Rajasthan High Court - Jaipur
Amarjeet Singh vs Sampuran Singh on 12 April, 1991
Equivalent citations: AIR1992RAJ90, 1991(2)WLC188, 1991(2)WLN78
JUDGMENT J. R. Chopra, J.
1. This appeal is directed against the judgment of the learned single Judge of this Court dated February 21, 1991, whereby the learned single Judge while dismissing the writ petition has maintained the order dated 12-4-1990 for scrutinising and recounting of votes passed by the learned Election Tribunal, Raisinghnagar.
2. The facts necessary to be noticed for the decision of this appeal briefly stated are: that petitioner Amarjeet Singh, respondent Sampuran Singh and one Jeet Singh contested the elections for the post of Sarpanch Gram Panchayat, 10 T.K. The elections took place on 5-6-1988. It is alleged that in that election, the petitioner secured 552 votes whereas the respondent Sampuransingh received 535 votes and, therefore, the petitioner was declared elected as Sarpanch of Gram Panchayat, 10 T.K. It is further alleged that one Jeetsingh, who was aggrieved by this declaration of result filed an election petition before the learned Election Tribunal, Raisinghnagar challenging the election of petitioner Amarjeetsingh as Sarpanch, Gram Panchayat, 10 T.K. In that election petition, the respondent Sampuransingh was arrayed as respondent No. 2 but later on his request, he was substituted as election-petitioner. It was contended in the election-petition that the Returning Officer has committed irregularity in counting of votes by accepting certain votes in favour of petitioner Amarjeetsingh and by rejecting certain votes against respondent Sampuransingh. It was further contended that 20 votes which were casted in favour of respondent Sampuransingh have wrongly been rejected by the Returning Officer and 22 votes which did not bear a seal in favour of petitioner Amarjeetsingh have wrongfully been counted in favour of petitioner Amarjeetsingh. It was also contended that if those 20 votes which bore seal in favour of respondent Sampuransingh were counted in favour of respondent Sampuransingh and 22 votes which were not cast in favour of petitioner Amarjeetsingh had been rejected, the election result would have been different and the respondent Sampuransingh would have been declared elected. It was submitted that the difference of votes was of only 17 votes and 9 votes would have affected the result of the election this way and that way and, therefore, respondent Sampuransingh has sought re-scrutiny and recounting of votes. Certain allegations were made in the election petition as regards the fact that petitioner asked 20 persons to impersonate for the dead persons and to cast votes for him. It was further submitted that the Harbanshsingh was in America but still his vote was casted and, therefore, that has also tilted the result of the election in favour of the petitioner Amarjeetsingh. It was also submitted that the names of four forged persons were mentioned in the voter list and those four votes were casted. These allegations were later on given up and, therefore, to this extent, issues were not framed.
3. However, re-scrutiny and recounting of votes have been on the basis of the allegation that 20 votes which bore seal in favour of respondent Sampransingh were wrongly rejcted and 22 votes which were wrongly counted in favour of Amarjeetsingh should have been rejected because seal on those votes was not in favour of petitioner Amarjeetsingh.
4. The learned Election Tribunal, after recording the evidence, decided all the issues and about issues Nos. 2 and 3, it has felt that in the facts and circumstances of this case, the recounting and rescrutiny of votes is necessary and, therefore, it ordered for the recounting and rescrutiny of the votes vide its order dated 12-4-1990. It was against this order of the learned Election Tribunal that the petitioner Amarjeetsingh has filed the writ petition challenging the order dated 12-4-1990 of the learned Election Tribunal, Raisinghnagar and that writ petition came to be dismissed by a learned single Judge of this Court vide his order dated 20-12-1989. Hence this appeal as aforesaid.
5. We have heard Mr. M. M. Singhvi, the learned counsel appearing for the petitioner and Mr. V. P. Sharma, the learned counsel for the respondent and have carefully gone through the record of the case.
6. It may be stated here that during the pendency of the writ petition, a stay order was sought but it was ordered by the learned single Judge that re-scrutiny and recounting of votes will proceed but the result will not be pronounced and it will be kept in a sealed cover. Consequently, rescrutiny and recounting of votes took place and a report was prepared and that was kept in a sealed cover and was later on opened before the learned single Judge. That report discloses that the petitioner Amarjeet Singh should have got 543 valid votes instead of 552 votes and the respondent Sampuransingh should have got 551 votes instead of 535 votes. When this fact came to the knowledge of the petitioner Amarjeetsingh, he moved an application for amendment of writ petition in which, it was alleged that the respondent Sampuransingh has tampered with the ballot papers and has indulged in this mal-practice after the counting of the votes and the declaration of the election result, by the Returning Officer and, therefore, the petitioner may be allowed to amend his writ petition. The learned single Judge has, however, held that these points which have been raised in the amended writ petition can be raised before the learned Election Tribunal and it can decide those allegations, it they are raised there. However, the learned single Judge has observed that he does not want to express any opinion in the matter because the election petition is still pending before the Election Tribunal and the parties can contest that matter before the Election Tribunal as to whether votes have been rightly rejected and rightly accepted but he has declined to interfere with the order of rescrutiny and recounting of votes.
7. The main contention that was put forth before the learned single Judge was that there is variance in the pleadings and the proof and therefore, the recounting and rescrutiny of votes should not have been permitted.
8. The principle ground of attack which has been made by Mr. Singhvi before us as regards the order of the learned single Judge is that there is a variance between the pleadings and the proof. It was further contended that the contention of the petitioner as regards the tampering of the ballots papers and the allegations made in this respect have not been decided by the learned single Judge before disposing of the writ petition. As regards the variance in the pleadings and the proof, the petitioner has quoted ad verbatim the allegations made in the election petition in paras 3(kha) and 3(ga) in his writ petition. He has also mentioned the extracts of the statement given by P.W. 1 Sampuransingh in support of these allegations and he has also mentioned in colomn 3 of Schedule I, appended to the writ petition, the findings that have been recorded by the learned Election Tribunal as regards these two allegations.
9. In this respect, his contention is that an order of inspection of ballots for recounting of votes can only be passed, if two conditions are satisfied viz., (1) that the petition for setting aside an election contains an adequate statement of material facts on which the petitioner relies in support of his case; and (ii) that the Court or Tribunal trying the election petition is prima facie satisfied that in order to do complete justice between the parties, inspection of ballot papers is necessary. In this respect, our attention has been drawn to a decision of this Court in Kripal Singh v. Darshan Singh, 1986 WLN (UC) 202, wherein their Lordships have observed that in the matter of election petitions challenging the election to the Panchayats, also the same principles about pleadings as are applicable to elections for the Lok Sabha and State Legislative Assembly have been made applicable and for that reason, the election petition challenging an election to the Panchayat must satisfy the tests laid down by the Supreme Court and this Court with regard to inspection of ballot papers and recount of votes. It may be mentioned here that the aforesaid requirement with regard to the pleadings in an election petition are contained in Section 83 of the Representation of the People Act, 1951 and Rule 80 of the Rules is akin to the requirement of pleadings in civil suits as contained in Order VI, Rule 2, C.P.C. which also prescribe that every pleading shall contain a statement in a concise form of the material facts on which the party pleading relies for his claim or defence. In that case, the Division Bench of this Court felt that an election petition can be filed under Rule 78 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960, if it is shown that there is an improper rejection or receipt of the votes. However, the foundation for such a plea should be laid in the pleading as also in the evidence that has been led. That was a case, in which, the parties alleged that 20 ballot papers have been improperly rejected. This assertion was considered to be inadequate. It was held that it is possible that one may not be able to note the number of the ballot papers but he can at least say oh what grounds ballot papers have been improperly rejected and on what grounds they have been improperly counted in favour of the elected candidate. If we examine this case on the touch-stone of the principle that has been laid down by this Court in Kripalsingh's case (supra), we are firmly of the view that sound foundation has been laid in the pleadings with regard to the improper rejection of the votes casted in favour of the respondent and improper acceptance of the votes in favour of the petitioner. In para 3(kha), it has been mentioned that 20 votes which have been rejected bore a seal in favour of the respondent and still they have not been counted by the Returning Officer in his favour. Thus, the clear cut assertion is that 20 ballot papers bore the seal in his favour. In his statement, the respondent has stated that 20 votes were casted in his favour because the seals were affixed on the line meant for column No. 4 which contained his election symbol 'Elephant'. Nobody else's symbol was printed below the symbol of elephant of the respondent and, therefore, the seal which was put either on the lower line of column No. 4 or below it should have been counted in his favour. It is true that in this case, a specific allegation has been made that the votes which were cast in favour of the respondent bore the seal in his favour. In these pleadings that were made by the respondent, it was mentioned in para 3(Gha) that 22 votes were such which did not bear the seal in favour of the petitioner but still they have been counted in his favour. When the respondent was examined, he has stated that 22 votes have wrongly been counted in favour of petitioner Amarjeet Singh because either there was a double seal or the seals were put on the line between columns Nos. 1 and 2 or columns Nos. 2 and 3. It is true that this allegation has not been made in the terms it has been stated by the witness in his statement but that hardly matters. It is only a piece of evidence in support of the allegation that it did not bear a clear cut seal in favour of the petitioner and, therefore, those votes could not have been counted in his favour because they did not bear any clear cut seal in favour of the petitioner showing or exhibiting an unambiguous intention to vote for him. If there is a double seal in any particular column, then also, the result is that it does not bear the seal in favour of the petitioner Amarjeet Singh and if the seal in on the boarder line of columns Nos. 1 and 2 or 2 and 3 then too, the matter becomes disputed and it cannot be said that those ballot papers bore a seal in favour of the petitioner. Thus, this evidence is just to explain the allegation that has been made. The allegation in the election petition is that 22 votes which have been counted in favour of the petitioner did not bear a seal in favour of the petitioner and, therefore, those votes could not have been counted in favour of the petitioner. The evidence produced by the respondent is not contradictory to the allegations made in the petition and, therefore, this testimony of the respondent cannot be treated at variance with the allegations made in the election petition. All details of the evidence by which an allegation will be substantiated need not be mentioned in the election petition. The allegation should be precise and must convey the meaning it wants to convey.
10. Mr. Singhai, the (earned counsel appearing for the petitioner while relying on a decision of their Lordships of the Supreme Court in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526 : (AIR 1989 SC 640) has submitted that 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. Here, in this case, the material for recounting of votes has been provided at the very threshold of the election petition and thereafter, it has been supported by the evidence. It is true that the result of recount will not justify the order of recount but that hardly matters. Before recounting and rescrutiny was made, the learned Election Tribunal has justified its order on the ground that keeping in view the allegations made in the petition which are supported by the evidence of respondent Sampuran Singh, the Tribunal was prima facie satisfied that the case needed a closer rescrutiny and recounting of votes. Thus, the prima facie satisfaction needed for passing such an order has been recorded by the learned Election Tribunal.
11. In P.K.K. Shamsudeen's case (AIR 1989 SC 640) (supra), the order of recount of votes was made by the Tribunal although no averment was made in the election petition to prima facie justify an order of recount. Here, that is not the case. In this case, the allegations have been made to justify rescrutiny and recount of votes and evidence has been led to prove these allegations. Thus, the learned Election Tribunal has recorded its prima facie satisfaction that recounting and rescrutiny of the votes have to be made. It is true that an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes. In this case the respondent has made definite averments in his election petition which cannot be called as bald statements. He has given the reasons why certain votes should be counted in his favour and certain votes could not have been counted in favour of the petitioner Amarjeet Singh. It is true that certain details given by the respondent in his statement before the Election Tribunal were not mentioned in those specific terms in the election petition but that hardly matters because all details which can be disclosed while giving evidence in support of a definite allegation need not form part of the pleadings. What is required is that a precise and definite allegation should be made in the election petition which may justify rescrutiny and recount. Thus, the basis of foundation for the allegation is there and that has been proved by the evidence and, therefore, this authority cannot help the case of the petitioner.
12. It was contended by Mr. Singhvi that the respondent Sampuran Singh has stated that certain seal marks have been made below column No. 4 and, therefore, those votes should be counted in his favour. Mr. Singhvi has stated that a learned single Judge of this Court in Mohammad Ismail v. Zafar Mohammad, 1961 Raj LW 542 has held that if the mark is placed below the name then it is not certain that for which candidate, the voter wanted to cast his vote. That is a matter to be gone into by the Tribunal. Authority helps the case of the petitioner then he should cite this authority. Here, we are only concerned as to whether the order given by the learned Election Tribunal as regards rescrutiny and recounting of votes is prima facie correct or not and whether it deserves to be sustained or not? Thus, this authority should be cited by the petitioner before the learned Election Tribunal, if it supports his case.
13. Mr. Singhvi has submitted that his allegation as regards the tampering of ballot papers has not been decided by the learned single Judge. In this respect, he drew our attention to a decision of this Court in Nathu Ram Mirdha v. Gordhan Soni (1970 WLN (SCR) 1), wherein their Lordships of the Supreme Court have observed that an exemption of the ballot papers shows that tampering had been done and duplicate seal marks were put on the ballot papers some time after the counting. Their Lordships observed that: "this seems to us to be almost conclusive to show that these seals were placed on these ballot papers after the counting because if they had been placed before the polling some marks would have been left at least some of the ballot papers on the other side when folding." This authority also does not help the case of the petitioner. Whether any tampering has been made with these ballot papers that question has to be decided by the learned, Election Tribunal before which the matter is still pending. Such an allegation has to be made before it and if it is made and allowed, the Election Tribunal can enquire into it and it can examine the ballot papers to find out whether from the inspection of the ballot papers, it is apparent on the fact of the record that tampering with the ballot papers has been made or not?
14. Mr. Sharma has submitted that after the election result is declared, ballot papers are sealed and they are kept in the custody of the Addl. District Development Officer. The election petitioner (respondent) could have no approach to the ballot papers. The ballot papers are not kept with the Returning Officer. They are kept with a very high authority and, therefore, this allegation is uncalled for and unsustainable. Be that as it may, we are of the opinion that the learned single Judge has rightly held that such an allegation should be made before the election Tribunal where the matter is still pending and it can enquire into this allegation. It is only after the objection are raised and allowed by the Election Tribunal and any decision is rendered by it that it can be challenged in a writ petition or in a special appeal if the petitioner so chooses. This is not the stage for going into that matter.
15. It was next argued by Mr. Sharma that the order of recount dated 12-4-1990 passed by the learned Election Tribunal is an interlocutory order and no writ petition can lie against such an interlocutory order. He has further submitted that the learned Election Tribunal has ordered that recounting and scrutiny should be made. The result of recounting of the votes was kept in a sealed cover because the Court ordered that it should not be disclosed and, therefore, no copy of the reprot could have been supplied to the petitioner because that might have amounted to the contempt of the Court. In support of this submission, he has placed reliance on a decision of this Court in Ratansingh v. Munsif & Judicial Magistrate, 1983 Raj LW 274: (AIR 1984 Raj 103) wherein the learned single Judge has held that an order for recounting is an interlocutory order and no interference can be made by the High Court under Article 226 of the Constitution. It is only after the recounting and rescrutiny is made, the writ petition can be filed. In this respect, Mr. Singhvi has submitted that in Kripalsingh's case (1986 WLN (UC) 202) (supra) and in P.K.K. Shamsudeen's case (AIR 1989 SC 640) (supra), it has been held by this Court as also by their Lordships of the Supreme Court that foundation of an order for recounting and rescrutiny is to be made in the pleadings and it has to be prima facie proved by evidence and thereafter, if the Court is prima facie satisfied then it can order re-scrutiny or recounting of the votes. If any transgression of these fundamental principle is made then the petitioner has a right to come before this Court under Article 226 of the Constitution to seek a direction that the order of recounting and rescrutiny should not have been made.
16. Mr. Sharma next submitted that in this case, the respondent has been defeated by 17 votes and thus, the election result could have tilted by 9 votes this way or that way. Their Lordships of the Supreme Court in N. E. Horo v. Leander Tiru, AIR 1989 SC 2023 have held that where the margin is so thin that actually the difference of 20 votes would have materially affected the result of the election, 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 manoeuvred ballot papers or the increase or decrease of votes by some interested person associated with the process of election. In this case, the margin of votes was only 9 and therefore, in our considered opinion the teamed single Judge was perfectly justified in upholding the order dated 12-4-1990 of the learned Election Tribunal, Raisinghnagar as regards recounting and rescrutiny of votes.
17. In the result, we find no force in this appeal and it is hereby dismissed. There will be no order as to costs.