BALDEV SINGH versus TEJA SINGH SWATANTAR (DEAD) & ORS.

Citation: [1975] 3 S.C.R. 381 · Decided: 24-01-1975 · Supreme Court of India · Bench: A. ALAGIRISWAMI · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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BALDEV SINGH 
v. 
TEJA SINGH SWATANTAR (DEAD) & ORS. 
January 24, 1975 
38 l 
[A. ALAGIRISWAMI, V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.] 
Election-Conduct of Election Rules, r. 63-Returning Officers duty to re· 
count, when arises-Power of Court to order recoum-Scope of. 
. 
For a Parliamentary seat in the State of Punjab the appellant, a candidate of 
the Akali Dal, and the first respondent, the nominee of the Communist Party of 
India, were two of the contesting candidates. The total number of votes polled 
were 344073 out of which 7663 were invalidated. The first respondent was de· 
clarecf elected by a margin of 210 votes. Even at the time the counting was com· 
pleted the appellant applied to the Returning Officer for a recount but the applica-
tion was rejected as premature. Soon after the. announcement of the votes polled 
by each candidate the appellant applied again for recount, under r. 63 (2) of the 
conduct of Election Rules. The Returning Officer rejected this application also. 
The appellant filed an election petition and contended that, the attitude of the 
counting staff was hostile to the appellant and his party, and that there were many 
irregularities in rejecting votes in favour of appellant, in accepting vote in favour 
of the !st respondent, and in the counting and prayed for a general recount. 
The High Court, by an interim order ordered a limited recount of votes in 
one of the segments of' the constituency and that order was affirmed by a con-
sent order in this Court 'to cover the votes of both the contestants. This recount 
revealed some errors but did not tilt the scale in favour of the appellant. The 
election petition was ultimately dismissed by the High Court. 
HELD : ( 1) On \he evidence there is no force in the appellant's conten· 
tion about either official bias or of violation of rules. If there had been any mani-
pulation by the counting stall' the matter would have been brought to the notice 
of the Returning Officer and the senior officers present for supervising the count-
ing and deciding disputes, reference to it would have been made in the two ap-
plications for recount, and in the appellant's application to the Election Commis-
sioner for inspection. Moreover, the alleged biased behaviour is disproved by the 
accuracy disclosed in the recount, the marginal error being more or less similar 
in the case of both the candidates. [388 C-F] 
<2) The Returning Officer was in error in disallowing the recount. Under r. 
63 the mandate for recount is not the exception, and refusal is restricted to cases, 
where the demand itself is 'frivolous or unreasonable'. Where the margin of dif· 
ference i~ minimal the claim for a fresh count cannot be summarily brushed aside 
as futile or trumpery. If formal defects had been misconstrued as substantial in· 
firmities or vice versa· resulting in wrongful reception or rejection, the s<X'ner it 
was set right the better, especially when a plea for a second inspection b.ad been 
made on the spot. Prestige or fatigue should not inhibit a fresh or a partial 
check. The instructions contained in para 17, cl. (nn) of the Procedure for 
Counting in the Handbook for Returning Officers requires the Returning Officer 
to ensure further accuracy in the counting of votes by making 5 % test check. 
The Returning Officer, in the present case, had not done so, but that is no 
ground for this Court td order recount or to reverse the decision of the High 
Court refusing recount. [385 G-386 B; 392 C-G] 
( 3) While the Returning officer .should be liberal, the power of the Court to 
order recount which is undoubted, should be exercised sparingly. Even if there 
is difficulty in giving the serial number of voting papers illegally rejected or receiv-
ed an application made for inspection of ballot boxes mmt give material facts 
whlch would enable the tribunal or the Court to consider whether in the interests 
of justice, the. ballot boxes ~.hould b~ insp~cted or ~ot. .In dealing gen~ral allega· 
t;ons that valid votes were llilProperly re1ected or 1nvahd votes were •moroperly 
accepted, would not serve th111 purpose which is provided for ins. 83(1)(a). In· 
dealing with this question the importance of secrecy of the ballot papers cannot 
10-423SCij75 
382 
SUPREME COURT REPORTS 
[1975] 3 s.c.R. 
hr ignored. The statutory rules framed unde~ Act ar~ int~i:ded to provide ad~­
quate safeguard for the examination of the vahd1ty or !nvahd~t¥ of 

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