Himachal Pradesh High Court
Som Dutt vs State Of H.P. And Others on 16 September, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 8188 of 2012
Date of Decision: 16/09/2015
Som Dutt
.
.... Petitioner.
Vs.
State of H.P. and others .... Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
of
Whether approved for Reporting?Yes.
For the petitioner: Mr. I.D.Bali, Senior Advocate with Mr. Virender
Bali, Advocate.
rt
For the respondents : Mr. Vivek Singh Attri, Dy. A.G. for respondent
No.1.
Mr. Jeevesh Sharma, counsel, for respondent
No.3.
Sureshwar Thakur, J.(Oral):
The petitioner herein contested elections to the office of Ward Member for Ward No.5, Gram Panchayat Baragaon, Tehsil Kumarsain, District Shimla, H.P. The respondent No.3 declared respondent No.2 to be elected.
The grievance ventilated in the writ petition is qua the factum of respondent No.2 having been illegally declared to be elected by respondent No.3 to the office of Ward Member for Ward No.5, Gram Panchayat Baragaon, Tehsil Kumarsain, and it stands grooved in the factum that respondent No.3 herein while being the Returning Officer for declaring the out come of elections of Ward Member for Ward No.5, Gram Panchayat Baragaon, Tehsil Kumarsain, in which besides the petitioner herein, the respondent No.2 ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 2 and others also participated as contestants, had proceeded to after his having declared respondent No.2 herein to be elected, thrice recounted the ballot papers without any .
compliance to sub rule (2) of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 having been meted out rendering hence his recount on three occasions of the ballot papers to be constituting infringement of the of mandate of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, which stand extracted rt hereinafter:-
"41. Recount of votes (1) The returning officer after signing the ballot paper account shall announce the total number of votes polled by each candidate and pause for a while.
(2) After such announcement has been made a candidate or in his absence his election agent may apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount.
(3) On such an application being made, the Returning Officer shall decide the matter and may allow the application in a whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable and the decision of the Returning Officer in this behalf shall be in writing and contain the reason thereof. (4) If the Returning Officer decides under sub rule (3) to allow an application either in whole or in part he shall count the ballot papers again in accordance with his decision; amend Part-II of ballot paper account in form XII or Result sheet in Form XVII as the case may be, to ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 3 the extent, if necessary, after such recount; and announce the amendment so made by him.
(5) The returning officer shall thereafter complete and sign the declaration in part-III of ballot paper account in .
Form XII or Part II of the Result sheet in Form XVII as the case may be, no application for any recount shall be entertained, thereafter.
In other words it is canvassed that after his having of initially announced the total number of votes polled by each candidate his having proceeded to recount thrice the ballot rt papers even though it stands mandated by sub rule 2 of Rule 41 that before his proceeding to recount the ballot papers he was enjoined to, receive an application in writing from the aggrieved for recount of the ballot papers with a depiction therein of the reasons for the aggrieved seeking recount of the votes previously counted by the Returning Officer and which led him to announce the result or the outcome of his initial counting of ballot papers which application having not come to be preferred before him by the aggrieved rendered his recounting thrice of the ballot papers to be vitiated.
The petitioner herein had on grounds para materia to the ones constituted in this writ petition for setting aside the elections of respondent No.2 to the office of Ward Member for Ward No.5, Gram Panchayat Baragaon, Tehsil Kumarsain assailed the elections of respondent No.2 to the aforesaid ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 4 office by his instituting an election petition before the Sub Divisional Officer (Civil) cum Authorised Officer Rampur Bushahr, District Shimla. The latter in his rendition .
constituted in Annexure P-4 dismissed the election petition.
The petitioner herein being aggrieved by the dismissal of his election petition under Annexure P-4 by the Sub Divisional Officer (Civil) cum Authorised Officer, Rampur Bushahr, filed of an appeal therefrom before the learned Deputy Commissioner, Shimla. The learned Deputy Commissioner, rt Shimla, too concurred with the conclusions and findings recorded in Annexure P-4. The rendition of the learned Deputy Commissioner, Shimla, in the appeal preferred before him, by the petitioner herein assailing the renditions constituted in Annexure P-4, is comprised in Annexure P-6.
The petitioner herein is aggrieved by the decision rendered by the learned Deputy Commissioner, Shimla. He has proceeded to assail it by filing the instant writ petition before this Court.
Before proceeding to test the vigour of the contention addressed before this Court by the learned counsel for the petitioner, that the respondent NO.3 had after his having initially counted the ballot paper and his having declared the petitioner herein having polled the highest number of votes which initial declaration aforesaid by him constituted an ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 5 announcement by him of the outcome or fate of the election, he was hence unless compliance was meted out at the instance of the aggrieved with the mandate of sub rule 2 .
of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, inasmuch as respondent No.2 having applied in writing to the Returning Officer for recount of all the ballot papers whose previous counting by him led him to of make an announcement qua the fate of the result, was barred from proceeding to recount the ballot papers as he rt did so thrice thereafter, in sequel to which recounts he proceeded to declare respondent No.2 to be elected, an advertence is required to be made to the testimony of RW-3.
The testimony of RW-3 underscores an admission on his part that he did proceed to thrice recount the ballot papers.
Besides, in his cross-examination there is also an admission qua the fact that before proceeding to recount the ballot papers no written application was moved before him at the instance of respondent No.2 as mandated by sub-rule 2 of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978. The effect and impact of the deposition of RW-
3 comprised in his examination in chief and in his cross-
examination is that he had proceeded to recount the ballot papers thrice even when there was no written application moved before him at the instance of respondent No.2 stating ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 6 therein the reason for his seeking recounts of the ballot papers. Consequently, when the Returning Officer had on his initially counting the ballot papers obviously announced .
the outcome or fate of the elections he could not, as he did, as is apparent from a reading of his testimony on oath, proceed to recount the ballot papers unless the aggrieved respondent No.2 had preferred before him an application in of writing proclaiming therein the reasons for his seeking their recounts. Consequently, when the respondent No.3 on his rt initially having counted all the ballot papers proceeded to announce the result of the election, the subsequent recount by him of the ballot papers on three occasions without the respondent No.2 having moved before him an application in writing stating therein the reason for his seeking their recounts, though statutorily enjoined to be preferred before him at the instance of the aggrieved respondent No.2., constituted an open infringement of the mandate of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978. In aftermath, the declaration of result by respondent No.3 after his having untenably recounted the ballot papers thrice cannot come to be vindicated by this Court. Both the authorities below in their renditions constituted in Ext.P-4 and Ext.P-6 have discarded the testimony on oath of RW-3 the returning officer, besides they have omitted to apply ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 7 after its proper appraisal at their instance, the provisions of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 to it. Consequently, the discarding of the .
testimony of RW-3 by both the authorities with emanations aforesaid in it displaying the factum of an open infringement at the instance of respondent No.3 of the provisions of Rule 41 of the Himachal Pradesh Gram of Panchayat (Election) Rules, 1978 have led both to form conclusions and findings which cannot come to be sustained rt by this Court. The reason as meted out in Annexure P-6 the annexure impugned before this Court of the uncontroverted act of the respondent No.3 in proceeding to thrice recount the ballot paper being vindicable, as such recounts of the ballot papers by him was not preceded by any official declaration of result, cannot gain any succor from a close evaluation of the provisions of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 inasmuch as, when it has been mandated therein, that the returning officer as respondent No.3 was, as borne out by his testimony when proceeded to, on an initial count of the ballot papers announce the total number of votes bagged by the contestants and which announcement at his instance constituted declaration of result yet his having proceeded to for reasons aforesaid in infraction of the mandate of sub rule ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 8 2 of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, to recount them thrice rendered the subsequent recounts of the ballot papers by him to be .
legally vitiated. The spirit and import of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 has been wholly misconceived besides misunderstood by the learned Deputy Commissioner inasmuch as his having of proceeded to untenably hold that an official declaration of the result or the outcome of the counting of votes was a rt sine qua non for the provisions of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 to come into play. The misconception at his instance of the spirit of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 has led him to fallaciously draw a conclusion that the official declaration of result of the election was mandatory besides imperative for the provisions of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, to come into play, rather when for the reasons aforesaid the spirit besides the import of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978 empowering the returning officer to recount the ballot papers as he did so was anvilled not upon the fact of the official declaration of the out come or the fate of the election having occurred, rather was grooved in the factum of the ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 9 announcement of the result/fate of the election having been made by him after his having initially counted the ballot papers. Necessarily when he did announce the result within .
the ambit of sub rule 2 of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, in sequel when he proceeded to recount the ballot papers thrice even when the aggrieved respondent No.2 had in terms thereof not meted of out compliance with the mandatory provisions enjoined therein rendered his act of counting thrice the ballot papers rt to be legally unsustainable. Reinforcingly with no compliance of the aforesaid mandatory statutory provisions having been meted out at the instance of respondent No.2 it was not open for the respondent No.3 besides it was not open for the learned Deputy Commissioner to conclude that the recount of the ballot papers by respondent No. 3 was not outside the frame work of Rule 41 of the Himachal Pradesh Gram Panchayat (Election) Rules, 1978, merely for a specious reason that the result or fate of the election was not officially declared. Consequently, the writ petition is allowed. Impugned annexures are quashed and set-aside.
The SDM, Rampur, is directed to recount the ballot papers within three weeks from today. Thereafter he is directed to announce the result. All pending applications are also disposed of.
::: Downloaded on - 15/04/2017 18:57:21 :::HCHP 1016th September, 2015. (Sureshwar Thakur) ™ Judge.
.
of rt ::: Downloaded on - 15/04/2017 18:57:21 :::HCHP