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2014 DIGILAW 24 (CHH)

Rajkumari Markam v. Jhunia Bai Nishad

2014-01-21

PRITINKER DIWAKER

body2014
ORDER 1. Petitioner - a returned candidate has called in question the legality and validity of the order dated 5-8-2010 (Annexure P-1) passed by the Prescribed Authority i.e. SDO, Mungeli in Election Petition No. 20A-58/09-10 whereby the Prescribed Authority has directed for recounting of the votes with regard to all the polling booths. Facts as have been unfolded in the writ petition are that the election for the post of Sarpanch of Gram Panchayat Mundadevri Block Pathariya, District Bilaspur was held on 3-2-2010 and the petitioner has been declared elected as Sarpanch of the said Gram Panchayat. Immediately after the declaration of the result, respondent No. 1 Gulab Devi filed an application before the Presiding Officer of Booth No. 73 praying for recounting of votes on the apprehension that counting has not been done properly. By separate application, recounting was prayed in relation to booth No. 73A as well. Both these applications were rejected by the concerned Presiding Officer vide his order dated 3-2-2010 on the ground that the said applications were belated ones. On 6-2-2010 the Returning Officer had also issued certificate in favour of the petitioner as per Rule 83 of Chhattisgarh Panchayat (Nirvachan) Niyam, 1995 (for short Niyam 1995) declaring her to be the Sarpanch of Gram Panchayat Mundadevri, Block Pathriya, District Bilaspur. 2. Assailing the election of the petitioner two separate election petitions were filed by respondent No. 1 Gulab Devi and respondent No. 2 Jhuniya Bai. Election petition filed by Gulab Devi has been numbered as 20A-58/2009-10. Both these election petitions were allowed by SDO Mungeli by two separate orders dated 5-8-2010, though identical, directing for recount of votes. It is one of the orders which has been challenged in the present writ petition on the following grounds: (i) That the prescribed authority has passed the impugned order merely on the basis of apprehension of respondent Nos. 1 & 2 namely; Gulab Devi and Jhuniya Bai that there were certain irregularities in counting of votes. (ii) There was no specific pleading in the election petition filed by Gulab Devi or Jhuniya Bai pointing out any illegality in the counting in the absence of which no order could have been passed for recount of votes. 1 & 2 namely; Gulab Devi and Jhuniya Bai that there were certain irregularities in counting of votes. (ii) There was no specific pleading in the election petition filed by Gulab Devi or Jhuniya Bai pointing out any illegality in the counting in the absence of which no order could have been passed for recount of votes. (iii) That the election petitioner has failed to prove any such illegality in the counting and as such the order for recount could not have been passed, that too on basis of vague allegations. (iv) That the order of recount has been passed in a mechanical manner and the same is contrary to law, facts and circumstances of the case. (v) That though in the recount respondent No. 1 Gulab Devi has been declared to be successful and after recount the result has been declared under Rule 81 of the Niyam 1995 but no certificate as required under Rule 83 has been issued and in the meantime stay has been granted by this Court on account of which the petitioner is continuing as Sarpanch of Gram Panchayat Mundadevri, Block Pathriya, District Bilaspur. (vi) That though in the application for recount specific request was only in relation to Booth Nos. 73 and 73A yet while passing the impugned order the prescribed authority has directed for recount of all the booths which is illegal. In support of his contention counsel for the petitioner placed reliance on the decisions of Supreme Court in the matter of Ram Sewak Yadav vs. Hussain Kamil Kidwai and Others, AIR 1964 SC 1249 , in the matter of M. Chinnasamy vs. K.C. Palanisamy and Others, (2004) 6 SCC 341 : AIR 2004 SC 541 and the decision of Madhya Pradesh High Court in the matter of Chandrawati vs. Vijay Rajkumari and Others, 2002 (4) MPLJ 74 . 3. On the other hand, supporting the impugned order it has been argued by counsel for respondent No. 1 as under: (i) That the recount order was passed by the prescribed authority on the basis of sufficient material and evidence adduced in the election petition. (ii) That as there was a glaring mistake in the counting which ultimately proved to be correct, the prescribed authority was fully justified in directing for recount of votes. (ii) That as there was a glaring mistake in the counting which ultimately proved to be correct, the prescribed authority was fully justified in directing for recount of votes. (iii) That there may not be very specific pleading in the election petition but the sum and substance of the petition was that there were irregularities at the time of counting of votes and accordingly the order impugned is fully justified. (iv) Once after recount Gulab Devi has been declared to secure more votes than the petitioner, she is fit to hold the post of Sarpanch and the certificate should be issued in her favour. 4. Heard counsel for the parties and perused the documents on record. 5. Before undertaking the factual survey of the case it appears to be the need of the hour to first deal with the rules and the legal position pertaining thereto. 6. Rule 5 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short The Rules, 1995) reads as under: 5. Contents of the petition – An election petition shall: (a) Contain a concise statement of all material facts on which the petitioner relies. (b) Set forth with sufficient particulars, the grounds on which the election is called in question. (c) Be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verifications of pleadings. Similarly Rules 76 and 77 of Chhattisgarh Panchayat Nirvacahan Niyam, 1995 read as under: 76. Scrutiny and rejection of ballot papers: (1) A ballot paper contained in a ballot box shall be rejected if - (a) It bears any mark or writing by which the voter can be identified. (b) It is a spurious ballot paper. (c) It has been so damaged or mutilated that its identity as a genuine ballot paper cannot be established. (d) It bears a serial number, or is of a design, different from the serial numbers of, as the case may be or design of the ballot paper authorized for use at the particular polling station. (e) It does not bear any mark which it should have borne under the provisions of sub-rule (3) of Rule 60. (f) It has not been marked. (g) It has been marked in the columns of more than one candidate. (e) It does not bear any mark which it should have borne under the provisions of sub-rule (3) of Rule 60. (f) It has not been marked. (g) It has been marked in the columns of more than one candidate. (h) It has been marked by an equipment and in the manner other than the equipment and the manner prescribed for that purpose: Provided that where Returning Officer or such other officer authorized by him, on being satisfied that any such defect as is mentioned in clause (d) or clause (e) has in respect of all or any ballot papers used at a polling station being caused by mistake or failure on the part of the Presiding Officer or polling officer concerned, has directed that the defect should be overlooked, a ballot paper shall not be rejected only on the ground of such defect under clause (d) or clause (e). (2) Before rejecting any ballot paper under sub-rule (1) the Returning Officer or such other officer authorized by him, shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. (3) The Returning Officer or such other officer authorized by him, shall record on every ballot paper which he rejects the letter 'R' and the ground of rejection in abbreviated from whether in his own hand or by means of a rubber stamp. (4) All ballot papers rejected under this rule shall be bundled together. 77. Counting of votes: (1) Every ballot paper which is not rejected under rule 76 shall be counted: Provided that no cover containing tender ballot papers shall be opened and no such ballot papers shall be counted. (2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorized by him, shall make the entries in result sheet in Form 16 for Panchas and in Part one of the result sheet in Forms 17, 18 and 19 for Sarpanch, members of Janpad Panchayat and Zila Panchayat respectively and announce the total number of votes polled by each candidate. (3) All valid ballot papers shall be bundled together and kept along with the bundle of rejected papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely: (a) The number of the ward and the name of Gram Panchayat in case of election of Panch, the name of Gram Panchayat in case of election of Sarpanch, the number of constituency of Janpad Panchayat or Zila Panchayat as the case may be, in case of election of member of Janpad Panchayat or Zila Panchayat. (b) The number and name of the polling station where the ballot papers have been issued; and (c) The date of counting. 7. After completion of counting of votes when the petitioner was declared elected, vide Annexures P-4 and P-5, the applications were made by Gulab Devi for recount of votes inter alia praying that they had apprehension in their mind that while counting the votes of Booth Nos. 73 and 73A, there may be some irregularity and therefore counting of Votes of these booths should be done again. Both the applications were rejected by the Presiding Officer on the ground that the same were not filed in time. If the pleadings of the election petitions are seen and compared with the two applications moved by Gulab Devi for recount, it is apparent that various other new grounds have been raised by Gulab Devi and Jhunia Bai in their election petitions. In the election petition though there is allegation in respect of improper counting in relation to Booth Nos. 73 and 73A but in the prayer recount of votes of all the booths has been sought for. Furthermore, there is no specific pleading as to what was the illegality or irregularity committed by the Presiding Officer while counting the votes and only general allegations have been made for recount. Likewise in the affidavits filed on behalf of the election petitioners no specific averments has been made and only the general allegation has been made showing apprehension of some illegality or irregularity at the time counting of votes. None of the witnesses has stated as to what was the illegality or irregularity committed by the presiding officer at the time of counting of votes and even relation to how many booths the recount has been sought. 8. None of the witnesses has stated as to what was the illegality or irregularity committed by the presiding officer at the time of counting of votes and even relation to how many booths the recount has been sought. 8. It has not been clarified by the election petitioners or their witnesses whether they were seeking the recount of rejected ballot papers which were bundled as per sub-rule (4) of Rule 76 of Niyam, 1995 or as per sub-rule (3) of Rule 77 which is in relation to bundling of ballots kept separately by the presiding officer. It is to be noted here that Rules 76 and 77 also talk about keeping of bundles of rejected ballot papers as well as valid ballot papers separately. Though in her election petition and the affidavit, Gulab Devi has not made any averment in relation to the availability of proper light at the place of recount but one of her witnesses namely Rakesh Mani has stated in his affidavit that there was no arrangement of light at the place of recount. However, in his cross-examination he has stated that though the light was available but there was disruption in the same. Almost similar statement has been made by another witness namely Mahendra Singh. 9. The law in relation to the order of recount is well settled and in catena of decisions of various Courts it has been held that recount cannot be ordered in a casual and mechanical manner. Present is a case where only apprehension was made by the election petitioners on the basis of which recount of votes has been ordered. 10. In the case of Ram Sewak Yadav vs. Hussain Kamil Kidwai and Others, AIR 1964 SC 1249 the Apex Court ruled thus: 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 as adequate statement of the material facts on which the petitioner relies in support of his case. (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. (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 petitioners 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. 11. In the case of Dr. Jagjit Singh vs. Giyani Kartar Singh and Others, AIR 1966 SC 773 the Apex Court laid down that there may be some cases where for ends of justice it is necessary for the election Tribunal to allow a party to inspect the ballot boxes and consider his objection about the improper acceptance of votes tendered but while considering the same care has to be taken to see that the election petitioner does not get an opportunity to make a roving or fishing enquiry. 12. In the case of Shashi Bhushan vs. Prof. Balraj Madhok and Others, AIR 1972 SC 1251 the Apex Court gave emphasis on the secrecy of ballot papers and on pleading of material facts. 13. In the case of Smt. Sumitra Devi vs. Sheo Shankar Prasad Yadav and Others, AIR 1973 SC 215 the Supreme Court held that recount is not to be allowed as a matter of right, but on the basis of evidence of good grounds which would make it believable that there has been a mistake in the counting. 14. In the case of Balram Bhalaik vs. Jai Behari Lal Khachi and Another, AIR 1975 SC 283 the Apex Court has observed that the Court will be justified in ordering a recount or permitting inspection only where all the material facts on which the allegation of irregularity or illegality in counting are founded adequately in the election petition and the Court trying the matter is satisfied that the order of such recount is imperatively necessary. 15. 15. In the case of Suresh Prasad Yadav vs. Jai Prakash Mishra, AIR 1975 SC 376 the Apex Court reiterated the principles of imperative necessity and availability of materials on record for recount and inspection. 16. In the case of Ram Surat Singh vs. Harish Chandra Mahato, AIR 1975 SC 701 it has been held by the Apex Court as under: Inspection of ballot papers or their counterfoils is not to be allowed as a matter of course as such an order touches upon the secrecy of the ballot. Such inspection cannot be allowed only if a good ground for the same is made out by the petitioner. He must adequately state all the material facts in his election petition on which he relies for such claim. Furthermore, the court must be satisfied that for the purpose of deciding the case and doing complete and effectual justice between the parties it is imperatively necessary to order the inspection. 17. In the case of N. Naryanan vs. S. Semmalai and Others, AIR 1980 SC 200 the Apex Court laid down as under: The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. 18. In the case of Hari Ram vs. Hira Singh and Others, AIR 1984 SC 396 , it has been observed by the Apex Court that inspection of ballot papers should be allowed very sparingly and only when it is absolutely essential to determine the issue. 19. In the case of Satyanarain Dudhani vs. Uday Kumar Singh and Others, AIR 1993 SC 367 it has been held as under: 10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by petitioner-respondent, before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer, we are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting it would not be proper to order recount on the basis of bare allegations in the election petition. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning officer, we are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered. 20. In the case of M. Omkar vs. Revuri Prakash Reddy and Others, (1999) 4 SCC 508 : AIR 1999 SC 2167 , the Apex Court took a view that when in the evidence it is revealed that during the counting there was no complaint of any malpractice or irregularity in the matter of counting of votes and that after the result was declared an application for recount was made which was vague, the circumstances did not justify the recount of votes. 21. In the case of Vadivelu vs. Sundaram, (2000) 8 SCC 355 : AIR 2000 SC 3230 it has been held as under: 15. In M.R. Gopalkrishanan vs. Thachady Prabhakaran, 1995 AIR SCW 156 the election petitioner alleged that the counting was not done in a congenial atmosphere. The allegation was that counting was held in a small hall and there other officials were present in the hall; therefore, it become very crowded and counting of bundles of the ballot papers was done hastily and therefore, it was not possible for the agents of the petitioner to carefully keep track of the process of sorting out and it was alleged that the Returning Officer rejected many votes as invalid in spite of the protest made by the petitioner. On these allegations, the petitioner sought for recount of votes. On these allegations, the petitioner sought for recount of votes. That prayer was rejected by the High Court and the same was challenged before this Court. After referring to the various decisions, it was held that keeping in view that secrecy of 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, Tribunal or court would be justified in directing re-count. 16. The result of the analysis of the above cases would show that this Court has consistently taken the view that recount 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 recount 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 recount of votes. Secrecy of ballot paper has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity of 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. 22. In the case of V.S. Achuthanandan vs. Francis and Another, (2001) 3 SCC 81 : AIR 2001 SC 837 it has been held by the Apex Court as under: 16. We also do not agree with the submission of the learned senior counsel for the appellant that this Court had directed the High Court to permit an inspection and recount if a prima facie case was made out for such relief but the High Court has unreasonably insisted on availability of 'good grounds' before allowing the relief of recount. In Suresh Prasad Yadav case ( AIR 1975 SC 376 ), the law stated by this Court is that the order for recount of ballot papers would be justified if, inter alia, 'on the basis of evidence adduced the requisite allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting'. In Suresh Prasad Yadav case ( AIR 1975 SC 376 ), the law stated by this Court is that the order for recount of ballot papers would be justified if, inter alia, 'on the basis of evidence adduced the requisite allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting'. This answers the submission which is more a play or jugglery of words. What was needed was proof of 'prima facie of availability of good grounds' wherein the election petitioner/appellant has failed. 23. If the aforesaid proposition of law is considered in relation to the factual position of the present case it emerges that the SDO has directed for recount of votes only on the basis of apprehension shown by the election petitioners in their election petitions. There is no specific pleading by the election petitioners in their election petitions nor they have adduced enough evidence on the basis of which recount could have been ordered. The SDO has also not recorded his prima facie satisfaction to justify the order of recount and has passed the order in a casual and mechanical manner. SDO also erred in law in directing for recount of all the booths though the averments made in the election petitions were limited only to booth Nos. 73 and 73A. 24. This courts finds no substance in the arguments of the election petitioners that once after the recount Gulab Devi has secured more votes, she be declared as elected candidate and the petitioner herein be asked to quit the post immediately. In the recount election petitioner may have secured more votes but once the very basis of recount is not in accordance with law, the election petitioner cannot draw any benefit from the order of recount. Furthermore, no certificate as required under Rule 83 of the Niyam, 1995 has been issued in favour of the election petitioner, and therefore also she cannot draw any benefit as a result of the order of recount. This apart, since by virtue of stay granted by this Court the petitioner is still continuing as Sarpanch of the concerned Gram Panchayat, she cannot be dislodged therefrom. There is no evidence to show as to what were the irregularities and illegalities committed by the returning officer warranting order for recount. This apart, since by virtue of stay granted by this Court the petitioner is still continuing as Sarpanch of the concerned Gram Panchayat, she cannot be dislodged therefrom. There is no evidence to show as to what were the irregularities and illegalities committed by the returning officer warranting order for recount. In the absence of any foundation, this Court is of the considered view that the SDO has erred in law in directing recount of votes by the order impugned. In the aforesaid factual and legal discussion the petition is allowed and the order impugned (Annexure P-1) is hereby set aside. Petition allowed.