@JUDGMENTTAG-ORDER
1. This order of mine will dispose of Civil Miscellaneous Nos. 4-E and 35-E of 1992 and also the interim order --Election Petition-No. 4 of 1992.
2. Skeletal facts necessary to dispose of the aforesaid civil miscellaneous applications and interim order election petition are : --
In the election to ''43 Rohat'' Constituency of Haryana Vidhan Sabha, 19796 valid voles were polled in favour of the petitioner while 19834 valid votes were polled in favour of respondent No. 1-the returned candidate. 14062 valid votes were polled in favour of other Respondent i.e. other candidates. Respondent No. 1-the returned candidate was declared elected by a margin of 38 votes. Application for recount by the petitioner was declined by Returning Officer inter alia on the ground that it was made after declaration of the result.
3. The election of the returned candidate was challenged through an election petition on various grounds including the grounds of improper reception of invalid votes in favour of the returned candidate improper rejection of valid votes of the petitioner as well as counting of the votes of the petitioner as those of the respondents. A recount of votes was sought with a prayer that on recount, the petitioner having received majority of valid votes, be declared elected.
4. The respondent No. 1-the returned candidate raised preliminary objection with respect to non-disclosure of any cause of action in the petition as well as the petition being vague. The returned candidate preferred an application wherein he claimed a recounting of votes almost on the same grounds and the pattern as the petitioner had. During the course of arguments on preliminary objections with respect to non-disclosure of cause of action and the numbered paragraphs being liable to be struck off being vague, the petitioner and respondent No. 1-the returned candidate entered into an agreement. It was agreed that a test check would be made in respect of booth Nos. 78, 78-A, 94 and 94-A as well as of the rejected votes of 1st round on tables Nos. 1 to 12. The petitioner has undertaken that after recount on test check, if a neglible error in counting is found i.e. to say one or two votes being wrongly rejected or wrongly counted, then the petition would be deemed to have been dismissed. However, if substantial number of votes are found to have been accepted or rejected, a recount of the entire Rohat Assembly Constituency would be ordered. It was further agreed that votes of the petitioner as well as the respondents would be recounted and the election petition as well as the recrimination petition would be disposed of in terms of the result of recounting,
5. It would be expedient to reproduce the statements made by the parties in this regard, which run as under: -
Statement of Mahender Singh Petitioner:--
"The test check of the counting may be made in respect of booths No. 78, 78A, 94 and 94-A as well as of the rejected votes of first round on tables No. 1 to 12. The petitioner undertakes that either no error or a negligible error (i.e. one or two votes are found to have been wrongly rejected or wrongly counted) is made out after the lest check then my petition may be dismissed. However, if substantial number of votes are found to have been wrongly accepted or rejected recount of the entire constituency be ordered including votes of the respondent. Neither I will raise any objection nor have any objection in the counting of the votes of the respondent either at the time of test check or in the eventuality of the recounting being ordered. The votes of the petitioner as well as of the respondent may be counted at the time of recounting if recounting is ordered in view of my earlier statement, I would raise no objection with respect to recounting of the votes of the respondent also. Recrimination petition as well as election petition be decided on recounting in terms of my statement made above. The parties will be at liberty to raise objection with respect to counting on the test check, about the validity of the votes, either way. The parties would be at liberty to raise objection with respect to validity of the votes at the time of recounting or at the time of test check. I give up all other allegations at this stage."
Statement of Mr. Hukam Singh respondent :
"I have heard the statement given by the petitioner today and accepts the same. I have no objection in the methodology stated by the petitioner to be adopted in disposing of this election petition as well as recrimination petition. I have no objection to test check in terms of the statement of the petitioenr as well as in final recount if ordered in terms of his statement."
The votes polled with respect to Booths Nos. 78, 78-A, 94, 94-A as well as the rejected votes of the first round of tables Nos. 1 to 12 were summoned through the Naib Tehsildar (Election) and a test check was carried out on 22-1-1992 in terms of the order dated 13-12-1990 in presence of the parties, their counsel and the election staff. The learned counsel for the parties were allowed to take notes of the disputed ballot papers. The factual position as pointed out at the time of recounting, as noticed by me, would be referred to in the later part of the order.
6. Learned counsel for the petitioner applied for recount and inspection of the bailot papers of the entire constituency in terms of the agreement arrived at as well as the errors found during the test check. It has been vehemently argued that compromise for recounting is a valid agreement and is binding between the parties. The learned counsel for the petitioner, in order to buttress his submission, relied upon Vogirala Nageswararao v. Vemavarapu Sitharama Krishnayya AIR 1957 AP 69, S. B. Makudam Mohommad v. T. V. Mahommad Sheik Abdul Kadir AIR 1936 Mad 856, Shri Khillan Singh v. Shri Azamat Khan, Election Petition No. 2 of 1982 decided on 11-1-1983 Khobhari Sah v. Jhaman Sah AIR 1917 Cal 327 ,
Learned counsel for the returned candidate respondent No. 1 refuted the submissions made by the learned counsel for the petitioner and urged that no recount can be allowed on the basis of the statements of the parties as well as the test check. According to him, the statement was made by the returned candidate under a wrong impression of law that test check by the Court is permissible without there being any evidence. It was contended that the petition does not disclose any cause of action. Consequently, no recount can be ordered. In the alternative, it was argued that it is only after recording of evidence led by the parties with respect to the irregularities alleged to have been committed, and in the eventualities the irregularities alleged are found to be prima facie proved and a case for recount has been made out that a test check can be ordered. The statement made by the returned candidate agreeing for a recount is against law i.e. the Representation of the People Act, 1951. Consequently, it cannot be acted upon. In order to buttress his submission, the learned counsel for the respondent relied upon
7. At this stage, it may be noticed that the Representation of People Act, 1951 (hereinafter referred to as the Act) is a complete Code. Specific provision of S. 87 of this Act, provides an election petition to be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC 1908 for trial of the suits, of course, subject to the specific provisions of this Act and the Rules made thereunder.
8. The principles which emerged from the precedents cited by the learned counsel for the petitioner i.e. from Vogirala''s case (supra), S. E. Makudam Mohommad''s case (supra) and Khobhari Sah''s case (supra) are to the effect that :--
(i) Agreement between the parties is a sufficient ground for a decision of the controversy between the parties;
(ii) Under the Oaths Act, Courts would ordinarily give effect to the compromise between the parties and should not allow either parties to resile from the agreement if . the result against them particularly when the parties had agreed to the disposal of the lis in a particular manner on ascertainment of simple facts.
(iii) A compromise between the parties works as an estoppel against contending that Court cannot base its judgment on the compromise.
(iv) Once the parties have induced the Court to adopt a particular procedure by compromise and one of the parties have dispensed with his witnesses then it is not open to the other side to try to go out upon the compromise.
Be that as it is, the main thrust of the contentions of the learned counsel for the respondent is that the agreement for recount is against law and cannot be acted upon and the question is not res integra. It ha* been categorically observed in
9. In the present case too the parties agreed for a test check with respect to the specified booths and rejected votes of table Nos. 1 to 12 in the first round. It was agreed that in the eventuality of the margin being not negligible, recount would be made of the entire constituency.
10. Almost with the similar facts, while ordering a recount on agreement of the parties in Election Petition No. 2 of 1982, this Court observed as under:--
"(i) Under the provisions of the Statute and Rules framed thereunder, a right is given to have a total recount of the votes. That is the statutory right invested, in the Court dealing with the election petitions under the provisions of the Act."
(ii) The parties have always a right to waive the objection raised by them and arrive at a decision which may not be strictly in conformity with the provisions of the statite. For example, in spite of raising legal objections by a respondent which may have a statutory support to knock out the petition, he still can concede the claim of the petitioner for getting himself unseated, He may suffer a decision and for such purpose there is no prohibition in the statute."
(iii) Moreover, the parties which are the main contestants in petition, can agree for a relief to be awarded in accordance with the decision arrived at by them by softening their stands or compromising the conflicting situations, which they had adopted. The hard postures initially adopted by the parties for contest do not really matter when they go for an agreed decision."
"(iv) It amounted to their waivering the objections which they have raised in their pleadings on which they were basing their case" against their adversaries."
"(v) No party could pick up the threads from the stage of the recounting to again reactivate the contest with all the objections, which possibly they could raise if there had not been an agreed representation."
"(vi) Although the principles of common law and equity normally cannot be utilised for decision of the election petitions, but a decision can be taken on the request of the parties, if it leads to effectuate the purpose of the Act".
"(vii) Although technicalities have their own place in the election law, but when the parties agree to steer clear those technicalities and remove the road-blicks created by them then the result, which is the agreed one can be pronounced by the Court, without any. hindrance."
"(viii) The will of the electorate is supreme and has to be given due respect."
"(ix) A fair counting does not require to be eclipsed by simple failure of a party to raise a ground in the petition to which the objections were waived at the time of presenting an agreed request to the Court."
11. I may hasten to add that decision of this Court was approved by Hon''ble the Supreme Court and it was reported in Azmat Khan''s case (supra). I am in agreement with the observations made in the judgment of this Court.
12. Purity of election is the basic concomitant for smooth functioning of the democracy. Fair and free election is the soul of democracy. The secrecy of ballot is a step in aid for holding fair and free election and it has been statutoriiy protected. At the same time purity of election cannot be sacrificed at the altar of secrecy of the ballot.
13. It is the incumbent duty of the Court trying an election petition to see that purity of election is the paramount and ultimate consideration for the entire exercise. The provisions of law are not to be observed as mere rituals but should be complied with keeping juristic principles in view. It is the bounden duty of every one i.e. the Courts, the parties concerned and the Officers discharging the functions in connection with the elections that elections are not only in fact held free and fair but it should also appear to be so in order to invoke the faith of people at large particularly the voters, the participants in the process of democracy. The persons concerned are duty bound to ensure a fair game and keep sanctity of election process by not indulging in manipulation or making an attempt to secure for themselves a seat of power under the cover of or by taking advantage of the principle of secrecy of the ballot.
14. It has been time and again observed by the Supreme Court that secrecy of ballot is important but where allegations are clear and specific and the Court is prima facie satisfied that a recount is required in order to do justice not only to the parties but the constituency at large in peculiar facts of a case, a sample recount can be ordered or even total recount can be ordered. It may be noticed that mere a narrow margin would not be sufficient to order a recount but while considering the case for a recount, taking other facts and circumstances into consideration, fact of the narrow margin cannot be lost sight of particularly in view of the chances of human error in the particular nature of the job of counting such a large number of votes by a large number of persons and frailities of, human beings as such.
15. There is again saying that one of the aim of the pleadings is to ease out the trial so as to give justice to the parties at reasonable costs. Verbal niceties cannot be resorted to in order to exonerate the respondent who prima facie has been able to get a declaration of. victory for any reasons including the human frailities. Further, the other object of pleadings is to apprise of one''s case which the other parties are required to meet and not take the other parties by a surprise.
There cannot be cast iron compartment or particular rituals to be performed. In case the petitioner states that he knew only the facts and circumstances of the case averred and the respondent understood what he is to meet, hair splitting of the pleadings cannot be permitted. Once a party either expressly or impliedly gives up its claims for better particulars or fact, he cannot be later permitted to change the stance particularly when the other party has already acted at his instance as in the present case. In view of the statement of respondent accepting the parti-cular mode for disposal of election petition have neither had any evidence nor attempted supply any better particulars though never asked for. Courts are solemn places and the parties cannot be permitted to play the game of chess or of hide and seek. Parties cannot be permitted to approbate and reprobate.
16. Courts are bound to regulate the extreme behaviour as in the garb of protecting secrecy, people would get elected by manipulation. In the later eventuality the principles of secrecy would suffer more vice than virtue. No doubt the Court will guard itself jfrom sweeping away the victory of the returned candidate by freak accident of fate when the petitioner got an opportunity by filing an election petition.
17. Factual matrix which emerged during the course of test check and noticed by me was that : -- At polling Station No. 78 one vote was wrongly accepted in favour of the petitioner though it bears double marking. The ballot paper number was noticed to be 075611. Similarly, it was pointed out that one vote was wrongly accepted because of the thumb impression at vote No. 075927, though the thumb impression was submerged, Prima facie no other error has been pointed out in counting of votes of polling station No. 78.
18. So far votes of polling station No. 94, votes Nos. 091384 and 091637 were prima facie appear to have been wrongly accepted in favour of the returned candidate in spite of the fact that it bears the thumb impressions. Further, vote No. 091421 at polling station No. 94 was found in the bundle of returned candidate. Similarly votes Nos. 91384 and 91637 polled in favour of the petitioner were rejected on the ground of carrying submerged thumb impressions which it was alleged is no ground for the rejection of the ballot papers.
19. In the rejected ballot papers of round No. 1, 9 valid votes of the petitioner were found at table No. 3. It was pointed out that one vote bearing No. 001386 was wrongly rejected on the ground of multiple marking though there is no such multiple markings on the vote.
20. At table No. 10 in the first round, five ballot papers bearing Nos. 008437, 008438, 008439, 008443 and 008453 polled in favour of the petitioner were wrongly rejected. As is clear, that the intention of the voters was to vote in favour of the petitioner and the alleged marks which appear against the name of the person are ante clock-wise of the marks, which have occurred on account of folding of the ballot papers. It has been specifically provided by the instructions that such votes cannot be rejected on the ground of double marking. No other substantial error was pointed out.
21. The net result which emerged is that if prima facie these errors are taken into consideration, the petitioner gains about 5 votes and the margin of the votes between the returned candidate and the petitioner is reduced by 2 votes.
22. The petitioner preferred civil miscellaneous 4-E of 1992 referring to the above facts duly supported by an affidavit. Respondent No. 1-the returned candidate, though admitted the inspection of the ballol papers by the Court in presence of the parties without raising any objection, denied the allegations. He further claims that six ballot papers polled in his favour were wrongly rejected because of double marking while four invalid votes of the petitioner were counted in spite of double marking. Though, he admitted that one vote of the petitioner was found in the bundle of his votes but further averred that the count was rightly mentioned in Form 20. According to him, the irregularities were in favour of the petitioner.
23. At this stage, I may hasten to add that in order to satisfy the respondent-returned candidate what was observed by the Court was correctly observed to have the test check redone to which the returned candidate after taking opportunity declined to get it done.
24. Prima facie, from the facts found as a result of the lest check, referred to above, in order to do justice to the parties, to the electorate and the process of democracy, it would be expedient and in the interest of justice as well as to maintain the purity of election and further for giving a right to the true representative of the people to whom they had chosen by casting a majority of their valid votes to represent their constituency in the Vidhan Sabha that recount is ordered. It would serve the purpose of justice for which the courts are meant for.
25. I am of the view that the agreement entered into between the parties for having a test check to trace out any irregularity is not against law. There cannot be any belter evidence than admission of the parties, which is implicit in the agreement itself to make out a prima lacie case for recounting if irregularities and illegalities were committed during counting of votes. The inspection of the ballot papers as a test check re-enforces the implicit admission. I find no force in the submission made by the learned counsel for the respondent that the law laid down in Azmat Khan''s case (supra) is not applicable to the facts and circumstances of this case as there was some evidence already on record. The respondent-returned candidate after accepting of his free will the recount after the test check, under the advice of a senior counsel available to him, cannot be stated to be in ignorance of law. It would be highly injust rather perpetuating injustice if the returned candidate is allowed to take shelter under the garb of secrecy of ballots and use this principle as a shield for perpetuating the errors in the counting. Apart from this, I am unable to comprehend how simplicitor recount violates the secrecy of ballots. Though the pleas in recrimination petition can be taken notice at this stage, yet in view of the fact that the returned candidate in terms of the agreement agreed for the disposal of his recrimination petition, the agreements made may be taken note of in order to corroborate the averments made in election petition with respect to irregularities committed in recounting.
26. So far as the principles laid down in the judgments cited by the learned counsel for the returned candidate, viz., that no recount can be ordered without evidence prima facie proving the irregularities/ illegalities, recount cannot be allowed only on the basis of pleadings alone. There cannot be an estoppel against law; preliminary objections should be decided first and the petition should disclose a case of action. I am of the considered view that in spite of these principles laid down above, in the peculiarfacts and circumstances if the case in hand, an order for recount is required to uphold the purity of election, as the petition does disclose a cause of action.
27. The returned candidate has chosen a particular mode for the disposal of the election petition as well as the recrimination petition and this matter dragged on for almost a year on one ground or the other. At this belated stage, the returned candidate cannot be permitted to take a somersault and having once given up his preliminary objections --impliedly and expressly -- and by his own act and conduct, he cannot retract when he found that the resultant effect of the test check in terms of a compromise/ agreement going against him. If he is allowed to do so, it would result in the draconian rule of law and permitting him to play the game of hide and seek with the court which is solemn place for doing justice to the parties. No game of hide and seek can be permitted in courts. The returned candidate cannot be permitted to go back from his statement or agreement unless he is able to prove that he would suffer irreparable injustice because of any wrong statement given with respect to the facts having been given and acted upon not by the petitioner alone but by the Court too.
28. I further find no force, in the submission made by the learned counsel for the returned candidate that the basic postulates of giving material facts in the election petition are missing. At the most, the ballot paper numbers can be said to be the mixed questions of material particulars and facts and is not a fact of such a nature that not providing the ballot paper numbers by itself should render the election petition as incompetent particularly in view of the facts and circumstances stated in the petition that the ballot papers numbers were not allowed to be noted down. To disallow recount when it has been fairly demonstrated by a test check that irregularities have been committed would be shutting out a right of the people to be represented by the real person duly elected on processual technicalities. The requirement of facts prima facie, necessary to satisfy the order ordinarily for recount are in my view fully satisfied particularly in view of the principle that election should not only be fair but it should demonstrably appear to be fair in order to keep faith of the people in democracy. No doubt equity in the strict sense may not be available in the election proceedings but justice cannot be stated to be absent in the election proceedings. The election proceedings are not wooden process within the iron cascats. Ordinarily when such large number of votes are counted particularly in view of large number of candidates contesting the election who are represented by still large number of counting agents in the counting halls it would be particularly impracticable on the part of either the candidate or his representative to follow each ballot paper in a scientific orderly manner keeping in view the ground realities.
29. In order to do justice between the parties and in view of the observations made above, it is imperative to order a recount of the entire constituency. Consequently, I order the recount of the entire constituency and appoint Shri D. S. Dhaliwal as the Commissioner for recounting to supervise the counting proceedings which will be held in this Court. He will be paid a sum of Rs. 3,000/-. The Chief Electoral Officer, Punjab be requested to depute five experienced persons from his staff to assist in counting of ballot papers. Each such person provided by the Chief Electoral Officer, Punjab, will be paid Rs. 1,000/- as honorarium. The records be sent for from the District Election Officer, Sonepat for 8th February, 1993. The honorarium would be subject to any further claim made by them and allowed by court.
30. Order accordingly.
