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Madhya Pradesh High Court · body

2000 DIGILAW 688 (MP)

THAMAN BARMAIYA v. SHASHI KARNA

2000-07-20

C.K.PRASAD

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C. K. PRASAD, J. ( 1 ) PETITIONER (hereinafter referred to as the 'returned candidate') as also respondent No. 2 (hereinafter after referred to as the 'election petitioner') were candidates for election to the office of the Vice-President of the Janpad Panchayat, Mandla, for which election was held on 29-2-2000. In the said election 24 Janpad Panchayat members exercised their right of franchise. In the counting, two votes were declared invalid and out of remaining 22 valid votes, returned candidate as also the election petitioner secured 11 votes each. As both the candidates have secured equal number of votes, election was decided by lot as contemplated under Rule 16 (7) (ii) of the M. P. Panchayat (Upsarpanch, President and Vice President) Nirvachan Niyam, 1995. In this exercise, returned candidate was declared elected. ( 2 ) AGGRIEVED by the same, election petitioner filed election petition as provided under Section 122 of the M. P. Panchayat Raj Act, 1993. Election Petitioner, in his election petition, averred that although he had secured 12 votes, but one vote was wrongly declared invalid by the Presiding Officer and therefore, both the candidates having secured equal number of votes, returned candidate was declared elected in the draw of lot. Accordingly, prayer made by the petitioner in the election petition was to declare the election, of the returned candidate to be void and further prayer made by him was to declare him to have been duly elected having secured 1 vote more than thereturn candidate. Returned candidate appeared and filed his reply. Various pleas have been taken by the returned candidate in his reply, but in view of the order which I propose to pass in this writ petition, I deem it inexpedient to give in detail the pleas taken by the returned candidate. Suffice it to say that the assertion made by the election petitioner that one vote cast in his favour was wrongly rejected, has been denied by the returned candidate. Election petition was posted for consideration before the Additional Collector on 13-3-2000 and after hearing the counsels for the parties, Addl. Collector held that for the decision of the question involved in the election petition, no evidence is required to be led. Accordingly, by the said order, it directed for scruting of the invalid votes and fixed 16th of March 2000 as the date of its scruting. Collector held that for the decision of the question involved in the election petition, no evidence is required to be led. Accordingly, by the said order, it directed for scruting of the invalid votes and fixed 16th of March 2000 as the date of its scruting. After scruting, it was found that one vote cast in favour of the election petitioner was wrongly declared invalid and accordingly, the Addl. Collector found that the election petitioner has secured one vote more than the returned candidate and as such declared election of the returned candidate to be void and further declared the election petitioner to have been duly elected. ( 3 ) AGGRIEVED by the same, returned candidate has preferred this writ petition under Art. 227 of the Constitution of India and prays for quashing of the order dated 16th of March, 2000 (Annexure P4) whereby his election as Vice President of Janpad Panchayat has been set aside and election petitioner has been declared to have been validly elected. ( 4 ) MR. D. N. Shukla, appears on behalf of the petitioner whereas respondent No. 2 is represented by Shri Sanjay Patel. No body appears on behalf of respondents No. 1 and 3. Mr. Shukla submits that when the parties joined issue as to whether one vote polled in favour of the election petitioner was illegally rejected, it was incumbent upon the Addl. Collector, trying the election petition to ask the parties to adduce evidence and she straightway ought not to have directed for scrutiny of the invalid ballot papers without being prima facie satisfied as to whether the vote cast in favour of the election petitioner was wrongly rejected. Mr. Sanjay Patel appearing for respondent No. 2, however, submits that on the pleadings of the parties, Addl. Collector trying the election petition found that for decision of the issue, no evidence is required and accordingly, she directed for scrutiny of the rejected ballot papers and on such scrutiny it was found that one vote polled in favour of the returned candidate was wrongly rejected. He submits that in the rejected ballot paper, the intention of the voter was writ large that he cast his vote in favour of the election petitioner and that being so the Addl. He submits that in the rejected ballot paper, the intention of the voter was writ large that he cast his vote in favour of the election petitioner and that being so the Addl. Collector did not err in holding that the said vote was illegally declared invalid relying on the decision of this Court in case of Ravi Thakur v. Shiv Shankar Patel, (1997) 2 MPLJ 649 : (AIR 1997 Madh Pra 136 ). ( 5 ) HAVING appreciated the rival submission, I am of the opinion that the Addl. Collector, directed for scruting of the rejected ballot papers in a routine manner, which is impermissible in law. It is relevant here to state that the election petitioner as also the returned candidate joined issue as to whether one vote polled in favour of the election petitioner was wrongly rejected. In my opinion, when the parties have joined the issue as regards to the invalidity of one vote cast in favour of the election petitioner, the Addl. Collector ought not to have straightway directed for scrutiny of the rejected ballot papers. Before issuing such direction, Additional Collector was required to record her prima facie satisfaction that making of such an order is necessary to do complete justice between the parties. Here, in the present case, the Addl. Collector, without giving any opportunity to the parties to lead evidence and without recording satisfaction as regards to the prima facie case of the election petitioner, directed for scruting of the rejected ballot papers. The procedure adopted by the Addl. Collector while trying the election petition is thus unknown to law and this itself vitiates her order. The view which I have taken finds support from the judgment of the Supreme Court in case of Chaitanya Kumar Adatiya v. Sushila Dixit, 1976 Jab LJ 592 : (AIR 1975 SC1718) in which it has been held as follows (at p 1720 of AIR) :-"this Court in a series of decisions has held that an order for inspection of election papers cannot be made as a matter of course and that it is only when on the basis of evidence adduced allegations of irregularity are prima facie established and the Court is prima facie satisfied that the making of such an order is necessary to do complete justice between the parties that an order for inspection would be justified. The purpose of inspection is not to enable the election petitioner to fish for evidence. We do not think the High Court was wrong in refusing the prayer for inspection in this case; the substance of the evidence and other circumstances referred to above clearly show that the petitioner had failed to fake out a prima facie case for inspection. " ( 6 ) ELECTION petitioner as also the returned candidates shall appear before the Additional Collector on 7th August, 2000. Additional Collector after giving opportunity to them to lead evidence, shall decide the election petition in accordance with law expeditiously, preferably within a period of six weeks from the date of appearance of the parties. Any observation made in this order shall have no bearing on the merits of the case of the parties. ( 7 ) IN the result, writ petition is allowed. Impugned order of the Addl. Collector dated 16-3-2000 is quashed and the matter is remitted back to her for decision, in accordance with law. No cost. Petition allowed. .