V PERIYASAMY Vs. PERI MUTHAYYA

JUDGEMENT

(1.) THIS revision is filed under Article 227 of the Constitution of India, challenging the order of Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai, i.e., Election Tribunal under the Panchayats Act, whereby he directed a Commissioner to be appointed to recount the votes. The successful candidate in the election has filed this revision, alleging that the impugned order is perverse, and the order suffers from illegality and material irregularity. The contention of the petitioner herein is that on the basis of the averments in the Election Petition, such an order ought not to have been passed. What the election petitioner wanted was only a fishing of evidence without any material. The allegations are vague without any specific instances, merely because the Election petitioner got defeated by a narrow margin, that cannot be a ground for allowing inspection of ballot papers.

(2.) AS against the said contention, learned Senior Counsel for first respondent, who is the election petitioner, submitted that this Court shall not interfere under Article 227 of the Constitution of India, when the order does not suffer from any illegality. Even if another view is possible on the materials, that cannot be a ground for interference under Art. 227 of the Constitution of India that apart, it is contended that there was irregularity in counting has been proved beyond doubt and a prima facie case has been established by the election petitioner as to invoke the power of Court for inspection of ballot papers.

(3.) BOTH the above decisions came up for consideration in a recent decision of the Supreme Court reported in 1995 Supp (2) SCC 101 (M.R. Gopalakrishnan v. Thachady Prabhakararn). In paragraph 16, their Lordships held thus:- "After a cursory glance of the relevant provisions discussed above, it is thus abundantly clear that the rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agent are well informed of the nature of statement of material fact s in the election petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prime facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. The demand of a defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no tribunal or Court would be justified in directing the recount. After extracting the passage from Bhabhi"s case (supra), their Lordships further stated at the end of paragraph 17 (at page 114) thus:-