P.K.K. SHAMSUDEEN versus K.A.M. MAPPILLAI MOHINDEEN & ORS.

Citation: [1988] SUPP. 3 S.C.R. 950 · Decided: 24-11-1988 · Supreme Court of India · Bench: M.M. DUTT · Disposal: Dismissed

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Judgment (excerpt)

A 
B 
P.K.K. SHAMSUDEEN 
K.A.M. MAPPILLAI MOHINDEEN & ORS. 
NOVEMBER 24, 1988 
[M.M. DUTT AND S. NATARAJAN, JJ.] 
Tamilnadu Panchayats Act, 1958: Sections 30 and 178-Pan· 
chayat election-Recount of votes-When to be ordered-Preservation 
of secrecy of ballot-Sacrosanct principle. 
C 
At an election held on 23rd February, 1986, for the post of 
Panchayat President, the votes were counted on the 25th February, 
1986, and the first respondent was declared elected having secured 649 
votes. The petitioner and the second respondent who were the other 
contestants were declared to have secured only 556 votes and 8 votes 
respectively, and 55 votes were declared to be invalid votes. 
D 
Two days after the results were declared i.e. on 27th February,· 
1986, the petitioner sent telegrams and registered notices alleging 
irregularities in the counting of the votes, and thereafter he filed an 
election petition under section .178 of the Tamil Nadu Panchayat Act, 
1958. The reliefs claimed in the petition were that the Election Tribunal 
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should set aside the election of the first respondent as the President of 
the Panchay11f, crder recounting of votes, and a declaration that the 
petitioner has been duly elected. The rirst respondent opposed the elec-
tion petition and filed a counter s.tatement denying all the allegations 
contained in the election petition. 
F 
The Tribunal after recording the evidence of the candidates and 
the Assistant Returning Officer came to the conclusion that the 
petitioner was entitled to ask for re-count of votes and ordered recount-
ing and called for the ballot papers. In the recount of votes, it was found 
that there was no difference in the number of votes secured by the 
petitioner, namely, 556 votes but in so far as the first respondent Was 
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concerned he had secured only 528 votes as against the 649 votes, he was 
originally held to have secured. The excess of 121 votes were found to be 
invalid votes and consequently the total number of invalid votes came to 
126 (sic) as against 55 votes originally held to be invalid. There was no 
difference in the number of 8 votes secured by the third contestant. 
Based on these figures of the recounting, the Tribunal declined to order 
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re-election and instead declared the petitioner to have been duly elected 
950 
SHAMSUDEEN v. MOHINDEEN 
951 
because the recount clearly proved that the petitioner bas secured 28 
votes more than the first respondent. 
Aggrieved by the aforesaid order of the Election Tribunal, the 
first respondent filed a Civil Revision Petition in the High Court. A 
Single Judge allowed the revision petition holding that the Tribunal had 
erred in ordering a recount of the votes when the petitioner bad not 
made out a prima facie case for an order of recount, and observed that 
the secrecy of the ballot was sacrosanct and should not be violated 
unless a prima facie case of a complusive nature had been made out by 
the defeated candidates. The High Court set aside the order of the 
Tribunal and restored the election result in favour of the first 
respondent. 
Dismissing the Special Leave Petition, 
HELD: 1. The right of a defeated candidate to assail the validity 
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of an election result and seek recounting of votes has to be subject to the 
basic principle that the secrecy of the ballot is sacrosanct in a D 
democracy and hence unless the affected candidate is able to allege and 
substantiate in acceptable measure by means of evidence that a prima-
f acie case of a high degree of probability existed for the recount of votes 
being ordered by the Election Tribunal in the interests of justice, a 
Tribunal or Court should not order the recount of votes. [9570-E) 
2. The salutary rule is that the preservation of the secrecy of the 
ballot is a sacrosanct principle which cannot be lightly or hastily broken 
unless there is prima-facie genuine need for it. [9570 I 
E 
3. The justification for an order for examination of ballot papers 
and recount of votes is not to be derived from high sight and by the F 
result of the recount of votes. On the contrary, the justification for an 
order of recount of votes should be provided by the material placed by 
an election petitioner on the threshold before an order for recount of 
votes is actually made. [957C-D] 
4. An order or recount of votes must stand or fall on the nature of G 
the averments made· and the evidence adduced before the order of 
recount is made and not from the res

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