Ram Sewak Yadav vs Hussain Kamil Kidwai and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 1064 of 1963

Decision Date: 17 January, 1964

Coram: J.C. Shah, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

In the matter titled Ram Sewak Yadav versus Hussain Kamil Kidwai and others, decided on 17 January 1964, the Supreme Court of India heard the petition filed by Ram Sewak Yadav against Hussain Kamil Kidwai and others. The judgment was authored by Justice J.C. Shah and the bench comprised Justices J.C. Shah, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, and N. Rajagopala Ayyangar. The citation of the decision is 1964 AIR 1249 and it appears in the 1964 Supplement to the Supreme Court Reporter at page 235. The decision has been reported in numerous subsequent law reports, including references such as RF 1966 SC 773, R 1970 SC 276, E 1972 SC 1251, RF 1973 SC 215, RF 1973 SC 2077, F 1975 SC 283, R 1975 SC 693, RF 1975 SC 2117, C 1980 SC 206, F 1984 SC 396, E&R 1989 SC 640, R 1992 SC 1163. The petition concerned an election dispute under the Representation of the People Act, 1951, specifically sections 100, 101 and 102, together with rule 93 of the Conduct of Election Rules, 1961. The respondent alleged that during the counting of votes there had been improper reception, refusal and rejection of ballots. The respondent contended that if the ballots were counted correctly, he would have obtained a majority of valid votes and therefore should be declared duly elected. To prove this contention, the respondent sought inspection of the ballot papers, arguing that the sealed boxes of ballot papers that he had tendered as evidence formed part of the record and therefore the Tribunal was bound to permit inspection. The Election Tribunal, however, observed that no material had been brought before it that would justify an order for inspection. It added that if, in the future, facts were presented showing that inspection was required in the interests of justice, the Tribunal could pass necessary orders. The respondent filed a further application for inspection without presenting any additional documents or oral evidence, and the Tribunal again rejected the request. Upon appeal, the High Court held that the ballot papers had indeed been called for from the Returning Officer and were before the Tribunal, and that no provision of the Code of Civil Procedure prevented the Tribunal from allowing inspection of the ballot papers that were in the custody of the Court. Accordingly, the High Court concluded that the Tribunal had rejected the application for inspection without providing adequate reasons. The sole issue for determination before the Supreme Court was whether the Election Tribunal erred in declining to grant an order for inspection of the ballot papers that had been produced in sealed boxes by the Returning Officer.

In the matter before the Tribunal, the Returning Officer had lodged sealed boxes containing ballot papers, and the Tribunal had received those sealed boxes for consideration. The Court held that the mere fact that the sealed boxes were produced did not cause the ballot papers inside them to become part of the official record, nor did it make them automatically subject to inspection. Inspection could be ordered only if the Tribunal was convinced that, given the particular circumstances of the case, such inspection was necessary in the interests of justice. The Court noted that the Returning Officer was not a party to the election petition and consequently an order directing the production of the ballot papers could not be issued under Order XI of the Code of Civil Procedure. Nevertheless, the Court observed that this limitation did not strip the Election Tribunal of any authority concerning the ballot papers. When the interests of justice required, the Tribunal possessed the power to call upon the Returning Officer to produce the ballot papers and to permit the parties before it to inspect those papers. This authority, the Court explained, was implicitly contained in sections 100(1)(d)(iii), 101 and 102 of the Representation of the People Act, 1951, as well as rule 93 of the Conduct of Election Rules, 1961. The power to order an inspection of the ballot papers, which was separate from the provisions of Order XI of the Code of Civil Procedure, could be exercised subject to the statutory safeguards that protected the secrecy of the ballot as laid down in sections 94 and 128(1) of the Act. The Court distinguished the present case from the earlier decision in Bhim Sen v. Gopali, 22 E.L.R. 288. The judgment proceeded to set out the civil appellate jurisdiction, noting that the appeal, numbered Civil Appeal No. 1064 of 1963, was filed by special leave against the judgment and order dated 23 July 1963 of the Allahabad High Court (Lucknow Bench) in First Civil Appeal No. 11 of 1963. Counsel for the appellant and for respondent No. 1 were mentioned. The judgment, delivered by Shah J., recounted that in the general elections held in February 1962, five candidates contested the Barabanki single‑member constituency for the House of the People. The appellant, Ram Sewak Yadav (referred to as Yadav), was found to have secured the highest number of votes at the counting and was declared elected. One of the other candidates, Hussain Kamil Kidwai (hereinafter Kidwai), filed a petition on 6 April 1962 with the Election Commission seeking a declaration that Yadav’s election was void and that Kidwai be declared duly elected. The Lucknow Election Tribunal, to which the petition was referred, dismissed the petition. Upon appeal, the Allahabad High Court reversed the Tribunal’s order and remanded the matter for retrial, directing, among other things, that the Tribunal provide a reasonable opportunity for both parties to inspect the ballot papers and related documents. With special leave, Yadav appealed against the High Court’s order. The Court listed the principal grounds advanced by Kidwai in support of his petition, which included allegations of improper reception, refusal and rejection of votes at the time of counting, among other claims.

The petitioner, Kidwai, advanced six specific allegations. First, he contended that during the counting of votes the returning officer had improperly received, refused, or rejected certain votes, and that this irregularity had materially affected the result. Second, he asserted that the total number of votes recorded in Form 16 differed from that shown in Form 20, creating a discrepancy. Third, he maintained that the returning officer had wrongly rejected some tendered votes, thereby materially influencing the election outcome. Fourth, he claimed that at polling station No 29, Majgawan in the Bhitauli Unit, and at the Kursi polling station in the Kursi Assembly Unit, the polling officers failed to hand ballot papers to voters. Fifth, he alleged that the counting of votes for the Bhitauli Assembly Unit continued until 8:30 p.m. under insufficient lighting despite a protest lodged by him. Sixth, he argued that a proper count of the votes would show that he, Kidwai, had obtained a majority of valid votes and therefore should be declared duly elected. The respondent, Yadav, repudiated each of these allegations.

At the trial before the Election Tribunal, neither party produced oral evidence. Regarding the third, fourth, and fifth allegations, the Tribunal held that the burden of proof rested on Kidwai, and because he offered no evidence to substantiate those claims, those pleas were deemed to have failed. Concerning the second allegation, the Tribunal observed that Kidwai bore the responsibility to prove discrepancies between the original and certified copies of Forms 16 and 20. Since Kidwai did not call for the original forms, the Tribunal concluded that this ground also failed. Kidwai then sought to rely on the first and sixth allegations, asserting that they could be proved through examination of the ballot papers. He requested an order authorising inspection of the ballot papers so that he could demonstrate that the returning officer had improperly received, refused, or rejected votes and that a true count would show his majority.

The Tribunal declined Kidwai’s application for inspection. It explained that ballot papers may be inspected only when such inspection is necessary in the interest of justice, and that an order for inspection must be supported by facts establishing a prima facie case that errors occurred in the reception, refusal, or rejection of votes at the time of counting. In the absence of such a prima facie case, the Tribunal considered it justified to refuse the inspection request. By contrast, the High Court found that the ballot papers had indeed been called for from the returning officer and were in the Tribunal’s possession. The High Court further held that no provision of the Code of Civil Procedure prohibited the Tribunal from permitting inspection of those papers while they were in the Court’s custody, and that the Tribunal had rejected the inspection request without giving adequate reasons. Consequently, the sole issue to be resolved on this appeal is whether the Election Tribunal erred in refusing to grant an order for inspection of the ballot papers that had, pursuant to its own directions, been lodged before it.

The Court observed that the ballot papers had been placed in sealed boxes by the Returning Officer. In order to examine whether the Election Tribunal was justified in refusing an order for inspection, the Court first turned to the substantive provisions of the Representation of the People Act, 1951, and to the rules made under that statute. Section 80 of the Act made clear that an election could be questioned only by way of an election petition that was filed in accordance with the procedures laid down in Part VI of the Act. The Court then noted the requirements specified in Section 83(1) regarding the contents of an election petition. That provision directed that an election petition must contain (a) a concise statement of the material facts upon which the petitioner relies; (b) a full description of any corrupt practice alleged, including, as far as possible, the names of the persons alleged to have committed such practice and the date and place of each alleged act; and (c) the petitioner’s signature together with verification in the manner prescribed by the Code of Civil Procedure, 1908, for the verification of pleadings. The Court added that the remainder of the section was not material to the issue under consideration.

Next, the Court referred to Section 90(1), which governs the procedure to be followed by the Tribunal in trying an election petition. That section provided that, subject to the provisions of the Act and any rules made thereunder, every election petition must be tried by the Tribunal as closely as possible to the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. The Court then explained that Section 92 enumerated the powers that a Tribunal may exercise when trying an election petition. Those powers were the same as the powers that a civil court may exercise in a suit, including powers of discovery and inspection, the authority to compel attendance of witnesses, the power to order production of documents, the ability to receive evidence taken on affidavits, and the power to issue commissions for the examination of witnesses. The Court further pointed out that rules had been framed under the Act dealing specifically with the production and inspection of election papers. In particular, Rule 93 of the Conduct of Election Rules, 1961, stipulated that while the ballot papers were in the custody of the Returning Officer, the packets of unused ballot papers, the packets of used ballot papers (whether valid, tendered or rejected), the packets of the marked copy of the electoral roll or the list maintained under the relevant subsection of Section 152, and the packets of declarations by electors together with the attestation of their signatures, could not be opened or inspected by any person or authority except by order of a competent court or tribunal. The rule further stated that all other papers relating to the election were open to public inspection, subject to any fee that the Election Commission might direct, and that copies of the returns forwarded by the Returning Officer could be obtained from the chief electoral officer of the State on payment of a prescribed fee.

The rule draws a clear line between ballot papers and other election documents, providing that ballot papers may be examined only when a competent court or tribunal orders such inspection, whereas other election papers, subject to certain conditions, may be opened to public inspection. In the present matter, on an oral request made by Kidwai, all ballot papers that were sealed in boxes were placed before the Election Tribunal. Kidwai initially argued that the Tribunal was obligated to issue an order permitting inspection because he had tendered the sealed boxes of ballot papers as evidence, and therefore he contended that the ballot papers formed part of the record. The Tribunal correctly rejected this argument, holding that the mere production of the sealed boxes in compliance with its own order did not convert the ballot papers into part of the record, and consequently the ballot papers could not be inspected unless the Tribunal was satisfied that such inspection was necessary in the particular circumstances of the case to serve the interests of justice. An election petition is required to contain a concise statement of the material facts upon which the petitioner relies in support of his case. When such material facts are set out, the Tribunal undoubtedly possesses the authority to order discovery and inspection of documents in a manner comparable to the powers vested in a civil court under the Code of Civil Procedure when trying a suit. However, the powers that a civil court may exercise in trial proceedings are confined to the narrow limits of Order II of the Code of Civil Procedure. Under Order II, inspection of documents may be ordered pursuant to Rule 15 for documents that are referred to in the pleadings or particulars or disclosed in the affidavit of documents of the opposite party, and under Rule 18(2) for other documents that are in the possession or power of the opposite party. The Returning Officer does not constitute a party to an election petition, and consequently an order for production of the ballot papers cannot be issued under Order II of the Code of Civil Procedure. Nevertheless, the Election Tribunal is not deprived of authority concerning the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may direct the Returning Officer to produce the ballot papers and may permit the parties before it to inspect those ballot papers. This authority is clearly implied in sections 100(1)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. The power to order inspection of ballot papers, which stands apart from Order II of the Code of Civil Procedure, may be exercised subject to the statutory safeguards that protect the secrecy of the ballot as prescribed by sections 94 and 128(1). An order for inspection cannot be granted as a matter of course; given the strong emphasis on maintaining ballot secrecy, the Court would be justified in granting such an order only if two conditions are satisfied: (i) that the

The Court explained that a petition seeking to set aside an election must contain a clear and adequate statement of the material facts on which the petitioner relies. Moreover, the Tribunal must be prima facie satisfied that inspection of the ballot papers is necessary to resolve the dispute and to achieve complete justice between the parties. An order for inspection, however, cannot be issued on the basis of vague pleas that lack supporting material facts or that are intended merely to discover evidence. The petitioner’s case must be set out with precision and must be supported by specific averments of material facts. When a case is pleaded in that manner, an order for inspection may be granted if the interests of justice so require. By contrast, a bare allegation that the petitioner suspects or believes that an improper reception, refusal, or rejection of votes has occurred is insufficient to justify an inspection order. The Court therefore emphasized that the petition must be anchored in concrete facts rather than conjecture before the Tribunal can consider authorising any examination of the ballot papers.

The Court then turned to the procedural framework established under the Representation of the People Act, 1951, which provides a detailed mechanism for the counting of votes by the Returning Officer and offers ample opportunity for candidates and their agents to observe the process. Rule 53 limits admission to the counting venue to certain classes of persons, expressly including candidates, their election agents, and counting agents, who may observe the counting subject to directions issued by the Returning Officer. Rule 55 governs the scrutiny and opening of ballot boxes, requiring the Returning Officer to be satisfied that none of the ballot boxes has been tampered with. Before any box is opened at the counting table, the counting agents present may inspect the seal affixed to the box to confirm its integrity. If the Returning Officer finds that a ballot box has been tampered with, he is prohibited from counting the papers it contains and must follow the procedure prescribed in section 58. Rule 56(1) provides for the scrutiny and rejection of ballot papers, while Rule 56(2) specifies the circumstances in which the Returning Officer shall reject a ballot paper. Rule 56(3) further requires that, before rejecting any ballot paper under sub‑rule (2), the Returning Officer must allow each counting agent present a reasonable opportunity to inspect the contested papers. The Returning Officer must then record the grounds for rejection on every ballot paper that is rejected, and all rejected papers must be placed in a single bundle. Finally, Rule 57 deals with the counting of votes, stating that each ballot paper not rejected under the earlier rules is to be counted as a valid vote.

One valid vote was counted for each ballot paper that was not rejected. After all ballot papers from every ballot box used at the polling stations had been counted, the Returning Officer entered the results in a result sheet called Form 20. Rule 57, clause 3, set out a detailed scheme for making the entries required for the counting and scrutiny of the ballot papers. Rule 60 mandated that the counting be continuous, and rule 63(1) required the Returning Officer, after the counting was finished, to record in Form 20 the total number of votes polled by each candidate and to announce the result. Clause 2 of rule 63 allowed any candidate or his election agent, after the announcement, to file a written application with the Returning Officer requesting a recount of all or any of the ballot papers already counted, stating the grounds for such a request. The Returning Officer was required to decide the application, to record the reasons for his decision, and could either allow the request wholly or partially or reject it if it appeared frivolous or unreasonable. Once the total votes for each candidate had been announced, the Returning Officer had to complete and sign Form 20, and after that form was completed no further application for recount could be entertained. Rule 64 provided that the election result was declared by announcing the candidate who had secured the largest number of valid votes, and it required the Returning Officer to complete and certify the return of election.

The Court observed that at every stage of scrutiny and counting, a candidate or his agents were entitled to remain present, to watch the Returning Officer’s proceedings, to inspect any rejected votes, and to demand a recount. Consequently, a candidate who alleged improper reception, refusal, or rejection of votes at the time of counting had ample opportunity to become acquainted with how the ballot boxes were scrutinised, opened, and how the votes were counted. The candidate also could inspect the rejected ballot papers and could seek a recount. In view of section 83(1), which requires a concise statement of material facts on which the petitioner relies, and considering the opportunity that a defeated candidate had to observe the counting and to claim a recount, the Court held that the application for inspection must be considered. The petition filed by Kidwai contained material allegations supporting the claim of improper reception, refusal, or rejection of votes in paragraphs 6(H), 6(K) and 12. In paragraph 6(H) it was averred that numerous ballot papers cast in favour of the petitioner were…

It was alleged in paragraph 6(H) of the petition that a large number of ballot papers that had been cast in favor of the petitioner had been incorrectly placed within the bundles belonging to the respondents.

Paragraph 6(K) asserted that because there was a shortage of sealing ink, certain marks on some ballot papers, although not perfectly clear, nonetheless unmistakably expressed the voters’ intention, and that those ballot papers had been wrongly rejected as invalid by the returning officer.

Paragraph 12 contended that the petitioner was confident that, if the votes actually cast for him were properly counted as his votes and if the votes that had been improperly accepted for the other respondents were removed, and if the ballot papers were correctly sorted, counted and bundled, then respondent No. 1 would have obtained fewer votes than the petitioner. The petitioner further submitted that the result of the election had been materially affected by the improper acceptance and refusal of votes, as well as by the incorrect sorting, counting and bundling of the ballot papers.

The Court observed that these averments, which were made in support of a petition seeking to set aside the election on the ground of improper acceptance or rejection of votes, were vague and failed to satisfy the statutory requirement of section 83(1)(a). In particular, paragraph 12 was found to be deficient in the necessary recital of material facts that must be within the petitioner’s knowledge; it merely asserted that, if the votes actually cast for the petitioner were counted, the total of his valid votes would exceed the votes received by Yadav.

Because of this deficiency, the Tribunal was justified in refusing to issue an order for inspection of the ballot papers, unless a prima facie case in support of the claim had been established. The Tribunal was required to exercise its discretion in the interests of justice, but that discretion had to be exercised expressly in view of the nature of the allegations made. The Tribunal was therefore justified in rejecting an order for inspection where the request was intended merely to extract material in support of a vague pleading as set out in the petition.

The Tribunal was aware of the appropriate principle and, in its order dated 25 August 1962, it stated that nothing had been brought to its notice that would justify granting the petitioner’s request for inspection at that stage. The Tribunal further observed that, should future facts emerge which would indicate that, in the interests of justice, inspection should be permitted, it could always pass the necessary orders to allow such inspection.

Relying on these observations, the petitioner submitted another application for inspection, but no additional material was presented to the Tribunal. As previously noted, the petitioner had not produced any real evidence at trial. In the second application, the petitioner merely claimed that he was “almost sure” that, upon inspection and scrutiny of the ballot papers, the allegations contained in the various paragraphs would be proved.

Kidwai asserted that a careful inspection and scrutiny of the ballot papers would prove the allegations contained in his petition. However, the claim that he was confident such inspection would reveal wrongful counting due to improper reception, refusal, or rejection of votes was deemed wholly insufficient to justify an order for inspection. He was required to place before the Tribunal prima facie evidence indicating that an inspection order was necessary in the interests of justice, which he failed to provide. Both this Court and the High Court were urged to rely on Bhim Sen v. Gopali and others (1) to argue that a mere lack of particulars does not justify refusing inspection. The same authorities were also cited to contend that a defeated candidate may establish that void votes were counted for the successful candidate by obtaining evidence through inspection of the ballot papers. In Bhim Sen’s case (1), a petition sought to set aside the election of a candidate occupying a reserved seat in a double‑member constituency. The petition relied on the ground that the Returning Officer, under section 63(1) of the Representation of the People Act, must examine each case of double voting and reject one of the illegal votes. The petitioner alleged that because the Returning Officer had failed to discharge this duty, the successful candidate could have received many void votes. When the ballot boxes were opened, it was discovered that thirty‑seven void votes had indeed been counted in favour of the successful candidate. Following this disclosure, the petitioner applied for leave to amend the petition by specifically averring that the thirty‑seven void votes had been counted and by substituting the words ‘alleges’ and ‘did’ for ‘believes’ and ‘could’. Along with the amendment application, he filed a list detailing the particulars of the void votes. The Tribunal allowed this application, but the High Court set aside the order, holding that the Tribunal had erred in permitting the amendment. On appeal, this Court observed that in matters such as the present one, precise details concerning the number and nature of counted void votes could only be ascertained after inspection of the ballot papers. Consequently, the original election petition was deemed to have supplied the necessary material particulars, and the amendment petition was to be treated merely as a request for clarification of the pleadings. The Court concluded that Bhim Sen’s decision does not establish a general rule that a party may seek inspection without first making specific allegations of material facts in support of his

In this case, the petitioner sought to set aside the election by requesting an order for inspection of the ballot papers and attempted to fill the gap in his original petition by arguing that a fresh scrutiny of all votes by the Tribunal might reveal improper reception, refusal, or rejection of votes at the time of counting. To support a claim for setting aside the election, the petitioner was required to make precise allegations of material facts that, in view of the detailed procedural rules, were either known to him or could be treated as within his knowledge. The character of those allegations necessarily depended on the particular facts of each case. However, the Court held that if the material facts were not stated, the petitioner could not be allowed to construct a case by extracting evidence solely from an inspection of the ballot papers. The Court referred to the earlier decision in Bhim Sen’s case(1) where the principal issue had been whether an amendment to the election‑setting‑aside petition should be permitted. In that earlier case, the defeated candidate had alleged that the Returning Officer had violated the provisions of section 63 (1) of the Act and that the election had been materially affected as a result. The applicant had expressed a belief that the respondents had received many void votes. When the ballot box was opened, it was discovered that among the votes credited to the successful candidate, thirty‑seven votes were in fact void. Subsequently, the applicant sought to replace the word “believes” with “alleges” and the word “could” with “did”. In that earlier proceeding, the Court did not entertain a question as to whether the order for inspection had been properly made; the propriety of the inspection order had never been challenged. The central question on appeal had been whether the amendment of the petition should be allowed under the circumstances. The Court observed that the statement that “definite particulars about the number and nature of the void votes that had been counted could only be supplied after inspection of the ballot papers” was not intended as a universal rule. It was not a declaration that whenever a petition to set aside an election alleges that void votes were counted, the petitioner may supply definite particulars only after inspection, nor that a defeated candidate could seek inspection without making specific material allegations or presenting a prima facie case. The Court concluded that the High Court had erred in interfering with the discretionary exercise of the Election Tribunal, which had acted on sound principles. Accordingly, the appeal was allowed, the High Court order was set aside, and the Tribunal’s order was restored, with costs awarded in both the present Court and the High Court. The appeal was thus allowed.