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2006 DIGILAW 1163 (MP)

Geeta Bai v. Kamla Bai

2006-09-29

NISHITH KUMAR MODY

body2006
ORDER 1. Being aggrieved by an interim order dated 26.8.2005 passed by Sub-Divisional Officer, Khilchipur-Jirnpur, District-Rajgarh in Case No. 10/C-144/04-05 wherein an election petition filed by the respondent No.1 under section 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (which shall be referred hereinafter as 'the Act') whereby learned Court below directed for recounting of votes, present petition has been filed. 2. Short facts of the case are that election of Sarpanch of Gram Mukundpura, Tahsil Khilchipur/Jirnpur, District Rajgarh took place on 19.1.2005 in which the petitioner was declared elected by 5 votes. In election petition filed by the respondent No.1 it was alleged that at the time of counting of votes at polling booths No. 84 and 85, 73 votes were rejected which were in fact casted to the respondent No.1. It was alleged that at the time of rejection of votes objection was raised on behalf of respondent No.1 and petition was also filed but the objections were not taken into consideration nor the petition submitted by the respondent No. 1 was accepted. It was alleged that rejection of votes was improper. The prayer in petition was for re-counting of the votes of booths No. 84 and 85. 3. The election petition was contested by the petitioner wherein all the allegations made in the election petition were denied. It was alleged that no illegality has been committed by Returning Officer in rej ecting the invalid votes. It is also alleged that no objection was raised at the time of counting. In was prayed that the election petition be dismissed. 4. After completion of pleadings the case was put to trial. Respondent No. 1 examined herself, Ratanlal and Govind Singh. Petitioner examined herself, Sujan Singh and Balchand. After hearing of arguments of the parties vide order dated 26.8.2005 the learned Court below held that after appreciation of evidence, it appears that 73 votes have been rejected while the petitioner has been declared elected by 5 votes, therefore, looking to the margin of votes by which the petitioner was declared elected and the votes which were rejected at the time of counting it was held that it will be in the interest of justice to examine the rejected votes. It was further held that re-counting of votes of booths No. 84 and 85 shall take place on 9.9.2005 at 11:00 a.m. In compliance of the order, recounting took place on 23.9.2005 and respondent No.1 was declared elected. Prior to it present petition was filed on 16.9.2005, which came up for hearing on 23.9.2005. By an interim order this Court has directed that even if the result of recounting is declared by the SDO, then the same shall not be given effect until further orders of this Court. 5. Learned counsel for the petitioner submits that passing of an order in an election petition without assigning any reason amounts to violation of principles of natural justice. It is also submitted that before passing an order of recounting Competent Authority is required to assign the reason. For this contention reliance was placed on a decision in the matter of Koksingh v. Krishnapal Singh, reported in 1980 JLJ SN 71. Further submission was made by the counsel for the petitioner that no issues were framed by the learned Court below before passing the impugned order. It is submitted that framing of issues in an election petition is necessary. Reliance was placed on a decision in the matter of Makhan Lal Bangal v. Manas Bhunia and others, reported in (2001) 2 SCC 652 wherein the Hon'ble apex Court has held that: "In an election petition each material preposition affirmed by one partly and denied by the other should constitute a distinct issue. Evidence has to be adduced only in respect of the controversies covered by the issues and pleadings." It was also observed that: "An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission." 6. It was also submitted that recounting of votes cannot be directed as a matter of course. It is submitted that in the election petition filed before the Court below it was alleged that 73 votes were found invalid, while in evidence the number of votes were differently shown. For this contention reliance was placed on a decision in the matter of Shri Satyanarain Dudhani v. Uday Kumar Singh and others, reported in AIR 1993 SC 367 , wherein Hon'ble Supreme Court has observed that: "The secrecy of the ballot papers cannot be permitted to be tinkered lightly. For this contention reliance was placed on a decision in the matter of Shri Satyanarain Dudhani v. Uday Kumar Singh and others, reported in AIR 1993 SC 367 , wherein Hon'ble Supreme Court has observed 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 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." 7. It is submitted that in the facts and circumstances, the learned Court below committed error in ordering the recounting. It is also submitted that since in the present petition the validity of the order passed by the learned Court below permitting inspection of ballot papers and directing a recount is brought in issue, therefore, the facts revealed by recount cannot be relied upon by the petitioner to support the prayer and sustain the order for recounting. For this contention reliance was placed on decision in the matter of V.S. Achuthanandan v. P.J. Francis and another, reported in (2001) 3 SCC 81 . 8. Mr. M.A. Bohra, learned counsel for the respondent No. 1 submits that in compliance ofthe order passed by learned Court below re-counting has taken place on 23.9.2005 wherein it was found that 103 votes were rejected at polling station No. 84 and 73 votes were rejected at polling station No. 85, thus, in total 176 votes were rejected. It is submitted that net result of counting was that the respondent No.1 got 264 votes as against which the petitioner got 252 votes. Thus, the respondent No.1 won the election by 12 votes and was declared elected Sarpanch. It was submitted that because of the interim order passed by this Court, respondent No. 1 is not holding the post of Sarpanch. It is submitted that petitioner was fully aware of the case and at no point of time any objection was raised to the effect that issues were not framed and because of non-framing of issues, no prejudice is caused to the petitioner as witness examined by the respondent No.1 was fully cross-examined. 9. From perusal of the record it is true that no issues were framed by the learned Court below before recording the evidence. 9. From perusal of the record it is true that no issues were framed by the learned Court below before recording the evidence. The propriety demands that the issues ought to have been framed. However, petitioner is not in a position to show what prejudice has caused to him. Petitioner was well aware with the case, petitioner has cross-examined the witnesses on the material point and has also adduced the evidence. In view of this, only because the issues were not framed, the impugned order cannot be set aside. 10. So far as the rejection of votes are concerned, petitioner has alleged in the petition that 73 votes were rejected at the time of counting of votes at Polling Station No. 84 and 85. For proving this fact petitioner has examined herself and also Ratanlal, who happen to be her husband and also the agent of respondent No. 1 for booth No. 84. Respondent No.1 further examined one Govind Singh, who was agent at Polling Station No. 85. From going through the evidence it is clear that the counting took place in wee hours under the light of lantern, therefore, the respondent No. 1 not only made out the prima facie but good case for recounting. Apart from this before passing the impugned order learned Court below has framed the opinion which is based on evidence on record. 11. In view of this the petition has no force and is hereby dismissed. Interim order dated 23.9.2005 stands vacated.