Smt. Ishwari Surendra Kashyap vs State Of Chhattisgarh
2021 Latest Caselaw 2587 Chatt

                                   1

                                                                     AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

             (Order/Judgment reserved on 14.09.2021)

                      (Delivered on 28.09.2021)



                          WPC No. 2888 of 2020

   Smt. Ishwari Surendra Kashyap W/o Yashwant Kashyap Aged About
   34 Years, R/o Village Nigarband, Tahsil Takhatpur, District : Bilaspur,
   Chhattisgarh                                           --- Petitioner

                                Versus

1. State of Chhattisgarh through- Secretary Department of Panchayat
   and Rural Development, Mahanadi Bhawan, Mantralaya Atal Nagar,
   New Raipur, District : Raipur, Chhattisgarh

2. Collector Bilaspur, District : Bilaspur, Chhattisgarh

3. Sub Divisional Officer (Revenue) Kota District-Bilaspur Chhattisgarh,

4. Tahsildar Tahsil Takhatpur, District Bilaspur Chhattisgarh.

5. Smt. Ambalika Kashyap W/o Janmejai Kashyap, Aged About 47
   Years, Resident of Village Nigarband, Tahsil Takhatpur, District :
   Bilaspur, Chhattisgarh                          --- Respondents

WPC No. 3354 of 2020

Smt. Ambalika Kashyap W/o Janmejay Kashyap Aged About 47 Years R/o Village Nigarband, Tahsil Takhatpur, District Bilaspur Chhattisgarh. --- Petitioner

Versus

1. State of Chhattisgarh through Secretary Department of Panchayat and Rural Development, Mahanadi Bhavan Mantralaya, Atal Nagar, Raipur, District Raipur Chhattisgarh.

2. Collector Bilaspur District Bilaspur Chhattisgarh.

3. Chief Executive Officer Janpad Panchayat, Takhatpur, District Bilaspur Chhattisgarh.

4. Sub Divisional Officer Kota, District Bilaspur Chhattisgarh.

5. Smt. Ishwari Surendra Kashyap W/o Yashwant Kashyap Aged About 34 Years R/o Village Nigarband, Tahsil Takhatpur, District Bilaspur Chhattisgarh. --- Respondent

WPCR No. 651 of 2020

Smt. Ishwari Surendra Kashyap W/o Shri Yashwant Kashyap, Aged About 35 Years R/o Village Nigarband, Tahsil Takhatpur, District Bilaspur Chhattisgarh. ---- Petitioner

Versus

1. State of Chhattisgarh through its Secreatry, Department of Home, Mahanadi Bhawan, Mantralaya, Atal Nagar, Naya Raipur, District Raipur Chhattisgarh.

2. Superintendent of Police, Bilaspur, District Bilaspur Chhattisgarh.

3. The Station House Officer, Police Station Takhatpur, Bilaspur, District Bilaspur Chhattisgarh.

4. Chief Executive Officer, Janpad Panchayat Takhatpur, District Bilaspur Chhattisgarh.

5. Tahsildar (Returning Officer), Tahsil Takhatpur, District Bilaspur Chhattisgarh.

6. Sub Divisional Officer (Revenue) Sub Division Kota, District Bilaspur Chhattisgarh.

7. Ambalika Kashyap, W/o Janmeyjai, Aged About 52 Years R/o Village Nigarband, P.S. And Tahsil Takhatpur, District Bilaspur Chhattisgarh................Accused

8. Praveen Kashyap, S/o Janmeyjai Kashyap, Aged About 26 Years Caste Kurmi, R/o Village Nigarband, Tahsil Takhatpur, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ---

Respondents

Mr. Rajeev Shrivastava, Sr. Advocate with Mr. Mirza Hafeez Baig and Ms. Sonam Shukla, Advocates for the Petitioner Smt. Ishwari Surendra Kashyap in WPC No.2888/2020 and Respondent No.5 in WPC No.3354 of 2020.

Mr. T.K. Jha, counsel for the petitioner in WPC No.3354 of 2020.

Mr. Mirza Hafeez Baig, counsel for petitioner in WPCR No. 651 of 2020.

Mr. Dr. N.K. Shukla, Sr. Advocate with Ms. Rashika Soni and Ms. Deepa Jha, Advocates for respondent no.5 Smt. Ambalika Kashyap in WPC No. 2888 of 2020 and petitioner in WPC No.3354 of 2020.

Mr. Ravi Bhagat, Panel Lawyer, for the State in all the petitions.

Hon'ble Shri Justice Goutam Bhaduri

C.A.V. ORDER/JUDGMENT

1. All the three petitions are heard and decided together as the common

thread passes through it is about the election of Sarpanch of Gram

Panchayat.

2. WPC No.2888 of 2020 is preferred by Smt. Ishwari Surendra

Kashyap, the original returned candidate who was declared elected

at Panchayat Election as Sarpanch of village Nigarband, Tahsil

Takhatpur, Distt. Bilaspur. The said election was challenged by Smt.

Ambalika Kashyap, who has filed Writ Petition No. WPC No.3354/

2020. Another petition bearing WPCR No.651 of 2020 has been filed

by Smt. Ishwari Surendra Kashyap, the returned candidate, to take

action against Smt. Ambalika Kashyap and Praveen Kashyap on the

ground that they have illegally tampered the bundles of valid and

invalid ballot papers of Sarpanch election which were kept in separate

plastic bags and prayed for a direction to lodge FIR against them.

3. The facts of the case are that the petitioner and Respondent No.5

amongst others have filed nominations to contest the election for the

post of Sarpanch of village Nigarband, Tahsil Takhatpur, Distt.

Bilaspur. On 03.02.2020 the election was conducted and after the

election the result was declared the petitioner had won by a margin of

22 votes. Subsequently, respondent no.5 Smt. Ambalika Kashyap

has filed an election petition before the Sub-Divisional Officer, Kota,

on the ground that the valid ballot papers were not shown to her

agents and the invalid votes were counted in favour of the returned

candidate with the help of Presiding Officer. The primary allegation

was that the voting was completed in Booth Nos. 69 & 70 and after

making the bundles of the ballots, it was not shown to the election

agents and the invalid ballets which were having both thumb sign and

markings were considered in favour of the returned candidate, which

were otherwise invalid. The election petition having been filed,

respondent no. 3 the SDO after pleading, has framed the following 3

issues :

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4. The returned candidate filed her reply, denied the allegation by stating

that the ballot papers were shown to the agents of Respondent No.5

and the witnesses also contended the same statement regarding

showing of the ballot papers to the Agents of loosing candidate.

These averments were not contradicted. The SDO after adducing the

evidence of both the parties observed that Smt. Ambalika Kashyap

who had filed election petition contended that ballot papers were not

shown to her agents during the scrutiny and the seal and thumb

impression were present on the ballots whereas the returned

candidate Smt. Ishwari Kashyap contended that after showing the

ballot papers to all the agents, the bundles were prepared, as such,

the SDO had arrived at a finding that there were inconsistencies in

the evidence of both the parties and in order to test the veracity of

ballots, recounting would be necessary and accordingly order was

passed on 30.09.2021 for recounting of the ballot papers (Annexure

P-2). Against such order, an appeal was filed before the Additional

Collector, Bilaspur (R-2) on the ground that secrecy of ballot papers

cannot be made open, however, by interim order dated 21.10.2020

(Annexure P-1), the said appeal was dismissed. Therefore, both the

orders of Additional Collector and the SDO are under challenge.

5. Shri Rajeev Shrivastava, learned Senior Counsel appearing for the

petitioner assisted by Mr. Mirza Hafeez Baig and Ms. Sonam Shukla,

Advocates would submit that the election petition filed by respondent

no.5 Smt. Ambalika Kashyap under Section 122 of the C.G.

Panchayat Raj Adhiniyam 1993 was not maintainable for the reason

that recounting of votes in the election petition cannot be prayed for.

He would submit that as per the C.G. Panchayats (Election Petitions,

Corrupt Practices and Disqualification for Membership) Rules, 1995

the relief(s) which can be prayed is defined and other than it

recounting cannot be claimed, so the entire election petition was not

maintainable. He would further submit that the Election Tribunal was

duty bound to consider the question of maintainability of the election

petition as it goes to the jurisdictional issue. The reliance is placed in

B.Y. Narasimha Prasad Versus M. Veerappa and another (2008)

9 SCC 372 to contend that this Court can look into the matter about

the very tenability of the election petition. Attacking the finding of the

Election Tribunal he submits that the election Tribunal stepped into

the shoes of advisory nature and further the material particulars of the

election petition, as required under Rule 5 of Rules 1995, were

missing.

6. Learned Counsel for the petitioner Smt. Ishwari Kashyap further

placed reliance in Dr. Jagjit Singh V. Giani Kartar Singh AIR 1966

S.C. 773 and would submit that on mere asking, recounting of votes

cannot be ordered. It is also submitted that the petitioner has failed to

justify the order of recounting and reliance is placed in P.K.K.

Shamsudeen Versus K.A.M. Mappillai Mohindeen and others

(1989) 1 SCC 526. It is submitted that the application for recounting

was not made as per the requirement, therefore, the petitioner who

was a returned candidate cannot be disturbed. He further relied on a

decision of the Supreme Court in case of Sukhdev Yadav Vs. State

of Bihar reported in (2001) 8 SCC 86 and would submit that the

witnesses of respondent no.5 Smt. Ambalika Kashyap have

elaborated an exaggerated version in their statements and in the

instant case there would hardly be a witness of respondent no.5

whose evidence does not contain some amount of exaggeration or

embellishment and therefore the order of recounting and the result

thereof is without jurisdiction.

7. Per contra, Dr. N.K. Shukla, learned Senior Counsel appearing for

respondent no.5 assisted by Ms. Rashika Soni and Ms. Deepa Jha

would submit that the petitioner has not taken any ground that the

relief claimed in the election petition is not justified. It is submitted

that the High Court though can suo moto dismiss the election petition

as mandated u/s 86 of the Representation of People Act, 1950 as the

statute allows the same but the similar statutory mandate does not

exist under the Act of 1993 and the Rules of 1995. It is stated that no

identical procedure exists in Rule 2, as such, the procedure to decide

the Panchayat election is different from that of Act, 1950 i.e.,

Representation of People Act, consequently the law of pleading would

be applicable. He would submit that the contention to the effect that

relief clause is not happily worded is raised for first time before this

Court which was never raised before the Election Tribunal. It is

further submitted that had there been a pleading with respect to the

defect in relief clause, it could have been corrected. He further

submits that this petition has been filed on 28.10.2020 challenging the

two orders i.e., the order of Collector and the Order of S.D.O.

Thereafter, the recounting was done and Respondent no.5 was

declared as elected candidate. It is further submitted that the

recounting is not prohibited under the Chhattisgarh Panchayat

Nirvachan Niyam 1995 and on recounting of votes the invalid ballot

papers having been separated, 124 votes of the returned candidate

were cancelled.

8. It is further submitted that the entire counting was done by the

Government officials who do not have any prejudice against either

party, therefore, if the petitioner Smt. Ishwari Surendra Kashyap was

elected on the basis of wrong ballots and if it was subsequently

corrected, the petitioner cannot hold the office and the petition filed by

her is liable to be dismissed.

9. Heard the learned counsel for the parties and also perused the

documents. Petitioner Ishwari Surendra Kashyap contested the

election to the post of Sarpanch held on 03.02.2020 of Gram

Panchayat Nagarband, Tahsil Takhatpur District Bilaspur and was

declared elected with a margin of 22 votes. Subsequently the election

petition was filed by R-5 Ambalika Kashyap before the

SDO(Revenue) on 12.02.2020 which is evident from the original

records of the election petition.

10. The Chhattisgarh Panchayats (Election Petitions, Corrupt Practices

and Disqualification for Membership) Rules, 1995 govern the election

petition of the Sarpanch. Rule 6 of Rules, 1995 specifically says

about the relief that may be claimed by the petitioner in an election

petition. Rule 6 is reproduced hereinbelow :

Relief that may be claimed by the petitioner. A petitioner may claim-

(a) a declaration that the election of all or any of the returned candidates is void; and

(b) in addition thereto, a further declaration that he himself or any other candidate has been duly elected.

11. Now comparing it to the relief(s) claimed by respondent no.5, it reads as under:

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dh d`ik djsaA [email protected]& vEckfydk [email protected];kfpdkdrhZ

12. The election petition only calls for recounting of the votes not the relief

which is prescribed under Rule 6 of Rules 1995, therefore, the relief

which was claimed apparently appears to be not in consonance with

the prescribed Rules which is mandated for maintenance of election

petition.

13. The Supreme Court in B.Y. Narasimha Prasad Versus M. Veerappa

(2008) 9 SCC 372 while dealing with the jurisdictional issue has

observed that when the question of maintainability of the proceeding

becomes a jurisdictional issue, the Court was legally bound to

address it regardless of whether or not any objection was raised by

the other side. Therefore, in the instant case, the relief which was

claimed by respondent no.5, was not within the ambit of Rule 6 of an

election petition which draws a boundary of claiming relief.

Consequently if such relief other than it has been claimed then the

question of jurisdiction and maintainability of election petition would

certainly arise whether the Election Tribunal was vested with the

jurisdiction to entertain it or not. Comparing the relief sought before

the Election Tribunal along with the mandate of Rule 6 of Rules

1995, in the opinion of this Court, the election petition itself was not

maintainable for the jurisdictional issue as the prayer could not have

been granted by the Tribunal and the Election Petition itself was not

maintainable.

14. In respect of issue no.1, the Election Tribunal has recorded in its

order dated 30.09.2020 that Narendra Kumar Sahu, witness of

Election Petitioner Smt. Ambalika Kashyap has stated himself in his

cross examination that ballots were not shown to the agents during

scrutiny and seal was put in some invalid ballot papers and some of

the ballots were having personal markings and few of the ballots were

having both seal and markings whereas the witnesses of Ishwari

Surendra Kashyap have stated in their cross examination that the

ballot papers were shown to every agent and the bundles were

prepared, as such, the Tribunal has arrived at a finding that since

there are inconsistencies in the version of witnesses of both the

parties, the recounting would be necessary in order to avoid the

ambiguity. The Chhattisgarh Panchayat Nirvachan Niyam 1995

governs the procedure of election, counting votes etc. Rule 80 Sub-

rule (5) of Rules 1995 postulates that after the total number of votes

polled by each candidate has been announced and when the election

result is declared, no application for recount shall be entertained

thereafter. For the sake of convenience, Sub-rule (5) of Rule 80 of

Rules 1995 is reproduced herein :

"80. Recount of votes.

               (1) to (4)     ........................

               (5)    After the total number of votes polled by each

candidate has been announced under sub-rule (2) of Rule 77 or sub-rule (4) the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a 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 election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1)".

15. The original election petition and the papers filed therein would show

that the election was declared on 03.02.2020 wherein Ishwari

Surendra Kashyap was declared elected. The application for

recounting was filed after a day i.e., on 04.02.2020, which was

received by the Election Officer Takhatpur at about 5.45 p.m.

Therefore, admittedly it was not in compliance of Sub-Rule (5) of Rule

80 of The Chhattisgarh Panchayat Nirvachan Niyam 1995.

16. Further the issue whether the recounting can be ordered at the

discretion of the Election Tribunal is considered in view of the

decision of the the Supreme court rendered in Dr. Jagjit Singh

versus Giani Kartar Singh AIR 1966 SC 773. The answer is in

negative. In the said case, the Supreme Court has held that on mere

asking, the ballot papers may not be allowed to be inspected and the

order of recounting cannot be ordered. In the instant case, the

recounting was not asked for immediately as per the C.G. Panchayat

Nirvachan Niyam 1995 within a specified time and the allegations are

also vague that certain ballot papers were not shown but some had

different marking. The recounting application only purports that

certain seal was also kept at the place of voting, therefore, the

confusion arose. On this issue the order of recounting can be said to

be completely vague and without application of mind. The Supreme

Court in Tanaji Ramchandra Nimhan Versus Swati Vinayak

Nimhan (2006) 2 SCC page 300 held that a challenge to an election

by way of election petition was a statutory right and the Court could

not grant relief in such an election petition only when proper and

sufficient grounds are pleaded and established and not based on

general allegations. Further the Supreme Court in Baldev Singh Vs.

Shinder Pal Singh (2007) 1 SCC 341 has observed that while

ordering for recounting, the necessity of maintaining secrecy of ballot

papers should be kept in tact and the direction for recounting shall not

be issued only because the margin between the returned candidate

and the election petitioner is narrow. The Supreme Court further held

in (1989) 1 SCC 526 P.K.K. Shamsudeen Versus K.A.M. Mappillai

Mohindeen that it is settled position of law 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 sacrosanct principle which cannot be lightly or hastily

broken unless there is prima facie genuine need for it. The right of

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.

17. Applying the aforesaid principles in the instant case, it would show

that recounting of votes by the Election Tribunal itself was not

justified. Further more, the election petition had a jurisdictional error,

therefore, the Tribunal was not justified to go into it as the very basis

of exercising the jurisdiction was missing. In the result, WPC

No.2888 of 2020 filed by Smt. Iswhari Surendra Kashyap is allowed

and WPC No.3354 of 2020 filed by Smt. Ambalika Kashyap is

dismissed. The order dated 21.10.2020 passed by the Collector

(Annexure P-1) and the order dated 30.09.2020 passed by the

SDO(Revenue) are set aside.

18. With respect to WPCR No.651 of 2020 filed by Smt. Ishwari Surendra

Kashyap, considering the nature of allegation and the prayer made

therein, the petitioner may take recourse to the proceedings under the

common law inasmuch as no finding can be given on the mere

allegation without any substantial proof. Consequently, WPCR

No.651 of 2020 is disposed off.

Sd/-

GOUTAM BHADURI JUDGE Rao