Shri Duryodhan Mahadev Kale, Mrs. ... vs Election Returning Officer, ...
2003 Latest Caselaw 611 Bom

JUDGMENT

C.K. Thakker, C.J.

1. This petition is field by the Petitioners against an interim order passed by Civil Judge (J.D.), Indapur on 25th March, 2003 below application Exhibit-5 in Election Petition No. 1 of 2002.

2. Certain facts which are not in dispute may now be stated;

3. On 22nd November, 2002 election of Gram Panchayat, Redni, Taluka Indapur, District Pune, was held. after exclusion of invalid votes, petitioner No. 1 as well as respondent No. 5 obtained 267 votes each. Since both the candidates obtained similar number of votes, no result could be declared. In such circumstances, the provisions of Bombay Village Panchayat Election Rules, 1959 (hereinafter referred to as "the Rules") were required to be followed. Rule 34 of the Rules contemplates declaration of result in certain cases. It reads as under:

"34. Returning Officer to declare result of election.--(1) On completion of the statement showing the number of votes recorded, the Returning Officer shall from amongst the candidates qualified to be chosen to fill reserved a seat, if any, declare subject to the provisions of Rule 5 the candidate who has secured the largest number of votes to be elected to fill such reserved seat:

Provided that if in the same ward there is a reservation of seats for women and for the Scheduled Castes and/or Scheduled Tribes, the result of the seat or seats reserved for Scheduled Castes or Scheduled Tribes shall be declared first and than the result of the seat or seats reserved for women.

(2) The Returning Officer shall then declare from among all other candidates excluding those who have been declared elected to fill the reserved seats, if any, the candidate or candidates who have secured the largest number of votes to be elected to fill the unreserved seats.

(3) Where an equality of votes is found to exist between any candidates either for the reserved or the unreserved seats and the addition of one vote will entitle any of the candidates to be declared elected, the determination of the person or persons to whom such an additional vote shall be deemed to have been given shall be made by lots to be drawn in the presence of the Returning Officer and the candidates or their agents who may desire to be present, and in such manner as the Returning Officer may determine".

4. According to the petitioners, keeping in view Rule 34(3), procedure was followed be declare result by drawing lots. Lots were accordingly, drawn by inviting a minor child Ganesh who had taken up one chit bearing the name of the petitioner No. 1 who was declared as elected.

5. The election of the petitioner was challenged by respondent Nos. 5 to 7 by filing Election Petition No. 1 of 2002 on 28th November, 2002. It appears that an application Exhibit-5, was submitted by defeated candidate praying for a relief of recounting of votes. The learned Judge, by the order impugned in the present petition, allowed the application, granted the prayer and passed an order of recounting which is challenged in this petition.

6. On 9th april, 2003, the Division Bench permitted the learned counsel for the petitioners to move the matter which was taken on board. Notice was issued by making it returnable on 29th April, 2003. In the meanwhile, the order of recounting was stayed.

7. Today, the matter has been called out for hearing. We have heard the learned counsel for the parties.

8. The learned counsel for the petitioners strenuously contended that the order passed by the learned Judge is clearly illegal, without jurisdiction and contrary to the decision of the Supreme Court in P.K.K. Samsudeen v. K.A.M. Mappillai Mohindeen, . It was also submitted that no objection was raised by respondent No. 5 when lots were drawn. At a belated stage, when the petitioner was declared elected, an election petition was filed after about one week i.e. on 28th November, 2002. The learned Judge, in the circumstances, ought not to have granted recounting. It was also urged that learned judge should have been more circumspect and ought not to have ordered recounting casually and for mere asking. It was, therefore, submitted that the order deserves to be quashed and set aside.

9. The learned counsel for respondent No. 5, on the other hand, supported the order passed by the learned Judge. It was submitted that in exercise of power vested in him in accordance with the provisions of Bombay Village Panchayat Act, 1958 and the Rules, the learned Judge passed an order after recording reasons in support of such order and it may not be interfered by this Court. It was also submitted that the learned Judge has recorded a finding that Returning Officer had not drawn lots in presence of both the candidates and hence, it was a fit case for granting prayer for recounting.

10. In our opinion, the order passed by the learned Judge deserves to be quashed and set aside. It is undisputed that both the candidates had obtained 267 votes. In the circumstances, the procedure required to be followed was as laid down in Rule 34. Lots were accordingly drawn. Till then no objection was raised by any candidate, including respondent No. 5. Moreover, there is nothing on record to show that the defeated candidate had invoked Rule 35 which provides for recount of votes after the declaration under Rule 34 of the Rules. Except bare assertion and bald statement, nothing has been placed before the Court to substantiate the contention raised by respondent No. 5. In the light of above facts, the learned counsel for the petitioners, rightly submitted that delay of about a week in approaching the election tribunal by making the prayer for setting aside the election, was significant.

11. The matter can be looked at a from different angle also. It is settled legal position that normally, a Court will not pass an order of recounting. In P.K.K. Samsudeen, after considering the relevant provisions of law and keeping in mind the principles laid down in earlier cases, the Apex Court observed:

"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 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 is a democracy and hence unless the affected candidate is able to alleged and substantiate in a 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 interest of justice, a Tribunal or Court should not order the recount of votes".

(Emphasis supplied)

12. Even before P.K.K. Samsudeen, in R. Narayanan v. S. Semmalai, , the High Court granted the prayer of the defeated candidate and ordered re-counting observing (like the present case) that although there was no clear evidence of any irregularity in counting, there was a possibility of erroneous sorting and counting of votes. Another circumstance weighed with the High Court was small margin of votes (19 votes) between the returned candidate and the defeated candidate.

Reversing the order of the High Court, the Supreme court stated:

"The Court would be justified in ordering re-count 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 of illegality in counting are founded;

(2) On the basis of evidence adduced such allegations of 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."

13. Again, in Vadivelu v. Sundaram and Ors., , after considering all leading decisions on the point, the Apex Court said:

"16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on 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 about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties".

14. In our opinion, therefore, the order passed by the learned Judge is not in consonance with well-settled principle of law and deserves to be quashed and set aside. It is accordingly set aside.

15. At this stage, it may be observed that the election petition is still pending. We, therefore, grant liberty to respondent No. 5 to make a prayer for expeditious hearing of the matter. If such prayer is made, the learned Judge will give priority and will decide the said Election Petition No. 1 of 2002 as expeditiously as possible.

16. The petition is accordingly allowed. The order dated 25th March, 2003 passed below Exhibit-5 by the learned Civil Judge (J.D.), Indapur is hereby set aside. It is clarified that all the observations made by us hereinabove have been made only for the purpose of dealing with and deciding the legality of the order passed by the learned Judge and as and when the election petition will come up for hearing, it will be decided on its own merits. No costs.

Parties be given copies of this order duly authenticated by Sheristedar/Personal Secretary of this Court.