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2005 DIGILAW 466 (MP)

Ram Rati v. Sub-Divisional Officer.

2005-04-01

K.K.LAHOTI

body2005
Judgment ( 1. ) PETITIONER has invoked power of superintendence under Article 227 of the Constitution of India, challenging the validity of order dated 4-10-2004 by Sub-Divisional Officer, Gopadbanas, District Sidhi in Election Petition No. 1/2003-04 (Shivkali v. Dashmanti and Ors.), by which the respondent No. 1 directed recounting of votes for the election held on 20th December, 2002 for the post of Sarpanch, Gram Panchayat, Kukudijhar Gopadbanas, District Sidhi. ( 2. ) THE facts necessary for the decision of the case as stated by respondent No. 2 Shivkali in the election petition filed before respondent No. 1 are that election of Sarpanch, Gram Panchayat, Kukudijhar was held on 20-12-2002. In the said election respondent No. 2 and petitioner were rivals apart from other six rival candidates. During the course of counting of votes there was manipulation and the valid votes received by respondent No. 2 were kept in rejected votes. In the result it is declared that petitioner Ram Rati got 318 votes and respondent No. 2 got 317 votes and by a margin of only one vote petitioner was declared elected Sarpanch for the one post. Respondent No. 2 immediately applied for recounting, but her application was not accepted. Thereafter on the same day at 7. 30 P. M. respondent No. 2 filed an application for re-counting to the Election Officer, but he returned it and thereafter the election petition was filed. The main allegation in the petition is that valid votes received by respondent No. 2 were kept in the rejected votes, which affected the interest of respondent No. 2 seriously. On the aforesaid ground the election petition has been filed with a prayer for recounting and for declaration of result of petitioner as invalid. ( 3. ) THE petitioner by filing reply contested the election petition and all the allegation of election petition have been denied. The petitioner also raised a contention that the election petition is not verified and is liable to be dismissed. Respondent No. 1 framed - issues and recorded - evidence of parties. Respondent No. 1 while deciding issue No. 1 found that the election petition has been verified by filing affidavit of respondent No. 2, which is proper and on this ground the election petition can not be rejected. Respondent No. 1 framed - issues and recorded - evidence of parties. Respondent No. 1 while deciding issue No. 1 found that the election petition has been verified by filing affidavit of respondent No. 2, which is proper and on this ground the election petition can not be rejected. While deciding issue No. 2 in respect of recounting the respondent No. 1 considered the evidence of respondent No. 2 and her witnesses Ramratan Gupta, Zalim Singh and Abhimanyu Singh, who have stated that the valid votes were kept in invalid (rejected) votes and thereafter the petitioner was declared as returned candidate. The respondent No. 2 filed an application for recounting, but it was rejected by the Presiding Officer. The petitioner examined herself and also witnesses Kailash Prasad and Virendra Kumar, who have stated that there was proper counting of votes and no application for recounting was filed by respondent No. 2 to the Presiding Officer. The respondent No. 1 considering the evidence and impressed with the fact that there is difference of only one vote and there are serious allegations in respect of rejection of valid votes and found a case for recounting and directed recounting of votes. ( 4. ) LEARNED Counsel for petitioner assailed the aforesaid order on the ground that. there was no proper verification of election petition and merely there was a margin of one vote, will not be a ground for directing recounting of votes. Reliance is placed to the Apex Court judgment in Satyanarain Dudhani v. Uday Kumar Singh and Ors. , ,, AIR1993 SC 367 , 1993 (41 ) BLJR278 , 1992 (3 )SCALE221 , 1993 Supp (2 )SCC82 , a Division Bench decision of the this Court in Gendalal v. A. R. Navkar, 1981 JLJ 163 and Single Bench decision in Dr. Omprakash Soni v. Ashok Kumar Bhargava and Ors. , , AIR1996 MP 43 and contended that the impugned order be quashed. ( 5. ) THE respondent No. 2 supported the order on the ground that there is proper verification of election petition by respondent No. 2 by filing affidavit and Rule 3 of M. P. Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 was duly complied with and there is no defect in the election petition. ( 5. ) THE respondent No. 2 supported the order on the ground that there is proper verification of election petition by respondent No. 2 by filing affidavit and Rule 3 of M. P. Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 was duly complied with and there is no defect in the election petition. So far as recounting is concerned the respondent No. 2 has examined witnesses showing the fact that valid votes were wrongly rejected and were kept in invalid votes, which has affected the result materially and looking to the margin of one vote only recounting deserves to be allowed. Reliance in this connection has been placed to the judgment of this Court in Santosh Kumar Jain v. Indrabhan Singh and Ors. , 1998 (1) Vidhi Bhasvar 170]. ( 6. ) CONSIDERING the contention of the parties, firstly the contention of petitioner in respect of verification of election petition may be seen. The Sub- Divisional Officer in the order found that the election petition is verified by affidavit which is proper and on this ground the election petition can not be dismissed. This contention has been denied by the petitioner on the ground that no such affidavit was filed, but there is no material on record to support the contention of the petitioner. Apart from this even in the writ petition nowhere it is averred that the election petition was not supported by the affidavit as found by the Sub Divisional Officer. If the election petition is verified by filing affidavit then the election petition can not be dismissed at the threshold on this ground. ( 7. ) SECTION 122 of the M. P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as adhiniyam for short) envisages that the election under this Act shall be called in question only by a petition presented in a prescribed manner in case of Gram Panchayat to Sub-Divisional Officer. Rule 3 of Rules provides that an Election Petition shall be presented to the specified officer during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition. 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. 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. Rule 5 provides that election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of petition. Rule 5 provides about verification of petition and said election petition was duly verified by filing affidavit of petitioner as found by the Sub-Divisional Officer. When the election petition was duly verified by filing affidavit on oath then it can not be said that the election petition was not duly verified. Code of Civil Procedure provides for verification of pleadings under Rule 15 of Order 6, which provides that every pleading shall be verified at the foot by the party or by any of the parties or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. In the rules there is no provision that in case of non-verification or defective verification the petition itself shall be dismissed while in respect of Rules 3, 4 and 7 there is provision in Rule 8, that if these provisions are not complied then the petition shall be dismissed by the specified officer. The proviso of this rule provides that the petition shall not be dismissed without giving an opportunity to the petitioner of being heard. But in respect of Rule 5 there is no such provision which provide that merely for non-compliance of Rule 5 the election petition may be dismissed. An opportunity should be provided to the petitioner to rectify the defect in this regard. The object of verifying the pleading is to fix on the party responsibility about truthfulness of its contents and the same Rule has been made applicable to the election petition filed under Section 122 of the Adhiniyam. When the facts are verified by filing affidavit, then rules has been substantially complied with. Dismissal of election petition on the sole ground of defective verification will deprive respondent No. 2 a reasonable opportunity to correct the defect. In the aforesaid circumstances, when the pleadings were duly verified by filing affidavit, then it can not be said that the Rule 5 of the Rule has not been complied with. Dismissal of election petition on the sole ground of defective verification will deprive respondent No. 2 a reasonable opportunity to correct the defect. In the aforesaid circumstances, when the pleadings were duly verified by filing affidavit, then it can not be said that the Rule 5 of the Rule has not been complied with. The Sub-Divisional Officer after considering the fact has found that the contents of election petition were duly verified by respondent No. 2 by filing her affidavit. In such a finding I do not find any error to interfere. ( 8. ) NEXT contention of petitioner that the Sub-Divisional Officer erred in directing recounting of votes is concerned, it is settled law that recounting of votes is not a matter of course. Secrecy of ballot papers can not be permitted to be tinkered lightly and has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount is necessary, only then recounting can be ordered. The Apex Court in the case of Salyanarain Dudhani (supra) considering law in respect of recounting held :" 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 proposition of law that the secrecy of the ballot papers can not be permitted to be tinkered lightly. An order of recount can not 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. An order of recount can not 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. " Similar view has been expressed by Division Bench of this Court in Gendalal (supra) wherein it is held : "since the order for recount touches upon the secrecy of the ballot, it should not be made lightly as a matter of course. It has, therefore, been laid down by the Supreme Court that though no cast-iron rule of universal application can be laid down, the Court would be justified in ordering a recount where all the material facts on which the allegations of illegality in counting are pleaded adequately in the election petition, and the Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. We have already indicated that whenever full particulars are required under Rule 5 were not given in the petition it was not a defect as ipso facto entails dismissal of the petition. " The respondent No. 2 has placed his reliance to Santosh Kumar Jain (supra) wherein (Justice D. M. Dharmadhikari as His Lordship then was) it is held : "learned Counsel for the petitioner then contended that change of venue of counting and absence of election petitioner at the place of counting are no good grounds to direct a recount of votes. The argument advanced has no force. Here the margin of votes between the two candidates was very narrow. For reasons beyond his control the election petitioner is found to have been prevented from attending the place of counting. He had prima facie made out a case that certain valid votes cast in his favour were not counted. In such circumstances a case for recount of votes was clearly made out and after the recount was done the allegations made by the petitioner have been found to be true as on recount he got more votes than the present petitioner. " The Apex Court in Chandrika Prasad Yadav v. State of Bihar and Ors. In such circumstances a case for recount of votes was clearly made out and after the recount was done the allegations made by the petitioner have been found to be true as on recount he got more votes than the present petitioner. " The Apex Court in Chandrika Prasad Yadav v. State of Bihar and Ors. , , AIR2004 SC 2036 , JT2004 (4 )SC 264 , 2004 (4 )SCALE201 , (2004 )6 SCC331 considering the law for recounting of votes held that in following circumstances recounting may be ordered : (i) a prima facie case; (ii) pleading of material facts, stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) an objection to the said effect has been taken recourse to. While deciding the law the Apex Court further held that narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient ground for ordering recounting and secrecy of ballot papers should also be maintained before recounting of votes. ( 9. ) NOW, the facts of this case may be seen. In this case it is not disputed that there is margin of one vote only between the petitioner and respondent No. 2 and respondent No. 2 has stated that she immediately objected in respect of rejection of ballot paper to the Presiding Officer, but her application was not accepted and thereafter in the evening she again approached to the Election Officer in this regard. She has examined two witnesses to prove this contention before the authority. Though the petitioner by adducing evidence has controverted the aforesaid fact, but the fact remains that on the date of recounting respondent No. 2 immediately approached to the Presiding Officer and thereafter to the election officer demanding recounting. There is difference of only one vote between the petitioner and respondent No. 2 and when serious allegations are made in respect of rejection of valid votes by treating these as invalid votes, then the presiding officer ought to have considered this objection immediately. ( 10. There is difference of only one vote between the petitioner and respondent No. 2 and when serious allegations are made in respect of rejection of valid votes by treating these as invalid votes, then the presiding officer ought to have considered this objection immediately. ( 10. ) FROM the perusal of record it appears that in the counting of ballots of polling booth No. 39 there were 11 rejected votes and at the counting of ballots of polling booth No. 31 there were total 12 rejected votes and total rejected votes are 32 in number. The difference between petitioner and respondent No. 2 is only one vote. The contention of petitioner is that her legal votes were rejected and were kept as rejected votes. In the aforesaid circumstances, considering the evidence on record, if the Sub-Divisional Officer found that recounting is necessary, then the authority has done justice in the case and has rightly directed recounting of votes, which requires no interference of this Court. In the aforesaid circumstances, the respondent No. 1 has rightly directed for recounting of votes, in which order I do not find any error of jurisdiction to interfere, invoking the powers of superintendence under Article 227 of the Constitution of India. ( 11. ) THIS petition is without merit and is dismissed with no order as to costs.