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Madhya Pradesh High Court · body

2001 DIGILAW 581 (MP)

Chandra Bai v. State of M. P.

2001-08-08

DIPAK MISRA

body2001
ORDER 1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for issue of a writ of certiorari for quashment of order dated 11.4.2001 passed by the Sub-Divisional Officer-cum-Specified Officer in Election Petition No. 24-N89/99-2000 and further to command the respondents to permit the petitioner to discharge his duties as Sarpanch. 2. The facts as have been uncurtained are that the petitioner was the elected Sarpanch of Gram Panchayat, Hatnora in the district of Betu\. The election in question for the post of Sarpanch of the aforesaid Gram Panchayat was held on 28.1.2000 in which the respondents No.4 to 9 filed their nomination papers. In the election, the petitioner secured 328 votes and respondent No. 4 obtained 246 votes and accordingly the petitioner was declared elected. The respondent No.3 being aggrieved by his mother's defeat, instituted a proceeding under section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') alleging that the petitioner has been elected by adopting corrupt practices. After issuance of notice by the Election Tribunal, the petitioner and other respondents entered their appearance and the petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure taking preliminary objection regarding maintainability of the petition filed by the respondent No.3. The Election Tribunal rejected the preliminary objection raised by the petitioner. Thereafter, the petitioner filed his written statement refuting the allegations made in the petition. While the matter was pending before the Specified Officer the respondent No.3 prayed for recounting of the votes and expressed his willingness not to adduce any evidence. The respondent No. 2 directed him to file an application in this regard. On 8.3.2001, the respondent No.3 gave his consent for recount of votes and filed an application indicating that he would be bound by the decision of recounting. Thereafter the Specified Officer summoned the entire record regarding the election and without framing any issues and without recording any evidence directed for recount of votes ignoring the objection of the petitioner. After recounting, he found that petitionerhad obtained 240 votes whereas the nearest candidate, respondent No. 4, had secured 245 votes, and accordingly, he declared the respondent No.4 to be the elected Sarpanch of the aforesaid Gram Panchayat and allowed the application of respondent No.3. 3. After recounting, he found that petitionerhad obtained 240 votes whereas the nearest candidate, respondent No. 4, had secured 245 votes, and accordingly, he declared the respondent No.4 to be the elected Sarpanch of the aforesaid Gram Panchayat and allowed the application of respondent No.3. 3. It has been averred in the petition that recount has been ordered in violation of provisions of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as the 'Nirvachan Niyam') and without considering the objection raised by the petitioner. It has also been urged that the recount has been directed to be done without framing any issue and recording any evidence. 4. A return has been filed by the respondent No.4 contending, inter alia, that the petitioner herself on 17.1.2001 had submitted that in case the election petitioner is satisfied with the recounting then she will have no right and opportunity of leading evidence on the averments made in the election petition with regard to the court practice. Keeping in view the aforesaid concession, the Specified Officer, by order dated 26.2.2001, recorded that the recounting should be done. In essence, it has been pleaded that petitioner has given consent for recount and accordingly recounting has been done and results have been published, and hence, the petitioner cannot take a somersault and challenge the same invoking the extraordinary jurisdiction of this Court. 5. A return was filed by the respondent No.3 adopting the return of respondent No.4. The said respondent has also stated that the petitioner had given her concession for recounting as she was very much aware that rule 29 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules. 1995 (hereinafter referred to as 1995 Rules') clearly stipulates that a person who is involved in Court practice will be disqualified for a period of SIX years. 6. The writ petition was listed on 19.4.2001 on which date Mr. L.S. Baghel, learned senior counsel, had submitted that he has instructions' to appear on behalf of respondent No.4. A direction was given to effect service of notice by 'Hamdast'. The matter was taken up on 3.5.2001 on which date a direction was given to the learned Government Advocate to produce the relevant file. L.S. Baghel, learned senior counsel, had submitted that he has instructions' to appear on behalf of respondent No.4. A direction was given to effect service of notice by 'Hamdast'. The matter was taken up on 3.5.2001 on which date a direction was given to the learned Government Advocate to produce the relevant file. As the main contesting parties, i.e., respondents No.3 & 4 have appeared and filed their return, the matter was taken up for final hearing on the consent of learned counsel for appearing parties. 7. It is submitted by Mr. Rakesh Jain, learned counsel for the petitioner, that the order dated 11.4.2001 passed vide Annexure P-10 is liable to be quashed inasmuch as that is the consequence of the order of recount and such an order could not have been passed as the petitioner had never given her consent for recounting either by herself or through her counsel. It is further urged by him that even if there is concession, the order of recount could not have been directed by the Specified Officer. The learned counsel has submitted that as the final order is a logical corollary of recount which is indefensible in law, the same is sensitively susceptible. The learned counsel has placed reliance on the decisions rendered in the cases of P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and others ( AIR 1989 SC 640 ), Chironjilal v. SDO Vijaypur [1996 (I) MPWN 109], Gajanand v. Ramcharan [1997 (II) MPWN 4], Pushpendra Singh v. Padmakar and others, ( 1981 JLJ 351 ), Kailash Singh v. Narayan Singh and others, [ 1999 (1) JLJ 342 ] and Uday Singh v. Himmat Singh and others, [ 1999 (1) JLJ 200 ]. 8. Mr. L.S. Baghel, learned senior counsel for the contesting respondents, has submitted that there is clear cut consent by the petitioner, and accordingly, the recounting has been done and when the order of recount has been passed on the foundation of consent, no fault can be found with it. Leamed senior counsel has placed heavy reliance on the decision rendered in the cases of Shri Mahender Singh v. Huku111 Singh and others ( AIR 1993 P&H 172 ), Gendalal v. Narayn Acharya and others (1981 JLJ 163) and Sukhad Raj Singh v. Ram Harsh Misra and others ( AIR 1977 SC 681 ). 9. Leamed senior counsel has placed heavy reliance on the decision rendered in the cases of Shri Mahender Singh v. Huku111 Singh and others ( AIR 1993 P&H 172 ), Gendalal v. Narayn Acharya and others (1981 JLJ 163) and Sukhad Raj Singh v. Ram Harsh Misra and others ( AIR 1977 SC 681 ). 9. Before I advert to the issue whether the consent can confer the jurisdiction on the Election Tribunal to direct for recount, I think it apposite to deal with the law relating to recount and further whether there was consent in the present case or not. It may be stated here that if eventually this Court comes to the conclusion that consent docs not confer jurisdiction on the Tribunal to direct for recount, it would be unnecessary to adjudicate whether there was consent or not. Accordingly, I proceed. 10. In the case of Ram SeIVak Yadm' v. Hussain Kamil Kidwai ( AIR 1964 SC 1249 ), the Apex Court ruled thus: "An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: . (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the pm1ies, inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out of material facts. To establish a case so pleaded, an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. " 11. In the case of Bhabhi v. Sheo Govind and others [ (1976) 1 SCC 687 ], the Apex Court rule thus: "15. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. " 11. In the case of Bhabhi v. Sheo Govind and others [ (1976) 1 SCC 687 ], the Apex Court rule thus: "15. Thus on a close and careful consideration of the various authorities of this Court from time to time, it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter, sample inspection, of the ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the al1egation made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made for• a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection, it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case, sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. If all these circumstances enter into the mind of the Judge and he is. satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper." 12. In the case of P.K.K. Shamshudeen (supra), the Apex Court, while dealing with the case relating to Tamil Nadu Panchayats Act in paragraphs 13 and 14 held as under: "13. Thus the settled position of law is that the justification for an order for examination of bal10t papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. Thus the settled position of law is that the justification for an order for examination of bal10t papers and recount of votes is not to be derived from hindsight 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 actual1y made. The reason for this 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. The right of a defeated candidate to assail the validity 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 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 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. "14. Viewed in the light of these well enunciated principles, we find that 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 ballot being breached in the petitioner's case. Factors urged before us by Mr. Pandamanabhan such as that the first respondent 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." 13. In the case of Shri Satyanarain Dudhani v. Uday Kumar Singh and others ( AIR 1993 SC 367 ), their Lordships held as under: "10. It is thus obvious that neither during the counting nor on the completion of the counter, there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. It is thus obvious that neither during the counting nor on the completion of the counter, there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer. We are of the view, when there was no contemporaneous evidence' to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. "It is settled propostion of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence, that the recount can be ordered." 14. In the case of Vadivelu v. Sundaram and others [ 2000 (6) Scale 719 ], the Apex Court held as under: "This Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner wh0 seeks recount should allege and prove that there was improper acceptance of valid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegation of illegality or irregularity in counting. But i(it is proved that purity of elections has been tarnished and it has materiany affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties." (Quoted from the placitum) 15. But i(it is proved that purity of elections has been tarnished and it has materiany affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties." (Quoted from the placitum) 15. In the case of Chironjilal (supra), wherein a reference has been made to the decision rendered in the case of Shukhad Raj Singh v. Ram Harsh Mishra, the learned Single Judge opined that the matter was being dealt with at the Supreme Court stage and all that was agreed to was that parties abide by the result and the recounting was to be done by the Joint Registrar of the High Court. The learned Judge further opined that reading of the above judgment only brings out that the agreement was to the effect that the Joint Registrar of the High Court would supervise the recount and that would be final and same does not support the proposition that recounting could be ordered on the basis of consent. 16. In the case of Gajanand (supra), another learned Single Judge of this Court referred to the decision rendered in the case of Chironjilal (supra) and another decision rendered in the case of Devki Bai v. SDO and others (W.P. No. 3938/95 decided on 3.2.1997) and came to hold that consent of parties cannot confer jurisdiction to inspect the ballot papers and direct for recounting. 17. In the case of Pushpendra Singh this Court came to hold as under:. "11. So far as the present case is concerned, it is accepted position that no evidence whatsoever was led before the Election Tribunal by the, election petitioner so as to establish and substantiate in any acceptable measure by means of evidence, a prima facie case having in existence high degree probability for recount of the ballot papers." 18. In the case of Kailash Singh (supra), learned Single Judge, after discussing the law in the field, came to the conclusion that recount of votes cannot be ordered on mere pleadings and there should be evidence to support the order of recount. In the case of Kailash Singh (supra), learned Single Judge, after discussing the law in the field, came to the conclusion that recount of votes cannot be ordered on mere pleadings and there should be evidence to support the order of recount. The learned Judge further came to hold as under: "11 ...........Unless the election petitioner not only pleads and discloses the material facts but also substantiates the same by evidence of reliable character, a prima facie case for recounting is not made out and the Tribunal would not be justified in directing the same." 19. At this juncture, I am obliged to refer to the citations relied upon by Mr. Baghel. As has been stated earlier in the case of Chironjilal (supra), the learned Single Judge has referred to the case of Sukhad Raj Singh (supra) and distinguished the same. I am in respectful agreement with the view taken therein. In the case of Gajanand (supra), S.K. Dubey, J. took note of the decision rendered in the case of Shri Mahender Singh (supra) but concurred with the view taken in the case of Chironjilal (supra). Mr. Baghel has heavily relied on the decision rendered in the case of Gendalal (supra) to buttress his contention that the said decision is that of a Division Bench and therein this Court has held that recount can be ordered on consent without adducing of evidence and as there is no reference to the said decisions rendered by the learned Single Judges, they are not binding precedents and the decision rendered in the case of Gendalal (supra) is a binding precedent. The learned counsel has referred to the paragraphs 7 and 11 of the aforesaid decision. As heavy reliance has been placed on the aforesaid paragraphs I think it appropriate to reproduce the same: "7. Now, the petitioner had not objected to the recount. The petition contains averments that majority of the votes were cast in favour of the respondent No. 1 and it was due to bungling of the counting officers that certain votes cast in his favour had been wrongly rejected and those that ought to have been rejected have been wrongly counted in favour of the petitioner. . 11. On 30.7.1979, when the SDO ordered record to be inspected, no objection was taken. On 1:8.1979, the record was opened and the inspection conducted. . 11. On 30.7.1979, when the SDO ordered record to be inspected, no objection was taken. On 1:8.1979, the record was opened and the inspection conducted. The doubtful votes were separated in presence of the parties. On 2.8.1979 also, no objection was taken. It is after this that the recount was done and it was found that the petitioner had received lesser number of votes~ If no material particulars are given, the Tribunal has authority to strike out the allegations. Assuming that the allegations in the petition had not been struck out, the petitioner would have to show how he had been prejudiced in the procedure adopted in continuing with the trial of the petition." 20. At this juncture, I think it proper to mention that on a perusal of the entire judgment, it does not appear that that was the case where evidence was not adduced as the Bench has observed that no objection was taken to the order of recount. The Division Bench has not laid down as a proposition of law that on consent recount can be ordered. It is well settled in law that a decision is a precedent for the propostion what it states and not what logically follows from it. In this context, I may usefully refer to the decision rendered in the case of Ambica Quarry Works etc. v. State of Gujarat and others, ( AIR 1987 SC 1073 ), wherein the Apex Court ruled thus: "The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it." (Quoted from the placitum) 21. Tested on the anvil of the aforesaid principle, there remains no scintilla of doubt that the decision rendered in the case of Gendalal (supra) is not a precedent for the proposition that on consent the Election Tribunal can direct for recount of votes. 22. In view of the preceding analysis, I am of the considered opinion I that consent of parties cannot confer jurisdiction on the Tribunal to direct recount of votes. 23. Another facet of argument which was assiduously urged by Mr. Baghel is that by virtue of order of recount, the respondent. 22. In view of the preceding analysis, I am of the considered opinion I that consent of parties cannot confer jurisdiction on the Tribunal to direct recount of votes. 23. Another facet of argument which was assiduously urged by Mr. Baghel is that by virtue of order of recount, the respondent. No.4 has secured more votes and has been declared elected and the material on record would show that the petitioner has taken recourse to illegal and improper method to obtain more votes, the final order should not be disturbed. The aforesaid submission is absolutely sans substance inasmuch as in the case of P.K.K. Shamsudeen (supra) the Apex Court in paragraph 15 held as under: "15. Mr. Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of N. Gopal Reddy v. Bonalal Krishnamurthy, C.A. No. 3730 (NCE) of 1986 reported in 1987 JT 406 = AIR 1987 SC 831 and hence it would be travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured 28 votes less than the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes." 24. In this context I may profitably refer to the decision rendered in the case of V.S. Achuthanandan v. P.J. Francis and another [ (2000) 3 SCC 81 ] wherein the Apex Court ruled thus : "14. Once a recount is validly ordered, the statistics revealed by the recount shall be available to be used for deciding the election dispute. In this context I may profitably refer to the decision rendered in the case of V.S. Achuthanandan v. P.J. Francis and another [ (2000) 3 SCC 81 ] wherein the Apex Court ruled thus : "14. Once a recount is validly ordered, the statistics revealed by the recount shall be available to be used for deciding the election dispute. However, if the validity of an order passed by the High Court permitting inspection of ballot papers and directing a recount is brought in issue before the Supreme Court, the facts revealed by recount cannot be relied upon by the election petitioner to support the prayer and sustain the order for recount if the pleadings and material available on record anterior to actual recount did not justify grant of prayer for inspection and recount." 25. In view of the aforesaid enunciation of law, it is plain as noon day that result of recount cannot justify the result of election for the simple reason, the order cannot be scrutinised from hindsight. Hence, the submission of Mr. Baghel, being sails substance, is repelled. 26. As I have already .held that consent does not confer jurisdiction on the Election Tribunal to direct for recount of votes it is absolutely unnecessary to deal with the aspect whether there was consent or not. It is relevant to mention here that though Mr. Rakesh Jain, learned counsel for the petitioner, had addressed this Court by referring to the various orders to show that consent was not given either by the petitioner or his counsel, as the factum of consent has no significance in law, it is unnecessary to scrutinise the same and accordingly I refrain from doing so. 27. In view of my preceding analysis, the writ petition is allowed and impugned order dated 11.4.2001 contained in Annexure P-10 is quashed. However, it is observed that it is open to the election petitioner to adduce evidence in support of his pleas and substantiate the same to make out a case for recount. The petitioner will reap all the consequences of this order and would remain in his post of Sarpanch. In the peculiar facts and circumstances of the case, there shall be no order as to costs.