Madhya Pradesh High Court
Kiran Pidiha vs The Sub Divisional Officer(Revenue) on 7 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P. No.7755/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 7th OF MAY, 2024
WRIT PETITION No. 7755 of 2024
BETWEEN:-
KIRAN PIDIHA W/O SHRI SISHU PIDIHA, AGED
ABOUT 36 YEARS, OCCUPATION: SARPANCH,
GRAM PANCHAYAT NAWAGAON UMMULAN R/O
VILLAGE MAJAN, GRAM PANCHAYAT
NAWAGAON UMMULAN, JANPAD PANCHAYAT
RAIPUR KARCHULIYAN, DISTRICT REWA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SANJAY K. AGRAWAL - ADVOCATE AND
SHRI AMARESHWAR PATHAK - ADVOCATE)
AND
1. THE SUB DIVISIONAL OFFICER (REVENUE)
TEHSIL MANGAWAN, DISTRICT REWA
(MADHYA PRADESH)
2. SANJU SINGH W/O SHRI SHIV SINGH, AGED
ABOUT 43 YEARS, R/O VILLAGE
NAWAGAON UNMULAN, TEHSIL AND
POLICE STATION MANGAWAN, DISTRICT
REWA (MADHYA PRADESH)
3. ARUN PIDIHA W/O SHRI VISHESHWAR
PIDIHA R/O VILLAGE MAJAN, GRAM
PANCHAYAT NAWAGAON UNMULAN,
JANPAD PANCHAYAT RAIPUR
KARCHULIYAN, DISTRICT REWA (MADHYA
PRADESH)
4. KUSUM SINGH W/O SHRI SANTOSH KUMAR
SINGH R/O GRAM NAWAGAON UNMULAN,
JANPAD PANCHAYAT RAIPUR
KARCHULIYAN, DISTRICT REWA (MADHYA
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 07-May-24
7:02:47 PM
2 W.P. No.7755/2024
PRADESH)
5. MEETA SINGH W/O LATE SHRI
DHEERENDRA SINGH R/O GRAM
NAWAGAON UNMULAN, JANPAD
PANCHAYAT RAIPUR KARCHULIYAN,
DISTRICT REWA (MADHYA PRADESH)
6. RANI SINGH W/O SHRI SUMANT SINGH R/O
GRAM NAWAGAON UNMULAN, JANPAD
PANCHAYAT RAIPUR KARCHULIYAN,
DISTRICT REWA (MADHYA PRADESH)
7. SHEELA SINGH W/O SHRI RAGHVENDRA
SINGH R/O GRAM NAWAGAON UNMULAN,
JANPAD PANCHAYAT RAIPUR
KARCHULIYAN, DISTRICT REWA (MADHYA
PRADESH)
.....RESPONDENTS
(STATE BY SHRI MOHAN SAUSARKAR -
GOVERNMENT ADVOCATE AND RESPONDENT
NO.2 BY SHRI BRINDAVAN TIWARI - ADVOCATE)
.........................................................................................................
"Reserved on : 03/05/2024"
"Pronounced on : 07/05/2024"
.........................................................................................................
This petition having been heard and reserved for order, coming on
for pronouncement this day, the court passed the following:
ORDER
This petition under Article 226 of Constitution of India has been filed against order dated 13/03/2024 passed by respondent No.1/ Sub Divisional Officer (Revenue), Tehsil Mangawan, District Rewa in Election Petition No.1/A-89/2022-23, by which direction has been given for recounting in polling booth Nos.191 and 192 of Gram Panchayat Nawagaon Unmulan.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 3 W.P. No.7755/20242. The facts necessary for disposal of present petition in short are that respondent No.2 filed an Election Petition under Section 122 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short 'Adhiniyam 1993') by pleading inter alia that voting was held on 01/07/2022 for the post of Sarpanch of Gram Panchayat Nawagaon Unmulan including in polling booth Nos.191 & 192. Respondent No.2/ election petitioner was declared as elected by two votes and accordingly, she came outside the counting centre along with her supporters. After some time, Returning Officer declared the petitioner/ respondent No.1 as winner as elected by one vote. As soon as respondent No.2 / election petitioner came to know about the change in result of election, then she immediately came back and gave an application to the Presiding Officer for recounting but the Presiding Officer refused to conduct recounting, however gave an acknowledgment of the application made by respondent No.2/ election petitioner. It was alleged that as per Rule 77(2) and 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (in short 'Rules, 1995'), the Returning Officer was entitled to make the entries in part one of Form 16, 17, 18 & 19 of result sheet and allows the total number of votes polled by each candidate, however that was not done. The counting slip was not provided to the candidates and the petitioner/ respondent No.1 was declared as winner by one vote. In polling booth No.191, total 430 votes and in polling booth No.192, total 387 votes were casted. The election petitioner/ respondent No.2 received 139 votes in polling booth No.191, however two votes were declared in favour of Rani Sumant Singh otherwise election petitioner/ respondent No.2 would have got 141 votes in polling booth No.191. Similarly, 13 Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 4 W.P. No.7755/2024 votes were declared illegal, whereas 6 votes would have gone in favour of election petitioner/ respondent No.2 because while folding the ballot paper, the impression of the ink got printed on the election symbol of another candidate as well as while issuing the ballot paper, the impression of the thumb also got imprinted on the ballot paper and in case if those 6 votes would have been counted in favour of the election petitioner/ respondent No.2, then she would have got 147 votes. Whereas, in the counting her votes were reduced to 139. Similarly, in polling booth No.192, total 387 votes were casted. Petitioner / respondent No.1 had got 126 votes but after taking 6 illegal votes in her favour, it was declared that she has got 132 votes whereas out of 23 votes which were casted in favour of petitioner, two ballot papers were declared illegal and therefore, it was declared that election petitioner/ respondent No.2 had got 21 votes. When the counting slip was demanded from the Returning Officer, then the same was not given immediately and it was provided after two hours and it was declared that the petitioner/ respondent No.1 had got 132 votes whereas election petitioner/ respondent No.2 had got 21 votes. Although, election petitioner/ respondent No.2 had given an application for recounting but recounting was not done by the Returning Officer. Thus, it was claimed that in polling booth Nos.191 & 192, the Returning Officer had deliberately committed illegality and even after having declared election petitioner/ respondent No.2 as winner by two votes, thereafter declared the petitioner/ respondent No.1 as winner by one vote. Therefore, it was prayed that in case if recounting is done, then total number of votes received by both the candidates would be clear. It was further claimed Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 5 W.P. No.7755/2024 that counting slip of polling booth Nos.191 & 192 was not issued in Form 17 as required under Rule 77(2) of Rules, 1995 and accordingly, the election petition was filed.
3. Petitioner/ respondent No.1 filed her written statement and denied the averments made in the election petition. It was pleaded that the family members of the election petitioner/ respondent No.2 were also present in the counting room and she should have disclosed the names of her family members which has not been done. The election petition has been filed out of political vendetta.
4. It appears that Specified Officer/ SDO did not frame any issue and fix the case for recording of evidence of witnesses.
5. Election petitioner/respondent No.2 filed her affidavit under Order 18 Rule 4 CPC and claimed that Varun Pratap Singh was election agent in polling booth No.191, whereas Devraj Singh was election agent in polling booth No.192. As per the tabulation sheet, she was ahead by two votes and it was told by Presiding Officer that she would be given certificate of election in Janpad Panchayat Raipur Karchuliyan but under the pressure of petitioner/ respondent No.1, recounting was done without giving information to election petitioner/ respondent No.2 and later on, she came to know that in an ex parte recounting petitioner/ respondent No.1 has been declared as successful. Thereafter, an application for recounting was given and acknowledgment of the same is document No.1. Counting slips issued by authorized officer/ returning officer have been filed as documents No.2 & 3. Since no action was taken on the application for recounting, therefore W.P. No.15658/2022 was filed before the High Court and order of High Court is document Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 6 W.P. No.7755/2024 No.4 and thereafter application was given in compliance of order of High Court which is documents No.5 & 6.
6. The election petitioner/ respondent No.2 in her cross-examination admitted that she has filed an Election Petition before the Court but she was not in a position to disclose the date on which election petition was filed. She denied that she has not signed the election petition. She admitted that she was one of the candidates for the post of Sarpanch, Gram Panchayat. She also claimed that polling took place on 01/07/2022 and the counting also took place on the same date. However, she claimed that at the time of counting, she was not inside the counting booth, however her agents were present. The counting of both the polling booths took place simultaneously. She further stated that in one polling booth she got 21 votes, whereas in another polling booth she got 141 votes. She was unable to disclose the number of Writ Petition which she had filed before the High Court for recounting as well as the date on which such petition was filed. She was also unable to disclose the date on which she had given an application for recounting to the Returning Officer. She was unable to point out the details of the documents No. 5 & 6. Total six ladies had contested for the post of Sarpanch, out of which she could disclose the name of three persons and was unable to disclose the names of other candidates. She was unable to disclose that how many votes were received by petitioner/ respondent No.1 in polling booth No.191 and claimed that she had got 139 votes in polling booth No.1. She was unable to depose about the number of ballots which were declared illegal and clearly admitted that they were not declared illegal in her presence. She was also unable to disclose the total number of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 7 W.P. No.7755/2024 votes which were casted in polling booth No.191. She was also unable to disclose that how many votes were casted in polling booth No.192 and which candidate had got how many votes. She again admitted that she does not recollect the date on which she had moved an application for recounting before Chief Executive Officer, Janpad Panchayat Raipur Karchuliyan. She was also unable to disclose the number of votes which were received by petitioner/ respondent No.1. However, she admitted that petitioner/ respondent No.1 was declared winner by one vote. Later on, she claimed that she lost by one vote. She also stated that earlier she was declared winner by one vote and later on petitioner/ respondent No.1 was declared winner by one vote. She denied that the Returning Officer had given a certificate of election to her. She denied that the villagers did not cast their votes in her favour. She denied that the decision taken by the Returning Officer after the counting was correct. She denied that she has filed the election petition out of political vendetta. However, she claimed that since she was not satisfied with the counting, therefore she has filed the election petition.
7. The election petitioner/ respondent No.2 had stated in her evidence that Varun Pratap Singh and Devraj Singh were the counting agents.
8. In his affidavit filed under Order 18 Rule 4 CPC, Varun Pratap Singh has stated that he was the authorized agent of election petitioner/ respondent No.2 in polling booth No.191. As per the tabulation sheet of polling booth No.191, the election petitioner/ respondent No.2 was ahead by two votes and accordingly, it was stated by Returning Officer that the certificate of election will be given in Janpad Panchayat, Raipur Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 8 W.P. No.7755/2024 Karchuliyan. However, recounting was done under the pressure of petitioner/ respondent No.1 but no information was given to him about the recounting and later on he came to know that petitioner/ respondent No.1 has been given one vote more than the election petitioner/ respondent No.2. Immediately, he gave an application for recounting which has been filed as document No.1. However, no action was taken on the said application for recounting. Later on, an incorrect counting slip was given which has been filed as document No.2 & 3. Since Returning Officer had not taken any action on the application for recounting, therefore W.P. No.15658/2022 was filed and the order passed by the High Court has been filed as document No.4. Information was given to the Authorities vide applications filed as documents No.5 & 6 but no action has been taken and in spite of that petitioner/ respondent No.1 was declared as elected.
9. Varun Pratap Singh was cross-examined and in cross-examination he stated that total 7 persons had contested for the post of Sarpanch. There are two polling booths No.191 and 192. He was unable to disclose the number of votes received by the petitioner/ respondent No.1. He was present at the time of counting.
10. Election petitioner/ respondent No.2 had also filed an affidavit of Devraj Singh under Order 18 Rule 4 CPC who stated that he was the authorized agent of election petitioner/ respondent No.2 in polling booth No.192. As per the tabulation sheet of polling booth No.192, the election petitioner/ respondent No.2 was ahead by two votes and accordingly, it was stated by Returning Officer that the certificate of election will be given by Janpad Panchayat, Raipur Karchuliyan.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 9 W.P. No.7755/2024However, recounting was done under the pressure of petitioner/ respondent No.1 but no information was given to him about the recounting and later on he came to know that petitioner/ respondent No.1 has been given one vote more than the election petitioner/ respondent No.2. Immediately, he gave an application for recounting which has been filed as document No.1. However, no action was taken on the said application for recounting. Later on, an incorrect counting slip was given which has been filed as document No.2 & 3. Since Returning Officer had not taken any action on the application for recounting, therefore W.P. No.15658/2022 was filed and the order passed by the High Court has been filed as document No.4. Information was given to the Authorities vide applications filed as documents No.5 & 6 but no action has been taken and in spite of that petitioner/ respondent No.1 was declared as elected.
11. Devraj Singh was cross-examined by petitioner/ respondent No.1 who has stated that election petitioner/ respondent No.2 is the wife of his brother. However, he was unable to disclose the number of votes received by every candidate in polling booth No.192.
12. Petitioner/ respondent No.1 also entered in the witness box. She denied that any illegality was done in the counting. She further admitted that recounting was done for 4 to 5 times.
13. Returning/ authorised Officers were examined as Court witnesses. Dr. Tapan Kumar Singh has stated that in polling booth No.191, total 430 votes were casted and counting was done in a transparent manner. The tabulation sheet was also given in prescribed format. It was also stated that on an application filed by agent of election petitioner/ Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 10 W.P. No.7755/2024 respondent No.2 recounting was done for 4 times and the election petitioner/ respondent No.2 had got 139 votes, whereas petitioner/ respondent No.1 had got 29 votes. He has not acted in a biased manner. This witness was cross-examined by election petitioner as well as by petitioner/ respondent No.1. On cross-examination by election petitioner, he stated that he has not brought the diary which he had maintained as Returning Officer and has also not brought any record. He had already deposited his diary but did not make any effort to get it back. He specifically stated that he is unable to point out that what was written in the diary as the Returning Officer however claimed that he has stated in the examination-in-chief on the basis of his memory. He was given the training for recounting. He has specifically stated that after receiving the application for recounting, he has not mentioned the same in accordance with the prescribed format. He has also stated that immediately after counting was over, he had received the application for recounting. When he was asked as to whether he had decided the application of recounting in the prescribed format, he also admitted that he had not decided the application for recounting in prescribed format but had taken suggestions from the Sector Magistrate. He also admitted that he was Returning Officer and accordingly, he was authorized to conduct voting as well as counting. He denied that he did not conduct recounting and therefore, he did not take the record of the recounting on record. He also denied that under the pressure of the petitioner/ respondent No.1, he had manipulated the record. He was also not in a position to narrate that how many valid or invalid votes were casted. He also stated that invalid votes were mentioned in the prescribed format.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 11 W.P. No.7755/2024He also stated that since he has not brought the record, therefore he is not in a position to make a statement that how many votes were received by which candidate. He denied that he did not make an attempt to bring the record because it had come to light that he had manipulated the counting.
14. On cross-examination by petitioner/ respondent No.1, he claimed that he had conducted the election and voting in transparent manner. He also stated that election agent of the election petitioner/ respondent No.2 had given an application for recounting and accordingly, recounting was done for 4 times. The agents of all the candidates were satisfied with the recounting. The counting slips were given to the agents in prescribed format.
15. Ashok Kumar Patel was the Returning Officer of Polling Booth No.192. He stated that after the polling was over, counting was done in the polling booth itself. Total 387 votes were casted in polling booth No.192. The counting was done in accordance with law and the counting slip was given to the candidates in accordance with the format and their signatures were obtained. The election petitioner/ respondent No.2 made an application for recounting and accordingly, with the consent of the agents recounting was done for four times. The petitioner/respondent No.1 had received 132 votes, whereas election petitioner/respondent No.2 had received 21 votes. No manipulation was done by him. This witness was cross examined by the Election Petitioner/respondent No.2 as well as by petitioner/respondent No.1. He stated that today he has received an information through WhatsApp for his evidence but he has not brought any record from the office. He was Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 12 W.P. No.7755/2024 not in a position to state that how many votes were declared legal and illegal. He further admitted that he has no information regarding the procedure for recounting. He has stated that whenever an application is received, then recounting is done. He further stated that he has no information that whenever an application for recounting is received, then the acknowledgment of receipt is to be given and is to be recorded in the prescribed format. He further stated that he had received the diary, which was deposited by him in the office and did not make any effort to bring alongwith him. He further admitted that an application for recounting was received immediately after counting was done. Whether he had given any acknowledgment or not is not within his knowledge. However, thereafter he stated that he had given an acknowledgment but he did not take it on record. He further admitted that whenever an application for recounting is received, then it has to be decided as per the prescribed format but it was not done by him. On his own he explained that he was not aware of the said procedure. He further stated that he is not aware of the formats 76, 77 and 78. He admitted that he did not conduct any enquiry as per the election Rules. However, he said that he had taken action as per his information. He further admitted that the application for recounting, which has been filed alongwith Election Petition bears his signatures but he has not taken it on record. He further stated that he had prepared the counting slip as per the prescribed format but thereafter he explained that whatever format he had received, the counting slip was prepared on the same. When question was asked to him that he had acted contrary to the Election Rules, then he replied that whatever information was given to him in the training he had acted in Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 13 W.P. No.7755/2024 accordance with that. He denied that the Election Petitioner/respondent No.2 had won the election by two votes but later on under the pressure of the Prescribed Officer, he had changed the result. In cross- examination by the petitioner/respondent No.1, he stated that he had conducted the election and voting in a transparent manner. He did not manipulate the counting. After the application for recounting was received he did the recounting for four times and all the persons were satisfied with the recounting which was done for four times.
16. The Specified Officer/ SDO after considering the evidence led by the parties as well as pleadings of the parties, directed for recounting of votes in polling booth No.191 and 192.
17. Challenging the impugned order passed by the Specified Officer/ SDO, it is submitted by counsel for petitioner that it is well established principle of law that the secrecy of the votes should be maintained. No evidence was led by the election petitioner/respondent No.2 with regard to the illegal votes. Once the recounting was done for four times and nobody had raised any objection then it is clear that there was no interpolation with the counting. To buttress his contentions, counsel for petitioner has relied upon the judgment passed by the Supreme Court in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others reported in (1989) 1 SCC 526, Bhabhi Vs. Sheo Govind and Others reported in (1976) 1 SCC 687, Chanda Singh Vs. Choudhary Shiv Ram Verma and Others reported in (1975) 4 SCC 393 as well as the judgment by this Court in the case of Sampat Devi (Smt.) Vs. Sub-Divisional Officer-cum-Prescribed Authority, Niwadi and others reported in (2007) 3 MPHT 462, Hanumant Singh Vs. Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 14 W.P. No.7755/2024 State of M.P. and others reported in (2012) 3 MPLJ 191, Ganesh Ram Gayari Vs. Bagdiram and Others reported in (2013) 2 MPLJ 447.
18. Whereas, counsel for respondent No.2 has supported the findings given by the Specified Officer and submitted that the recounting has been directed on sound principles of law.
19. Heard learned counsel for the parties.
20. Before considering the material available on record, this Court would like to consider that on whom the burden to prove lies.
21. A Coordinate Bench of this Court in the case of Hanumant Singh (supra) has held as under:-
"20. In AIR 1993 SC 367, Shri Satyanarain Dudhani v. Uday Kumar Singh and others it has been held that secrecy 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 v. Krishan Pal and others it was held that the onus of proof on the basis of proper pleading is on the election petitioner. It is further held that the degree of proof must be of very high standard to annul an election or for direction for recounting. Evidence beyond pleading is held to be impermissible in (2004) 6 SCC 341, M. Chinnasamy v. K.C. Palanisamy and others. The same view is taken by the Apex Court in (1999) 9 SCC 386, Jeet Mohinder Singh v. Harminder Singh Jassi. Thus, on the basis of aforesaid principle of law laid down, it is now required to Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 15 W.P. No.7755/2024 be examined whether the Election Tribunal has rightly passed the impugned order?
The election petitioner pleaded in the election petition that 15 valid votes which were cast in favour of the election petitioner were shown as invalid and cancelled and few votes of election petitioner were added in the votes received by the returned candidate/present petitioner and 10 invalid votes were added in favour of the returned candidate/present petitioner, thereby showing 324 votes cast in favour of the present petitioner whereas 302 votes were shown in favour of the election petitioner. It is further pleaded in the election petition that the candidates were not shown the votes even from a distance but in the same breath it is stated in para 5 that the votes which were declared as illegal were seen by the election petitioner and other candidates.
It is further pleaded that an application in this regard containing objections was submitted before the Returning Officer.
The election petitioner in his cross- examination stated that at the time of filing of objections (Ex.P/3), three persons namely, Pawan, Gajendra and Parmanand were present and no body else on behalf of the petitioner was present at the time of counting. He further admitted that in Ex.P/3 he only made a request for recounting and did not mention about mixing of cancelled votes or adding the votes casted in favour of election petitioner in the votes received by the present petitioner (Hanumant Singh). Aforesaid Pawan also entered the witness box and stated that he was standing at a distance of only 2 mtrs. from the place of counting. He was in a position to see the votes and the seal marked on the votes was clearly visible. He then stated that 10-15 correct votes were rejected and at this Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 16 W.P. No.7755/2024 stage he called his candidate (election petitioner). He further stated that the objection (Ex.P/3) and Panchnama was handed over to which authority is not within his knowledge.
Gajendra also entered the witness box and stated that counting of votes was clearly visible. He stated that no complaint was made but later improved and stated that it was made after complaint of counting. He stated that the contents of complaint (Ex.P/3) and Panchnama is not known to him.
Parmanand entered the witness box and stated that contents of complaint (Ex.P/3) is not known to him."
22. The Supreme Court in the case of R. Narayanan Vs. S. Semmalai and others reported in (1980) 2 SCC 537 has held that low margin of vote alone cannot be a ground for setting aside the election or counting process.
23. A Coordinate Bench of this Court in the case of Rani Maraskole Vs. State of M.P. and Others reported in 2016 (2) MPLJ 457 has also held that low margin of vote by itself cannot be a sole ground for recounting.
24. The Supreme Court in the case of Chanda Singh (supra) has held as under:
"8. Hegde, J., in Shashi Bhushan case [Shashi Bhushan v. Balraj Madhok, AIR 1972 SC 1251 :
(1972) 2 SCR 177] made certain observations which are of great moment. For instance, allegations were made in that case in support of the prayer for a recount which, according to the opposite party, had not been raised at the time of the counting of the votes. The learned Judge disposed of this contention as follows:Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 17 W.P. No.7755/2024
"Assuming that the persons concerned did not inform the Assistant Returning Officer of what they had observed, it does not estop the election petitioners from taking the pleas in question in the election petitions though undoubtedly it is a circumstance to be considered on the question of the value to be attached to the allegations made regarding the observations said to have been made at the time of the counting.
Assuming that the conclusion reached by the election petitioners was the result of not merely observing certain facts at the time of the counting but on the basis of various circumstances, some of which came to their notice before the election, some at the time of the counting and some after the counting, that by itself is not sufficient to brush aside the allegations.
It is true that merely because someone makes bold and comes out with a desperate allegation, that by itself should not be a ground to attach value to the allegation made. But at the same time serious allegations cannot be dismissed summarily merely because they do not look probable. Prudence requires a cautious approach in these matters. In all these matters, the Court's aim should be to render complete justice between the parties. Further, if the allegations made raise issues of Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 18 W.P. No.7755/2024 public importance, greater care and circumspection is necessary.
These cases have peculiar features of their own. No such case had come up for decision earlier. Hence decided cases can give little assistance to us. In a matter like allowing inspection of ballot papers, no rigid rules have been laid down, nor can be laid down. Much depends on the facts of each case. The primary aim of the courts is to render complete justice between the parties. Subject to that overriding consideration, courts have laid down the circumstances that should weigh in granting or refusing inspection. Having said that much let us now examine the cases read to us on behalf of the appellants."
On all hands, it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence.
We would only like to stress that in the whole process, the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer. We may even say that no winning candidate should be afraid of recount and, conditions as they are, a sceptical attitude expecting the unexpected may be correct, informed of course by the broad legal guidelines already set out. Who knows, if infirmities are indicated by evidence, what the result of recount will be? It lies buried in the womb of the sealed Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 19 W.P. No.7755/2024 boxes and cannot, therefore, be demonstrated without a second judicial inspection. To set the records straight it may be proper to refer to the ruling in Malaichami case [P. Malaichami v. M. Ambalam, (1973) 2 SCC 170 : (1973) 3 SCR 1016] which affirmed a recount ordered by the High Court. The very recent judgment on recount in Beliram Bhalaik case [Beliram Bhalaik v. Jai Beharlal Khachi, (1975) 4 SCC 417] flows along the same current."
25. The Supreme Court in the case of Sheo Govind (supra) has held as under:-
"15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 20 W.P. No.7755/2024
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.
* * *
17. Finally there were intrinsic circumstances in this case which went to show that unless the respondent was able to place cogent materials this was not a case for allowing sample inspection at all. In the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under Rule 63 of the Conduct of Elections Rules, 1961. The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by Returning Officer, if his attention was drawn to those facts by an application made under Rule 63 of the Conduct of Elections Rules, 1961.
Secondly the learned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No serial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 21 W.P. No.7755/2024 alleged to have been wrongly rejected given by the respondent. Even the segment in which the irregularity had occurred was not mentioned in the petition. We, however, refrain from making any further observation as to what would be the effect of non-disclosure of these particulars because we intend to remit the case to the learned Judge for rehearing the matter and deciding the application for inspection. What appears to have weighed with the Judge is the solitary circumstance that the appellant had succeeded by a narrow margin and that was a sufficient ground for ordering sample inspection. We are, however, unable to agree with this broad statement of the law by the learned Judge because if a person is duly elected even by a narrow margin of votes there is no presumption that there has been illegality or irregularity in the election. This is a fact which has to be proved by a person who challenges the election of the duly elected candidate. After all in a large democracy such as our's where we have a multi-party system, where the number of voters is huge and diverse, where the voting is free and fair and where in quite a few cases the contest is close and neck to neck, a marginal victory by a successful candidate over his rival can sometimes be treated as a tremendous triumph so as to give a feeling of satisfaction to the victorious candidate. The Court cannot lightly brush aside the success of the duly elected candidate on an election petition based on vague and indefinite allegations or frivolous and flimsy grounds."
26. Thus, it is clear that unless and until there is cogent evidence to show that manipulation was done while counting the votes, recounting cannot be directed in lighter manner because it is paramount duty to maintain the secrecy of votes casted by the voters.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 22 W.P. No.7755/202427. Rule 77 of Rules, 1995 reads as under:-
"77. Counting of votes. - (1) Every ballot paper which is not rejected under rule 76 shall be counted :
Provided that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted.
(2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorised by him, shall make the entries in part-
one of form 16, 17, 18 and 19 of the result sheet for Panch, Sarpanch, members of Janpad Panchayat and Zila Panchayat respectively and announce the total number of votes polled by each candidate.
(3) All valid ballot papers shall be bundled together and kept along with the bundle of rejected ballot papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely :-
(a) the number of the ward and name of Gram Panchayat in case of election of Panch, the name of Gram Panchayat in case of election of Sarpanch, the number of constituency of Janpad Panchayat or Zila Panchayat as the case may be, in case of election of member of Janpad Panchayat or Zila Panchayat;
(b) the number and name of the polling station where the ballot papers have been used; and
(c) the date of counting.
(4) The Returning Officer or the Officer authorised by him shall furnish to every candidate or his counting agent, present at the close of the counting, a true copy of the relevant Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 23 W.P. No.7755/2024 result sheet prepared under sub-rule (2) after obtaining a receipt there for and shall also attest it as a true copy."
28. Form 17 of Rules, 1995 reads as under:-
PART ONE FORM-17 [See rule 77 (2)] RESULT OF COUNTING OF VOTES FOR ELECTION OF SARPANCH OF GRAM PANCHAYAT ......................
Polling Station Number of wards
Number .............. included .....................
S.No. Name of No. of valid votes
candidate cast in favor of the
candidate
(1) (2) (3)
No. of valid votes ........................ No. of rejected votes .................... No. of Votes polled ..................... Place of counting ............... Date .............................. ..............................
Returning Officer (Panchayat/ officer authorised by returning Officer (Panchayat) PART TWO BLOCK LEVEL FORM 17 [See rule 77(2) and 80 (8)] Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 24 W.P. No.7755/2024 RESULT OF COUNTING OF VOTES FOR ELECTION OF MEMBER OF GRAM PANCHAYAT ............
Block ................ Total No. of Polling Stations included .........
S.No. Name of valid votes cast in favour of the Total candidate candidate Polling Polling Polling Polling Polling Station Station Station Station Station No. .... No....... No....... No....... No.......
(1) (2) (3) (4) (5) (6) (7) (8) A. Total No. of valid votes in Gram Panchayat............................ B. Total No. of rejected votes in Gram Panchayat....................... C. Total No. of votes polled in Gram Panchayat.......................... Place of counting ........................ Date ......................................... ...........................
Returning Officer (Panchayat/ officer authorised by returning Officer (Panchayat)
29. Therefore, it is clear that after the counting is done, the Returning Officer has to make entry in part 1 of Form 17.
30. Varun Pratap Singh and Devraj Singh have specifically stated in their evidences that counting slips given by the Returning Officer are documents No.2 & 3. This fact has not been denied by any of the Presiding Officer or by the petitioner/ respondent No.1. From recounting slip of polling booth No.191, which has been filed as document No.2, it Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 25 W.P. No.7755/2024 is clear that it is not in Form 17 and the said counting slip (document No.2) is on a plain paper.
31. Dr. Tapan Kumar Singh was the Returning Officer of polling booth No.191. He has not denied his signatures on the counting slip (document No.2). Furthermore, at the bottom of the counting slip (document No.2), the seal of the authorized officer has been affixed in which the polling booth number has been mentioned as 91 and not 191, although at the top of the said plain paper, the polling booth number has been mentioned as 191. Why Dr. Tapan Kumar Singh issued the counting slip on a plain paper and not in Form 17 as required under Rule 77(2) of Rules, 1995 has not been explained by him.
32. Thus, it is clear that the Authorized Officer of polling booth No.191 namely, Dr. Tapan Kumar Singh had not issued the counting slip as per Form 17 as required under Rule 77(2) of Rules, 1995. Under these circumstances, it is clear that Dr. Tapan Kumar Singh had violated the provisions of Rule 77(2) of Rules, 1995.
33. It is submitted by counsel for petitioner that the Specified Officer/ SDO has wrongly put the burden of prove on the Authorized Officer, whereas the burden of prove is on the election petitioner to prove that the counting was not done in accordance with law. It is submitted that since the election petitioner/ respondent No.2 has not stated anything about the non-issuance of counting slip in Form 17, therefore it cannot be held that the counting slip issued on a plain paper was contrary to Rules.
34. Considered the aforesaid submissions made by counsel for the petitioner.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 26 W.P. No.7755/202435. Neither petitioner nor the election petitioner/respondent No.2 have filed the deposition sheet of Varun Pratap Singh and Devraj Singh, therefore during the course of arguments, an impression was given that it is the election petitioner/ respondent No.2 who had entered in the witness box in support of her election petition only but while going through the record, it was found that Varun Pratap Singh and Devraj Singh have also submitted their affidavits under Order 18 Rule 4 CPC and they were cross-examined by petitioner/ respondent No.1. This fact is also clear from the order sheet dated 30/06/2023 written by specified Officer/ SDO, Tehsil Raipur Karchuliyan, District Rewa. Thus, it is clear that Varun Pratap Singh and Devraj Singh, who were election agents of election petitioner/ respondent No.2 and were present at the time of counting of the votes, were the important witnesses because the election petitioner/ respondent No.2 had specifically stated that she was not present inside the polling booth at the time of counting. Therefore evidence of Varun Pratap Singh and Devraj Singh assumes importance. Further, counsel for election petitioner/respondent No.2 also did not argue the case on the ground of violation of Rule 80 of Rules, 1995. Further, after going through the evidence led by the parties this Court found that there appears to be violation of Rule 80 of Rules, 1995 which shall be considered in the coming paragraphs.
36. Varun Pratap Singh and Devraj Singh have proved the counting slip given by the Authorized Officer of polling booth No.191 and once that document was proved, then it was obligatory on the part of the petitioner/ respondent No.1 or the Authorized officers who had conducted the counting to dispute the same. Neither petitioner/ Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 27 W.P. No.7755/2024 respondent No.1 nor Authorized Officer have filed the copy of the counting slip issued by Authorized Officer of polling booth No.191 in accordance with Form 17 as required under Rule 77(2) of Rules, 1995. Although the photocopies of the counting slips have been filed by election petitioner/ respondent No.2 but since no objection was raised with regard to their admissibility either before Authorised Authority/ SDO and before this Court, then it is held that since objection relating to mode of proof can be waived by a party and their genuineness has also not been disputed, therefore the same are read in evidence.
37. Thus, it is clear that the election petitioner/ respondent No.1 has successfully established that counting slip was not issued by the Authorized Officer of polling booth No.191 in prescribed Form 17 as required under Rule 77(2) of Rules, 1995. Therefore, it is clear that Dr. Tapan Kumar Singh who was Authorized Officer of polling booth No.191 had not acted in accordance with election laws and rules and thus, it is held that the issuance of counting slip on a plain paper coupled with the fact that Dr. Tapan Kumar Singh has not denied his signatures on counting slip which has been filed as document No.2 as well as the fact that below his signatures he has mentioned the polling booth No.91 in place of 191, it is clear that the counting of polling booth No.191 was not done in accordance with law.
38. Furthermore, Varun Pratap Singh and Devraj Singh who have appeared as witnesses of election petitioners have specifically stated that they had made an application for recounting and acknowledgment of the same was given but no action was taken and initially the election petitioner/ respondent No.2 was declared winner by two votes but later Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 28 W.P. No.7755/2024 on in an ex parte recounting, petitioner/ respondent No.1 was declared winner by one vote.
39. Dr. Tapan Kumar Singh has specifically stated that he did not dispose of the application for recounting in accordance with law but denied that since he had not done recounting, therefore number of votes found in recounting were not taken on record.
40. In cross-examination by counsel for petitioner/ respondent No.1, Dr. Tapan Kumar Singh stated that he had done recounting for four times. This statement by itself is sufficient to create a doubt on the veracity of the recounting done by Dr. Tapan Kumar Singh. Under what circumstances, recounting was done by four times, have not been clarified.
41. Furthermore, there is nothing on record to suggest that before conducting recounting, the application for recounting was ever decided by Dr. Tapan Kumar Singh.
42. Furthermore, Rule 80 of Rules, 1995 deals with recounting which reads as under:-
"80. Recount of votes. - (1) Alter an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under sub-rule (2) of Rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which he demands such recount.
(2) On such an application being made the Returning Officer or such other officer Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 29 W.P. No.7755/2024 authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(3) Every decision of the Returning Officer or such other officer authorised by him, under sub-rule (2) shall be in writing and contain the reasons therefor.
(4) If the Returning Officer or such other officer authorised by him, decides under sub-
rule(2) to allow an application either in whole or in part, 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 by each candidate has been announced under sub-rule (2) of Rule 77 or sub-rule (4), the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter :
Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1).
(6) The counted ballot papers shall be bundled and kept in the manner mentioned in sub-rule (3) of Rule 77.
(7) Result sheets in Forms 16, 17, 18 and 19 for Panch, Sarpanch, Member of Janpad Panchayat and Member of Zila Panchayat respectively, prepared by such other officers as Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 30 W.P. No.7755/2024 are authorised by the Returning Officer, shall be submitted by them, in separate envelops to the Returning Officer for compilation and tabulation of votes polled by each candidate.
(8) The Returning Officer on receipt of result sheets under sub-rule (7) shall enter or cause to be entered the total number of votes polled by each candidate contesting for a seat of Panch, Sarpanch, member of Janpad Panchayat or member of Zila Panchayat at each polling station of the concerned constituency in subsequent part or parts of Form 16, 17, 18 and 19 respectively and complete and sign the result sheet."
43. From plain reading of Rule 80(1) of Rules, 1995, it is clear that after announcement is made by Returning Officer or such officer authorized by him as per the provisions of Rule 77(2) of Rules, 1995 a candidate or his election agent or counting agent may apply in writing to the Returning Officer or such officer authorized by him for recount stating the grounds on which he demand such recount. Rule 80(2) of Rules, 1995 provides that on such an application being made, the Returning Officer or such other officer authorized by him shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Rule 80 sub-rule (3) of Rules, 1995 provides that every decision of the Returning Officer or such officer authorized by him shall be in writing and contain the reasons thereof. Rule 80(4) of Rules, 1995 provides for recounting and Rule 80(5) of Rules, 1995 provides that after the total number of votes polled by each candidate are announced under Rule Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 31 W.P. No.7755/2024 77(2) or under Rule 80(4) of Rules, 1995, no application for recounting shall be entertained thereafter.
44. Thus, it is clear that recounting can be done in the following circumstances:-
(i) After counting is done, the Returning Officer or the Authorized Officer shall announce the result as per Rule 77(2) of Rules, 1995 in prescribed format which is Form 17 in the present case.
(ii) After such announcement, the candidate or his polling agent or counting agent may file an application for recount.
(iii) The Returning Officer or the Officer authorized by him shall decide the matter and may allow or partially allow or reject the application for recount.
(iv) Every decision in this regard has to be in writing.
(v) If the application for recounting is allowed, then recounting shall be done.
(vi) After recounting, result shall be declared and further no application for recount shall be entertained thereafter.
45. If the facts and circumstances of the case are considered in the light of Rule 77 and Rule 80 of Rules, 1995, then it is clear that only once the calculation sheet was prepared and it has to be presumed that it was after the counting.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 32 W.P. No.7755/202446. Admittedly, an application for recount was given immediately after the result was declared. For polling booth No.191, the result was not declared in prescribed Form 17 as required under Section 77(2) of Rules, 1995. Application was given immediately. Admittedly, no decision was taken by the Returning Officer or the Officer authorized by him on the application filed for recounting. No written order in this regard was given.
47. According to the election petitioner/ respondent No.2, no recounting was done in her presence and no decision was taken on the application filed for recounting, whereas according to the petitioner/ respondent No.1 as well as Authorized Officer Dr. Tapan Kumar Singh, the recounting was done for four times which again was contrary to Rule 80(5) of Rules, 1995.
48. Rule 80(5) of Rules, 1995 provides that recounting shall be done only once and no further application shall be entertained. Why the recounting was done in the present case for four times and if it was done then every time, a tabulation sheet should have been prepared in Form 17 but it is neither the case of petitioner/ respondent No.1 nor the case of Authorized Officer that separate tabulation sheet was prepared in Form 17 as required under Rule 77(2) of Rules, 1995.
49. Thus, it is clear that the Authorized Officer of polling booth No.191 committed material illegality in counting the votes and also committed material illegality by not taking any decision on the application filed for recounting and also material illegality by not preparing the result of every recount and also committed material illegality by recounting the votes by four times. Furthermore, the Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 33 W.P. No.7755/2024 tabulation sheet of counting was not issued in Form 17 of Rule 77(2) of Rules, 1995, therefore it is held that the counting and so called recounting of votes casted in polling booth No.191 was not in accordance with law. Thus, the specified Officer/ SDO did not commit any mistake by directing for recount of votes of polling booth No.191.
50. So far as the evidence of Ashok Kumar who was authorized officer of polling booth No.192 as well as evidence of petitioner/ respondent No.1 with regard to polling booth No.192 is concerned, except that the computation sheet of counting was issued in Form 17 as prescribed under Rule 77(2) of Rules 1995, all the other mistakes which were committed by Dr. Tapan Kumar Singh in respect of polling booth No.191 are identical. Ashok Kumar has admitted that an application for recounting was given. He admitted that he did not decide the application. There is nothing on record that as per the provisions of Rule 80(2)(3) of Rules, 1995 the said application was decided. No written order in that regard was passed. Even Ashok Kumar has admitted that recounting was done for four times, whereas as per Rule 80(5) of Rules, 1995, recounting can be done only once and no further application for recounting can be entertained. Except that there is no mistake in the booth number as well as first counting slip was issued in Form 17 all other reasons for directing for recount of votes casted in polling booth No.191 would apply to the polling booth No.192 also.
51. Under these circumstances, this Court is of considered opinion that Specified Officer/ SDO Raipur Karchuliyan did not commit any mistake by directing for recounting.
Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM 34 W.P. No.7755/202452. Under these circumstances, this Court is of considered opinion that since no jurisdictional illegality was committed by Specified Officer/ SDO Raipur Karchuliyan, District Rewa, accordingly, no case is made out warranting interference.
53. Petition fails and is hereby dismissed.
54. It is directed that Specified Officer shall himself conduct the recounting and shall not delegate his Authority to any other Committee or person.
(G.S. AHLUWALIA) JUDGE S.M. Signature Not Verified Signed by: SHUBHANKAR MISHRA Signing time: 07-May-24 7:02:47 PM