole and central issue of a right to recount.

(2.) The law regarding recount is, by now, well settled although defeated par ties are not disenchanted from challenging the validity of the count through election petitions and persistent appeals. On the other hand, election petitions make averments manipulated to meet the requirements each new decision insists ran. Even so, the facts of this case - not the merits of the claim - prompt us to make a pertinent observation. When the primary grievance of a party is error or other vitiating circumstances in the count and some ground not 'frivolous or unreasonable' exists, many candidates trek into the High Court complaining of ignored demands for a fresh counting, despite the existing guidelines in this behalf. The circumstances present here constrain us to make some concrete observations on the subject at a later stage in the hope that election authorities will respond sensitively on demand and reduce, by ready recount, the avoidable feeling of injustice of rebuffed rivals in a close contest. The volume of election litigation may well shrink given more creative imagination and liberal approach in the exercise of powers under Rule 63 of the Conduct of Elections Rules, 1961, instead of being rigid, resistant and indifferent. A stitch in time saves nine. FACTS

(3.) A plurality of five candidates ran for the 12 Sangrur Parliamentary seat in Punjab in the General Elections held in March 1971. (Sad that we are in 1975, interlocutory litigative episodes having spun to such length despite only a simple issue of recount being involved in the whole case):The only two contestants who hotly and hopefully battled for success were the petitioner-appellant, the candidate of the Akali Dal and respondent No. 1, the nominee of the Communist Party of India. The total votes polled were of the order of 3,44,073 of which 7,663 ballots were invalidated. The tiny margin of 210 votes, by which respondent No. 1 was declared successful, apparently appetised the appellant into attacking the methodology, arithmetic and impartiality of the count and, indeed, the High Court went half-way with him on this score, as we will presently discuss. Even at the time the counting was completed on 12-3-1971 the petitioner presented an application to the Returning officer demanding; a recount. On some minor technical ground the application was held premature, the formalities of completing Form 20 not having been gone through. However, soon after the announcement of the votes polled by each candidate under sub-rule (1) of Rule 63 of the rules, the petitioner made a second, timely, application for recount under sub-rule (2) of that rule. The Returning Officer, however, rejected this application also although here were set out several grounds, some of which are tile same as those urged in the election petition itself. The petitioner, however, moved the Election Commission for a recount under sub-rule (1) of Rule 93. The Commission having been satisfied that the inspection, as prayed for by the appellant, is necessary to further the ends of justice without, at the same time, violating the secrecy of the ballot directed the District Election Officer of Sangrur District to open the sealed box of votes polled in favour of the candidates in respect of 86-Dhuri Assembly Constituency, a segment of 12-Sangrur Parliamentary constituency, and the packets containing the rejected votes of the Sangrur Parliamentary Constituency and permit the appellant to inspect them. However, this operation was not gone through since the High Court, when moved by writ petition, stayed the order of the Commission, and, thereafter, a regular election petition was filed where the whole focus was turned on the issue of recount. The various grounds warranting a recount put forward by the petitioner were duly denied by the 1st respondent. The limited recount of one of the segments of the Parliamentary Constituency, namely, Sherpur was allowed by the High Court and affirmed by a consent order by this court, amplifying the recount to cover the votes of both the contestants. This revealed some errors but did not produce the desired result of tilting the scales and the petitioner pressed fur a wholesale recount alleging serious infirmities which we will presently refer to.