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2007 DIGILAW 1537 (BOM)

Anjali Deepak Mundlik v. Returning Officer

2007-10-23

NARESH H.PATIL, R.M.BORDE

body2007
ORAL JUDGMENT: [ PER - NARESH H. PATIL, J. ] 1. Heard. 2. Notice for final disposal at admission stage was issued on 28/09/2007. Rule made returnable forthwith. 3. This Letters Patent Appeal is preferred against the order passed by the learned Single Judge (Coram : S.B.Deshmukh, J.) in Writ Petitiion No. 4288 of 2007, on 13th September, 2007. 4. The appellants are respondents in Election Petition No.1 of 2005 filed by Rajendra Kumar Kisanlal Jaiswal - respondent No.2 herein, before the Civil Judge (Junior Division), Jalna. 5. Admitted facts are that on 23/10/2005, elections to Grampanchayat, Badnapur, Tq. Badnapur were held. The appellants and the respondent No.2 herein contested the election from Ward No.6. On 25/10/2005, the results were declared. There were three seats in Ward No.6. The appellants were elected. The appellant No.1 secured 394 votes and appellant No.2 secured 418 votes. Respondent No.3 Satyanarayan Jaikisan Girada was also elected. 6. According to appellants, total votes polled were 850, out of which 830 votes were valid and 20 votes were invalid. On 25/10/2005, respondent No.2 filed an application for recounting. The order for recounting was made by the Returning Officer and in the recounting, it was found that the appellant No.2 Gorakhnath was declared elected by 2 votes. 7. On 09/04/2007, respondent No.2 filed an application (Exh.62 in trial Court) in Election Petition for appointment of Court Commissioner for the purposes of recounting of ballot papers / votes. On 05/07/2007, the appellants filed their say and prayed for dismissal of the said application. By an order dated 19/07/2007, the learned Civil Judge appointed the Court Commissioner for the purposes of counting of number of ballot papers. Being aggrieved by the said order, appellants preferred Writ Petition No.4288 of 2007 before the learned Single Judge, which came to be dismissed. 8. The learned counsel for appeallants submits that the impugned order is unreasoned one. There was no basis for ordering recount of votes. Due to said order, the secrecy of ballot papers would be exposed at a premature stage. There is no foundation in the pleadings of the Election Petiton to ask for such a recounting. It was further submitted that before evidence could be led by respondent No.2, the trial Court had passed the order of recounting of ballot papers. 9. Due to said order, the secrecy of ballot papers would be exposed at a premature stage. There is no foundation in the pleadings of the Election Petiton to ask for such a recounting. It was further submitted that before evidence could be led by respondent No.2, the trial Court had passed the order of recounting of ballot papers. 9. The learned counsel Mrs.Tambat appearing for respondent No.2 raised objection to the maintainability of Letters Patent Appeal on the basis of following reported judgments. (1) Uttam s/o Ambadasrao Gawali vs. State of Maharashtra [2005(3) Mh.L.J.550] (2) Mansaram Sampat Patil Vs. Sambhu Harchand Chaudhary [2005(1) ALL MR 533]. (3) Sadhu Singh v. Darshan Singh [2006 AIR SCW 4560]. (4) Kanhaiyyalal Fattelalji Upadhyaya v. Mahavir Tea Company [2007(4) Mh.L.J. 360]. . The learned counsel Shri.Dhorde appearing for appellants placed reliance in support of the contention that the appeal is maintainable, on the basis of following reported judgments. (1). Mangalbhai v Dr. Radhyshyam ( AIR 1993 SC 806 ). (2). Jagdish Balwantrao Abhyankar v. State of Maharashtra (AIR 1994, Bombay 141) (3) Mansaram Sampat Patil v. Sambhu Harchand Choudhary [2004(4) Mh.L.J. 1105]. (4) Surya Dev Rai v Ram Chander Rai (AIR SC on CD-ROM 1950-2005. (5) Uttam s/o Ambadas Gawali vs. State of Maharashtra [2005(3) Mh.L.J.550] 10. We may refer to the reported judgment in the case of Midnapore Peoples’ Co-op Bank Ltd. v. Chunilal Nanda [2006 AIR SCW 2766]. In para 5 No.16, the Apex Court observed thus: "Interim orders/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories: (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. . (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment. (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. . The terms ’judgment’ occurring in clause 15 of the Letters Patent will take into its fold not only the judgments as defined in section 2(9), CPC and orders enumerated in Order 43, Rule 1 of CPC, but also other orders which, though may not finally and conclusively degtermine the rights of parties with regard to all or any matters in controversy, may have finality in regard to some collateral matter, which will affect the vital and valuable rights and obligations of the parties. Interlocutory orders which fall under categories (i) to (iii) above, are, therefore, ’judgments’ for the purpose of filing appeals under the Letters Patent. On the other hand, orders falling under categories (iv) and (v) are not ’judgments’ for purpose of filing appeals provided under the letters Patent. " . We find that the petition was filed under 6 Articles 226 and 227 of Constution. We do not find that the learned Single Judge of this Court while dismissing the petition had exercised the jurisdiction under Article 227 of Constitution only. In view of the facts of the case and submissions advanced, we are convinced that the Letters Patent Appeal would be maintainable. 11. It was further subitted by learned counsel appearing for respondent No.2 that the Returning Officer on the application of respondent No.2 had recounted the ballot papers and it was found that one ballot paper was invalid and thereafter the respondent No.2 was declared elected by a margin of two votes. Affidavits in support of the contentions were filed before the trial Court and the interest of justice and facts of case demand that the order of recount is maintained. 12. Record and Proceeding was called for. The learned Addl. Government Pleader Shri.K.B.Choudhari has produced original record before us, which we have perused. 13. The principles underlying recount are well enunciated in a reported judgment in the case of Tanaji Ramchandra Nimhan vs. Swati Vinayak Nimhan [2006(2) Mh.L.J.762]. It is necessary to refer to the relevant observation in para 9 of the said judgment. The learned Addl. Government Pleader Shri.K.B.Choudhari has produced original record before us, which we have perused. 13. The principles underlying recount are well enunciated in a reported judgment in the case of Tanaji Ramchandra Nimhan vs. Swati Vinayak Nimhan [2006(2) Mh.L.J.762]. It is necessary to refer to the relevant observation in para 9 of the said judgment. It reads thus: " Unless the election petion had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a re-count normally could not be ordered. In Chandrika Prasad Yadav vs. State of Bhhar, (2004)6 SCC 331 , relying on an 7 earlier decision in M.Chinnasamy vs. K.C.Palanisamy, (2004)6 SCC 341 , a Bench of three Judges (to which one of us S.B.Sinha, J. was a party) held that an election petition seeking a re-count must contain a concise statement of material facts and clear evidence in support of the facts pleaded. It was held that a small margin of victory by itself was not a ground for ordering re-count. A roving and fishing inquiry was not permissible while directing re-count of votes. The requirement of maintaining secrecy of ballot papers had also to be kept in mind before directing a re-count. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes." 14. We find that order of recount passed by the learned trial Judge is unresoned one. From the impugned order, it is difficult to ascertain as to what material was with the learned trial Judge to order recount of ballot papers. Admitted position is that the parties have not led evidence before the trial Court. We have perused the pleadings of the parties, contentions raised regarding ballot papers. Considering the submissions advanced by the parties and facts of the case, we are of the considered view that there was no material and evidence before the trial Court to order recount of ballot papers. It is settled position that an order of recount cannot be made as a matter of course. There has to be a foundation and clinching evidence to support the case set up by petitioner to ask for recount though normally a recount is not ordered. The party has to make out a prima facie case based on the pleadings and evidence before asking for recount of ballot papers. There has to be a foundation and clinching evidence to support the case set up by petitioner to ask for recount though normally a recount is not ordered. The party has to make out a prima facie case based on the pleadings and evidence before asking for recount of ballot papers. 15. The learned counsel appearing for 8 respondent No.2 submitted that by execution of order passed by the trial Court, the secrecy of ballot papers would not be disclosed as what has been ordered by trial Court was counting of number of ballot papers only, whether it is 850 or not. 16. We are sure that the purpose for asking of recount of ballot papers was not to ask for recount of number of ballot papers only. At the same time, it is neessary that a number of valid ballot papers and invalid ballot papers would be material and crucial for deciding the issue raised before the trial Court by the contesting parties. Even for counting the ballot papers, without looknig into its validity, in a given case, would require necessary evidence and material before the trial Court, which, we find, was not available before the trial Court. Even otherwise we find that it would not be possible to count the ballot papers without disclosing its secrecy as even for counting purposes it would be necessary to look into the identity of the ballot paper. 17. Considering this aspect of the matter, we are of the opinion that impugned order, dated 19/07/2007, passed by trial Court is required to be quashed and set aside. 18. We accordingly quash and set aside the impugned order dated 19/07/2007 passed by trial Court. 19. For the reasons stated above, we are not in agreement with the view adopted by the learned Single Judge of this Court. We accordingly set aside the order dated 13/09/2007 passed by the learned Single Judge in Writ Petition No.4288 of 2007. 20. 18. We accordingly quash and set aside the impugned order dated 19/07/2007 passed by trial Court. 19. For the reasons stated above, we are not in agreement with the view adopted by the learned Single Judge of this Court. We accordingly set aside the order dated 13/09/2007 passed by the learned Single Judge in Writ Petition No.4288 of 2007. 20. It is made clear that the respondent No.2 Rajendra Kumar would be entitled to file a fresh application for the purposes of recount of ballot papers, if advised, after the parties would lead evidence and if such an application is filed by either of the parties, then, we observe that, the learned Civil Judge would consider the said application in the light of pleadings, evidence of the parties and the well settled principles governing the recount of votes, more particularly, as laid down in the reported judgment in the case of Tanaji Ramchandra Nimhan cited (supra). 21. In the light of this, the appeal stands allowed. Rule made absolute in the above terms.