Research › Search › Judgment

Madhya Pradesh High Court · body

2002 DIGILAW 383 (MP)

Lakhan Lal Patel v. State of M. P.

2002-04-03

BHAWANI SINGH, RAJENDRA MENON

body2002
Judgment ( 1. ) THIS Letters Patent Appeal arises out of judgment dated 26-2-2001 passed in W. P. No. 1603/2001. ( 2. ) SHRI Ram Prakash Shrivastava, respondent No. 4 was declared elected as Sarpanch of Gram Panchayat Natwara, Block Sahpura, Tehsil Patan, District Jabalpur reserved for general (male candidate ). The election was held on 28-1-2000. As many as 14 persons including the appellant Lakhan-lal patel participated in the election. In the result which was declared after the election respondent No. 4 secured 323 votes and was declared elected whereas the appellant secured only 259 votes. He filed election petition under Section 122 of the M. P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as act) challenging the action of respondent No. 4. ( 3. ) THE election Tribunal, after considering the evidence and material produced before it vide order dated 26-2-2001 (document No. 1) directed for recounting of votes. Recounting of votes was undertaken and by order dated 24-3-2001 (document No. 6) the appellant was declared elected. He secured 249 votes whereas the respondent No. 4 secured only 245 votes. ( 4. ) BEING aggrieved by the orders (document No. 1) dated 26-2-2001 and (document No. 2) dated 24-3-2001 respondent No. 4 filed W. P. No. 1603/2001 and the learned Single Judge by order dated 4-10-2001 has allowed the petition and quashed the orders. Hence this appeal. ( 5. ) WE have heard Shri Mohd. AH, learned Counsel for the appellant and Shri S. K. Seth, Addl. Advocate General for respondent Nos. 1 to 3 and Shri Rajendra Tiwari, Senior Counsel with Shri R. K Verma for respondent No. 4. On behalf of the appellant it is contended that the appellant had filed application for recounting before the Returning Officer as required under Rule 80 of the M. P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to as election Rules) but the Returning Officer returned it to the appellant without passing any order. It is also submitted that the Returning Officer was relative of respondent No. 4 Shri Ram Prakash Shrivastava, therefore, he had tampered with the election process to help respondent No. 4. Further, submission of the learned Counsel is that the Election Tribunal having decided petition on the basis of evidence and material on record, the finding of fact has been interferred with by the learned Single Judge which is not proper. ( 6. Further, submission of the learned Counsel is that the Election Tribunal having decided petition on the basis of evidence and material on record, the finding of fact has been interferred with by the learned Single Judge which is not proper. ( 6. ) THE aforesaid submissions are refuted by the learned Counsel for the respondents and it is submitted by them that the learned Single Judge, on correct interpretation of the rules and the provisions, has dismissed the petition, therefore, no interference in this appeal is called for. ( 7. ) RULE 80 of the Election Rules, 1995 reads as under :- "recount of votes.-- (1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under Sub-rule (2) of Rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which he demands such recount. (2) On such an application being made the Returning Officer or such other officer authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (3) Every decision of the Returning Officer or such other officer authorised by him, under Sub-rule (2) shall be in writing and contain the reasons therefore decides under Sub-rule (2) to allow an application either in whole or in part, he shall- (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet to the extent necessary after such account; and (c) announce the amendment so made by him. (5) After the total number of votes polled by each candidate has been announced under Sub-rule (2) of Rule 17 or Sub-rule (4) the Returning Offer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidate and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (1 ). (6) The counted ballot papers shall be bundled and kept in the manner mentioned Sub-rule (3) of Rule 77. (7) Result sheets in Forms 16 17, 38 and 19 for Panch, Sarpanch, Member of Janpad Panchayat and Member of Zila Panchayat respectively, prepared by such other officers as are authorised by the Returning Officer, shall be submitted by them, in separate envelops to the Returning Officer for compilation and tabulation of votes polled by each candidate. (8) The Returning Officer on receipt of result sheets under Sub-rule (7) shall enter of cause to be entered the total number of votes polled by each candidate contesting for a seat of Sarpanch, Member of Janpad Panchayat or Member of Zila Panchayat at each polling station of the concerned constituency in subsequent part or parts of Forms 17, 18 and 19 respectively and complete and sign the result sheet. " ( 8. ) PERUSAL of the aforesaid rule indicates that recounting of the votes can be permitted only if a written request is made to the Returning Officer immediately after announcement of the election result. Filing of written application is therefore a mandatory condition for claiming recounting. Rule 80 of the Election Rules Rules is pari materia with Rule 76 of the M. P. Panchayat Election Rules, 1994. The said Rule of 1994 was considered by the Honble Supreme Court in the case of Shri Ramrati v. Saroj Devi (AIR 1994 SC3072), in the said case, Supreme Court has interpreted the rule as under :- "6. 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 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 us 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 the 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 facts 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 docs 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. " ( 9. ) IT is clear that recounting of votes in Panchayat Elections can be claimed only if an application in writing is presented before the Returning Officer immediately after announcement of result. The question requiring consideration is whether such an application was filed by the appellant. ( 10. ) THE appellant has made averments in para 14 of his election petition and has stated that he submitted an application to the Returning Officer on 28-1-2000 immediately after announcement of result requesting for recounting, but the said application was returned by the Returning Officer and no order was passed as required under Rule 80 of the Election Rules. Except for this averment and his oral statement before the Election Tribunal no other material has been produced. It is surprising that the said application was neither filed with the election petition nor it is available on the record of writ petition or this appeal. If such an application was presented and returned then, the same should be available with the appellant and he should have produced the same in these proceedings. It is surprising that the said application was neither filed with the election petition nor it is available on the record of writ petition or this appeal. If such an application was presented and returned then, the same should be available with the appellant and he should have produced the same in these proceedings. It is therefore nothing but an afterthought. ( 11. ) IN the Election Rules, authorities have been prescribed for conducting election. The Election Commission, Madhya Pradesh is the highest authority, thereafter the District Election Officer appointed by this Election Commission, required to see that the elections are properly conducted and he is to supervise the functions of the Returning Officer. It is surprising that the appellant has not made any complaint to these authorities with regard to the action of the Returning Officer in refusing to accept his application for recounting. Therefore, we have no hesitation in holding that no such application for recounting was filed by the appellant therefore, there was no question of Returning Officer passing orders thereon in terms of Rule 80. The contention has no basis having been put up by way of an afterthought, therefore, rejected. ( 12. ) EVEN though some allegations have been made with regard to the conduct of the Returning Officer and some efforts were made to indicate that he was related to respondent No. 4 and tried to help him, but there is no evidence on record to establish what exact relationship, existed between the Returning Officer and respondent No. 4. The witnesses produced by the appellant have only stated that they had seen the Returning Officer going to the house of respondent No. 4, therefore, they concluded that there was some relationship between them, which means nothing. Thereafter, the appellant has failed to establish any such relationship between the Returning Officer and respondent No. 4. This apart, there is nothing to indicate that the Returning Officer has acted contrary to any statutory provisions. ( 13. ) WE are, therefore, of the considered view that there is no merit in the appeal and the order passed by the learned Single Judge does not call for any interference in the present appeal. The appeal is accordingly dismissed. The parties to bear their own costs.