NARAYANAN Vs. MUHAMMED

JUDGEMENT

(1.) THE question that arises in this Original Petition is when can a recount be ordered by an election Tribunal enquiring into the validity of an election.

(2.) THE law on the point is well settled. A recount, I think. , is not a matter of right, but only on evidence of positive facts which would lead to the conclusion that the Returning Officer had committed a mistake. A good case should be made out, no doubt, only on the preponderance of probabilities and not on conclusive proof as such, before an order can be obtained for inspection and recount of ballot papers This should be so in a democratic set up as the Supreme Court points out in Chanda Singh v. Choudhary shiv Ram Varma (AIR. 1975 SC. 403 ). "a democracy runs smooth on the wheels of periodic and pure elections. THE verdict at the polls announced by the Returning officers leads to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes in made easy. THE general reaction. if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. " In Beliram Bhalaik v. Jai Behari Lal Khachi (AIR. 1975 sc. 283) the Supreme Court points out that: "although no cast-iron rule of universal application can be or has been laid down, yet from a bead roll of the decisions of this court, two broad guidelines are discernible; that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. " (emphasis added) In W. Narayanan v. S. Semmalai (AIR 1980 SC. 206) Fazal ali, J. said: "moreover, the relief of recounting cannot be accepted merely on the possibility of their being in error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence "

(3.) THE prayer for recount should be supported by averments of material facts. THE order of inspection of ballot papers cannot be had for the asking for satisfying himself about the correctness of the counting unless some doubts are thrown in by positive evidence about such correctness. As pointed out by the Supreme Court, as referred to above, the fact that the margin by which the successful candidate was declared elected is very narrow is undoubtedly an important factor to be considered but that would not by itself vitiate the counting of votes or justify re-counting by the court. But certainly the fact that there is difference of one vote is important In the circumstances what I would order is to set aside Ext. P1 and remit back the matter to the Election Tribunal for fresh disposal of this petition for recounting, after allowing the parties to adduce any further evidence in the matter.