RAM SEWAK YADAV versus HUSSAIN KAMIL KIDWAI & ORS.

Citation: [1964] 6 S.C.R. 238 · Decided: 17-01-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed

Cited by 12 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1964 
January, 17 
SUPREME COURT REPORTS 
[1g64] 
RAM SEW AK Y ADAY 
v. 
HUSSAIN KAMIL KIDW AI & ORS. 
(P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. c. DAS 
GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.) 
Election-Challenge on the ground of improper reception, re/u!al and 
rejection of votes at the time of counting-Tribunal rejec:ting claim. 
far inspection of the ballot papers-Validity-Representation of 
the People A.ct, I95I (43 of I95I), SJ. 100, IOI and 102 and con-
duct of Election Rules, 1961. r. 93. 
The respondent challenged the election of the appellant, inter alia,. 
on the ground that there had been improper reception, refusal and re-
jection of votes at the time of counting and that on a true count he 
would have received a majority of valid votes and that he was entitled 
to be declared duly elected. 
He claimed that by 
inspection of the-
ballot papers he would be able to establish his 
case on the aforesaid 
alleg<ition, anrl that the Tribunal was bound to grant an order for in!-
pection. bec<!nse he h2'1 tendered the sealed boxes of ballot papers in 
evidence, and on that account all the ballot papers were part of the 
record. 
The Tribunal in its order stated that nothing was brought to 
its notice which \\'ou!d justify granting an order for inspection. It 
• 
further observed: 
"If in future from the facts that may be brought to 
the notice of the Tribunal, it appears that in the interests of justice ins-
pection should be allowed, 
necessary 
orders allo\\·ing an inspection 
could always be passed". 
Thereupon, another application was submit-
ted by the respondent asking for inspection but no additional n1aterialA 
were placed before the Tribunal and no oral evidence was led at the 
trial. 
The Tribunal rejected the application for inspection. 
On appeal, 
the High Court held that ballot papers had actually been called for 
from the Returning Officer and were before the Tribunal, and there was 
nothing in the Code of Civil Proceduq! which prevented the Tribunal 
from allowing inspection of the ballot papers in the 
custody of the 
Court. The Tribunal had therefore rejected the application for inspec-
tion without any adequate reasons. 
The sole question for determination was whether the Election Tri-
bunal erred in declining to grant an order for inspection of th!! ballot 
papers Y.'hich had been, pursuant to an order in that behalf, lodged be-
fore the Tribunal in sealed boxes by the R.eturnina: Officer. 
Held: By the mere production of the sealed boxes, the ballot papers 
did not become part of the record and they were not liable to be ins-
pected unless the Tribunal was satisfied that l!luch inspection was in the 
circumstances of the case necessary in the interests of jusfce. 
6 S.C.R. 
SUPREME COURT REPORTS 
239 
The Returnins Officer is not a party to an election petition, and a11 
1964 
order for production of the ballot papers cannot be made under 0. XI Ram s;;;;;l y...., 
of the Code of Civil Procedure. 
But the Election Tribunal is not on 
Y. 
· 
that account without authority in respect of the ballot papers. 
Where Hus1ain 
~ 
the interests of ju•tice deman'd it, the Tribunal may call upon the Return-
KidwoJ 
ing Officer to produce the ballot papers and may permit in!pection by 
the parties before it of the ballot papers: 
that power is clearly implicit 
in ss. JOO(r)(d)(iii), 101, 102 of the Representation of the People Act. 
1951 and rule 93 of the Conduct of Election Rules, 1961. This power 
to order inspection of the ballot papers which is apart from 0. XI Code 
of Civil Procedure may be exercised, subject to the statutory restrictions 
about the .ecrecy of the ballot papers pmcribed by ss. 94 and 128(1) of 
the AcL 
Bhim Sen •· Gopali, 22 E.L.R. 288, distinguished. 
CML APPELLATE JURISDICTION: Civil Appeal No. 1064 
of 1963. 
Appeal by special leave from the judgment and order 
dated July 23, 1963, of the Allahabad High Court (Lucknow 
Bench) in First Civil Appeal No. 11 of 1963. 
N. C. Chatterjee and J. P. Goyal, for the appellant. 
S. P. Sinha and S. Shaukat Hussain, for respondent 
No. 1. 
January 17, 1964. 
Tue Judgment of the Court was 
delivered by 
SHAH J .-At the general elections held in February 1962, Shah 1.: 
five candidates contested the election to the House of the 
People from the Barabanki single-member constituency. 
The appellant Ram Sewak Yadav-who will be referred to 
as Yadav-was at the counting of votes found to have 
secured the highest number of votes and he wa

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