Smt Rajkumari vs The State Of Madhya Pradesh
2022 Latest Caselaw 9090 MP

                         1

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT GWALIOR

                      BEFORE

 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

              ON THE 8th OF JULY, 2022

          WRIT PETITION NO. 15259 of 2022

  Between:-

  SMT. RAJKUMARI, AGED ABOUT
  46 YEARS W/O SHRI MAHENDRA
  SINGH,            OCCUPATION
  HOUSEWIFE,    R/O    VILLAGE
  CHITAWANI,   TEHSIL   DABRA,
  DISTRICT GWALIOR (MADHYA
  PRADESH)

                                         ........PETITIONER

  (BY SHRI D.S. RAGHUVANSHI - ADVOCATE)

  AND

1. THE STATE OF MADHYA PRADESH
   THROUGH           PRINCIPAL
   SECRETARY, DEPARTMENT OF
   PANCHAYAT     AND     RURAL
   DEVELOPMENT,        VALLABH
   BHAWAN,    BHOPAL   (MADHYA
   PRADESH)

2. THE COLLECTOR AND DISTRICT
   ELECTION OFFICER, DISTRICT
   GWALIOR (MADHYA PRADESH)
                                            2

   3. THE SUB DIVISIONAL, TAHSIL
      DABRA,   DISTRICT GWALIOR
      (MADHYA PRADESH)

   4. THE PRESIDING OFFICER, GRAM
      PANCHAYAT CHITAWANI, TEHSIL
      DABRA    DISTRICT  GWALIOR
      (MADHYA PRADESH)

   5. SMT. CHANDRA BAI, W/O SHRI
      RANVEER SINGH, R/O VILLAGE
      CHITAWANI,  TAHSIL  DABRA,
      DISTRICT GWALIOR (MADHYA
      PRADESH)

                                                           ........RESPONDENTS

        (SHRI DEVENDRA CHAUBEY - ADVOCATE FOR STATE
AND SHRI PRASHANT SHARMA - ADVOCATE FOR
RESPONDENT NO. 2)
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       This application coming on for hearing this day, the Court passed
the following:
                                      ORDER

This petition under Article 226 of the Constitution of India has been filed seeking following relief:-

"1. That, the respondents be directed to recount the valids in question of Gram Panchayat Chitawani, Tehsil Dabra, District Gwalior (Madhya Pradesh)

2. That, other relief which is just and proper in the facts and circumstances of the case may also be granted."

It is submitted by the counsel for the petitioner that the petitioner had contested the election for the post of Sarpanch, Gram Panchayat, Chitawani, Tehsil Dabra, District Gwalior. She has every apprehension

that at the time of counting, some manipulation has been done and, therefore, she had filed an application for recounting on the ground of some manipulation in the recounting process, however, no action has been taken.

It is submitted by the counsel for the petitioner that right to contest is a constitutional right as held by the Supreme Court in the case of Rajbala and others Vs. State of Haryana and others reported in (2016) 2 SCC 445. Free and fair election is the backbone of the democracy as held by the Supreme Court in the case of Peoples Union for Civil Liberties (PUCL) and another Vs. Union of India and another reported in AIR 2003 SC 2363 and in view of the judgment passed by the Supreme Court in the case of Dravida Munnetra Kazhagam (DMK) Vs. Secretary, Governor's Secretariat and others reported in (2020) 6 SCC 548 and in the case of State of Goa and another VS. Fouziya Imtiyaz Shaikh and another reported in (2021) 8 SCC 401, bar as contained under Article 243-O of the Constitution of India would not apply. It is further submitted that coordinate Bench of this Court in the case of Smt. Shashi Yadav Vs. The State Election Commission and others by order dated 04.07.2022 passed in W.P. No.14894/2022 (Principal Seat) has directed the respondents to consider the representation for recounting as the power of recounting is available with the authorities under Rule 80 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 and, accordingly, it is prayed that a direction for recounting may be given.

Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that recounting cannot be directed on mere

saying of a candidate. Since secrecy of vote is to be maintained, therefore, recounting should be directed only in exceptional cases. Even otherwise, the petitioner has an efficacious remedy of filing election petition.

Heard the learned counsel for the parties. The Supreme Court in the case of R. Narayanan v. S. Semmalai and others reported in (1980) 2 SCC 537 has held as under:-

"16. The only ground which appears to have been accepted by the learned Judge was that although there was no clear evidence of any irregularity having been committed in the first two rounds there was a possibility that the staff was completely exhausted and this may have led to erroneous sorting and counting of votes. This was because, according to the learned Judge, the staff started its work at 11 a.m. on June 14, 1977 and continued to work without rest till about 3 a.m. on June 15, 1977. They were provided with lunch in the afternoon of June 14, 1977. It was also found by the judge that the counting staff was not supplied with food in the night but was provided with tea at only 7 p.m. In this connection, the learned Judge observed as follows:

"The next ground urged by the petitioner is that the counting staff were sleepy, exhausted and not alert during the third round which was started after midnight and completed at 3 a.m. the next day and that as such there is definite possibility of erroneous sorting and counting of votes during that round.

Almost all the petitioner's witnesses have deposed that the counting staff who began their work of preliminary counting at 11 a.m. on June 14, 1977 continued to work without any rest up to 3 a.m. the next day, that they were provided with lunch only on the afternoon of June 14, 1977, that the counting staff were not supplied with food during the night, that they were provided with only tea at 7 p.m. and therefore the counting staff were completely exhausted and sleepy

especially after midnight and that they were not as vigilant and alert as they were during the first and second rounds of counting. All the first respondent's witnesses also admitted that the counting staff were not provided with food in the night but they were merely supplied with tea at 7 p.m. and that they carried on the counting without any break till 3 a.m. the next day. Though the petitioner has not established any specific instance of erroneous sorting and counting of votes during the third round, general allegations have been made in the pleadings as well as in the evidence adduced on behalf of the petitioner. There appears to be considerable force in the submission of the petitioner in this regard."

In the first place the finding itself is based purely on speculation. It is obvious that election being a technical matter the authorities choose experienced persons to do the counting and take every possible care to see that the members of the staff do not commit any error. Moreover, the relief of re-counting cannot be accepted merely on the possibility of their being in error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The Judge himself holds that the respondent has not established any specific instance of erroneous sorting and that the allegations made in the pleadings as well as in the evidence are general yet he accepts the case of the respondent on such insufficient and infirm evidence. Moreover, it would appear from the evidence of PW 23 the witness for the respondent that the first round started at 5 p.m. and ended at about 8.30 p.m., the second round started at 9 p.m. and ended at 11. 30 p.m. and the third round started at 12 midnight and ended at 2 a.m. The witness was asked in cross-examination whether he had complained to the counting staff at the spot and the witness admitted that when he pointed out the mistake it was rectified by the counting staff. From the timings of the rounds it appears that there were sufficient intervals between the three rounds, and, therefore, the question of

the staff being tired and exhausted did not arise. This finding of the learned Judge, therefore, is against the weight of evidence and cannot be legally supported. Moreover, as we have already pointed out that re-count should be ordered not on possibility of errors but when the matter is proved with absolute certainty. Similarly, the learned Judge speculates that there must have been lot of physical exertion and observed thus:

"It is not possible to exclude the possibility of physical exertion on the part of the counting staff especially after midnight when the third round of counting took place. Having regard to the minimal difference in votes it has become necessary to find out whether the third round of counting was carried on by the counting staff properly. In the nature of things it is not possible to assume that all the 72 persons were alert and attended to the process of counting with such keenness as it deserved."

17. Lastly, the learned Judge was greatly influenced by the fact that the margin by which the appellant succeeded was very narrow. This was undoubtedly an important factor to be considered but would not by itself vitiate the counting of votes or justify re-counting by the court.

***

19. The law on the subject is absolutely clear and while the learned Judge had relied on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this case. On the question of re-count as far back as in the case of Ram Sewak Jadav v. Hussain Kamil Kidwai [AIR 1964 SC 1249 : (1964) 6 SCR 238, 244-246: 26 ELR 14] this Court pointed out as follows:

"But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers.

An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinised and opened, and the votes were counted. He also has opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re- count that the application for inspection must be considered."

To the same effect is a later decision of this Court in the case of Dr Jagjit Singh v. Giani Kartar Singh [AIR

1966 SC 773 : 28 ELR 81] . In the case of Jitendra Bahadur Singh v. Krishna Behari [(1969) 2 SCC 433, 436, 438 : AIR 1970 SC 276 : (1970) 1 SCR 852, 856, 857] this Court observed as follows: (SCC p. 436, para 8; p. 438, para 12) "In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information? It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition.

The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons, whatsoever as to how it came to be satisfied. A Judge can be satisfied only on the basis of proof and not on the basis of mere allegations."

20. In Halsbury's Laws of England (Vol. 14 at p. 310, para 599), it is observed:

"A re-count is not granted as of right, but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer."

21. Similarly, Fraser in his Law of Parliamentary Elections and Election Petitions at p. 222 observed thus:

"A strong case must be made on affidavit before an order can be obtained for inspection of ballot papers or counterfoils."

22. In the case of Baldev Singh v. Teja Singh Swatantar [(1975) 4 SCC 406 : AIR 1975 SC 693 : (1975) 3 SCR 381] Krishna Iyer, J., speaking for the court observed as follows: (SCC pp. 414, 416, paras 14,

18) "Disingenuous averments do not promote prospects of judicial recount and will be dismissed as devices to comply with requirements suggested in some ruling or other.

Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. ... If formal defects had been misconstrued at some table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a plea for a second inspection had been made on the spot. Many practical circumstances or legal misconceptions might honestly affect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, check. Of course, baseless or concocted claims for re-count or fabricated grounds for inspection or specious complaints of mistakes in counting when the gap is huge are obvious cases of frivolous and unreasonable demands for re-count. Mala fide aspersions on counting staff or false and untenable objections regarding validity of votes also fall under the same category. We mean to be illustrative, not exhaustive, but underline the need, in appropriate cases to be reasonably liberal in re-check and re-count by Returning Officers. After all, fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest. Indeed, the instructions to officers are fairly clear and lay down sound guidelines."

***

24. Similarly in the case of Chanda Singh v. Choudhary Shiv Ram Verma [(1975) 4 SCC 393 : AIR 1975 SC 403 : (1976) 1 SCJ 432] this Court observed as follows: (SCC pp. 396, 397, para 6) "A democracy runs smooth on the wheels of

periodic and pure elections. The verdict at the polls announced by the Returning Officers lead 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 re-counts 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 re-count 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 re- count 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 re-count to cases of genuine apprehension of miscount or illegality or other compulsions of justice necessitating such a drastic step."

25. In the case of Beliram Bhalaik v. Jai Beharilal Khachi [(1975) 4 SCC 417] this Court again reiterated the same principles in the following words: (SCC pp. 426, 427, paras 43, 44) "A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the 'grounds' within the contemplation of Rule 63(2). The application was thus not proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63 also.

Although no cast-iron rule of universal application can be or has been laid down, yet from a beadroll of the

decisions of this Court two broad guidelines are discernible; that the court would be justified in ordering a re-count or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition, and (ii) the Court/Tribunal 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."

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:

(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."

The Supreme Court in the case of Vadivelu v. Sundaram and others reported in (2000) 8 SCC 355 has held as under:-

"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."

The Supreme Court in the case of Bhabhi v. Sheo Govind andd others reported in (1976) 1 SCC 687 held as under:-

"15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers:

(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full

justice between the parties;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."

If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper."

Thus, it is clear that recounting of ballot papers is to be considered only if it is accompanied by genuine cause supported by valid reasons.

In the present case, the petitioner claims that she has an apprehension that some manipulation has been done because of light shedding. Whether it is a good ground for recounting or not, for the purposes of election petition is to be considered by the Election Tribunal but for the purpose of writ petition under Article 226 of the Constitution of India, this cannot be a ground for directing for recounting.

So far as the contention made by the counsel for the petitioner that the coordinate Bench of this Court in the case of Smt. Shashi Yadav (supra) has directed for consideration of representation for recounting is concerned, this Court is of the considered opinion that unless and until a good ground is made out by the petitioner for seeking such a direction, the direction cannot be given in a casual manner. Furthermore, Article 243-O of the Constitution of India reads as under:-

"243O. Bar to interference by courts in electoral matters.-- Notwithstanding anything in this Constitution--

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the legislature of a State."

The petitioner has relied upon the judgment passed by the Supreme Court in the case of DMK (supra) to submit that asking for recounting would not mean that the election to any Panchayat has been called in question.

Considered the submissions made by the counsel for the petitioner. In the case of DMK (supra), the question was that no fresh delimitation exercise was undertaken after the increase in number of Districts 239, therefore, the Supreme Court had directed the respondents to delimit 9 newly constituted Districts in accordance with law and thereafter hold elections for their Panchayats at the village, intermediate and Districts levels within a period of four months and a direction was also given that State Election Commission shall notify the elections for the Panchayats at village, intermediate and Districts level in respect of all the Districts except 9 reconstituted Districts as per the details given in direction 15.1.

Thus, the controversy involved in the case of DMK (supra) was completely different and the petitioner could not get any assistance from the said judgment. Similarly, in the case of State of GOA (supra), the controversy involved in the case before the Supreme Court was with

regard to the reservation, delimitation and allotment of seats, wherein the Supreme Court has held as under:

"68.1. Under Article 243-ZG(b), no election to any municipality can be called in question except by an election petition presented to a Tribunal as is provided by or under any law made by the legislature of a State. This would mean that from the date of notification of the election till the date of the declaration of result a judicial hands-off is mandated by the non obstante clause contained in Article 243-ZG debarring the writ court under Articles 226 and 227 from interfering once the election process has begun until it is over. The constitutional bar operates only during this period. It is therefore a matter of discretion exercisable by a writ court as to whether an interference is called for when the electoral process is "imminent" i.e the notification for elections is yet to be announced."

Considering from that aspect also, this Court is of the considered opinion that the declaration of result is a part of election process and in view of the Article 243-O of the Constitution of India, the Court has no jurisdiction to interfere with the election process during the period from the date of notification till the results are declared. Merely because the respondents have an authority of recounting under Rule 80 of Rules, 1995, a direction for recounting of votes cannot be given in the light of bar as contained under Article 243-O of the Constitution of India. The coordinate Bench of this Court while directing the respondents in the case of Smt. Shashi Yadav (supra), has not considered the effect of Article 243-O of the Constitution of India.

Accordingly, the order passed in the case of Smt. Shashi Yadav (supra) is held to be per incuriam.

The petition fails and is hereby dismissed. However, liberty is

given to the petitioner that if so advised, then she can file an election petition after the results are declared.

(G.S. AHLUWALIA) JUDGE Abhi ABHISHEK CHATURVEDI 2022.07.11 19:03:26 +05'30'