Madhya Pradesh High Court
Bharti vs Rashmi on 28 August, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 28th OF AUGUST, 2024
WRIT PETITION No.11435 of 2023
(BHARTI
Vs
RASHMI & ORS.)
Appearance:
(BY SHRI ANIL KUMAR MISHRA WITH SHRI AKRAM KHAN -
ADVOCATES FOR PETITIONER)
(BY SHRI M.P.S. RAGHUVANSHI, SENIOR ADVOCATE WITH SHRI D.S.
RAGHUVANSHI- ADVOCATE FOR RESPONDENTS NO.1 AND SHRI
KAUSHLENDRA SINGH TOMAR - GOVERNMENT ADVOCATE FOR
RESPONDENTS NO.6 TO 8/STATE)
----------------------------------------------------------------------------------
ORDER
This petition under Article 226 of the Constitution of India has been filed by the petitioner being aggrieved by the order dated 04/05/2023 passed by the Sub-Divisional Officer (Revenue) Bhitarwar District Gwalior whereby an election petition filed by the petitioner under section 122 of Madhya Pradesh Rajya Evam Gram Swaraj Adhiniyam, 1993 for re-counting of the votes of polling booth no. 152 was dismissed.
2. The short facts of the case are that the present petitioner who is a local resident of Gram Panchayat Khadauaa had contested an election of sarpanch held on 25.06.2022. After counting of votes results of polling station Nos.150, 151 and 152 were declared on 25.06.2022. On 14.07.2022 polling centre wise and Panchayat wise tabulation of votes casted in panchayat elections Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 2 was done. At polling station No. 150, petitioner had got 295 votes and respondent No.1 had got 129 votes but for polling station no. 151 and 152 presiding officers did not give the slips of results of counting of votes to the petitioner or her authorized agent and only orally told her agent the number of votes received by her, according to which at polling Station number 151 the petitioner had got 88 votes and respondent no. 1 had got 178 votes and so far as polling station No.152 was concerned, it was told that petitioner had got 167 votes and respondent No.1 had got 200 votes. The votes casted in favour of petitioner and respondents No. 1 to 5 are reproduced herein-below:-
S. No. Candidate Polling Polling Polling Total Votes Name Station Station Station No.150 No.151 No.152 1 Bharti 295 88 167 550 2 Rashmi 129 178 200 507 3 Devkunwar 6 1 21 28 4 Smt. Geeta 55 170 15 240 5 Jai Shri 0 1 0 1 6 Sunita Bai 0 3 2 5
3. As per tabulation sheet, the petitioner had secured maximum votes i.e. 550 out of six candidates and respondent No.1 only got 507 votes. Thereafter on 14.07.2022 when the petitioner reached to take election certificate that she came to know that respondent No.1 had been declared elected and the certificate was given to her. The petitioner instantly objected and filed an application for re-counting of the votes and filed an election petition under section 122 of Madhya Pradesh Rajya Evam Gram Swaraj Adhiniyam, 1993. The said election petition was allowed in favour of present petitioner on 18.11.2022 but aggrieved by the aforesaid Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 3 order, the respondent No.1 filed writ petition before this Court challenging the said order vide W.P. No.27091/2023 which was allowed by this Court vide order dated 01.02.2023 and while setting aside the order dated 18.11.2022, Sub-Divisional Officer was directed to follow Rule 11 of The M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 and decide the election petition afresh but it appears that by misinterpreting the said Rules and order of this Court, impugned order dated 04.05.2023 came to be passed whereby the election petition was dismissed on the ground of non-maintainability.
4. Learned counsel for the petitioner had argued that once the result sheet is completed and signed as per Sub-Rule 5 of Rule 80 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, the returning officer has no power to re-count or change the result of election, thereafter the only remedy of the aggrieved party is to file an election petition under Section 122 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 which was filed by the petitioner but learned Sub-Divisional Officer by way of impugned order had went on to dismiss the election petition solely on the ground since no application for re-counting was submitted as per Rule 76 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995, then the petition is not maintainable which is per se illegal and dehors the settled principles of law and on this count alone, the present petition deserves to be allowed and the impugned order deserves to be set-aside.
5. It was further submitted that even though there were specific directions of this Court in the earlier round of litigation to follow the procedure as prescribed under Rule 11 of The M.P. Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 4 Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 which specifically lays down that trial of election petition shall be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, as it is applicable to the trial of suits, proper issues on the basis of pleadings of parties were not framed, which had prejudiced the case of petitioner since while answering issue Nos. 3, 4 and 5, it was held that since no irregularity and illegality is found to have been committed which would allow re-counting and considering keeping in view of secrecy of ballet which is sacrosanct in democracy, there existed no prima facie case for re-counting when there was no issue framed whether in the facts of the case recount can be ordered and in that regard reliance was placed in the matter of Smt. Hazzee Vs. Prescribed Authority reported in 2000 (8) SCC 355 and was argued that when no issue regarding re-counting of the votes was framed, leaving the parties to read between the lines and to analyze the crux of the issue framed and thereafter lead their evidence appears to be wholly illegal.
6. It was further argued that while answering issue Nos. 3, 4 and 5 learned Sub-Divisional Officer had went on to hold that since no application for re-counting of votes was filed as required under Section 80 of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 as well as no documentary proof with regard to illegality or irregularity committed at the time of counting of votes was placed on record, except for certain affidavits filed alongwith election petition and as the secrecy of ballet papers are required to be maintained as per Madhya Pradesh Panchayat Nirvachan Niyam, 1995, the said affidavit are of no consequence which is a clear perverse finding and Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 5 on this count also, the present petition deserves to be allowed and the impugned order is liable to be quashed.
7. To bolster his submissions, he has placed reliance on the judgment rendered by the coordinate Bench of this Court at Jabalpur in Kiran Pidiha Vs. The Sub-Divisional Officer & ors. (W.P. No.7755/2024) on 07.05.2024 and the judgment rendered by Hon'ble Apex Court in the matter of Kuldeep Kumar Vs. U.T. Chandigarh and others in Civil Appeal No.2874 of 2024 on 20.02.2024.
8. Per contra, Shri M.P.S. Raghuvanshi, learned senior counsel alongwith Shri D.S. Raghuvanshi, learned counsel appearing for respondent No.1 had contended that the findings recorded by learned Sub-Divisional Officer are based upon sound consideration of evidence collected during the course of trial of election petition and, therefore, no interference is called for in these proceedings under Article 226 of the Constitution of India. It was further contended that learned Sub-Divisional Officer had rightly held that no evidence was produced by the petitioner which would be necessary for directing re-counting of votes and since it is very well settled that re-counting of votes cannot be directed merely on asking of election petitioner and when the petitioner had failed to produce evidence, the election petition was rightly dismissed. For substantiating his arguments, he had placed reliance in the matter of Vidhyawati Lilhare Vs. Sub-Divisional Officer- Cum- Prescribed Officer reported in 2010 (1) M.P.L.J. 115, Balwan Singh Vs. State of M.P. and others reported in 2019 (1) M.P.L.J. 408, Rani Maraskole Vs. State of M.P. reported in 2016 (2) M.P.L.J. 457 and Chandeshwar Saw Vs. Brij Bhusan Prasad and Others reported Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 6 in (2020) 12 SCC 70 and had contended that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
and if all these circumstances enter into the mind of the Authority and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.
9. On the basis of aforesaid, it was argued that firstly, the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 7 petitioner herself has not adhered to the secrecy of ballet papers which are sacrosanct as she had filed certain affidavits of the persons who had stated therein that they had voted for the petitioner and apart from the aforesaid affidavits, there were no other allegations in clear and specific terms which could be said to have been supported by adequate statements and material facts and therefore, on the basis of frivolous, vague and indefinite allegation, no re- counting of votes at Booth No.152 could have been directed.
10. It was further submitted that the contentions of framing of vague issues were framed which did not cover the controversy and pleading of parties is totally misconceived as from bare perusal of the issues, it could be inferred whether in the circumstances, re- counting could have been ordered. It was thus submitted that present petition being devoid of any merits and is liable to be dismissed.
11. Heard learned counsel for the parties and perused the record.
12. In the earlier round of litigation, this Court vide order dated 01.02.2023 passed in W.P. No. 27091 of 2022 had allowed the election petition preferred by present respondent No.1 against the order by which present petitioner was declared elected Sarpanch of Gram Panchayat Khadauaa wherein while allowing the petition, this Court had observed that since the procedure as prescribed under Rule 11 of he M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 had not been followed since no issues were framed and also parties were not allowed to adduce their evidence and only on the basis of reply which was filed by the petitioner, final order was passed, was held to be improper and the entire proceedings conducted by the Sub-
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 8Divisional Officer was held to be vitiated and the matter was relegated back to the Election Tribunal to frame issues and allow the parties to adduce their evidence. In the light of aforesaid directives of this Courts, the Election Tribunal after remand, had framed following issues:-
स.कक. ववाद प्रशश नशषष्करर्ष
1 ककवा गवाम पकचवाकत खडड़ौओ ष्कक
नशववार्षचश हकततु ततीश मतदवाश ष्ककनन
कमवाकष्क 150, 151, 152, पर मतदवाश
एवक मतगणशवा ष्ककी गई थती?
2 ककवा मतगणशवा ष्कक दड़ौरवाश मतदवाश
ष्ककनन कमवाकष्क 152 पर पतीठवासतीश
अनधिष्कवाररी दवारवा प्रवारूप 17 मततों ष्ककी गणशवा ष्कवा पररणवाम सभती अभकवानथर्षकतों ष्कको हसतवाक्षर ष्कर प्रदवाक कष्ककवा गकवा थवा?
3 ककवा कवानचष्कवाष्कतवार्ष ष्कक दवारवा पतुश :
मतगणशवा ष्कवा आवकदश कदकवा गकवा थवा ?
4 ककवा कवानचष्कवाष्कतवार्ष ष्कक पतुश:
मतगणशवा आवकदश पर ष्ककोई
ष्कवाकर्षववाहरी हतुई थती कवा शहरीक हतुई थती
?
5 ककवा मतदवाश ष्ककनन कमवाकष्क 152 ष्कक
पतीठसतीश अनधिष्कवाररी दवारवा प्रवारूप 17
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 13-09-2024
11:01:40 AM
9
ततैकवार ष्करशक ममें ष्ककोई नलिपपष्ककीक
ततुटरी ष्ककी गई हतै ?
6 ककवा प्रष्करण ममें कदशवाकष्क
16.12.2022 ष्कको हको चतुष्ककी मतगणशवा
ष्कक बकद नलिफवाफतों ष्कको खकोलिवा जवाशवा
उनचत हतै ?
उपरकोकतवाशतुसवार ववाद प्रशश नशनमर्षत हकोशक ष्कक पशचवात प्रनतकवानचष्कवाष्कतवार्ष कमवाकष्क 1 ष्कक दवारवा आवकदश प्रसततुत कष्ककवा गकवा, जको सवतीष्कवार कष्ककवा गकवा और इसष्कक अनतररकत 7 ववाक ववाद आदकश कदशवाकष्क 15.03.2023 सक कदशवाकष्क 17.03.2023 ष्ककी उललिकखखत ष्ककी गई, ममें आवकदश ममें वखणर्षत 07 ववाक ववाद प्रशश नशनमर्षत कष्ककवा गकवा, जको नशमशवाशतुसवार हतै-
7 ककवा म.प्र पकचवाकत नशववार्षचश नशकम 1994 ष्कक नशकम 76 ष्कक अकतगर्षत मतगणशवाओक ष्कवा पतुशमर्षतगणशवा उपनशकम 6 ष्कक परकततुष्क ष्कक मतुतवापबष्क पररणवाम पत पपूरवा हको जवाशक ष्कक बवाद पतुशमर्षतगणशवा ष्कक नलिए ष्ककोई भती आवकदश गगृकहत शहरीक कष्ककवा जवाककगवा इस ष्कवारण सक नशववार्षचश कवानचष्कवा प्रवारकनभष्क रूप सक हरी सकचवालिश ककोगक शहरीक नशरसतती ककोगक ?
13. With regard to issue No.1 and 2, the said issues were answered in affirmative and it was held that counting at centers No. 150, 151 and 152 had taken place and after counting the result in form No.17 was supplied with signature of Presiding Officer.
Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 1014. Here it is noteworthy that there are two form No.17 issued in pursuant to Rule 72(2) of 80(8) of Madhya Pradesh Panchayat Nirvachan Niyam, 1995, one was issued by which respondent No.1 has been declared to be elected by 43 votes and so far as votes casted in favour of present petitioner at voting center 152, therein was found that she had not received a single vote from the said center. Another form No.17 had been submitted by the petitioner dated 16.12.2022 which appears to have been issued after recounting was ordered, which had been set-aside by this Court in earlier round of litigation whereby she has been found to have obtained 168 votes at voting center No.152. Thus, two contradictory form No.17 are available on record.
15. Though admittedly form No.17 which had been submitted by the petitioners appears to have been obtained by the petitioner, after recounting order, was done by Election Tribunal/Sub- Divisional Officer vide order 18.11.2022 which had been set-aside by this court vide order dated 01.02.2023 passed in W.P. No.27091/2022 but the facts remains that the same authority on different occasions has found different number of votes casted in favour petitioner and respondent No.1 and there is also a question mark as to the veracity of form No.17 submitted by the petitioner alongwith rejoinder as when the results after recounting of votes were not declared then how the said form was issued and came in possession of petitioner is also required verification.
16. So far as the findings given by learned Election Tribunal/Sub Divisional Officer with regard to issue No.3 to 5 are concerned, this Court is surprised as to how the findings of irregularity and illegality not committed at Booth No.152 has been Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 11 held to be not proved when there was no issue to that effect and as from perusal of the issues Nos. 3 to 5, which were (i) whether any application for recounting (ii) whether any proceedings were initiated on the said application for recounting submitted by the election petitioner and (iii) whether any typographical error was committed by the Presiding Officer in preparing form No.17 of Booth No.152, it cannot be inferred that the issues pertained to illegality or irregularity committed while recounting rather were altogether different issues on the basis of which no order either of granting recount or denying could have been passed, thus cannot be said to be proper issues framed to resolve the controversy.
17. Further this Court finds that while answering the said issue Election Tribunal/Sub-Divisional Officer had only considered the aspect of non-filing of application for recounting by the petitioner and has also gone into the aspect of secrecy of wallet papers which admittedly is sacrosanct but when specific affidavits of the voters were filed alongwith election petition that they have casted their votes in her favour, then the Election Tribunal/Sub-Divisional Officer should not have discarded those affidavits merely alleging that since secrecy of wallet is sacrosanct, the same could not be considered.
18. Further, it is more interesting to read issue No.7 which appears to be the reason for dismissing the election petition holding it to be not maintainable, appears to be in total derogation of settled principles of law that if recount request is not made by a candidate during the counting, would not preclude him from filing election petition and in election petition after declaration of result, the Court or Tribunal can direct recounting of votes even if parties had not Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 12 applied in writing for recounting of votes to the Returning Officer, as there is no provision under the Act and Rules which prohibits the tribunal to direct recounting of votes.
19. Even otherwise, a party may not know that the recounting is necessary till after result is declared and at that stage, it would not be possible for him to apply for recounting to the returning officer and his only remedy would be filing of election petition under Section 122 of Madhya Pradesh Rajya Evam Gram Swaraj Adhiniyam, 1993 and in such a case, the Court or Tribunal is bound to consider the plea and where a case is made out, directions for recounting can be issued depending upon the evidence led by the parties, thus, this Court finds that Sub-Divisional Officer (Revenue)/Election Tribunal had passed the impugned order without due application of mind rather it is found that the Sub-Divisional Officer had not applied its mind at all and it also appears that in a very hasty manner, he had passed the impugned order dated 04.05.2023 which is not sustainable and is accordingly, set-aside.
20. As a natural corollary, the matter is required to be reheard by the Election Tribunal/Sub-Divisional Officer (Revenue). Since for the second time, the matter has been remanded back due to illegal and arbitrary approach of Sub-Divisional Officer (Revenue), who appears to be the same Authority, on both the occasions, this Court, deems it fit to direct Collector, Gwalior to place the matter before the some other officer/competent authority for consideration from the stage of framing of proper issues and after affording opportunity of hearing to both the parties and leading evidence in that regard, decide the same. It is also directed that the Collector, Gwalior also make endeavor to impart proper training to the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 13-09-2024 11:01:40 AM 13 concerned Sub-Divisional Officer (Revenue) so that the same mistake may not be committed again in such matters.
21. Let aforesaid exercise be completed within a period of eight weeks from the date of receipt of certified copy of this order.
22. With the aforesaid, this petition stands allowed and disposed of.
(MILIND RAMESH PHADKE)
ojha JUDGE
Signature Not Verified
Signed by: YOGENDRA
OJHA
Signing time: 13-09-2024
11:01:40 AM