Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 814 (MP)

Narendra Patel v. Amarkant Tiwari

2011-07-26

RAJENDRA MENON

body2011
ORDER Rajendra Menon, J. 1. Challenging the order dated 22.11.2010 Annexure P/3 passed by the Sub Divisional Officer, Tahsil Huzur, District Rewa allowing an election petition filed by respondent No. 1 Shri Amarkant Tiwari under Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, petitioner has filed this petition. 2. In the election to the Gram Panchayat in question namely Ituara Janpad Panchayat, Raipur Karchuliyan, District Rewa held on 18.1.2010 petitioner was declared as elected. In the result declared, petitioner polled 203 votes, 198 votes were cast in favour of respondent No. 1. Inter alia contending that counting of vote in the election was not properly undertaken, certain invalid votes had been counted in favor of the petitioner and certain valid votes have not been counted in favor of respondent No. 1, as such the result and final outcome of the election is materially effected and further contending that the facilities available in the process of counting of votes was not proper, materially effecting the outcome of the election, the election petition was filed by the respondent No. 1. Petitioner appeared and refuted the aforesaid. However, no issues were framed and after recording of evidence, the impugned order has been passed. 3. Shri M. P. Shukla, learned counsel for the petitioner by taking me through the pleadings of the petition, complaints submitted and various other documents available on record, tried to emphasize that in this case election petition is decided without framing of issues. As such the entire trial stands vitiated. It is further argued by him that when the counting of votes were done, neither the respondent No. 1 nor his witnesses have raised any objection and therefore, directing for recounting on the objection raised for the first time in the election petition is said to be unsustainable. 4. Placing the reliance on the following judgments : Kalka Prasad Vs. Ramji Lal & Others 2002 (3) MPLJ 121 , Ravindra Singh Vs. Sub Divisional Officer 2006 (3) MPLJ 571, Kamlesh Beri Vs. Upper Commissioner, Bhopal 2008 (2) MPLJ 558 , Birjha bai Vs. State of MP. & Ors. 2008 (2) MPLJ 591 , Gyanendra @ Chotu Vs. Anop Chand & Others 2009 (4) MPLJ 535 , Vidhyawati Lilhare Vs. Ramji Lal & Others 2002 (3) MPLJ 121 , Ravindra Singh Vs. Sub Divisional Officer 2006 (3) MPLJ 571, Kamlesh Beri Vs. Upper Commissioner, Bhopal 2008 (2) MPLJ 558 , Birjha bai Vs. State of MP. & Ors. 2008 (2) MPLJ 591 , Gyanendra @ Chotu Vs. Anop Chand & Others 2009 (4) MPLJ 535 , Vidhyawati Lilhare Vs. Sub Divisional Officer, and Lanji Balaghat 2010 (1) MPLJ 115 , Shri Shukla, learned counsel for the petitioner argued that the direction given by the Election Tribunal for recounting in the election petition is unsustainable. In sum and substance argument of learned counsel for the petitioner is that deciding of the election petition in the manner done without framing of issues, is contrary to well settled principles of law and therefore, the same be interfered with. 5. Shri Aditya Adhikari along with Shri Ajay Ojha, learned counsel appearing for respondent No. 1 submitted that merely because issues are not framed that by itself is not a ground for holding the entire election trial to be vitiated. It is submitted by Shri Adhikari that in the absence of any prejudice being pleaded or proved in these proceedings, on the ground of non framing of issues, the interference in this petition is unsustainable. In support of the aforesaid contention he invites my attention to the judgment of Supreme Court in the cases of Makhan Lal Bangal Vs. Manas Bhunia and others 2001 (2) SCC 652 and to another judgment of Supreme Court in the case of Shri Manni Lal Vs. Shri Parmai Lal and others 1970(2) SCC 462 . Shri Aditya Adhikari, learned counsel for the respondents took me through the impugned order, analysis of evidence by the election Tribunal and argued that there is no illegality in the order passed which was based on the evidence of the parties, the question has been decided and as after recounting respondent No. 1 is declared as elected, there is no error in the order warranting interference. Shri Aditya Adhikari further submitted that when the counting of vote took place, immediately after the election, total number of vote casted was found to 1302 but later on it was found to be 1306 and that itself shows that initially counting was not proper. Shri Aditya Adhikari further submitted that when the counting of vote took place, immediately after the election, total number of vote casted was found to 1302 but later on it was found to be 1306 and that itself shows that initially counting was not proper. Accordingly, submitting that a reasonable order passed by the election Tribunal, does not warrant any interference, Shri Adhikari prays for dismissal of the writ petition. 6. I have heard learned counsel for the parties at length and perused the record. Even though this Court in the case of Kalka Prasad (supra) after following the judgment of the Supreme Court in the case of Makhan Lal Bangal (supra) has laid down the principle that an election petition should not be decided without framing of issues but the said principle has to be evaluated in the light of further observation made in the case of Makhan Lal Bangal (supra) so also in the case of Shri Manni Lal (supra) wherein the question of prejudice and its effect on the final outcome has to be evaluated. Even though learned counsel for the petitioner had tried to emphasize that issues were not framed but he has not pointed out to this Court any prejudice that is caused to him due to the aforesaid procedure being followed. However, as the election petition is decided only on the question of improper counting of vote and direction issued is to order for recounting of the vote, the principles laid down by the Supreme Court in the cases of P. K. K. Shamsudeen Vs. K.A. M. Mappillai Mohindeen and others (1989)1 SCC 526 and Vadivelu Vs. Sundaram and others - (2000)8 SCC 355 has to be applied and the recounting of vote ordered in the present case has to be evaluated in the back drop of the principles laid down in the cases of P. K. K. Shamsudeen (supra) and Vadivelu (supra). In the case of P. K. K. Shamsudeen (supra) the question is considered and principle is laid down in the following manner: 12. In R. Narayanan v. Semmalai, (1980) SCR 571, the same principle has been reiterated. That was a case where the difference of votes between the candidates declared elected and his nearest rival, who filed an election petition wasonly 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. In R. Narayanan v. Semmalai, (1980) SCR 571, the same principle has been reiterated. That was a case where the difference of votes between the candidates declared elected and his nearest rival, who filed an election petition wasonly 19 votes and which figure would have come down to 9 votes only if the postal ballots were included. Even so this Court after referring to a number of decisions and Halsbur/s Laws of England and Fraser on Law of Parliamentary Elections and Election Petitions held that without their being an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting of votes are founded and such averments being backed by acceptable evidence and the Court trying the petition being prima facie satisfied that an order for recount of votes is imperatively necessary to decide the dispute and do complete justice between the parties, an order of recount of votes cannot be passed. 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 high sight and 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 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 recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes. 14. 14. Viewed in the light of these well enunciated principles, we find that the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of ballot being breached in the petitioner's case. Factors urged before us by Mr. Padamanabhan such as that the first respondent had accepted the correctness of the recount, and that he had conceded his defeat and wanted a re-election to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal. 15. Mr. Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of N. Gopal Reddy v. Bonala Krishnamurty & Ors., CA No. 3730 (NCE) of 1986 reported in JT 1987 (1) SC 406 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured 28 votes less than the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. Similarly in the case of Vadivelu (supra) the following principle is laid down: 16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to re-count of votes under such circumstances to do justice between the parties. 7. If the procedure followed in the present case is evaluated in the backdrop of the aforesaid requirement of law, it would be seen that in the election petition filed vide Annexure P/1 petitioner raised grounds with regard to improper counting by pointing out that in 3 polling booths namely booth No. 23, 24 & 26 various votes were declared valid or invalid without there being any proper reason for the same. Parties went to trial and evidence were also led on this count. Statements of witnesses indicate that witnesses without even referring to any documents or any other material with them regarding the particulars of the ward, number of votes cast and number of votes declared to be valid or invalid gave facts and figures in this regard. It is surprising as to how the witnesses could give exact number of votes cast, valid and invalid votes etc. without the help of any documents, such a statement based on help of any documents, such a statement based on memory that also by voters of a Panchayat election is unbelievable. Be that as it may, when the matter was considered by the election Tribunal, the order passed by the election tribunal indicates that after recording the pleadings of the parties and after taking note of allegations made in the election petition under Section 122. The Tribunal proceeded to take note of the statement of witnesses and finally in a very casual manner without application of mind or analysis of evidence finds illegality in the matter of counting and directed for recounting of the vote. The Tribunal proceeded to take note of the statement of witnesses and finally in a very casual manner without application of mind or analysis of evidence finds illegality in the matter of counting and directed for recounting of the vote. If the findings by the Enquiry Officer in this regard is perused, it would be seen that in the order passed by him, the entire case of the parties are reproduced and thereafter in a very casual manner in less than two paras he has directed for recounting. He has accepted the version given by the witnesses of the respondent with regard to the number of votes declared valid or invalid but did not think it appropriate even for a moment to call for the ballot papers and verify the statement of witnesses. Once the statement were given, they could be verified through the ballot papers. It was not appropriate for the Election Tribunal to give credence to the oral statement of witnesses without there being any cogent material to hold that the witnesses were giving correct statement. More appropriate manner of dealing with the matter would have been to call for the ballot papers, other records, verify them as to whether statement given by the witnesses are correct and thereafter proceed in the matter. Election Tribunal did not proceed in the said manner. Instead merely on the basis of the oral statement held that in various polling booths the number of ballot papers has not been properly counted and that is why they have been declared valid or invalid and proceed to order for recounting. However, while doing so, the Election Tribunal did not even think it appropriate to refer to the defence of the petitioner or its witnesses. Therefore, I am of the considered view that the finding recorded by the Election Tribunal is a perverse finding, shows non application of mind. Recounting of votes in a duly conducted election is directed in the manner done which is not in accordance to law. It is a case where the principles laid down by the Supreme Court in the cases referred to herein above is violated. Even though there is some force in the contention advanced by Shri Adhikari that non framing of issues has not caused any prejudice but the manner in which the Election Tribunal has decided the issue, warrants consideration by this Court. Even though there is some force in the contention advanced by Shri Adhikari that non framing of issues has not caused any prejudice but the manner in which the Election Tribunal has decided the issue, warrants consideration by this Court. The Election Tribunal was proceeding to decide the fate of elected candidate and if the election Tribunal found that the election stood vitiated which would have the result of unseating an elected candidate, the Election Tribunal should have been more analytical and should have analyse the matter more critically particularly about truthfulness of the allegation and should have recorded its satisfaction about the irregularity in the counting of votes in more careful manner. Finding of the Election Tribunal is totally perverse and cannot be accepted by this Court. Finding recorded by the Election Tribunal does not show application of mind and in a casual manner which runs contrary to the principles laid down by the Supreme Court in the case of P. K. K. Shamsudeen (supra) and Vadivelu (supra) so also by this Court in the cases relied upon by the learned counsel for the petitioner. 8. Accordingly, this petition is allowed and the matter is remitted back to the Election Tribunal to proceed afresh in the matter. As the case is being remanded back to the Election Tribunal, it is thought appropriate to direct the Election Tribunal to frame the issues first and thereafter proceed with the trial of the election petition from the stage of framing of issues. Accordingly, it is directed that on the parties appear before the Election Tribunal along with certified copy of this order on 8th August 2011 the Election Tribunal shall fix a date, issues shall be framed on the said date and thereafter evidence shall be recorded afresh based on the issues framed and after recording of evidence and hearing the parties concerned, election petition shall be decided in accordance with law on or before 30th September 2011. 9. Records received from the Election Tribunal be sent back. Needless to emphasize that as the election petition is being remanded back and proceedings will be started from the stage of framing of issues, parties shall be at liberty to lead fresh evidence. 10. With the aforesaid, petition stands allowed and disposed of.