Bombay High Court
Sau. Sarika Vilas Kamble vs Returning Officer, Posted For ... on 14 September, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.2303/2020
PETITIONER : Sau. Sarika Vilas Kamble,
aged about 43 years, Occ. Household,
R/o. Vikaram Sheela Nagar, Sindhi (Meghe)
Wardha, Tq. And Dist. Wardha
...VERSUS...
RESPONDENTS : 1. Returning Officer, Posted for Election
of Sindhi (Meghe) Wardha, R/o. Tahsil
Office, Wardha.
2. Election Officer,
Posted for Election of Sarpanch of
Sindhi (Meghe), Wardha, R/o. Tahsil
Office, Wardha.
3. Priti Kirtidhwaj Sawai,
aged about 40 years, Occ. Household,
R/o. Near ITI College, Madha Colony,
Sindhi (Meghe) Wardha, Tq. And Dist.
Wardha,
4.Komal Amolrao Kamble,
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe) Ward No.3 Wardha,
Tq. And Dist. Wardha,
5. Vandana Harishchandra Giradkar,
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe) Ward No.5 Wardha,
Tq. And Dist. Wardha,
6. Usha Waman Chikate
Aged about 40 years, Occ. Household,
R/o. Sindhi (Meghe) Ward No.3 Wardha,
Tq. And Dist. Wardha,
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7. Pratima Rajkumar Jadhav,
Aged about 45 years, Occ. Household,
R/o. Sindhi (Meghe) Ward No.5 Wardha,
Tq. And Dist. Wardha,
8. Pradnya Rambhau Hatekar,
Aged about 40 years, Occ. Household,
R/o. Kishore Waghmare, Behind Matoshri
Mangal Karyalaya, Sindhi (Meghe) Wardha,
Tq. And Dist. Wardha,
9. Archana Sharawanji Bhagat.
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe) Shantai Nagar, Ward
No.4, Wardha, Tq. And Dist. Wardha,
10. Gita Vinod Bhagat,
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe) Shantai Nagar,
Ward No.4 Wardha, Tq. And Dist. Wardha,
11. Pramodhini Nanaji Bhagat,
Aged about 43 years, Occ. Household,
R/o. Sindhi (Meghe) Chandrashekhar
Layout, Ward No.3 Wardha,
Tq. And Dist. Wardha,
12. Kalawati Omprakash Yesnkar
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe) Ward No.3 Wardha,
Tq. And Dist. Wardha,
13 Kirti Subhas Saktel,
Aged about 42 years, Occ. Household,
R/o. Sindhi (Meghe), Thool Layout, Ward
No.2, Wardha, Tq. And Dist. Wardha,
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Shri S.P. Bhandarkar, Advocate with Shri Saurabh Bhende, Advocate
for petitioner
Ms Tajwar Khan, AGP for respondent nos.1 and 2
Shri P.S. Kadam, Advocate for respondent no.3
Ms Malika Goenka, Advocate for respondent nos.4 to 13
CORAM : AVINASH G. GHAROTE, J.
DATE : 02/09/2021, 06/09/2021,
08/07/2021 AND 14/09/2021
ORAL JUDGMENT
1. Heard Shri S.P. Bhandarkar, learned Counsel for the
petitioner, Miss. Tajwar Khan, learned Assistant Government Pleader
for the respondent nos.1 and 2, Shri P.S. Kadam, learned Counsel for
the respondent no.3 and Miss. Malika Goenka, learned Counsel for
the respondent nos.4 to 13.
2. The petition challenges the judgment and order dated
30/1/2020 passed by the learned Joint Civil Judge Junior Division
Wardha in Election Petition 1/2019 (Sau. Sarika Vilas Kamble Vs.
Returning Officer), whereby the same came to be dismissed.
3. Facts giving rise to the petition are as under;
The petitioner had filed nomination for the post of
Sarpanch of Gram Panchayat Sindhi (Meghe), Wardha, election to
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which was held on 25/3/2019, wherein, she has been declared as
unsuccessful by the Returning Officer -respondent no.1.
4. The election programme declared was as under :-
v- fuoM.kqdhps VIis fnukad
Ø-
1 rgflynkj ;kauh fuoM.kqdhph uksVhl fnukad [email protected]@2019 ¼'kqØokj½
izfl/n dj.;kpk fnukad
2 ukefunsZ'kui=s ekxfo.;kpk o lknj fnukad [email protected]@2019 ¼eaxGokj½
dj.;kpk fnukad o osG ¼uequk v rs
v e/;s uewn dsysY;k fBdk.kh½ fnukad [email protected]@2019 ¼'kfuokj½
osG l-11-00 rs nq- 3-00
3 ukefunsZ'kui= Nkuuh dj.;kpk fnukad [email protected]@2019 ¼lkseokj½
fnukad o osG ¼uequk v v e/;s osG l-11-00 oktY;kiklqu Nkuuh
uewn dsysY;k fBdk.kh½ laisi;Zar
4 ukefunsZ'kui= ekxs ?ks.;kpk vafre fnukad [email protected]@2019 ¼cq/kokj½
fnukad o osG ¼uequk v v e/;s nqikjh 3-00 ok- i;Zar
uewn dsysY;k fBdk.kh½
5 fuoM.kwd fpUg usewu ns.;kpk rlsp fnukad [email protected]@2019 ¼cq/kokj½
vafrefjR;k fuoM.kwd y<fo.kk&;k nqikjh 3-00 ok- uarj
mesnokjkaph ;knh izfl/n dj.;kpk
fnukad o osG
6 vko';d vlY;kl ernkukpk fnukad [email protected]@2019 ¼jfookj½
fnukad l-7-30 ok-iklwu rs lk;a-5-30
ok-i;Zar ¼xMfpjksyh ftY;klkBh l-
7-30 iklqu rs nq- 3-00 ok i;Zar½
7 erekst.khpk fnukad ¼erekst.khps fnukad [email protected]@2019 ¼lkseokj½
fBdk.k o osG ftYgkf/kdk&;kaP;k
ekU;rsus rgflynkj fuf'pr djrhy
R;kuqlkj jkghy½
8 ftYgkf/kdkjh dk;kZy;kekQZr fnukad [email protected]@2019 ¼xq:okj½
fuoM.kqdhP;k fudkykph vf/klwpuk
izfl/n dj.;kpk vafre fnukad
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5. As noted above, the Petitioner filed nomination for the
post of Sarpanch of Gram Panchayat Sindhi (Meghe), Wardha, on
7/3/2021. The balloting took place in six wards in 24 voting centers
from Serial Nos.104 to 127 on 24/3/2019, from 7:30 a.m. onwards
till 5:30 p.m. The counting was held on 25/3/2019. The result came
to be declared at 4:30 p.m. on 25/3/2019, in which the respondent
no.3 having secured 2905 votes, which were the highest, was
declared elected by the Returning Officer, as against 2869 votes
secured by the petitioner (second highest), the difference of votes
being 36.
6. On 25/3/2019 itself, the petitioner at 5:30 p.m. filed an
application for recount (Exh.30), wherein it was stated that the votes
secured by her were not to her satisfaction and were also suspicious,
on which ground a recount was asked for. The Returning Officer,
made an endorsement therein that the application was received at
5:30 p.m. of 25/3/2019, which is not disputed by the petitioner. The
Returning Officer held that the counting has been done in a proper
manner. He further held that the demand for recount on the ground
of having secured less votes was not justified and therefore, rejected
the application for recount.
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7. The petitioner being aggrieved by the same, filed a Writ
Petition No.2681/2019, which came to be dismissed on 1/4/2019, by
granting liberty to file an election petition under Section 15 of the
Maharashtra Village Panchayats Act, 1958. It is in pursuance thereto
that the petitioner approached the Civil Judge, Junior Division,
Wardha, by filing election petition under Section 15 of the Bombay
Village Panchayats Act, 1958, which came to be numbered as
Election Petition No.1/2019 on 8/4/2019.
8. The defendant 4, 8, 10, 11, 12 and 13 filed a pursis on
22/4/2019, whereby they stated that the request for recount be
granted, for which they had no objection. The defendant no. 3/
respondent no. 3, filed her written statement at Exh. 21 and
supported the decision of the respondent no.1 declining to order a
recount.
9. In the Election Petition 1/2019, the petitioner examined
herself at Exh. 24 and none-else. The following documents were
exhibited in her evidence :
(i) Ex.27 - Election Programme
(ii) Ex.28 - Final result of post of Sarpanch
(iii) Ex.29 - Final Chart of voting of Sarpanch
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(iv) Ex.30 - Application for recount by petitioner
(v) Ex.31 - Form VM-4 (details of votes secured by
candidates) of Polling Centre No.120
(vi) Ex.32 - Form VM-4 (details of votes secured by
candidates) of Polling Centre No.105
10. The Returning Officer Shri Shankar Natthuji Hate was
examined on behalf of the defendant nos.1 and 2 at Exh. 35. The
defendant no. 3 - elected candidate did not enter the witness box. No
other witness was examined.
11. The learned trial Court on the basis of the pleadings,
evidence and documents before him found that there was no
material on record to order a recount and therefore, dismissed the
petition.
12. Mr. Bhandarkar learned counsel for the petitioner has put
forth two basic grounds -
(1) that there were suspicious circumstances in the matter of
counting, in so far as postal ballots were concerned inasmuch as
though 50 postal ballots were issued, only 18 ballets for the post of
Sarpanch were counted. According to him, there is no explanation
for the deficit of 32 ballots; and
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(2) The second ground is, that the Respondent no.1 in his cross-
examination had admitted that in one of the Chart for one of the
balloting centers (Namuna VM-4) at Exh. 32, there was no mention
of the election center number, control unit number and memory
number and so also the votes secured by the candidates are written
by pen in handwriting. This was in respect of Election Center
No.105. He further contends that in view of the admission of the DW-
1 that in respect of Namuna VM-4 which was in respect of Election
Center No. 120, the total number of votes shown were 410, whereas
the final chart prepared at Exh.29 showed the total number of votes
as 417 and it was further admitted by him that in Exh. 29, this
number ought to have been 11 instead of 18, process was initiated.
13. Mr. Bhandarkar, learned counsel for the petitioner further
submits that in so far as Exh. 31, which is the Form VM-4 for Polling
Centre No. 120 is concerned, the total number of votes shown
therein were 410, as against which the final tally sheet at Exh. 29
showed a total of 417, indicating a discrepancy of 7 votes, which
indicates a grave mistake in the matter of recording the correct
number of votes.
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14. Mr. Bhandrakar, learned counsel for the petitioner further
invites my attention to the observations made in para 10 of the
impugned judgment, as well as the cross-examination of DW-1 in
para 2 thereof and submitted that even the Returning Officer had
suggested to the petitioner to indicate the number of booths/centres
in which she had secured less votes, so that those could be
recounted. This, according to him, indicates that the Returning
Officer in fact had accepted that a recount was necessary.
15. Mr. Bhandarkar, learned counsel, therefore submits that
on the basis of the admissions by the Returning Officer himself as
indicated above, the entire election was vitiated and the suspicion
expressed was clearly well founded and ought to have been accepted
by the Respondent No.1, thereby directing a recount. He places
reliance upon Chandrikaprasad Yadav vs. State of Bihar 2004 (6)
SCC 331 and Suresh Prasad Jadhav vrs Jai prakas Misahra 1975 (4)
SCC 822, both of which lay down the parameters for ordering
recount and submits that in the instant case due to the admission on
part of the Returning Officer himself, the requirement to order a
recount was satisfied and therefore, the same ought to have been
ordered.
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16. Learned AGP Ms. Khan vehemently opposes the
submissions and submits that a perusal of the application of recount
dated 25.3.2019 at Exh. 30 would indicate that it was as vague as
possible. There was merely an apprehension that since the votes
secured were less, therefore, a suspicion had arisen which was the
only ground for seeking recount. She further submits that the
application was also belated inasmuch as the result was declared at
4.30 p.m. on 25.3.2019, whereas the application for recount came to
be made at 5.30. p.m., on which ground also she submits that the
Returning Officer has rightly not entertained the same. She further
submits that not much weight can be given to the so called
admissions of DW-1 Returning Officer in his cross-examination for
the reason that Exh.,32 - the sheet recording the number of votes
scored by the candidate in Form VM-4, bore an endorsement in his
own handwriting that the same was for Polling Center No. 105, for
Sindhi (Meghe) Ward No. 1, which information had accordingly been
correctly entered in the final tally sheet of voting in a tabular form at
Exh. 29, a comparison of which would show that there was no
discrepancy between the number of votes shown to have been scored
by the petitioner as recorded in Form No. VM-4 for Ward No. 105
(Exh.32), which were 192 in number and those recorded in Exh. 29,
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which again were 192 in number. Similar was the case in respect of
the votes scored by the Respondent No. 3 vis-a-vis Exh. 32 and
Exh.29 and there was no difference of votes. She therefore submits
that merely because there was no mention of the polling booth
number, control unit and memory number on Exh. 32, however, the
handwritten portion on the top right hand corner which stated that it
was for Polling Booth No. 105, would satisfactorily indicate its
identity. She further invites my attention, to the second page of Exh.
32, which shows that the same has been duly signed by the
representative of the petitioner, one Chandrakant V. Sute, which
would indicate, the authenticity of Form VM-4 being that for Polling
Centre 105 as the representative of the petitioner was so present in
the said Polling Centre and had not raised any kind of objection
whatsoever. She further submits that Exh.32 is not only signed by the
representative of the petitioner named above, but it is also signed by
the representatives of several more candidates and in case, there
was any allegation about the authenticity of Exh.32, it was necessary
for the petitioner to have examined Chandrakant Sute, her
representative or any of the representatives of the other candidates
who had signed on Exh. 32 and having not done so, the contrary
allegations were without any substance.
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17. In so far as Exh. 31, which is the Form VM-4 for Polling
Centre No. 120, is concerned, learned AGP submits that the
explanation given by DW-1 for the discrepancy has rightly been
considered by the learned trial Court and it is only a mistake in
matter of carrying forward the votes from Exh.31 to Exh.29 and even
otherwise the same was in respect of neither the petitioner nor the
respondent no.3, but in respect of Pramodini Nanaji Bhagat, who had
secured total 423 votes and therefore, the mistake did not have any
effect on the result of the election.
18. In so far as the postal ballot is concerned, she submits
that no material has been brought on record by the petitioner, to
demonstrate that 50 postal ballots were issued and only 18 were
counted as valid for the post of Sarpanch. She submits that merely
because 50 postal ballots were issued, would not mean that all the
50 postal ballots were received back or all the 50 ballots were valid
votes and thus in absence of any material in this regard, no reliance
can be placed on the statement of DW-1 in cross-examination that
50 postal ballots were issued and for the post of Sarpanch, only 18
ballots were counted.
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19. She also invites my attention to the cross examination of
the petitioner in which she categorically admits that during the
process of counting, her appointed agents as well as the petitioner
were also personally present. Learned AGP further submits that the
petitioner had also admitted that the results of the election were
declared at 4.30 p.m. and the application for recount was made at
5.30 p.m. and though an allegation was made that she had gone
earlier also for the said purpose, there is nothing on record to
indicate so. She further invites my attention to her cross
examination, in which the petitioner admits that the concerned office
had asked her the details as to in which booth she suspected that
some malpractice was committed but she had declined to be having
any knowledge in that regard. Learned AGP therefore submits that
considering the conduct of the petitioner and the absence of any
reason whatsoever for recount, the order passed by respondent no.1
could not be faulted with, as a mere suspicion on account of securing
less votes cannot be a reason for recount. She places reliance upon
Sadhu Singh vrs Darshan Sing and another 2006 (6) SCC 255;
Sheshrao Nivrati Surwase vrs. Nilkanth Jyotiba Gaikwad 2003 (5)
Mh.L.J. 63, which also lays down the factors relevant for directing
recount of votes. She also places reliance upon R.Narayanan vrs. S.
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Semmalai and ors 1990 (2) SCC 537 to contend that a vague
application based on a mere apprehension without anything else or
for that matter without any material particulars, cannot form the
basis for a recount.
20. Mr. Kadam appearing for Respondent No.3 adopts the
argument of the learned AGP and further submits that an application
for recount ought to have been made by the petitioner within a
reasonable period of time of the declaration of the result of the
election and there is no explanation forthcoming as to why the
application for recount was made one hour i.e. at 5.30 p.m. after the
result of the election was declared at 4.30. p.m. He submits that the
application is totally vague and does not satisfy the requirement of
law in that regard. He further submits that in any case the plea
regarding the postal ballots is also not justified as it was for the
petitioner to bring on record the situation about the other ballots
which are claimed not to have been counted for which it was first
necessary to have been established that they were received back by
the respondent no.1, which position is absent on record. He further
submits that as per the conduct of Election Rules, 1961, specifically
Rule 63 (6) if the total number of votes polled by each candidates
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have been announced and the returning officer has completed and
signed the result sheet in Form-20, no application for recount could
be entertained thereafter, and in view of the fact that the Form-20 at
Exh.29 was already signed at 4:30 p.m., the application for recount
filed at 5:30 p.m. was rightly not entertained. He further places
reliance upon P.K.K. Shasubdeem Vs. K.A.M. Mappillai Mohindeen
and others, 1989 (1)(SCC) 526 to contend that requirement of an
Election petition is that it shall contain a concise statement of the
material facts on which the petitioner relies, and submits that
averments relating to the polling held in Voting Centre no.105 are
missing in the petition and therefore it is infirm.
21. Mr. Bhandarkar, learned Counsel for the petitioner in
rebuttal submits that the judgments which have been relied upon do
not take into consideration the provisions under the Maharashtra
Village Panchayats Act and the conduct of election therein. He
submits that the judgments relate to the provisions of the
Representation of People's Act 1951 and therefore, cannot be pressed
into service by the respondents. He submits that a case of recount
had been made out by the petitioner and therefore, the impugned
judgment requires to be quashed and set aside.
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22. Ms. Malika Goenka, learned Counsel for the respondent
nos.4 to 13 supporting the petitioner, submits that there was a need
for recount.
23. In so far as the plea by Mr. Bhandarkar learned Counsel
for the petitioner, that the judgments upon which reliance is placed
by the learned Counsel for the respondents, being under the
provisions of the Representation of Peoples Act, ought not to be
considered, as the present matter deals with an election held under
the Maharashtra Village Panchayat Act ( "MVP Act, 1958" for short),
the same is clearly fallacious for the reason that the principles laid
down therein governing the conduct of election and election
petitions, would clearly be attracted and applicable to the elections
and conduct of election petitions under whichever Local Statutes,
unless it is pointed out that the concerned Local Statute prescribed a
different mode, procedure or parameter, for the conduct of elections
and election petitions. The provisions of the Maharashtra Village
Panchayat Act, 1958 do not prescribe any different mode, procedure
or parameters for the conduct of elections and election petitions and
therefore the principles as laid down in the decisions under the
Representation of Peoples Act, would be applicable to the
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conduct of elections and election petitions under the MVP Act. The
position stands covered in R. Chandran vrs. M.V. Morappan, (1973) 2
SCC 166, wherein the Hon'ble Apex Court has held that the laws of
various States regarding preparation of electoral rolls for various
local bodies in the States proceed on the basis of the electoral rolls
prepared for the concerned legislative assembly constituency and
therefore all the decisions of the Apex Court regarding the finality of
electoral roll apply directly to the electoral rolls of the various local
bodies. Thus extending the same reasoning to the further process of
the election would indicate the applicability of the principles as laid
down in these decisions, contrary to what has been argued, unless
any departure in the provisions, rules and regulations or procedure is
pointed out, which has not been so done.
24. The parameters for directing a recount as spelt out from
Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822 relied
upon by Mr. Bhandarkar learned Counsel for the petitioner are as
under :
6. 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
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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."
25. In Chandrika Prasad Yadav (supra) the requirement of a
prima facie case; pleading of material facts stating irregularities in
counting of votes; an objection to the said effect having been taken
recourse to and the prohibition of a roving and fishing enquiry, have
been reiterated.
26. In R. Narayanan (supra) relied upon by Miss Khan,
learned AGP the following principles have been stated :
"26. Finally, the entire case law on the subject regarding the
circumstances under which re-count could be ordered was
fully summarised and catalogued by this Court in the case of
Bhabhi v. Sheo Govind [(1976) 1 SCC 687 : AIR 1975 SC
2117 : 1975 Supp SCR 202] to which one of us (Fazal Ali, J.)
was a party and which may be extracted thus: [ Quoted from
Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822
(pp. 824-25, paras 5, 6)] (SCC p. 693, para 13)
"The court would be justified in ordering re-count of the
ballot papers only where:
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(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
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."
which position has been reiterated in Sheshrao Surwase (supra).
27. In Sadhu Singh (Supra), it has been held that the
following factors are relevant for directing recounting of votes :
"7. Concededly the following factors are relevant for
directing re-counting of votes:
(i) prima facie case must be established;
(ii) material facts must be pleaded stating irregularities
in counting of votes;
(iii) a roving and fishing inquiry shall not be directed by
way of an order for re-counting of votes;
(iv) an objection to the said effect should be raised; and
(v) secrecy of ballot papers should be maintained.
(See Gursewak Singh v. Avtar Singh [(2006) 4 SCC 542] ;
M. Chinnasamy v. K.C. Palanisamy [(2004) 6 SCC 341] ;
Chandrika Prasad Yadav v. State of Bihar [(2004) 6 SCC
331] and Tanaji Ramchandra Nimhan v. Swati Vinayak
Nimhan [(2006) 2 SCC 300] .)"
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28. In P.K.K. Shasubdeem (supra) relied upon by Mr. Kadam
learned Counsel for the respondent no.3, the law as laid down in
Jagjit Singh (Dr.) v. Giani Kartar Singh AIR 1966 SC 773 which held
that Section 83(1)(a) of the Act (Representation of the People Act,
1951) requires that an election petition shall contain a concise
statement of the material facts on which the petitioner relies; and in
every case, where a prayer is made by a petitioner for the inspection
of the ballot boxes, the Tribunal must enquire whether the
application made by the petitioner in that behalf contains a concise
statement of the material facts on which he relies; vague or general
allegations that valid votes were improperly rejected, or invalid votes
were improperly accepted, would not serve the purpose which
Section 83(1)(a) has in mind, was quoted with approval.
29. The instant matter has to be looked into in the
background of the above legal position, in view of which two things
assume significance. (1) The application for recount and the reasons
contained therein and (2) the timing of the application. This is so for
the reason, that the request for recount has to be considered in the
background of the position as enumerated in the application as that
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is the relevant time when the need for recount has to be expressed
and determined.
30. The application for recount filed by the petitioner at
Exh.30 gives the following reasons :
ofjy fo"k;kauqlkj eh xzkeiapk;r fla/kh es?ks dfjrk ljiap inkps
mesnokj Eg.kqu fuoM.kqd y<ys R;ke/;s eyk feGkysys er lek/kkudkjd
ulY;kus o la'k;kLin vlY;kus xzkeiapk;r fla/kh es?ks ljiapkps ijr
ereksTk.kh dj.;kr ;koh gh uez fouarh-
31. The reason for rejection of recount is also enumerated in
page 19, which is as under :
dj.;kr vkysyh er ekst.kh ;ksX; izdkjs dj.;kr vkysyh vkgs- er
deh ehGkY;keqGs ijr er ekst.kh dj.;kr ;koh v'kh ekx.kh
dj.ks ;ksX; okVr ukgh- R;keqGs vihy QsVkG.;kr ;sr vkgs-
32. A bare perusal of the reasons enumerated in Exh.30 - the
application for recount, would indicate that except for a bland
statement, that the petitioner was not satisfied with the less number
of votes secured by her, due to which her suspicion had arisen, there
is nothing to indicate the reason or grounds on which the recount
was being demanded. There is no allegation that in any of the polling
booths, there has been mistake in any counting or otherwise
something has taken place, which would require the recount to be
sought for. The application is absolutely bereft of any details or
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reasons whatsoever, except what has been stated above. The law
on the point as enumerated above, clearly requires specific reasons to
be stated for seeking a recount. In this background, in view of the
absence of any reasons whatsoever, in the application seeking
recount, the refusal on part of the Returning Officer, to direct
recount, as indicated above, at that particular point of time could not
be said to be unjustified.
33. One more factor needs to be considered is that the result
of the election was admittedly declared at 4.30 p.m. on 25/3/2019,
whereas the application for recount was made at 5.30 p.m. i.e. after
an hour. No reason whatsoever has been subscribed, for the delay in
seeking recount.
34. Mr. Kadam learned Counsel for the respondent, has
rightly relied upon the Conduct of Election Rules, 1961, of which
Rule 63 contemplates a recount, sub-rule (6) whereof specifically
prohibits entertainment of an application for recount after the total
number of votes polled by each candidate have been announced and
the final result sheet has been signed by the Returning Officer in
Form-20. In the instant matter, it is an admitted position that the
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entire process of declaration of the results, which would include the
signing of Form-20 already stood completed by 4:30 pm of
25/3/2019, whereas the application for recount was received at 5:30
p.m. which would make such an application for recount not
entertainable by the Respondent No.1/ Returning Officer.
35. Coming to the requirement of the pleadings, the election
petition came to be filed on the singular ground indicated above
namely, the lacunae in the number of postal ballots. The averments
in this regard in para 4 of the election petition are reproduced below
for the sake of ready reference :
"4. It is most humbly submitted that as per the Election
Programe the results of the election was declared on
25.03.2019. That initially the Returning Officer orally
declared the petitioner was elected for the post of
Sarpanch as she has secured the highest votes. That after
some times the Returning Officer again declared that the
petitioner secured 2869 votes and the respondent No.3
secured 2905 votes. That there is difference of 36 votes
and the Returning Officer declared the respondent No.3
as returned candidate. Copy of Namuna VM-4
(JODAPATRA-20) is annexed herewith and marked as
ANNEXURE-B."
WP2303.20.odt
Except what has been stated above, there is no other averment in the
election petition regarding any other discrepancy, misconduct or any
other allegation on which it is based. The averments regarding the
absence of details in the Namuna VM-4 - Exh.32 for Center No. 105
or for that matter, the discrepancy between the votes as recorded in
Namuna VM-4 at Exh.31 vis-a-vis Exh.29, all are absent in the
election petition. These are for the first time brought on record in the
affidavit in lieu of oral evidence of the petitioner filed under Order
18 of the C.P.C., by introducing these statements in para 5 of the
affidavit. Thus all the averments regarding the absence of details in
Exh.32, or the discrepancy in the total number of votes polled in
Booth No. 120, as recorded in Exh.31 and Exh.29, are without
pleading whatsoever. It is a settled law that evidence without
pleadings cannot be considered, as doing so would deprive the other
side of a right to meet them. This being the settled position of
law, any argument based upon the averments in para 5 of the
affidavit evidence of the petitioner/plaintiff cannot be permissible in
law.
36. In so far as the pleading in respect of the postal ballots
are concerned, it is stated that though 50 postal ballots were issued,
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only 18 ballots for the post of Sarpanch were counted. The statement
in this regard is contained in para 4 of the Election Petition, which is
to the effect that though 50 postal ballots were issued, however, only
18 postal ballots were received. In the affidavit evidence, the
petitioner has merely reiterated the statement in this regard.
37. In the evidence of the Returning Officer, it has come on
record that for the post of Sarpanch, he had received 18 valid postal
ballots, the other postal ballots being for ward members. Nothing
has been brought on record by the petitioner either in her pleadings
or evidence to substantiate her contention, that indeed 50 postal
ballots were issued and anything more than 18 were received, which
were not taken into consideration for counting the vote of Sarpanch.
Exh.29 - the final result sheet, indicates that in all total 18 postal
ballots were received for the post of Sarpanch, out of which the
petitioner had polled 5 votes and the respondent No. 3 had also
polled 5 votes. The remaining 8 valid postal ballots, were distributed
amongst the other candidates for the post of Sarpanch as indicated in
the second last row of Exh.29. There is therefore a clear accounting
of 18 postal ballots for the post of Sarpanch as admitted to be
received by the respondent / Returning Officer in his evidence. The
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learned lower Court in para 28 has taken this into consideration.
Thus, since there were only 18 postal ballots received for the post of
Sarpanch and they stood accounted for as indicated in Exh.29, the
contention of Mr. Bhandarkar to the contrary in this regard, is clearly
not substantiated by the position on record and therefore, has to be
rejected.
38. That takes us to the admission claimed to have been
given by Respondent no.1/Returning Officer in his cross examination
regarding the discrepancy in Exh. 31 as to the total number of votes
polled being 410 for the post of Sarpanch in respect of Polling Center
No. 120 and the figure of 417 as the total number of votes as shown
to be polled for Polling Center No. 120 as indicated in the final
voting chart at Exh.29 in Form-20, for which as stated above, there
are no pleadings. Since this has been considered by the Court trying
the election petition, it is necessary to advert to the same. Presuming
that such admissions can be made the basis of any plea for recount,
which I sincerely doubt, it is seen that the Respondent
no.1/Returning Officer in his cross examination has admitted that
there is a mistake in recording the figure 417 in the final chart at
Exh.29 instead of the figure of 410 as shown in Exh.31. As is the
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position of law, an admission can always be explained. The
respondent no.1/Returning Officer, has explained and justified the
above admission by stating that instead of recording 11 votes secured
by the candidate Smt. Pramodini Nanaji Bhagat, whose name was at
Sr.No.9 in the voters list, incorrectly the figure 18 has been
mentioned as against her name in Exh.29, instead of the figure 11. It
is also material to note, that there is no mistake in recording the
votes secured by the petitioner or the respondent No. 3 for the
Polling Center No. 120 as indicated in Exh. 31 while transferring the
same to Exh.29. In Polling Booth No. 120 the petitioner who is at
Sr.No.2 has secured 125 votes and the respondent no. 3, who is at
Sr.No.12 has secured 127 votes, which is what has been recorded in
Exh. 29. Thus, the discrepancy of transferring the votes from Exh. 31
to Exh.29, in respect of the candidate Smt. Pramodini Nanaji Bhagat/
Respondent no.11, does not affect the result of the election or the
number of votes secured by the petitioner or the respondent No.3 in
any manner whatsoever and cannot form the basis for a recount.
39. That takes us to the next contention regarding the
admission of the Respondent no.1/Returning Officer that in Exh.32,
there was no mention of the memory number, control unit number or
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the number of the polling center. It is however material to note that
on the top right hand corner of Exh.32, the name of the Polling
Center is mentioned in handwriting as 105. The votes recorded
therein as shown to have been secured by the respective candidates
for the post of Sarpanch have been duly recorded in Exh.29 - the
final chart of votes secured and there is no dispute about the number
of votes as secured by the respective candidates in Exh. 32 vis-a-vis
Exh. 29. The contention that Exh.32 in view of the non-filling of the
details in respect of the control unit number and memory number
cannot be co-related to the votes secured by the candidate in respect
of Polling Center No. 105, cannot be accepted for the reason that the
same is signed by the representative of the petitioner namely
Chandrakant V. Sute. Not only is Exh. 32 signed by the representative
of the petitioner, the same is also signed by Siddharth Dhoke,
A.R.Kamble, Nitin Thool, who were the representatives of the other
candidates. In case the petitioner had any grievance in respect of
Exh.32 of any nature whatsoever, the same ought to have been
pleaded in the petition specifying the nature of grievance, which has
not been done. Merely contending that Exh.32 does not bear the
control unit number or memory number, as has been admitted in the
cross examination of the respondent, is of no benefit to the petitioner
WP2303.20.odt
as no objection to Ex.32 of any nature whatsoever was raised by the
polling agent of the petitioner at the time of signing the same. That
apart, it was permissible for the petitioner to have amended the
petition to raise specific averments in regard to Exh.32 which has not
been done. So also the petitioner could have examined Chandrakant
Sute, her Polling Agent at Polling Center No. 105, or for that matter
the other polling agents who had singed Exh.32 to raise any plea
regarding the legality and validity of Exh.32, which has not been
done, which being the case, it is now not permissible for the
petitioner, to fall back upon the cross examination of the respondent,
to make out a case for recount. Even if the above discrepancy is
considered in Exh. 32 regarding absence of the control unit number
or the memory number, non-examination of the polling agent is
clearly fatal. In this regard, it is also material to note that the
petitioner in her cross examination had specifically admitted that at
the time of counting she had appointed polling agents who were
present and she was also present. She had also admitted that the
counting was done booth-wise. She had also admitted that after
counting of votes in each booth, neither she nor her polling agent
had taken any objection. In this view of the matter, it is not now
permissible, for the petitioner to rely upon the above admission in
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cross examination of the Returning Officer, to make out a case for
herself, which was not even pleaded by her in the petition. Even
otherwise, the aforesaid admission in respect of Exh.32, in absence of
any objection being taken by her or her polling agent of any nature
whatsoever at the time when the votes in respect of Polling Center
No. 105 were counted, would not carry any meaning whatsoever
now and specifically in view of the fact that there is a complete
absence of averments in the application for recount or in the Election
Petition in this regard. It is material to note that in R. Narayanan
(Supra) it has been held that in the case of an election petition, the
case of the petitioner must be set out with precision supported by
averments of material facts. A mere allegation that the petitioner
suspects the result of the election, on account of securing of less
number of votes cannot be a ground without anything else or
supported by any material being brought on record, to order a
recount. This would clearly be a roving or fishing enquiry sought to
be conducted by the petitioner, which is not permissible in law.
40. The petitioner in her cross examination has admitted that
after the counting was over, the Respondent No. 3 was declared
elected. She further admits in her cross examination that the
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counting was complete at 4.30 p.m. on 25/3/2019. There is no
dispute that the application for recount was filed at 5.30 p.m., one
hour after the declaration of result by the respondent No.1 -
Returning Officer. There is absolutely no explanation forth coming on
record as to the delay in seeking a recount.
41. The further contention that as the Respondent
no.1/Returning Officer had suggested to the petitioner to indicate
the number of polling booths/centers in which she had secured less
votes, so that the same could be recounted, as mentioned in para 3 of
the written statement and para 2 of the affidavit evidence of the
Respondent no.1/Returning Officer, that by itself, would not amount
to an admission that the Respondent no.1/Returning Officer had felt
the need to order a recount. However, noting turns on it, for the
reason that the application of the petitioner, was vague, shorn of any
details, which may perhaps be why the said suggestion may have
been given, so as to get some specifics, which the petitioner did not
provide at all.
42. The further contention of Mr. Bhandarkar learned
Counsel for the petitioner that the time of 1-2 minutes for filing an
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application for recount is too short and there has to be a modality
detailing the procedure for seeking a recount within a limited time,
cannot form the subject matter of the election petition, as that is
within the domain of the Election Commission, who has the power to
frame appropriate procedure in that regard. In the instant case,
however, considering that the result of the election was declared at
4:30 p.m. and the application for recount was filed at 5 : 30 p.m. it
could not be said by the petitioner that she did not have sufficient
time to formulate grounds for recount. Even otherwise, the entire
procedure of counting takes place in the presence of the candidate or
his/her polling agents which is sufficient time to notice any mistake,
illegality or malpractice and raise appropriate grounds for seeking a
recount. Admittedly even during the course of polling no objection of
whatsoever nature has been raised by the petitioner or her polling
agents, which would indicate the fairness of the election conducted
by the Respondent no.1/Returning Officer.
43. The contention of Ms. Malika Goenka, learned Counsel
for the respondent nos.4 to 13, that the respondents 4, 8, 10, 11 to
13, have filed a pursis at Exh.16 on 22/4/2019, stating that they had
no objection for a recount, does not carry any meaning whatsoever,
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as none of them, had ever raised any objection whatsoever, to the
polling or the counting, which would indicate the acceptance of the
fairness of the process and result, by them. In absence of any
challenge by them, independently, the pursis, cannot take its place,
apart from which neither of them had stepped into the witness box to
speak anything about the process or the result of the election.
44. As rightly contended by Miss Khan Learned AGP and Mr.
Kadam Learned Counsel for the respondent no.3, the position on
record, does not indicate that the requirements for recount as spelt
out in Suresh Prasad Yadav; Chandrika Prasad; R.Narayanan,
Sheshrao Surwase and Sadhu Singh (supra) have been satisfied. The
judgment of the learned lower count considers the above position
and is well reasoned and therefore is required to be maintained. The
petition therefore does not have any merits and is accordingly
rejected.
(AVINASH G. GHAROTE, J.)
Jalit/Wadkar
