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2010 DIGILAW 5297 (MAD)

Patti Ochan v. K. Murugan

2010-12-02

V.RAMASUBRAMANIAN

body2010
Judgment :- V. RAMASUBRAMANIAN, J. 1. This Civil Revision Petition arises out of an order passed by the I Additional District Judge, Madurai (Election Tribunal) ordering the recounting of the votes polled in the election held on 15.10.2006 to the post of President of Sowdarpatti Village Panchayat. 2. I heard Mr. M. Vallinayagam, learned Counsel for the Petitioner, Mr. A. Arumugam, learned Counsel appearing for the First Respondent and Mr. K.M. Vijaykumar, learned Special Government Pleader for the Second Respondent. Since the Third Respondent remained ex parte, even before the Tribunal, he has been given up. 3. In the election held on 15.10.2006 to the post of President of Sowdarpatti Village Panchayat, the Petitioner herein was declared elected, by a margin of just one vote. Challenging this election, the First Respondent herein filed an Election Petition in E.O.P. No.4 of 2006 on the file of the I Additional District Court, Madurai, under Section 258 of the Tamil Nadu Panchayats Act, 1994. By an order dated 19.11.2007, the Election Tribunal directed the Returning Officer to recount the polled votes and to produce the ballot boxes before Court for recounting. Aggrieved by the said direction issued by the Tribunal, the candidate declared elected, has come up with the above Civil Revision Petition. 4. Notice was ordered in the Revision on 28.11.2007 and the order of the Election Tribunal dated 19.11.2007 was stayed by this Court Therefore, no recounting took place on account of the stay order and the Petitioner has continued to function as the elected President. Since the term of office is five years, the next elections may be due in a period of another ten months. However, the same cannot deter me from examining the correctness of the order of the Election Tribunal. 5. Before considering the rival contentions, it is necessary to take note of the admitted facts. They are as follows: (a) Three candidates by name K. Murugan, Patti Ochan and Sekar were in the fray, with lock and key, bulb and lorry as their symbols respectively. (b) A total of 1988 of votes were polled. Patti Ochan, K. Murugan and Sekar were declared to have secured 940 votes, 939 votes and 17 votes respectively. 92 votes were declared invalid. (c) Thus, K. Murugan lost to Patti Ochan, by just one vote. (b) A total of 1988 of votes were polled. Patti Ochan, K. Murugan and Sekar were declared to have secured 940 votes, 939 votes and 17 votes respectively. 92 votes were declared invalid. (c) Thus, K. Murugan lost to Patti Ochan, by just one vote. Therefore, the primary contention of the Election Petitioner-K. Murugan was that it was the declaration of 92 votes, which played the mischief. 6. Before the Election Tribunal, the Election Petitioner, -K. Murugan examined himself as PW1. His agent by name Jayaraj was examined as PW2. Only three documents were marked on his side. The first was the voter identification card, to show that he contested the election. The second was a manuscript copy of the letter of requisition allegedly made by the Election Petitioner to the Returning Officer on 18.10.2006 seeking recounting of votes. The third document was the letter appointing the counting agent. 7. On the side of the Respondents, the Block Development Officer, who acted as the Returning Officer, was examined as RW1. The elected candidate was examined as RW2. No documents were marked on the side of the Respondents. 8. According to the Election Petitioner, who is the First Respondent herein, the Election Officer advised the voters to affix their left thumb impressions while distributing the ballot papers and that the traces of ink left over in the hands of some of the voters actually got imprinted on the ballot papers, leading to the rejection of 92 votes as invalid votes. But, the Block Development Officer denied the same in his statement of objections. He took a stand that the voters were given an option to affix their signatures or their left thumb impression. In the light of such specific denial by the Election Officer and in the absence of any concrete evidence to establish the same, the Election Tribunal rejected the contention of the Election Petitioner. 9. Before the Election Tribunal the Election Petitioner took a specific stand that immediately after the counting of votes, he made a request for recounting. In order to prove this, he filed Ex.P2 and also examined PW2. 9. Before the Election Tribunal the Election Petitioner took a specific stand that immediately after the counting of votes, he made a request for recounting. In order to prove this, he filed Ex.P2 and also examined PW2. Though the Election Officer denied having received any such request and though Ex.P2 did not contain any acknowledgement of the same having been received by the Election Officer, the Tribunal presumed that the Election Petitioner would have certainly submitted such a letter, since he lost the election by only one vote. In any case, the Tribunal also held that there was no necessity to make a request in this regard in writing and that Rule 66 of the Tamil Nadu Panchayats (Elections) Rules did not make it mandatory to submit the request for recounting in writing. Holding that a request for recounting could also be made orally and that there was a possibility for the Election Petitioner to have actually made such a request, the Tribunal ultimately passed an order directing the recounting of votes. 10. Assailing the order of the Tribunal, Mr. M. Vallinayagam, learned Counsel for the successful candidate, who is the Petitioner herein, contended that the Election Petition itself was bereft of essential and necessary particulars and was not even verified in a manner required by law. The Election Petition was not accompanied by Form 20 as required by law and that the finding of the Court below was in violation of Rule 66. It is the further contention of the learned counsel for the petitioner that the fact that the margin of victory was just one vote, cannot be the sole ground for ordering recounting. 11. In response to the above contentions, Mr. A. Arumugam, learned Counsel for the First Respondent (Election Petitioner) submitted that the objection regarding improper verification of pleadings and the non-filing of Form-20, were not raised by the Petitioner herein before the Tribunal. The fact that 92 votes were declared invalid, assumed enormous significance in the light of the fact that the margin of victory was just one vote. The circumstances under which 92 votes were declared invalid, as pointed out in the Election Petition and proved by evidence, showed that a recounting was absolutely essential. The fact that 92 votes were declared invalid, assumed enormous significance in the light of the fact that the margin of victory was just one vote. The circumstances under which 92 votes were declared invalid, as pointed out in the Election Petition and proved by evidence, showed that a recounting was absolutely essential. The learned Counsel for the First Respondent also contended that even if it is construed that the request for recounting must be in writing, as per Rule 66, the said restriction may apply only to the Election Officer and not to the Tribunal for ordering recounting. Therefore, the learned Counsel for the First Respondent justified the order of the Tribunal for recounting. 12. On the question as to, when a recounting could be ordered, the Supreme Court has laid down a set of principles in a catena of decisions. They are as follows: (i) In Ram Sevak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 , it was held that an order to inspection of ballot papers cannot be granted to support vague pleas, not supported by material facts or to fish out evidence. (ii) InP.K.K. Shamsudeen v. K.A.M. Mappilla Mohideen, AIR 1989 SC 640 , it was held that the right of a defeated candidate to seek recounting, has to be subjected to the basic principle that the secrecy of the ballot is sacrosanct and that a high degree of probability should exist for ordering recount. (iii) In Vadivelu v. Sundaram, 2000 (8) SCC 355 , it was held that recount of votes could be ordered very rarely and that the person who seeks recounting, should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. (iv) In Mahendar Pratap v. Krishnan Pal, AIR 2003 SC 304 , it was held that the Court should always insist upon a high standard of proof of grounds as would impel the Court to direct recount. (v) In M. Chinnasamy v. K.C. Palanisamy, 2004 (6) SCC 341 , it was specifically alleged that 750 votes cast in favour of the defeated candidate were rejected due to inadvertent thumb impression and that 250 votes were rejected due to rubber stamp impression of the Polling Officer. (v) In M. Chinnasamy v. K.C. Palanisamy, 2004 (6) SCC 341 , it was specifically alleged that 750 votes cast in favour of the defeated candidate were rejected due to inadvertent thumb impression and that 250 votes were rejected due to rubber stamp impression of the Polling Officer. In the case of hand, 92 votes are alleged by rejected due to the impression of the ink that the voters had on their left thumb, while receiving the ballot papers. Therefore, the allegations in the case on hand are almost similar to the averments contained in M. Chinnasamy case. But, after referring to Order 6, Rule 2, C.P.C., the Supreme Court held in M. Chinnasamy that the Court should not direct recounting, by way of roving or fishing enquiry and that recount cannot be ordered merely because the margin of votes was narrow. (vi) In Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, 2006 (2) SCC 300 , the Supreme Court held that the allegations made in the Election Petition should have been made contemporaneously, after the conclusion of the process of counting. (vii) In Sadhu Singh v. Darshan Singh, 2006 (6) SCC 255, it was held that the following factors are relevant for directing recounting: (a) Prima facie case must be established; (b) material facts must be pleaded station irregularities in counting of votes; (c) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes; (d) an objection to the said effect should be raised; and (e) secrecy of ballot papers should be maintained. (viii) In Sohan Lal v. Babu Gandhi, AIR 2003 SCC 320 , it was held that after the declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election and that once the result is declared, the only remedy of an aggrieved person is to file an Election Petition. (viii) In Sohan Lal v. Babu Gandhi, AIR 2003 SCC 320 , it was held that after the declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election and that once the result is declared, the only remedy of an aggrieved person is to file an Election Petition. (ix) In Ram Rati v. Saroj Devi, AIR 1997 SC 3072 , it was held that in the light of the mandatory language of Rule 76 of the M.P. Panchayat Elections Rules, 1994, it is incumbent upon a candidate or an agent (if the candidate was not present) to make an Application in writing and give reasons in support thereof, while seeking recounting and that if it is not done, then the Tribunal or the Court is not empowered to direct recounting. The Court held that the submission of an Application in writing seeking recounting, is an essential condition precedent. (x) In Ezhilarasi v. Kamala, 2008 (1) MLJ 315 , P. Jyothimani, J. held that when Rule 66 contemplates a specific duty for the contesting candidate or his agent to make an Application in writing to the Returning Officer, necessarily it goes without saying that the Returning Officer is bound to acknowledge the same and consequently, it is the duty of the contesting candidate or his agent to obtain such acknowledgement and in the absence of such acknowledgement, there cannot be any presumption that on the date of counting an objection was made. 13. If the pleadings and the evidence on record in the case on hand is tested on the touchstone of the principles laid down, in the above decisions, it is seen that the First Respondent took a stand in his Election Petition that he submitted a letter in writing on 18.10.2006 seeking recounting of votes. In support of his said contention, he filed a hand written and unacknowledged of the said letter as Ex.P2. He also examined himself and his agent as PW1 and PW2. But, the Returning Officer filed a Counter specifically denying the above contention. In para 8 of his Counter, the Block Development Officer categorically stated that no written representation was made by the Election Petitioner seeking recounting of votes. He also examined himself and his agent as PW1 and PW2. But, the Returning Officer filed a Counter specifically denying the above contention. In para 8 of his Counter, the Block Development Officer categorically stated that no written representation was made by the Election Petitioner seeking recounting of votes. Apart from a specific denial, the Block Development Officer also went into the witness box and deposed as RW1 that no written request for recounting of votes was made by the Election Petitioner. 14. But, unfortunately to the Election Petitioner, the Tribunal did not record any clear finding to the effect that Ex.P2 as in fact submitted. The Tribunal could have chosen either to believe or disbelieve the stand of the Election Petitioner. But, after pointing out that there were discrepancies in the evidence of PW1 and PW2 on this question, the Tribunal proceeded to hold that there is no necessity for a written representation for recounting. 15. In his cross-examination, the Election Petitioner (PW1) stated that Ex.P2 was written by his agent by name Jayaraj and that it was signed and handed over by him to the Returning Officer, but, he refused to receive it. He also admitted that Ex.P2 was not in his handwriting. But, PW2 (the election agent of PW1, by name Jayaraj) stated that he had not written Ex.P2 and that he did not know who wrote Ex.P2. Therefore, in the light of the specific denial by the Block Development Officer and in the light of the glaring contradictions between the evidence of PW1 and PW2, it is clear that the Election Petitioner could not prove his plea that Ex.P2 was filed or attempted to be filed with the Returning Officer. 16. Once it is found that the Election Petitioner failed to establish that he submitted a written request for recounting, then the next question to be considered is as to whether a written request is necessary at all in terms of Rule 66. 17. 16. Once it is found that the Election Petitioner failed to establish that he submitted a written request for recounting, then the next question to be considered is as to whether a written request is necessary at all in terms of Rule 66. 17. Though in Ram Rati, AIR 1997 SC 3072 , a Two Member Bench of the Supreme Court held that under sub-rule (3) of Rule 76 of the M.P. Panchayat Election Rules, 1994, an Application for recounting shall be made in writing, the said decision was overruled by a Three Member Bench in Sohan Lal, AIR 2003 SC 320 , Para 14 of the said decision reads as follows: “In view of section 122 and the Rules, we are unable to agree with the ratio laid down in Ram Rati’s case. It is not correct to hold that, in an Election Petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the Party has first applied in writing for recounting of votes. There is no prohibition in the Act or under the Rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy be to file an Election Petition under Section 122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, held that the ratio laid down in Ram Rati’s case is not correct”. 18. Therefore, an Application in writing to the Returning Officer, may not really be a condition precedent for the Election Petitioner to seek recounting of votes. In this regard, Rule 76 of the M.P. Panchayats Elections Rules, which fell for consideration in Ram Rati’s case, is almost similar to Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995. Both these Rules make use of the expression “apply in writing”. In this regard, Rule 76 of the M.P. Panchayats Elections Rules, which fell for consideration in Ram Rati’s case, is almost similar to Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995. Both these Rules make use of the expression “apply in writing”. Therefore, the decision in Sohan Lal clinches the issue that even in the absence of a request in writing to the Returning Officer, there is no prohibition for the court or the Election Tribunal to order recounting of votes. 19. Therefore, the only question to be decided is as to whether the Election Petitioner made out a case for recounting of votes. This question is to be decided on the basis of the five tests laid down by the Apex Court in Sadhu Singh. These five tests are already extracted in para 12 (vii) above. 20. If so tested, it is clear that the only factor which impelled the Election Petitioner to seek a recounting, is that he lost the elections by a margin of just one vote and that it was on account of 92 votes being declared invalid. But, it is well settled that however narrow the margin may be, the same cannot provide the sole justification for an order for recounting. Therefore, the only issue that would remain to be tested is as to whether 92 votes were declared invalid unlawfully. 21. In his Election Petition, the First Respondent claimed in paragraph 5.2 that the Returning Officer was wrong in declaring 86 votes as invalid on account of the abrasions caused by rubber stamp ink. In his Counter, the Block Development Officer claimed in paragraph 5 that the voters were given the option either to sign or to affix their left thumb impression on the counterfoils of ballot papers and that there was no compulsion to affix their left thumb impression. 22. But, the Election Petitioner did not indicate as to how many of those votes were polled in his favour and how many were polled in favour of the successful candidate. Neither in the Election Petition nor in his deposition, did the Election Petitioner state as to how many votes polled in his favour were declared invalid and how many polled in favour of the elected candidate were declared invalid. The Election Petitioner examined his counting gent also as PW2. He was the person on the spot. Neither in the Election Petition nor in his deposition, did the Election Petitioner state as to how many votes polled in his favour were declared invalid and how many polled in favour of the elected candidate were declared invalid. The Election Petitioner examined his counting gent also as PW2. He was the person on the spot. He did not also indicate in his deposition as to how many of the votes declared as invalid, had been polled in favour of the Election Petitioner. These details were very much essential as well as crucial, for deciding as to whether a recounting was necessary or not. In the absence of specific pleadings, with regard to these, essential details, the Election Petitioner cannot be taken to have made out a prima facie case for recounting. If no prima facie case is made out, the first among the five factors laid down by the Supreme Court for ordering recounting, does not stand satisfied. Therefore, no recounting can be ordered. 23. As a matter of fact, the very attempt of the Election Petitioner to have a recounting done, appears to be only to find out the number of votes polled in his favour and in favour of the elected candidate, in the ultimate analysis. Therefore, this attempt is nothing but an attempt at having a roving and fishing enquiry conducted by the Tribunal. Since this is not permitted by law, as per the various decisions of the Supreme Court, the order made by the Tribunal for recounting, cannot be sustained. 24. If the parameters laid down by the Apex Court in M. Chinnasamy are applied, the ElectionPetition is actually devoid of necessary particulars, essential under Order 6, Rule 2, C.P.C. Therefore, the Tribunal was wrong in ordering a recount and hence, the order directing a recount is liable to be set aside. 25. Consequently, the Civil Revision Petition is allowed and the impugned order is set aside. The above M.P. is closed. No costs.