Rajasthan High Court - Jaipur
Jagdish vs Chandgi And Anr. on 7 November, 1997
Equivalent citations: 1998(2)WLC114, 1997(2)WLN588
JUDGMENT N.L. Tibrewal, J.
1. The petitioner herein was elected to the post of Sarpanch of Gram Panchayat Anoopsahar in the elections held on January 31, 1990. Respondent No. 1, namely, Chandgi s/o Hira Lal Kumhar was the sole rival candidate and, there was a direct contest. Counting of votes was made on the day of poll itself and result was also declared on the same day. Out of 1746 total votes polled, petitioner had secured 871 votes while the respondent, the defeated candidate, was polled 869 votes. 6 votes were declared invalid and, thus, the petitioner was declared elected by two votes.
2. The defeated candidate i.e. respondent No. l, challenging the result of election, filed Election Petition on 2.3.1995 under Rule 80 of the Rajasthan Panchayat Raj (Election) Rules, 1994 (hereinafter referred to as 'the Rules') read with Section 43 of the Rajasthan Panchayat Raj Act, 1994 (hereinafter called 'the Act') before the District Judge, Hanumangarh, which was, vide order dated May 17, 1997, transferred for hearing and disposal to the Civil Judge (Senior Division), Nohar. The reliefs sought in the election petition were: (a)-to order recounting of votes; (b)--to set aside election of the petitioner holding election result to be invalid and void and (c)--to declare him elected as Sarpanch of the Gram Panchayat. The material facts for recount, as pleaded by the respondent and contained in the' ejection petition, are that after counting of votes was over the returning officer took out two valid votes cast in his favour and added the same in; petitioner's ballot papers; similarly three valid votes cast in his favour were wrongly treated as invalid votes.
3. The petitioner opposed the election petition and filed counter statement denying all the allegations contained in the petition. He further pleaded, interalia, that there was no basis for recount of votes as no particulars or details, including their numbers have been given in the election petition. He also stated that on vague allegations the election petitioner wanted a fishing and roving inquiry by inspection to make a ground for recount of votes.
4. The Election Tribunal, after recording evidence of the parties, held that the inspection of ballot papers and their recount would be just and proper to decide the dispute between the parties. The Tribunal relied on the decision of this Court in Amarjit Singh v. Sampooran Singh 1991 (2) RLR 279, wherein recount was ordered. In its order the Tribunal also observed that recount of votes would not disturb secrecy of votes. For passing the order, much stress was laid by the Tribunal on the fact of narrow difference of two votes between the parties.
5. Learned Counsel, challenging the impugned order of the Tribunal, strongly contended that secrecy of ballots is sacrosanct and it should not be violated unless the election petition contains an adequate statement of the material facts and the same are proved satisfactorily by cogent and reliable evidence. Learned Counsel contended that inspection of ballot papers cannot be allowed as a matter of course in absence of material facts to fish out evidence to support vague pleas. According to him, the election petitioner and his counting agents were present at the time of scrutiny and counting of votes and they had full opportunity of watching the proceedings of the returning officer; hence, if any irregularity in scrutiny and counting of votes was made by the returning officer, the details and particulars of such irregularity should have been mentioned in the election petition and also in evidence. It was further contended that under the Rules, the petitioner and his counting agent had a right to demand a recount of votes from the returning officer but no such prayer was made by them. The allegations made in the petition are after thoughts and lack material particulars. It was further submitted that the Tribunal, without any discussion whatsoever on the merits and demerits of the evidence led by the parties, has given a cryptic finding accepting evidence of the election petitioner and his witness while ordering for inspection and recount of votes and the order is not sustainable in the eye of law.
6. On the other hand, Shri R.S. Charan, learned Counsel appearing for respondent No. 1, with equal vehemence contended that this Court, while exercising jurisdiction under Article 226 of the Constitution, cannot re-appreciate the evidence and writ of certiorari cannot be issued qua the finding of fact even if the said finding is erroneous or some error in drawing inferences has been caused. Counsel further contended that in the instant case there was a thin margin of votes cast in favour of the elected and defeated candidates and as held in Amarjit Singh's case (supra), inspection and recount of votes was rightly granted in the interest of justice and fair play so as to eliminate the possibility and allegation of manoeuvred ballot papers or the increase or decrease of votes by some interested person associated with the process of election.
7. Before examining rival contentions of the parties, it shall be proper to set out the position of law as enunciated by judicial pronouncements in matters relating to inspection and recount of votes. The various decisions referred to at the time of arguments by the learned Counsel may be noticed in this connection.
8. In Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. ; a Five Judge Bench of the Supreme Court, after taking into consideration the relevant provisions of the Representation of People Act, 1951 and Conduct of Election of Rules, 1961, laid down the law on the question of inspection and recount of votes thus:
An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot paper is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.
The above principles were reiterated by the Supreme Court in the case of Dr. Jagjit Singh v. Gyani Kartar Singh and in the case of Jitendra Bahadur Singh v. Krishna Bihari (1971) 1 SCR 852.
9. In Chanda Singh v. Choudhary Shiv Ram Verma and Ors. . Krishna Iyer J. while speaking for the bench observed as under:
A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. If there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the wining margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of change discovery of illegal rejection or reception of ballots: This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to re-count to cases or genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. The best surmise, if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper not otherwise. In short, where the difference is microscopic, the stage is set for recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than miscroscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistakes is a fair exercise of power. It is significant to note, while it may not necessarily be proper to ape, that in the United Kingdom, seven recounts were allowed in the elections in a constituency in the 1966 elections, as the Handbook of Instructions to Returning Officers shows. The pronouncements of this Court have struck a cautious note throughtout.
It was then observed: (at page 399) 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.
10. The entire case law on the subject regarding the circumstances under which recount could be ordered was again summarised and catalogued by the Apex Court in the case of Bhabhi v. C. Govind 1975 (Supple) SCR 202, thus:.
The Court would be justified in ordering a recount of the ballot papers only where;
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
11. In Shri Satya Narain Dhudhani v. Uday Kumar Singh and Ors. , the Apex Court of the country again stressed the need to lay foundation in the pleadings for inspection and recount of ballot papers. The fact of not raising objection at the time of counting was taken to be a circumstance to deny recount of ballot papers and it was observed that secrecy of ballot papers cannot be permitted to be tinkered lightly.
12. Rule 63 of the Conduct of Election Rules, 1961 contains a provision that after announcement of the total number of votes polled by each candidate, a candidate or in his absence his election agent or any of his counting agents may apply in writing to the returning officer for recount of votes either wholly or in part stating the ground on which such demand is made. Sub-rule (3) provided that the returning officer shall decide the matter and may allow application in whole or in part or may reject in toto if it appears to him to be frivolous or unreasonable. Similar analogus provisions are contained in Rule 49 of the Panchayat Rules.
13. In S. Baldev Singh v. Teja Singh Swatangar (Dead) and Ors. , considering the scope of Rule 63, it was observed that allowance of recount of ballot papers at the stage of counting process is not an exception and refusal is restricted where the demand of recount is frivolous or unreasonable. It was also observed that liberal recount or reinspection will minimise belated uncertainties, false hopes and a hovering sense of suspicion. The Bench observed in this context:
This implies no break from the liberal stance we have indicated for Returning Officers. Election petitions come to court after a month and a half and ripen for trial months later and then the appeal, statutorily vested, inevitably follows. In this Operation Litigation, which is necessarily protracted, liberal recount or lay re-inspection of votes may create belated uncertainties, false hopes and a hovering sense of suspense, long after elections are over, governments formed and Legislatures begin to function. Moreover, while a recount, within the counting station, with the entire machinery familiar with the process still available at hand and operational, is one thing, a re-inspection and recount, which is an elaborate undertaking with mechanism and machinery of a specialised nature and which cannot be judicially brought into existence without an amount of time, toil and expense, is a different thing. This Court has laid down clear principles on the subject, meeting the ends of justice, but, without opening the flood-gates of recounts on flimsy grounds. Less election litigation is a sign of the people's adult franchise maturity and adventurist election petitions are an infantile disease to be suppressed. Our view of Rule 63, the relevant wholesome instructions by the Commission and the ruling of this Court, harmonise with the overall considerations of law and democracy.
14. In N. Narayanan v. S. Semmali and Ors. AIR 1980 SC 206, it was stated:
The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though, undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court.
15. It was also held that observations made in S. Baldev Singh v. Tej Singh (supra) to the effect that "where the margin of difference is minimal the claim for a fresh count cannot be summarily brushed aside as futile or trumpery" were really meant for the returning officer because at the time when the request for recount to the returning officer is made the election process was still continuing and if there was any counting error the same could be rectified before the election process was complete. This, however, did not apply to the Court while dealing with an election petition because if recount is ordered at that stage then the electoral process has to be re-started afresh.
16. In Smt. Ram Rati v. Saroj Devi and Ors. 1997 (6) Supreme 6, the result of the election of Sarpanch was challenged by filing an election petition. The Tribunal granted prayer of recounting of votes which was also affirmed by the High Court. Rule 76 of the M.P. Panchayat Election Rules, 1994, contained a provision to apply in writing to the returning officer for a recount of all or any of the ballot papers stating the grounds on which the demand is made. The Supreme Court did not accept the contention made by the counsel of the defeated candidate that such an application was made to the returning officer but the returning officer had not recounted the votes. In absence of such application it was observed, that the Tribunal was not empowered to direct recounting of votes even on adducing evidence and consideration of the alleged irregularities in the counting.
17. In Amarjit Singh's case (supra) the difference was of 17 votes; The Election Tribunal on the basis of evidence and in the facts and circumstances of the case ordered recounting and rescrutiny of votes. The writ petition, challenging the order of Tribunal, was dismissed by the Single Judge and Special Appeal filed by Amarjit Singh was also dismissed rejecting various contentions made in support of the appeal. It was, however observed that where the margin of votes was thin, it is ordinarily necessary in the interest of justice and fair play that an order of inspection of the counted ballot papers should be granted to eliminate the possibility and the allegations of maneuvered ballot papers or the increase or decrease of votes by some interested person associated with the process of election.
18. In Mana Ram v. Atma Ram and Anr. (D.B. Civil Special Appeal No. 435/1996) decided on January 10, 1997 the decision in Amarjit Singh's case was considered in light of the decision of the Supreme Court in the case of N. Narayanan (supra) on the question of narrow margin of votes between the defeated and elected candidates. Their Lordships held as under:
If the pleadings of the parties and the case law cited at the Bar is considered then two things emerge out clearly--that the appellant wants recount because the margin is very thin and trial court also agreed that since there is very little margin therefore recount should be ordered but, as the Supreme Court decisions discussed hereinabove, clearly indicate that narrowness of margin alone is not sufficient to grant an order of recount: it was to be seen whether there is second condition available on record to order recount that is a factual foundation in the election petition, proved by evidence.
19. In Kripal Singh .V Darshan Singh and Others 1986 WLN (UC) 202, election of a Sarpanch of Gram Panchayat was challenged wherein there was a narrow difference of seven votes. The facts pleaded about the irregularities committed by the returning officer were that 20 valid votes cast in favour of the defeated candidate were improperly rejected and 18 votes which were invalid were improperly accepted in favour of the elected candidate. In the election petition it was also alleged that at the time of the counting it had become dark and the lamp was extinguished during which 50 ballot papers, out of the ballot papers containing votes in favour of the defeated candidate, were mixed in ballot papers of the elected candidate and were counted in his favour. The Election Tribunal ordered inspection and recounting of votes. The writ petition filed by the elected candidate was also dismissed by a learned Single Judge and then the matter came before the Division Bench on an appeal preferred by the elected candidate. This Court, after considering various judgments of this Court and of the Supreme Court, held that no distinction can be drawn between the election for Lok Sabha or State Legislative Assembly and Panchayat election and the rigor of the law with regard to the pleadings was also applicable in the case challenging election of a Sarpanch.
20. On making a survey of the judicial pronouncements referred to above, the proposition of law on the question of inspection and recount of votes in election matters can be summarised as under.
(i) In order to maintain a certain amount of stability in the election process and to check opening of flood gates of recounts and having regard to the insistence upon secrecy of the votes, which is sacrosant, inspection and recount of votes should not be allowed as a matter of course.
(ii) For setting aside an election and to grant inspection and recount of votes the petition should contain an adequate statement of the material facts on which the election petitioner relies upon in support of his case and those material facts should be proved by cogent and reliable evidence to the satisfaction of the Election Tribunal. In other words, inspection of ballot papers cannot be and should not be granted to support vague pleas or to fish out evidence in support of such pleas.
(iii) The relevant election rules contain provision to apply in writing to the returning officer for recount of votes either wholly or in part, stating grounds on which such demand is made. Though, at that stage, the returning officer should be liberal as election process still continues and if there is any counting error, it may be rectified before the election process was complete. However, this rule cannot apply to the Courts while dealing with an election petition, because, if recount is ordered while deciding election petition, then the electoral process has to be restarted afresh. The fact of not raising objection or making a demand for recount at the time of counting of votes can be taken a strong circumstance to deny a recount of votes in an election petition.
(iv) A narrow margin of difference of votes secured by the contesting candidates, though undoubtedly, is an important factor to be considered, but it would not by itself justify to allow inspection and recount by the Court.
(v) The law relating to inspection and recount of votes in election matters for Lok Sabha and State Legislative Assembly is equally applicable in the case challenging election of a Sarpanch and no distinction can be drawn in applicability of the rigor of the law.
21. Applying the aforesaid principles on the present case, it would be evident that election petition did not contain an adequate statement of the material facts. The averment contained in election petition that two ballots cast in favour of election petitioner were wrongly included in the ballots of the elected candidate and three valid votes cast in his favour were wrongly declared invalid is quite vague. It is only a bare assertion of some figures without anything more which does not satisfy the test laid down by the Supreme Court and this Court for allowing inspection and recount votes. The election petition does not disclose the basis and ground for counting two votes in favour of the elected candidate and declaring three votes as invalid. Serial number of votes have also not been given. Then, the election petitioner has failed to bring any material on record to show that any objection was raised, at the time of counting, either by him or his counting agent or any demand in writing was made for a recount of votes. The Tribunal also did not make analytical analysis of the evidence led by the parties before it. The cross-examination part of the statement of the election petitioner and his witness; statements of the elected candidate and his witness were not considered at all. It is settled proposition of law that this Court, in exercise of power under Article 226 of the Constitution, can interfere if Tribunal fails to consider any material evidence on record having bearing on the decision or it decides a question against the settled proposition of law. As stated earlier, for granting inspection and recount of votes, it is essential that election petition should contain an adequate statement of the material facts and those facts should be proved by leading cogent and reliable evidence. In the instant case, both requirements are not satisfied and the entire approach adopted by the Tribunal in allowing inspection and recount of votes is not legally sound.
22. The matter may be judged for another angle also which is equally important to consider in the election petition. With regard to the alleged irregularities in relation to five ballots, allegation is against the Returning Officer and they are likely to tarnish his image, it held proved. It is without impleading him as a party in the election petition or showing his interest in the elected candidate. The allegations are vague enough which can be easily made by a defeated candidate as a ground for inspection and recount of votes. In such situation the Court should be strict to insist for adequate material facts and their proof by cogent and reliable evidence. The Court should be reluctant and slow to be lend quick credence to such mud partiality slung at the returning officer by a desperate and a defeated candidate.
23. The result of the above discussion is that this petition deserves to allowed. The petition is, therefore, allowed and the impugned order of the Election Tribunal, Civil Judge (Senior Division), Nohar granting inspection and recount of votes is set aside with costs of litigation--which is quantified Rs. 5,000/- (Five thousand).