Madhya Pradesh High Court
Yagyasen vs The Collector Cum Distt. Election on 3 July, 2018
1 W.P. No.3969/2016
HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
SINGLE BNCH : HON'BLE JUSTICE NANDITA DUBEY
WRIT PETITION NO. 3969/2016
Yagyasen
Vs.
The Collector, Rewa and others.
____________________________________________________
Shri J.L. Mishra, learned counsel for the petitioner.
Shri Naveen Dubey, learned Govt. Advocate for
respondent/State.
Shri D.K. Mishra, learned counsel for respondent No.3.
ORDER
(03.07.2018) The petitioner is aggrieved by the order dated 09.12.2015 (Annexure P-1) passed by the respondent No.2, the Prescribed Authority under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, whereby the election petition filed by the petitioner under Section 122 of the Aadhiniyam 1993 read with M.P. Panchayats (Election Petitions, Corrupt Practices and disqualification for Memberships), Rules, 1995 has been dismissed.
2. The election on the post of Sarpanch was held on 13.01.2015. The petitioner contested the post of Sarpanch of Gram Panchayat Khatkhari, Janpad Panchayat 2 W.P. No.3969/2016 Hanumana, district Rewa on the post reserved for Scheduled Caste category, in which the respondent No.3 secured more votes than the petitioner and was declared elected. Aggrieved by the same, the petitioner filed an election petition interalia seeking relief of recounting of votes on the ground that there was irregularity and illegality in counting of votes as 21 voters from the revised list has been left out, only 3973 votes have been counted, though votes casted were 4050 in all the booth centers and 77 votes were left from counting. It was also contended that respondent No.3 was not eligible for the post of Sarpanch as he had concealed the details of his immovable properties in the declaration form. It was also urged that he had filed an application for recounting of votes on 14.01.2015 before the Returning Officer but the same was not considered and prayed that the election of the returning candidate, respondent No.3 be declared void.
3. The respondent No.3 filed the written statement contesting the said election petition. Both the parties adduced oral as well as documentary evidence. The Tribunal, however, after hearing the parties, dismissed the petition.
3 W.P. No.3969/2016
4. It is urged by the learned counsel for the petitioner that the whole proceeding by the Presiding Officer is vitiated as the Tribunal has not framed any issue nor recorded evidence on it. It is urged that the Tribunal has not considered the objection filed by the petitioner and decided the petition summarily on the basis of preliminary objections only.
5. Shri Mishra, learned counsel appearing for the petitioner has placed reliance on the decision rendered by this Court in the case of Kalka Prasad Vs. Ramjilal reported in 2002(3) MPLJ 121, wherein it is held that election petition is like a civil trial and framing of issues and recording of evidence are necessary for proper adjudication.
6. Per contra Shri D.K. Mishra, learned counsel for respondent No.3 as well as Shri Naveen Dubey, learned Govt. Advocate appearing for the State submits that the order dated 09.02.2015 (Annexure P-1) is legal and proper. The Tribunal has correctly appreciated the facts and evidence on record and no case for grant of relief is made out.
4 W.P. No.3969/2016
7. Having heard the learned counsel for the parties at length and on perusal of the record, I am of the view that this petition deserves to be dismissed.
8. In the Election Rules, 1995, provision for filing nomination paper, scrutiny of nomination paper and various other provisions have been prescribed. Section 35(2) of the 1995 Rules, lays down the delay duty of Returning Officer to examine and decide all the objections taken to any nomination/declaration filed as per Rule 31-A and must reject any nomination which suffers from any defect specified there in clause (a)(b)(c) or (d). But after a nomination paper is accepted for non-compliance of Rule 31-A for want of objection, the same would not be fatal to the case, unless it is shown that the result of returned candidate has been materially affected due to such improper acceptance.
9. It is an admitted position that the petitioner did not raise any objection regarding non-compliance of Rule 31-A by the respondent No.3 at the time of scrutiny of nomination papers. The Returning Officer, as per the provisions of Rule 35 after satisfying himself to be 5 W.P. No.3969/2016 correctness of the nomination papers found it in order. Since on the face of nomination papers, respondent No.3 was not disqualified in any manner and as petitioner had not raised any objections immediately at the time of scrutiny, it was imperative on the petitioner to prove by cogent evidence that such disqualification in fact existed and non-consideration of the same has materially affected the result of the election. However, apart from a bald statement, no evidence was produced by the petitioner to substantiate his allegations.
10. Similarly to make out a case seeking direction for recounting of votes, the facts pleaded in the petition must be supported by contemporaneous evidence to show irregularities and illegalities in the counting. Merely on vague allegations, order for recounting cannot be directed.
11. The Supreme Court in the case of Udey Chand vs. Surat Singh (2009)10 SCC 170 has held as under :-
"11 . Before adverting to the merits of the issue raised by the parties with reference to the statutory provisions, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course.6 W.P. No.3969/2016
Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out.
12. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz.
(i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and
(ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied."
12. Rule 80 of the 1995 Rules provides that after an announcement has been made by the Returning Officer, or such other Officer authorized by him, of the total number of votes polled by each candidate. Under sub-rule (2) of Rule 77, a candidate or his election agent or his counting agent may apply in writing to the Returning Officer for recount of all or any of the votes already counted, stating the ground 7 W.P. No.3969/2016 on which he demands such recount, and on such application being made, the Returning Officer shall decide the matter.
13. It is thus clear that recounting of votes can be claimed only after an application in writing is made before the returning officer immediately after the commencement of the result. The petitioner has averred that he filed an application before the Returning Officer through his agent, but no action was taken nor any receipt was given by the Returning Officer. Except for this bald allegation, there is nothing on record to indicate that the petitioner after declaration of the result had filed any application as required under Rule 80 of the 1995 Rules for recounting of votes before the Returning Officer. Petitioner's witness Sheetala Prasad who was also his counting agent has also not stated anything in his evidence about filing of such application for recount before the Returning Officer. In the present case, there is nothing in the evidence, oral or documentary to show that any irregularity or illegality has been committed by the Returning Officer in counting of the votes.
8 W.P. No.3969/2016
14. The contention of Mr. J.L. Mishra that non- framing of issues has vitiated the entire order, sans merits.
15. In Kalyan Singh Chouhan Vs. C.P. Joshi (2011) 11 SCC 786, the Supreme Court has held :
"27. There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mis-trial and the proceedings stood vitiated. (vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884; Kunju Kesavan v. M.M. Philip & Ors., AIR 1964 SC 164; Kali Prasad Agarwalla (dead) by L.Rs. & Ors. v. M/s. Bharat Coking Coal Ltd. & Ors., AIR 1989 SC 1530; Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and Bhuwan Singh v. Oriental Insurance Co. Ltd., AIR 2009 SC 2177).
In Krishna Bai Vs. Geeta Bai reported in 2017(4) MPLJ 81, this Court has held :-
"21. Another contention which deserves mention and the rejection at the outset is that since the Specified Officer did not frame the issues the entire order gets vitiated. Evidently, on 10.11.2015 on a finding that there exits circumstances which creates doubt as to fair and transparent counting, the Tribunal directed for recounting. The said order has been allowed to attain finality. It was in furtherance 9 W.P. No.3969/2016 to said order, Tribunal passed the final order declaring the election as null and void. It being not a case that the parties were not aware as to what was being tried. On the contrary both the parties having led evidence, cannot now turn around and say that they are not aware as to the issue before the Tribunal.
22. Rule 11 of 1995 Rules envisages that subject to the provisions of the Rules, every election petition shall be enquired into by the Specified Officer, as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Thus the trial has to "as nearly as may be" and not in accordance with Civil Procedure Code stricto sensu. Perusal of the impugned order reflects that the Tribunal dwelt upon all the averments which cropped up for consideration after permitting the parties to lead evidence in support of respective averments."
16. The object of framing issues is to ascertain the area of dispute and points required to be determined by the Court. The issues are framed so that no party at the trial is taken by surprise. In the present case, the petitioner who had filed the petition alleging irregularity and illegality in the counting of votes and on the ground of disqualification of the returning candidate, was well aware what he was required to prove. As the issues were implicitly know to both the parties, they accordingly lead evidence oral as well as documentary on the basis of 10 W.P. No.3969/2016 allegations made in the petition and argued upon the same. The petitioner, therefore, cannot now turn around and say that proper evidence could not be produced due to non- framing of issue.
17. In view of the above, I do not find any cogent reason to interfere with the well reasoned order of the Election Tribunal, impugned herein, which has been passed by due appreciation of mind to the evidence on record.
18. This petition lacks merit and is accordingly dismissed.
(Smt. Nandita Dubey) Judge gn Digitally signed by GEETHA NAIR Date: 2018.07.09 15:07:21 +05'30'