Madhya Pradesh High Court
Suresh Kumar Mishra vs The State Of Madhya Pradesh on 13 February, 2013
WRIT PETITION No.2184/2013 1
13.02.2013
Ms. Smita Arora, learned Counsel for the petitioner.
Heard on the question of admission.
This petition is directed against the order dated
31.01.2013 (Annexure P-4) by which the District Election
Officer has exercised the power under Rule 84 of the
Madhya Pradesh Panchayat Nirvachan Niyam, 1995
(herein after referred to as 'Rules') changing the result of
the election. It is contended that the petitioner and
respondent No.4 both have taken part in the election of
Ward Member of Gram Panchayat, Patehra, Janpad Panchayat Rampur Naikin, District Sidhi. It was certified that the petitioner has secured 43 votes as against the contesting respondent No.4, who has polled 40 votes and a certificate of succeeding in election was issued in respect of the petitioner. However, after grant of such a certificate, a report was made on 21.01.2013 that there was some clerical mistake on account of which wrong result was declared. On receipt of the report of respondent No.3, respondent No.2 called upon the petitioner and the respondent No.4. Upon notice, the petitioner filed his objection categorically stating that counting of votes was done in appropriate manner. Out of 84 votes polled, one was found invalid. The petitioner secured 43 votes and the respondent No.4 has polled 40 votes. Thus, the petitioner was rightly declared elected and a certificate was issued in his respect. The name of the petitioner, his father's name was properly mentioned in the result-sheet and there is no clerical error WRIT PETITION No.2184/2013 2 committed whatsoever and such a report made by respondent No.3 was, thus, liable to be ignored. It is contended that despite making such submission and pointing out the fact that if at all there was any error, in view of the law laid-down by the Apex Court, the only remedy was filing of Election Petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (herein after referred to as 'Act'). The order impugned has been passed directing correction in the result-sheet and declaring respondent No.4 as elected in place of the petitioner, therefore, this writ petition is required to be filed.
It is vehemently contended by the learned Counsel for the petitioner on the strength of law laid-down by the Apex Court in the case of Sohan Lal vs. Babu Gandhi and others, 2003 (2) MPLJ 215, that once the result is declared, no recounting of the votes was permissible. There was no arithmetical or clerical mistake which could be corrected and, therefore, the action taken by the respondents was not proper. In view of this and in view of the law laid-down by the Apex Court, the order impugned is liable to be quashed.
The law laid-down by the Apex Court is minutely examined. Undisputedly in the matter of recounting of votes the Apex Court was considering the provisions of the Rules. The provision of recount of votes is made under the Rules and while examining the said provision, it was categorically held by the Apex Court that the recounting of the votes was not permissible nor any change in the result could have been ordered after WRIT PETITION No.2184/2013 3 declaration of the result. The provisions of Rule 84 of the Rules will not empower the Returning Officer to make change in the result of the elections. For any such aggrieved person, the only remedy would be by filing an election petition under Section 122 of the Act and after examining the evidence available on record, the Election Tribunal would be free to direct recount of the votes. With great respect to law laid-down by the Apex Court, it has to be seen that the provisions of Rule 84 of the Rules were not looked into by the Apex Court nor were interpreted. However, the provision of Rule 84 of the Rules are not applicable in case of recounting of votes.
It is not in dispute that the Rules have been made in exercise of powers conferred on the Rule Making Authority under the Act. Rule 84 of the Rules is reproduced for the purposes of its application and for right appreciation :
"84. Powers of District Election Officer to correct clerical or arithmetical mistakes or errors.- (1) The District Election Officer may at any time but not later than 15 days from the date of declaration of result under rule 81, either suo motu or on a report of the Returning Officer, correct, by an order any clerical or arithmetical mistake or error in the result sheet in Form 16, 17, 18 or 19 or in the return of election in Form 20, 21, 22 or 23 as the case may be :
Provided that no correction or amendment shall be made except after giving a notice to all contesting candidates from the ward or constituency in question, about the date, time and place for taking up the matter for such correction.WRIT PETITION No.2184/2013 4
(2) An order passed by the District Election Officer under sub-rule (1) shall be in writing and contain reasons therefor and a corrected copy of the return of election in Form 20, 21, 22 or 23 as the case may be, duly signed and certified by the District Election Officer shall be sent to the Returning Officer for grant of certificate of election to the candidate declared elected as a result of such correction.
(3) Nothing in sub-rule (1) shall confer any power or authority upon the District Election Officer to open any envelope containing counted ballot papers or to direct re-counting of votes.
(4) The certificate of election in Form 25 under rule 83, if already granted by the Returning Officer to a candidate before an order is passed by the District Election Officer under sub-rule (1), shall be deemed to have been recalled and cancelled."
The Rule Making Authority has categorically conferred the power on the District Election Officer at any time but not later than 15 days from the day of declaration of result of an election to correct any clerical or arithmetical mistake or error in the result- sheet. If a report is submitted by the Returning Officer that while declaring the result a clerical or arithmetical error is committed, that can be corrected by the authority under the provisions of Rule 84 of the Rules. The only requirement is grant of an opportunity of hearing to the concerned. There are certain restrictions put on the District Election Officer. Sub-rule (3) of Rule 84 restricts the District Election Officer to open any envelope containing counted ballot papers and/or to WRIT PETITION No.2184/2013 5 direct recounting of the votes. Similarly, the power is conferred on the District Election Officer under sub-rule (2) and sub-rule (4) of Rule 84 of the Rules to make correction in the certificate of election and to issue a certificate of declaring a candidate elected as a result of such correction. The provisions of sub-rule (4) of Rule 84 of the Rules further makes it clear that a certificate issued by the Returning Officer in respect of a candidate of declaring him as elected is deemed to have been recalled and cancelled. This being so, the provisions of Rule 84 of the Rules are extensively made for making correction in the error committed in declaring the result.
A perusal of the report submitted by respondent No.3, placed on record as Annexure P-2, makes it clear that in fact while making tabulation-sheet of the counting of the votes, it was categorically recorded that Ramprasad, son of Kaushal Prasad Mishra, respondent No.4 herein, has polled 43 votes and Suresh Kumar Mishra, son of Ramsumiran Mishra, the petitioner, has obtained 40 votes only. However, by a mistake instead of declaring the respondent No.4 as elected, certificate was issued in favour of the petitioner declaring him as elected. Neither the recounting of votes was done nor any other document was looked into by the District Election Officer except the tabulation-sheet placed before him by the Returning Officer. This being so, if a clerical mistake was committed in declaring the petitioner as elected, the same could have been corrected by the order of the District Election Officer in WRIT PETITION No.2184/2013 6 exercise of powers under Rule 84 of the Rules, as the declaration of petitioner as elected in election was nothing but a clerical mistake. Such a mistake cannot be termed any other mistake, except a clerical mistake.
Since such a power is rightly exercised by the respondents-authorities, no error is found in the order impugned. However, if the petitioner is not satisfied with the order or according to the petitioner the counting of votes is not rightly done, still the petitioner can approach the Election Tribunal by way of filing an election petition under Section 122 of the Act.
The petition being devoid of any substance, deserves to be and is hereby dismissed without notice to the other side.
(K.K. Trivedi) Judge Skc