Orissa High Court
Kulamani Behera vs Jayanta Samal And Anr. on 12 February, 2004
Equivalent citations: 97(2004)CLT449, 2004(I)OLR336, 2004 A I H C 1599, (2004) 1 ORISSA LR 336, (2005) 1 CIVLJ 123, (2004) 97 CUT LT 449
Author: A. K. Patnaik
Bench: A.K. Patnaik, Pradip Mohanty
JUDGMENT A. K. Patnaik, J.
1. The petitioner and the opposite party No. 1 contested the election for the post of Sarpanch of Kenduapada Grama Panchayat. On 28.2.2002, the result of the said election was declared and the petitioner was declared elected. On 2.4.2002 opposite party No. 1 filed Election Misc. Case No. 100 of 2002 praying for re-examination and re-counting of the votes cast in the election of Sarpanch of Kenduapada Grama Panchayat, declaration of election of the petitioner as Sarpanch of Kenduapada Grama Panchayat as invalid and void and declaration that the opposite party No. 1 has secured the majority of lawful votes and that the opposite party No. 1 has been elected as Sarpanch of Kendgapada Grama Panchayat. The petitioner filed a reply or rejoinder in the said Election Misc. Case and on the pleadings of the parties, the learned Civil Judge framed issues on 12.8.2002. Thereafter, witnesses were examined On behalf of opposite party No, 1 and on behalf of the petitioner and on 16.9.2002, the learned Civil Judge passed an order for re-examination and re-counting of the votes. Aggrieved, the petitioner filed a civil revision C.R.P. No. 37 of 2002 in the Court of the learned Additional District Judge, Bhadrak challenging the said order dated 16.9.2002 of the learned Subordinate Judge for re-counting but by judgment dated 22.11.2002 the learned Additional District Judge, Bhadrak dismissed the said revision. Aggrieved, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution praying for quashing the order dated 16.9.2002 passed by the learned Civil Judge for re-counting and the judgment dated 22.11.2002 of the learned Additional District Judge dismissing the revision.
2. On 3.12.2002, the Court while issuing notice of admission passed an interim order in Misc. Case No. 4097 of 2002 staying the re-counting of votes. The opposite party No. 1 thereafter filed Misc. Case No. 4665 of 2002 for vacating the said interim order stating therein that the counting of votes has started and votes of seven booths out of sixteen booths have already been counted and by order dated 7.1.2003, the Court modified the earlier interim order dated 3.12.2002 and directed the learned Civil Judge to complete re-counting of votes but not to pass any final order in Election Misc. Case No. 100 of 2002 and submit the result in a sealed cover to this Court. In the said order dated 7.1.2003, the Court, however, observed that the order of modification was without prejudice and subject to the rights and contention of the parties. Pursuant to the said order dated 7.1.2003, the re-counting has been completed and the results of the re-counting have been sent to this Court in sealed cover.
3. At the hearing, Mr. R. K. Mohanty, learned counsel for the petitioner, submitted that in the order dated 16.9.2002 for re-counting, the learned Civil Judge has unambiguously held that the opposite party No. 1, the election petitioner, could not adduce any evidence regarding the exact number of votes improperly rejected or improperly accepted. He argued that in view of the said finding of the learned Civil Judge, the prayer for re-examination and re-counting should have been rejected by the learned Civil Judge in view of the law settled by the Supreme Court that the Court would not pass an order for re-examination and re-counting of votes unless it is prima facie satisfied on the basis of the pleadings in the election petition and evidence that there is illegality in the counting of votes. He cited the decisions of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors., AIR 1964 SC 1249; Shri Jitendra Bahadur Singh v. Shri Kirshna Behari and Ors., AIR 1970 SC 276; Shri Flam Autar Singh Bhadauria v. Chaudhari Ram Gopal Singh and Ors., AIR 1975 SC 2182, where the Supreme Court has laid down the law that an order for inspection and recounting can be passed provided the petition for setting aside the election contains adequate statement of the material facts on which the petitioner relies in support of his case and the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of ballot papers is necessary. Mr. Mohanty also relied on the decisions of the Supreme Court in Jagannath Rao v. Raj Kishore and Ors., AIR 1972 SC 447, Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav and Ors., AIR 1973 SC 215; Beliram Bhalaik v. Jai Behari Lal Khachi and Anr., AIR 1975 SC 283; P.K.K. Shamsudeen v. K. A. M. Mappillai Mohindeen and Ors., AIR 1989 SC 640; T. H. Musthaffa v. M. P. Varghese and Ors., AIR 2000 SC 153 and Vadivelu v. Sundaram and Ors., AIR 2000 SC 3230, wherein final orders passed by the Election Tribunal after re-counting have been set aside by the Supreme Court after reiterating the aforesaid position of law. He also relied on the decision of this Court in Rabindra Kumar Mallick v. Panchanan Kanungo and Ors., 1998 (II) OLR 214, on this point.
4. Mr. Mohanty next submitted that no complaint had been filed on behalf of opposite party No. 1 as envisaged under Rule 92-C of the Orissa Grama Panchayats Election Rules, 1965 (for short, "the Rules") nor had any motion for re-counting been made on his behalf under Rule 51 of the Rules. Similarly, no complaint regarding, booth capturing and tampering at the time of election was made in terms of Rule 56 of the Rules and yet when the Court received packets containing ballot papers from the B.D.O., opposite party No. 2, there were gross discrepancies found in the packets of booth Nos. 3 and 7 which would go to show that the packets in respect of the two booths had been tampered. Mr. Mohanty argued that all these facts should have weighed with the learned Civil Judge while deciding whether to pass an order for re-examination and re-counting of ballot papers.
5. Mr. Mohanty further submitted that the learned Civil Judge has not decided the question as to whether the Election Misc. Case filed by opposite party No. 1 was barred by limitation and no relief whatsoever including the order for re-counting could have been granted until the question of limitation was decided by the learned Civil Judge. Mr. Mohanty argued that the impugned order dated 16.9.2002 for re-counting passed by the learned Civil Judge was not a final order but was an interlocutory order and was not appealable under Section 38(4) of the Orissa Grama Panchayats Act, 1964 (for short "the Act") as has been held by a Division Bench of this Court in Niranjan Sahu v. Narasu Satpathy and Ors., XXXV (1969) CLT 977. He submitted that since the impugned order was not appealable, the petitioner had no option but to approach this Court under Articles 226 and 227 of the Constitution for relief. He further argued that Article 243-O of the Constitution contains a bar for the Court to interfere with an election and states that an election to a Grama Panchayat can be challenged only in a manner as provided under the law providing for such challenge, but this Article does not create any bar for the High Court to interfere in an order passed by the Authority/Tribunal/Court empowered to decide the election case. In this case, Mr. Mohanty vehemently argued that the impugned order dated 16.9.2002 passed by the learned Civil Judge being totally contrary to the law laid down by the Supreme Court on inspection and re-count of votes is liable to be interfered with by this Court under Article 226/227 of the Constitution. He explained that even if the re-counting is now complete and the result of such re-counting shows that the opposite party No. 1 has secured more number of votes than the petitioner, the Court can still interfere with the order dated 16.9,2002 for re-examination and re-counting passed by the learned Civil Judge if it is contrary to law as in the order dated 7.1,2003 this Court while modifying the earlier order of stay of re-counting has clarified that the order dated 7.1.2003 for completion of re-counting of votes is without prejudice and subject to the rights and contentions of the parties.
6. Mr. N. C. Panigrahi, learned counsel appearing for opposite party No. 1, on the other hand, submitted that pursuant to order dated 7.1.2003 passed by this Court in Misc. Case No. 4665 of 2002 to complete the re-counting of votes, the learned Civil Judge has completed the re-counting of votes in presence of both the parties and their advocates and during re-counting it was found that a large number of votes with double-stamping had been counted in favour of the petitioner during the counting before the election authorities and after those votes were excluded at the re-counting by the Court, it was found that the opposite party No. 1 has won the election by securing 72 (seventy-two) more votes than the petitioner. He however stated that the result of the re-counting has not been given effect to on account of the order passed by this Court on 7.1.2003 in Misc. Case No. 4665 of 2002 that the learned Civil Judge will not pass any final order in Election Misc. Case No. 100 of 2002 after completing the re-counting of votes and will submit the results of re-counting in a sealed cover to this Court. Mr. Panigrahi cited the recent judgment of the Supreme Court in T.A. Ahammed Kabeer v. A. A. Azeez and Ors., AIR 2003 SC 2271, in which it has been held that "once the Court has permitted re-count within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to". He further submitted that the re-count was completed by the learned Civil Judge pursuant to the order dated 7.1.2003 passed by this Court in Misc. Case No. 4665 of 2002 and if the petitioner had any grievance against the order dated 7.1.2003 of this Court for completing the re-count, he should have challenged the order dated 7.1.2003 before the Supreme Court, but he has not done so and has accepted the said order of re-counting to be valid and binding. He vehemently submitted that once the re-counting has been completed pursuant to the order dated 7.1.2003 passed by this Court, the wish of the voters as found in such re-counting has to be respected.
7. Mr. Panigrahi next submitted that in view of the constitutional provisions in Article 243-O(b) and the statutory provisions in Section 38 of the Act, an election to any Panchayat can only be challenged in a manner provided by law made by the Legislature and not in a writ petition under Article 226/227 of the Constitution. Therefore, this writ petition is not maintainable. He explained that the term "Election" connotes the entire process of election till a candidate is declared elected and, therefore, the challenge to the election can only be made in a manner provided in the Act and not under Article 226 or Article 227 of the Constitution. In support of this submission, he relied on the decisions of the Supreme Court in, N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors., AIR 1952 SC 64; Inderjit Barua and Ors. v. Election Commission of India, AIR 1984 SC 1911; Election Commission of India v. Shivaji and Ors., AIR 1988 SC 61; Pitambar Bhoi v. Collector, Kalahandi and Ors., 76 (1993) CLT 147. Mr. Panigrahi further submitted that the order of re-counting passed by the learned Civil Judge also could have been challenged by the petitioner by way of an appeal under Sub-section (4) of Section 38 of the Act and yet the petitioner has not challenged the order dated 16.9.2002 in appeal and thus the order of re-counting has become final under Sub-section (3) of Section 38 of the Act. He cited the decision of the Supreme Court in the case of Sadhana Lodh v. National Insurance Company Ltd. and Anr., AIR 2003 SC 1561, in which it has been held that the right of appeal is the statutory right and when the law provides remedy by filing appeals on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226 and 227 of the Constitution on the premises that the insurer has limited grounds available for challenging the award given by the Tribunal.
8. On the question of limitation, Mr. Panigrahi submitted that the petitioner never objected to the election petition on the ground of limitation and instead he participated in the day to day proceeding till re-counting order was passed. Mr. Panigrahi cited the decision in Murugappa Naicker v. Thayammal, 70 Indian Cases 827, that where delay in presenting an appeal is excused by the Court at the time of admission by an ex-parte order, the respondent in the appeal, if he wishes to object to the order, must do so by motion at the earliest opportunity after he becomes aware of the order and cannot raise a preliminary objection on the point at the hearing of the appeal after all the expenses of hearing have been incurred. He also cited the decision of this Court in Panchu Das and Anr. v. Jata Behera and Ors., 62 (1986) CLT 556, for the proposition that the Court has the power to condone delay ex-parte at the admission stage. Finally, Mr. Panigrahi submitted that although at the recounting the petitioner has been found to have lost the election, he is continuing in the post of Sarpanch for more than one year and a half and the opposite party No. 1 who has won the election must be allowed to hold the post of the Sarpanch of Kenduapada Grama Panchayat and the writ petition should be dismissed.
9. The first question to be decided in this case is whether this writ petition under Article 226/227 of the Constitution is maintainable against the order dated 16.9.2002 passed by the learned Civil Judge in Election Misc. Case No. 100 of 2002 for re-counting and re-examination of the votes. Article 243-O of the Constitution, which according to Mr. Panigrahi creates a bar for the High Court to entertain , a writ petition under Article 226/227 of the Constitution, is quoted herein below :
"243-O. Bar to interference by Courts in Electoral Matters : Notwithstanding anything in this Constitution :
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."
Article 243-O provides that notwithstanding anything contained in the Constitution, no election to any Panchayat shall be called in question except by an election petition presented to such authority in such manner as is provided for by or under any law made by the Legislature of a State. The Legislature of the State of Orissa has made elaborate provisions in Sections 31 to 43 of the Act laying down the manner in which election to any Panchayat can be called in question. Thus, notwithstanding the provisions in Article 226/227 of the Constitution, no election to any Panchayat can be called in question except by an election petition presented to the authority and in the manner as provided in Sections 31 to 43 of the Act in view of the bar in Article 243-O of the Constitution. But there is nothing in Article 243-O of the Constitution ousting the jurisdiction of the High Court under Article 226/227 of the Constitution to interfere in an order passed by the Authority/Tribunal/Court empowered under the law made by the Legislature to decide an election case if such an order has been passed without keeping in mind the well-settled parameters of exercising jurisdiction vested in such Authority/Tribunal/ Court by the law. In N. P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. (supra) cited by Mr. Panigrahi, the Supreme Court while interpreting Article 329(b) which is similar to Article 243-O(b) held that the High Court in exercise of its power under Article 226 cannot interfere with election which will embrace the whole procedure of election including the rejection or acceptance of a nomination paper and the challenge to any improper rejection/acceptance of a nomination paper can only be made before the Election Tribunal constituted under the Representation of the People Act, 1951. So also in Inderjit Barua and Ors. v. Election Commission of India (supra) cited by Mr. Panigrahi, the Supreme Court held that in view of the bar in Article 329(b) of the Constitution, a writ petition challenging the election on the ground that the electoral rolls were invalid was not maintainable. Similarly, in Election Commission of India v. Shivaji and Ors. (supra) cited by Mr. Panigrahi, the Supreme Court held that the High Court cannot entertain a writ petition challenging the notification fixing the calendar of events for the purpose of holding elections to the Legislative Council in view of the provisions of Article 329(b) of the Constitution. In Pitambar Bhoi v. Collector, Kalahandi and Ors. (supra) cited by Mr. Panigrahi, a Division Bench of this Court has also held that election of a person as Member of a Panchayat Samiti cannot be challenged under Article 226 of the Constitution and can only be challenged in accordance with the provisions in the Orissa Panchayat Samiti Act, 1959. In all these decisions cited by Mr. Panigrahi, therefore, it has been held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot interfere with the process of election, but in none of these decisions any law has been laid down that the High Court in exercise of its jurisdiction under Article 226 of the Constitution cannot interfere with an order passed by the Authority/ Tribunal/Court having jurisdiction to decide an election dispute if the said order is not in accordance with the well-settled parameters of exercising jurisdiction.
10. Mr. Panigrahi, however, submitted that Sub-section (3) of Section 38 of the Act would make it clear that orders passed by the Civil Judge in an election case would be final and conclusive subject to any appeals under Sub-section (4) of Section 38 of the Act. He argued that in view of the said provision, this Court cannot interfere with the order dated 16.9.2002 under Article 226/227 of the Constitution. We are unable to accept the said submission of Mr. Panigrahi. It is true that Sub-section (3) of Section 38 of the Act makes the orders passed by the Civil Judge in an election case final and conclusive subject to appeals under Sub-section (4) of Section 38 of the Act, but such finality provisions in a Statute cannot oust the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. In Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412, in respect of a similar provision in paragraph 6(1) of the Tenth Schedule making the decision of the Speaker/Chairman final M. N. Venkatachaliah, J. (as he then was) delivering the judgment for himself and on behalf of K. Jayachandra Reddy and S. C. Agarwal, JJ. held:
"That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity, are concerned."
Thus, even if a Statute makes a decision of an Authority/Tribunal/ Court final, such decision cannot oust the jurisdiction of the High Court under Article 226/227 of the Constitution to interfere with the order passed by the Authority/Tribunal/Court if the order has not been passed according to the well-settled parameters for exercise of jurisdiction by such Authority/Tribunal/Court. It is also true that Sub-section (4) of Section 38 of the Act provides for statutory remedy by way of an appeal against the order passed by the learned Civil Judge, but in Niranjan Sahu v. Narasu Satpathy and Ors. (supra) cited by Mr. Mohanty, a Division Bench of this Court interpreting the provisions of Section 38 of the Act has held that an appeal under Sub-section (4) of Section 38 of the Act is available only against an order dismissing or allowing an election petition and not against an interlocutory order. The portion of the judgment of this Court in Niranjan Sahu v. Narasu Satpathy and Ors. (supra) which contains the reason for the aforesaid conclusion is quoted herein below :
"On a perusal of the various Sub-sections, it is clear that an appeal lies only against final orders passed under Sub-sections (1) and (2), and no appeal lies against an interlocutory order. Those very Sub-sections make provisions for awarding of costs at the discretion of the Munsif. The first proviso to Sub-section (3) makes the provision further clear that the appeal is to lie against any order made under Section 38. This Section makes no provision for passing of interlocutory orders. It merely conceives of final orders either of dismissal or of allowing the election petition. We are therefore satisfied that there is no substance in the preliminary objection. No appeal lies to the District Judge, and the only remedy is by an application under Article 226 of the Constitution."
11. In Sadhana Lodh v. National Insurance Company Ltd. and Anr. (supra) cited by Mr. Panigrahi, the insurer instead of filing an appeal before the High Court against the award of compensation against it, filed a writ petition under Articles 226 and 227 of the Constitution and the High Court entertained the said writ petition under Article 227 of the Constitution and reduced the compensation awarded against the insurer and the Supreme Court held that where the law provides remedy by filing appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a writ petition under Article 227 of the Constitution on the premises that the insurer could not have filed the appeal challenging the award given by the Tribunal in view of the provisions in Section 149(2) of the Motor Vehicles Act, 1988. The reasoning adopted by the Supreme Court in the case of Sadhana Lodh v. National Insurance Company Ltd. and Anr. (supra) is as follows :
"... Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (See National Insurance Co. Ltd., Chandigarh v. Nicolletta Rohtagi; (2002) 7 SCC 456. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived."
But in the instant case, the writ petitioner who had been elected as the Sarpanch of a Grama Panchayat and whose election was under challenge in the election case before the Civil Judge could legitimately resist an order for re-examination and re-count of ballot papers on the ground that such an order could not be passed in the absence of proper pleadings and evidence to prima facie satisfy the Civil Judge that there has been illegality in counting of the votes and the High Court under Articles 226 and 227 of the Constitution can entertain and interfere in a writ petition filed in an order passed by the learned Civil Judge for re-examination and re-count of ballot papers if the order has been passed ignoring the well settled principles laid down by the Supreme Court for passing such order.
12. The next question to be decided is whether the Court can at this stage set aside the order of re-count after having directed the learned Civil Judge to complete the re-count and submit the results in a sealed cover to this Court by order dated 7.1.2003 passed in Misc. Case No. 4665 of 2002, particularly when the petitioner has not challenged the said order dated 7.1.2003 before the Supreme Court. The said order dated 7.1.2003 passed by this Court in Misc. Case No. 4665 of 2002 is quoted herein below :
"Misc. Case No. 4665 of 2002 :
5. 7.1.2003: We have heard Shri R.K. Mohanty for the petitioner and Shri S. K. Naik (2) for Opposite party No. 1.
In modification of the interim order dated 3.12.2002, we direct the learned Civil Judge (Junior Division), Bhadrak to complete recounting of votes, but will not pass any final order in Election Misc. Case No. 100 of 2002, and submit its result in a sealed cover so as to reach this Co'urt on or before 23.1.2003. This order is without prejudice and subject to the rights and contentions of the parties.
List this case on the date fixed (23.1.2003).
In the meantime, call for the records in Election Misc. Case No. 100 of 2002 from the Civil Judge (Junior Division), Bhadrak.
Sd. R. K. Patra, J.
Sd. M. Papanna, J."
It will be clear from the order dated 7.1.2003 in Misc. Case No. 4665 of 2002 quoted above that the said order dated 7.1.2003 was without prejudice and subject to the rights and contentions of the parties. Hence, it was not necessary for the petitioner to challenge the order dated 7.1.2003 passed in Misc. Case No. 4665 of 2002 before the Supreme Court as he could still raise a contention at the time of hearing of the main writ petition that the order of re-count passed by the learned Civil Judge (Junior Division), Bhadrak impugned in the writ petition was illegal and was liable to quashed. The contention of Mr. Panigrahi that the Court cannot at this stage quash the order of re-count having directed the learned Civil Judge by order dated 7.1.2003 to complete the re-count and to submit the result in a sealed cover to this Court is thus misconceived.
13. Mr. Panigrahi, however, vehemently contended that since in the re-count completed by the Civil Judge (Junior Division), Bhadrak the opposite party No. 1 has been found to have secured 72 votes more than the petitioner, the wish of the voters as found in such re-counting has to be respected in the interest of democracy and for this proposition, he relied on the recent judgment of the Supreme Court in T. A, Ahammed Kabeer v. A.A. Azeez and Ors. (supra) wherein it has been held that "once the Court has permitted recount within the welt-settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to". The very language used by the Supreme Court in the aforesaid case would show that only when the order of re-count is passed within the well-settled parameters of exercising jurisdiction in that regard, the result of such re-count has to be given effect to. But where the order of re-count is passed by the Court contrary to the well-settled parameters of exercising jurisdiction in that regard, the Court will have to set aside the order of re-count as being illegal irrespective of the result of the re-count. In P. K. K. Shamsudeen v. K. A. M. Mappillai Mohindeen and Ors. (supra), a similar contention was raised that once it is found in the re-count that a person has received majority of votes, the verdict given by the majority being the essence of democracy has to be respected even if the order for re-count was bad, but the Suprerne Court rejected the contention with the following reasons :
13.... the settled position of law is that the justification; for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary Rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek 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 in the interests of justice, a Tribunal or court should not order the recount of votes.
14. *** *** ***
15. Mr. Padamanabhan 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 order of reference of the case of N. Gopal Reddy v. Bonala Krishnamurty, C.A. No. 3730 (NCE) of 1986 reported in 1987 JT 406 and hence it would be a travesty of justice and opposed to all democratic canons to allow respondent 1 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 to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall 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."
In the aforesaid case of P. K, K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors. (supra), Mohindeen had been declared elected as the President of the Keelpaguthi Panchayat, Kulithalai Taluk, Tamil Nadu having secured 649 votes. Shamsudeen who also contested the election had secured 556 votes which was the second highest number of votes. Shamsudeen filed an election petition under Section 178 of the Tamil Nadu Panchayats Act before the Election Tribunal (District Munsif) for setting aside the election of Mohindeen and for ordering re-count of votes and for declaring that he had been duly elected. The Election Tribunal passed a cryptic order for recounting and in the re-count of votes it was found that Shamsudeen had secured 556 votes but Mohindeen had secured 528 votes as against 649 votes originally secured by him. The order of re-count passed by the Tribunal was challenged by Mohindeen before the High Court in Civil Revision and the High Court allowed the revision holding that the Tribunal had erred in ordering re-count of votes because the petitioner had not made out a prima facie case for an order of re-count of votes and set aside the order of re-count passed by the Tribunal and restored the election result in favour of Mohindeen. The order passed by the High Court in revision was challenged before the Supreme Court in a Special Leave Petition, but the Supreme Court upheld the order of the High Court after making the observations quoted above and dismissed the Special Leave Petition of Shamsudeen.
14. The real question, therefore, to be decided in this writ petition is, whether the impugned order dated 16.9.2002 has been passed by the learned Civil Judge within the well-settled parameters of exercising jurisdiction in this regard. The law for exercise of jurisdiction by the Election Tribunal with regard to the inspection of ballot papers as has been laid down by a Constitution Bench of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. (supra) is as follows :
"(7) An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled :
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts, To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a more allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."
In 5mt. Sumitra Devi v. Shri Sheo Shanker Prasad Yadav and Ors. (supra), the Supreme Court while applying the aforesaid law to the facts of that case held :
"10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection."
It is thus clear that for an order for re-examination and re-count of votes, the election petition must contain adequate statement of material facts including the specific illegalities alleged to have been committed in the counting of ballot papers and there must be evidence adduced by the election petitioner to prima facie establish such illegalities in counting and an order of re-count cannot be granted as a matter of right but only on good grounds for believing that there has been a mistake in the counting. The impugned order dated 16.9.2002 of the learned Civil Judge does not show that these requirements for an order of inspection and re-counting had been satisfied. The said order dated 16.9.2002 of the learned Civil Judge is quoted herein below :
"E. Misc. Case No. 100/2002 :
25. 16.9.2002: Heard argument from the petitioner and opposite party No. 1. Opposite Party No. 2 did not participate in the argument. In course of argument and on a verification of evidence adduced by the parties, it appears that the bone of contention is regarding assessment of votes by the Presiding Officers. No doubt the petitioner would (sic.) could not adduce evidence regarding exact number of votes improperly rejected or improperly accepted yet he being not in a position to say about exact figures, it is felt proper to re-examine votes and to examine the result sheets for a cross verification of the allegation of the petitioner. Hence, it is ordered that the re-examination and recounting of the votes would take place at 2.30 P.M. in the Court. Parties to remain present for the purpose.
Dictated.
Sd/-
Civil Judge (J.D.), Bhadrak."
In the impugned order dated 16.9.2002 there are no findings recorded by the learned Civil Judge that material facts had been stated in the petition and there was evidence to show that the case of the opposite party No. 1 in the election petition about illegality committed in counting was prima facie believable or probable. In the absence of such findings, the order of re-counting passed by the learned Civil Judge is not sustainable and this is a case where the learned Civil Judge has acted contrary to the well-settled parameters of exercising jurisdiction with regard to inspection and re-counting of votes.
15. Further, one of the issues framed by the learned Civil Judge by his order dated 12.8.2002 in Election Misc. Case No. 100 of 2002 was, "Is the petition barred by limitation ?" If the learned Civil Judge answers this issue in the positive, obviously the election petition of the opposite party No. 1 praying for setting aside the election of petitioner, re-count of votes and declaring the opposite party No. 1 as elected wilt have to be dismissed by the learned Civil Judge and no order for re-counting could be passed. Therefore, the learned Civil Judge could not have passed the impugned order dated 16.9.2002 for re-counting before deciding the issue of limitation and the impugned order for re-examination and re-count is liable to be quashed on this ground also.
16. In the result, the writ petition is allowed and the impugned order dated 16.9.2002 of the learned Civil Judge (Junior Division), Bhadrak in Election Misc. Case No. 100 of 2002 directing re-count of votes and the judgment dated 22.11.2002 of the Additional District Judge, Bhadrak dismissing C.R.P. No. 37 of 2002 are quashed and the lower court records are sent back to the learned Civil Judge (Junior Division), Bhadrak for deciding the Election Misc. Case in accordance with law. Parties shall, however, bear their own costs.
Pradip Mohanty, J.
17. I agree.