Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 136 (MP)

Neki Bai v. Mithlesh

2011-02-01

ALOK ARADHE

body2011
ORDER Alok Aradfge, J. 1. Shri K. N. Gupta, learned Senior Counsel with Shri F. A. Shah, learned Counsel for the Petitioner. Shri V. K. Bharadwaj, learned Senior Counsel with Shri Raja Sharma, learned Counsel for Respondent No. 1. Ms. Nidhi Patankar, learned Deputy Government Advocate for the State. Shri Sanjiv Jain, learned Counsel for Respondent No. 8. With the consent of the parties, the matter is heard finally. 2. In this writ petition preferred under Article 226 of the Constitution of India, the Petitioner has assailed the validity of the order dated 25-5-2010 passed by the Sub-Divisional Officer, Nateran by which election petition preferred by Respondent No. 1 under Section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act) has been allowed and a direction for recount of the votes has been issued. 3. Facts leading to filing of the petition are that election for the post of Sarpanch of Gram Panchayat, Sangrampur, District Vidisha were held on 21-1-2010. The Petitioner as well as the Respondent No. 1 and Respondent No. 8 contested the aforesaid election. The Petitioner was declared elected. Respondent No. 1 and Respondent No. 8 filed an election petition under Section 122 of the Act inter alia on the ground that vote polled in favour of Respondents No. 1 and 8 have been improperly rejected and the votes have not been properly counted. It was pleaded in the writ petition that though an objection was raised at the time of recounting of the votes, however, no heed was paid to the objection preferred by the election Petitioners. The Petitioner filed written statement in which inter alia averments made in the election petition were denied to the effect that election officer has favoured the Petitioner and has wrongly rejected the votes which were validly polled in favour of election Petitioners. It was further pleaded that no objection at the time of counting of the votes was taken by the election Petitioners. The prescribed authority after recording the evidence of the parties and as stated supra, vide order dated 25-2-2010, directed recount of the votes. 4. It was further pleaded that no objection at the time of counting of the votes was taken by the election Petitioners. The prescribed authority after recording the evidence of the parties and as stated supra, vide order dated 25-2-2010, directed recount of the votes. 4. Learned senior counsel for the Petitioner while drawing the attention of this Court to para 8 of the order passed by the prescribed authority has submitted that the prescribed authority itself has found that witnesses have not stated anything with regard to the irregularities alleged to be committed at the time of counting. It was further stated that no application under Rule 80 of Madhya Pradesh Nirwachan Niyam, 1995 (hereinafter referred to as the Rules, 1995) was submitted before the returning officer. Therefore, such a prayer cannot be made in the election petition. Learned senior counsel further submitted that order for recount of the votes has been passed on the basis of surmises and conjectures. It has further been submitted that mere narrow margin of votes, is not a ground for recount. There was neither any specific pleading nor any material on record to show that there was any irregularity in counting the ballot papers. The order for recount cannot be passed in a casual manner. In support of his submissions, learned senior counsel has placed reliance on Sohan Lal v. Babu Gandhi and Ors. 2003(2) MPLJ (SC) 215 : (2003) 1 SCC 108 , Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331 , Shriniwas Tiwari v. Rajkumar Urmalia and Ors. 2010(5) MPLJ 1 : (2010) 5 MPHT 212 , Kamlesh Bai v. Upper Commissioner, Bhopal and Hoshangabad Division and Ors. 2008(2) MPLJ 558 , Rajesh Kumar Banshkar v. Malti Parmar and Ors. 2008(4) MPLJ 375 and Rameshchandra Bhilala v. Bashir and Ors. 2010(4) MPLJ 563 : 2011(1) MPHT 35 . 5. On the other hand, learned senior counsel for Respondent No. 1 submitted that under Rule 80 of the Rules, the application for recount is not required to be mandatorily filed before the returning officer and the prayer for recount can as well be made in an election petition. In support of aforesaid submissions, learned senior counsel has placed reliance on Sohan Lal v. Babu Gandhi and Ors. 2003(2) MPLJ (SC) 215 : (2003) 1 SCC 108 , Chandrika Prasad Yadav v. State of Bihar and Ors. In support of aforesaid submissions, learned senior counsel has placed reliance on Sohan Lal v. Babu Gandhi and Ors. 2003(2) MPLJ (SC) 215 : (2003) 1 SCC 108 , Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331 and Rameshchandra Bhilala v. Bashir and Ors. 2010(4) MPLJ 563 : 2011(1) MPHT 35 . It has further been submitted that if the margin of votes is narrow in appropriate case, the count of votes may be ordered. In support of aforesaid proposition, learned senior counsel has placed reliance on Ram Rati v. Sub-Divisional Officer, Sidhi and Ors. 2005(3) MPLJ 101 , Santosh Kumar Jain v. Indrabhan Singh and Ors. (1998) 1 Vidhi Bavsar 170, Ku. Shardha Devi v. Chandra Pant and Ors. AIR 1982 SC 1569 . It was further submitted that Respondent No. 8 had submitted an application for recount which has been annexed as Annexure R-8/4, however, the same was not accepted by the returning officer. 6. I have considered the submissions made on both sides. In view of the submissions made by learned Counsel for the parties, following issues arise for consideration in the writ petition namely (i) "Whether an application for recount is required to be made mandatorily under Rule 80 of the Rules, 1995 before the returning officer before filing the election petition?" and (ii) "Whether in the obtaining factual matrix the prescribed authority committed an error in ordering the recount?". 7. In Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors. AIR 1993 SC 367 , the Supreme Court has held that an election petition must contain material facts with regard to irregularity in counting and should be supported by contemporaneous evidence. The secrecy of ballot papers cannot be permitted to be tinkered lightly and the order of recount cannot be granted as a matter of course. In Mahender Pratap v. Krishna Pal and Ors. (2003) 1 SCC 390 , the Supreme Court held that proper foundation in the pleadings has to be laid having regard to the fact that onus to prove the allegation is on the election Petitioner. The degree of proof for issuing a direction of recount of votes must be of a very high standard and is required to be discharged. Similarly, in Chandrika Prasad Yadav v. State of Bihar and Ors. The degree of proof for issuing a direction of recount of votes must be of a very high standard and is required to be discharged. Similarly, in Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331 , it has been once again reiterated by the Supreme Court that material facts have to be pleaded in the election petition stating the irregularity in counting of the votes. It has further been held that requirement of maintaining the secrecy of ballot papers must also be kept in view before recount is directed. Narrow margin of votes between the returned candidate and the election Petitioner by itself would not be sufficient to order the recount. 8. In M. Chinnasamy v. K.C. Palanisamy and Ors. (2004) 6 SCC 341 , it has been held that it is a well settled legal principle of law that evidence adduced beyond the pleadings cannot be permitted to be adduced which is at variance with the pleadings. In Sohan Lal v. Babu Gandhi and Ors. 2003(2) MPLJ (SC) 215 : (2003) 1 SCC 108 , the Supreme Court while dealing with Rule 80 of the Rules, 1995 held that it is not a correct statement of law that in the absence of an application in writing for recount of votes before the returning officer, the Court or Tribunal cannot direct for recount. There is neither any prohibition under the Act nor under the Rules to direct recount of the votes. Similar view has been taken by this Court in Shriniwas Tiwari v. Rajkumar Urmalia and Ors. 2010(5) MPLJ 1 : 2010(5) MPHT 212 . 9. In the backdrop of aforesaid well settled legal position, facts of the case may be seen. The copies of election petitions filed by Respondents No. 1 and 8 have been annexed with the writ petition as Annexure P/3 and P/5. In para 4 of the election petition (Annexure P/3), it has been averred that the votes polled in favour of Respondent No. 3 were wrongly rejected and her votes were reduced. In para 5 it has been averred that many votes were counted in favour of the Petitioner which in fact were not polled in her favour. In para 4 of the election petition (Annexure P/3), it has been averred that the votes polled in favour of Respondent No. 3 were wrongly rejected and her votes were reduced. In para 5 it has been averred that many votes were counted in favour of the Petitioner which in fact were not polled in her favour. In para 6 it has been averred that an objection was raised by the Respondent No. 1 as well as her representatives that the ballot papers should be rejected, however, the objections raised by Respondent No. 1/election Petitioner was ignored by the returning officer. Similarly, in Annexure P/5, which is an election petition filed by Respondent No. 8, in paragraphs 4 to 6, the averments with regard to irregularity in counting of the votes have been made. In para 4 of the election petition, it is pleaded that polling party as well as the prescribed authority under the undue influence acted in favour of the Petitioner. In para 5, it has been averred that votes polled in favour of Respondent No. 8 were rejected wrongly and the number of votes polled in favour of Respondent No. 8 were reduced. The votes which were invalid and were liable to be rejected, were counted in favour of the Petitioner. In para 6 it has been averred that an objection was raised by the Petitioner as well as her representatives before the returning officer, however, the objections raised by Respondent No. 8 and her representatives were ignored. Thus, from perusal of the pleadings contained in Annexure P/3 and P/5, it is apparent that pleadings do not contain the material particulars with regard to irregularities in counting of votes and bald allegations have been made in the election petition. There is no proper foundation in the pleadings with regard to alleged irregularities in the counting of votes. The prescribed authority in the impugned order dated 25-5-2010 in para 8 of the order has held that the witnesses have not given the particulars with regard to the irregularities in the counting of votes. However, merely on the basis of suspicion for the reasons recorded in para 9, the Sub-Divisional Officer has ordered recount of votes in the interest of justice. 10. However, merely on the basis of suspicion for the reasons recorded in para 9, the Sub-Divisional Officer has ordered recount of votes in the interest of justice. 10. In view of decision of the Supreme Court in Sohan Lal (supra), the first issue has to be answered in the negative for the reason as even in the absence of an application in writing for recount of votes before the returning officer, the Court or Tribunal cannot (sic : can) direct for recount. There is neither any prohibition under the Act nor under the Rules to direct recount of the votes. However, for reasons assigned in preceding paragraphs the obtaining factual scenario, the second issue has to be answered in the affirmative. Thus, the order dated 25-5-2010 passed by the Sub-Divisional Officer, Nateran, District Vidisha, ordering recount of votes cannot be sustained in the eye of law. The same is hereby quashed. 11. In the result, the writ petition succeeds and is hereby allowed.