P.H PUJAR versus KANTHI RAJASHEKHAR KIDIYAPPA AND ORS.

Citation: [2002] 2 S.C.R. 205 · Decided: 05-03-2002 · Supreme Court of India · Bench: B.N. KIRPAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

. ' 
P.H PUJAR 
A 
v. 
KANTHI RAJASHEKHAR KIDIY APPA AND ORS. 
MARCH 05, 2002 
[B.N. KIRPAL, Y.K. SABHARWAL AND K.G. BALAKRISHNAN, JJ.] 
B 
Representation of the People Act, 1951: Sections 81 and JOO. 
Election-Challenge by defeated candidate on the ground of non-filing 
of check memos by counting superi:isors-High Court holding declaration of C 
election void-Direction to recount ballot papers-Appeal before Supreme 
Court-Held, recount of votes cannot be ordered in a casual manner-Cannot 
be ordered merely because difference is meagre-Proper foundation should 
be laid in pleadings-Specific a/legations should be made and proved-Held 
there was lack of pleadings as to material fact in the election petition-Held D 
High Court erred in directing recount. 
In the election petition filed by respondent No. I, the defeated candidate, 
challenging the election of the appellant, the elected candidate, the issue 
involved1 inter alia, was whether the counting of the votes was done in 
accordance with Rules High Court set aside the election of the appellant E 
holding the declaration of the election to be void. It directed the Returning 
Officer to recount all ballot papers after proper scrutiny. Against the decision 
of High Court the returned candidate preferred appeal before this Court. 
On behalf of respondent No. I. It was contended that the Counting Supervisors 
had not filled the check memos for counting of votes as required by them 
under the instructions contained in Hand Book for Returning Officers for 
election to the House of People and State Legislative Assemblies issued by 
the Election Commission of India. Consequently, it became impossible to know 
how many doubtful votes were taken by the Counting Supervisors to the 
Returning Officer and how many were directed by the Returning Officer to 
F 
be validly polled by one or the other candidate, thereafter leaving the balance G 
as rejected ballot papers. In this view, the High Court was perfectly justified 
in directing the recounting of all the ballot papers. 
Allowing appeal of the returned candidate and setting aside the 
judgment of the High Court, the Court 
205 
H 
206 
SUPREME COURT REPORTS 
[2002) 2 S.C.R. 
A 
HELD: 1. The High Court was cl..-:arly in error in directing the recount 
of the entire assembly votes and in setting aside of the election of the petitioner 
simultaneously even before the start of the recount. [212-D] 
2. The recount of the votes cannot be ordered in a casual manner. It 
cannot _be ordered only because the margin of defeat is meagre. For seeking 
B recount, proper foundation is to be laid in the pleadings by setting out material 
facts and later proving it by adducing requisite evidence. The recount cannot 
be ordered on the ipse dixit of the election petitioner. It can be ordered in 
rare cases where specific allegation~ are made and proved so as to do complete 
justice between the parties. (212-A-B] 
c 
3. In the election petition it is obligatory for the election petitioner to 
set out the material facts. Except making a general and vague averment that. 
respondent No. 4 (Returning Officer) refused to follow the mandatory 
provision of law in relation to the counting, the election petitioner has failed 
to plead any material fact whatsoever. There is not a whiSper about the non-
D filing of the check memos by the Counting Supervisors or its effect. It has 
not been stated how and which mandatory provision of law of counting was 
not followed by the Returning Officer. There is total lack of pleading as to 
material fact in the election petition. [210-H; 211-A-B] 
).-
E 
Vadivelu v. Sundaran and Ors., [2000] 8 SCC 355 and TH Musthajfa v. 
MP. Verghese and Ors,. [1999] 8 SCC 692, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7113 of 
2000. 
F 
From the Judgment and Order dated 27.11.2000 of the Karnataka High 
Court in E.P. No. 2 of 1999. 
K.K. Venugopal, D.N. Recldy, C.H. Jadhav, S. Sukumaran, V.K. 
Sidharthan and Ms. Divya Nair for the Appellant. 
G 
Dr. A.M. Singhvi and L Nageswara Rao, Girish Ananthamurthy and 
P.P. Singh for the Respondents. 
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1-
The Judgment of the .Court was delivered by 
Y.K. SABHARW AL, J. The appellant was elected as a Member of the 
H Karnataka Legislative Assembly by a margin of 138 votes. The total votes 
- .I 
P.H. PUIAR v. KANTHI RAIASl-IEKHAR KIDIYAPPA (Y.K. SABHARWAL, I.] 207 
polled were 88,353. At the final counting it was found that the election A 
petitioner (respondent no. I 

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