Uday Singh v. Himmat Singh — 1998 DIGILAW 111 (MP)

ORDER 1. The order passed in this petition under Art. 227 of the Constitution of India shall also decide the connected petition being W.P. No. 5275 of 1996 Himmat Singh v. Uday Singh and others) against the same order dated 15.11.1996 of the Sub-Divisional Officer, Tahsil Huzur, District Bhopal as Specified Officer in the election petition filed under Sec. 122 of the M.P. Panchayat Raj Adhiniyam, 1993. 2. The Specified Officer has passed a very peculiar order whereby both the contesting parties to the petition feel aggrieved. The Specified Officer had tried the election petition in such a slip-shod and illegal manner that the proceedings dragged on for number of days and earlier two writ petitions came to be filed in the course of election trial. The facts narrated hereunder would justify that it is high time that the legislature should seriously consider appointing any judicial officer or any officer of rank higher than Sub-Divisional Officer to be the Specified Officer for trying election petitions under the Act. A minimum knowledge of election law is necessary for trying an election petition. The impugned order by the Specified Officer in this case shows complete lack of the same. 3. The present petitioner, Uday Singh was declared elected as Sarpanch of Gram Panchayat Raipur, Tahsil Huzur, District Bhopal by a margin of two votes. The petitioner got 274 votes as against 272 votes received by the respondent No.1 The defeated candidate Himmat Singh (respondent No.1) filed an election petition before the Specified Officer on 11.7.1994. As the order-sheet of the Specified Officer shows, on that date no security amount was deposited along with the petition. The order sheet contains a direction that the security amount be deposited. The election petition was filed which contained no signature of the petitioner on the petition and no verification clause to the same. Thereafter, an application under Order 6 Rule 17 CPC was filed by the election petitioner stating that by mistake the petition was filed without any verification clause. Despite objection to the valid presentation of the election petition raised by the contesting respondent, the election petition was allowed to be amended by order dated 12.1.1995 and verification was allowed to be inserted in the petition. The trial of election petition lingered on for non-availability of the Specified Officer on several dates. Despite objection to the valid presentation of the election petition raised by the contesting respondent, the election petition was allowed to be amended by order dated 12.1.1995 and verification was allowed to be inserted in the petition. The trial of election petition lingered on for non-availability of the Specified Officer on several dates. On 7.6.1995 the counsel for the election petitioner stated before the Specified Officer that his client desired to have a decision on recount first. Without framing any issue on recount and trying the same, the Specified Officer straight-away on 7.6.1995 itself issued directions for calling the ballot papers. 4. The present petitioner as contesting respondent and the successful candidate in the election, raised serious objections to the direction for calling the ballot papers for recount. The Counsel on his behalf has stated that the Specified Officer should first decide the question of maintainability of the election petition and dismiss the same on the ground of non-compliance of mandatory provisions such as non-deposit of security amount in time and not signing and properly verifying the election petition within prescribed time. 5. The objection raised by the contesting respondent to the maintainability of the election petition was rejected by the Specified Officer on 10.1.1996 stating in his order that the preliminary objection cannot be allowed as he has already made an order of recount on 7.6.95. Aggrieved by the manner in which the Specified Officer proceeded with the trial of the election petition, the present petitioner as successful candidate in the election preferred a writ petition in this Court being W.P. No. 904 of 1996 which was summarily dismissed by this Court on 11.3 .1996 on the ground that the writ petition was premature and the petitioner has the remedy of challenging the final order, if and when passed by the Specified Officer. 6. After summary rejection of the writ petition on 11.3.1996 by this Court, the Specified Officer completed the recount of the ballot paper and on 9.4.1996 passed a final order on the basis of recount. He held that the election petitioner got 276 valid votes as against 270 valid votes received by the contesting respondent (i.e. the petitioner herein). The Specified Officer, therefore, declared Himmat Singh, the election petitioner, as duly elected candidate on the basis of recount of votes. 7. He held that the election petitioner got 276 valid votes as against 270 valid votes received by the contesting respondent (i.e. the petitioner herein). The Specified Officer, therefore, declared Himmat Singh, the election petitioner, as duly elected candidate on the basis of recount of votes. 7. The final order made by the Specified Officer dated 9.4.1996 was challenged by Uday Singh, the present petitioner, in W.P. No. 1712 of 1996. The above mentioned second writ petition was decided by C.K. Prasad, J. on 7.8.1996. The learned Judge allowed the petition and remanded the matter to the Sub-Divisional Officer to first take up for decision the preliminary objection raised by the petitioner to the effect that the election petition was not maintainable as the petition was filed without verification and no security was deposited along with the petition. C.K. Prasad, J. directed the parties to appear before the Specified Officer on 19.8.1996 so that the preliminary objection regarding maintainability could be taken up for decision. The order of recount made on 9.4.1996 was set aside by the High Court in W.P. No. 1712 of 1996. 8. When the matter came back to the Specified Officer as a result of the order passed by the High Court in W.P. No. 1712/96, mentioned above, the Specified Officer has passed the impugned order on 15.11.1996 which is under consideration in the present petitions by which both the parties are aggrieved. The Specified Officer in his impugned order, in deciding the preliminary objections about the maintainability of the election petition, has resorted to strange reasons and in fact in paragraph 10 of his order has observed against the High Court that there is a cleavage •of opinions expressed by the High Court in different Benches and they deserve to be resolved by a larger Bench. From the decisions cited and considered in paragraph 10 of the impugned order this Court has found no cleavage or conflict and neither counsel appearing for the parties pointed out any such cleavage or uncertainty in the state of law. The order of the Sub-Divisional Officer is not very intelligible but whatever meaning can be gathered from it, it appears that he held that deposit of security subsequent to the presentation of the petition under orders made by the Specified Officer was sufficient compliance of the provisions of the Rules. The order of the Sub-Divisional Officer is not very intelligible but whatever meaning can be gathered from it, it appears that he held that deposit of security subsequent to the presentation of the petition under orders made by the Specified Officer was sufficient compliance of the provisions of the Rules. With regard to absence of verification clause in the petition on the date of presentation of the election petition, the Specified Officer is of the view that the defect, if any, was cured by a subsequent amendment which was allowed to the election petitioner for inserting the verification clause. With regard to non-supply of true copy of the petition, according to the Specified Officer, if there was no change in the contents of the copy and the original petition, there was no non-compliance of the Rules and the defect, if any, can be allowed to be remedied. So far as the decision on the election petition is concerned, he has - recorded a queer conclusion by stating that since all the orders and proceedings of the Specified Officer were set aside by the High Court and there are conflict views in several decisions - of the High Court which are to be resolved by the High Court, it would not be proper to grant relief to any of the parties. He has also expressed an opinion that he has already recounted the votes and has found that the elected candidate should have been declared as defeated, according to him, therefore, the elected candidate has lost his right to continue in the office. He, therefore, issued directions that the charge of the office of Sarpanch be given to Up Sarpanch and none of the two contensting candidates be treated as Sarpanch. He has disposed of the election petition stating that it is not possible to decide the same until the High Court issues further clarifications and directions. It appears that the Specified Officer thus disposed of the case leaving the matter to this Court to issue further directions. 9. This Court cannot resist from observing that the Specified Officer has neither understood the scope of his jurisdiction and power nor has understood the various decisions of the High Court cited before him. 10. It appears that the Specified Officer thus disposed of the case leaving the matter to this Court to issue further directions. 9. This Court cannot resist from observing that the Specified Officer has neither understood the scope of his jurisdiction and power nor has understood the various decisions of the High Court cited before him. 10. Shri Ajay Gupta, learned counsel appearing for Uday Singh who was duly declared elected in the election, submits that the defects of not depositing security amount along-with the petition, not signing and verifying the petition on the date of presentation and not supplying true copy of the petition were all fatal to the election petition which merited summary rejection under the Rules. - 11. The second argument of the counsel for the petitioner is that it has been ettled in a series of decisions of the Supreme Court and this Court that the order of recount has not to be made on mere asking unless the issue of recount is tried and on evidence and material on record the Court is satisfied that a case for opening the ballot box for inspection of ballots is made out. It is submitted that the secrecy of ballot is sacrosanct and inspection of ballot cannot be ordered unless strong grounds are made out on the basis of the evidence led by the parties. It is submitted that the Specified Officer committed a serious error in directing recount without recording any evidence and without recording any reasons for ordering such recount. Reliance is placed on P.K.K Shamsudeen v. K.A.M Mappillai Mohindeen and ors. [ AIR 1989 SC 640 ] and Ram Raft v. Saroj Devi & ors. [(1997)7 SCC 667]. 12. Shri Pradeep Bhargava who appears for the election petitioner (respondent Himmat Singh) admits that the order of the Specified Officer is indecisive and deserves to be set aside. His prayer, however, is that as the ballot papers were seen, and in fact his client Himmat Singh has been found to have secured more votes than the elected candidate, this Court should remand the matter again for retrial of the election petition, or in the alternative direct. a fresh election to the office of Sarpanch. His prayer, however, is that as the ballot papers were seen, and in fact his client Himmat Singh has been found to have secured more votes than the elected candidate, this Court should remand the matter again for retrial of the election petition, or in the alternative direct. a fresh election to the office of Sarpanch. So far as the preliminary objection about maintainability of the petition is concerned, the reply of Shri Bhargava on behalf of his client is that security- amount was in fact deposited on the date of presentation of the petition on the orders of the Specified Officer but receipt for deposit came to be issued after two days. So far as the absence of verification clause in the petition is concerned, it is submitted that it was not such a fatal defect and could be remedied by amendment in the election petition. Similar argument is advanced about non-supply of exact copy of the petition for notice to the opposite party. Some attempt was also made by Shri Bhargava to support the order of recount. His more emphasis was on the fact that the recount of votes legally or illegally having been made and the result of recount known, this Court should instead of dismissing the election petition, send it for retrial. 13. After hearing the learned counsel for the parties and looking into the record of the election petition, I find no other option but to quash the entire order of the Specified Officer (S.D.O.) for glaring illegalities committed by him of procedure and jurisdiction. This Court also finds no force in the prayer made on behalf of the election petitioner, Himmat Singh that a second remand should be made by this Court for retrial of the election petition. The prayer for a fresh election also cannot be accepted as the election once held can be set aside only on the basis of an election petition found worthy to be allowed. 14. I shall take up for consideration first the preliminary objections raised to the valid presentation of the petition. It is not in dispute that on the date of presentation of the petition, the security amount was not deposited. According to the election petitioner, it was deposited on that very day although the receipt was issued late. But this fact is not evidenced by any document on record. It is not in dispute that on the date of presentation of the petition, the security amount was not deposited. According to the election petitioner, it was deposited on that very day although the receipt was issued late. But this fact is not evidenced by any document on record. The Specified Officer in the impugned order has stated that the security amount came to be deposited on 13.9.1994. The Rules framed for trial of election petition i.e. The Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, particularly Rule 7 thereof, require deposit of security amount at the time of presentation of the election petition. Under Rule 8, if provisions of Rule 7 regarding deposit are not complied with, the petition shall stand dismissed. Rules 7 and 8 have been construed and held mandatory by a Division Bench of this Court in Babulal and an-or v. State of MP. and others ( 1985 JLJ 644 = AIR 1986 MP 49 ). A learned Single Judge of this Court (T.S. Doabia, 1.) in Dr. Om prakash Soni v. Ashok Kumar Bhargava and ors. [1995(2) Vidhi Bhasvar 309 = AIR 1996 MP 43 ], relying on the decision of the Supreme Court in F.A. Sapa v. Singora ( AIR 1991 SC 1557 ), construed a similar rule as mandatory and upheld the summary dismissal of the petition. The decision of learned C.K. Prasad, J. in Ravi Thakur v. Shiv Shankar Patel and others [ 1997(1) JLJ 89 ] which is relied upon on behalf of the election petitioner is distinguishable as there reliance is placed on Kailash Narayan v. Namdar and others ( 1996 JLJ 391 ) where shortage in security deposit was subsequently made good. It may be mentioned that when the security amount was increased from Rs. 50 to 250/-, in order to arrest the operation of the ill effect of the mandatory rule regarding non deposit and consequent rejection of the petition a validation Act namely The Madhya Pradesh Panchayat Nirvachan Yachika Pratibhuti Nikshep (Vidhimanyakaran) Adhiniyam, 1996 (Act No.9 of 1996) came to be passed under which a shortage in security could be made good. Learned Single Judge C.K. Prasad, J. appears to have based his decision on the provision of above Act No.9 of 1996 where deficit in amount of security could be made good within the period fixed for filing the election petition. Learned Single Judge C.K. Prasad, J. appears to have based his decision on the provision of above Act No.9 of 1996 where deficit in amount of security could be made good within the period fixed for filing the election petition. Such is not the case here. There is no evidence that the security deposit, as stated by the election petitioner, was made on the date of presentation of the petition and only receipt for the same came be issued in his favour subsequently. Thus, for non-compliance of Rule 7, the election petition deserved summary rejection under Rule 8 of the Rules framed for trying election petitions. 15. There is another non-compliance of Rule 5(c) pointed out under which the election petition has to be duly signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. On the date the election petition was filed, it was neither signed nor contained any verification clause. The verification clause was inserted in the petition by subsequent amendment. Even if the submission made on behalf of the election petitioner is accepted that the defect of signature and verification could be allowed to be rectified under general powers of the Election Tribunal and in accordance with the provisions of the Code of Civil Procedure which .have been adopted for trial of election petitions under Rule 11(2), there is another vital defect in the petition because of non-compliance of Rule 3(2) of the Rules on account of which the petition deserved summary rejection under Rule 4: Rule 3(2) reads thus: "3. Presentation of election petition -- (1) ......... (2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition." In the instant case, since the original petition and the copies did not contain signatures and verification clause, the provision of Sub-Rule (2) of Rule 3 was not complied with and under Rule 8, for non-compliance of Ru1e 3 the election petition deserved summary dismissal. The Gauhati case in Kailash Singh v. Hiralal Dey (AIR 1994 Gauhati 12) relied on behalf of the election petitioner is not an election case. The Gauhati case in Kailash Singh v. Hiralal Dey (AIR 1994 Gauhati 12) relied on behalf of the election petitioner is not an election case. That is a case decided on the basis of Order 7 Rule 11 read with Order 6 Rules 14 and 15 of the CPC. As held by learned Single Judge T.S. Doabia, J. in the case of Dr. Om prakash Soni (supra), compliance of Rule 3(2) is mandatory and non-compliance thereof will be fatal. 16. Having thus upheld the preliminary objection regarding maintainability of the election petition, it is not necessary to go into the other question raised by the petitioner in this petition. I may, however, state that the order of recount made by the Specified Officer in the election petition is also unsustainable and is against the settled legal position. It has been held in a series of decisions of the Supreme Court and this Court that order of recount is not to be made on mere asking by the election petitioner. The election petitioner has to first specifically aver in the petition grounds and then prove it by leading evidence to justify the prayer for recount. Recount can be directed by the Election Tribunal only on a satisfaction reached on the basis of evidence that such recount is necessary. In the instant case, the Specified Officer neither looked into the pleadings of the parties nor put the issue of recount to trial but straight away on 6.1.1995 directed the ballot papers to be called for inspection. The order of recount earlier made on 9.4.96 by him has been set aside by this Court (C.K. Prasad, J.) in W.P. No. 1712 of 1996 decided on 7.8.1996. The case was remanded to the Specified Officer to again take a decision on the preliminary objections raised to filing of the petition and also on the question of recount. The directions made by this Court in W.P. No. 1712/96 have not at all been carried out or obeyed. In fact his conduct virtually amounts to contempt. It however, appears that the disregard to the order of this Court was made on some erroneous assumptions of legal provisions and the decided cases of this Court. 17. The Specified Officer has thus completely disregarded the remand order of this Court in W.P. No. 1712/96 decided on 7.8.96. In fact his conduct virtually amounts to contempt. It however, appears that the disregard to the order of this Court was made on some erroneous assumptions of legal provisions and the decided cases of this Court. 17. The Specified Officer has thus completely disregarded the remand order of this Court in W.P. No. 1712/96 decided on 7.8.96. The case was remanded to decide the preliminary objection first and then try the issue of recount in accordance with law. 18. The learned counsel appearing for the election petitioner contends that as the ballot papers, wrongly or rightly, have been duly inspected and his client has received more votes than the elected candidate, this Court should upheld the same. It is also submitted that a claim for recount of votes can be proved not only by leading direct evidence but also by inspection of ballot papers and the procedure has been in Shashi Bhushan v. Balraj Madhok ( AIR 1972 SC 1251 ). The case of Shashi Bhushan (supra) is totally distinguishable. There, the allegation was that some chemical treatment was given to ballot papers. It is on those facts that the Supreme Court said that inspection of ballot paper can be directed on a prayer made by the petitioner. That case is, therefore, distinguishable on its own peculiar facts. The general law of recount is that the election petitioner has to substantiate by way of evidence his prayer for recount. An erroneous order of recount cannot be supported on the basis of result of recount. See the following observations of the Supreme Court in P.K.K Shamsudeen v. K.A.M Mappillai Mohideen and others ( AIR 1989 SC 640 ): "The settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind Sight and by the 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. The reason for this salutary rule is that the preservation of secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The reason for this salutary rule is that the preservation of secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes bas to be subject to the basic principle that the secrecy of the ballot' is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree or probability existed for the recount of votes being ordered by the Election Tribunal in the interest of justice, a Tribunal or Court should not order the recount of votes. *** *** *** In the instant case, the Petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of the ballot being breached in the petitioner's case. Factors such as that the elected candidate had accepted the correctness of the recount and that he had conceded his defeat and wanted a re-election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal." 19. In the latest decision of the Supreme Court in Ram Rati v. Saroj Devi and others [ (1997) 6 SCC 66 ]; the Court has gone a step further to state that where a rule for conduct of election provides for making of an application for recount to the Returning Officer and if no such application was made, it is a good ground to refuse the prayer for recount in the election trial. See -- the following observations in Ram Rati 's case (supra) :- "In the instant case it cannot be said that the respondent made an application to the Returning Officer and the Returning Officer had not recounted. In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. If it is not done, then the tribunal or the Court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. The essential condition precedent is that an application in writing should be made and the Returning Officer should pass an order with reasons in support thereof either to recall the order or otherwise, in writing. The fact that the officer had not passed any order in writing would indicate that the respondent had not made any application. Obviously some subsequent manipulation would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting. In view of the fact that the rule it sell provides that, as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before the Court does indicate that no such application had been made on the date of the declaration of the result The allegation of an application having been made, would be an after thought.' 20. For the above several illegalities committed by the Specified Officer, It would be neither legal nor in the interest of justice to send back the case again for retrial to the Specified Officer. The other prayer for directing fresh election also cannot be allowed as a notified election can be set aside only on the success of an election petition. 21, Consequently, this petition (W.P. No. 5002/96) filed by the elected candidate Uday Singh is hereby allowed and the connected petition (W.P. No 5275/96) filed by Himmat Singh as the election petitioner is hereby dismissed The impugned order of the Specified Officer, i.e. Sub-Divisional Officer Tahsil Huzur, Dist. Bhopal dated 15.11.1996 is hereby quashed. 21, Consequently, this petition (W.P. No. 5002/96) filed by the elected candidate Uday Singh is hereby allowed and the connected petition (W.P. No 5275/96) filed by Himmat Singh as the election petitioner is hereby dismissed The impugned order of the Specified Officer, i.e. Sub-Divisional Officer Tahsil Huzur, Dist. Bhopal dated 15.11.1996 is hereby quashed. The authorities are directed to allow the petitioner to assume charge and discharge functions of the Office of Sarpanch of Gram Panchayat Raipur, Tahsil Huzur, District Bhopal. There shall, however, be no order as to costs.