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2012 DIGILAW 4539 (MAD)

R. Pandiammal v. S. Muthulakshmi

2012-11-01

S.PALANIVELU

body2012
ORDER 1. The Civil Revision Petition has been filed challenging the fair and decretal order dated 21.8.2012 passed in I.A. No. 100 of 2011 in E.L.O.P. No. 1 of 2011 on the file of the Principal District Court, Ramanathapuram. 2. Following are the allegations contained in the affidavit filed by the petitioner in Election Original Petition: 2.1. On 19.10.2011, election for Panchayat President for Udaiyanathapuram Panchayat in Kamuthi Taluk in Ramanathapuram District was held, in which the petitioner, first and second respondents contested. The petitioner was allotted with Roller symbol, while the first and second respondents were allotted with Scissors and Lock and Key symbol respectively. In five booths, totally 2,227 votes were polled. Following are the particulars of votes polled in concerned booths: Booth Nos. Number of votes polled 25 283 26 503 27 418 28 555 29 468 In booth No. 25, it was declared that two votes were not received. 2.2. On 21.10.2011, the votes were counted in which 28 votes polled in favour of the petitioner were declared as invalid votes which was objected to by the petitioner and her agent. Out of 2,225 votes, it was declared that 45 votes were invalid and 1023 votes were polled in favour of the petitioner, 1028 votes were polled in favour of the first respondent and 121 votes were polled in favour of second respondent and that 5 ballot papers were missing. The petitioner raised objection and submitted petition to the third respondent for recounting. But, he refused to recount and declared the first respondent as successful candidate. 2.3. He gave Certificate of Election to the first respondent. At that time, he did not enter in the computer the number of votes polled in booth Nos. 28 and 29. The above said conduct on the part of the third respondent is illegal. Had the recount been ordered, the petitioner would have been declared as successful candidate. Hence, this petition is filed for recounting the votes by an Advocate Commissioner after bringing the ballot boxes to the Court. 3. In the counter filed by the first respondent, following are stated: 3.1. In booth No. 26, only 501 votes were polled. The allegation is that at the time of counting on 21.10.2011, it was declared that 28 votes were invalid is not correct. The invalid votes were properly shown and 57 ballot papers were declared as invalid. 3. In the counter filed by the first respondent, following are stated: 3.1. In booth No. 26, only 501 votes were polled. The allegation is that at the time of counting on 21.10.2011, it was declared that 28 votes were invalid is not correct. The invalid votes were properly shown and 57 ballot papers were declared as invalid. Six votes were received by post. The counting was properly done and the results were declared as per actual state of affairs. While this respondent was declared as successful candidate, neither the petitioner nor her agent has raised any objection. The third respondent informed first respondent that the other candidates and their agents expressed no objection with regard to the counting and he also told that they did not want any recounting. There was no foul-play in the process of counting of votes. The issue with regard to the recounting has to be decided in the main original petition. During the pendency of the original Election O.P., there cannot be an order for recounting. The petitioner and the second respondent colluded and filed this application. Hence, the petition may be dismissed. 4. In the counter filed by the second respondent, the following averments are available: 4.1. The allegations in the petition filed by the petitioner with regard to the number of votes polled in concerned booths are true. 28 votes polled in favour of the second respondent were declared invalid, which was objected to by her and her agent. As per the averments in the petition, 57 votes were declared as invalid. The third respondent refused to order recounting as per the petition filed by the petitioner. Only if the ballot boxes are brought to the Court and the votes were recounted, then the truth will come. Hence, as prayed for in the petition for recounting may be ordered. 5. Following is the brief account of counter filed by the third respondent: 5.1. The allegations in the petition with regard to the polling of votes in the booths are correct. But, it is not correct to state that in booth No. 26 two ballot papers were missing. It is false to state that on the date of counting 28 ballot papers were declared as invalid and if recounting were done it would have been proved that those 28 votes were polled in favour of the petitioner. But, it is not correct to state that in booth No. 26 two ballot papers were missing. It is false to state that on the date of counting 28 ballot papers were declared as invalid and if recounting were done it would have been proved that those 28 votes were polled in favour of the petitioner. Totally 57 votes were invalid in the total polling of 2,227 votes. The counting was conducted as per the election rules and the directives of the Election Commission. The counting was videographed and then and there the events were made known to the concerned persons and the result was declared without any impediment. Hence, the petition may be dismissed. 6. After hearing both sides, the learned Principal District Judge, Ramanathapuram, has allowed the application directing recounting of votes by an Advocate Commissioner. This order is under challenge before this Court by the first respondent in the Election O.P. 7. Point for consideration: Whether recounting of votes has to be ordered as per the request of the first respondent? 8. Point: The factual scenario regarding the events of election and counting process could be known by pleadings of both parties without bearing in mind the alleged irregularities in the said process. Before recounting of votes is ordered, the Court has to take note of the settled principles governing the subject and follow the proposition of law laid down by the Hon’ble Supreme Court. Material allegations of irregularities should have been pleaded by the applicant and recounting could not be prayed as a matter of right. The secrecy of the ballot is sacrosanct in a democracy. Proof of truthfulness of allegations as regards irregularities in the process is a sine quo non for ordering recounting. 9. Mr. Veera Kathiravan, learned counsel appearing for the petitioner would contend that the original petition filed by the first respondent is bereft of particulars of alleged irregularities and only after they were proved by sufficient and convincing evidence, then the recounting of votes, if any, could be ordered, which is well settled law and that the first respondent has not made any valid ground for directing recounting of votes. 10. Mr. 10. Mr. A. Thiyagarajan, learned senior counsel appearing for the first respondent would submit that the revision before this Court is not maintainable, that when there is error of jurisdiction and flagrant violation of law, then only this Court can interfere with the orders passed by the Court below exercising jurisdiction under Article 227 of the Constitution of India and the order passed by the Election Tribunal is within its jurisdiction and no error could be inferred and that there is no legal sanction to refuse recounting, based upon the allegations contained in the Election Original Petition. 11. The learned counsel for the petitioner would place reliance upon various decisions of the Hon’ble Apex Court on the subject. In a decision Vadivelu v. Sundaram AIR 2000 SC 3230 : (2000) 8 SCC 355 : 2000 (4) CTC 302 , the Hon’ble Supreme Court has dealt with the legal background and formulated the guidelines to be observed by the Courts to order recounting, after referring to earlier decisions of the Hon’ble Supreme Court. The relevant passages are as follows: “15. In M.R. Gopalakrishnan v. Thachady Prabhakaran and Others , (1995) Supp. (2) SCC 101 ,... after referring to the various decisions, it was held that the demand of the defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for re-count, no Tribunal or Court would be justified in directing a re-count. 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. 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. 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.” 12. In M. Chinnasamy v. K.C. Palanisamy and Others AIR 2004 SC 541 : (2004) 6 SCC 341 , it is observed that it is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and order of recount cannot be granted as a matter of course. In P.H. Pujar v. Kanthi Rajashekhar Kidiyappa and Others AIR 2002 SC 1368 : (2002) 3 SCC 742 , the Full Bench of the Hon’ble Apex Court has observed thus: “14. The re-count of the votes cannot be ordered in a casual manner. It cannot be ordered because the margin of defeat is meagre. For seeking re-count, proper foundation is to be laid in the pleadings by setting out material facts and later proving it by adducing requisite evidence. The re-count cannot be ordered on the ipse dixit of the election petitioner. It can be ordered in rare cases where specific allegations are made and proved so as to do complete justice between the parties.” 13. The Hon’ble Supreme Court in Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan and Others AIR 2006 SC 1218 : (2006) 2 SCC 300 has laid down a law, referring to the Full Bench decision, in which it is observed as follows: “9. This Court after referring to a number of prior decisions, has held in Mahendra Pal v. Ram Dass Malanger (2002) 3 SCC 457 that an order for re-counting cannot be made as a matter of course. Unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a re-count normally could not be ordered. Unless the election petition had laid the foundation and there was clinching evidence to support the case set up by the election petitioner, a re-count normally could not be ordered. In Chandrika Prasad Yadav v. State of Bihar (2004) 6 SCC 331 relying on an earlier decision in M. Chinnasamy v. K.C. Palanisamy (supra), a Bench of three Judges (to which one of us S.B. Sinha, J. was a party) held that an election petition seeking a re-count must contain a concise statement of material facts and clear evidence in support of the facts pleaded. It was held that a small margin of victory by itself was not a ground for ordering re-count. A roving and fishing inquiry was not permissible while directing re-count of votes. The requirement of maintaining secrecy of ballot papers had also to be kept in mind before directing a re-count. The requisites for ordering re-count are a prima facie case and pleading of material facts detailing the irregularities in counting of votes. Going by the tests laid down by these decisions, it is clear that the election petitioner in the case on hand has not made out a specific case for re-count.” The same principles have been reiterated in the decisions in Udey Chand v. Surat Singh and Another (2009) 10 SCC 170 and in Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Others AIR 2010 SC 24 : (2010) 1 SCC 466 . 14. The learned senior counsel appearing for the first respondent would place reliance upon a decision of the Constitutional Bench of the Hon’ble Supreme Court Ram Sewak Yadav v. Hussain Kamil Kidwai and Others AIR 1964 SC 1249 wherein Their Lordships have laid down the principles with regard to the inspection of ballot papers. The operative portions of the judgment are as follows: “7. The operative portions of the judgment are as follows: “7. An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.” 15. He also cites a decision of the Hon’ble Apex Court in Vadivelu v. Sundaram (supra) in which it is held thus: “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. 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.” 16. 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.” 16. As per the above decision, the first respondent is duty bound to establish the illegality or irregularity committed, for seeking a direction from the Court for recounting of votes. In this decision, it is also held that the revisional jurisdiction of the High Court under Article 227 of the Constitution of India could be invoked when there is error of jurisdiction and flagrant violation of law laid down by the Supreme Court. 17. He also cited the following decisions of this Court for the proposition laid down by the Hon’ble Supreme Court that the exercise of jurisdiction by invoking Article 227 of the Constitution of India by the High Court can be under exceptional circumstances. There must be existence of error apparent on the face of record or patent error and it is to be shown that there is lack of jurisdiction or improper exercise of jurisdiction on the part of the Court below and that the High Court exercising supervisory jurisdiction will not go into the merits and demerits of the case and findings of the lower Court cannot be re-appreciated and this Court cannot evaluate the evidence or correct errors by drawing inferences and that the power of the High Court can be invoked only when there is failure of justice or grave injustice has occasioned. 1. The Governing Council of American College, Madurai and Another v. Dr. M. Davamani Christober 2010 (3) CTC 604 . 2. Madras Gymkhana Club and Others v. K.C. Sukumar 2010 (1) CTC 199 . 3. Nakka Markandayalu v. Estate Officer-cum-Deputy Collector (Revenue), Yenam, Pondicherry 2010 (3) CTC 30 . 18. Following the principles laid down in the above said decisions, it has to be observed that since secrecy of ballot is sacrosanct in a democracy and the election petitioner has to establish the irregularities and illegalities committed in the process of counting and recounting cannot be ordered as a matter of course. Even though certain allegations are available in the election petition regarding irregularities, only if they were proved by cogent and convincing evidence, then the Court can consider directing recounting of votes. Even though certain allegations are available in the election petition regarding irregularities, only if they were proved by cogent and convincing evidence, then the Court can consider directing recounting of votes. This stage in this case is premature. The case is in part-heard stage and the allegations levelled by the election petitioner have to be established. Only after such proof, the Court can order recounting. Insofar as exercise of jurisdiction under Article 227 of the Constitution of India by this Court is concerned, since there appears that the order suffers from legal infirmities, i.e., flagrant violation of law, following the settled propositions, there is no legal embargo for such exercise by this Court. 19. In view of the above, the order challenged before this Court has to be interfered with and the same is set aside. The civil revision petition deserves to be allowed. This point is answered accordingly. 20. In fine, the civil revision petition is allowed setting aside the order dated 21.8.2012 passed by the learned Principal District Judge, Ramanathapuram in I.A. No. 100 of 2011 in Election O.P. No. 1 of 2011. The learned Principal District Judge, Ramanathapuram is directed to dispose of E.O.P. No. 1 of 2011 within a period of one month from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs. Petition allowed.