Madhya Pradesh High Court
Netlal Panche vs Santosh Matre on 17 November, 2014
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF MADHYA PRADESH :
JABALPUR
W.P. No.18600/2011
PETITIONER : Netlal Panche
V E R S U S
RESPONDENTS : Santosh Matre and others
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Mrs. Shobha Menon, Senior Advocate with Mr. Rahul Choubey,
counsel for the petitioner
Mr. Shashank Shekar, counsel for respondent No.4
Mr. Sanjay Dwivedi, learned Government Advocate for
respondent No.8
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Hon'ble Mr. Justice Alok Aradhe, J.
O R D E R
In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the validity of the order dated 20.10.2011 passed by the Election Tribunal constituted under the provisions of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as the Act) by which the election petition preferred by the petitioner under Section 122 of the Act, has been dismissed. In order to appreciate the petitioner's challenge to the impugned order, few facts need mention, which are stated infra.
2. The election for the post of Sarpanch for Gram Panchayat Nakshi, Janpad Panchayat Kirnapur, District Balaghat was notifi ed in the year 2010. The petitioner as well as respondent No.1 to 4 contested the election. The counting of the votes was held on 18.1.2010 and respondent No.4 was declared elected, as he had secured four more votes than the petitioner. The petitioner made an application for re-count of the votes on 18.1.2010 to the Returning Offi cer of polling booth No.153. However, no decision on the application submitted by the petitioner was taken.
3. The petitioner fi led an election petition under Section 122 of the Act. The Election Tribunal vide order dated 10.5.2010 directed re-count of the votes and declared the petitioner as elected on the post of Sarpanch. The aforesaid order was subject matter of challenge in Writ Petition No.6749/2010(s). A Bench of this Court vide order dated 26.4.2011 allowed the writ petition on the ground that the order passed by the Election Tribunal is procedurally ultra-vires in as much as, the Election Tribunal did not record the evidence of the parties before passing an order of re-count of votes. It was further held that the election petition was decided by the Tribunal in violation of Rule 11 of the Madhya Pradesh Nirwachan Niyam, 1995. Accordingly, the order dated 10.5.2010 passed by the Election Tribunal was quashed and the matter was remitted to the Election Tribunal to decide the election petition in accordance with law within a period of three months.
4. The Election Tribunal thereafter by order dated 20.10.2011 inter-alia held that the petitioner had fi led an application for re-count of votes in respect of booth No.153 which was accepted by the returning offi cer. Similarly, it was held that in booth No.151 and 152, the polling took place peacefully and neither the candidates nor their agents raised any objection. The Election Tribunal also took into account the admission made by the petitioner in his cross-examination that he reached the polling booth No.153 after the counting of the votes was concluded and the petitioner does not have any complaint against the returning offi cer. It was further found that the petitioner in his statement further admitted that in the application for re-count of votes, did not state that any irregularity was committed during the counting of votes. The Election Tribunal also took into account the statement of the witnesses of the petitioner namely Suresh Kumar, Umesh Prasad and Suresh Prasad, while recording the fi nding that during the polling, nobody had raised any objection. Thus, the Tribunal held that no case for ordering re-count of votes is made out. Accordingly, the election petition preferred by the petitioner was dismissed. In the aforesaid factual background, the petitioner has approached this Court.
5. Learned senior counsel for the petitioner submitted that the petitioner had submitted an application for re-count of votes which ought to have been considered by the returning offi cer. It was further submitted that in any case, there is no prohibition under the Act, 1993 or under the Rules prohibiting the Court or the Tribunal to direct recount of votes. In support of the aforesaid submission, reliance has been placed on decision of Supreme Court in the case of Sohanlal Vs. Babu Gandhi and others, 2003(2) MPLJ 215 (SC). It was further submitted that while deciding the election petition preferred by the petitioner, the Tribunal has taken into account extraneous matters. It was further submitted that even assuming that the petitioner had not raise any objection before the returning offi cer with regard to irregularity in counting of votes, the non- raising of objection would not come in the way of the petitioner in fi ling the election petition under Section 122 of the Act. In support of aforesaid submission, reference has been made to decision in the case of Fundi Bai Vs. the Sub-Divisional Offi cer and Prescribed Authority (Revenue) , 2012(3) MPLJ
261. While inviting the attention of this Court to averments made in paragraphs 7 and 8 of the election petition, it was pointed out that there was suffi cient material on record which the Tribunal ought to have taken into consideration while taking decision with regard to re-count of votes.
6. On the other hand, Mr. Shashank Shekhar, learned counsel for respondent No.4 submitted that under Rule 80 of the Madhya Pradesh Nirwachan Niyam, 1995, the candidate, or in his absence, his election agent or his counting agent, is required to make an application stating the grounds on which he demands re-count of votes. It is further submitted that in the application, no grounds were mentioned by the petitioner for making a demand for re-count of votes. It is further submitted that the Election Tribunal has taken into account the material available on record and has rightly come to the conclusion that no case for re-count of the votes in the facts and circumstances of the case is made out. It is further submitted that re-count of votes cannot be ordered as a matter of course and merely by making an allegation by a party. In support of his submission, learned counsel for respondents No.4 has placed reliance on a Division Bench decisions of this Court in the case of Ganesh Ram Gayari Vs. Bagdiram and others, 2013(2) MPLJ 447 and Hanumant Singh Vs. State of M.P. and others, 2012(3) MPLJ 191. Mr. Sanjay Dwivedi, learned Government Advocate has supported the stand taken by Mr. Shashank Shekhar, learned counsel for respondent No.4.
7. Before dealing with the rival submissions made at the bar, I deem it appropriate to refer to the well settled legal position with regard to re-count of votes. When a petitioner seeks the relief of scrutiny and recount of ballot papers, the petitioner has to off er prima-facie proof of errors in counting and if errors in counting are prima-facie established, a recount can be ordered. See: Ku. Shardha Devi Vs. Krishna Chandra Pant and others, AIR 1982 SC 1569. In P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others , AIR 1989 SC 640, it has been held that justifi cation 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 is made. It has further been held that 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 seeking 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 aff ected 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.
8. Similarly, in Shri Satyanarain Dudhani Vs. Uday Kumar Singh and others , AIR 1993 SC 367, it has been held that an order of recount cannot be granted as a matter of course and the secrecy of the ballot papers cannot be permitted to be tinkered lightly. In Vadivelu Vs. Sundaram and others , (2000) 8 SCC 355, it has been once again reiterated that recount of votes can be ordered very rarely in the election petition and on the specifi c allegation in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If the Court is satisfi ed about the truthfulness of the allegation, it can order recount of votes. Similar view has been taken in the cases of Chandrika Prasad Yadav Vs. State of Bihar and others , (2004) 6 SCC 331 and Uday Chand Vs. Surat Singh , 2009(1) SCC 170.
9. In the backdrop of aforesaid well settled legal position, facts of the case may be seen. In the instant case, in paragraphs 7 and 8 of the election petition, the petitioner has averred that in booth No.153, 43 votes were illegally declared invalid whereas, the same were valid votes in favour of the petitioner. It has further been stated that 43 votes in favour of the petitioner were neither declared invalid nor counted by the returning offi cer. The petitioner in paragraph 4 of his examination-in-chief has admitted that no irregularity took place at the time of polling in three polling booths. In paragraph 7, the petitioner has stated that 43 valid votes in favour of the petitioner were declared invalid and in paragraph 8, the petitioner has stated that 43 invalid votes were not counted. Similarly, the agent of the petitioner namely Manoharlal has stated that one Tulsi Sillare and the returning offi cer had declared the votes cast in favour of the petitioner as invalid. It was admitted by him in the cross-examination that no written complaint was made by him to the returning offi cer. It has also been admitted by him that in the affi davit fi led on 5.2.2010, he has not stated that valid votes were declared invalid. Thus, if the averments made by the petitioner in paragraphs 6 and 7 of the election petition as well as his statement and statement of his agent is read, it is evident that petitioner has failed to substantiate the allegation with regard to irregularity in the counting of votes. The petitioner has failed to disclose any basis for the assumption that 43 valid votes in his favour were declared invalid by the returning offi cer. It is also relevant to mention here that on the date of polling itself, the petitioner had submitted an application (Ex.P/5) for recount of votes in which no grounds at all were disclosed, except by making bald allegation that there has been irregularity and illegality in the counting of votes. Thus, there is no material on record to order recount of votes. The petitioner has failed to make any specifi c allegation so as to enable this Court to order recount and has further failed to substantiate the averments made in the petition. The purity of election cannot be tarnished on the routine allegation and there cannot be any roving or fi shing enquiry.
10. For the aforementioned reasons, I do not fi nd any merit in the writ petition. Same fails and is hereby dismissed.
(Alok Aradhe) Judge a.