Madhya Pradesh High Court
Suman Santosh Kumar Patel vs Bhanwati Mahesh Pratap Patel And Anr. on 1 April, 1998
Equivalent citations: 1999(1)MPLJ88
ORDER D.P.S. Chauhan, J.
1. The election for the office of the Sarpanch of Gram Panchayat Gaundari, 27 Block Gangeo, Tahsil Sirmaur in Distt. Rewa took place on 23-5-1994 whereat the contest was between the petitioner and Smt. Bhanwati, (respondent No. 2). The petitioner in the process of counting of ballot papers, found to have secured 418 valid votes whereas the respondent No. 1 Smt. Bhanwati was found to have secured 376 valid votes and as such the petitioner was declared as duly elected for the office of Sarpanch. This election of the petitioner was challenged by the lost candidate i.e. Smt. Bhanwati by means of an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (for brevity hereinafter referred to as "the Act") together with the Rules known as Madhya Pradesh Panchayat (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1991 (for brevity, hereinafter referred to as 1991 Rules). The Sub-Divisional Officer after recount of the ballot papers set aside the election of the petitioner and declared the respondent No. 1 Smt. Bhanwati as having been duly elected to the office of the Sarpanch, vide order dated 13-6-1997. This order together with the order dated 27-1-1996 rejecting the preliminary objection of the petitioner to maintainability of the election petition (Annexure-P-7) as well as the order dated 31-5-1997 ordering the recount of the ballot papers (Annexure-P-8) to the petition are the subject-matter of challenge in the present petition.
2. The relevant facts of the case, in brief, are that the election of the returned candidate (petitioner herein) was challenged by Smt. Bhanwati by means of an election petition under Section 122 of the Act. The Election Petition was filed in the office of the Sub-Divisional Officer Sirmour on 23-7-1994 before the office Superintendent, which was put up before the Sub-Divisional Officer on 26-7-1994. Counsel for the petitioner Shri Munendra Pandey, as it appears, was present on this date before the Sub-Divisional Officer who made the following endorsement therein.
^^}kjk Jh equhUnz ik.Ms] vf/kok gLrk (illegible) 26-7-1994 S.D.O."
The prayer in the Election Petition was for recount of the ballot papers and declaration of the Election Petitioner, as duly elected to the office of Sarpanch. In the petition, it was stated that the counting was done at the polling centre and during the course of counting, there was no arrangement for light and the Returning Officer committed serious irregularities during the process of counting of ballot papers in respect of the valid as well as invalid votes and a large number of ballot papers, for variety of reasons, which were invalid, were counted in favour of the returned candidate, and about 80 to 90 invalid votes were counted in favour of returned candidate as valid votes and if invalid votes would not have been accepted as valid votes and counted in favour of the returned candidate the election petitioner would have succeeded. A favourable attitude was taken by the returning officer in favour of the returned candidate. Further the valid votes of the election petitioner were rejected as invalid and many valid votes of the election petitioner were wrongly counted in favour of the returned candidate. The election petitioner alleged that he orally objected to such counting process. Even on filing a written objection he was not heard. The election petitioner was not supplied the figures relating to the invalid votes by the returning officer, despite of demand and the objection was not decided till the declaration of the result.
3. The returned candidate filed preliminary objection before the Election Tribunal regarding the non-maintainability of the election petition as it was not having been properly presented, was liable to be rejected. The written Statement was also filed denying the allegations in the election petition saying that the election petition was filed on the basis of the incorrect allegations. The preliminary objection of the petitioner was rejected on 13-12-1994 by the Election Tribunal before taking the evidence of the parties where against the present petitioner approached this Court by means of Writ Petition No. 60/95 which was disposed of on 12-1-1995 by quashing the order of the prescribed Authority dated 13-12-1994 with a direction to the Prescribed Authority for framing of the issues where if preliminary issue which goes to the root of the jurisdiction of the Prescribed Authority or relating to the maintainability of the Election Petition arises then the same to be decided first but since the Election Tribunal did not act following the directions of this Court, the petitioner had to approach this Court again by means of another Writ Petition No. 1534/95 and this Court again on 29-9-1995, passed an order as :-
"In such circumstances, the petition is disposed of with the direction to frame the issue and proceed with the petition in accordance with law and according to directions given in W.P. No. 60/1995."
It was after this that the preliminary issue was framed on 30-11-1995 and was decided on 27-1-1996 rejecting the preliminary objection of the petitioner which is Annexure-P-7 to the petition. The evidence of the parties was recorded by the Election Tribunal and recount of ballot papers was ordered on 24-5-1997 which is Annexure-P-8 to the petition. The issues as framed on merit were :-
(1) Whether there was not sufficient light for counting the ballot papers?
(2) Whether any irregularity was committed in the counting of ballot papers?
The Election Tribunal recorded the finding that there was no arrangements for sufficient light at the time of the counting of the ballot papers. At the time of the counting of the ballot papers, only the lantern (Patromax) and candle light was there and not the electric light.
4. However, in the context of the controversy here it is not necessary to go into the question regarding adequacy of light at the time of counting of ballot papers. Regarding irregularity in the counting, no finding was recorded by the Election Tribunal as to what was the nature of irregularity, if any, in deciding the issue No. 2, the Election Tribunal recorded finding as the counting was done in a room where there was no sufficient arrangement for light and for this reason it was presumed that there might have been inconvenience in checking the voting marks on the ballot papers.
5. Heard the learned counsel for the petitioner Shri K. P. Mishra and the learned counsel for the respondent No. 1 Shri V. K. Shukla.
6. Learned counsel for the petitioner made following two submissions :
(1) That since the election petition was not validly presented as per requirement of Section 122 of the Act read with Rule 3(1) of the 1991 Rules, was liable to be rejected.
(2) The election petitioner having failed in making out a prima facie case of high degree of probability in regard to the recount of the ballot papers, was not entitled for the recount of ballot papers.
The learned counsel for the petitioner submitted that in support of his first submission the Sub-Rule (1) of Rule 3 of 1991 Rules speaks for presentation of the election petition, which is as extracted below :-
"3. Presentation of election petition. - (1) An election petition shall be presented to the Prescribed Authority during the office hours by the person making the petition, or by a person authorised in writing in this behalf by the person making the petition within thirty days from the date on which the election or co-option in question was notified.
(2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition."
The aforesaid rule mandates that the election petition shall be presented to the prescribed authority during the office hours by the person making the election petition or by the person authorised in writing in this behalf by the person making the election petition. In this regard submission, as advanced, is that the election petition was presented to the office Superintendent of the Office of the Sub-Divisional Officer in the office of the Collectorate District Rewa on 23-7-1994 in regard to which he made an endorsement on the election petition itself" on the same date. The election petition so presented was put up before the Sub-Divisional Officer on 26-7-1994 whereon he wrote as "Dwara Shri Munindra Pandey, Advocate." Thus the Election petition was not presented to the Prescribed Authority by the election petitioner or by a person authorised in writing in this behalf, by him, as per mandate of law under Rule 8 of the 1991 Rules, which speaks that for non-cornpliance of the provisions of Rule 3 the petition shall be dismissed by the Prescribed Authority.
7. Learned counsel for the respondents Shri V K. Shukla resisting the above submission submitted :-
(1) that there was sufficient compliance within the meaning of sub-rule (1) of Rule 3 of 1991 Rules and as such the election petition has to be treated as having been presented on 26-7-1994 by the election petitioner herself.
(2) that since the election petition filed through a lawyer along with vakalatnama signed by the election petitioner it be treated as having been presented through a person authorised in writing.
In support of first submission the learned counsel for respondent brought attention of the Court to the order dated 26-7-1997 on the order sheet, which is Annexure-R-1 to the return and is as extracted below :-
^^;g pquko ;kfpdk Jhefr Hkkuorh iRuh egs'k izlkn iVsy fuoklh xksnjh&27 xzke iapk;r xksnjh&27 ds ljiap in okMZ a-
ds fuokZpu ds fo:) e- iz- iapk;r jkt vf/kfu;e] 1993 dh /kkjk 122@11 ds rgr izLrqr dh x;h gSA izdj.k iatho) gksA** and submitted that it has to be treated as having been presented to the Sub-Divisional Officer on 26-7-1994 as the election petitioner was present on this date.
8. The submission has no substance. There is distinction between the "present" and "presentation". Even if the election petitioner was present before the Sub-Divisional Officer on 26-7-1997 even then it cannot be said that the election petition as required under Sub-rule(l) of Rule 3 of 1991 Rules was presented by the election petitioner before the Sub-Divisional Officer on 26-7-1994 as it is established from the record that it was in fact presented to the office Superintendent of the Collectorate Rewa on 23-7-1994 and by evidence no link has been established regarding the fact that it was taken back from the Superintendent on 23-7-1994 and was presented on 26-7-1994 to the Sub-Divisional Officer. It, thus, cannot be held that the election petition was presented to the Prescribed Authority on 23-7-1994 by the Election Petitioner himself. Apart from this, it is a settled position of law that if a thing is required to be done in a particular manner, then either it should not be done in the manner provided for or it should not be done at all. The presentation of the election petition was not done in the manner provided therefor.
Learned counsel, next submitted that it be treated as a presentation through authorised person as the election petition was duly accompanied by a vakalatnama of Shri Munindra Pandey, Advocate. The contents of the Vakalatnama as shown by the learned counsel for the respondent No. 1 are as extracted below :-
^^ge@eSa &&&&&&&&&&&&&&&&&&&&&&& mijks izdj.k esa iSjoh ds fy;s Jh &&&&&&&&&&&&&&&&& dks odhy vnkyr o bdjkj vnk; esgurkuk &&&&&&&&&&&&&&&& viuk odhy eqdjZj djds bdjkj djrs gSa@djrk gwa fd odhy lkgc ekSlwQ gekjs rjQ iSjoh tks dqN dksf'k'k loky tokc rdjhj djs o nLrkost o dkxtkr nkf[ky djs okil iap eqdjZj djds iapukek QSlyk iapk;re; mtjr nkf[ky djsaA eqdnek etdwjhokyk esa lqygukek nkf[ky dj nkok eatwjh djs o nkok o tokcnkok dh rLnhd mBk ysosa c'krsZ lqnwj fMxzh tkjh djkos vkSj tj[kjpk o mtjr dwdhZ o mtju uhykeh o nhxj jde ;kQrkuh gekjk olwy djsaA jlwe vnkyr esa nkf[ky djsa o jlhn ysosa o fefly eqvk;uk dj eqdnek o vkSj blh eqdnek esa dqN vkSj nwljs dk dke tks t:jh gks dksbZ nLr[r eqrkvkfYo eqdnek xqtkjkcs ;k oYoh t:jr dksbZ nwljk odhy ;k eq[r;kj eqdjZj djs eqnek gktk ;k fdlh gqDe dh djs og dqy lc dke odhy lkgc ekSlwQ dk gqvk felz fd;k gqvk dkxtkr [kkl vius ds gedks dcqy gS eatqj gS vkSj gksxk vxj jde esgurkuk rkjh[k is'kh ds igys iwjh o vnk u gks tk;sxh ;k dqN Hkh ckdh jg tk;sxh rks eqdnek etdwjh iSjoh dks djuk ;k u djuk odhy lkgc dh ethZ ij jgsxk gedks dksbZ mt u gksxk] bl okLrs o pan dyekr crkSj odkyrukek ds fy[k fn;k fd lun jgs o ij dke vkosA vyejdwe rkjh[k ekg lu~ 19 vyv} xokg lqnk n- Hkkuorh n-
&&&&&&&&&&&&&&&&&&&& n-
&&&&&&&&&&&&&&&&&&&& n-
&&&&&&&&&&&&&&&&&&&& n-
&&&&&&&&&&&&&&&&&&&&** This Vakalatnama does not make any authorisation authorising Shri Munindra Pandey, Advocate in writing for presenting the election petition before the Sub-Divisional Officer. The submission has no substance.
9. Learned counsel for the respondent No. 1 next submitted that such a presentation of election petition on 23-7-1994 to Superintendent in the office of the Collectorate may be treated as mere irregularity, instead of any illegality.
It is a settled position of law that the presentation has to be made to the prescribed authority by the petitioner himself under sub-rule (1) of Rule 3 of the Rules 1991 or by the person authorised in writing in this behalf by the petitioner. If it is not done, then, automatically the consequence is allowed to be flown under Rule 8. The provision of sub-rule (1) of Rule 3 has to be held as mandatory and non-compliance will lead to the rejection of the election petition. Where the law has not declared for flowing of the consequences for not doing a thing in the manner provided therefor, the provision may be taken as directory but here the provision of sub-rule (1) of Rule 3 has to be held as mandatory and non-compliance will lead to the rejection of the Election petition. In the Representation of People's Act, 1951 the position is similar. There also flows consequence for non-compliance of requirement of presentation and the same is unavoidable as the provision under the Representation of People's Act is held to be mandatory. The proposition is no more res integra.
10. Learned counsel for the respondent tried to distinguish the position as under :
That the provision of presentation of the election petition in the Representation of People's Act has been made in the Act itself whereas under the Panchayat Raj Act, it is not so. The provision is made how an election petition is to be filed under the Rules though framed in pursuance of the power given under Section 122 of the Act and therefore, the drastic consequences not to be allowed to be flown by treating the non-compliance of Rule 3(1) of the 1991 Rules as directory and not mandatory.
This submission has no substance and deserves to be rejected straight way as the Rules framed under the Act acquire the statutory position.
It may not go unnoticed that the election petitioner herself admitted the position in her statement that the election petition was presented on 23-7-1994 and was not presented by her but was presented by her lawyer. Relevant portion is as extracted :-
^^;g ;kfpdk esjs }kjk 2&"& dks nk;j dh xbZ FkhA ;g ;kfpdk esjs vf/kok ds ek/;e ls izLrqr dh xbZ gSA**
11. In view of the above, it is held that the presentation of the election petition was not in accordance with the requirement under sub-rule (1) of Rule 3 of the 1991 Rules and as a consequence whereof it was liable to rejection under Rule 8. In view of this the election petition ought to have been rejected as not having been properly presented.
12. Second submission as advanced by the learned counsel for the petitioner is that in the election petition there was no foundation so to justify the interference by the Election Tribunal in the counting done by the returning officer as all the relevant material facts on which the allegations of irregularity and illegality in the counting were founded were not pleaded with adequacy in the election petition nor established by evidence and the Election Tribunal failed to record its prima facie satisfaction that the making of such an order for recount of ballot papers was imperatively necessary to decide the dispute and to do complete and effectual justice between the parties as the reason for this salutary rule is the preservation of the secrecy of the ballot on the sacrosanct principle which cannot be lightly or hastily broken.
13. So far as a fact is concerned, the election petition does not contain adequate material allegations in regard to the alleged irregularity or illegality i.e. in regard to wrong reception and wrong rejection of votes.
Learned counsel for the petitioner placed reliance on the following cases :
(1) Ku. Shradha Devi v. Krishna Chandra Pant and Ors., AIR 1982 SC 1569 para 8, at page 1574. Relevant portion wherefrom is as extracted :
"8. When a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount, petitioner must furnish prima facie proof of such error."
(2) A. Younus Kanju v. R. S. Unni and Ors., AIR 1984 SC 960 para 7, this case supports the submission as made by the learned counsel for the petitioner. In that case the petitioner failed to offer prima facie allegation and proof of errors in counting of ballot papers. Where the Court said that "The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court to justify a direction for recount."
(3) Shri Satyanarain Dudhani v. Uday Kumar Singh and Ors., AIR 1993 SC 367 where the Court held that :-
"Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered."
Here in the present case, even the election petition does not contain the proper grounding for making out a case for recount.
14. Supreme Court in the case of Ram Rati (Smt.) v. Saroj Devi and Ors., (1997) 6 SCC 66, in para 8, in a like situation, held that "It is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. In rare cases, the Tribunal or the Court is required to order recount, that too on giving satisfactory grounds for recounting.
In the present case, no satisfactory ground has been given so to warrant an order for recount of the ballot papers.
15. Learned counsel for the petitioner also relied on the decision of this Court in Writ Petition No. 3093/95, Uttam Lal v. Sub-Divisional Officer and Ors.. It also contains the same position of law as has already been discussed.
16. In view of the above, the present petition deserves to succeed. The writ petition is, accordingly, allowed. The impugned order passed by the Sub-Divisional Officer dated 27-1-1996 as well as the order dated 24-5-1997 (Annexures-P-7 and P-8 respectively) in Election Petition No. IB/21/93-94 are set aside. Petitioner's election to the office of the Sarpanch, Gram Panchayat Gaundari-27, Block Gangeo, Distt. Rewa is restored. He shall be treated as having been duly elected as Sarpanch of the said Gram Panchayat and is allowed to function as such. In the circumstances of the case, no order as to cost.