Madhya Pradesh High Court
Richa vs Smt. Sushila Singh on 27 June, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 27th OF JUNE, 2023
WRIT PETITION NO.8388/2023
BETWEEN:-
RICHA W/O BRAJRAJ SINGH, AGED ABOUT 35
YEARS, SARPANCH GRAM PANCHAYAT
GIRUARI SAGRAN, JANPADH PANCHAYAT
NAYGADI TEHSIL NAYIGADI, DISTRICT REWA
R/O. GRAM PANCHAYAT GIRUARI SAGRAN,
JANPAD PANCHAYAT NAYIGADI TESHIL
NAYIGADI DISTRICT REWA (M.P.)
.....PETITIONER
(BY SHRI VIPIN YADAV - ADVOCATE)
AND
1. SMT. SUSHILA SINGH, W/O.RAJBHAN
SINGH AGED ABOUT 62 YEARS, GRAM
PANCHAYAT GIRUARI SAGRAN, JANPAD
PANCHAYAT NAYIGADI, TEHSIL NAYIGADI,
DISTRICT REWA (M.P.)
2. KAVITA SINGH, W/O. SURENDRA SINGH,
R/O GRAM PANCHAYAT GIRUARI SAGRAN,
JANPAD PANCHAYAT NAYIGADI, TEHSIL
NAYIGADI, DISTRICT REWA (M.P.)
3. PARMILA SHARMA, W/O. KARUNESH
SHARMA, R/O NIVI LAKHAN KHORIAN
GRAM PANCHAYAT GIRUARI SAGRAN,
JANPAD PANCHAYAT NAYIGADI, TEHSIL
NAYIGADI, DISTRICT REWA (M.P.)
4. RANJANA PANDEY, W/O. NARENDRA
PANDEY, R/O GRAM NEEBLGRAM
PANCHAYAT GIRUARI SAGRAN, JANPAD
2
PANCHAYAT NAYIGADI, TEHSIL NAYIGADI,
DISTRICT REWA (M.P.)
5. ALKA SINGH W/O UMESH SINGH, R/O
NEEBI GRAM PANCHAYAT GIRUARI
SAGRAN, JANPAD PANCHAYAT NAYIGADI,
TEHSIL NAYIGADI, DISTRICT REWA (M.P.)
6. SHILPI SHARMA W/O. ANIL SHARMA, R/O.
NEEBI GRAM PANCHAYAT GIRUARI
SAGRAN, JANPAD PANCHAYAT NAYIGADI,
TEHSIL NAYIGADI, DISTRICT REWA (M.P.)
7. SWATI SINGH W/O. RAHUL SINGH, R/O.
NEEBI GRAM PANCHAYAT GIRUARI
SAGRAN, JANPAD PANCHAYAT NAYIGADI,
TEHSIL NAYIGADI, DISTRICT REWA (M.P.)
8. TERSI PRAJAPATI W/O RAMKRIPAL
PRAJAPATI R/O GRAM PANCHAYAT
GIRUARI SAGRAN, JANPAD PANCHAYAT
NAYIGADI, TEHSIL NAYIGADI, DISTRICT
REWA (M.P.)
9. TEHSILDAR NAYIGADI, DISTRICT REWA
(M.P.)
10 CHIEF EXECUTIVE OFFICER, JANPAD
PANCHAYAT NAYIGADI DISTRICT REWA
(M.P.)
11. ASSISTANT RETURNING OFFICER JANPAD
PANCHAYAT NAYGADI, DISTRICT REWA
(M.P.)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI AJAY PAL SINGH - ADVOCATE)
................................................................................................................................................
Reserved on: 19.06.2023
Pronounced on: 27.06.2023
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
ORDER
3 Of a note, earlier record of the Election Tribunal was called, however, looking to the issue involved in the matter; the contentions of the parties and the willingness of learned counsel for the parties to argue the matter, I firmly find that this petition can be heard and decided finally without the record. Ergo, the petition is heard finally.
2. By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the order dated 28.03.2023 passed by the Sub Divisional Officer, Sub Division Mauganj District Rewa thereby wholly decided the election petition whereas the petitioner had moved an application questioning the maintainability of election petition. Instead of deciding the application, SDO decided the election petition finally holding that the conduct of Returning Officer was de hors the law. It is observed by SDO that the Returning Officer should have accepted the request made by the election-petitioner for recount of votes.
3. Learned counsel for the election-petitioner submitted that the election petition cannot be decided without framing the issues; recording the evidence of the parties and giving opportunity for cross- examining the witnesses, if any. Therefore, the manner in which election petition has been decided is absolutely contrary to law. Thus, the instant petition has been filed. Pointing out various decisions of this Court, learned counsel submitted that the impugned order being illegal, deserved to be set aside.
4. In contrast, learned counsel appearing for respondent No.1 while opposing the submissions made on behalf of the petitioner, submitted that nothing illegal has been done by SDO in holding that the Returning Officer acted arbitrarily by not accepting the request of the election-petitioners for recount of votes and as such Returning Officer 4 has violated the mandatory provisions of law and rightly found that request for recount of votes ought to have been allowed. He further submitted that the order of SDO is infallible inasmuch as the election petition involved a singular point 'whether the application for recount of votes should have been accepted or not. Sanguinely, he submitted that when the election petition was based on singular point, it was not incumbent upon SDO to adhere to provisions of law, like framing the issues; recording statement of witnesses, etc. He propounded that no prejudice would have been caused, had recounting of votes got done inasmuch as if petitioner secured maximum votes in reality, then definitely would be declared 'winning candidate'. Lastly, he submitted that need of hour on the face of fairness in election, demanded recount of votes and thus SDO has rightly ordered so.
5. Patiently, I have heard the submissions of learned counsel for the rival parties and meticulously perused the documents available on record.
6. Indeed, the sole question which is drifted towards the surface for adjudication is 'whether the election petition can be decided finally directing recount of votes without framing the issue and without recording the evidence of the parties'.
7. At this juncture, I would profitably like to go-through the decision of this Court, relied upon by learned counsel for respondent No.1, in re Rakib Mohammad v. The District Collector and Ors. AIR 2003 MP 39, wherein, in a petition filed under Article 226/227 of the Constitution of India sought to quash the order passed by the Collector, who allowed the election petition directing recount of votes cast in polling booth of Ward No.1, Janpad Panchayat Gairatganj.
58. Obviously, it is not in dispute that the election petition can very well be decided by the Tribunal directing the Returning Officer to recount the votes by allowing the application filed for such purpose. However, in the aforesaid case, going deep into the order of Collector, it reveals that the election petition was decided after recording the evidence of both the parties. To make it evident, paragraph 3 of the said decision is reproduced hereunder:-
"3. Claim of Jinesh Singhai is that while counting was in progress, electricity failed thrice but counting was continued in the candle light which was insufficient. This resulted in wrong counting. He objected and claimed recounting of votes in writing immediately after announcement of counting under Rule 80(1) of 1995 Rules but he was not heard. While Raqib Mohammad claims that at the most discrepancy was of three votes only in ballot paper account of Booth No.50 which was not material and did not affect the result declared. He has alleged that 31 invalid votes of Booth No.47 were not considered while tallying the account. There existed no real discrepancy. Smt. M.D. Dahiya, Presiding Officer of Booth No.47 had explained the discrepancy. Collector, after recording the evidence of both the sides, held that there existed discrepancy of 34 votes between the number given in the ballot paper account in Form-15 and the number of votes of which result was declared in Form-18 and ordered recount."
(emphasis supplied)
9. Thus, on the fulcrum of the submissions of learned counsel for respondent No.1 and the decision on which reliance has been placed, I do not find that it would succour respondent No.1 in any way. Conversely, the decision, on which learned counsel for the petitioner has placed reliance, rendered in W.P.No.6141/2015 (Prema Bai v. Sunita Bai) deals with akin issue and the Court has observed that the issue of 6 recount of votes cannot be ordered on mere pleadings and that can be done only after recording the evidence of the parties. I feel it apposite to quote the observations made in the said decision, as under:-
"Learned counsel for respondent No.1 who is the main contesting respondent has submitted that in case if this court finds any error in the order of the SDO, then the direction be issued to the SDO to permit the parties to lead evidence and pass a fresh order within a time bound period.
Having heard the learned counsel for parties and on the perusal of the record, it is noticed that undisputedly the SDO has passed the impugned order directing recounting of the votes without recording any evidence by the parties. The petitioner has raised certain objections in respect of the maintainability of the election petition, but the said objections have also note been decided.
This count in the matte of Darbar Singh Vs. Principal Secretary and others by orderdated 12/3/2014 passed in WP No.8760/2013 while considering the similar issue has held as under:-
"Having heard the learned counsel for parties and on the perusal of the record, it is found that the SDO has passed the order dated 29/6/2013 directing recounting of the vote on the basis of the affidavits of the witnesses filed before him without permitting the parties to cross examine the same. This Court in the matter of Rameshchandra Bhilala Vs. Bashir and others reported in 2011 (II) MPWN 12 has taken a view that the recount of the ballet papers affects the secrecy of ballets which is sacrosanct, therefore, the same cannot be ordered without evidence. The division bench of this Court in the matter of Rameshchandra (supra) has held:- "6. Having heard the learned counsel for the parties, we find no merit in this writ appeal.
7. On going through the order dated 20.4.2010 by which recounting has been ordered by the Sub-Divisional Officer we find that the recounting has been ordered by 7 a cryptic order, in violation of the law laid down by the Supreme Court in the case of Udey Chand v. Surat Singh (supra) as also by this court in the cases of Kailash Singh v. Narayan Singh (supra) and Udey Singh v. Himmat Singh (supra). The Supreme Court in the case of Udey Chand v. Surat Singh (supra) has held that since an order for inspection and re-count the ballot papers affects the secrecy of ballot, and as in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out, such an order cannot be made as a matter of course. Before an Election Tribunal can permit scrutiny of ballot papers and order recount, 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 the material facts on which the allegations of irregularity or illegality 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.
8. In the case of Kailash Singh v. Narayan Singh (supra) it has been held by this Court that recounting of votes cannot be ordered on mere pleadings. There should be contemporaneous evidence to support order of recount. The order of recounting of votes if passed without any evidence it can be interfered into by this Court in writ petition under Article 227 of the Constitution of India. In the case of Uday Singh V. Himmat Singh (supra), it has been held by this Court that no re-counting can be ordered on mere asking, issue should have been framed and after recording the evidence the matter should have been decided".
Considering the entire circumstances of the case, the judgment noted and also the nature of the order which has been passed by the SDO, it is found that in view of the settled legal position, the impugned order of the SDO cannot be sustained and is accordingly hereby set 8 aside with a direction to the SDO to permit the parties to cross examine the witnesses whose affidavits have been filed in support of their respective pleas, thereafter pass a fresh order considering the evidence led by the parties in respect of the application of the respondent No.2 for recounting of the votes. Let this exercise be completed within a period of three months from the date of receipt of certified copy of this order".
Keeping in view the aforesaid position of law and considering the circumstances of the present case especially the fact that the impugned order of recount has been passed permitting the parties to lead evidence, the impugned order cannot be sustained and is hereby set aside with a direction to the SDO to give an opportunity to the parties to lead evidence and also to decide the petitioner's preliminary objection against the election petition and pass a fresh order in accordance with law within a period of three months from the date of receipt of certified copy of this order."
(emphasis supplied)
10. Similarly, in re Kalka Prasad v. Ramji Lal and Ors. 2002(3) MPHT 547, the Court has also dealt with akin issue and came to observe as under:-
"6. It is further averred by the petitioner that apart from the aforesaid objection, on 6-1-99 the petitioner had submitted an application Annexure P-5 making a prayer that issues be framed and evidence be recorded. However by order dated 6-1-99 (Annexure P-6) this prayer was rejected and the Election Tribunal held that the petition can be disposed of on the basis of record of election and arguments. Accordingly issues were not framed and no evidence was recorded. This according to the learned Counsel for the petitioner vitiates the entire proceedings of the Election Petition.
11. The Tribunal had no jurisdiction or authority to entertain the petition as it was filed beyond the period prescribed for filing of an election petition. In these circumstances the learned Election Tribunal should have 9 dismissed the petition. Apart from this, the order Annexure P-6 rejecting the application for framing of issues and recording of evidence was also unsustainable in law. The Supreme Court in the case of Makhan Lal Bangal v. Manas Bhunia and Ors., (2001) 2 SCC 652, has held that in an election trial evidence has to be adduced and issues are also to be framed. It has been held by the Supreme Court in the aforesaid case that trial of an election petition is like a civil trial and framing of issues and recording of evidence are necessary for the proper adjudication of the dispute. It has been observed in the aforesaid case as under :--
"An election petition is like a civil trial, the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pin-points into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned Counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their Counsel are bound to assist the Court in the process of framing of issues. Duty of the Counsel does not be little the primary obligation cast on 10 the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."
Similar views have been taken by this Court in the case of Hari Singh v. Anwar Khan and Ors., 2001(1) MPJR SN 6.
12. From the aforesaid it is clear that the order Annexure P-6 rejecting the application of the petitioner for framing of issues and recording of evidence is also unsustainable. Considering the aforesaid the petition has to be allowed. The order Annexure P-1, dated 18-1-99 and order Annexure P-6, dated 6-1-99 are quashed."
11. Over and above, in W.P.No.27091/2022 (Smt. Rashmi v. Smt. Bharti & Ors.) this court has also decided similar issue as at hand taking note of provisions of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 and came to observe that without framing issue(s) and affording opportunity to the parties to lead evidence, entire proceeding stands vitiated.
1112. Juxtaposing the enlightened observations made by the Courts on different occasions, as cited above, with the fact-situation of the case at hand, I, on mature consideration, too find that if any election petition is filed under Section 122 of Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, it is incumbent upon the Election Tribunal to decide the election petition, as is done in civil jurisprudence, after framing the issue(s) and giving opportunity to the parties to lead evidence. Failure in adhering to the required procedure while deciding the election petition, would definitely lead such order or proceedings initiated therein to grave illegality.
13. In view of the above discourse, I allow this petition and set aside the impugned order dated 28.03.2023 passed by SDO remitting the matter to the Election Tribunal for deciding the application of the petitioner for dismissal of election petition on the ground of maintainability and if so required, frame the issue(s) and also give opportunity to the parties to lead evidence and then pass final order in the election petition.
14. The parties are directed to appear before the Election Tribunal on 03.07.2023.
15. Let the entire exercise thereafter be completed within a period of four months from the date of appearance of the parties.
16. With the aforesaid direction, the petition stands disposed of.
(SANJAY DWIVEDI)
JUDGE
27.06.2023
sudesh SUDESH KUMAR
SHUKLA
2023.06.28 16:27:40
+05'30'