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Madhya Pradesh High Court · body

2016 DIGILAW 1072 (MP)

Prabhulal v. State Election Commission of M. P.

2016-11-24

VIVEK RUSIA

body2016
ORDER With the consent of parties, writ petition is heard finally. 1. Facts of the case in brief for disposal of this writ petition are as under. This is a dispute pertaining to the election of Sarpanch of Gram Panchayat, Bagwada for which the polling was held on 22.2.2015 on three polling stations. The petitioner along with respondents No.4 to 7 contested the said election for the post of Sarpanch. After conclusion of polling counting was done on the same day in which petitioner secured highest vote of 444 and respondent No.4 secured 434 votes. The final tally of voting of petitioner and respondents No.3 of three polling centers are as under:- Polling Center Prabhulal (No. of Votes) Devisingh (No. of Votes) 19, Bagwada 135 192 20, Ratna Khedi 90 80 21, Budkhari 220 162 Total Votes 445 434 2. That before the petitioner could be declared as elected Sarpanch the respondent No.4 along with his supporters entered into the office of election officer and looted voting boxes and destroyed ballot papers. Immediately FIR was lodged by the Returning Officer against respondent No.4 under sections 353, 332, 397, 395, 171, 147, 148, 149 IPC and under section 135A of the Representation of Peoples Act. 3. That the Election Commission has ordered for re-polling of polling centre No.19 village Bagwada on 24.4.2015. Petitioner immediately submitted representation/objection. The said objection was turned down and re-polling was held on 24.2.2015. It is alleged that under the threat of respondent No.4 petitioner did not participate in the repolling. In the re-polling at centre No.19 the petitioner obtained 121 votes and the respondent No.4 obtained 223 votes. On the basis of the votes casted in re-polling result was declared and the respondent No.4 was declared as election Sarpanch of Gram Panchayat. Accordingly, election was notified but the said notification is not available on record. Neither petitioner nor respondent has filed the same. 4. That since the offence under sections 353, 332, 397, 395, 171, 147, 148, 149 IPC and under section 135A of the Representation of Peoples Act was registered against respondent No.4, therefore, vide order dated 4.4.2015 he was placed under suspension. The said suspension order was challenged by respondent No.4 in Writ Petition 2424/2015 which was disposed of with liberty to file appeal. The said suspension order was challenged by respondent No.4 in Writ Petition 2424/2015 which was disposed of with liberty to file appeal. Vide order dated 15.10.2015 the said appeal has been dismissed and at present the respondent No.4 is under suspension and the charge of Sarpanch has been given to Up-Sarpanch. 5. That the petitioner filed the present writ petition at the stage when respondents No.1 to 3 has ordered for re-polling vide order dated 22.2.2015 but the said order has not been specifically challenged in this writ petition. Petitioner filed the present petition claiming the relief that direction of the repolling be declared as null and void and the petitioner be declared as Sarpanch and the charge be given to him. He also prayed the relief that the re-polling took place on 24.2.2015 be also declared null and void. The petitioner has prayed the following reliefs : 7.Relief prayed for. -- (a) That, kindly be issued a writ, order or direction that the action taken for re-polling of votes by the respondent No.1, 2 and 3 is null and void. (b) That, kindly be issued a writ, order or direction that the petitioner is an elected Sarpanch of Gram Panchayat Bagwada and also issued a direction to the respondents No.1, 2 and 3 to hand over charge of the post of Sarpanch of Gram Panchayat Bagwada to the petitioner. (c) That, kinely be issued a writ order or direction that re-polling took place on 24.2.2015 is null and void. (d) That, any other relief, which this Hon’ble Court may deem fit to grant, in the fact and circumstances, to the petitioner may also kindly be granted. 6. Vide order dated 3.3.2015 notices were issued to the respondents but the interim relief has been denied. Shri Yadav, learned Senior Advocate on behalf of the petitioner submitted that action of the M.P. Election Commission for directing re-polling is contrary to the rule 74 of the Madhya Pradesh Nirvachan Niyam, 1995 (for short ‘Nirvachan Niyam, 1995). The fresh poll/repoll can be ordered only when the result of poll at that polling station cannot be ascertained. He submits that in the present case counting has already been done and the result was available on the record, therefore, provisions of section 72 has wrongly been invoked by directing re-poll. The fresh poll/repoll can be ordered only when the result of poll at that polling station cannot be ascertained. He submits that in the present case counting has already been done and the result was available on the record, therefore, provisions of section 72 has wrongly been invoked by directing re-poll. He submits that after counting of the votes the remaining work is a ministerial work which ought to have been done by the respondent and the petitioner ought to have been declared as elected Sarpanch. The only remedy against the respondent No.4 was to file an election petition challenging the election of the petitioner. 7. Shri Jain, learned senior counsel on behalf of the respondent No.1 submits that present writ petition is not maintainable as the election of respondent No.4 has been notified, therefore, petitioner is having remedy to file an election petition under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short ‘the Adhiniyam, 1993’) which clearly mandates that an election shall be called in question only by way of petition presented in a prescribed manner, therefore, writ petition is liable to be dismissed on this ground alone. He further submits that election of respondent No.4 has been notified and the said notification is not challenged in the writ petition, therefore, same cannot be declared void. Shri Jain submits that counting was under rule 77 of the Nirvachan Niyam, 1993 and in the present case only slips were prepared but the result was not prepared in accordance with rule 81 and the election of the petitioner was not notified under rule 90 of the Nirvachan Niyam, 1995, therefore, petitioner cannot be declared as elected Sarpanch. 8. Shri Rohit Mangal on behalf of respondents No.2 and 3 submits that petitioner can challenge the election of respondent No.4 by way of election petition and the grounds are available under rule 21 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as ‘Election Rules, 1995’). 9. 8. Shri Rohit Mangal on behalf of respondents No.2 and 3 submits that petitioner can challenge the election of respondent No.4 by way of election petition and the grounds are available under rule 21 of the Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as ‘Election Rules, 1995’). 9. In reply to the above argument Shri Yadav submits that after counting of the ballat box when the slip has been prepared of each polling station the remaining work is a ministerial work as has been decided by the Division Bench of this Court in the case of Smt.Anita Karope v. Smt.Geeta Uikey and 5 others, passed in Writ Appeal No.1171/2006 dated 26.8.2008 and in view of this judgment the petitioner deemed to have been elected for the post of Sarpanch. He further submits that petitioner is not having any ground under rule 21 of Rules of 1995 to challenge the election of respondent No.4. The grounds are limited under which election can be challenged. ORDER 10. That the facts of the case are not much disputed by either party. The only issue is for adjudication whether petitioner is liable to be declared as elected Sarpanch and the order of re-polling is in accordance with rule 78 or not. If these issues are answered in favour of petitioner then question would be whether election can be set aside in writ petition or petitioner is having remedy to file election petition. 11. That rule 78 provides for fresh polling in the case of destruction and tampering of ballot boxes. Rule 72 is reproduced below : 72. Fresh poll in case of destruction, tempering etc. of ballot boxes or due to procedural irregularity.-- (1) If at any election -- (a) any ballot box used at a polling station is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent, that the result of the poll at that polling station cannot be ascertained, or (b) any such error or irregularity in procedure as is likely to vitiate the poll is committed at a polling station. The Returning Officer shall forthwith report the matter to the Commission through the District Election Officer. The Returning Officer shall forthwith report the matter to the Commission through the District Election Officer. (2) The Commission shall on receipt of a report under sub-rule (1) and after taking all material circumstances into account, either -- (a) declare the poll at the polling station to be void, appoint a day and fix the hours, for taking a fresh poll at that polling station and direct the District Election Officer to notify the day so appointed and the hours so fixed in such manner as it may deem fit or (b) if satisfied that the result of a fresh poll at that polling station will not, in any way affect the result of the election or that the error or irregularity in procedure is not material, issue such directions to the District Election Officer as it may deem proper for the further conduct and completion of the election. (3) In every case covered by clause (a) of sub-rule (2), the District Election Officer shall proceed to conduct the fresh poll, in accordance with the directions of the Commission and the provisions of this chapter shall apply to such fresh poll. 12. Under sub-rule (1)(a) if any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer/Returning Officer or accidentally or intentionally destroy/lost/damage/tamper with to such an extent, that the result of the poll at that polling station cannot be ascertained, hence re-polling can be ordered only in one station when the result of such polling station cannot be ascertained due to any reason. In the present case counting of polling station has already been done and the result slip has been issued. Counting of votes is provided under rule 77 and rule 72 comes prior to rule 77, therefore, the situation mentioned in rule 72 i.e. destroy/lost or damage or tempering of votes should be prior to the starting of counting then only the Election Commission can order for recounting of votes. In the present case the stage for invoking power under rule 72 has already been crossed and the counting has been done under rule 77. Thereafter there is only provision of recounting if occasion so arises and preparation and declaration of result of election. The counting of votes of petitioner and other candidates have been concluded which is not disputed. In the present case the stage for invoking power under rule 72 has already been crossed and the counting has been done under rule 77. Thereafter there is only provision of recounting if occasion so arises and preparation and declaration of result of election. The counting of votes of petitioner and other candidates have been concluded which is not disputed. The only step which was required to be taken was declaration of result under rule 81, therefore, respondent No.1 has wrongly ordered for re-polling of the votes, therefore, the said act of respondent No.1 is liable to be set aside. 13. Now the issue which is required to be answered is whether the election of respondent No.4 can be set aside in this writ petition or petitioner ought to have preferred election petition under section 122 of the Adhiniyam of 1993. Section 122 clearly stipulates that an election shall be called in question only by a petition presented in prescribed manner and no petition shall be admitted unless it is presented within thirty days from the date on which the election was notified. The procedure for filing petition and the grounds under which the election petition can be filed are provided in the rules of 1995. The ground for declaring the election to be void are provided under rule 21 which is reproduced below : 21. Grounds for declaring election to be void. The procedure for filing petition and the grounds under which the election petition can be filed are provided in the rules of 1995. The ground for declaring the election to be void are provided under rule 21 which is reproduced below : 21. Grounds for declaring election to be void. -- (1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion -- (a) that on the date of his election the returned candidate who was not qualified or was disqualified to be chosen to fill the seat under the Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election in so far as it concerned returned candidate has been materially affected -- (i) by the improper acceptance of any nomination; or (ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or (iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder; the specified officer shall declare the election of the returned candidate to be void. (2) If in the opinion of the prescribed authority a returned candidate has been guilty by an agent of any corrupt practice, but the prescribed authority is satisfied -- (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the instructions and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the commission of corrupt practice at the election; and (c) that in all other respect the election was free from any corrupt practice on the part of the candidate or any of his agent; then the prescribed authority may decide that the election of the returned candidate is not void. 14. 14. That the interference in writ petition under Article 226 of the Constitution of India has been considered by the apex Court in the case of N.P. Ponnuswami v. Returning Officer, Namakkal, reported in AIR 1952 SC 64 , and thereafter in the case of Mohinder Singh Gill v. Chief Election Commissioner, reported in (1978)1 SCC 405 . But there are certain situations in which embargo under Article 329 of the Constitution of India and section 122 of the Adhiniyam of 1993 would not operate in exercise of powers under Article 226 by the High Court. In the case of Election Commission of India through Secretary v. Ashok Kumar and others, reported in (2000)8 SCC 216 , the apex Court has enumerated few controversies which may not attract wrath of Article 329 9(b). Paras 20 and 21 of the said judgment is reproduced below : 20. Vide para 29 in Mohinder Singh Gills case, the Constitution Bench noticed two types of decisions and two types of challenges : The first relating to proceedings which interfere with the progress of the election and the second which accelerate the completion of the election and acts in furtherance of an election. A reading of Mohinder Singh Gills case points out that there may be a few controversies which may not attract the wrath of Article 329(b). To wit : (i) power vested in a functionary like the Election Commission is a trust and in view of the same having been vested in high functionary can be expected to be discharged reasonably, with objectivity and independence and in accordance with law. The possibility however cannot be ruled out where the repository of power may act in breach of law or arbitrarily or mala fide. (ii) A dispute raised may not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gills case, this Court gives an example (vide para 34). The Election Commission may pass an order which far from accomplishing and completing the process of election may thwart the course of the election and such a step may be wholly unwarranted by the Constitution and wholly unsustainable under the law. In Mohinder Singh Gills case, this Court gives an example (vide para 34). Say after the President notifies the nation on the holding of elections under section 15 and the Commissioner publishes the calendar for the poll under section 30 if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, which order would have the effect of preventing an election and not promoting it, the Courts intervention in such a case will facilitate the flow and not stop the election stream. 21. A third category is not far to visualize. Under section 81 of the Representation of the People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date on which the returned candidate is declared elected. During the process of election something may have happened which would provide a good ground for the election being set aside. Purity of election process has to be preserved. One of the means for achieving this end is to deprive a returned candidate of the success secured by him by resorting to means and methods falling foul of the law of elections. But by the time the election petition may be filed and judicial assistance secured material evidence may be lost. Before the result of the election is declared assistance of Court may be urgently and immediately needed to preserve the evidence without in any manner intermeddling with or thwarting the progress of election. So also there may be cases where the relief sought for may not interfere or intermeddle with the process of the election but the jurisdiction of the Court is sought to be invoked for correcting the process of election taking care of such aberrations as can be taken care of only at that moment failing which the flowing stream of election process may either stop or break its bounds and spill over. The relief sought for is to let the election process proceed in conformity with law and the facts and circumstances be such that the wrong done shall not be undone after the result of the election has been announced subject to overriding consideration that the Courts intervention shall not interrupt, delay or postpone the ongoing election proceedings. The facts of the case at hand provide one such illustration with which we shall deal with a little later. We proceed to refer a few other decided cases of this Court cited at the Bar. 15. In para 24 of the aforesaid judgment the apex Court has held that the powers conferred on the Election Commission are subjected to judicial review and that would depend on the facts and circumstances of each case. There should not be any mala fide or arbitrariness on the back of the Election Commission. Paras 24, 25 and 26 is reproduced below : 24. In Digvijay Mote v. Union of India and others [ (1993)4 SCC 175 ], this Court has held that the powers conferred on the Election Commission are not unbridled; judicial review will be permissible over the statutory body, i.e., the Election Commission exercising its functions affecting public law rights though the review will depend upon the facts and circumstances of each case; the power conferred on the Election Commission by Article 324 has to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the guidelines of the rule of law and not stultifying the Presidential notification nor existing legislation. 25. Anugrah Narain Singh and another v. State of U.P. and others [ (1996)6 SCC 303 ], is a case relating to municipal elections in the State of Uttar Pradesh. Barely one week before the voting was scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and de-limitation of constituencies and arbitrary reservation of constituencies for scheduled castes, scheduled tribes and backward classes the High Court passed interim order stopping the election process. This Court quashed such interim orders and observed that if the election is imminent or well under way, the Court should not intervene to stop the election process. This Court quashed such interim orders and observed that if the election is imminent or well under way, the Court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because some one or the other will always find some excuse to move the Court and stall the elections. The importance of holding elections at regular intervals cannot be over emphasised. If holding of elections is allowed to stall on the complaint of a few individuals, then grave injustice will be done to crores of other voters who have a right to elect their representatives to the democratic bodies. 26. In C. Subrahmanyam v. K. Ramanjaneyullu and and others [ (1998)8 SCC 703 ], this Court has held that non-compliance of a provision of the Act governing the elections being a ground for an election petition, the writ petition under Article 226 of the Constitution of India should not have been entertained. 16. Finally in para 30 the apex Court has held that the provisions of the Constitution and Act read together do not totally exclude the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum. The final conclusion has been drawn in para 32 in which in sub para 3 the it was held that action taken or orders issued by the Election Commission are open to judicial review on the well settled parameters where the action is suffering from mala fide or arbitrary exercise of powers. Para 32 is reproduced below : 32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove : (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the Courts indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. 17. In the present case counting of polling stations has been concluded and the prescribed authority/Assistant Returning Officer has issued the slips (Garana Parchi). Thereafter the only step which was required to be taken is the declaration of result under rule 81, therefore, stage of ordering re-polling has already been crossed and under rule 72 repolling can be order only when the result of the poll at the polling station cannot be ascertained. Thereafter the only step which was required to be taken is the declaration of result under rule 81, therefore, stage of ordering re-polling has already been crossed and under rule 72 repolling can be order only when the result of the poll at the polling station cannot be ascertained. In the present case there was no occasion and circumstances available for the Election Commission to order for re-poll. 18. In the case of Smt. Anita Karope (supra) this Court has held as under: In fact the report clearly shows that after the votes were counted and the results were declared some people entered in the hall and thereafter started asserting that revoting should be done. Such demand for revoting in fact has been taken as a situation of emergency. In our considered opinion after the elections were over, the results were declared and announced in public, any interruption or obstruction by the third party could not have affected the result of the elections. In the present matter the learned single Judge was absolutely justified in holding that present was not a case for exercising powers under sub-rule (1) of rule 21 of the Rules. It is also to be seen that the voting had taken place between 1:00 to 1:30 p.m. Sub-rule (6)(1) of rule 16 clearly provides that immediately after the voting is over, the Presiding Officer shall open the ballot box, take out the ballot papers there from, count them and record the number thereof in a statement. After the counting is over, in accordance with sub-rule (7) of rule 16 the Presiding Officer has to declare the candidate who secured the largest number of votes to be duly elected in Form No.V. The declaration in form No.V, in our considered opinion is a ministerial act. A Presiding Officer is always obliged and duty bound to issue Form No.V declaring that a particular candidate has secured the largest number of votes and is duly elected. In a given case if a declaration is not made in Form No.V then too the result of the election would stand unaffected and unaltered. The fact would always remain that a particular candidate who secured maximum votes is to be declared elected. In a given case if a declaration is not made in Form No.V then too the result of the election would stand unaffected and unaltered. The fact would always remain that a particular candidate who secured maximum votes is to be declared elected. In the Present case from the report of the Presiding Officer (Annexure A-1 to the appeal) it would clearly appear that ballot box was opened, votes were counted and in accordance with the counting the original petitioner Smt. Geeta Uikey received eight votes and was entitled to be declared as returned candidate. 19. That respondent No.4 who was subsequently declared elected after repoll is being prosecuted under sections 353, 332, 397, 395, 171, 147, 148, 149 IPC and under section 135A of the Representation of the Peoples Act for the offences committed by him on 22.2.2015 due to which Election Commission has ordered re-polling. He has been suspended and that order of suspension has been upheld by the Additional Collector vide order dated 15.10.2015 and at present he is not working as Sarpanch. The petitioner who ought to have been declared elected is made to suffer by the criminal act of the respondent No.4. 20. That the petitioner has approached this Court on 27.2.2015 immediately after the order of re-poll issued by the Election Commission. This Court has entertained the writ petition by issuing notice vide order dated 3.3.2015, therefore, at this stage writ petition cannot be dismissed for want of remedy under section 122 of the Adhiniyam of 1993. The period of limitation for filing election petition is already over. So far the decision dated 27.2.2015 passed in Writ Petition No.1294/2015 in the case of Kamla Devi and others v. The State Election Commission and othrs, is concerned the writ petition was dismissed at the stage of admission and the petitioner was directed to file election petition and at that time the period of limitation to file election petition did not expire. 21. In view of the above discussion, the writ petition is allowed. The election of respondent No.4 to the post of Sarpanch, Gram Panchayat, Bagwada is set aside. Respondents are directed to declare the petitioner as elected Sarpanch of Gram Panchayat, Bagwada.