Madhya Pradesh High Court
Balwan Singh vs The State Of Madhya Pradesh on 8 May, 2018
Equivalent citations: AIRONLINE 2018 MP 1154
HIGH COURT OF MADHYA PRADESH : JABALPUR
1 Case No. Writ Petition No.21225/2016
2 Parties Name Balwan Singh Vs. State of Madhya
Pradesh and others
3 Date of Judgement 08/05/2018
4 Bench Constituted on Hon'ble Single Bench
Justice..... and Hon'ble
Justice......
5 Judgement delivered by Hon'ble Ms. Justice Vandana
Hon'ble Justice....... Kasrekar
6 Whether approved for Yes
reporting
7 Name of counsels for parties Shri Naman Nagrath, learned senior
counsel with Shri Himanshu
Mishra, learned counsel for the petitioner.
Shri Amit Seth, learned Govt. Advocate
for the respondents No.1 to 4.
Shri P.R. Bhave, learned senior counsel
with Shri Amrit Lal Gupta, learned
counsel for respondent No.5.
8 Law laid down "Whether the power of
recounting can be delegated-
Held- No.
"Whether the application for
recounting should contain
specific reasons for recounting
as per Rule 80 of the Election
Rules- Held- Yes.
9 Significant 17, 18 and 13
Paragraph numbers
2 W.P. No.21225/2016
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
WRIT PETITION NO.21225/2016
Balwan Singh
Vs.
State of Madhya Pradesh and others
Shri Naman Nagrath, learned senior counsel with Shri
Himanshu Mishra, learned counsel for the petitioner.
Shri Amit Seth, learned Govt. Advocate for the
respondents No.1 to 4.
Shri P.R. Bhave, learned senior counsel with Shri Amrit
Lal Gupta, learned counsel for respondent No.5.
Whether approved for recording : Yes
ORDER
(08/05/2018) The petitioner has filed the present writ petition challenging the orders dated 26/04/2016 and 22/10/2016 passed by respondents No.3 and 4.
2. The election was held for the post of Sarpanch at Gram Panchayat, Rehli, Tah.Udaypura, Distt. Raisen on 05/02/2015. The petitioner and respondents No.5 to 11 have filed their nomination papers for the said post. On the same 3 W.P. No.21225/2016 date counting of votes has been made and the petitioner secured 280 votes and respondent No.5 has also secured 280 votes. Since the petitioner as well as respondent No.5 secured the same number of votes, therefore, the Presiding Officer has decided to declare the result of election on the basis of lottery basis. On that basis the petitioner won the election and declared Sarpanch of Gram Panchayat, Rehli. Respondent No.5 on 07/02/2015 has raised an objection for the first time about two votes wrongly counted. Respondent No.5 participated in the draw of lots without any objection or reserving right to challenge outcome. Respondent No.5 thereafter filed an election petition under Section 122 of the Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam') on 28/02/2015 and prayed for recounting of the votes.
3. On 28/02/2015 the petitioner has raised a preliminary objection that proper party was not impleaded by respondent No.5, so the election petition should be dismissed on that ground. The petitioner has also filed parawise reply to the election petition filed by respondent No.5 and denied the 4 W.P. No.21225/2016 contentions raised by respondent No.5. Respondent No.3 after receiving the reply of the petitioner has recorded the evidence of both the parties and thereafter passed an order dated 26/04/2016 for recounting of votes. Copy of the said order was not supplied to the petitioner, however, certified copy of the order was supplied by friend of the petitioner who sent copy of the order on Mail to the petitioner. Being aggrieved by the order dated 26/04/2016, the petitioner has filed the present writ petition.
4. Vide order dated 30/04/2016 this Court has passed an interim order in which it has been directed that the proceedings for recounting may go on but result thereof may not be declared. Thereafter the interim order was vacated on 19/10/2016 and the result of the recounting has been declared in which respondent No.5 has been declared as elected candidate vide order dated 22/10/2016. From perusal of the result of the counted votes, it is seen that respondent No.5 has earlier secured 25 votes and the present petitioner has secured 238 votes. From perusal of the order of recounting dated 26/04/2016, the order is only being passed for the election booth Rehli. The petitioner submits that the said order is 5 W.P. No.21225/2016 cryptic in nature as no such objection has been taken by respondent No.5 at the time of counting which led to file election petition. Thus, respondent No.5 has no ground to file the election petition. By the impugned order dated 26/04/2016, the SDO has only directed for recounting of Polling Booth, Rehli, but so far as other polling booths are concerned, as respondent No.5 has not taken any objection, therefore, the recounting of other polling booths is illegal. The order of recounting dated 26/04/2016 also makes it clear that the prescribed authority has not undertaken the exercise of recounting of votes, itself, which is mandatory. The prescribed authority has delegated the powers of recounting to the Tahsildar and the recounting of votes was done by the Tahsildar who was assisted by other staff which vitiated the entire exercise of recounting of the votes.
5. The election petitioner did not make proper application for recounting of votes as it requires under Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995. From perusal of the application, it is clear that the election petitioner did not satisfy any ground whatsoever while asking for recount and only stated that some of the votes were rejected and the 6 W.P. No.21225/2016 election petitioner was not satisfied, therefore, was requesting for recount of the votes. Thus, in absence of any ground, there could not be ordered for recount. Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995, clearly specifies that the application contains specific reasons for recount and the prescribed authority while hearing the election petition could not go beyond the application filed, therefore, was no justification in ordering recount of votes. After passing of the order for recounting, the Chief Executive Officer, Janpad Panchayat, Udaypura wrote a letter dated 22/10/2016 to the Branch Manager, Central Bank of India, Branch, Udaypura to stop the transaction with the account of the Gram Panchayat, Rehli. Being aggrieved by that order passed by the prescribed authority, the petitioner has filed the present writ petition.
6. Learned senior counsel appearing on behalf of the petitioner argues that there is no pleading or evidence in election petition about justification of recount. He submits that in the election petition filed by the petitioner lacks of material particulars about recounting. On the basis of para-8 of the election petition, only the pleading regarding 7 W.P. No.21225/2016 recounting has been made that respondent No.5 has submitted an application for recounting but the Presiding Officer has not considered the same and, therefore, on the basis of these pleadings, the Presiding Officer should not have passed an order for recounting. He further submits that the pleadings and evidence relate to only two votes, however, the Presiding Officer has passed the order for recounting of all votes which is illegal. He further submits that earlier the petitioner as well as respondent No.5 have got equal votes and respondent No.5 has agreed for draw of lots without any objection or reversing right to challenge counting, therefore, the election petition filed by respondent No.5 was not maintainable. The application submitted by respondent No.5 for recounting is not in accordance with Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995 . He contends that the material particulars are not given in the application submitted by respondent No.5 for recounting. The application states that he is not satisfied with the counting. On the basis of these allegations made in the application, learned senior counsel submits that the application does not fulfil the condition as 8 W.P. No.21225/2016 specified in Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995.
7. Learned senior counsel for the petitioner further submits that the prescribed authority while passing the order of recounting has directed the Returning Officer to recount the votes himself, however, on the basis of the order sheet, he submits that the power of recounting has been delegated by the Returning Officer which is not permissible as per law. He further submits that the Election Tribunal in the impugned order has held that the election material was taken away by the Returning Officer with him and, therefore, an FIR was directed to be lodged resulting in secrecy of votes, therefore, in such situation, no recounting was permissible. Learned senior counsel has relied upon the judgments passed in the cases of Hanumant Singh Vs. State M.P. & others, reported in (2012) 3 MPLJ 191, Ganesh Ram Gayari Vs. Bagdiram & others, reported in (2013) 2 MPLJ 447, Mahendra Patap Vs. Kishan Pal and others, reported in (2003) 1 SCC 390, Arikala Narala Reddy Vs. Venkataram Reddy, reported in (2014) 5 SCC 312, Arikala Narala Reddy Vs. Venkataram Reddy, reported in (2014) 5 SCC 328, Rameshchandra 9 W.P. No.21225/2016 Bhilala Vs. Bashir & others, reported in (2010) 4 MPLJ 563, R. Narayan Vs. Semmalai and others, reported in (1980) 2 SCC 537, Sampat Devi Vs. SDO, reported in (2007) 3 MPHT 462, Smt.Ladkunwar Kushwaha Vs. State of Madhya Pradesh passed in W.P. No.3263/2016 and Rekha Rana Vs. Jaipal Sharma, reported in (2009) 7 SCC
115.
8. Respondents No.2 to 4 have filed their return and in the return they have stated that by virtue of powers given under Section 122 of the Adhiniyam as well as M.P. Panchayat (Election Petition, Corrupt Plractices & Disqualification for Membership) Rules, 1995, respondent NO.3 is conferred with the authority to adjudicate the election petition filed challenging the election of Sarpanch of Gram Panchayat. In exercise of said powers, respondent No.3 has decided the election petition filed by respondent No.5. Initially the order dated 26/04/2016 directing for recount of votes was passed by respondents No.3 and 4 after taking into consideration the evidence of both the parties brought on record during the course of trial of the election petition. But, in the election petition recount for voting Centres at Rehli and Bamhori 10 W.P. No.21225/2016 Basida were sought for and since on the basis of evidence brought on record, irregularity in counting of votes only in Booth Centre, Rehli came on record, therefore, recount in respect of said polling centre was directed. The order dated 26/04/2016 was initially challenged by the petitioner in Writ Petition No.7900/2016 in which interim order has been passed in favour of the petitioner, however, thereafter as the process fee was not paid by the petitioner, therefore, the interim order was vacated on 19/10/2016. After vacation of the interim order, the order dated 26/10/2016 was implemented and executed and on the basis of that, result of recounting the order dated 22/10/2016 was passed whereby respondent No.5 was found to have secured more votes and, therefore, he was declared the elected Sarpanch of Village Rehli and, accordingly, charge was handed over to him. The said writ petition was subsequently withdrawn by the petitioner. Thus, it is seen that the orders dated 26/04/2016 and 22/10/2016 impugned in this writ petition have already stand executed on 22/10/2016.
9. Respondent No.5 has also filed reply and in the reply, respondent No.5 has stated that earlier the petitioner has also 11 W.P. No.21225/2016 filed Writ Petition No.7900/2016 challenging the order dated 26/04/2016 whereby recounting was ordered by the Election Tribunal and this Court vide order dated 30/04/2016 has passed an interim order that SDO, Bareli shall himself undertake the recounting process and report thereof be sent to the Court and till next date of hearing, the result shall not be declared. The interim order passed in W.P. No.7900/2016 was vacated on 19/10/2016, against which a writ appeal was filed which was also dismissed vide order dated 26/10/2016. After vacation of interim order, the SDO, Bareli has declared the result of recounting and respondent No.5 was declared elected. The present issue relates to counting of votes in relation to Polling Booth No.57, Rehli and there is no dispute of counting of votes in relation to Polling Centre No.58, Bamhauri Basoda.
10. Respondent No.5, in his election petition has made a specific pleading that the Presiding Officer has acted negligently and gave undue favour to the petitioner and also pleaded that because of negligence of Presiding Officer, his 33 votes at Rehli were rejected illegally and 12 votes in Bamhauri were contrary to law. Election Tribunal has 12 W.P. No.21225/2016 framed the issues in relation to inclusion of two rejected votes in the counting and whether recounting should be directed. The issue regarding raising of objection before the Presiding Officer at the time of counting was also framed and on the aforesaid issue, the petitioner as well as respondent No.5 have got themselves examined. Presiding Officer, in his statement, has admitted that he closed the counting and took final decision of two votes at Tahsil Headquarter at Udaipura which means that the ballet box was not sealed before the candidates or their representatives and in this manner the Presiding Officer has affected the sancity of election and counting. The admission of Presiding Officer, itself, proves that counting was done in complete violation of the Rules of 1995 and, therefore, after taking into consideration the aforesaid illegalities, the Election Tribunal has directed for recounting of votes in relation of Polling Booth No.57, Village Rehli.
11. Heard learned counsel for the parties and perused the record as well as the orders passed by the respondents.
12. The election for the post of Sarpanch at Gram Panchayat, Rehli, Tahsil Udaipura, Distt. Raisen was held on 13 W.P. No.21225/2016 05/02/2015 in which the petitioner as well as respondents No.5 to 11 have submitted their nomination form. The counting of votes was done on the same day and the petitioner secured 280 votes and respondent No.5 has also secured 280 votes. As the petitioner and respondent No.5 have secured the equal votes, therefore, the Presiding Officer has decided to declare the result of the election on the basis of lottery system. The petitioner won the election and he was declared as Sarpanch of Gram Panchayat, Rehli. Against the election of the petitioner, respondent No.5 has filed election petition under Section 122 of the Adhiniyam in which the petitioner has raised preliminary objection regarding impleadment of proper party. Thereafter parawise reply was submitted by the petitioner and the Election Tribunal thereafter proceeded with recording the evidence of the petitioner and respondent No.5. After appreciating the evidence, respondent No.3 has passed an order dated 26/04/2016 for recounting of the votes. Against the said order dated 26/04/2016, the petitioner filed Writ Petition No.7900/2016 before this Court. Initially an order was passed in favour of the petitioner, however, as the petitioner 14 W.P. No.21225/2016 failed to pay process fee, therefore, the interim order was vacated on 19/10/2016. After vacation of the interim order, the Presiding Officer proceeded to recount the votes and after recounting the votes, respondent No.5 was declared elected. Being aggrieved by that order, the petitioner has filed the present writ petition.
13. Learned senior counsel for the petitioner submits that initial order of recounting dated 26/04/2016 was, itself, illegal. The consequential order is also illegal and deserves to be set aside. He further submits that in the present case, respondent No.5 has failed to give the material particulars about recounting in the election petition. From perusal of the election petition, it reveals that in the said election petition respondent No.5 has stated that due to negligence committed by the Presiding Officer in counting of the votes, the petitioner got higher than the respondent No.5. It is further submitted that prescribed officer has wrongly rejected 33 votes, respondent No.5 has not given material particulars in the election petition that what illegality has been committed in issuing the order for issuing the order for recounting. From perusal of the application which is submitted by 15 W.P. No.21225/2016 respondent No.5, it also reveals that only pleading which is made by respondent No.5 in the said application is that counting has not been done properly in the Polling Booth at Rehli and Bamhauri Basoda. No specific pleading has been given in the said application. As per Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995, the application submitted for recounting must state grounds on which he demands such recount. In the present case, from perusal of the application filed by respondent No.5, only ground which is stated by respondent No.5 for recounting of votes is that he is not satisfied with the counting of votes.
14. The Apex Court in the case of Udey Chand Vs. Surat Singh, reported in (2009)10 SCC 170 has held as under :
"Before 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 16 W.P. No.21225/2016 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."
15. Similarly, the Apex Court in the case of M. Chinnasamy Vs. Palanisamy, reported in (2004) 6 SCC 341, three Judges Bench has held as under :
"The 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 17 W.P. No.21225/2016 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."
16. In the case of Chandrika Yadav Vs. State of Bihar, reported in (2004) 6 SCC 331= AIR 2004 SC 2036, the Apex Court has laid down the following norms :-
"It 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 18 W.P. No.21225/2016 sufficient for issuing a direction for recounting."
17. In the present case also, the application submitted by respondent No.5 before the Presiding Officer as well as the Election Tribunal does not state the material facts for recounting of the votes. It is further to be noted that this Court while passing the impugned orders, this Court in Writ Petition No.7900/2016 has directed the SDO to recount the votes himself. However, from perusal of the order sheet, it is clear that SDO has delegate the said power of recounting to the Tahsildar. The Division Bench of this Court in the case of Sampat Devi (supra) has observed as under :
"It 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 19 W.P. No.21225/2016 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."
The above decisions were followed by the Coordinate Bench of this Court in the case of Smt. Ladkunwar Kushwaha Vs. State of M.P. and others passed in Writ Petition No.3263/2016.
18. In light of the aforesaid judgments, the power for recounting of votes cannot be delegated. The burden of proof lies on the election petitioner. While in the present case, the Election Tribunal has placed burden on the petitioner, herein, which is contrary to the judgment passed by this Court in the case of Hanumant Singh (supra) as well as Ganesh Ram Gyari (supra) in which this Court has held that recounting of votes should not have been allowed as a routine unless there is circumstances which require for recounting. Respondent No.5, in his election petition, has raised a dispute in respect 20 W.P. No.21225/2016 of two votes only in para-6 of the election petition. Respondent No.5 has pleaded only for two votes and relief has already been sought in respect of two votes. However, while passing the impugned order, the Election Tribunal has gone beyond the pleadings and ordered for recounting for entire votes, although, pleadings, evidence and prayer was only for two votes. It is also to be noted that respondent No.5, in his affidavit in para-3 of the cross-examination, has admitted that no objection has been filed filed during counting as required under Rule 80. Thus, on the basis of overall evidence produced by all the parties, the dispute, in the present case, is only with regard to two votes, however, the Election Tribunal has gone beyond the pleadings and passed the order for recounting of the entire votes which is illegal.
19. In light of the aforesaid discussion, this writ petition is allowed. The impugned orders dated 26/04/2016 and 22/10/2016 passed by respondents No.3 and 4 are hereby quashed.
(Ms. Vandana Kasrekar) JUDGE 21 W.P. No.21225/2016 ts Digitally signed by TULSA SINGH Date: 2018.05.09 11:32:21 +05'30'