Madhya Pradesh High Court
Smt. Sonu Amit Sharma vs Smt. Bhagwati Sharma on 1 October, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2024:MPHC-GWL:18792
1 WP-4303-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1 st OF OCTOBER, 2024
WRIT PETITION No. 4303 of 2024
SMT. SONU AMIT SHARMA
Versus
SMT. BHAGWATI SHARMA AND OTHERS
Appearance:
Shri K.N. Gupta - Senior Advocate alongwith Shri Girija Shankar
Sharma and Ku. Suhani Dhariwal - Advocates for thepetitioner.
Shri MPS Raghuwanshi - Senior Advocate alongwith Shri Yash
Sharma, Shri Amir Khan and Shri YPS Rathore - Advocates for the
respondents No.1, 2, 5 and 6.
Shri B.M. Patel - Government Advocate for the State.
ORDER
Vide instant petition under Article 226 of the Constitution of India, challenge is made to the order dated 16.02.2024 passed by Sub-Divisional Officer/Specified Officer, Vijaypur, District Morena in Case No.02/A-
89(21)/2022-23 whereby, while hearing the election petition under Section 122 of Madhya Pradesh Panchayat Raj Adhiniyam, an order of recount of votes had been passed on the ground that since margin of votes between the contesting candidates is very narrow then, in wake of principal of natural justice, it is required to get its recounting done.
2. Assailing the said order being against the settled principal of law as Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 2 WP-4303-2024 laid down by the Hon'ble Supreme Court as well as by this Court in catena of its judgments in the matters of Ganeshram Gayari Vs. Bagdiram and Others reported in 2013 (2) MPLJ447; Anita W/o Shri Raju Vs. Saki W/o Anant Singh reported in 2016 (3) MPLJ 437 , Hanumant Singh Vs. State of M.P. & Others reported in 2012 (3) MPLJ 191, Netlal Panche Vs. Santosh Matre & Others reported in 2014 (4) MPLJ 619, Ramesh Chandra Bhilala Vs. Bashir & Others reported in 2011 (1) MPHT 35, Devkinandan Dubey Vs. Purshottam Sahu reported in 2019 (2) MPLJ 645 and Rani Marsakole Vs. State of MP and Others reported in 2016 (2) MPLJ 457 , prayer was made for setting aside.
3. Short facts of the case leading to the present controversy are that the petitioner is an elected Sarpanch of Gram Panchayat Gaswani, Tehsil Vijaypur District Sheopur and present respondent No.1 assailing the election in which the petitioner stood elected, preferred an election petition alleging that the petitioner has won the elections while committing malpractices of distributing wine and cash to the voters, therefore, the election deserves to be declared as void. Further alleging that ballot papers which were casted in her favour were wrongly rejected and at the time of counting of the votes, there was no sufficient light which had facilitated wrong counting of the votes, therefore, recounting is necessiated and the election of the petitioner be declared as void and she should be declared as Sarpanch of Gram Panchayat Gaswani.
4. The petitioner submitted its reply to the election petition and denied all allegations made therein and further submitted that at the time of counting Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 3 WP-4303-2024 of the votes, there was sufficient light and as the agents of the candidates were present and had not raised any objections nor had submitted any application for counting after recounting was over before the Returning Officer, therefore, at this stage, recounting of votes cannot be asked and is not permissible under the law.
5. Thereafter, the Specified Officer without framing any issue only on the basis of the pleadings of the parties fixed for arguments, but no final order was passed and on 27.01.2023, the matter was fixed for recording of evidence of Presiding Officer of Polling Booths Nos.269, 270, 271, 272, 273 & 274 of Gram Panchayat Gaswani. Against the said illegality committed by the Specified Officer, the petitioner approached this Court by way of Writ Petition No.3953 of 2023 which later on was dismissed as infructuous on 25.04.2023.
6. In the meanwhile, the Specified Officer recorded the statements of the Presiding Officers of the Polling Booths and vide order dated 21.04.2023, the Specified Officer allowed the petition and directed for recounting of the votes. Aggrieved by the aforesaid order, the petitioner preferred another Writ Petition No.9647 of 2023 before this Court wherein initially, the matter was stayed and finally vide order dated 26.04.2023 the said petition was allowed and while setting aside the order dated 21.04.2023 whereby recounting of votes was directed by the Specified Officer, the matter was remitted back for framing of issues, thereafter after giving opportunity of hearing to the parties, the Specified Officer was directed to pass an order afresh.
7. After remand, the Specified Officer framed five issues and recorded Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 4 WP-4303-2024 the statements of the witnesses of the parties and thereafter, by the impugned order found issues No.1, 2 and 5 to be not proved but on the basis of issue Nos.3 and 4 again directed for recounting of the votes. Hence, the present petition.
8. Shri K.N. Gupta - Senior Advocate along with Shri Girija Shankar Sharma and Ku. Suhani Dhariwal - Advocates for the petitioner, while criticizing the impugned order had submitted that the learned Election Tribunal had not considered that there was no evidence produced by the election petitioner to prove the fact that at the time of counting, any application was submitted by her or by her election agents as required under Rule 76 and 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (for short ''Niyam 1995''), and even there was no pleading or evidence produced by the election petitioner before the Election Tribunal but even then the Election Tribunal had allowed the election petition and directed for recounting of votes which is per se illegal.
9. It was further submitted that learned Specified Officer while passing the impugned order had not considered the law with regard to filing of an application for recounting of the votes immediately after the counting is over, therefore, the impugned order is prima facie arbitrary, illegal and contrary to law thus, is liable to be set aside.
10. It was further submitted that it is settled principle of law that only on the basis of margin of the votes, the order of recounting cannot be passed but the Specified Officer while passing the impugned order had observed this very fact that since there is a slender margin of votes between the contesting Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 5 WP-4303-2024 candidates, then in the light of principal of natural justice to maintain the credibility, transparency and unbiasedness of the election process, it would be appropriate to direct recounting, thus the view taken by the Specified Officer was totally arbitrary and contrary to law.
11. It was also submitted that from the pleadings and evidence of election petitioner/respondent No.1, it is not clear that in respect of which Polling Booth irregularity/illegality committed in counting of the votes had been committed but ignoring the said aspect, the impugned order has been passed which deserves to be set aside.
12. It was further submitted that on mere allegations, directions of recounting of the votes cannot be passed, rather there should be some overwhelming evidence produced by the petitioner seeking recount which could be made the basis for recounting but if from the allegations and the evidence led by the parties, it could not be seen that any illegality or irregularity has been committed then order of recount should not ordinarily be passed, thus the order of recounting should not ordinarily be passed as secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting
13. To further bolster his submissions, reliance was placed in the matters of Kattinokkula Murali Krishna Vs. Veeramalla Koteshwara Rao reported in 2010 (1) SCC 466 and Vadivelu Vs. Sundaram & Others reported in 2000 (8) SCC 355.
14. Further while placing reliance on the judgment passed by the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 6 WP-4303-2024 Supreme Court in the matter of Dharmin Bai Kashyap Vs. Babli sahu & Others reported in (2023) 10 SCC 461, it was has submitted that since the very election petition preferred by the election petitioner/respondent No.1 was only with regard to issuance of directions for recounting of the votes and no other relief has been claimed as provided under Rule 6 of the Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short ''Rules of 1995''), therefore, the election petition itself was not maintainable and the Specified Officer has committed grave illegality in entertaining the said petition and on this count, the petition deserves to be allowed and the impugned order deserves to be quashed.
15. A reply has been filed in the matter on behalf of respondent No.1 and on the basis of contents of the reply, it was submitted that ample evidence was produced by the election petitioner with regard to non- availability of the light at the time of counting of votes due to which certain votes which were casted in favour of respondent No.1 were illegally counted in favour of the petitioner and some of the votes were wrongly rejected and some of the invalid votes of the petitioner were also counted in his favour and thus, the petitioner was declared as elected candidate by a slender margin of four votes, which vitiates the entire counting and thus, recount has rightly been directed by the Specified Officer.
16. It was further submitted that the issue of non-submission of application immediately after counting had taken place as per provisions of 76 and 80 of the Niyam 1995, as has been raised by the counsel for the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 7 WP-4303-2024 petitioner is concerned, the Hon'ble Supreme Court in the matter Sohan Lal vs. Babu Gandhi & Another reported in (2003) 1 SCC 108 had overruled the earlier decision of Ramrati Vs. Saroj Devi reported in (1997) 6 SCC 66 wherein it was directed that if no application for recounting of votes is preferred then a person be precluded from raising such issue at a later stage, thus non-filing of the application for recount immediately the counting is over by the election petitioner/respondent No.1 would not entail the election petition redundant and could not be dismissed on the said count, thus the argument as advanced is wholly misconceived.
17. It was further submitted that it is true that recounting cannot be ordered on the basis of general and bald allegations and to succeed the election, the petitioner should contain the details regarding illegality/irregularity alleged to have been committed and the election petitioner is required to set forth sufficient statements of material facts on record with regard to allegations of counting of invalid votes or particulars of such valid votes which is alleged to have been counted then only recount can be directed but in the present case, in paras 3, 4 and 5 of the election petition it was specifically pleaded that in different booths total 2532 votes were casted out of whicn 137 ballots were illegally cancelled and out of the total votes casted, respondent No.1 secured 886 votes and the petitioner got 890 votes and when the difference of four votes was much less than the votes were cancelled i.e. 137 it was rightly observed by the Specified Officer that looking to the slender margin of votes, recount is necessary, thus the order passed by the Specified Officer is in accordance with law and legal position Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 8 WP-4303-2024 needs not interference.
18. Further placing reliance on statements of the Presiding Officers at Booth Nos.270, 271, 274, it was contended that all the Presiding Officers of the said Booths i.e. Narendra Sisodiya, Rajbharti Prajapati and Hiffazutullah Khan had accepted that at one point of time, there was no electricity and though there was sufficient arrangement of light but that was of mobile and counting was conducted in its light and this fact had went unrebutted in the cross-examination and further during that period, counting was not stopped and it was continued in the light of mobiles, thus, it could not have been ruled out that at the time of counting when there was no sufficient light, some irregularity or illegality might have been committed which had rightly been held to be proved by the Specified Officer, therefore, the impugned order cannot be faulted with.
19. It was further submitted that the Presiding Officer at Booth No.274 has submitted in his cross-examination that in the counting slips there was no endorsement of the votes which were received by the other candidates except for the election petitioner nor there was any entry of the votes which were rejected rather he had accepted that in the counting slip (Ex.D/1) which was issued in the name of Sonu Amit Sharma, only mention was of the valid votes which she had received and the counting slip after the counting was provided to the candidates mentioning the valid votes which were casted in their favour. Likewise, at Booth No.270, it was accepted by the Presiding Officer that the counting slips were provided to only those agents who had asked for it and the result to the rest of the persons were informed orally and Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 9 WP-4303-2024 as per Ex.P/2, the votes which were held to be invalid were 141 whereas at Booth No.270, 141 votes were not found to have been rejected and further has accepted that as per Ex.P/3, the votes which were rejected were only 41 but due to mistake 141 was mentioned. Similar statement was made by the Presiding Officer of Booth No.271 that the counting slip was only provided to the agents who had asked for and as per his statement, total legal votes found were 418 but inadvertently, it was mentioned as 413 and since there was overwriting and there were no initials, it could be said that there was irregularity of at least 05 votes.
20. To bolster his submissions, reliance was placed in the matter of Chandeshwar Saw vs. Brij Bhushan Prasad & Others reported in (2020) 12 SCC 70.
21. Heard counsel for the parties and perused the record.
22. 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 papers is necessary.
23. In light of the aforesaid conditions, an order for inspection of Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 10 WP-4303-2024 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 and 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.
24. Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an Election Petitioner on the threshold before an order for recount of votes is actually made.
25. The reason for this salutary Rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or court should not order the recount of votes.
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AMNEUTRAL CITATION NO. 2024:MPHC-GWL:18792 11 WP-4303-2024
26. Rule 21 of the Rules of 1995 provides grounds for declaring election to be void. Relevant extract of the provisions is quoted hereinbelow:
"(1) Subject to the provisions of sub-rule (2) if the specified officer is of opinion-
(a) ...........
(b) ...........
(c) ...........
(d) that the result of the election in so far as it concerns returned candidate has been materially affected-
(i) by the improper acceptance of any
nomination; or
(ii) by a corrupt practice having been committed in the interest of the returned candidate by a person acting with the consent of the candidate or his agent; or
(iii) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or
(iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder;
the specified officer shall declare the election of the returned candidate to be void."
27. Thus, in the election petition, the petitioner has to state that by the alleged improper acceptance or refusal of votes or reception of any vote, Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 12 WP-4303-2024 which were void, or by the alleged non-compliance with the provisions of the Act or of any rules or orders made thereunder, the result of the election had been materially affected.
28. In that regard, when the contents of paras 3, 4, 5, 6, 7, 8, and 10 of the election petition are seen, it is evident that twin allegations were levelled which pertained to rejection of the valid votes casted in favour of the election petitioner and illegal acceptance of votes in favour of the petitioner as well as counting of the votes taking place in absence of electricity without there being any sufficient arrangement for light, under the mobile lights for certain period.
29. For reference, paragraphs 3 to 8 and 10 are quoted hereinbelow:
"3. यह क ितयािचकाकता 0 07 ारा गा◌्रम पंचायत गसवानी के सरपंच पद के िनवाचन हे तु 6 मतदान के बनाये गये जो मतदान के 0 269, 270, 271, 272, 273, 274 बनाये गये जनम मतदान के 0 269 पर कुल 499 मत डाले गये , 270 पर 499 मत डाले गये , 271 पर 418 मत डाले गये , 272 पर 407 मत डाले गये , 273 पर 412 मत डाले गये तथा 274 पर 297 मत डाले गये , इस कार कुल 2 5 3 2 मत िनवाचन के दौरान डाले गये थे , जसम ितयािचकाकता 0 07 के िनदशानुसार मतदान के ो पर बनाये गये पीठासीन अिधकार एवं उनक टम ारा यािचकाकता एवं उसके अिभकता क अनुप थत म मतप क गणना अवैध प से शु कर द त प ात यािचकाकता के गणना अिभकता मतदान के पर पहुच ं े तब मतगणन Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 13 WP-4303-2024 के दौरान अवैध या के अनुसार वैध या अपनाये बना मनमाने तौर पर मतदान के पर यािचकाकता के अिभकताओं ारा आप करने के बावजूद यािचकाकता के हत म पड़े मतप जो वैध थे उ ह मनमाने तौर पर खा रज ( ित े पत) मतो क सं या 18 म0 के 0 270 पर खा रत मतप क सं या 41 तथा मतदान के 0 271 पर खा रज मतप क सं या 4 6 व मतदान के 0 273 पर खा रज मतप क सं या 11 तथा मतदान के 0 274 पर खा रज मतप क सं या 12 अवैध प से कर द गई , जब क उ मतदान के पर खा रज कये गये कर ब 40 मतप ऐसे थे जन पर मतदाताओं ारा यािचकाकता के चुनाव िच ह कॉच का िगलास पर मत दे ते हुये सील अं कत क गयी, उ मतो को गलत एवं विध के वपर त खा रज / ित े पत कर दया गया और ितयािचकाकता 0 01 को िनवाचन म अवैध लाभ दे ते हुये द ू षत या अपनाते हुये िनवाचन प रणाम भा वत कया गया है ।
4. यह क इस कार ाम पंचायत गसवानी के सरपंच पद हे तु हुये मतदान म कुल 2532 मतप डाले गये जनमे 137 मतप को गलत प से खा रज / ित े पत कर दया गया, और इस कार कुल डाले गये मत के 5.4 ितशत मतप को अवैध प से खा रज कर दया गया जससे उ चुनाव प रणाम द ू षत होकर प रणाम भा वत हुआ है ।
5. यह क उ द ू षत गणना के आधार पर Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 14 WP-4303-2024 यािचकाकता को कुल 8 8 6 मत ा होना तथा ितयािचकाकता 0 1 को कुल 8 9 0 मत ा होगा गणना/प रणाम म बताया गया है , इस कार ितयािचकाकता 0 01 को यािचकाकता के मुकाबले 4 मत से वजयी घो षत कया गया है , जो खा रज मतप क सं या हार जीत के अंतर से कई गुना अिधक है जसम गणना के दौरान अिनयिमतता क गयी है जससे प रणाम भा वत हुआ है , और वा त वक प रणाम जानने के िलये पुन: मतगणना कराया जाना याय हत म होकर लोकतं क र ा के िलये अ य त आव यक है ।
6. यह क दनांक 08.07.2022 को दन के 03 बजे तक मतदान करने का समय रखा गया था त प ात मतदानकिमय ारा भोजन इ या द कया गया और वल ब से मतगणना क गयी मतदान के पर उजाले क पया यव था नह थी तथा मोबाईल के उजाले से अवैधािनक प से गणना करते हुये यािचकाकता के हत म पड़े मतप को गलत प से खा रज एवं ितयािचकाकता 0 01 के हत म खा रज मतप /बोटो को भी वैध मानते हुये अवैध गणना के आधार पर मतगणना क द ू षत या अपनाते हुये िनवाचन प रणाम घो षत कया गया है ।
7. यह क मतगणना के दौरान मतगणना दल ारा ऐसे मतप जन पर मतदाता ारा सह उ मीदवार का चयन कर उस पर सह सील अं कत क गयी पर तु मतदाता के अंगूठे पर अंगूठा लगाने के बाद अंगूठे म याह रह जाने Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 15 WP-4303-2024 से मतप को गलत प से खा रज मान िलया गया जब क उ मतप पर जानबूझकर कसी कार कोई िच ह या िनसान अं कत नह कया गया है और मतदानक गोपनीयता सुर त रह है उसके बावजूद भी ऐसे मतप को गलत प से खा रज कर दया है ।
8. यह क मतदान के 0 271 के पीठासीन अिधकार ारा ा प 17 फाम (िनयम 77(2)) एवं 80 (8) दे खये दया गया है जसमं ाम पंचायत गसवानी म डाले गये कुल मत क सं या 4 1 8 है , तथा खा रज मतो क सं या 5 है , तथा विधमा य मत क सं या भी 418 अं कत क है इस कार जब खा रज मतो क सं या 5 है तब कुल डाले गये मतप एवं विधमा य मतप एक समान कसी भी कार होना संभव नह ं है , इस कार गणना अिधका रय ारा 5 मतो का हे र फेर कया जाना तथा ितयािचकाकता 0 01 को लाभ पहुचाया जाना थम यां मा णत होता है ।
10. यह क यािचकाकता ारा मतदान के 0 269, 270, 271, 272, 273, 274 क मतगणना पूण होने पर पुनमतगणना हे तु गणनाकता अिधकार य एवं िनवाचन अिधकार / ितयािचकाकता 0 07 को विधवत प कारण स हत आवेदन तुत कया उनके ारा यािचकाकता से आवेदन ले िलया पर तु आवेदन क पावती नह ं द गयी तथा पुनमतगणना नह कराई गयी , और यािचकाकता एवं उसके अिभकताओं को मतगणना थल से बाहर बलपूवक Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 16 WP-4303-2024 िनकाल दया गया और ितयािचकाकता 0 01 को अवैध गणना के आधार पर अवैधािनक प से यािचकाकता को ा मत 886 के मुकाबले ितयािचकाकता 0 01 को गलत प से 890 मत ा होना दशाकर िनवािचत। वजयी घो षत करने का अवैध प रणाम घो षत कर दया, जससे प रवे दत होकर यह िनवाचन यािचका िन न आधार पर िनवाचन अिधसूचना से अविध अ दर सादर तुत है ।"
30. On the basis of the pleadings of the parties, in all 05 issues were framed. Out of issue Nos.3 and 4 which were found to be proved which reads as under:
" या मतगणना या के दौरान व त
ु आपूित म
अवरोध अथवा लॉ एंड ऑडर के कारण गणना काय म कोई
अवरोध उ प न हुआ अथवा काश क अपया यव था के
कारण गणना या म बाधा उ प न हुई ?
या मतगणना थल पर ा मत क जानकार
(मतगणना प रणाम प क ित ) यािचका कता गणना
अिभकता को नह ं द गई ? या अ यिथय को ा गणना
पच तथा अंितम गणना प क ा प 17 म कोई अंतर पाया
गया एवं या गणना पच अथवा ा प 17 म कोई कांट छांट
क गई ?"
31. With regard to issue No.3, respondent No.1/election petitioner and its witnesses had stated that during counting, there was a power-cut due to which the entire counting centers were surrounded in dark and in the light of Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 17 WP-4303-2024 the mobiles, the counting was carried out and specifically time between 7.00 PM to 8.00 PM was mentioned and during that period, three times, the light went off. The fact of power-cut though was accepted by the petitioner and its witnesses, but it was submitted that there was enough light which made it possible to proceed with the counting. The fact of power-cut has also been accepted by the Presiding Officers of the counting Centres 270, 271 and 274 and this fact has also been accepted that it was in the light of the mobiles that the counting took place, thus the fact of counting took place in dark in the light of the mobiles is very well established.
32. Now, the question would be whether the said instances could be said to have been materially affected the result.
33. In that regard, if the discussion with regard to issue No.4 is seen then it would be evident that at Booth No.271 in form No.17 which was issued depicting the number of valid votes and the votes which were cancelled, it could be seen that the total votes casted in that Booth which were stated to be valid votes 418 and the votes which were cancelled were 05 but in the column of total number of votes casted on that Booth, the figure was again shown as 418. Next at Booth No.270, in the counting slip which was provided to the agents, the cancelled votes/ the votes which were held to be invalid were shown to be 141, whereas from the record, the entire votes which has been cancelled/invalid were shown to be 137 which were for all the Booths then rejection of 141 votes alone at Booth No.270 was highly improbable and further explanation given by presiding officer that it was due to inadvertance in place of 41 invalid votes, it got mentioned 141, which also Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 18 WP-4303-2024 creates doubt.
34. Further, the Presiding Officer of Booth No.274 in his cross- examination accepted the fact that in the counting slip for the said Booth there was no mention has to how many votes have been received by the candidates and also there is no endorsement as to how many votes were cancelled and only the valid votes which were received by the candidates, were mentioned therein and on the basis of those slips, the counting of the valid votes were done and the slip was prepared.
35. Further, the Presiding Officer of Booth No.270 accepted in his statement that the counting slip was provided to only those persons/agents who had asked for it and the rest were informed orally and in cross- examination, he further accepted that in Ex.P/2 which was the slip wherein the endorsement of the rejected votes was made bore a figure of 141 whereas, 141 votes were not found to be invalidated at Booth No.270. He has also accepted that in Ex.P/3 which is a counting slip issued by him rejected votes were found to be only 41 and he had accepted that by mistake, the rejected votes were written as 141 in Ex.P/2. Likewise, the Presiding Officer of Booth No.271 had also accepted this fact that counting slips were only provided to those who had asked for it and in that regard, Ex.P/4 was issued in which there was mention of total votes as 418, which in fact was earlier written as 413 but later on was corrected and there was an overwriting but no initials were appended at the place where the overwriting was done, coupled with the fact that on the said Booth, there were total 05 votes which were invalid, thus there were total mismatch of the votes casted and the votes Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM NEUTRAL CITATION NO. 2024:MPHC-GWL:18792 19 WP-4303-2024 which were declared to be illegal.
36. Thus from the aforesaid fact, nexus between the power cut and the anomaly which has been found at various Booths with regard to the exact votes casted in favour of the parties and which were held to be invalid/rejected can be said to be established, which creates doubt over the veracity of the result and on its basis, can vey well be said that it has materially affected the result.
37. A priori, this Court has no hesitation in ignoring that the Specified Officer/SDO (Revenue) while exercising the powers under Section 122 of the Rules of 1995, has rightly interfered in the election process and directed recounting of votes, since there was a slender margin of four votes between the returned candidates and the losing one.
38. Accordingly, the present petition being sans merits is hereby dismissed. The Specified Officer is hereby directed to conclude the proceedings of recounting as expeditiously as possible preferably within a period of four weeks from the date of receipt of certified copy of this order.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 19-11-2024 10:34:59 AM