Madhya Pradesh High Court
Bahoran Lal vs Ganesh Prasad And Ors. on 3 April, 1998
Equivalent citations: AIR1999MP7, AIR 1999 MADHYA PRADESH 7
ORDER D.P.S. Chauhan, J.
1. These are two writ petitions i.e. W. P. No. 350/97 and W.P. No. 3350/97. Writ petition No. 350/97 is filed by Bahoran Lal who was elcted as Sarpanch of Gram Panchayat Banda and his election was set aside by the Election Tribunal vide order dated 15-1-1997 after recounting, of ballot papers on the basis of the impugned order dated 27-7-96 passed in Election Petition No. 40C/144/93-94. Writ Petition No. 3530/97 is filed by one Ganesh Prasad who was also one of the candidates in the contest and in the petition the prayer is for Unking the writ petition with W.P. No. 350 of 1997 and for setting the finding against him and lor maintaining the order dated 15-1-1997.
2. Heard the learned counsel for the petitioner, Shri G. S. Baghel, learned counsel for the respondent No. 1, Shri Rakesh Jain and the learned State counsel, Shri Vivekanand Awasthy.
3. The brief facts are that the election for the office of the Sarpanch of Gram Panchayat Banda took place on 30th May, 1994 wherein the petitioner was declared aselected for the office of the Sarpanch. In the election, Respondent No. I Ganesh Prasad was also one of the'candidates. In the said contest there were three candidates; i.e. petitioner Bahoran Lal, respondent No. I Ganesh Prasad and respondent No. 2 Jagdish. It Was a triangular contest. Petitioner Bahoran Lal having found to have received highest number of votes in the counting was declared as elected by the Returning Officer. This declaration of the petitioner as Sarpanch of Gram Panchayat Banda was challenged by means of an election petition under Section 122 of the M.P. Pancnayal Raj Adhiniyam, 1993 (for brevity, hereinafter referred to as 'the Act'), the procedure regarding which is provided in the rules known as "The Madhya Pradesh Panchayats (Election Petitions. Corrupt Practices and Disqualification for Membership) Rules, 199! (for brevity, hereinafter referred to as 'the Rules'). Copy of the election so filed is on the record of the Writ Petition 350/97 as Annexure-P/5.
4. The Election Tribunal on 27-7-1996 passed an order recording the finding that he comes to the conclusion that the election petitioner failed to substantiate the allegations levelled against the respondent No. I in the election petition and passed an order allowing the application of the election petitioner dated 29-9-94 made in the said election petition and directed the B.D.O.-cum-Election Officer Katni to appear before the Sub-Divisional Officer-cum-Prescribed Authority, Katni along with necessary record for the purpose of the ballot papers on 9-8-96 and thereafter on 15-1-97 after recounting of the ballot papers he declared the election petitioner as elected to the office of the Sarpanch as during the process of recounting he received 217 valid votes whereas respondent No. 1 in the election petition i.e. successful candidate received 207 valid votes and respondent No. 2 in the election petition i.e. Jagdish received 202 valid votes.
5. Learned counsel for the petitioner made two-fold submissions. Firstly, that in the election petition no foundation was made in regard to the recount of the ballot papers and no finding was recorded by the Election Tribunal under the order dt. 27-7-96 in regard to any irregularity in the process of counting of the votes about the improper acceptance, refusal or rejection of any vote or the reception of any vote which was void, and as such the Election Tribunal has committed manifest error in interfering with the election which has violated the secrecy of the ballot papers, Secondly, recounting should not have been ordered as before the Returning Officer no application for recount of the, ballot papers was made disclosing the ground regarding any illegality or irregularity in the process of counting by improper acceptance, improper refusal or improper rejection of any vote or the reception of any vote which was-void.
6. So far as the election petition is concerned, copy of the election petition is on the record. Firstly, the election petition does not contain any prayer in regard to the recounting of the ballot papers. Secondly, the election petition does not contain concise statement of material facts in regard to the recounting of ballot papers making allegation regarding improper acceptance, refusal or rejection of any vote or the reception of any vote which was void. The election petition further does not contain any statement that the result of the election in so far as the returned candidate i.e. the present petitioner is concerned, was materially affected. In the impugned order dt. 27-7-96 the Election Tribunal has not considered the irregularities or illegalities alleged to have been committed during the polling at the election. The Election Tribunal has not recorded any finding that the prima facie case for recount on the ground of miscount was made out by the petitioner. In the election petition an application Was made subsequent to filing of the election petition on 29-9-94. The said application is on the record of the writ petition as Annexure-P/6. The only allegation made in the application fen-recounting of the ballot papers, which is nol verified and is not even supported by an affidavit is as:
^^;g fd ;kfpdkdrkZ us viuh ;kfpdk esa ;g dFku fd;k gS fd mlds erksa dh fxurh fuokZpu vf/kdkjh us lgh <ax ls ugha fd ftl dkj.k ls iquZerx.kuk fd;s tkus dh izkFkZuk dh gSA** This is not sufficient material empowering the Election Tribunal to advent to exercise for recount of ballot papers.
7. The law is settled as to when and under what circumstance the recount can be ordered. In the case of Km. ShradhaDevi v.Krishna Chandra Pant, AIR 1982 SC 1569, the Supreme Court in Para 8 observed that 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 reeoant because of misconduct, petitioner must furnish prima 'facie proof of such error. If proof is furnisshed of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. Reliance was placed on paragraph 940 of Halsbury's Law of England, 4th Edn., Vol. 15 and it was observed that : "This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of the election so far as it affects the returned candidate is materially affected, then recount is directed.
Reliance was also placed in the case of Khilari v. The IVth Additional District Judge, Sonbhadra, AIR 1992 All 186 wherein the case of Beliram Bhalaik v. Jai Behari Lal Khachi, MR -1975 SC 283 was noted where the Supreme Court said :
"............ .Although no castiron rule of universal application can be or has been laid down. Yet from a beadroll of the decisions of the Supreme Court, two broad guidelines are dis-cerntole that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (1) all the material facts on which the allegations of irregularity or illegality in counting are founded are pleaded adequately in the election petition, and (ii) the Court/Tribu-nal trving the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the, dispute and to do com-plete and effectual justice between the parties."
In the case of P.K.K. Shamsudden v. K.'A.M. Mohindeen, AIR 1989 SC 640 the Supreme Court maintained the importance of secrecy as sacrosanct resting the burden on the candidate Challenging election to allege and substantiate in Acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for recount. The right of a defeated candidate to assail 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.
8. In view of the above decisions so far as the position of law is concerned, it is settled. In the present case the requirement of law has not been satisfied by the election petitioner and as such the submission as advanced by the learned counsel for the petitioner deserves to be accepted. The orders of the Election Tribunal dated 27-6-1996 and 15-1-1997 cannot be allowed to be maintained.
9. So far as the second point is concerned, it is not necessary to dilate as there is no material on the record as to whether application for recount was made or not made before the Returning Officer and as such Consideration of the decision in the case of Rani Rati v. Saroj Devi, (1997), 6 SCC 66 : (AIR 1997 SC 3072) is not required.
10. Contest in the present case was triangular and it was the burden on the election petitioner to have pleaded that the result of the election so far as it affects the returned candidate is materially affected and also prima facie established by evidence that the illegality and irregularity in the process of counting has materially affected the result of the returned candidate. The Election Tribunal was not justified in making the order of recount of ballot papers and on the basis of the recount set aside the election.
11. In the case of P.K.K. Shamsudeen (AIR 1989 SC 640) (supra) in paragraph 15 the Su-preme Court observed as :
"15. Mr. Padmanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their orders of reference of the case of N. Gopal Reddy v. Bonala Krishnamurthy C.A. No. 3730 (NCE) of 1986 reported in 1987 JT 406 : AIR 1987 SC 831 and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President, of the Panchayat when the recount disclosed that he had secured, 28 votes less than the petitioner. We are unable ,19 sustain this contention because as we have stated earlier an order of recount of votes must stand and or fail 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."
12. If the order of the recount is riot in accordance with the law and on the basis of the material as required under the law trlting of election result on account of the recount cannot be a ground for maintaining the order of recount and thereby declaration of the result.
13. The writ petition accordingly succeeds. It may not go unnoticed that the petitioner in this petition (W.P. No. 350/97) earlier came to this Court by way of Writ Petitiori No. 4233/96 which was disposed of by this Court vide order dated 5-11-1996 wherein order of the Election Tribunal dated 27-7-96 was given challenge and the Court observed as :
"........... I am not inclined to interfere with the said order at this stage. The petitioner if sp advised, may file the writ petition after the conclusion of the recounting and disposal of the election petition."
Accordingly disposal of the W.P. No. 4233/ 96 does not come in the way of the petitioner in challenging the orders of the Election Tribunal.
14. In view of above, the writ petition 350/97 is allowed. The impugned orders dated 27-7-1996 and 15-1-1997 passed in Election Petition No. 40 C/144/93-94 are set aside and the election of the petitioner is maintained. The Writ Petition No. 3530/97 is misconceived and is dismissed. In the circumstances, no order as to costs.