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2008 DIGILAW 938 (MP)

Kamlesh Gautam v. Sub-Divisional Officer

2008-07-30

ABHAY M.NAIK

body2008
ORDER :- Petitioner was elected as a Sarpanch of Gram Panchayat Chimnakhari, District Seoni on 27-1-2005. She secured 577 votes against the respondent No. 2, who secured 564 votes. Aggrieved by it, respondent No. 2 submitted an Election Petition on the ground that the counting of votes was vitiated on account of insufficient light. Election Tribunal (Sub Divisional Officer, Revenue) Barghat, District Seoni on 26-5-2005 directed for recounting which was made and the respondent No. 2 was declared as Sarpanch by margin of 5 votes. Objection was raised with regard to the recounting on the ground of broken seal of the ballot box. Objection was rejected vide order dated 26-5-2005 contained in Annx.P/2. Since the Election Petition was decided without framing issues and without recording evidence, Writ Petition No. 4237/2005 was submitted by the petitioner before this Court challenging the order of the Election Tribunal. 2. This Court vide its order dated 20-7-2005 marked as Annx.P/3, quashed the order of Election Tribunal and remitted back the matter to the Election Tribunal. After recording the evidence, respondent No. 2 was again declared as elected vide order dated 31-10-2005 contained in Annx.P/4, which was challenged before this Court in Writ Petition No. 14243/2005. This Court vide its order dated 16-5-2006 marked as Annx.P/5 again remitted back the matter to the Election Tribunal for deciding the matter afresh, for deciding the following issues as preliminary issues :- (i) Whether the copy of Election Petition supplied to Smt. Kamlesh Gautam, was in accordance with Rule 3(2) of Election Petition Rules? (ii) Whether the Election Petitioner Smt. Lalita Patle deposited the security amount as required under Rule 7 of the Election Petition Rules ? 3. Thereafter, the Election Tribunal vide its order dated 18-10-2006 marked as Annx. P/3, dismissed the Election Petition on the ground of non-compliance of the mandatory provision of Rule 3(2) of the Election Petition Rules. Writ Petition No. 15573/06 preferred against it, was dismissed by this Court vide order dated 10-5-2007 contained in Annx. P/7. Writ Appeal No. 979/07 was further preferred which was allowed by learned Division Bench of this Court on 19-9-2007 (Annx.P/8) and the earlier order of the Election Tribunal as well as that of single Bench were quashed. It was held that the Election Tribunal was not justified in dismissing the Election Petition for want of compliance of Rule 3 of the Election Petition Rules. It was held that the Election Tribunal was not justified in dismissing the Election Petition for want of compliance of Rule 3 of the Election Petition Rules. Accordingly, the Election Tribunal was directed to decide the matter in accordance with earlier directions given by this Court. 4. Finally, learned Sub Divisional Officer (Revenue) Barghat as an Election Tribunal allowed the Election Petition vide his order dated 4-2-2008 marked as Annx. P/9 and declared the respondent No. 2 as elected on account of recounting by five votes. 5. Aggrieved by the same, Election Petition has been preferred by the petitioner on the ground that the order of recounting dated 16-5-2005 having been already quashed by this Court vide Annx.P/3, the consequent recounting cannot, be made a basis for allowing the Election Petition. This apart, it is stated by the learned counsel for the petitioner that the petitioner moved an application for recording evidence of his witnesses, but she was not permitted to examine her witnesses and the matter was closed on the basis of earlier proceedings. Thus, it is alleged that the impugned order has been made without giving proper opportunity of evidence. 6. It is submitted that firstly, the Election Tribunal ought to have given a finding that the counting in the first instance was vitiated due to illegality or material irregularity. In the absence of any such finding, the recounting made pursuant to order dated 16-5-2005 could not have been legally considered. It is further contended that there is no evidence on record to establish that the earlier counting was vitiated on account of any justiciable reason. In the absence of any such evidence, the recounting made pursuant to the order dated 16-5-2006 also stands vitiated and the petition, therefore, deserves to be allowed. 7. Respondent No. 1 made available the record of the Election Tribunal. 8. Respondent No. 2 submitted his return stating therein that the impugned order is based on sound evidence and material available on record. It is incorrect that proper opportunity for her evidence was not provided. On the contrary, the petitioner on 28-11-2007 herself stated that she did not want to examine any witness. It is further contended that on 16-5-2005, the Election Tribunal directed for recounting which took place in the presence of petitioner as well as answering respondent along with his counsel and agents. On the contrary, the petitioner on 28-11-2007 herself stated that she did not want to examine any witness. It is further contended that on 16-5-2005, the Election Tribunal directed for recounting which took place in the presence of petitioner as well as answering respondent along with his counsel and agents. No objection was raised before or at the time of recounting. After recounting, respondent No. 2 was found to have obtained 5 votes in excess of the petitioner. Accordingly, the answering respondent No. 2 was declared elected. 9. It is further stated that in the light of the evidence recorded pursuant to the direction of this Court, the Election Tribunal on 4-2-2008 held that there was no proper and sufficient light in the counting hall. Ballot papers were not shown to the answering respondent or his agents in contravention of Election Petition Rules. On the basis of the evidence and other material on record, the recounting was rightly directed and since the recounting was already performed, the learned Sub Divisional Officer has not committed any illegality in basing his order on such recounting. Accordingly, it is contended that the petition is liable to be rejected. It is further contended that the effect of recounting cannot be legally ignored since the same has already taken place in due manner. 10. Heard the learned respective counsel for the parties at length. 11. This petition involves the following three main issues :- (i) Whether there was non-observance of Rule 3(2) of Election Petition Rules and the petition is liable to be dismissed; (ii) Whether the order of recounting was justified in the light of material on record; (iii) Whether the effect of recounting which took place vide order dated 16-5-2005 cannot be ignored while deciding the Election Petition. 12. As regards first objection, it may be seen that learned Division Bench of this Court clearly held in Writ Petition No. 979/2007 dated 19-9-2007 that learned Election Tribunal was not justified in holding that the Election Petition was liable to be dismissed for non-compliance of Rule 3(2) of Election Petition Rules. This being so, the Election Petition has already been held to be maintainable and it is not liable to be dismissed for want of compliance of Election Petition Rules. 13. As regards Issue No. 2, it may be seen that necessity for recounting has been discussed at time and again in various decisions. This being so, the Election Petition has already been held to be maintainable and it is not liable to be dismissed for want of compliance of Election Petition Rules. 13. As regards Issue No. 2, it may be seen that necessity for recounting has been discussed at time and again in various decisions. Hon'ble Supreme Court of India in the case of Km. Shradha Devi vs. Krishna Chandra Pant, AIR 1982 SC 1569 has observed that when a petition is for relief of scrutiny and recount of the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. Hon'ble Supreme Court in the case of Beliram Bhalaik vs. Jai Beharilal Khachi and another, AIR 1975 SC 253 has clearly held that a whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the "grounds" within the contemplation of the provisions requiring recounting. It has been further observed :- "Since an order for recount touches upon the secrecy of the ballot, it should not be made lightly or as a matter of course. The Court would be justified in ordering a recount or permitting inspection of the ballot papers only where all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and the Court 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. Mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers will not be sufficient to support an order of recount and inspection." 14. Learned Election Tribunal has derived strength from Supreme Court's decision in Kabeer's case. It may be seen that Hon'ble Supreme Court in the case of T. A. Ahammed Kabeer vs. A. A. Azeez, AIR 2003 SC 2271 has clearly held that the Election Tribunal is required to be satisfied on the point of necessity to recount in the interest of justice. No such satisfaction has been recorded by the Election Tribunal in the impugned order. No such satisfaction has been recorded by the Election Tribunal in the impugned order. Although, learned Sub Divisional Officer has made certain observations about the petitioner's evidence in paragraph 28 of the impugned order and further about opposite party's evidence in paragraph 29, but he has failed to give specific finding about vitiation or non-vitiation of the process of counting. He has placed much reliance on paragraphs 28 and 29 of the decision of Hon'ble Supreme Court in the case of T. A. Ahammed Kabeer (supra) which read as follows :- "28. It is true that a recount is not be ordered merely for the asking or merely because the Court is inclined to hold a recount. In order to protect the secrecy of ballots the Court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the Court. Once a recount has been allowed the Court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the Court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard. It is the result of the recount which has to be given effect to. 29. So also, once the Court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of a vote which is void by reference to the election result of the returned candidate under section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once the jurisdiction to order recount is found to have been rightly exercised, thereafter it is the truth as revealed by the result of recounting that has to be given effect to." 15. It may be seen from the Apex Court's decision that to permit or not to permit recount has been held to be a question involving jurisdiction of the Court (Sub Divisional Officer being Election Tribunal in the present case). This being so, jurisdiction is to be first exercised by the Election Tribunal and, thereafter, the effect of recounting may be taken into consideration, hi the case in hand, recount is not found to have been allowed by the Election Tribunal in the absence of specific finding about vitiation of the earlier process of counting. 16. Apex Court in the case of P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen and others, AIR 1989 SC 640 has observed :- "13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight any by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the re-count of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes." It has been further clearly held in para 15 that an order of recount of votes must stand or fall on the nature of averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. 17. hi the present case, recounting was directed by the Election Tribunal vide order dated 16-5-2005. This order was quashed by this Court in Writ Petition No. 4237/05 vide Annx.P/3, on the ground that the Election Tribunal had no power to direct for recounting of votes without recording evidence. Further, learned Division Bench of this Court in Writ Appeal No. 979/07 directed the Election Tribunal to decide the matter in accordance with earlier direction of this Court. Thus, it was obligatory on the part of the Election Tribunal to give specific finding about its satisfaction for directing recount. Apex Court in the case of T. A. Ahammed Kabeer (supra) has directed for taking into consideration the effect of recount after the recount has been allowed. In Shamsudeen 's case (supra), it has been clearly held that order of recount can never be justified from the result emanating from the result of votes. Apex Court in the case of T. A. Ahammed Kabeer (supra) has directed for taking into consideration the effect of recount after the recount has been allowed. In Shamsudeen 's case (supra), it has been clearly held that order of recount can never be justified from the result emanating from the result of votes. In view of the peculiar circumstances in hand, it is found in an unambiguous manner that, the Election Tribunal did not record a specific finding about even a prima facie case having been made out for recounting and, consequently, the recount cannot be said to have been allowed in accordance with the settled law so as to empower the Election Tribunal to take into consideration the effect of recount. Thus, the law laid down in the case of T. A. Ahammed Kabeer (supra) cannot be invoked. Consequently, writ petition deserves to be and is, hereby, allowed. Order Annx.P/9 dated 4-2-2008 passed by Sub Divisional Officer, Barghat, Election Tribunal, is, hereby, quashed. Election Tribunal is, hereby, directed to decide the matter afresh after giving specific finding with regard to its satisfaction about the circumstances for recounting after hearing the parties afresh within a period of one month from the date of receipt of certified copy of this order. 18. With the aforesaid direction, petition stands allowed in the manner indicated hereinabove. No order as to costs. Petition allowed.