SC upholds Kerala HC verdict in election case

By T. Padmanabha Rao

NEW DELHI, JAN.31. The Supreme Court has affirmed judgement of the Kerala High Court (HC) which dismissed an election petition (EP) Mr.V. S. Achuthanandan (election petitioner-appellant) ``forming on opinion that no case for recount of the ballot papers (BPs) was made out''

Mr. Achuthanandan, an unsuccessful candidate in the election to the State Legislative Assembly from Mararikulam Assembly (Alappuzha district) in April 1996, challenged the election of Mr. P. J. Francis (first respondent returned candidate) on certain grounds including commission of certain alleged corrupt practices and also alleged improper reception of void votes in connection with this election.

Delivering the judgement of the Bench, Mr.Justice R.C. Lahoti, held that - ``the averments made in the petition and the material brought on record by the election-petitioner did not make out a case for re-count and that ``the petitioner has indulged into a roving enquiry and has tried to fish out materials in the hope that the re-count if allowed may probably twist the balance of votes in his favour which in the facts and circumstances of the case is nothing beyond a wishful thinking of the petitioner.''

The Bench which including the chief justice, Dr. A. S.Anand and Mr. Justice Shivaraj V. Patil explaining `the law' on the issue of an order of `recount' of the BPs by a court in a given case said that ``the order for recount of BPs would be justified if, inter alia, `on the basis of evidence adduced (by a petitioner) the requisite allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting.''

``What was needed was proof of `prima facie case of availability of good grounds' where in the election petitioner/appellant has failed'', in the present case, the Bench added.

``However, if the validity of an order passed by HC permitting inspection of BPs and directing a recount is brought in issue before the Supreme Court, the facts revealed by re-count cannot be relied upon by the election-petitioner to support the prayer and sustain the order for re-count if the pleadings and material available on record anterior to actual re-count did not justify grant of the prayer for inspection and re-count,'' the Bench added.

This is the second round of litigation of this election case before the Apex Court.

The HC on January 8, 1997 - directed the election petition to be dismissed on the ground that the allegations in the petition did not disclose a `cause of action' warranting trial of the election-petition and also that the averments made in the petition were not sufficient to grant the relief of recount of ballots.

The Apex Court on March 22 last set aside the HC's earlier 1997 order and remitted that the election case back to the HC for trial on merits after affording the parties on opportunity of leading evidence.

On remand, the HC after conducting the examination of witnesses for both the parties and hearing them ordered the dismissal of the EP ``forming an opinion that no case for recount of BPs was made out.''

Hence the present appeal in vain from the appellant before the Apex Court.

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