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2016 DIGILAW 356 (CAL)

Raman Chandra Mahato v. Anjana Mahato

2016-04-15

HARISH TANDON

body2016
JUDGMENT : Harish Tandon, J. Initially the challenge was restricted to an order No. 47 dated 22nd July 2015 passed by learned Civil Judge (Junior Division), Purulia in Misc. Election Case No. 59 of 2013 whereby and where under the opposite party no. 3, Panchayat Returning Officer, Jhalda-II Panchayat Samity cum Block Development Officer, Jhalda-II Development Block was directed to produce the ballot box and other relevant papers which were kept in safe custody for the purpose of recounting of the ballot papers. 2. The said order was consequential and/or dependant upon the order No. 44 dated 22nd June 2015 and having realized so, the petitioner further challenged the said order by filing the supplementary affidavit. Both the supplementary affidavits as well as the revisional application were directed to be served upon the opposite parties. 3. Despite the service having effected upon the opposite parties, there is no representation on their behalf. The matter was thereafter directed to be proceeded ex parte. 4. The aforesaid impugned order sprung out from a proceedings initiated under Rule 79(1) (a) of the West Bengal Panchayat Election Rule 2003 challenging the 8th Panchayat General Election 2013 for Jhalda II Gram Panchayat. The challenges are basically founded on discrepancy in total number of ballot papers used and the ballot papers found in the ballot box. According to the opposite party, the register containing the ballot papers indicates the total number of ballot papers used at 626 but at the time of counting it was found at 646 in numbers. It was further alleged that certain ballot papers have been rejected without providing any reasons and a protest was immediately made before the Returning Officer, who did not give any credence to the same and hurriedly proceeded to declare the result. 5. After permitting the contesting parties to adduce evidence in support of their respective stands, the Court by order No. 44 dated 22nd June 2015 categorically held that there is a mathematical discrepancy in total number of the ballot papers used and unused and since the margin of vote is only 1 (one), it would be proper and shall meet the ends of justice if the recounting is done. By order No. 47 dated 22nd July 2015 the Trial Court merely directed the opposite party no. By order No. 47 dated 22nd July 2015 the Trial Court merely directed the opposite party no. 3, Panchayat Returning Officer, Jhalda-II Panchayat Samity cum Block Development Officer to produce the ballot papers and other relevant papers for the purpose of recounting. 6. What appears to this Court is that the Trial Court was swayed by the mere fact that the margin of vote is nearly one and if the recounting is done, the result may turn out to be different. There is no findings recorded on whether the 20 numbers of votes rejected by the Returning Officer were valid or not. 7. The Supreme Court in case of P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Others reported in (1989) 1 Supreme Court Cases 526 held that the secrecy of the votes and/or ballot is the salutary principles for ordering the recounting. 8. It should not be ordered mechanically unless a high degree of prima facie case is made out. It would be profitable to quote observations made in paragraph 13 of the said report, which runs thus :- "13. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basis principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes." 9. In case of Vadivelu v. Sundaram and Others reported in (2000) 8 Supreme Court Cases 355 the Apex Court made a caution in ordering the recounting of votes on a mere allegation without proper evidence as to improper acceptance of the valid votes or improper rejection of the valid votes, in these words :- "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 I seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties." 10. The Apex Court in case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and Others reported in (2010) 1 Supreme Court Cases 466 did not approve the recounting of votes in absence of any material allegation as to irregularity or illegality in counting and the evidence in support thereof. It was further held that mere narrow margin of votes does not ipso facto give rise to a presumption that there has been an irregularity or illegality in counting of votes, in these words:- "25. It needs to be emphasised that having regard to the consequences emanating from the direction of re-counting, which may even breach the secrecy of ballot, the doctrine of prejudice is an irrelevant factor for ordering re-count. Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. In the first instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence. Similarly, a narrow margin of votes between the returned candidate and the election petitioner does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. In the first instance, material facts in this behalf have to be stated clearly in the election petition and then proved by cogent evidence. Undoubtedly, the onus to prove the allegation of irregularity, impropriety or illegality in the election process on the part of the Election Officer is on the election petitioner and not on the Election Officer, as held by the authorities below. In the present case, both the forums below have found that material facts were lacking in the election petition. Having held so, in our view, the election petition should have been dismissed on this short ground alone. In that view of the matter, the observation of the Election Tribunal, as affirmed by the High Court, that the Election Officer had failed to say anything regarding corrections and overwriting in Form 26, are neither factually nor legally sound." 11. The aforesaid proposition is further reiterated in a subsequent decision of the Supreme Court in case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari and Another reported in (2014) 5 Supreme Court Cases 312. 12. On the enunciation of law as indicated above, the Court should not direct the recounting of votes merely because the margin of vote is minimal and/or narrow in absence of any positive evidence on improper rejection of valid votes and improper acceptance of invalid votes. As indicated above, there is no findings recorded by the Trial Court on the above aspect as the Trial Court was merely swayed by the fact that there has been a discrepancy in the number of the ballot papers used and the number of ballot papers found from the ballot box. 13. The approach of the Trial Court appears to be contrary to the ratio laid down in the above noted decisions and, therefore, the impugned order cannot be sustained. The order No. 44 dated 22nd June 2015 and order No. 47 dated 22nd July 2015 are hereby set aside. 14. The matter is remanded to the Trial Court for taking a fresh decision it goes without saying that the Trial Court shall take into account the ratio laid down in the above referred decisions while arriving at the final conclusion. 14. The matter is remanded to the Trial Court for taking a fresh decision it goes without saying that the Trial Court shall take into account the ratio laid down in the above referred decisions while arriving at the final conclusion. 15. The revisional application is thus disposed of. 16. There shall be no order as to costs.