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Madhya Pradesh High Court · body

2009 DIGILAW 1140 (MP)

Gyanendra @ Chotu v. Anoop Chand

2009-09-17

R.S.JHA

body2009
ORDER 1. The petitioner has filed the present petition being aggrieved by order dated 22.11.2007 passed by the Election Tribunal/Sub-Divisional Officer, Kherlanji in an election petition filed by the respondent No.1 against the election of the petitioner as Sarpanch of Gram Panchayat, Amai, Tehsil Kherlanji, District Balaghat. 2. The brieffacts leading to filing of the petition are that the petitioner, the respondent No.1 and other candidates participated in the elections held for the post of Sarpanch, Gram Pane hay at, Amai, Tahsil Kherlanji, District Balaghat held on 23.1.2005 and the petitioner was declared elected having secured 433 votes as against the respondent No.1 who secured 430 votes. Being aggrieved by the election of the petitioner, the respondent No.1 filed an election petition before the Election Tribunal/Sub-Divisional Officer, Kherlanji under section 122 of the M.P. Gram Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 read with the provisions of the M.P. Panchayat (Election Petition Corn.1pt Practices and Disqualification for Membership) Rules, 1995. The Sub-Divisional Officer by the impugned order dated 22.11.2007 has ordered recount by allowing the petition being aggrieved by which the petitioner has filed the present petition. 3. It is submitted by the learned counsel for the petitioner that the impugned order has been passed by the Election Tribunal without taking into consideration the requirements of the provisions of law and in the absence of proper pleadings in the election petition. It is submitted by the learned counsel for the petitioner that the finding recorded by the SDO is also not based on proper appreciation of facts and application of mind to the evidence on record inasmuch as the Election Tribunal has recorded a finding contrary to the evidence on record. 4. Per contra, it is submitted by the learned counsel for the respondent No.1 that the Election Tribunal after recording a finding of the effect that the counting was effected in candle light, held that there was insufficient light and ordered recounting rightly. It is submitted that the impugned order is based on proper appreciation and due application of mind by the SDO and does not warant any interference. 5. I have heard the learned counsel for parties as length. It is submitted that the impugned order is based on proper appreciation and due application of mind by the SDO and does not warant any interference. 5. I have heard the learned counsel for parties as length. From a perusal of the documents on record, it is clear that the election for the post of Sarpanch of Gram Panchayat Amai, Tehsil Kherlanji, District Balaghat was held on 23.1.2005, voting was continued till 3:00 o'clock in the afternoon and thereafter the counting started. In the initial count, the respondent No.1 was declared elected by one vote. The petitioner immediately filed an application under rule 80 of the M.P. Panchayat (Nirvachan) Niyam, 1995, and the recount was ordered. In the recount, the petitioner having obtained 433 votes, i.e., 3 votes more than the respondent No.1, was declared elected. From the record, it is also clear that the respondent No.1 on the next day, i.e.24.1.2005, filed an application for recount, which was not considered by the authorities and, in my opinion, rightly so in view of the provisions of rule 80 of the Rules, 1995 and judgment of the Supreme Court reported in the case of V.S. Achuthanandan v. P.J. Francis [ (2001)3 SCC 81 ]. 6. From perusal of the impugned order, it is also manifestly clear that the Election Tribunal in para 5 has extensively analysed and summarised the evidence of all the witnesses from a perusal of which it is clear that except respondent No.1, all the other witnesses including the official witnesses, have clearly stated that there was adequate and sufficient lighting arrangement, that the electricity was not available for a short period of time but during that period, there was no deficiency of light on account of the fact that patromaxes and other lighting arrangement had been made by the authorities and that the light was sufficient to enable all the persons present to clearly scrutinise the ballot papers including the seal affixed by the voters thereon. But in spite of the aforesaid summary of evidence recorded by the Election Tribunal, the Tribunal/Sub-Divisional Officer has gone on to hold that the counting was held in insufficient light and, therefore, there was violation of rules 77 and 80 of the Rules and has ordered recount. 7. But in spite of the aforesaid summary of evidence recorded by the Election Tribunal, the Tribunal/Sub-Divisional Officer has gone on to hold that the counting was held in insufficient light and, therefore, there was violation of rules 77 and 80 of the Rules and has ordered recount. 7. From a perusal of the impugned order, it is also clear that the Election Tribunal has also taken into consideration the fact that there was some overwriting in the declaration of result in Form 17 by the Returning Officer violating the provisions of rules 76 and 80. However, it is also apparent that the finding has been recorded totally overlooking the fact that said authorities have given cogent and reasonable explanation for the same and by also overlooking the fact that the respondent himself being present at the time of declaration of the result did not object to the same but did so much later subsequently. 8. The Supreme Court in the case of V.S. Achuthanandan v. P.J. Francis (supra), in para 13, after taking into consideration the various judgments has summarised the law relating to recount in the following terms: "13. The power vesting in the Court seized of an election dispute to order for inspection and recount of the ballot papers has been subject-matter of several decisions of this Court which have by authorities exposition settled the law thereon. Without burdening this judgment with the series of available decisions, it would suffice to mention a few only, namely, Constitution Bench decision in Ram Sewak Yadav v. Hussain Kamil Kidwai [ AIR 1964 SC 1249 ], three Judges Bench decision in Suresh Prasad Yadav v. Jai Prakash Mishra [ AIR 1975 SC 376 ], Bhabhi v. Sheo Govind [ AIR 1975 SC 2117 ], which refers to all the decisions available till then and a recent decision in M.R. Gopalkrishnan v. Thachady Prabhakaran [1995 Suppl.(2) SCC 101=1995 AIR SCW 156], to which one of us (Dr. A.S. Anand, J., as his Lordship then was) is a party. We may briefly restate the principle as under: 1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature. A.S. Anand, J., as his Lordship then was) is a party. We may briefly restate the principle as under: 1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only on a case being properly made out in that regard. 2. A petition seeking inspection and recount of ballot papers must contain averments adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose. 3. The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts. 4. The election petitioner must produce trustworthy material in support of the allegations made for a recount enabling the Court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The Court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. 5. The power to direct inspection and recount shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. 6. 5. The power to direct inspection and recount shall not be exercised by the Court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void. 6. By mere production of the sealed boxes of ballot papers or the documents forming part of record of election proceedings before the Court the ballot papers do not become a part of the Court record and they are not liable to be inspected unless the Court is satisfied in accordance with the principles stated hereinabove to direct the inspection and recount. 7. In the peculiar facts of a given case the Court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made in support of a prayer for recount and not for the purpose of fishing out materials." The same view has again been in the case of M. Chinnasamy v. K. C. Palanisamy [ (2004)6 SCC 341 ], and Baldev Singh v. Shinder Pal Singh [ (2007)1 SCC 341 ]. 9. From a perusal of the aforesaid judgments, it is clear that an order of recount cannot be made on the mere asking or for the purpose of making a roving enquiry but can be made only on the basis of clear and specific pleading supported by clear evidence to the effect that the ballot papers of a particular booth had been wrongly accepted or rejected which, had they been counted in favour of the returned candidate or deducted from the votes polled by the returned candidate would have immediately affected the result of the election. 10. From a perusal of the election petition in the present case, it is clear that such a specific averment regarding particular booth, particular number of votes and defect in acceptance or rejection therein is totally missing. It is also clear that the Election Tribunal/SDO had ordered recount not on the basis of such specific averment but on account of scarcity of light and overwriting in the declaration form issued which cannot form a ground for ordering recount but are grounds for generally challenging the election of the returned candidate under the provisions of the Rules. 11. It is also clear that the Election Tribunal/SDO had ordered recount not on the basis of such specific averment but on account of scarcity of light and overwriting in the declaration form issued which cannot form a ground for ordering recount but are grounds for generally challenging the election of the returned candidate under the provisions of the Rules. 11. In the aforesaid facts and circumstances, I am of the considered opinion that the impugned order of recount passed by the Elecvtion Tribunal/SDO, dated 22.11.2007 being perverse and beyond the authority of the Election Tribunal in view of the fact that the essential requirements for ordering recount were missing, deserves to be and is hereby set aside. 12. It is submitted by the learned counsel for the petitioner that in view of the interim order passed by this Court recount has been conducted and though the result has not been declared the respondent No.1 has knowledge of the fact that he has secured more votes than the petitioner and in such circumstances the respondent No.1 be declared elected. 13. I am of the considered opinion that upon the finding record by me holding the impugned order to be perverse, all steps undertaken thereafter stand quashed. I find support from the judgments in the case of P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen [ (1989)1 SCC 526 ], and the judgment in the case of Baldev Singh v. Shinder Pal Singh [ (2007)1 SCC 341 ]. 14. The learned counsel for the respondent No.1 has relied upon an unreported judgment of this Court passed in Writ Partition No.10717/ 2007, Chandrashekhar Nagpure v. Sub-Divisional Officer and others, dated 25.4.2008, wherein the order of recount was upheld in view of scarcity of light. From a perusal of the order, it is clear that, that was a case where frequent electricity failure occurred at the time of counting itself and thereby affecting and disturbing the count and, therefore, a finding was recorded that because of frequent failure of the electricity the counting of votes was affected, which is not the case in the present petition. In the present petition, from the evidence of witnesses it is clear that in-spit of power failure because of adequate lighting arrangement, there was sufficient light and counting of votes went on smoothly. In the present petition, from the evidence of witnesses it is clear that in-spit of power failure because of adequate lighting arrangement, there was sufficient light and counting of votes went on smoothly. In the circumstances, the reliance placed on the aforesaid judgment by the learned counsel for respondent No.1 is misconceived. 15. In the light of the aforesaid, the petition filed by the petitioner is allowed and the impugned order is quashed and set aside and consequently election of the petitioner as Sarpanch of Gram Panchayat, Amai, Tehsil Kherlanji, District Balaghat is hereby affirmed. In the facts and circumstances of the case, there shall be no order as to costs.