Madhya Pradesh High Court
Janaklali vs The State Of Madhya Pradesh on 24 July, 2017
WP-5998-2017
(JANAKLALI Vs THE STATE OF MADHYA PRADESH)
24-07-2017
ORDER
24.7.2017 This petition filed under Article 226 of the Constitution of India takes exception to the order dated 29.6.2016 Annexure P-1 whereby the Sub Divisional Officer and Specified authority (herein after referred to as 'Election Tribunal') under the Panchayat Act passed the said order and directed for recount of votes.
2. The admitted facts between the parties are that the petitioner and private respondents herein submitted their nominations for election for the post of Sarpanch in Gram Panchayat, Umari Shivraji, Janpad Panchayat Amarpatan, District Satna. The voting took place on 5.2.2015 and ultimately the petitioner was elected by margin of only three votes. Aggrieved, respondent no.4 filed an election petition under Section 122 of Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for short, 'the Adhiniyam'). After services of notices to the otherside and obtaining their response, learned tribunal framed nine issues. The evidence of parties were recorded.Thereafter, the election tribunal passed the impugned order dated 29.6.2016 which is called in question in the present petition.
3. The case of the petitioner is that in the election petition, the respondent no.4 has pleaded that six valid votes which were cast in her favour were wrongly added in favour of the present petitioner. However, the witnesses who deposed their statement in favour of the election petitioner did not support that version. Their statements are contradictory which shows that the pleadings of election petitioner that six valid votes of election petitioner were added by the presiding officer in favour of the petitioner were not established.
4. Shri Patel, learned counsel for the petitioner by taking this court to the pleadings of election petition and statements of witnesses contended that the election petitioner has failed to show that there was any illegality committed by the authorities at the time of counting of votes. It is urged that evidence shows that no objection was taken by the agents of election petitions at the time of or during the closure of counting. It is further submited that there is no reliable evidence which may throw light that at the time of counting of votes, the electricity supply was disrupted and counting had taken place in the dim/candle light.
5. Learned counsel for the petitioner has taken pains to contend that as per Rule 80 (5) of M.P. Panchayat Nirvachan Niyam, 1995 (in short, 'the Niyam'), after total numbers of votes polled by each candidates has been announced under Sub Rule (2) of Rule 77 Sub rule (4), the returning officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter.
6. Learned counsel for the petitioner submits that merely because the presiding officer has not filed the parawise reply, the recounting cannot be directed as a matter of course. If parawise reply was not filed, the election tribunal could have directed the presiding officer to file parawise reply. It is further argued that there is no material available on record which shows that valid votes of election petitioners were added in the bundle of invalid votes.
7. Learned counsel for the petitioner further submits that merely because the petitioner was elected by margin of three votes, this narrow margin alone cannot be a ground for directing recount. It is urged that burden to prove the case of election petitioner was on her. The contradiction or weakness of defense witnesses could not have been a reason for directing recount unless the election petitioner herself was able to establish her case by leading credible evidence. In support of his contention, he placed reliance on the judgments of this Court reported in 2010 (1) MPLJ 115 (Vidhyawati Lilhare Vs. SDO cum Prescribed Officer, Lanji Balaghat and Ors.), 2008 2 MPLJ 558 (Kamlesh Bai Vs. Upper Commissioner, Bhopal And Hoshangabad Division & Ors.) and a recent judgment 2016 2 MPLJ 457 (Rani Maraskole Vs. State of M.P. And Ors.).
8. Per contra, Shri Vikram Johri, learned P.L. for the respondent/State supported the impugned order passed by the election tribunal.
9. Shri Akhil Singh, learned counsel for the election petitioner also supported the impugned order. By placing reliance on the election petition, it is submitted that the election petitioner categorically pleaded that seven valid votes cast in her favour were declared as invalid. If these seven votes would have been counted in favour of the election petitioner, she would have secured a march over and above the present petitioner and would have been elected.
10. Shri Singh also relied on the statement of witnesses of election petitioner namely; Dharmendra (PW2) and Sajjan Singh (PW3). It is submitted that these witnesses have supported the averments of election petition. In the election petition, it is categorically pleaded that during a particular time, the electricity supply was disrupted and counting had taken place in the light of candles. The witnesses on behalf of the election petitioner have supported the said pleadings by their depositions. This Court is not obliged to sit as an appellate authority to re-appreciate or reweigh the evidence. He also placed reliance on Annexure R-4-2 and R-4-3 to contend that a complaint was promptly preferred before the Presiding Officer and Returning Officer alleging that counting was not done in accordance with law. The present petitioner knowing fully well that against an order of recount, he has no redressal forum before the Collector, filed an appeal and obtained the ex parte interim order. He enjoyed the interim order for about nine months. When learned Collector was apprised that he does not have any jurisdiction, the said matter was rejected and thereafter this petition is filed. He submits that the petitioner has deliberately availed the said remedy which was not available to him. This was done by the petitioner in order to linger on the proceedings and enjoy the fruits of her illegal election. In support of his contention, he relied on judgments reported in 2009 (2) MPLJ 391(), 2002 (5) MPHT 487 (Rakib Mohammad Vs. District Collector & Ors.), 2005 (4) MPHT 74 (Ramrati Vs. Sub Divisional Officer and Ors.).
11. No other point is pressed by counsel for the parties.
12. I have heard counsel for the parties at length and perused the record.
13. Before dealing with rival contentions advanced at the Bar, it is profitable to summarize the circumstance under which recount could be ordered. The Apex Court way back in Bhabhi Vs. Sheo Govind (1976) 1 SCC 687 opined that the election petition must contain the adequate statement of all the material facts on which the allegations of irregularity and illegality in counting are founded. On the basis of evidence adduced, such illegality must be established. The Court trying the petition must be satisfied that making of such an order of recount is imperatively necessary to decide the dispute and to do complete justice between the parties. The Apex Court in Ram Autar Singh Bhadauria Vs. Ram Gopal Singh, 1976 (1) SCC 43 followed the said principle. In Chanda Singh Vs. Choudhary Shiv Ram Verma, (1975) 4 SCC 393, the Apex Court held that the democracy runs on the smooth wheels of periodic and pure elections. A certain amount of stability in the electoral process is essential. Recount of ballot cannot be interfered too frequently and on flippant accounts. The secrecy of the ballot is sacrosanct in democratic process. In Beliram Bhalaik Vs. Jai Beharilal Kachi, (1975) 4 SCC 417, the Apex Court held that a whimsical and bald statement of the candidate that he is not satisfied with the counting will not tantamount to a statement of the groundsÂÂ within the meaning of relevant rules. A Division Bench of this Court in Ganesh Ram Gayari Vs. Bagdiram and others (2013) 2 MPLJ followed the said principle. In Hanumant Singh Vs. State of Madhya Pradesh, (2012) 3 MPLJ, this Court considered the judgment of the Supreme Court reported in AIR 1993 SC 367, (Shri Satyanarain Dudhani Vs. Uday Kumar Singh and others) and opined that secrecy of ballot cannot be lightly tinkered. In a democratic set up, secrecy of ballot is of utmost importance and in absence of very specific pleadings of material facts and particulars supported by contemporaneous evidence, neither election can be quashed nor recount can be ordered. This Court considered the judgment of Mahender Pratap Vs. Kishan Pal and others, (2003) 1 SCC 390 in which it was held that the onus of proof on the basis of proper pleading is on the election petitioner. It is further held that the degree of proof is of very high standard for the purpose of annulling an election or for issuing direction for recounting.
14. In view of the aforesaid legal position, it is clear that the election cannot be mechanically nullified nor the order of recount can be passed on mere asking. The election petitioner needs to plead about the illegality or election process by way of specific pleadings. In other words, the illegality in the election process must be pleaded with accuracy and precision. Such pleadings must be proved by leading contemporaneous evidence. On the anvil of the said principles, it is now required to be seen whether such pleadings and evidence are available in the present case.
15. In the present case, the learned Tribunal has directed for recount for following reasons :-
(i) The election petitioner/ her agent preferred an application at the time of counting for the purpose of recount which has not been decided by the Presiding Officer.
(ii) The Presiding Officer has not filed parawise reply before the Election Tribunal.
(iii) Although there is no evidence to establish that valid votes of election petitioner were kept with invalid votes,as per statements of Sarvashri Dharmendra Singh and Sajjan Singh, it is established that valid votes were declared as invalid votes.
(iv) There exists contradiction/ variance in the pleadings of written statement and affidavits filed by the present petitioner before the election tribunal.
16. The question is whether said reasons are in accordance with law for the purpose of directing recount of the votes. In the election petition, it is averred that seven valid votes were treated as invalid votes and were kept in the bundle of invalid votes by the Presiding Officer. Interestingly, a clear finding is given by the tribunal in para-4 of the impugned order that there is no documentary evidence to establish the same. In the same para, the learned tribunal gave a finding that the statement of witnesses of election petitioner are in variance on this aspect. The election petitioner mainly raised the issue that her invalid votes were kept in the bundle of invalid votes, counting was done in the candle light and petitioner secured victory by wafer-thin majority of three votes. If the statement of election petitioner is perused, it will be clear that she deposed that two valid votes cast on the said date were mixed with invalid votes. She deposed that she is not aware as to who were the Presiding Officers in Booth No.94 and 95. She categorically stated that she is not aware how many valid and invalid votes were cast in Booth No.94 and 95. She pleaded ignorance about the author of the letter in which recount was prayed. She further deposed that during her presence, electricity was available but added that later-on supply of electricity was disrupted and counting continued in candle light. She further deposed that when counting was done in candle light, she was not present. She further stated that in Booth No.94 her valid votes were declared as invalid. How many such votes were declared invalid were not disclosed. Regarding Booth No.95, she deposed that her two votes were declared as invalid.
17. Shri Dharmendra Singh, another witness of election petitioner deposed that in Booth No.94, six votes were found to be invalid. In later portion of cross-examination, he further stated that in Booth No.94, fifty-one votes were found valid but how many votes were treated as invalid is not known to him. He further stated that in B.No.94, five or six votes were declared as invalid. He admitted that no complaint was preferred against the Presiding Officer to the higher authorities.
18. Shri Sajjan Singh, another witness of election petitioner stated that he is not aware regarding number of valid votes cast in B.No.95. He deposed that electricity supply was disrupted between 7.00 PM and 10.00 PM. Interestingly, the election petitioner deposed that she was present at the booth and the electricity current was disrupted about 8.30 and 9.00 PM. There is apparent contradiction between the statements of election petitioner and Sajjan Singh. Sajjan Singh further deposed that in B.N No.95, eight valid votes of election petitioner were declared as invalid. He answered a question and admitted that he has not written in his affidavit that during counting ,electricity current was disrupted. He further admitted that 100 watts bulb was functional during counting.
19. In view of aforesaid contradictory statements of election petitioner, it cannot be said that the election petitioner has fulfilled the criteria laid down by the courts mentioned in para-13 and 14 above. The result of election, in a democratic set-up cannot be tinkered lightly or on mere asking. In the present case, the election tribunal has erred in directing recount on the ground that objections of election petitioner/ agent were not decided by the Presiding Officer. There is no specific finding by the tribunal that any such objection was ever taken and whether this attracts rule 80 of the Nirvachan Niyam. In Vidhyawati Lilhare Vs. Sub-Divisional Officer- cum-prescribed officer, Lanji, Balaghat and others-2010(1) MPLJ-115, the Division Bench of this court ruled that mere rejection of an application under rule 80 filed by the election petitioner is not a sufficient ground for ordering recounting of votes.
20. In the opinion of this court, if the Presiding Officer has not filed parawise reply, the election tribunal could have directed him to file parawise reply. Merely because parawise reply is not filed by the Presiding Officer, it cannot be presumed that contention of petitioner is correct. In a election petition, the election petitioner needs to plead the illegality with accuracy and precision and establish it by leading impeccable evidence.
21. The aforesaid statements of witnesses clearly shows that the pleading of election petition could not be established that the valid votes were added with the invalid votes. The statements of witnesses are contradictory in nature. In view of the judgment of Mahendra Pratap (supra), the burden of proof to prove the pleadings was on the election petitioner. The degree of proof required in a election matter is of a very high standard. The tribunal has clearly erred in basing its findings on the alleged weakness of defence evidence. The procedure adopted by the election tribunal is totally unknown to law. Similar view is taken by this court in Rani Maraskore Vs. State of M.P and others- 2016(2) MPLJ-457. In Kamlesh Bai Vs. Upper Commissioner, Bhopal and Hoshangabad Division and others-2008(2) MPLJ-558, this court opined that if number of rejected votes are very high and returned candidate is elected by narrow margin, this cannot be a ground for ordering recount.
22 The judgments cited by Shri Akhil Singh, Advocate are not applicable in the facts and circumstances of this case.
23. As per the foregoing analysis, in the opinion of this court, the election tribunal has erred in directing recount. Resultantly, the order dated 29.06.2016 (Annexure P/1) is set aside. The matter is remitted back before the tribunal to decide the election petition on merits in accordance with law.
24. Petition is allowed to the extent indicated above.
(SUJOY PAUL) JUDGE MKL