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Madhya Pradesh High Court · body

2001 DIGILAW 674 (MP)

Arunendra Pratap Singh v. State of M. P.

2001-09-11

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 issuing a writ of' ceritorari for quashment of the order dated 24.3.2001, Annexure P-2, passed by the Specified Officer-cum-Sub-Divisional Officer, Raghuraj Nagar, Satna in election petition No. 4-C 144/99-2000 and to grant such other reliefs as may be deemed fit and proper in the facts and circumstances of the case. 2. The facts as have been uncurtained are that the petitioner was elected to the post of Sarpanch, Gram Panchayat, Karigohoni situate at Satna. He had won the election by a margin of 23 votes. The respondent No. 3 filed an election petition under section 122 of M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act') before the respondent No.2 assailing the election of the petitioner on the ground of improper counting of votes. In the election petition it was putforth by the respondent No.3 that his application for recount was not accepted by the Returning Officer but no copy of the application for recount was filed before the Specified Officer. It is putforth that the respondent No. 2 without framing any issue required the parties to lead evidence. Though nothing substantially came out in the evidence yet the Specified Officer allowed the election petition of the respondent No.3 and directed recount of votes. The order dated 24.3.2001 by which recount was ordered, has been brought on record as Annexure P~2. The said order was kept in abeyance by the respondent No.2 till 1.4.2001. 3. It has been urged that the order of recount is illegal and unjustified and not passed on the basis of evidence on record. It has been further averred that when the respondent No.3 had not even filed the copy of the application for recount before the respondent No.2, the Tribunal could not have ventured to direct the recount of votes. It has been pleaded that when no issue had been framed with regard to recount of votes, the Tribunal could not have allowed the election petitioner to lead evidence on that score and that only makes the order vulnerable in law. 4. I have heard Mr. Arpan Pawar, learned counsel for the petitioner and Mr. Vivek Awasthy, learned Government Advocate for the respondent No.2 and Mr. D.K. Dixit, learned counsel for the respondent No.3. 5. 4. I have heard Mr. Arpan Pawar, learned counsel for the petitioner and Mr. Vivek Awasthy, learned Government Advocate for the respondent No.2 and Mr. D.K. Dixit, learned counsel for the respondent No.3. 5. It is submitted by Mr. Pawar, learned counsel for the petitioner that the order of recount passed by the Specified Officer is absolutely unjustified in the facts and circumstances of the case inasmuch as there was no proof that an application for recount was filed before the Specified Officer and further no proper evidence has been brought on record justifying the recount of votes. Mr. Vivek Awasthy, learned counsel for the respondents No.1 and 2 had supported the order passed by the Tribunal. Mr. Dixit, learned counsel for the respondent No.3, the election petitioner before the Tribunal, has submitted that the order passed by the Specified Officer is not vulnerable inasmuch as he has considered the facts and circumstances from all counts and had passed the order. It is also putforth by him that all conditions precedent for passing the order of recount were satisfied and hence, no fault can be found with the order passed by the competent authority. 6. To appreciate the rival submissions raised at the Bar, I have carefully perused the impugned order contained in Annexure P-2. The Tribunal has narrated the pleadings in paragraph 3 of the order. In the pleadings, as it appears, the respondent No.3 has made allegation that there were gross irregularities while counting took place and on the objection submitted by the agent of the election petitioner no action was taken. It is also pleaded in the petition that the counting started at 6 p.m. and continued till 10 p.m. and during that period the electricity supply was not available on 2 to 3 occasions. In paragraph 4 of the order the Tribunal has referred to the evidence adduced by the witnesses on behalf of the parties. The Tribunal has discussed the evidence of those witnesses who have deposed the failure of electricity and that certain valid ballot papers were not counted in favour of the election petitioner and were declared invalid and the returned candidate got more votes though he was not entitled to the same. He has discussed the evidence that some of the counting assistants counted certain invalid votes in favour of the respondent No. 3 before the Tribunal. He has discussed the evidence that some of the counting assistants counted certain invalid votes in favour of the respondent No. 3 before the Tribunal. The Tribunal has also discussed the evidence adduced by the present petitioner who had deposed that during the period when the electricity supply was not available the votes were counted with the help of light available by generator as well as by gas light. It is also deposed by him that the counting was done with all propriety inasmuch as the distance between the tables and counting agents was hardly 1-1/2 metre and all the ballot papers were clearly visible. It has been deposed by him that during the counting the competent authority was present but no complaint was lodged assailing the counting process. Other witnesses who deposed also supported the version of the respondent No.3 before the Tribunal. In paragraph 5 of the order the Tribunal has referred to the submissions raised by the learned counsel for the parties. After referring to the submissions the Tribunal in paragraph 6 has held that upon perusal of the application, the written statement and documents and evidence brought on record it was required that recount was to be directed. 7. The question that falls for consideration is whether the Tribunal is justified in directing for recount. It is submitted by Mr. Pawar that no proper evidence has been adduced with the application filed for account. It is apposite to state that Mr. Awasthy, learned Government Advocate has produced the record of the Election Tribunal. On a perusal of the said record it transpires that certain documents have been marked as Exhibits P-1 to P-11. On a scrutiny of the same it is noticeable that the election petitioner filed an affidavit which has been marked as Ex. P-9. The deponent, one Mohanlal, has stated that the election petitioner had applied for recount but the Returning Officer did not do the recount and said that he had no authority to pass orders for recount. The application filed by the election petitioner has not been brought on record. No efforts have been made to bring such documents on record. That apart the Returning Officer has not been summoned as a witness. The application filed by the election petitioner has not been brought on record. No efforts have been made to bring such documents on record. That apart the Returning Officer has not been summoned as a witness. In this context I may profitably refer to the decision rendered in the case of Ram Rati v. Saroj Devi and others [1997 (2) Vidhi Bhasvar 195 = AIR 1997 SC 3072 ], wherein after referring to rule 76 of M.P. Panchayat Elections Rules, 1994 which is parimateria to the rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995 their Lordships in paragraph 8 held as under: "8. It is difficult to give acceptance to the contention 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. 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, as contended by the appellant, 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 itself 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 us 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 afterthought. The Tribunal, therefore, has committed manifest error in directing recount." If the present factual matrix is tested on the anvil of the aforesaid enunciation of law, I am of the considered opinion that as in the present case there is no proof that any application was filed for recount before the competent authority, no evidence could have been adduced in that regard before the Election Tribunal and hence, the order of recount could not have been passed by the Election Tribunal. 8. Apart from the aforesaid reasoning, on a perusal of the evidence on record and order passed by the Tribunal it appears that the Tribunal has been persuaded by the fact that there was failure of electricity on two or three occasions which affected the counting process. On a scrutiny of the impugned order it is absolutely apparent that the Specified Officer, in an abrupt manner, has arrived at the conclusion. On a proper appreciation of the evidence on record it becomes perceptible that there was no cogent evidence to make out a case for recount. It is well settled in law that recount should not be directed for the asking. The power of an Election Tribunal for directing recount has to be sparingly used. In the case of Vadivelu v. Sundaram and others [ 2000 (6) Scale 719 ], it has been 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 who 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 allegations of illegality or irregularity in counting. 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 allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially 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) On the anvil of the aforesaid enunciation• of law the order of recount passed by the Specified Officer is also unsustainable. 9. At this juncture, I may hasten to add that on the first ground alone the recount could not have been ordered as the condition precedent was not satisfied but as I have referred to reasonings of the Tribunal, I have thought it apposite to hold that even otherwise the order of the Tribunal is unsustainable. 10. In view of my preceding analysis, the Writ Petition is allowed and the order for recount passed vide Annexure P-2 is quashed. However, in the peculiar facts, and circumstances of the case there shall be no order as to costs.