A single-judge bench of the Madras High Court comprising Justice B. Pugalendhi rejected a revision petition where the petitioner claimed that there was an irregularity in the counting of the votes in the election for the post of Councillor in the Madurai Corporation, but failed to substantiate her claims by any concrete proof.
The court analyzed the Supreme Court judgments and the relevant provisions in this regard while highlighting that recounting of votes is a rare scenario where a ‘prima facie’ case is made for the petitioner establishing any irregularity or illegality in the counting of votes.
Brief Facts:
The petitioner was a candidate and she contested for the post of Councillor of Ward No.26 of Madurai Corporation but failed. She filed a petition in Election O.P.No.40 of 2012 under Rule 118 of the Tamil Nadu Town Panchayats, Third Grade Municipalities and Municipal and Corporation Councils (Elections) Rules, 2006, before the I Additional District Court, Election Tribunal, Madurai, for a declaration and for recounting of the votes. The trial Court, by order dated 28.10.2022, dismissed this application, and aggrieved over the same, the petitioner filed the present revision petition in the Madras High Court.
Contentions of the Petitioner:
According to the petitioner, the sixth respondent herein, who was her rival candidate, had been wrongly declared as the successful contestant. The polling of votes was conducted on 19.02.2022 from 07.00 am to 06.00 pm and there were 11 booths starting from booth nos.314 to 323. The petitioner contends that the Presiding Officer has not given the actual number of votes secured and recorded in booth no.320, which eventually led to malpractice and favoritism in respect of the sixth respondent. The further case of the petitioner is that the fifth respondent, in a pre-judgmental manner, counted the votes polled in Ward No.26 and arbitrarily declared the sixth respondent as the successful candidate.
Issue before the Court:
Whether there were any improper acceptance of invalid votes or improper rejections of valid votes by the fifth respondent?
Observations of the Court:
The court relied on 2 landmark decisions of the Supreme Court in this regard. The judgments and their ratios are as follows:
- Vadivelu v. Sundaram [(2000) 8 SCC 355]
“Re-count of votes could be ordered very rarely and on the specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied with the truthfulness of the above allegation, it can order a re-count of votes.”
- Suresh Prasad Yadav v. Jai Prakash Mishra, [(1975) 4 SCC 822]
“The Court would be justified in ordering a recount of the ballot papers only where:
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.”
The court also went through Rule 88 of the Tamil Nadu Town Panchayats, Third Grade Municipalities and Municipal and Corporation Councils (Elections) Rules, 2006 as the petitioner contended that no reasonable opportunity was given to her as contemplated under Rules 88(1) and 88(5) to raise a request for recounting. In that regard, the court held that there is a clear statutory embargo under Rule 88(1) that after the declaration of results, an application for recounting of results cannot be filed. To reaffirm the interpretation, the court relied on the case of R. Natarajan v. State Chief Election Officer, State Election Commission, Government of Tamil Nadu [(2011) 2 LW 259] which held that the burden is upon the Petitioner to establish the fact that he had given written request and that the Second Respondent refused to receive the same. In the present case, none of the claims were substantiated by evidence, including the evidence of any digital media reports that the petitioner claimed to have happened.
Without showing sufficient steps, the petitioner was not allowed to claim to have been denied an opportunity to raise objections before the fifth respondent. A mere allegation was held to be not enough and the petitioner must have proved by evidence how the fifth respondent colluded with the sixth respondent and declared the result urgently, without giving time to raise any objections. Therefore, the request made by the petitioner in Ex. P6 lacked merits since it was filed after the declaration of the result.
The application filed under Rule 88 for recounting itself is barred, as it was filed after the declaration of results. The analysis of all the other grounds showed that the petitioner failed to prove the allegations leveled in the petition. The petitioner had not made enough case to substantiate the fact that there was improper acceptance of invalid votes or improper rejection of valid votes. Hence, there was no prima facie case for the petitioner establishing any irregularity or illegality in the counting of votes.
Decision of the Court:
The court dismissed the civil revision petition and close the connected miscellaneous petition.
Case Title: K. Muthu Sumathi vs The Tamil Nadu State Election Commission and others
Coram: Justice B. Pugalendhi
Case No.: CRP(MD)No.2284 of 2022 and CMP(MD)No.10896 of 2022
Advocate for the Petitioner: Mr. T. Lajapathi Roy
Advocate for the Respondents: Mr. B. Saravanan (For R1, R4 and R5); Mr. A. Baskaran (For R2 and R3)
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