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2008 DIGILAW 987 (ORI)

NARAYAN CHANDRA NAYAK v. HARISH CHANDRA JENA

2008-11-04

B.N.MAHAPATRA, B.S.CHAUHAN

body2008
JUDGMENT : B.S. Chauhan, C.J. - This writ appeal has been preferred against the judgment and order of the learned Single Judge dated 30.4.2008 by which the writ petition against the order dated 7.3.2008 passed by the Civil Judge (Senior Division), Anandpur in election petition No. 2 of 2007 issuing direction for recounting has been rejected. 2. The facts and circumstances giving rise to the case are that the Appellant and Respondent Nos. 1 and 2 contested the Panchayat Samiti Election from Zone No. 36 of Orali Gram Panchayat held on 13.2.2007 and after holding the election when the votes were counted, Respondent No. 1 was found leading by two votes. The Appellant at that stage filed an application for recounting of votes in respect of certain booths and Respondent No. 1 also filed an application for recounting of votes in respect of other booths mainly on the ground that ballot papers were not properly counted. Both the applications were allowed, recounting took place, Appellant was declared elected only by one vote as he had secured 1374 votes whereas Respondent No. 1 could secure 1373 votes. 3. Being aggrieved, Respondent No. 1 filed election petition No. 2 of 2007 before the court of learned Civil Judge (Senior Division), Anandpur for declaring that the election of the Appellant as void and after recounting of votes, the said Respondent No. 1 be declared elected. The case was contested by the Appellant, issues were framed and parties adduced evidence in support of their case. At that stage, an application was filed by Respondent No. 1 for recounting of votes on the ground that due to improper rejection of his valid votes during the recounting process, he was defeated by a margin of one vote only. The said application was resisted by the Appellant. The Tribunal after hearing the parties and perusing the pleadings and evidence allowed the application vide order dated 7.3.2008 observing that material facts had been pleaded in the election petition in this regard and the same stood substantiated by oral evidence that the valid votes of the election Petitioner were illegally rejected and invalid votes were added in favour of the returned candidate during the process of recounting. Thus, it was not a roving and fishing inquiry, rather the case was based on material facts. Thus, it was not a roving and fishing inquiry, rather the case was based on material facts. The said order dated 7.3.2008 was challenged by the Appellant by filing the writ petition which has been dismissed by the impugned judgment and order dated 30.4.2008. Hence this appeal. 4. Sri S.S. Rao, learned Senior Counsel appearing for the Appellant has submitted that the application could not have been entertained by the Tribunal at the stage immediately after conclusion of the evidence by the parties as it amounts to granting final relief at interim stage and if the order of the Tribunal is executed, nothing would survive in the election petition; it is not permissible to grant any interim relief which amounts to final relief. The relief granted by the Election Tribunal could have been granted after deciding the election petition as a whole, as happens in a partition suit passing preliminary decree and final decree. Grant of final relief at interim stage is not permissible as subsequent thereto, nothing remains for the Court to decide at final stage. More so, there was no cogent reason for the Tribunal to allow the application as it would amount to interfering with the success of the return candidate and will also disturb the secrecy of ballot. Learned Single Judge ought to have reversed the order of the Election Tribunal. Hence the judgment and order of the learned Single Judge as well as the order of the Tribunal is liable to be set aside. 5. On the contrary, Sri S.S. Ray, learned Counsel appearing for the Respondent No. 1 has submitted that application for recounting can be filed at any stage of the proceeding. However, proper stage of deciding such an application is after the evidence is closed by both the parties so that the Tribunal may apply its mind to the pleadings taken by the parties and the evidence adduced by them; as there was a margin of only one vote that too in recounting, the order has rightly been passed by the Tribunal. Recounting of votes at this stage is not a final relief as it would be open for the Appellant to raise all legal and factual pleas including any irregularity in inspection/recounting of votes at this stage. Recounting of votes at this stage is not a final relief as it would be open for the Appellant to raise all legal and factual pleas including any irregularity in inspection/recounting of votes at this stage. At the initial stage, Respondent No. 1- Election Petitioner had won by two votes and he was wrongly defeated by one vote making the recounting in a unwarranted manner. The judgment and order of the learned Single Judge does not suffer from any illegality and infirmity, nor any interference is warranted with the order of the Election Tribunal. The appeal lacks merit and is liable to be dismissed. 6. We have heard the learned Counsel for the parties and perused the record. 7. The facts are not in dispute. The Election Tribunal is to be guided by the provisions contained in Orissa Panchayat Samiti Act, 1959 (hereinafter called 'Act, 1959) and Orissa Panchayat Samiti Election Rules, 1991 (hereinafter called 'Rules, 1991) which lays down the procedure for settling the election dispute. Most of the provisions contained therein are analogous to provisions of the Representation of People Act, 1951. Section 44F of Act, 1959 empowers the Election Tribunal, for the purpose of deciding any issue to require the production of any evidence. Section 44H confers the power upon the Election Tribunal of the Civil Court as vested in a Court under the Code of Civil Procedure, 1908 (hereinafter called 'Code of Civil Procedure') for discovery and inspection and the Tribunal may summon and examine suo motu any person whose evidence appears to it to be material. Section 44-L provides that the election of the returned candidate can be declared invalid and the other candidate can be declared to be elected if there had been improper rejection or admission of votes and number of such votes is such that it had materially affected the result of the election. Rule-30 of the Rules, 1991 provides for a detail procedure for counting of votes and declaration of result. 8. Undoubtedly in a ordinary civil case, it is not permissible for the Court to grant interim relief, which amounts to final relief. Vide Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, ; A.P. Christians Medical Educational Society Vs. Rule-30 of the Rules, 1991 provides for a detail procedure for counting of votes and declaration of result. 8. Undoubtedly in a ordinary civil case, it is not permissible for the Court to grant interim relief, which amounts to final relief. Vide Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, ; A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, ; AIR 1997 993 (SC) ; Union of India (UOI) v. Era Educational Trust AIR 2000 SC 1573 ; State of U.P. and Others Vs. Modern Transport Company, Ludhiana and Another, ; Union of India (UOI) and Others Vs. Modiluft Ltd., ; State of U.P. v. Ram Sukhi Devi 2004 AIR SCW 6955; and Prem Singh Chaudhary and Ors. v. State of Uttaranchal and Ors. (2005) 11 SCC 567 . 9. However, in an election petition the issues are to be decided differently and the order for recounting of votes may not be a final relief. In Kailash Vs. Nanhku and Others the Apex Court held that the trial of an election petition is entirely different from the trial in civil suit as in a civil suit trial commence on framing the issues while the election trial encompasses all proceedings commencing from the filing of the election petition up to the date of decision. Therefore, the procedure provided for the trial of civil suits under Code of CPC is not applicable in its entirety to the trial of the election petition. For the purpose of the election petition, the word 'trial' includes the entire proceedings commencing from the time of filing the election petition till the pronouncement of the judgment. The applicability of the procedure in Election Tribunal is circumscribed by two riders: firstly, the procedure prescribed in Code of CPC is applicable only "as nearly as may be" and secondly, the Code of CPC would give way to any provisions of the Act or any rules made thereunder. Therefore, the procedure prescribed in Code of CPC applies to election trial with flexibility and only as guidelines. 10. In Harcharan Singh Vs. S. Mohinder Singh and Others the Hon'ble Supreme Court considered the application of doctrine of substantial justice and equity etc. in election law and came to the conclusion as under: The statutory requirements of election law must be strictly observed. 10. In Harcharan Singh Vs. S. Mohinder Singh and Others the Hon'ble Supreme Court considered the application of doctrine of substantial justice and equity etc. in election law and came to the conclusion as under: The statutory requirements of election law must be strictly observed. An election dispute is a statutory proceeding unknown to the common law; it is not an action at law or in equity.... The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process, and the Courts will not ordinarily minimize their operation. 11. Similarly in Jyoti Basu and Others Vs. Debi Ghosal and Others, ; the Apex Court held as under: A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket.... We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. 12. In Gajanan Krishnaji Bapat v. Dattaji Gaghobaji Meeha AIR 1995 SC 284; the Court held that Court cannot consider any facts which is beyond the pleadings of the parties. We see that we must seek an answer to the question within the four corners of the statute. 12. In Gajanan Krishnaji Bapat v. Dattaji Gaghobaji Meeha AIR 1995 SC 284; the Court held that Court cannot consider any facts which is beyond the pleadings of the parties. He has to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected. The allegations of irregularity/illegality in counting of votes must be pleaded adequately with material facts. Vide Sayed Mustafiz Ahmed v. Samir Dey AIR 1997 Ori 151 . 13. In Sudarsha Avasthi Vs. Shiv Pal Singh, ; the Apex Court insisted that an election petition for declaration of the election of a return candidate as void can be entertained only if the Petitioner furnishes all material facts and full particulars and inefficiency thereof, is to be fatal. More so, unbelievable and impracticable allegations of serious nature should be taken more seriously as it may amount to totally a cock and bull story. 14. It is the solemn duty of the Appellant to plead material facts. The case of illegally accepting or rejecting the ballots has to be pleaded giving the serial number of ballots and the source of information. Merely saying that Petitioner's agent had told him was not enough. The name of the agent, who had furnished such information was to be disclosed in the election petition itself, note book on the basis of which such details had been furnished must be produced. Vide Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, ; M. Chinnasamy v. K.C. Palanisamy and Ors. AIR 2004 SC 541 ; and Chandrika Prasad Yadav Vs. State of Bihar and Others, . 15. In Kanak Vardhan Singhdeo Vs. Sri Bibekananda Meher and Others, ; this Court examined the issue as under what circumstances inspection of ballot papers could be allowed. The Court held that there was no imperative necessity to allow inspection as the Petitioner could not make out a case for recounting of ballot papers. Thus, the prayer for recounting was found to be nothing but a clever move to make out a roving and fishing inquiry. 16. In Chanda Singh Vs. Choudhary Shiv Ram Verma and Others the Apex Court held as under: A democracy runs smooth on the wheels of periodic and pure elections. Thus, the prayer for recounting was found to be nothing but a clever move to make out a roving and fishing inquiry. 16. In Chanda Singh Vs. Choudhary Shiv Ram Verma and Others the Apex Court held as under: A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers lead to the formation of governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant re-counts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying, if re-count of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a re-count Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the court restricts recourse to re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. 17. In Harikrishna Lal Vs. Babu Lal Marandi, ; and T.A. Ahammed Kabeer Vs. A.A. Azeez and Others, ; while dealing with a similar case, the Apex Court held that the success of a winning candidate is not to be lightly interfered with. The burden of proof lies on the one who challenges the election to raise necessary pleadings and adduce evidence to prove such averments as would enable the result of the election being set aside on any of the grounds available in the law. In an election petition if nobody adduces evidence it is the election Petitioner who fails. The secrecy of the ballot must be zealously guarded. 18. The fact that the margin of votes by which a successful candidate has been declared elected is very narrow undoubtedly an important factor is to be considered, would not by itself vitiate the counting of votes or justify re-counting by the court. Vide R. Narayanan Vs. The secrecy of the ballot must be zealously guarded. 18. The fact that the margin of votes by which a successful candidate has been declared elected is very narrow undoubtedly an important factor is to be considered, would not by itself vitiate the counting of votes or justify re-counting by the court. Vide R. Narayanan Vs. S. Semmalai and Others and Chandrika Prasad Yadav (supra)). However in Chanda Singh (supra) the Apex Court held as under: If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise in short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. (Emphasis added). 19. In Jayanta Samal v. Kulamani Behera and Anr. (2004) 13 SCC 552 ; the apex Court held as under: However, at the same time, very strict proof of the circumstances making out a case for recount should not be insisted on by unduly stretching the rule, for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. (Emphasis added) 20. In view of the above, the Court has to struck balance that purity of the election process may be preserved, remains unpolluted and it may achieve the goal of democracy. However, at the same time, the secrecy of the ballot remains guarded. Therefore, recounting can be permitted in exceptional circumstances where the Court comes to the conclusion that the Election Petitioner is not seeking a roving and fishing inquiry. He has pleaded the material facts and adduced evidence in support of his case and the return candidate fail to rebut the same. In a catena of decisions, particularly in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, ; Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, ; Gursewak Singh Vs. Avtar Singh and Others, ; M. Chinnasamy (Supra); Chandrika Prasad Yadav Vs. State of Bihar and Others, ; Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan and Others, ; and Baldev Singh Vs. Jagjit Singh Vs. Giani Kartar Singh and Others, ; Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, ; Gursewak Singh Vs. Avtar Singh and Others, ; M. Chinnasamy (Supra); Chandrika Prasad Yadav Vs. State of Bihar and Others, ; Tanaji Ramchandra Nimhan Vs. Swati Vinayak Nimhan and Others, ; and Baldev Singh Vs. Shinder Pal Singh and Another, ; the Apex Court held as under: (i) The Court must be satisfied that a prima facie case is established; (ii) The material facts and full particulars must have been pleaded stating the irregularities in counting of votes; (iii) A roving and fishing inquiry should not be directed by way of an order to recount the votes; (iv) An opportunity should be given to file objection. (v) Secrecy of the ballot requires to be guarded. 21. In M. Chinnasamy (supra) the Apex Court has laid down that the order of recount of votes as a whole should not be passed and if the Court comes to the conclusion that election Petitioner had made out a prima facie case, it may direct recount of ballot papers in respect of the said votes only and not the entire votes. Therefore, the direction to recount of all the votes would amount to travelling beyond pleadings and going beyond the scope of the election petition. 22. The instant case is to be examined in the light of the aforesaid settled legal propositions. 23. In the instant case, the Election Tribunal after considering the pleadings and the evidence came to the conclusion as under: From the above, it is found that there is enough pleading in the election petition filed by the Petitioner and oral evidence has been given to substantiate that the valid votes of the Petitioner were illegally rejected and invalid votes were added in favour of the O.P. No. 1 during the process of recounting. On careful scrutiny of the pleadings and evidence, it is found that the Petitioner has well made out a strong prima facie case regarding improper rejection of valid votes and improper acceptance of invalid votes in the recounting, which had a great bearing on the final result of the case of Panchayat Samiti member election. Thus, it is not a roving and fishing enquiry as alleged by the O.P. No. 1. Thus, it is not a roving and fishing enquiry as alleged by the O.P. No. 1. Rather it is based on material facts, unfolded through the pleadings and evidence though opportunity was given to the O.P. No. 1, who could not nullify the assertions made by the Petitioner. In his pleadings and evidence, the O.P. No. 1 remained evasive regarding the process of recounting...since the Petitioner has made out a prima facie case, it would be appropriate to recount the votes to enforce the authenticity of mandate given by the people to make the democracy successful at the grass root level. 24. The said findings of fact have been affirmed by the learned Single Judge by the impugned judgment and order and the same does not require any interference. 25. Finding of facts in election cases should not be interfered in appeal unless palpable errors are present. Error which shakes the faith in the validity of the appreciation of evidence has to be brought home. Vide Chanda Singh Vs. Choudhary Shiv Ram Verma and Others, . 26. The Appellate Court/Writ Court should not interfere against the finding of facts recorded by the court below unless there are compelling circumstances and particularly when it has been affirmed by another appellate authority. Vide Jaenendrakumar Phoolchand Daftari Vs. Rajendra Ramsukh Mishra, . 27. A Full Bench of Allahabad High Court in the case of Babu Ram, Ashok Kumar and Another Vs. Antarim Zila Parishad, ; has held as under: A Court of appeal would not interfere with the exercise of discretion by the Court below, if the discretion has been exercised in good faith after giving due weight to relevant matters and without being swayed by irrelevant matters. If two views are possible on the question, then also the Court of appeal would not interfere, even though it may exercise discretion differently, were the case to come initially before it. The exercise of discretion should manifestly be wrong. 28. In view of the above, we are of the considered opinion that the judgment and order impugned are not likely to be interfered with except to the extent that recounting of all the votes should not have been directed and the court below could have restricted the relief only in respect of the disputed votes. 29. So far the question of stage at which interference can be made out requires to be considered. 29. So far the question of stage at which interference can be made out requires to be considered. Undoubtedly, it is the settled legal proposition that relief which amounts to final relief cannot be granted at admission stage. However, the issue of entertaining the application for recounting has been considered by the Apex Court time and again. 30. Application seeking recount can be made at the stage of final argument, after parties have closed their evidence. Vide Suresh Prasad Yadav Vs. Jai Prakash Mishra and Others, . 31. Similar view has been dealt with by the Apex Court in the case of Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, ; making it clear that the provisions of 0.11 Code of CPC are not applicable as it applies only in interse for the parties and the Returning Officer/Election Officer is not a necessary party in election case. However, the Tribunal does not lack competence to call the Election Officer to produce ballot papers for recounting/inspection or discovery. The Statute itself confers power of inspection and discovery as explained above. 32. In Jayanta Samal v. Kulmani Behera (supra), the Apex Court rejected the submission that application for recounting of votes can be entertained only at the time of final disposal of the election petition observing that if the Court is prima facie satisfied taking into consideration all other relevant factors that recounting is required, the application can be taken up after the evidence is closed by the parties. So far as the other questions are involved including the issue of any irregularity in recounting or any manipulation or tampering etc. that can also be taken before the election petition is disposed of and in such a situation if the Election Tribunal is satisfied with any of the objection taken by the returned candidate, the result of the recounting itself can be ignored. The Court held as under: Evidence has been recorded on all the issues which will be heard and decided in one go, at the end. The fact that such an issue is awaiting decision, does not take away the jurisdiction of Tribunal to order a recount in a case in that regard having been made out. 33. The Court held as under: Evidence has been recorded on all the issues which will be heard and decided in one go, at the end. The fact that such an issue is awaiting decision, does not take away the jurisdiction of Tribunal to order a recount in a case in that regard having been made out. 33. Therefore, it becomes crystal clear that question for recounting had been taken by the Election Tribunal at the appropriate stage i.e. after the evidence had been adduced by the parties concerned and no fault can be found on that count. Submissions made by Mr. S.S. Rao, learned Sr. Advocate for the Appellant that application for recount of votes could be filed before the issues were framed as required under Order 11 Rule 15 Code of Civil Procedure, after amendment w.e.f. 1.7.2002 is not acceptable for the reason that Code of CPC only provides for guidelines. Power of inspection/discovery is specifically provided under the statute itself, which remains unfettered. More so, 'trial' of the civil suit is to be understood differently from the trial of the election petition as explained above. 34. In view of the above, the appeal is allowed only to the extent that the order of the Election Tribunal as well as judgment and order of the learned Single Judge are modified to the extent that inspection/recounting of votes shall be in respect of the votes in dispute and there shall be no recounting of all the votes as stated in the election petition. It may also be mentioned here that learned Counsel appearing for the returned candidate has also agreed to that extent. With the aforesaid observations and direction the writ appeal is disposed of. No costs.