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Madhya Pradesh High Court · body

2012 DIGILAW 286 (MP)

Hanumant Singh v. State of M. P.

2012-03-13

SUJOY PAUL

body2012
ORDER 1. In this petition filed under Article 226 of the Constitution, challenge is made to the order dated 24.2.2012 (Annexure P-1) passed under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (‘Adhiniyam’). The petitioner is an elected Sarpanch of Gram Panchayat, Bhadera. The election in question was held on 21.1.2010 and the counting took place on 30.1.2010. The petitioner was declared elected with the margin of 22 votes over respondents No. 3. The respondent No. 3 filed an election petition under Section 122 of the Adhiniyam before the S.D.O. (Revenue) (Prescribed Authority) to try the election petition as per the Madhya Pradesh Panchayat (Election Petition Corrupt Practices and Disqualification for Membership), Rules, 1995 (hereinafter refferred to as ‘1995 Rules’). The said authority is hereinafter called as ‘Election Tribunal’. The Election Tribunal by its order dated 24.2.2012 annulled the election aforesaid and directed recounting of the votes and further directed to declare the result of election on the basis of the outcome of recounting. This order is under challenge in the present petition. 2. Shri S.S. Raghuvanshi, learned counsel for the petitioner assailed the said order and submits that as per Rule 3 of the said Rules, the security amount is required to be paid on the same date when election petition is filed. By drawing attention of this Court on the statement of the petitioner (Annexure P-10) at page 52, the reply filed by respondent No. 3 before the Tribunal that the election petition is actullay filed on 3.3.2010 by the election petitioner along with his Advocate. It is stated in the said reply Annexure P-10 that the date is erroneously mentioned as 4.3.2010 whereas the election petition is actually filed on 3.3.2010. Shri Raghuvanshi by drawing attention of this Court on Annexure P-12, again submits that the election petitioner has taken this stand on the document dated 25.1.2010 also that election petition is actually filed on 3.3.2010. 3. By placing reliance on the receipt Annexure P-11, Shri Raghuvanshi submits that the requisite amount/security amount is deposited on 4.3.2010. Shri Raghuvanshi by drawing attention of this Court on Annexure P-12, again submits that the election petitioner has taken this stand on the document dated 25.1.2010 also that election petition is actually filed on 3.3.2010. 3. By placing reliance on the receipt Annexure P-11, Shri Raghuvanshi submits that the requisite amount/security amount is deposited on 4.3.2010. Thus, Shri Raghuvanshi submits that as per the own stand of respondent No. 2, it is clear that the election petition was filed on 3.3.2010, whereas the requisite amount of security was deposited a day later on 4.3.2010 and, therefore, as per Rule 7 of the said rules, the election petition is liable to be dismissed and such a defect was not a curable defect. 4. The next contention of Shri Raghuvanshi is that page 52 Annexure P-10 further shows that the respondent No. 3 herein admitted that he engaged one Shri Santosh Mittra, Advocate to appear in the election petition but erroneously the petitioner did not put his signature in the Vakalatnama of Shri Santosh Mittra. Shri Raghuvanshi submits that the said Vakalatnama is of no use unless it gives authorization by the election petitioner. Thus, the next argument is that as per the stand of petitioner, the election petition was filed by the counsel, who did not have any valid authorization on the date of presentation of election petition and, therefore, the said petition ought to have been dismissed by the Tribunal. 5. The next contention of Shri Raghuvanshi is that it is settled in law that recounting cannot be directed by the Tribunal in a routine and mechnical manner. The secrecy of the vote is utmost important. By placing reliance on series of judgments of this Court and Supreme Court, Shri Raghuvanshi submits that the Tribunal has mechanically directed to recounting of the votes. The learned counsel placed reliance on the statement of Shri R.V. Shidorkar, the Returning Officer (Annexure P-18) in this regard to submit that the said authority has stated that there was no irregularity in the matter of counting of the votes and, therefore, there is no question of consideration of recounting. Shri Raghuvanshi also relied on the statements of the election petitioner and the witnesses, who appeared on behalf of the election petitioner viz., Pawan, Gajnedra and Parmanand. Shri Raghuvanshi also relied on the statements of the election petitioner and the witnesses, who appeared on behalf of the election petitioner viz., Pawan, Gajnedra and Parmanand. The learned counsel submits that a minute scrutiny of the statements would show that there is clear contradiction in their statements and this shows that all statements are after thought and not trustworthy. The learned counsel would further submit that the burden of proof to establish the allegations of the election petition was on the shoulders of the petitioner. Even weakness of the returned candidate cannot be a ground for recounting. 6. To elaborate, Shri Raghuvanshi submits that the Election Tribunal is under legal obligation to examine meticulously the pleadings of the election petitioner and examine the deposition of the witnesses in the light of such pleadings wherein allegations of improper counting was made. By drawing attention of this Court on the relevant pleadings of the election petition, Shri Raghuvanshi submits that the material facts and material particulars are lacking in those pleadings and on the basis of such bald pleadings no evidence can be permitted to be relied upon. By attacking the depositions also, the learned counsel for the petitioner submits that the statements are not reliable and on the basis of those statements recounting is improperly directed by the Tribunal in a rountine manner which cannot sustain judicial scrutity. 7. Shri Raghuvanshi cited the following judgments :- (i) Vidyawati Lilhare v. Sub-Divisional Officer-cum-Prescribed Officer Lanji, Balaghat and others 2010 (2) JLJ 29 = (2010 (4) MPHT 92 (DB). (ii) Bhabhi v. Sheo Govind and others ( AIR 1975 SC 2117 ) (para 15). (iii) Shri Satyanarain Dudhani v. Uday Kumar Singh and others ( AIR 1993 SC 367 (para 10 and 11). (iv) Chandrika Prasad Yadav v. State of Bihar and others ¼2004½ 6 SCC 331 (paras 20,21 and 22). (v) Jeet Mohnider Singh v. Harminder Singh Jassi (1999) 9 SCC 386 (para 26). (vi) Mahant Ram Prakash Dass v. Ramesh Chandra and others (1999) 9 SCC 420 (para 13) and a recent judgment of Neki Bai v. Mithlesh and others 2011 (II) MPWN 58 = ( 2011 (2) MPHT 336 ). 8. A Division Bench judgment passed by this Court in W.A. No. 186/11 dated 6.4.2011 (Annexure P-9) is also relied upon by the learned counsel for the petitioner to support the aforesaid contentions. 9. 8. A Division Bench judgment passed by this Court in W.A. No. 186/11 dated 6.4.2011 (Annexure P-9) is also relied upon by the learned counsel for the petitioner to support the aforesaid contentions. 9. Shri Gaurav Samadhiya, learned counsel for respondent No. 2 supported the order dated 24.2.2011. Shri Samadhiya submits that the election petition is actually filed on 4.3.2010. He placed reliance on the order sheet of the Tribunal below (Annexure P-4) and also the endorsement made on the memo of election petition wherein the Tribunal has recorded that it is filed on 4.3.2010, itis also mentioned in the memo of election petition that it was presented by the petitioner along with Advocate. 10. To counter the first attack of Shri Raghuvanshi that election petition was not filed on 4.3.2010, as per the petitioner’s own statement, Shri Samadhiya relied on a recent judgment of this Court in Dr. Bhagirath Prasad v. Election Commission of India and others 2011 (I) JLJ 115 = ( 2011 (2) MPHT 229 ) (para 5) to submit that such endorsement is trustworthy and is to be relied upon. Thus, his contention is that it is incorrectly mentioned by the petitioner in his reply to certain applications that election petition was filed on 3.3.2010, whereas it is actually filed on 4.3.2010 which is clear like noon day as per the order sheet of the Tribunal as well as the noting of the Tribunal on the memo of election petition. 11. On the basis of this factual backdrop, Shri Samadhiya submits that once it is clear that the election petition was filed on the same date i.e., 4.3.2010, Rule 7, has no application in the facts and circumstances of this case. 12. The learned counsel by placing reliance on Rule 3 of 1995 Rules submits that the requirement of the rule is to file/submit the election petition in person or through Advocate. Once it is clear that election petition was presented by the petitioner in person along with the Advocate, whether Advocate was authorized on that date, will not render his election petition as bad or illegal. Once it is clear that election petition was presented by the petitioner in person along with the Advocate, whether Advocate was authorized on that date, will not render his election petition as bad or illegal. To elaborate, Shri Samadhiya, submits that the note on the memo of election petition makes it crystal clear that the petitioner in person presented the election petition before the Tribunal, the requirement of Rule was fulfilled and there is no procedural irregularity or infirmity which renders the election petition as not tenable. 13. Meeting the statement of Shri Raghuvanshi, Shri Samadhiya submits that Shri Brijesh Sharma appeared as a witness of the present petitioner before the Tribunal and he admitted that Exhibit P-3 was filed before the Tribunal. By placing reliance on the statement of the Returning Officer Shri R.B. Sidorkar, Shri Samadhiya submit that this person has also accepted that after the counting, Exhibit P-3 was actually filed. The learned counsel by placing reliance on the statement of Shri R.B. Sidorkar would submits that he has not ruled out the possibilities of bungling in the counting and has also stated that the concerned votes were not sealed after the counting. 14. The learned counsel submits that the petitioner in para 5.23 of the writ petition has made an incorrect statement which amounts to suppression of facts whereby he has stated that the present petitioner had filed an application before the Tribunal but the Tribunal has not allowed the application filed by the petitioner. By placing reliance on Amar Singh v. Union of India and others ¼2011½ 7 SCC 69, the learned counsel submits that on this score alone the writ petition deserves to be rejected and this petition cannot be entertained because of aforesaid suppression of material facts. 15. By placing reliance on Smt. Ladhunwar Kori v. Arya Lalaram and othes ( 2011 (3) MPHT 335 ) (para 7), the learned counsel submits that once it is accepted that application for recounting was filed by the petitioner before Shri R.B. Sidorkar, this alone is sufficient for ordering recounting of the vote. 16. Mrs. Nidhi Patankar, learned Govt. Advocate supported the orders passed by the Tribunal. 17. No other points are pressed by the parties before this Court. 18. I have heard the learned counsel for the parties at length and perused the record. 19. 16. Mrs. Nidhi Patankar, learned Govt. Advocate supported the orders passed by the Tribunal. 17. No other points are pressed by the parties before this Court. 18. I have heard the learned counsel for the parties at length and perused the record. 19. The question involved in this matter are no more res integra. In catena of judgments the apex Court has settled the issues invoved. Various Benches of this Court have also laid down law on the subject. The questions to be decided are :- (i) Whether there was sufficient material before the Tribunal for declaring the petitioner’s election as illegal? (ii) Whether the direction of the Tribunal for recount of votes is legal and justified? 20. In AIR 1993 SC 367 (Shri Satyanarain Dudhani v. Uday Kumar Singh and others) it has been held that secrecy of ballot cannot be lightly tinkered. In a democratic set up secrecy of ballot is of utmost importance and in absence of very specific pleading of material facts and particulars supported by contemporaneous evidence, neither election can be quashed nor recount can be ordered. In (2003) 1 SCC 390 (Mahender Pratap v. Krishan Pal and others) it was held that the onus of proof on the basis of proper pleading is on the election petitioner. It is further held that the degree of proof must be of very high standard to annual an election or for direction for recounting. Evidence beyond pleading is held to be impermissible in ¼2004½ 6 SCC 341 (M. Chinnasamy v. K.C. Palanisamy and others). The same view is taken by the apex Court in (1999) 9 SCC 386 (Jeet Mohinder Singh v. Harminder Singh Jassi). Thus, on the basis of aforesaid principle of law laid down, it is now required to be examined whether the Election Tribunal has rightly passed the impugned order? The election petitioner pleaded in the election petition that 15 valid votes which were casted in favour of the election petitioner were shown as invalid and cancelled and few votes of election petitioner were added in the votes received by the returned candidate/present petitioner and 10 invalid votes were added in favour of the returned candidate/present petitioner, thereby showing 324 votes casted in favour of the present petitioner whereas 302 votes were shown in favour of the election petitioner. It is further pleaded in the election petition that the candidates were not shown the votes even from a distance but in the same breath it is stated in para 5 that the votes which were declared as illegal were seen by the election petitioner and other candidates. It is further pleaded that an application in this regard containing objections was submitted before the Returning Officer. The election petitioner in his cross-examination stated that at the time of filing of objections (Ex. P/3) three persons namely, Pawan, Gajendra and Parmanand were present and no body else on behalf of the petitioner was present at the time of counting. He further admitted that in Ex. P/3 he only made a request for recounting and did not mention about mixing of cancelled votes or adding the votes casted in favour of election petitioner in the votes received by the present petitioner (Hanumant Singh). Aforesaid Pawan also entered the witness box and stated that he was standing at a distance of only 2 mtrs. from the place of counting. He was in a position to see the votes and the seal marked on the votes was clearly visibly. He then stated that 10-15 correct votes were rejected and at this stage he called his candidate (election petitioner). He further stated that the objection (Ex. P/3) and Panchanama was handed over to which authority is not within his knowledge. Gajendra also entered the witness box and stated that counting of votes was clearly visible. He stated that no compliance was made but later improved and stated that it was made after complaint of counting. He stated that the contents of complaint (Ex. P/3) and Panchanama is not known to him. Parmanand entered the witness box and stated that contents of complaint (Ex. P/3) is not known to him. 21. If the contents of election petition are examined in juxtaposition to the evidence led by the election petitioner, it would be clear that the pleadings are not supportted with the high degree of evidence which is required in an election matter to support the pleading. In para 5 of election petition it is pleaded that the votes were not shown to the election agents whereas the election petitioner’s witnesses have admitted that the votes were clearly visible and counting was done at a distance of only 2 mtrs. In para 5 of election petition it is pleaded that the votes were not shown to the election agents whereas the election petitioner’s witnesses have admitted that the votes were clearly visible and counting was done at a distance of only 2 mtrs. Pawan Rawat made an ambiguous statement that 10-15 votes were illegally rejected. Thus, there is contradiction between the pleadings and the statements of the witnesses of election petitoner. 22. The whole case of the petitioner is based on Ex. P/3, which is an objection given after counting on 30.1.2010 Ex. P/3 reads as under :- ^^izfr] Jheku~ fjVfuZax vkWQhlj egksn;] iapk;r fuokZpu] iksgjh fo”k;% iquZerx.kuk ckor~A egksn;] mijksDr fo”k; esa fuosnu gS fd izkFkhZ izR;k’kh izdk’k jkor ljiap in ensjk iapk;r dk vH;FkhZ gSA izkFkhZ }kjk x.kuk deZpkfj;ksa ls ckj&ckj vkxzg fd;k x;k gS fd eq>s esjs oksVksa ds lkFk&lkFk vU; izR;kf’k;ksa ds oksVks dks Hkh fn[kk;k tk, ijarq eq>s nqRdkj fn;k x;kA eq>s fo’okl gS fd eq>s tkucw>dj x.kuk deZpkfj;ksa }kjk de er fn, x, gSaA vr% Jheku th ls fuosnu gS fd izkFkhZ ds le{k iqu% x.kuk dj izR;FkhZ ds lkFk U;k; djus dh d`ik djsaA fnukad 30-1-2010 LFkku % erx.kuk LFky] iksgjh izkFkhZ izdk’k jkor vH;FkhZ ljiap xzke iapk;r Hknsjk** A perusal of this document shows that the petitioner has nowhere made any objection that 15 votes were illegally declard as invalid. The only grievance of the petitioner as per Ex. P/3 is that the petitioner should be given opportunity to see the votes received by other candidates along with the votes received by him. Thus, in Ex. P/3 there is no allegation that the votes were illegally declared invalid or election petitioner’s votes were counted in favour of the present petitoner. The election petitioner only expressed that it appears that the employees involved in counting have deliberately counted less votes in his favour. Needless to mention that if the factum of declaring 15 valid votes as illegal was known to the petitioner at the time of counting, this would have been certainly mentioned by him in the aforesaid objection. Similarly if 10 invalid votes were added in favour of the present petitioner and this fact was known to election petitioner, he would have certainly mentioned it in his objection. In absence of this specific allegation, the whole story of the petitioner appears to be an after-thought. Similarly if 10 invalid votes were added in favour of the present petitioner and this fact was known to election petitioner, he would have certainly mentioned it in his objection. In absence of this specific allegation, the whole story of the petitioner appears to be an after-thought. More so, when the singular allegation mentioned in Ex. P/3 that the votes of other candidates were not shown to him is proved to be incorrect on the basis of the statements of Pawan, Gajendra and Parmanand, who have specifically stated that the votes were visible at the time of counting. Thus, the basic foundation of the election petition could not be proved before the Election Tribunal. 23. It is further gathered from the impugned order of the Tribunal that the Tribunal has heavily relied on the statements of R.V. Shirodhkar (Returning Officer) and on the basis of this also held that counting was illegal and directed for recounting. However, a minute scrutiny of this statement shows that he specifically stated that after the election votes were sealed but further stated that he did not seal the said votes. He took a categorical stand that counting was proper and in accordance with law. He stated that he has no information whether 15 valid votes of the election petitioner were declared as invalid in counting. However, he made a bald statement that it is possible that counting agents might have some nexus with the returned candidate. Only on the basis of this bald statement the Election Tribunal held that the possibility of improper counting cannot be ruled out and on the basis of this suspicion held the election as invalid and directed recount. 24. Another reason assigned by the Election Tribunal is that the present petitioner has not led credible evidence to rebut the case of the election petitioner. In the considered opinion of this Court, this procedure adopted by the Tribunal is totally unknown to law. The burden to prove the case is always on the shoulder of the elction petitioner. If election petitioner fails to prove the allegation to the hilt on the basis of proper pleadings and evidence of a very high degree, merely on the basis of suspicion election cannot be declared illegal and sacrosanctity of votes cannot be permitted to be destroyed. The burden to prove the case is always on the shoulder of the elction petitioner. If election petitioner fails to prove the allegation to the hilt on the basis of proper pleadings and evidence of a very high degree, merely on the basis of suspicion election cannot be declared illegal and sacrosanctity of votes cannot be permitted to be destroyed. In this view of the matter, the method adopted by the Election Tribunal in shifting the burden of proof on the present petitioner cannot be upheld. The impugned order is liable to be quashed on this ground also. 25. I find force in the argument of Mr. Samadhiya on the basis of judgment of this Court in Dr. Bhagirath Pd. (supra) that election petition as per entry on it as per order sheet was actually filed on 4.3.2010. Security amount was also deposited on 4.3.2010. Election Petition was presented by election petitioner in person. Thus, election petition was filed as per 1995 Rules. Accordingly, contention of Shri Raghuvanshi in this regard is rejected. 26. So far the argument of Shri Samadhiya regarding suppression of fact by the petitioner is concerned, this is settled in law that mere incorrect mention of one fact will not non-suit the litigant unless the impact of such a suppression is of that nature which denies him the right of hearing. This view is taken by the Supreme Court in ¼2004½ 7 SCC 166 (S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and others). Thus, in the peculiar facts and circumstances of this case, the judgment in Amar Singh (supra) will not apply to the extent depriving the present petitioner from a right of hearing in this petition under Article 226 of the Constutition. 27. On the basis of aforesaid analysis, it is clear that the Tribunal in a mechnical manner declared the election as invalid and directed for recounting. The said order is accordingly set aside. Petition is allowed. No costs.