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2015 DIGILAW 968 (HP)

Krishna Devi v. Deputy Commissioner, Una

2015-07-29

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. The elections for the post of Pradhan, Gram Panchayat, Khanpur, Tehsil and District Una were held in the year 2010. The result was declared on 30.12.2010. Petitioner was declared as an elected Pradhan of Gram Panchayat, Khanpur. Petitioner secured 278 votes and the respondent No. 3 secured 275 votes. 29 votes were declared as invalid. The respondent No. 3 has filed an Election Petition under Section 163 of the Himachal Pradesh Panchayati Raj Act, 1994 (hereinafter referred to as the Act' for the sake of convenience) before the Authorized Officer, i.e., the respondent No. 2. Petitioner filed reply to the same. The Election Petition was rejected by the respondent No. 2 on 11.07.2011. The respondent No. 3 filed an appeal before the Appellate Authority under the Himachal Pradesh Panchayati Raj Act. He allowed the same on 28.05.2013. Hence, this petition. The respondent-State has framed the Himachal Pradesh Panchayati Raj (Election) Rules, 1994. Rule-79 reads as under: "79. Recount of votes: (1) After the completion of the counting and preparation of result sheet under Rule 75, the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him shall announce the particulars of the result sheet. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agent may apply in writing to the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him in this behalf for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. Provided that if no application for recount is received within reasonable time, the result shall be declared in accordance with the provisions of clauses (v) and (vi) of rule 75. Provided that if no application for recount is received within reasonable time, the result shall be declared in accordance with the provisions of clauses (v) and (vi) of rule 75. (3) On an application for recount under sub-rule (2), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or other officer authorized by him in this behalf shall decide the matter and may allow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable: Provided that every decision of the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him shall be in writing and contain the reasons therefore. (4) If the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other officer authorized by him in this behalf, decides under sub-ruled) to all an application either in whole or in part, then he shall- (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet to the extent necessary after such recount and (c) announce the amendment so made by him. (5) After the total number of votes polled in favour of each candidate has been announced under sub-rule (4), the District Election Officer (Panchayat) or Returning Officer, as the case may be, or such other officer authorized by him, shall complete and sign the result sheet and no application for a recount shall be entertained thereafter. 2. It is evident from the plain language employed in Rule-79 that after completion of the counting and preparation of result sheet under Rule-75, the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other Officer authorized by him shall announce the particulars of the result sheet. Thereafter, a candidate or, in his absence, his election agent or any of his counting agent may apply in writing to the District Election Officer (Panchayat) or Returning Officer, as the case may be, or any other officer authorized by him in this behalf for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount and if no application for recount is received within a reasonable time, the result is to be declared in accordance with the provisions of clauses (v) and (vi) of Rule-75. 3. The Authorized Officer has framed the following issues on 20.04.2011: 1. Whether the outcome of the result has been materially affected by wrong rejection of votes polled in favour of petitioner?. ...OPP 2. Whether the petition is not maintainable in the present form? ...OPR1 3. Whether any part of the procedure as enumerated in the rules have been violated, and if yes, whether it has materially affected the outcome of the election so far as it relates to the returned candidate? ...OPP 4. Whether the petition is bad for non-joinder of necessary party? ...OPR1 5. Final orders. 4. Case of the respondent No. 3 before the Authorized Officer was that the valid votes actually polled in her favour have been wrongly rejected. 29 votes were rejected in the first/original counting. However, surprisingly, neither respondent No. 3 nor her witness PW-2, Ram Pal have made any reference to such illegal and wrong rejection of valid votes by the ARO in their statements Ex. P-4 and P-6, respectively. Respondent No. 3 has not examined her counting agent as her witness, who was present at the time of counting process and also at the time of declaration of the result. Rather, surprisingly, the PW-2 Ram Pal, in his cross-examination, has admitted that none of the parties objected to the process and outcome of the result. The rejected votes in the alleged first/original counting have been admitted to be correct by the respondent No. 3. The respondent No. 3 was bound to raise objections herself or through her election agent or any of her counting agents by applying in writing to the District Election Officer (Panchayat). The husband of respondent No. 3 was the counting agent of respondent No. 3. PW-2 has categorically admitted in his cross-examination that the respondent No. 3 has not objected at the time of counting of votes. Respondent No. 3 has admitted in her statement, Annexure P-5 that her husband was present at the time of counting. He was the Ex-Pradhan and also Vice-Chairman of the Committee. She has also admitted that she has not raised the objections before the Assistant Returning Officer. She has not filed any complaint before the higher authorities about the counting of votes. In the absence of no objections being raised by either the respondent No. 3 herself or through election agent or counting agent, she could not seek recounting of votes. 5. She has not filed any complaint before the higher authorities about the counting of votes. In the absence of no objections being raised by either the respondent No. 3 herself or through election agent or counting agent, she could not seek recounting of votes. 5. Case of the respondent No. 3 before the Authorized Officer was also that she has secured five votes lead over the petitioner and she was declared elected. However, there is no tangible evidence to prove that the respondent No. 3 or other contesting candidates had secured such votes and declared elected as per the provisions of The Himachal Pradesh Panchayati Raj (Election) Rules, 1994. There is no documentary evidence to prove that the result was earlier prepared and signed by the Returning Officer, as argued by Mr. V.B. Verma, learned Counsel appearing on behalf of respondent No. 3. The result was never altered. The learned Appellate Authority without taking into consideration the entire facts and circumstances of the case, has wrongly set aside the well reasoned order passed by the Authorized Officer, dated 11.07.2011. He has misconstrued the statements of PW-1 and PW-2 made vide Annexures P-5 and P-6. He has not even cared to go through the provisions of Rule-79 of The Himachal Pradesh Panchayati Raj (Election) Rules, 1994. It is reiterated that the respondent No. 3 has not led any evidence whatsoever to prove that she was declared officially elected as Pradhan of Gram Panchayat, Khanpur However, the fact of the matter is that the petitioner has secured 278 votes and the respondent No. 3 has secured 275 votes. There is a detailed procedure, the manner in which the result is to be declared as per Rule-75(v) & (vi), Rule-79 and Part-III of the Returning Officer/Assistant Returning Officer Hand Book. In the eventuality of no complaint or objections being raised by the candidate or his election agent or counting agent within a reasonable time, the result has to be declared in accordance with the provisions of Rule-75(v) and (vi) of the Rules. The respondent No. 3 has not placed on record even any application submitted for recounting of votes to substantiate her claim. 6. This Court in Rajesh Kumar Vs. Deputy Commissioner and Others, AIR 2007 HP 45 has held as under: "4. We are constrained to observe that the reasons given by the Deputy Commissioner are not proper reasons. The respondent No. 3 has not placed on record even any application submitted for recounting of votes to substantiate her claim. 6. This Court in Rajesh Kumar Vs. Deputy Commissioner and Others, AIR 2007 HP 45 has held as under: "4. We are constrained to observe that the reasons given by the Deputy Commissioner are not proper reasons. Recounting of votes cannot be ordered in a mechanical manner. The mere fact that the margin of victory or defeat in an election is low is by itself no ground to order recounting votes. The person who alleges that the result of the election has been prejudicially and materially affected must prima facie establish and made out a case for recounting of votes. If the petitioner in an election petition prima-facie shows that the votes have been illegally rejected or the rejection has been made against the rules, then the Court will have the power to order recounting. 5. In the present case, the Deputy Commissioner does not appear to have gone through the evidence at all. It is the admitted case of the petitioner himself that he was not present throughout the counting process. According to him, he was moving in and out of the hall where the counting was taking place. The petitioner's own case is that his agent Shri Hem Chand was present throughout the counting process. The petitioner admits in his cross-examination that he had not objected to any of the votes being rejected at the time when the counting was taking place. He however stales that after the counting had taken place, he raised objections before the Returning Officer." Accordingly, in view of the observations and discussion made hereinabove, the writ petition is allowed. The order, dated 28.05.2013, passed by the Appellate Authority, in Case No. 15/2011, is set aside. The miscellaneous application(s), if any, also stand(s), disposed of. No costs.