Bombay High Court
Shri Milind S/O Shreeram Tayade vs Sau Nalini W/O Anil Barade And Others on 11 February, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 WP2294-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No.2294 of 2016
...
Shri Milind s/o Shreeram Tayade,
Aged about 52 years,
Occupation: Agriculturist,
R/o Shirala, Tah. & Dist. Amravati. .. PETITIONER
.. Versus ..
1. Sau. Nalini w/o Anil Barade,
Aged about 48 years,
Occupation: Agriculturists,
R/o Mahuli Jahagir,
Dist. Amravati.
(Original Appellant/Objector)
2. The Commissioner, Amravati
Division, Amravati.
3. The Collector, Amravati
District, Amravati.
4. The Returning Officer,
Agriculture Produce Marketing
Committee, Amravati,
Tahsil and district Amravati.
5. Shri Prakash s/o Tukaram Khadase,
aged about Major,
Occupation: Agriculturist,
R/o Nandgaon Peth, Tah. And Dist.
Amravati.
6. Shri Dilip s/o Eknathrao Dhoke,
Aged about Major,
Occupation- Agriculturist,
R/o Mhaispur, Tah. Bhatkuli,
Dist. Amravati.
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7. Madan s/o Bhimrao Bhalerao,
Aged Major, Occupation :
Agriculturist, R/o Ramgaon,
Tahasil and District Amravati.
8. Shri Vilas s/o Ramkrishna Madar,
Aged about Major, Occupation:
Agriculturist, R/o Kawatha Bahale,
Tah. Bhatkuli, Dist. Amravati.
9. Shri Laxman s/o Barkuji Meshram,
Aged about Major, Occupation:
Agriculturist, R/o Nimbha,
District Amravati. .. RESPONDENTS
Mr. A.S. Kilor, Advocate for Petitioner.
Mr. Raj Wakode, Advocate for Respondent No.1.
Mr. S.B. Bissa, AGP for Respondent Nos. 2 & 3.
....
CORAM : MANISH PITALE, J.
DATE OF RESERVING JUDGMENT : JANUARY 16, 2019.
DATE OF PRONOUNCING JUDGMENT : FEBRUARY 11,2019
JUDGMENT
1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties.
2. By this writ petition, the petitioner, a person elected as member of the Agricultural Produce Marketing Committee, Amravati, from a seat reserved for Scheduled Caste/Scheduled Tribe category in farmer's constituency, has challenged order ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 3 WP2294-16.odt dated 04.04.2016 passed by the respondent no.2- Commissioner, Amravati , whereby appeal of respondent no.1, a contesting candidate, has been allowed and direction has been given to rescrutinise and recount all the 892 ballot papers polled in the election for the said post of member.
3. On 15.09.2015, aforesaid election of the Agricultural Produce Marketing Committee, Amravati, (for short "APMC) was held and votes were counted on 16.09.2015. After counting of votes for the said reserved constituency, respondent no.9, also a contesting candidate, gave a written request for recounting of votes and the Returning Officer accepted the request thereby undertaking recounting of votes. Upon recounting of votes, it was found that the petitioner had received 239 votes while the respondent no.1 had received 228 votes. As the petitioner received the highest number of votes, he was declared elected. It is relevant that there were 892 ballot papers that were recovered from the ballot boxes, of which 159 ballot papers were found to be invalid and 733 ballot papers or votes were found to be valid.
4. The election to the APMC is governed by the provisions of the Maharashtra Agricultural Produce Marketing ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 4 WP2294-16.odt (Development and Regulation) Act, 1963 and the Maharashtra Agricultural Produce Marketing (Development and Regulation) Rules, 1967 (hereinafter referred to as the said Act and the Rules). On 29.09.2015, the respondent no.1 filed an election petition/application under Rule 88 of the aforesaid Rules, claiming that certain votes had been wrongly discarded, which had caused prejudice to her and on this basis, the respondent no.1 made a prayer for calling for the record of the ballot papers and directing recounting of votes. On 05.10.2015, the respondent no.3 Collector, Amravati, before whom the said petition had been filed, rejected the same on the ground that recounting had been already conducted on written application made by respondent no.9 and that, therefore, a further recounting of votes could not be directed.
5. Aggrieved by the said order of respondent no.3, the respondent no.1 filed an appeal under Rule 88 (3) of the said Rules, before the respondent no.2 -Commissioner, reiterating prayer for recounting of votes and adding a further prayer for direction to scrutinize all ballot papers, including invalid ballot papers and to set aside the order passed by the respondent no.3- Collector. By the impugned order dated 04.04.2016, the respondent no.2 Commissioner allowed the appeal of ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 5 WP2294-16.odt respondent no.1 and directed that all the 892 ballot papers be rescrutinized and recounted within a period of 15 days from the date of the order. The petitioner has filed the present writ petition challenging the said order, wherein this Court on 16.04.2016 granted ad-interim stay of the said order of the respondent no.2-Commissioner and the interim order continued to operate during pendency of this writ petition.
6. Mr. Anil S. Kilor, learned counsel appearing for the petitioner, submitted that the very frame of the petition/application filed by respondent no.1, purportedly under Rule 88 of the said Rules, before the respondent no.3- Collector was defective because under the said rule an application/petition can be filed before the Collector for calling into question validity of an election of a returned candidate like the petitioner in the present case. It was submitted that a perusal of the prayers made in the application/petition filed by the respondent no.1 demonstrates that the respondent no.1 had prayed only for recounting of votes and nothing more. It was submitted that Rules 74, 75, 76 and 79 of the aforesaid Rules applied in the correct perspective would show that recounting of votes had been already conducted in the present case on a written application by respondent no.9 and that, ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 6 WP2294-16.odt therefore, a second recount was not contemplated at all under the rules. It was further submitted that under Rule 75 (3) of the said Rules, the respondent no.1 or her counting agent had opportunity to inspect every ballot paper that was rejected and not having raised any objection at that stage, the respondent no.1 could not be permitted to seek rescrutiny of all the ballot papers, including the ballot papers rejected under Rule 75 of the Rules by the Returning Officer. In this context, it was submitted that the further prayer made in appeal filed by respondent no.1 under Rule 88 (3) of the Rules before the respondent no.2- Commissioner, was without any basis and that the respondent no.2- Commissioner committed a grave error in the impugned order by not only entertaining such a prayer, but granting the same. It was further submitted that as per law laid down by the Hon'ble Supreme Court, recounting or rescrutiny of ballot papers ought not to be directed casually and that the person claiming such recounting and rescrutiny is required to make out a very strong case in his/her favour. It was submitted that the pleading on record was wholly insufficient to claim such direction and that, therefore, the impugned order deserved to be set aside. Learned counsel placed reliance on judgments of the Hon'ble Supreme Court in the case of Chanda Singh .vs. Ch. Shiv Ram Varma - AIR ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 7 WP2294-16.odt 1975 Supreme Court 403 and M. Chinnasamy .vs. K.C. Palanisamy - (2004) 6 Supreme Court Cases 341.
7. On the other hand, Mr. Raj Wakode, learned counsel appearing for the contesting respondent no.1 submitted that the respondent no.2- Commissioner had correctly appreciated the defective manner in which scrutiny of ballot papers had been undertaken in the present case and that, therefore, the appeal was correctly allowed, by directing rescrutiny and recounting of the entire 892 ballot papers polled in the said election. It was submitted that the respondent no.1 had given sufficient details in the petition/application filed under Rule 88 of the said Rules, before the respondent no.3 Collector to show as to in what manner certain ballot papers were wrongly held to be invalid by the Returning Officer and that if the said ballot papers were counted as valid votes in favour of the respondent no.1, the result of the election would certainly change in her favour. On this basis, it was submitted that the writ petition was required to be dismissed. It was submitted that even if the statutory provisions provided an opportunity for recounting of votes which in the present case had already taken place on a written application made by respondent no.9, the Court could not be said to be powerless to direct a further recount of votes ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 8 WP2294-16.odt in the interest of justice. The learned counsel placed reliance on judgments of the Hon'ble Supreme Court in the case of Sohan Lal .vs. Babu Gandhi - (2003) 1 Supreme Court Cases 108 and of this Court in the case of Pratiksha .vs. Additional Collector- 2015(2) Mh.L.J. 655.
8. In the present case, the aspect of recounting of votes is dealt with in Part II of Chapter III of the aforesaid Rules. Although the said Part consists of Rules 72 to 90-A, the Rules relevant for the present case are Rules 72, 74, 75, 76, 79 and
88. In addition, Rule 63 pertaining to voting procedure is also relevant. The said relevant rules are quoted below:-
"63. Voting Procedure.
(1) The Voter on receiving the ballot paper shall forthwith-
(a) proceed to one of the polling compartments;
(b) there make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the (candidate or candidates) for whom he intends to vote;
(c) fold the ballot paper so as to conceal his [vote or votes]
(d) if required, show the Presiding Officer the distinguishing mark on the ballot paper;
(e) insert the folded ballot
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paper into the ballot box; and
(f) quit the polling station.
(2) Every voter shall vote without undue
delay.
(3) No voter shall be allowed to enter a
polling compartment when another voter is inside it.
72. Counting of votes.
At every election where a poll is taken, votes shall be counted by, or under the supervision and directions of, the Returning Officer, and each contesting candidates, his election agent, and his counting agents, if any, shall have a right to be present at the time of counting.
74. Scrutiny and opening of ballot boxes.
(1) The Returning Officer may have the ballot boxes used at more than one polling station opened and their contents counted simultaneously.
(2) Before any ballot box is opened at a counting table, the counting agents present at the table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact.
(3) The Returning Officer shall satisfy himself that none of the ballot boxes has in fact been tampered with.
(4) If the Returning Officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall order a fresh ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 10 WP2294-16.odt poll.
75. Scrutiny and rejection of ballot paper.
(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised.
(2) The Returning Officer shall reject a ballot paper----
(a) if it bears any mark or writing by which the voter can be identified; or
(b) if no vote is recorded thereon; or
(c) if votes are given on it in favour of more candidates than there are vacancies to be filled in, or if more than one vote is recorded on it for one candidate; or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given; or
(e) if it is a spurious ballot paper; or
(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established; or
(g) if it bears a serial number, or is of a design, different from the serial number, or as the case may be, design of the ballot papers authorised for use at the polling station; or
(h) if it does not bear the mark which it should have borne under the provisions of sub-rule (3) of rule 62:
Provided that -
(i) Where a Returning Officer is ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 11 WP2294-16.odt satisfied that any such defect as is mentioned in clause (g) or (h) has been caused by any mistake or failure on the part of the Presiding Officer or the Polling Officer, the ballot paper shall not be rejected merely on the ground of such defect;
(ii) a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is in distinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.
(3) Before rejecting any ballot paper under sub-rule (2) the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.
(4) The Returning Officer shall record on every ballot paper which he rejects the letter "R" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp.
(5) All ballot papers rejected under this rule shall be bundled together.
76. Counting of votes.
(1) every ballot paper which is not rejected under rule 75 shall be counted [as many valid votes as there are candidates to be elected for the constituency concerned]:
Provided that, no cover containing tendered ballot papers shall be opened and no such paper shall be counted.
(2) After the counting of ballot papers contained in all the ballot boxes used at polling station has been completed, the Returning Officer shall make the entries in a result sheet in Form 14 and announce the ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 12 WP2294-16.odt particulars.
(3) The valid ballot papers shall thereafter be bundled together and kept along with the bundle of rejected papers in a separate packet which shall be sealed and on which shall be recorded the following particulars, namely:-
(a) the name of the constituency,
(b) the particulars of the polling station where the ballot papers have been used;
(c) the date of counting.
79. Recount of votes.
(1) After the completion of the counting, the Returning Officer shall record in the result sheet in Form [14] the total number of votes polled by each candidate and announce the same.
(2) After such announcement has been made, the 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 allow the application in whole or in part or may reject it in to if it appears to him to be frivolous or unreasonable.
(4) Every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor.
(5) If the Returning Officer declares under sub-rule (3) to allow the application either in whole or in part, he shall -
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(a) count the ballot papers again in accordance with his decision;
(b) amend the result sheet in Form [14] to the extent necessary after such recount, and
(c) announce the amendments so made by him.
(6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the Returning Officer shall complete and sign the result sheet in Form [14] and no application for recount shall be entertained thereafter:
Provided that, no step under this sub-rule shall be taken on the completion of the counting until the candidates and their agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2).
[88. Determination of validity of Election (1) If the validity of any election including bye-election of member of a Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such election refers, such person may, within seven days after the date of the declaration of the result of the election apply in writing to -
(a) the District Deputy Registrar, in case the election pertains to Market Committees, whose annual income from fees under sub-section (1) of election 31, in the immediately preceding market year does not exceed rupees 5 crore, and
(b) to the collector in case the election pertains to market Committees, whose annual income from fees under sub-::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 :::
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(2) On receipt of an application under sub-rule (1), the District Deputy Registrar or the Collector, as the case may be shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he deems fit, pass an order confirming or amending the declared result of election or setting the election aside. If the District Deputy Registrar or the Collector, as the case may be, sets aside the election, he shall fix a date as soon as conveniently may be, for holding a fresh election.
(3) (a) Any person aggrieved by the decision of the District Deputy Registrar may within seven days from the date on which the decision is communicated to him, prefer an appeal against such decision to the Divisional Joint Registrar;
(b) Any person aggrieved by the decision of the Collector may within seven days from the date on which the decision is communicated to him, prefer an appeal against such decision to the Divisional Commissioner appointed under section 6 of the Maharashtra Land Revenue Code, 1966 (Mah.XLI of 1966).
(4) The decision of the District Deputy Registrar or the Collector subject to the decision of the Division Joint Registrar Divisional Commissioner or the Divisional Commissioner appointed under section 6 of the Maharashtra Land Revenue Code, 1966 (Mah. XLI of 1966), as the case may be, in appeal, shall be final.]
9. A perusal of the above quoted rules, shows that a ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 15 WP2294-16.odt specific procedure of voting is provided under Rule 63 and that counting of votes is to be conducted in the presence of the contesting candidates , his election agent and his counting agent.
10. Rule 75 of the said Rules, gives specific grounds in sub-rule (2) for the Returning Officer to reject a ballot paper. The proviso thereto provides guidelines to the Returning Officer as to the basis on which a ballot paper may not be rejected and it is specifically provided that if the intention of the voter to vote for a particular candidate clearly appears from the way in which the ballot paper is marked, such ballot paper shall not be rejected. Sub-rule (3) of Rule 75 of the said Rules provides that the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper before rejecting the same. Rule 76 provides that every ballot paper which is not rejected under Rule 75 shall be counted. Thus, the ballot papers rejected under Rule 75 are not counted at all. Rule 79 provides for an opportunity to any of the candidates to the election to apply in writing to the Returning Officer for recounting of votes after completion of counting. If the application is allowed, the ballot papers are recounted and the result sheet is prepared. It is specifically provided under Rule ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:28 ::: 16 WP2294-16.odt 79(6) of the said Rules that after the result sheet is prepared, either upon the original counting or upon recounting so directed by the Returning Officer, no application for recount shall be entertained thereafter. It is on the basis of the aforesaid Rules and their interpretation that the facts of the present case will have to be examined.
11. In the present case, election took place on 15.09.2015 and counting of votes was undertaken on 16.09.2015. A total of 892 ballot papers were found in the ballot boxes and they were taken up for scrutiny and counting. Upon scrutiny of the ballot papers, 159 were rejected and 733 ballot papers were found to be valid and they were counted. The petitioner was found to have received maximum votes, but the respondent no.9 submitted a written application to the Returning Officer for recounting of votes, pursuant to which the votes were recounted. Thereupon, it was found that the petitioner had received 239 votes while the respondent no.1 had received 228 votes and accordingly, the petitioner was declared elected as member of the APMC from the aforesaid reserved constituency.
12. The respondent no.1 filed election petition/application ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 17 WP2294-16.odt under Rule 88 of the said Rules. A perusal of the said Rule, shows that validity of election can be called in question by such a petition/application within 7 days from declaration of result, which necessarily means that a person filing application/petition under the said rule, is required to make a prayer for setting aside the election of the candidate who has been declared elected. But, in the present case, perusal of the petition/application filed by the respondent no.1 shows that there is no such prayer made in the petition/application. Although the respondent no.1 has prayed for calling for the record and ballot papers and for directing a recounting of votes, in the body of the petition/application certain grounds have been raised by the respondent no.1 stating that certain votes were wrongly discarded by the Returning officer and no other pleadings or grounds have been raised in the said petition/application. In the absence of prayer for setting aside election of the petitioner, the said petition/application filed by respondent no.1 purportedly under Rule 88 of the said Rules, was clearly defective. It is relevant to note that Rule 79(6) of the said Rules, clearly stipulates that after the result sheet has been signed either after the first count under Rule 79(1) of the said Rules or after recounting permitted by the Returning Officer under Rule 79(5) of the said Rules, no application for ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 18 WP2294-16.odt recount shall be entertained thereafter. Thus, the only prayer made on behalf of the respondent no.1 in the said petition/application could not have been granted under Rule 79 (6) of the said Rules.
13. By order dated 05.10.2015, the respondent no.3- Collector rejected the said petition/application of the respondent no.1 by a cryptic order. Although, the said order does not contain detailed reasons, the only reason given by the respondent no.3-Collector was that when once recounting of votes had been completed on a written application submitted by respondent no.9 under Rule 79(2) of the said Rules, further request of recounting made by the respondent no.1 could not be entertained.
14. A perusal of the appeal filed by the respondent no.1 under Rule 88(3) of the said Rules shows that, apart from making a prayer for setting aside the order of respondent no.3- Collector and for recounting of votes, the respondent no.1 made a further prayer for making rescrutiny of all ballot papers including invalid ballot papers. It is this prayer of the respondent no.1 that seems to have impressed the respondent no.2 Commissioner while passing the impugned order and ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 19 WP2294-16.odt allowing the appeal of respondent no.1. A perusal of the impugned order shows that the respondent no.2 Commissioner has placed emphasis on the fact that as many as 159 ballot papers were rejected and that there were certain claims made by the respondent no.1 regarding erroneous rejection of ballot papers which were polled in favour of respondent no.1, and that, therefore, sufficient grounds were made out for granting not only recounting but rescrutiny of the entire ballot papers. In this regard, the respondent no.2- Commissioner relied upon judgment of this Court in the case of Pratiksha Pravin Raut .vs. Additional Collector (supra).
15. In this backdrop, the question that arises for consideration in the present case is, as to whether the respondent no.2- Commissioner could have allowed the appeal of the respondent no.1 and directed not only recounting but rescrutiny of the entire ballot papers in the present case. The scheme that is evident from the above quoted rules in the present case is that the voters are supposed to vote in terms of procedure prescribed in Rule 63, which entails that they are supposed to make a mark on the ballot papers with an instrument supplied for that purpose near the symbol of the candidate of their choice. Thereafter, the voters are required ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 20 WP2294-16.odt to fold the ballot paper and insert the same into the ballot box. Rule 75 of the said Rules gives details regarding the manner in which the Returning Officer shall reject the ballot paper and most significantly the Retuning Officer under Rule 75(3) of the said Rules, is mandated to allow each counting agent of the candidates to inspect the ballot paper before rejecting the same under sub-rule (2) of the said Rule. Thus, the counting agent of each candidate has full opportunity to inspect the ballot paper before the same is rejected and consequently he has an opportunity to raise objection to any wrongful rejection of ballot paper. It is also significant that under Rule 76, only those ballot papers are counted that are not rejected under Rule 75 of the said Rules. Thus, the recounting of votes contemplated under Rule 79 of the said Rules pertains only to such ballot papers that are not rejected under Rule 75 of the said Rules. In other words, recounting is obviously restricted only to the votes that are found to be valid. It is also clear that in the present case recounting of votes was conducted on a written application made by respondent no.9, one of the contesting candidates, under Rule 79(2) of the said Rules, and the Returning Officer had allowed such an application under Rule 79 (5) of the said Rules, upon which after recounting the result sheet was signed wherein the petitioner was found to ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 21 WP2294-16.odt have secured maximum votes and he was declared elected.
16. There is nothing on record to show that the respondent no.1 had at any stage made a written application for recounting or that her counting agent at any stage raised any objection regarding wrongful rejection of ballot papers by the Returning Officer under Rule 75(3) of the said Rules, even when 159 ballot papers were rejected. Therefore, apart from the fact that the prayer made in the petition/application filed by the respondent no.1 under Rule 88 of the said Rules, was defective in the absence of prayer for setting aside the election of the petitioner, a prayer made for further recounting of votes also could not have been granted by the respondent no.3- Collector or the respondent no.2- Commissioner under the said Rules.
17. This is because, Rule 79(6) of the said Rules specifically bars recounting of votes after there has been recount under Rule 79(5) of the said Rules and there is no provision at all in the said Rules for any rescrutiny of the entire ballot papers. This further shows that even if a further recount was to be directed, it would again be of only the ballot papers that were found to be valid and those that were not rejected ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 22 WP2294-16.odt under Rule 75(2) of the said Rules.
18. The respondent no.2 Commissioner completely failed to appreciate the scheme under the aforesaid Rules as regards recounting of votes and the manner in which the scrutiny of ballot papers was to be undertaken and also the manner in which the ballot papers were to be rejected by the Returning Officer. Due to failure on the part of respondent no.2- Commissioner to properly appreciate the true scope of the said Rules, the said respondent in the impugned order has in a casual manner directed not only recounting but rescrutiny of the entire ballot papers, by merely recording certain claims made by respondent no.1 in her application and appeal regarding alleged improper rejection of certain ballot papers. The reliance placed on judgment of this Court in the case of Pratiksha Pravin Raut .vs. Additional Collector (supra) was also misplaced because the said case pertained to a situation wherein there were no statutory rules for rejection and counting of votes. In such a situation, this Court passed an order directing the authorities to conduct fresh election. The facts of the present case are clearly distinguishable from the said case and, therefore, the respondent no.2- Commissioner was not justified in relying upon the said judgment to hold in ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 23 WP2294-16.odt favour of respondent no.1.
19. As regards reliance placed by the learned counsel for the respondent no.1 on judgment of the Hon'ble Supreme Court in the case of Sohan Lal .vs. Babu Gandhi (supra), it has been laid down in the said judgment that the Court cannot be powerless in directing recounting of votes unless the party making such a demand had first applied in writing for recounting of votes before the Returning Officer under the relevant statutory rules. On this basis, it was contended that even if the respondent no.1 in the present case had not applied in writing to the Returning Officer for recounting of votes, the authorities below and the Court were not powerless to grant such a direction. As noted above, Rule 79(6) specifically bars any further application for recount, once the Returning Officer has permitted recounting of votes on a written application by any of the candidates under Rule 79(5) of the said Rules. Even if it is held that the authorities or the Court could still order such recounting beyond the specific statutory scheme, recounting in the present case would be clearly restricted only to those ballot papers which were not rejected under Rule 75 of the said Rules. Therefore, only 733 ballot papers that were not rejected and hence found valid in the present case would again ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 24 WP2294-16.odt become subject matter of recounting. This would be of no avail because after recounting upon written demand made by respondent no.9, the petitioner had been found to have secured 239 votes as opposed to 228 votes secured by respondent no.1.
20. There was no grievance made by respondent no.1 in the present case that in the recounting undertaken on the written application submitted by respondent no.9, there had been some mistake in counting of 733 valid ballot papers in the present case. Therefore, the demand of further recount made on behalf of respondent no.1 on the basis of the judgment of the Hon'ble Supreme Court in the case of Sohan Lal .vs. Babu Gandhi (supra) is found to be without any substance.
21. The other aspect of the present case pertains to a prayer for rescrutiny of the entire ballot papers made by respondent no.1 and grant of such prayer by respondent no.2- Commissioner. In the first place, the learned counsel for respondent no.1 failed to demonstrate before this Court any provision in the aforesaid Act or Rules permitting such rescrutiny of ballot papers after recounting of votes had taken place. The counting agent of respondent no.1 never raised any ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 25 WP2294-16.odt objection when the Returning Officer rejected the 159 ballot papers in the present case. It was not even the grievance of respondent no.1 that even after her counting agent had raised objections, the same were not taken into consideration by the Returning Officer and that ballot papers that were in fact not liable to be rejected, were wrongly rejected by the Returning Officer under Rule 75(2) of the said Rules. Such a grievance was sought to be raised upon setting up grounds in the petition/application filed by respondent no.1 under Rule 88 of the said Rules before respondent no.3- Collector. A reference was made to certain number of ballot papers that were allegedly illegally rejected by the Returning Officer. The nature of pleadings in the said grounds raised in the application/petition is found to be vague and not sufficient to justify the prayer for rescrutiny of the entire 892 ballot papers in the present case. It was not even the case of respondent no.1 that the said wrong rejection of ballot papers was pointed out to the Returning Officer at the time of scrutiny of the ballot papers or immediately thereafter. No such allegation was made even when respondent no.9 submitted application in writing for recount of ballot papers. In this context, the learned counsel appearing for the petitioner is justified in relying upon judgment of the Hon'ble Supreme Court in the case of Chanda ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 26 WP2294-16.odt Singh .vs. Ch. Shiv Ram Varma (supra) wherein the Hon'ble Supreme Court has emphasized that scrutiny of ballot papers and recounting of the same cannot be casually permitted. It has been held in the said judgment as follows:-
"6. Even so, since Shri Bhandare has taken us through several rulings of this Court we may refer to some to see if the law lends support to his position. A democracy runs smooth on the wheels of periodic and pure elections. The verdict at the polls announced by the Returning Officers leads to the formation of Governments. A certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent, and flippant recounts by courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The general reaction, if there is judicial relaxation on this issue, may well be a fresh pressure on luckless candidates, particularly when the winning margin is only of a few hundred votes as here, to ask for a recount Micawberishly looking for numerical good fortune or windfall of chance discovery of illegal rejection or reception of ballots. This may tend to a dangerous disorientation which invades the democratic order by injecting widespread scope for reopening of declared returns, unless the Court restricts recourse to recount to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step. The best surmise, if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise. In short, where the difference ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 :::
27 WP2294-16.odt is microscopic the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistakes is a fair exercise of power. It is significant to note, while it may not necessarily be proper to ape, that in the United Kingdom, seven recounts were allowed in the elections in a constituency in the 1966 elections, as the Handbook of Instructions to Returning Officers shows. The pronouncements of this , Court have struck a cautious note throughout."
22. In the case of M. Chinnasamy .vs. K.C. Palanisamy (supra), the Hon'ble Supreme Court has referred to and quoted from a number of earlier judgments, wherein the Hon'ble Supreme Court has repeatedly emphasized that rescrutiny of ballot papers to examine whether they were correctly rejected or not, cannot be permitted casually as it militates against the the basic principle of secrecy of the ballot, which is sacrosanct in a democracy. It has been held therein that there have to be detailed pleadings to justify such an exercise to be undertaken and that there has to be proper foundation laid by the election petitioner for the Court to direct such rescrutiny/re-inspection and recounting of the entire ballot papers. The relevant portion of the said judgment reads ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 28 WP2294-16.odt as follows:-
"39. Mr. Mani, however, has placed strong reliance on P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen and Others [(1989) 1 SCC 526]. A two-Judge Bench of this Court therein took note of Ram Sewak Yadav and R.Narayan vs. S. Semmalai and Others [(1980) 2 SCC 537] wherein it was observed :
"13. Thus 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 hindsight 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 sacrosant 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."
23. Applying the said position of law to the facts of the present case, it becomes clear that the respondent no.1 had miserably failed to place on record material to pray for rescrutiny of the entire 892 ballot papers polled in the present ::: Uploaded on - 11/02/2019 ::: Downloaded on - 12/02/2019 00:52:29 ::: 29 WP2294-16.odt case. It is also relevant that such a prayer for rescrutiny of ballot papers was made for the first time in the appeal filed by respondent no.1 before the respondent no.2- Commissioner and that in the petition/application filed before respondent no.3- collector, only a prayer for recounting of votes was made on behalf of respondent no.1. The respondent no.2- Commissioner failed to appreciate this aspect of the matter and by merely recording the claims made by respondent no.1, erroneously directed that the entire 892 ballot papers were to be scrutinized again and recounting was to be undertaken, while allowing the appeal of respondent no.1. The impugned order passed by the respondent no.2- Commissioner is, therefore, found to be unsustainable and liable to be quashed and set aside.
24. In the light of the above, the present writ petition is allowed, the impugned order dated 04.04.2016 passed by respondent no.2- Commissioner is quashed and set aside.
25. Rule made absolute in the aforesaid terms with no order as to costs.
(Manish Pitale, J. ) halwai/p.s.
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