S.S. Satheesachandran, J.@mdashPetitioner is the respondent in Election O.P. No. 19 of 2010 on the file of the Munsiff Court, Wadakancherry. Her election as the returned candidate from Ward No. 19 of West Thonnurkkara of Chelakkara Grama Panchayath is challenged under the above election petition for declaring it as void, by the respondent herein, who was the other contesting candidate from the Ward. Both the candidates obtained equal number of votes on counting and thereupon on taking of lots, the petitioner was declared elected by the returning officer. Very many votes polled in favour of the petitioner in the election petition had been treated as invalid votes and some invalid votes had been treated as valid votes polled in fevour of the petitioner/the returned candidate declared elected, is the case of the respondent/petitioner in the election petition imputing that counting of votes carried out was improper and it has vitiated and materially affected the result of the election. Petitioner in the election petition has moved Ext. P3 application for production of entire votes polled in the Ward including those which had been treated as invalid before the court. That was objected to by the returned candidate riling Ext. P4 objection. Overruling the objection, the learned Munsiff has passed Ext. P5 order directing the District Electoral Officer to produce the polled ballot papers including those declared void relating to Ward No. 19 (Thonnurkkara West) of Chelakkara Grama Panchayath in a sealed packet before the court through a duly authorised officer. Propriety, legality and correctness of that order is challenged in the original petition invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India. I heard the counsel on both sides. Admittedly, no evidence was recorded in the election petition before the learned Munsiff passed Ext P5 order on the basis of Ext. P3 application moved by the applicant therein, the defeated candidate. Whatever be the ground set forth imputing impropriety and illegality in the counting of the votes polled in the election to canvass the reliefs set out in the election petition, the question emerges for consideration whether the learned Munsiff was justified in passing Ext. P5 order directing for production of ballot papers. No doubt, the learned Munsiff has not taken note of and in fact ignored the sanctity and secrecy attached to ballots, which cannot be trilled with unless sufficient grounds for inspection has been made out not only with sufficient pleading but also substantial evidence in support thereof justifying an order of the court to do so. The Apex Court in
The salutary principle laid down in the election law is that, since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out.
When can the court order for scrutiny of ballot papers on re-counting has also been pointed out by the Apex Court stating explicitly that to do so, two basic requirements are to be satisfied, namely:
(i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and
(ii) On the basis of the evidence adduced in support of the allegations, the Tribunal must beprima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary.
The court has only ordered for production but not inspection is not a ground to hold that such order cannot be termed as improper. The court cannot, as a matter of course, without substantial ground being established, even direct for production of the ballot papers before court. Looking into the affidavit sworn to in support of Ext. P3 application for production of the ballot papers, no reason other man that the petitioner has impeached the counting of his votes as vitiated in his election petition has been stated for production of the ballot papers before the court, which was so ordered vide Ext. P5 order by the learned Munsiff. This Court in Indulekha v. Prethakumari and others, 2010 (2) ILR 468 has also pointed out that an order of re-counting on production and inspection of the ballot papers can be resorted to only where a clear case for such case is made out by evidence in support of material allegations specifically pleaded in the election petition impeaching the counting carried out as the court or none of the parties cannot trifle with secrecy of the ballot papers which is sacrosanct and cannot be exposed to deleterious prying. Ext. P5 order passed by the learned Munsiff cannot be sustained and is liable to be set aside, and I do so. However, I make it clear that in case after recording of the evidence in the election petition on the materials placed if the learned Munsiff is satisfied that a case has been made out for re-counting, it is open to him to pass appropriate orders thereof. Setting aside Ext. P5 order, the court below is directed to pass appropriate orders in accordance with law. Subject to the above direction, the original petition is disposed of.
