Madhya Pradesh High Court
Smt. Ladkunwar Kushwaha vs The State Of Madhya Pradesh on 21 April, 2016
WP-3263-2016
(SMT. LADKUNWAR KUSHWAHA Vs THE STATE OF MADHYA PRADESH)
21-04-2016
Shri Naman Nagrath learned Sr. Counsel with Shri Anoop Saxena,
learned counsel for the petitioner.
Shri Lalit Joglekar, learned Panel Lawyer for respondent No.1/State.
Shri A.M. Trivedi, learned Sr. Counsel with Ajeet Kumar Rawat,
learned counsel for respondent No.2
With the consent of learned counsel for the parties, heard finally.
Order passed separately.
Shri Naman Nagrath learned Sr. Counsel with Shri Anoop Saxena,
learned counsel for the petitioner.
Shri Lalit Joglekar, learned Panel Lawyer for respondent No.1/State.
Shri A.M. Trivedi, learned Sr. Counsel with Ajeet Kumar Rawat,
learned counsel for respondent No.2
With the consent of learned counsel for the parties, heard finally.
Order passed separately.
(NANDITA DUBEY)
JUDGE
HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
SINGLE BNCH : HON'BLE JUSTICE NANDITA DUBEY
WRIT PETITION NO. 3263/2016
Smt. Ladkunwar Kushwaha
Vs.
State of M.P. and others.
____________________________________________________
Shri Naman Nagrath learned Sr. Counsel with Shri Anoop Saxena, learned
counsel for the petitioner.
Shri Lalit Joglekar, learned Panel Lawyer for respondent No.1/State.
Shri A.M. Trivedi, learned Sr. Counsel with Ajeet Kumar Rawat, learned counsel
for respondent No.2.
ORDER
(21.04.2016) By this petition under Article 226 of the Constitution of India, challenge is made to the orders dated 04.02.2106 (Annexure P-12) passed by Sub-Divisional Officer (Prescribed Authority), whereby the Election Tribunal allowed the prayer of the election petitioner for the purpose of recount of votes and the order dated 08.02.2016 (Annexure P-13), which entailed in declaration of the election petitioner as the returned candidate.
2. The facts are that the petitioner was an elected Sarpanch of Gram Panchayat Kachiyakhera. The election was held on 13.01.2015 and counting took place on 17.01.2015. The petitioner was declared elected with a margin of 2 votes over respondent No.2. The respondent No.2 filed an election petition under Section 122 of the Adhiniyam before the Sub-Divisional Officer, wherein she has made allegations against the present petitioner that she had furnished wrong information in her nomination form, even then, the same was accepted. Allegations about distribution of liquor and money to the voters and violation of code of conduct were also made. In para 3 of the complaint, allegations were made that at the time of counting of votes, some invalid votes stand accepted in favour of present petitioner and some votes of the election petitioner were kept in the bundle of present petitioner. It was further alleged that votes of dead persons by other persons were also casted. Despite complaint, returning officer did not stop the petitioner, thereby committing irregularity and misconduct and lastly in para 5 that returning officer did not follow the election rules and declared the present petitioner elected.
3. A perusal of impugned order (Annexure P-12) order of recount dated 04.02.2016, shows that the election petitioner examined Ketan Mishra, Veeran, Sitaram Kushwaha and herself. The present petitioner examined Aman Kushwaha, Dayaram Gusai and herself. The Election Tribunal on the basis of evidence brought on record while answering the issues came to hold that nomination form of petitioner was proper, no misconduct was committed by the petitioner, no vote of deceased persons were caste. The Tribunal further found that at the relevant time, no complaint was made by respondent No.2 for recount of votes and held that respondent No.2 had failed to prove issue Nos.1,2,3,and 5. Though the Tribunal found the allegations made against the petitioner not proved but due to the shorter margin of votes (only 2) and to impart effective and complete justice to the parties directed recount of votes by the Tehsildar and the Returning Officer and further directed to constitute a team for the same.
4. From Annexure P-13 dated 08.02.2016, it appears that on recounting by the team, both present petitioner and election petitioner received equal votes (259/259). Thereafter, respondent No.2 was declared elected by draw of lot conducted by the same team and the report was forwarded to the election Tribunal/competent authority, who vide order dated 08.02.2016 declared the respondent No.2 as returned/winning candidate. The orders dated 04.02.2016 and 08.02.2016 are under challenge in this petition.
5. Shri Naman Nagrath, learned Sr. Counsel for the petitioner assailed the said order and submits that it is settled law that recounting cannot be directed by the Tribunal in a routine and mechanical manner. Learned Sr. Counsel submits that election Tribunal is under legal obligation to examine meticulously the pleadings of the election petitioner and examine the deposition of the witnesses in the light of such pleadings wherein allegations of improper counting was made. By drawing the attention of this court on the relevant pleadings in the election petition (annexure P-2), he submits that material facts and pleading are lacking in those pleadings and on the basis of such bald pleadings, no evidence can be permitted to be relied upon. And in absence of material facts and reliable evidence, recount could not have been ordered. It is further submitted that low margin of victory (2 votes in the present case) cannot also be a ground for recounting nor for the purpose of recounting, the powers can be delegated to any other authority by the Tribunal. Lastly, it is urged that recounting done by the team presided by respondents found that equal votes (259/259) were received by both petitioner and respondent No.2 was declared as winning candidate by draw of lot, which is a process unknown to law. In support of his contention, he relied on various judgments. [Hanumant Singh Vs. State of M.P. & ors. (2012) 3 MPLJ191, Rameshchandra Bhilala Vs. Bashit & Ors. (2010) 4 MPLJ 563, Ganesh Ram Gayari Vs. Bagdiram & Ors (2013) 2 MPLJ 1447, P. Narayan Vs. Smmalai & Ors. 2001-Legal Eagle (MP)-697, and Sampat Devi Vs. SOD (2007) 3 MPHT 462]
6. Shri Lalit Joglekar, learned Panel Lawyer and Shri A.M. Trivedi, learned Senior counsel supported the impugned orders. Shri Trivedi contends that material pleadings are there in the election petition. It is further submitted that after recounting, the certificate of respondent No.2 was issued and consequently she took charge on 10.02.2016. In support of arguments, he relied on the decision of the Supreme Court in the case of Jayanta Samal Vs. Kulamani Behera and another (2004) 13 SCC 552.
7. In rejoinder submission, Shri Nagrath contended that even if recounting has taken place and result is declared, the petitioner has a valuable right to assail the order of recount.
8. Before proceeding to deal with the aforesaid submissions raised at the bar, it is seemly to refer to certain citations:-
The Supreme Court in the case of Shri Satyanarain Dudhani vs. Uday Kumar Singh and others ( AIR 1993 SC 367) held as under:
âÂÂsecrecy of ballot cannot be lightly tinkered. In a democratic set up secrecy of ballot is of utmost importance and in absence of very specific pleading of material facts and particulars supported by contemporaneous evidence, neither election can be quashed nor recount can be ordered. In (2003) 1 SCC 390, Mahender Pratap vs. Krishan Pal And others it was held that the onus of proof on the basis of proper pleading is on election petitioner. It is further held that the degree of proof must be of very high standard to annual an election or for direction for recounting.â The Supreme Court in the case of Udey Chand vs. Surat Singh (2009)10 SCC 170 has held as under :-
âÂÂBefore an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements which must be satisfied are: (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all material facts on which the allegations of irregularity or in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary.â In the case of M. Chinnasamy vs. Palanisamy, reported in (2004) 6 SCC 341, three Judges Bench has held as under :-
âÂÂThe material facts and material particulars must be pleaded. Evidence at variance with pleadings is neither admissible nor permissible. Prima facie case that at such magnitude as to materially affected the election, must be pleaded. Onus to prove the said allegations is on the returned candidate. Merely making such allegations because of the margin of the votes between the returned candidate and the elected candidate is narrow, recount cannot be directed. It has further been held that where irregularities in counting of votes were alleged in the election petition, but in detail the names of polling stations, counting centers, tables round of counting of votes in relation to which alleged irregularities have taken place without disclosing the material facts, the appellant has not proved prima facie case of scrutiny of ballot papers.â In Chandrika Yadav Vs. State of Bihar, (2004) 6 SCC 331 = AIR 2004 SC 2036, the Apex Court has laid down the following norms:-
âÂÂIt is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled:- (i) Aprima facie case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and
(iv) An objection to the said effect has been taken recourse to
21.The requirement of maintaining the secrecy of ballot papers also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting.âÂÂ
9. In the case in hand, a conjoint reading of pleadings of election petitioner and her statements reflects that she has miserably failed to to prove her pleadings which were not supported by any evidence. There is a contradiction between the pleadings and her statement. The whole story of election petitioner appears to be an after thought. The election tribunal though answered the issue nos. 1,2,4,and 5 as not proved, yet only on the ground of small margin of votes (2) took recourse to the conception of doing an effective complete justice and directed recount.
10. In the opinion of this Court, the said ground was not a cogent ground for directing recount of votes. As held by the Apex Court in M. Chinnasamy (supra) the small margin of votes cannot be the sole ground for directing recounting.
11. Another interesting aspect is that the election Tribunal has innovated a new procedure for constituting a committee for recounting. There is no provision for such a committee. In the case of Sampat Devi Vs. SDO-cum-Prescribed Authority (2007) 3 MPHT 462, the Division Bench while referring to the decision referred in the case of Asim Saha Vs. Collector, Kanker and others 2001 (1) MPHT 6 (CG) has expressed/observed as under :
âÂÂit is paramount duty rather pious duty of the Tribunal to itself count and recount the votes and it cannot delegate the power to the third party as it is the duty of the Tribunal, which it must discharge in accordance with law. We concur with the view expressed in the aforesaid decision, for in the absence of any such provision we are of the considered opinion that delegation of such power of recount to a committee and non-verification of the ballot papers by the Tribunal itself is unmistakably illegal and impermissible.âÂÂ
12. Apart from the above enunciation of law, the decision relied by Mr. Trivedi is not applicable to the case at hand in-as-much there was no justifiable ground to direct recount of votes. Moreover, the manner in which the recount has been done by the committee is also impermissible and illegal.
13. In view of the above, this petition is allowed and the order passed by the prescribed authority dated 04.02.2016 (annexure P-12) and the consequential order dated 08.02.106 (Annexure P-13) declaring respondent No.2 as elected candidate are quashed.
This writ petition stands finally disposed of.
(NANDITA DUBEY) JUDGE