Madhya Pradesh High Court
Pradeep Kumar Rai vs The Returning Officer on 16 August, 2023
Author: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF AUGUST, 2023
WRIT PETITION No.10450 of 2023
BETWEEN:-
PRADEEP KUMAR RAI, S/O. SHRI MALKHAN
PRASAD RAI, AGED ABOUT NOT KNOWN,
SARPANCH, GRAM PANCHAYAT PONDI
MANGARH, TEHSIL JABERA, DISTRICT
DAMOH (M.P.)
.....PETITIONER
(BY SHRI PRAKASH UPADHYAY & SHRI ADITYA JAISWAL - ADVOCATES)
AND
1. THE RETURNING OFFICER, PANCHAYAT
ELECTION 2022, TEHSIL JABERA, DISTRICT
DAMOH (M.P.)
2. MANOJ RAI, S/O. NARMADA RAI, AGED ABOUT
NOT KNOWN, CANDIDATE FOR SARPANCH,
GRAM PANCHAYAT PONDI MANGARH, TEHSIL
JABERA, DISTRICT DAMOH (M.P.)
3. NIKHAT JAHAN, W/. ILYAS KHAN, CANDIDATE
FOR SARPANCH, GRAM PANCHAYAT PIPARIYA
MEHRA, JANPAD PANCHAYAT AND TEHSIL
LAKHNADON, DISTRICT SEONI (M.P.)
......RESPONDENTS
(BY SHRI VIPIN YADAV- ADVOCATE FOR RESPONDENT NO.2/CAVEATOR)
............................................................................................................................................
Reserved on : 05.07.2023
Pronounced on : 16.08.2023
............................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
2
ORDER
Pleadings are complete. With the consent of learned counsel
for the parties, the matter is finally heard.
2. The petitioner has filed this petition under Article 226 of the
Constitution of India, questioning the legality, validity and propriety of
the order dated 22.02.2023 (Annexure P/11) passed by the Sub
Divisional Officer, Tendukheda, District Damoh- Election Tribunal
whereby the election petition filed by the respondent No.2 under Section
122 of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam,
1993 (hereinafter referred to as the Adhiniyam, 1993) challenging the
election of the petitioner to the post of Sarpanch of Gram Panchayat
Pondi Mangarh, Tehsil Jabera, District Damoh has been partly allowed
and the election tribunal has ordered for recounting of votes of polling
booth no.211.
3. To resolve the controversy involved in the case, the facts of
the case in nutshell are as follows:-
3.1 That, the election programme for Gram Panchayat for the
year 2022-23 was notified. The petitioner along with respondent Nos. 2
and 3 contested the panchayat election for the post of Sarpanch for
Gram Panchayat Pondi Mangarh, Tehsil Jabera, District Damoh. On
01.07.2022, the result was declared wherein the petitioner was declared
to be a return candidate in the said election by securing two votes more
than that of respondent No.2.
3.2 That, on 25.07.2022, respondent No.2 filed an election
petition under Section 122 of Adhiniyam, 1993 claiming recounting of
votes and declaring the election void. Several allegations about
irregularities during the election process including the allegation of
corrupt practice were also pleaded. On 21.09.2022, the matter was fixed
for framing the issues and the next date was fixed as 12.10.2022 but on
the said date, issues were not framed and then again the case was fixed
for recording the evidence. On 22.02.2023, election petition was partly
allowed only on the ground that there is thin margin of two votes
between the successful candidates and the election petitioner.
3.3 Petitioner filed writ petition being W.P. No.5465 of 2023
challenging the order passed by the Election Tribunal and the petition
got disposed of vide order dated 15.03.2023 quashing the order dated
22.02.2023, remitting the matter to the Election Tribunal to pass a fresh
order by assigning reasons.
3.4 That, on 27.03.2023, writ appeal being W.A. No.451 of
2023 was preferred assailing the order of the writ Court dated
15.03.2023 with limited prayer for grant of opportunity of hearing. The
said writ appeal was dismissed vide order dated 19.04.2023 with an
observation that no illegality has been committed by the writ Court.
3.5 That on 28.04.2023, impugned order was passed directing
recounting of votes on 08.05.2023.
3.6 That, on 02.05.2023, the present writ petition has been filed
and the writ Court vide order dated 08.05.2023 granted interim relief
that recounting of votes may be conducted but the result of recounting
shall not be declared without seeking leave of this Court and the said
result shall be subjected to final outcome of the present petition.
4. As per counsel for the petitioner, the election petition did
not contain specific pleading and according to him, in paras 9 and 10 of
the election petition, there was no specific pleading made. Shri
Upadhyay has also submitted that evidence led by the respondent Nos.2
and 3 were contrary to pleading and in fact they were based on hearsay
evidence and also on surmises. He has submitted that in the affidavit
filed along with the election petition, it is stated that whatever averments
made therein are based upon personal knowledge of election petitioner.
However, the number of improperly rejected votes for polling booth
number 211 has been reduced from 18 votes to 10-15 votes in evidence.
PW-1 (election petitioner) has admitted that he was not present in the
polling booth and information with regard to rejection of 10-15 votes
was conveyed to him by his counting agent. The counting agent
Chandrashekhar Rai (PW-2) has also admitted that he was not present
during the entire counting and no objection with respect to invalid
rejection was made whereas procedure as contemplated under Rule 76
of Madhya Pradesh Panchayat Nirvachan Niyam, 1995 (hereinafter
referred to as the Niyam, 1995) was complied with. According to Shri
Upadhyay, for the first time objection was raised when counting was at
the verge of completion and only 30 votes were remained to be counted
but in cross-examination of writ petitioner, he has stated that he left the
counting hall before completion of counting. The counting agent
Chandrashekhar Rai in examination-in-chief itself has admitted that he
has not actually seen the marking in the rejected ballot paper and as
such, the allegation about invalid rejection was neither supported with
credible evidence nor substantiated in evidence. He has therefore,
submitted that the pleading was not as per rule and requirement, the
averments regarding wrongful rejection of ballot, based upon personal
knowledge is not sufficient to order for recount as such required
pleadings are missing.
5. Counsel for the petitioner has also submitted that
application for recounting is not filed as per rules and it was neither filed
before the Presiding Officer nor before the Returning Officer. He has
further submitted that Exhibit P/3-the application was filed after
completion of procedure as contemplated under Rules 77(2) and 77(4)
of Niyam, 1995 and, therefore, it was liable to be rejected under Rule
80(5) of Niyam, 1995. He has further submitted that it is not alleged
that Presiding Officer has not accepted the application Exhibit P/2 and
no averment in this regard was made in Exhibit P/3. He has further
submitted that Exhibit P/2 does not contain the date and as such, not
trustworthy. He has also submitted that election petition was decided
without framing the issues whereas it was fixed for framing the same on
21.09.2022. The ground with regard to corrupt practice was raised but
no finding was given. He has further submitted that election tribunal
arrived at a conclusion that most of the allegations made in the election
petition were not effectively controverted by returning candidate and
according to him, the respondent No.2 has led evidence contrary to the
pleading and as such it was inadmissible. Though there was no pleading
about inappropriate light arrangement and power failure but same was
accepted. According to him, there were no grounds for recount of votes
but election tribunal committed illegality in issuing such direction. In
support of his contentions, he has placed reliance on judgments reported
in 2011 SCC Online MP 2489- Narendra Patel Vs. Amarkant Tiwari
and Others, I.L.R. (2019) M.P. 316 Devki Nandan Dubey Vs.
Purshottam Sahu, (2001) 2 SCC 652-Makhan Lal Bangal Vs. Manas
Bhunia and Others and in a case reported in 2001(3) SCC 495-Preet
Mohinder Singh Vs. Kirpal Singh.
6. Per contra, Shri Vipin Yadav, counsel for the
respondent/caveator submits that on 28.04.2023, recounting of votes has
taken place in polling booth No.211 in which respondent No.2 secured
two more votes and now petitioner secured total 601 votes whereas
respondent No.2 secured 603 votes. He further submits that in view of
the evidence adduced by the parties, it is clear that electricity got failed
three to four times and it is sufficient for the Presiding Officer to order
recount of votes to remove the doubts. He further submits that once
recounting is ordered and that has been done, the Court cannot shut its
eyes on the result of recounting and according to him, in the recounting
respondent No.2 has secured more votes than that of petitioner. He
further submits that merely because issues were not framed, the trial of
election petition cannot be vitiated especially under the circumstance
when petitioner has not raised any objection before the Court below that
issues shall be drawn first. He has relied upon a decision passed in W.A.
No.68/2016-Santosh Kumar Nishad Vs. State of Chhattisgarh. He
has also relied upon a decision passed in case of Chandeshwar Saw Vs.
Brijbhushan Prasad SLP (c) No.22715/2019. He has further submitted
that with regard to non framing of issues, an objection has already been
raised in the earlier round of litigation and, therefore, that issue cannot
be dealt with at this stage in the present petition.
7. I have heard the arguments advanced by learned counsel for
the parties and perused the record.
8. The challenge of the petitioner is founded mainly on the
ground that the order passed by the Election Tribunal which is impugned
in this petition is not sustainable and is liable to be set-aside on the
ground that the tribunal without there being sufficient pleading in the
election petition could not pass the order of recounting of votes. The
second contention to criticizes the order of tribunal is that the tribunal
has committed a grave illegality while deciding the election petition
even without framing the issues whereas the tribunal has already fixed a
date in this regard.
9. According to Shri Upadhyay, in absence of specific
pleading with regard to irregularities committed during the course of the
counting the votes; valid votes have been declared invalid and votes
which should have been counted in favour of election petitioner
counted in favour of return candidate, order of recounting of votes
cannot be passed. According to him, though paras-9 and 10 of election
petition contained pleadings with regard to irregularities committed
during counting of votes but those pleadings are insufficient and in
absence of specific evidence adduced by the election petitioner to
substantiate the averments made in the election petition, recounting
could not have been ordered. As per learned counsel for the petitioner,
from the election petition in the column of verification the election
petitioner has stated that whatever averments made in the election
petition are true to my personal knowledge, whereas election agent
namely Chandrashekhar (PW-2) has admitted that he was not present
during the entire counting and no objection with respect to invalid
rejection was made while the returning candidate completed the
procedure as per Rule 76 of Niyam 1995. According to Shri Upadhyay,
it is clear that the pleadings made in the election petition are without any
foundation and made only on the basis of hearsay evidence.
10. To deal with the contention with regard to requirement of
framing of the issues although the Hon'ble Supreme Court in the case of
Makhan Lal Bangal (surpa) has discussed the need of framing the issues
and also the basis of object of framing the issue in the following
manner:-
"19. An election petition is like a civil trial. The stage of framing the
issues is an important one inasmuch as on that day the scope of the trial
is determined by laying the path on which the trial shall proceed
excluding diversions and departures therefrom. The date fixed for
settlement of issues is, therefore, a date fixed for hearing. The real
dispute between the parties is determined, the area of conflict is
narrowed and the concave mirror held by the court reflecting the
pleadings of the parties pinpoints into issues, the disputes on which the
two sides differ. The correct decision of civil lis largely depends on
correct framing of issues, correctly determining the real points in
controversy which need to be decided. The scheme of Order 14 of the
Code of Civil Procedure dealing with settlement of issues shows that an
issue arises when a material proposition of fact or law is affirmed by one
party and denied by the other. Each material proposition affirmed by one
party and denied by other should form the subject of a distinct issue. An
obligation is cast on the court to read the plaint/petition and the written
statement/counter, if any, and then determine with the assistance of the
learned counsel for the parties, the material propositions of fact or of law
on which the parties are at variance. The issues shall be framed and
recorded on which the decision of the case shall depend. The parties and
their counsel are bound to assist the court in the process of framing of
issues. Duty of the counsel does not belittle the primary obligation cast
on the court. It is for the Presiding Judge to exert himself so as to frame
sufficiently expressive issues. An omission to frame proper issues may
be a ground for remanding the case for retrial subject to prejudice having
been shown to have resulted by the omission. The petition may be
disposed of at the first hearing if it appears that the parties are not at
issue on any material question of law or of fact and the court may at once
pronounce the judgment. If the parties are at issue on some questions of
law or of fact, the suit or petition shall be fixed for trial calling upon the
parties to adduce evidence on issues of fact. The evidence shall be
confined to issues and the pleadings. No evidence on controversies not
covered by issues and the pleadings, shall normally be admitted, for each
party leads evidence in support of issues the burden of proving which
lies on him. The object of an issue is to tie down the evidence and
arguments and decision to a particular question so that there may be no
doubt on what the dispute is. The judgment, then proceeding issue-wise
would be able to tell precisely how the dispute was decided."
11. However, according to Shri Yadav under the existing
circumstances, it does not vitiate the order of election tribunal because
the challenge of election of the return candidate was solely on the
grounds of recounting of votes, an allegations that some valid votes
were declared invalid and that the votes which should have been
counted in favour of election petitioner have been counted in favour of
return candidate and, therefore, it was in the knowledge of both the
parties as to what was the issue involved in the election petition and
accordingly both the parties have led evidence to that effect. Therefore,
if issue is not framed, no prejudice would be caused to any of the
parties. So far as the case of Santosh Kumar Nishad (supra) in which
Shri Yadav has placed reliance is concerned, in the said case the
Division Bench has observed as under:-
"12. The question that arises is that if the Election Tribunal fails to
frame issue(s) is it always necessary to hold that the entire proceedings
are non-est and have to be quashed. We do not think so. This will depend
on the facts and circumstances of each case. If due to non framing of any
issue(s) prejudice is caused to one of the parties inasmuch as the party
cannot lead evidence or is denied an opportunity to lead evidence and the
election petition is decided one way or the other on the basis of that
point, then definitely the order will have to be set aside. Similarly, if the
Election Tribunal decides the petition on a point which has not been
argued before it because no issue was framed in that regard, then also the
non-framing of an issue or issues will be fatal. However, there is an
Exception to this. If parties fully knowing what is the dispute in hand
enter into the witness box, examine witnesses, cross-examine witnesses
of the other side and argue the matter on all the issue(s) which may arise
in that petition, then they have waived their right to claim that the non-
framing of issue(s) is such a defect that the final order should be
quashed.
(emphasis supplied)
14. In 2011 (11) SCC 786 (Kalyan Singh Chouhan v. C.P. Joshi),
the main dispute was whether one lady had cast her vote twice under two
different names and whether the tendered votes cast in the election must
be counted and whether six votes polled against the tendered votes must
be rejected. In that case also the margin of victory was only one vote. A
prayer was made to summon certain documents with regard to the
tendered votes. This prayer was rejected on the ground that these facts
were not pleaded and no issue had been framed in respect of those
tendered votes. An appeal was filed before the Apex Court wherein the
elected candidate urged that the election petition has to be adjudicated
strictly adhering to the statutory provisions and the Court cannot permit a
party to lead evidence unless an issue has been framed on the
controversy and an issue cannot be framed unless there are actual
pleadings in respect thereof. We are not concerned with the second part
because there is no allegation in the present case that the pleadings are
lacking material particulars. The only allegation is that no issue was
framed. With regard to non-framing of issues, the Apex Court in the said
judgment held as follows:-
"25. The object of framing issues is to ascertain/shorten the
area of dispute and pinpoint the points required to be
determined by the court. The issues are framed so that no party
at the trial is taken by surprise. It is the issues fixed and not the
pleadings that guide the parties in the matter of adducing
evidence.
XXX XXX XXX
27. There may be an exceptional case wherein the parties
proceed to trial fully knowing the rival case and lead all the
evidence not only in support of their contentions but in
refutation thereof by the other side. In such an eventuality,
absence of an issue would not be fatal and it would not be
permissible for a party to submit that there has been a mistrial
and the proceedings stood vitiated."
15. This view has been reiterated by the Apex Court in 2014 (5)
SCC 312 (Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari &
Another) as follows :
"16. There may be an exceptional case where the parties
proceed to trial fully knowing the rival case and lead all the
evidence not only in support of their contentions but in
refutation of the case set up by the other side. Only in such
circumstances, absence of an issue may not be fatal and a
party may not be permitted to submit that there has been a
mistrial and the proceedings stood vitiated."
16. What we have to decide is whether the present case falls within the
exception carved out by the Apex Court. As pointed out before, the
dispute in the election petition was very short. Detailed allegation had
been made challenging the correctness of the counting of the votes and
specific allegations were made with regard to alleged wrong counting of
votes of particular booths. These allegations were specific and were
denied by the elected candidate. On these specific pleadings, evidence
was led by the Election Petitioner and the Election Petitioner and his
witnesses were cross-examined on these aspects of the matter by the
elected candidate and thereafter the elected candidate also led evidence
and he examined himself and other witnesses with regard to these very
allegations and counter-allegations. Therefore, this clearly shows that the
elected candidate was clearly aware of what was the dispute between the
parties. In this case there was only one dispute and that was whether the
votes have been properly counted or not and even with regard to that
there was specific allegation and it was not a general plea of recounting.
Since evidence has been led by both the parties on these specific
pleadings knowing fully well what was the case set up by the election
petitioner and what was the defence of the elected candidate. Therefore,
it cannot be said that the non-framing of issue(s) has caused prejudice to
the elected candidate. As such, in the facts of this case we hold that the
non-framing of issue(s) is not fatal to the decision of the case and
therefore we find no merit in the appeal which is accordingly dismissed."
12. After hearing the submissions of both the parties and
examining the legal position as has been considered by the Courts and
view expressed thereof, I am also of the opinion that in the present case
although the issue has not been framed by the election tribunal but both
the parties were fully aware about the issue involved in the case because
it was a solitary issue as to whether taking into account the pleadings
and evidence led by parties, recount of votes can be ordered? Not only
this, but during pendency of election petition the present petitioner
travelled to the High Court and also filed writ appeal but never raised
any objection with regard to non-framing of issue. Thus, in my opinion
it was very much in the knowledge of the present petitioner as to what
was the issue involved and as such parties led evidence and, therefore,
not framing the issue does not prejudice the present petitioner. This
Court ergo finds that the order of tribunal allowing the election
petitioner cannot be set-aside only on this ground. The view of Division
Bench of Chhatisgarh in the case of Santosh Kumar Nishad (supra),
taking note of all the judgment of the Supreme Court on this issue is
very clear that if no prejudice is caused to the parties for non-framing
the issue then it would be fatal but here in this case and the existing facts
and circumstances since no prejudice is caused to the parties, no
objection ever raised though the parties appeared before the writ court
and also in the writ appeal not raised any objection, thus I do not find
any substance in the submission made by the counsel for the petitioner
about non-framing the issue and set-aside the order passed by the
election tribunal on this ground.
13. So far as the second issue with regard to specific pleading is
concerned, the election petition contained pleading with regard to the
irregularities committed during counting of votes in paragraphs 9 and 10
of the election petition. The election petitioner has very specifically
mentioned that in polling centre No.211, some of the votes were valid
and should have been counted in favour of election petitioner but they
have been considered to be invalid votes and some of the votes which
should have been counted in favour of election petitioner have been
counted in favour of return candidate. It is also pleaded in the said
paragraph that at the time of counting, the supporters of return candidate
were standing outside the polling centre where counting was being
conducted and were creating pressure to declare the return candidate
elected. It is also pleaded that at the time of counting of votes, there was
dim light and on so many occasions there was a power cut. It is also
pleaded that the agent of the election petitioner has made a request
immediately to the Returning Officer for recount and submitted an
application but that has been not been accepted and the Returning
Officer refused to accept the same. In paragraph 10 also, it is very
categorically pleaded that the request for recounting of votes was the
right of the election petitioner but it has been refused and as such, the
counting did on that occasion was said to be illegal and was not fair.
14. Shri Upadhyay has also pointed out that in the verification
column of election petition, the election petitioner has stated that the
averments made in the election petition are as per his personal
knowledge whereas his witness i.e counting agent has very categorically
stated that the election petitioner was not present at the counting centre
and, therefore, he submits that it was only a bald statement made on the
basis of hearse evidence and, therefore, the pleading for recounting of
votes is vague and recounting on the basis of the same cannot be
ordered. The judgment on which Shri Upadhyay has placed reliance, i.e.
Narendra Patel (supra), in the said case, this Court has observed as
under:-
"6. I have heard learned counsel for the parties at length and
perused the record. Even though this Court in the case of Kalka Prasad
(supra) after following the judgment of the Supreme Court in the case of
Makhan Lal Bangal (supra) has laid down the principle that an election
petition should not be decided without framing of issues but the said
principle has to be evaluated in the light of further observation made in
the case of Makhan Lal Bangal (supra) so also in the case of Shri Manni
Lal (supra) wherein the question of prejudice and its effect on the final
outcome has to be evaluated. Even though learned counsel for the
petitioner had tried to emphasize that issues were not framed but he has
not pointed out to this Court any prejudice that is caused to him due to
the aforesaid procedure being followed. However, as the election petition
is decided only on the question of improper counting of vote and
direction issued is to order for recounting of the vote, the principles laid
down by the Supreme Court in the cases of P.K.K. Shamsudeen v.
K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526 and Vadivelu v.
Sundaram, (2000) 8 SCC 355 has to be applied and the recounting of
vote ordered in the present case has to be evaluated in the back drop of
the principles laid down in the cases of P.K.K. Shamsudeen (supra) and
Vadivelu (supra). In the case of P.K.K. Shamsudeen (supra) the question
is considered and principle is laid down in the following manner:--
"12. In R. Narayanan v. Semmalai, 1980 SCR 571, the
same principle has been reiterated. That was a case
where the difference of votes between the candidates
declared elected and his nearest rival, who filed an
election petition wasonly 19 votes and which figure
would have come down to 9 votes only if the postal
ballots were included. Even so this Court after referring
to a number of decisions and Halsbury's Laws of
England and Fraser on Law of Parliamentary Elections
and Election Petitions held that without their being an
adequate statement of all the material facts on which the
allegations of irregularity or illegality in counting of
votes are founded and such averments being backed by
acceptable evidence and the Court trying the petition
being prima facie satisfied that an order for recount of
votes is imperatively, necessary to decide the dispute
and do complete justice between the parties, an order of
recount of votes cannot be passed.
13. 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
high 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 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.
14. Viewed in the light of these well enunciated
principles, we find that the petitioner has neither made
such averments in the petition nor adduced evidence of
such a compulsive nature as could have made the
Tribunal reach a prima facie satisfaction that there was
adequate justification for the secrecy of ballot being
breached in the petitioner's case. Factors urged before us
by Mr. Padamanabhan such as that the first respondent
had accepted the correctness of the recount, and that he
had conceded his defeat and wanted a re-election to be
held cannot constitute justifying materials in law for the
initial order of recount of votes made by the Tribunal.
15. Mr. Padamanabhan also contended that the purpose
and object of the election law is to ensure that only that
person should represent the constituency who is chosen
by the majority of the electors and that is the essence of
democratic process, and this position has been observed
by a Bench of this Court in their order of reference of
the case of N. Gopal Reddy v. Bonala Krishnamurty, CA
No. 3730(NCE) of 1986 reported in JT (1987) 1 SC 406
and hence it would be a travesty of justice and opposed
to all democratic canons to allow the first respondent to
continue to hold the post of the President of the
Panchayat when the recount disclosed that he had
secured 28 votes less than the petitioner. We are unable
to sustain this contention because as we have stated
earlier an order of recount of votes must stand or fall on
the nature of the averments made and the evidence
adduced before the order of recount is made and not
from the results emanating from the recount of votes."
Similarly in the case of Vadivelu (supra) the following principle is laid
down:--
"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."+
7. If the procedure followed in the present case is evaluated in the
backdrop of the aforesaid requirement of law, it would be seen that in the
election petition filed vide Annexure P/1 petitioner raised grounds with
regard to improper counting by pointing out that in 3 polling booths
namely booth No. 23, 24 & 26 various votes were declared valid or
invalid without there being any proper reason for the same. Parties went
to trial and evidence were also led on this count. Statements of witnesses
indicate that witnesses without even referring to any documents or any
other material with them regarding the particulars of the ward, number of
votes cast and number of votes declared to be valid or invalid gave facts
and figures in this regard. It is surprising as to how the witnesses could
give exact number of votes cast, valid and invalid votes etc. without the
help of any documents, such a statement based on help of any
documents, such a statement based on memory that also by voters of a
Panchayat election is unbelievable. Be that as it may, when the matter
was considered by the election Tribunal, the order passed by the election
tribunal indicates that after recording the pleadings of the parties and
after taking note of allegations made in the election petition under
Section 122. The Tribunal proceeded to take note of the statement of
witnesses and finally in a very casual manner without application of
mind or analysis of evidence finds illegality in the matter of counting and
directed for recounting of the vote. If the findings by the Enquiry Officer
in this regard is perused, it would be seen that in the order passed by
him, the entire case of the parties are reproduced and thereafter in a very
casual manner in less than two paras he has directed for recounting. He
has accepted the version given by the witnesses of the respondent with
regard to the number of votes declared valid or invalid but did not think
it appropriate even for a moment to call for the ballot papers and verify
the statement of witnesses. Once the statement were given, they could be
verified through the ballot papers. It was not appropriate for the Election
Tribunal to give credence to the oral statement of witnesses without there
being any cogent material to hold that the witnesses were giving correct
statement. More appropriate manner of dealing with the matter would
have been to call for the ballot papers, other records, verify them as to
whether statement given by the witnesses are correct and thereafter
proceed in the matter. Election Tribunal did not proceed in the said
manner. Instead merely on the basis of the oral statement held that in
various polling booths the number of ballot papers has not been properly
counted and that is why they have been declared valid or invalid and
proceed to order for recounting. However, while doing so, the Election
Tribunal did not even think it appropriate to refer to the defence of the
petitioner or its witnesses. Therefore, I am of the considered view that
the finding recorded by the Election Tribunal is a perverse finding,
shows non application of mind. Recounting of votes in a duly conducted
election is directed in the manner done which is not in accordance to law.
It is a case where the principles laid down by the Supreme Court in the
cases referred to herein above is violated. Even though there is some
force in the contention advanced by Shri Adhikari that non framing of
issues has not caused any prejudice but the manner in which the Election
Tribunal has decided the issue, warrants consideration by this Court. The
Election Tribunal was proceeding to decide the fate of elected candidate
and if the election Tribunal found that the election stood vitiated which
would have the result of unseating an elected candidate, the Election
Tribunal should have been more analytical and should have analyse the
matter more critically particularly about truthfulness of the allegation
and should have recorded its satisfaction about the irregularity in the
counting of votes in more careful manner. Finding of the Election
Tribunal is totally perverse and cannot be accepted by this Court.
Finding recorded by the Election Tribunal does not show application of
mind and in a casual manner which runs contrary to the principles laid
down by the Supreme Court in the case of P.K.K. Shamsudeen (supra)
and Vadivelu (supra) so also by this Court in the cases relied upon by the
learned counsel for the petitioner."
15. Further, in case of Devki Nandan (supra), the Court has
observed as under:-
"8. Before dealing with rival contentions advanced at the Bar, it is
profitable to summarize and catalog the circumstance under which
recount could be ordered. The Apex Court way back in Bhabhi v. Sheo
Govind, (1976) 1 SCC 687 opined that the election petition must contain
the adequate statement of all the material facts on which the allegations
of irregularity and illegality in counting are founded. On the basis of
evidence adduced, such illegality must be established. The Court trying
the petition must be satisfied that making of such an order of recount is
imperatively necessary to decide the dispute and to do complete justice
between the parties. The Apex Court in Ram Autar Singh Bhadauria v.
Ram Gopal Singh, (1976) 1 SCC 43 followed the said principle. In
Chanda Singh v. Choudhary Shiv Ram Verma, (1975) 4 SCC 393, the
Apex Court held that the democracy runs on the smooth wheels of
periodic and pure elections. A certain amount of stability in the electoral
process is essential. Recount of ballot cannot be interfered too frequently
and on flippant accounts. The secrecy of the ballot is sacrosanct in
democratic process. In Beliram Bhalaik v. Jain Beharilal Kachi, (1975) 4
SCC 417, the Apex Court held that a whimsical and bald statement of the
candidate that he is not satisfied with the counting will not tantamount to
a statement of the "grounds" within the meaning of relevant rules. A
Division Bench of this Court in Ganesh Ram Gayari v. Bagdiram, (2013)
2 MP LJ 447 followed the said principle. In Hanumant Singh v. State of
M.P., (2012) 3 MP LJ 191, this Court considered the judgment of the
Supreme Court reported in 1993 Supp (2) SCC 82 : AIR 1993 SC 367,
Shri Satyananrain Dudhani v. Uday Kumar Singh and opined that
secrecy of ballot cannot be lightly tinkered. In a democratic set up,
secrecy of ballot is of utmost importance and in absence of very specific
pleadings of material facts and particulars supported by
contemporaneous evidence, neither election can be quashed nor recount
can be ordered. This Court considered the judgment of Mahender Pratap
v. Kishan Pal, (2003) 1 SCC 390 in which it was held that the onus of
proof on the basis of proper pleading is on the election petitioner. It is
further held that the degree of proof is of very high standard for the
purpose of annulling an election or for issuing direction for recounting."
16. In a case reported in 2000 (8) SCC 355- Vadivelu Vs.
Sundaram & Ors, the Supreme Court has observed as under:-
"8. In Satyanarain Dudhani v. Uday Kumar Singh [1993 Supp (2)
SCC 82] it was held that the secrecy of the ballot papers cannot be
permitted to be tinkered lightly and an order of re-count cannot be
granted as a matter of course. Only when the High Court is satisfied on
the basis of material facts pleaded in the petition and supported by the
contemporaneous evidence, that the re-count can be ordered. When there
was no contemporaneous evidence to show any irregularity or illegality
in the counting, ordinarily, it would not be proper to order re-count on
the basis of bare allegations in the election petition.
9. In Jitendra Bahadur Singh v. Shri Kirshna Behari [(1969) 2 SCC
433 : AIR 1970 SC 276] the election petitioner, who claimed to be a
counting agent filed election petition alleging that there was irregularity
and illegality in the counting of votes. The learned Single Judge, who
was trying the election petition permitted the petitioner to inspect the
packets of the ballot papers containing the accepted as well as the
rejected votes of the candidates. This Court, while allowing the appeal,
held that the basic requirements to be satisfied before the Election
Tribunal can permit the inspection of ballot papers are that (1) the
petition for setting aside the election must contain an adequate statement
of material facts on which the petitioner relies in support of his case, and
(2) the Tribunal must be prima facie satisfied that in order to decide the
dispute and to do complete justice between the parties, inspection of
ballot papers is necessary. 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.
10. In D.P. Sharma v. Commr. and Returning Officer [1984 Supp
SCC 157] allegations were made in the election petition that there was
discrepancy between the total number of ballot papers issued and ballot
papers taken out and counted from the ballot boxes. This Court held that
the discrepancies alleged in the statements prepared under Rules 45 and
56 of the Conduct of Election Rules, 1967 do not make out a case for
directing a re-count of votes especially when the discrepancy is marginal
and insignificant. In para 4 of the said judgment, it was held that in order
to obtain re-count of votes, a proper foundation is required to be laid by
the election petitioner indicating the precise material on the basis of
which it could be urged by him with some substance that there has been
either improper reception of invalid votes in favour of the elected
candidate or improper rejection of valid votes in favour of the defeated
candidate or wrong counting of votes in favour of the elected candidate,
which had in reality been cast in favour of the defeated candidate.
11.P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen [(1989) 1
SCC 526] is a case where the petitioner contested the election for the
post of President of a Panchayat in Tamil Nadu. In the election, the 1st
respondent was declared elected and the petitioner challenged the
election on the ground that while counting, the Returning Officer had
wrongly treated some valid votes cast in favour of the petitioner as
invalid votes and certain invalid votes were treated as valid votes which
were cast in favour of the 1st respondent and that the Returning Officer
had not permitted the petitioner's agents to have scrutiny of the ballot
papers at the time of counting. The Tribunal after recording the evidence
of all candidates and the Assistant Returning Officer ordered re-count of
votes. On re-counting of votes, it was found that there was no difference
in the number of votes secured by the petitioner but insofar as the 1st
respondent was concerned he had secured only 528 votes as against 649
votes he was originally held to have secured. 121 votes cast in his favour
had been found to be invalid votes. Based on the figures of the re-count,
the election petitioner was declared duly elected as he had secured 28
votes more than the 1st respondent on re-count. This order was
challenged by the 1st respondent in civil revision petition before the
High Court. The learned Single Judge allowed the revision petition and
held that the Tribunal had erred in ordering a re-count of the votes when
the petitioner had not made out a prima facie case for an order of re-
count of votes cast. This order was challenged before this Court. This
Court held in para 13 of the said judgment as under: (SCC p. 531)
"13. Thus the settled position of law is that the
justification for an order for examination of ballot
papers and re-count of votes is not to be derived from
hindsight and by the result of the re-count of votes. On
the contrary, the justification for an order of re-count of
votes should be provided by the material placed by an
election petitioner on the threshold before an order for
re-count 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 re-counting 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 re-count of votes being ordered by the
Election Tribunal in the interests of justice, a Tribunal or
court should not order the recount of votes."
12. In Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964 SC
1249 : (1964) 6 SCR 238] this Court held that an order for inspection of
ballot papers can be granted under the following circumstances:
"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."
* * *
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."
17. On the other hand, Shri Yadav has placed reliance upon a
judgment reported in (2002) 3 MPLJ 415- Raqib Mohammad Vs.
District Collector and Specified Officer Raisen and others wherein
the Division Bench has observed as under:-
"6. Catena of cases decided by Apex Court Vadivelu v. Sundaram,
(2000) 8 SCC 355, Jitendra Bahadur v. Krishna Bihari, (1969) 2 SCC
433 : AIR 1970 SC 276 and P.K.K. Shamsuddin v. K.A.M.M. Mohindin,
(1989) 1 SCC 526 : AIR 1989 SC 640 hold that preservation of security
of the ballot is a sacrosanct principle which cannot be lightly or hastily
disregarded unless there is a prima facie genuine need for the same. But
whether case for recount is made out, facts of the case are of great
significance. Jinesh Singhai has pleaded, proved and established case for
recount. Justification in his plea has been found by the Collector and
learned single Judge. After all, in a case of this nature, it is necessary to
see what has actually happened and what exact number of votes each of
the candidates to the contest has polled. In the facts of this case, Apex
Court decision in Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC
261 aptly applies. The Apex Court said:
"In the present case, it is not disputed, as indeed it cannot be,
that in Form 20-A, Ex. P-2, it is recorded that the total number
of votes found in the ballot boxes of 82 polling stations
pertaining to this constituency were 35, 310 whereas a perusal
of the statement of 'roundwise detailed result counting',
certified copy whereof is Ex. P3, records that the total number
of valid and rejected votes counted for the purpose of declaring
the result were 35,318. A difference of 8 votes had been
projected in Annexure P-2 and Annexure P. 3. The margin of
difference between the votes polled by the election petitioner
and the returning candidate, in the present case, was only 3
votes. Unless a satisfactory explanation was furnished during
the trial about the discrepancy, there would be need to inspect
the ballot papers to clarify doubts regarding the excess counting
of 8 votes, allegedly in favour of the returned candidate. This
was also necessary to dispel doubts about the allegations of
irregularity in counting. Had the Returning Officer, instead of
rejecting the application for recount made a test check, soon
after the declaration of result, he could have silenced the
scepticism and removed all doubts but since that was not done,
the learned Designated Judge ought to have considered the
matter in its correct perspective."
Therefore, there is clear case for recount, rightly so found by Collector
and learned single Judge.
No other point was urged."
18. Further reliance is placed upon a case reported in 2008 (4)
MPLJ 375-Rajesh Kumar Banshkar Vs. Malti Parmar and others
wherein the Court has observed as under:-
"16. On recounting having been made pursuant to the order of
Election Tribunal, respondent No. 1 is found to have secured five votes
in excess of the votes polled by the elected candidate i.e. the present
petitioner.
17. Hon'ble Supreme Court of India in the case of T.A. Ahammed
Kabeer v. A.A. Azeez, (2003) 5 SCC 650 : AIR 2003 SC 2271 has
clearly held that once the recounting is allowed, its effect cannot be
ignored. I may profitably refer to paragraphs 28 and 29 which run as
under:--
"28. It is true that a recount is not be ordered merely for the
asking or merely because the Court is inclined to hold a
recount. In order to protect the secrecy of ballots the Court
would permit a recount only upon a clear case in that regard
having been made out. To permit or not to permit a recount is a
question involving jurisdiction of the Court. Once a recount
has been allowed the Court cannot shut its eyes on the result of
recount on the ground that the result of recount as found is at
variance with the pleadings. Once the Court has permitted
recount within the well-settled parameters of exercising
jurisdiction in this regard. It is the result of the recount which
has to be given effect to.
29. So also, once the Court exercises its jurisdiction to enter
into the question of improper reception, refusal or rejection of
any vote, or the reception of a vote which is void by reference
to the election result of the returned candidate under section
100(1)(d)(iii), as also as to the result of the election of any
other candidate by reference to section 97 of the Act and enters
into scrutiny of the votes polled, followed by recount,
consistently with its findings on the validity or invalidity of
the votes, it cannot refuse to give effect to the result of its
findings as to the validity or invalidity of the votes for the
purpose of finding out true result of recount though the actual
finding as to validity or otherwise of the votes by reference to
number may be at variance with the pleadings. In short, the
pleadings and proof in the matter of recount have relevance for
the purpose of determining the question of jurisdiction to
permit or not to permit recount. Once the jurisdiction to order
recount is found to have been rightly exercised, thereafter it is
the truth as revealed by the result of recounting that has to be
given effect to."
19. Similarly, in case of T.A. Ahammed Kabeer Vs. A.A.
Azeez and others reported in (2003) 5 SCC 650, the Supreme Court
has observed as under:-
"28. It is true that a re-count is not to be ordered merely for
the asking or merely because the court is inclined to hold a re-
count. In order to protect the secrecy of ballots the court would
permit a re-count only upon a clear case in that regard having been
made out. To permit or not to permit a re-count is a question
involving jurisdiction of the court. Once a re-count has been
allowed the court cannot shut its eyes on the result of re-count on
the ground that the result of re-count as found is at variance with
the pleadings. Once the court has permitted re-count within the
well-settled parameters of exercising jurisdiction in this regard, it
is the result of the re-count which has to be given effect to.
29. So also, once the court exercises its jurisdiction to enter into
the question of improper reception, refusal or rejection of any vote,
or the reception of any vote which is void by reference to the
election result of the returned candidate under Section 100(1)(d)
(iii), as also as to the result of the election of any other candidate
by reference to Section 97 of the Act and enters into scrutiny of the
votes polled, followed by re-count, consistently with its findings
on the validity or invalidity of the votes, it cannot refuse to give
effect to the result of its findings as to the validity or invalidity of
the votes for the purpose of finding out the true result of re-count
though the actual finding as to validity or otherwise of the votes by
reference to number may be at variance with the pleadings. In
short, the pleadings and proof in the matter of re-count have
relevance for the purpose of determining the question of
jurisdiction to permit or not to permit re-count. Once the
jurisdiction to order re-count is found to have been rightly
exercised, thereafter it is the truth as revealed by the result of re-
counting that has to be given effect to."
20. In the judgment passed in Civil Appeal No.780 of 2020
arising out of SLP (C) No.22715/2019- Chandeshwar Saw Vs. Brij
Bhushan Prasad & ors, the Supreme Court has observed as under:-
"3. Briefly stated, the election for the post of Mukhia,
Artyapur Gram Panchayat No. 8 under Naubatpur Block was held
on 6.5.2016, in which the appellant and respondent No. 1
alongwith 11 others had contested as candidates and after counting
of votes on 4.6.2016, the respondent No.1 was declared elected.
During the counting, however, the appellant had noticed that
number of valid votes cast in his favour were being rejected, while
even invalid votes in favour of respondent No.1 were being
accepted and counted. The respondent No.1 was declared elected
by a margin of 154 votes. In this backdrop, the appellant filed an
election case before the Election Tribunal, seeking recounting of
votes, setting aside election of respondent no.1 and declaring him
(appellant) elected. The appellant specifically alleged about the
irregularities committed during the counting process including the
one that swastika symbol pressed light ink was not being counted
in favour of the appellant and despite grievance being made in
that behalf, no heed was paid by the Returning Officer. At the
same time, it was also noticed that some invalid votes cast in
favour of respondent No. 1 were accepted and counted as valid
disregarding the objection taken in that behalf. The election case
proceeded for trial and after recording of evidence of the witnesses
produced by the concerned parties, the Election Tribunal after due
evaluation of the evidence, accepted the grievance of the appellant
that the result sheet prepared by the election officer was not proper
as the counting of votes was not done by the officials as per rules.
The Election Tribunal proceeded to record finding of fact in favour
of the appellant and answered the issue in the following words:
".........
By perusal documentary evidences as well as plaint on
record its appear that applicant has tried his level best to
brought all material facts in his plaint and supported by
his evidences, it is also appeared that as soon as plaintiff
got knowledge that some irregularities is going on while
counting votes and he came to know that his 216 valid
votes has been rejected due light ink on the ballot but
same type of has been counted in favour of returned
candidate then immediately he has made an application
to concerned officers for recounting which is marked
Ex.1, same has been made in his plaint as well as
supported by oral as well as documentary evidences.
Plaint of this case make out a prima facie case with
regard to the valid votes of the plaintiff rejected. In this
case all the aforesaid conditions are fulfilled by the
petitioner which are discussed above. Thus, in the light
of the discussions made above this tribunal finds that
there were irregularities in the counting of votes in the
present case, the result sheet prepared was irregular, not
proper and counting of votes by the officials not done as
per rule. Thus, there issue goes in favour of the
petitioner."
Finally, the Election Tribunal proceeded to pass the following
order:
ORDER
In the light of the aforesaid issues it is clear that in the
counting the Rule 79 of the Bihar Panchayat Election
Rules were not followed by the counting authorities and
hence on this sole issue the election petition is fit to be
allowed, but as per the discussion in issue No.3, 4 and 5
this tribunal found that there were irregularities in the
counting of votes in the present case and the result sheet
prepared was irregular and not proper. However, in the
issue No.6 it is found by this tribunal that:
i) The O.P. no.1 was not properly declared Mukhiya.
ii) It is not proved by the petitioner that she has got
more votes than the votes of the O.P. No.1.
Thus, from the discussion made above it is clear that
the petitioner has is not entitled to the relief of setting
aside election of returned candidate. However, from
the discussions and findings of the above issues it is also
clear that the petitioner has been able to prove that the
final result for the post of Mukhiya of Gram Panchaayt
Raj. Dariyapur is not proper and the O.P. No.1 was not
properly declared as Mukhiya but the final result can be
ascertained by the proper and minute recounting only.
Hence, the petitioner is entitled to the relief as discussed
above only.
Hence, in the light of findings of the all the issues in this
case. It is hereby ordered that the final result for the post
of Mukhiya of Dariyapur Panchayat, Block Naubatpur,
District Patna is declared as null and void. The
certificate in favour of the O.P. No.1 as return candidate
is declared void. It is ordered to the O.P. No.15 i.e. the
District Magistrate, Patna cum District Election Officer,
Patna to get the ballots of each booth for the post of
Mukhiya Dariyapur Panchayat recounted under his
supervision within one month from the date of receipt of
this order. It is also ordered the District Magistrate,
Patna Cum Election Officer Patna to take over the
election material which is laying in safe custody of this
court for recounting purpose and thereafter keep it as per
law/rules. It is also ordered that the final result shall be
prepared for each candidate after recounting and the
certificate shall be issued in favour of the return
candidate. Let a copy of this judgment be sent to
District Magistrate Cum District Election Officer,
Patna and Election Commission. All the petitions
pending in this case are disposed of as not pressed.
Accordingly, the case is allowed on contest against
those who have appeared in this case and Ex-
parte against who has not appeared.
Judgment pronounced and delivered by me in open
court.
Typed and corrected by me."
This order was assailed by respondent no. 1 by way of Civil Writ
Jurisdiction Case (CWJC) No. 21476/2018 before the High Court.
The learned single Judge, after due consideration of the evidence
on record, as considered by the Election Tribunal was pleased to
uphold the finding of fact recorded by the Election Tribunal in the
following words:
"................
Keeping in mind the aforesaid judicial pronouncements
on the subject when this Court proceeds to consider as to
whether the learned Election Tribunal has considered the
materials available on the record and whether based on
such materials a prima facie satisfaction regarding the
truth of allegation for recounting of votes has been
taken? This Court finds that the learned Election
Tribunal has discussed the case of the election petitioner
which specifically pointed out that the ballot papers
containing Swastik symbol pressed with light ink was
not being counted in favour of the election petitioner
whereas those were being counted in favour of
the returned candidate (petitioner). The case of the
election petitioner was supported by AW 2, AW 3, AW 4
and AW 5. The learned Election Tribunal has discussed
the evidences of the witnesses who have stated that they
were present at the time of counting and had supported
the case of the election petitioner. In fact, one
Akhileshwar Kumar who has deposed as O.P.W.1 has
supported the case of the applicant in his examinationin-
chief. The learned Election Tribunal has discussed his
evidence also in the impugned judgment. On going
through the discussions made by the Election Tribunal in
the judgment, this Court finds that he has dealt with the
deposition of the witnesses produced on behalf of the
returned candidate as well. It has been found that the
returned candidate and his witnesses has either deposed
that they were not present at the time of counting or they
have no knowledge regarding valid or invalid votes. The
Tribunal held that the returned candidate has made
contradictory statements regarding valid and
invalid votes when compared with other witnesses
of his side. After a careful perusal of the entire materials
available on the record, this Court is of the considered
opinion that in the plaint the election petitioner has
made a categorical and positive allegation and he
has supported his allegations by bringing
witnesses who were present at the time of counting. In
these conditions if the Election Tribunal has found itself
primafacie satisfied and has come to a conclusion that a
recounting of vote is required, this Court finds no reason
to take any other view.
In the opinion of this Court, learned Tribunal has
rightly taken the view as under:
"in this case all the aforesaid conditions are fulfilled by
the petitioner which are discussed above. Thus, in the
light of the discussions made above this Tribunal finds
that there were irregularities in the counting of votes in
the present case, the result sheet prepared was irregular
not proper and counting of votes by the official was not
done as per Rule. Thus, this issue goes in favour of the
petitioner."
By virtue of the aforesaid discussions, this Court finds
that the direction for recounting of votes cannot be
faulted with, there is no illegality much less any material
illegality and this Court sitting in its supervisory
writ jurisdiction does not find any reason to
interfere with the aforesaid direction."
The learned single Judge of the High Court, however, reversed the
order passed by the Election Tribunal of setting aside the election
before the recounting of votes. The learned single Judge instead
relegated the parties before the Election Tribunal for the
limited purpose of passing appropriate orders only after the recount
results become available. In fact, the recounting process was
completed during the pendency of the said writ and the result was
kept in sealed envelope. Resultantly, the learned single Judge
thought it proper to relegate the parties before the Election
Tribunal for passing consequential orders after perusal of
the recount results kept in sealed envelope.".
21. To answer the issue raised by the petitioner in this petition
with regard to vague pleadings which do not form a ground to interfere
in the election petition and order for recount of votes, it is apt to
reproduce the relevant paragraphs, i.e. paras 9 and 10 in which the
election petitioner has made pleadings in this regard so as to form an
opinion whether those pleadings are sufficient for order of recount of
votes or fulfilment of requirement of Rule 80 of Niyam, 1995.
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;kfpdkdrkZ ds x.kuk vfHkdrkZvksa dks ugha djk;k tk jgk Fkk] ernku dsUnz
Øekad 211 lxksM+h dyk esa erx.kuk ds le; pkjksa vksj dh f[kM+fd;ka
[kqyh j[kh xbZ Fkh] ftuls mRrjoknh Ø- 2 ds leFkZd erx.kuk izHkkfor
djus ds fy;s fujarj ncko cuk jgs Fks] mRrjoknh Ø- 2 ds vusd leFkZ
gkFkksa esa iRFkj ysdj mRrjoknh Ø- 2 dks fot;h ?kksf"kr djus ncko cuk
jgs FksA bl ncko ds pyrs ernku dsUnz Øekad 211 esa ;kfpdkdrkZ ds i{k
esa Mkys x;s fof/kekU; eri=ksa dks fujLr eri=ksa dh Js.kh esa Mkyk x;k]
ernku dsUnz Øekad 211 esa fujLr fd;s 18 erksa esa ;kfpdkdrkZvksa ds
fof/kekU; er Mkys x;s gSA ernku dsUnz Øekad 209 o 210 dh x.kuk
esa ;kfpdkdrkZ 161 erksa ls vkxs Fkk] ernku dsUnz Øekad 211 dh
erx.kuk i'pkr~ ;kfpdkdrkZ 4 erksa ls fot;h gqvk Fkk ftldh ?kks"k.kk Hkh
dh xbZ Fkh] fdUrq mRrjoknh Øekad 2 o mlds leFkZdksa ds ncko ds dkj.k
;kfpdkdrkZ dks 2 erksa ls ijkftr ?kksf"kr dj fn;kA erx.kuk mRrjoknh
Ø- 2 ds ncko esa euekus rjhds ls dh tk jgh Fkh] tc ;kfpdkdrkZvksa ds
x.kuk vfHkdrkZ us l[r vkifRr yh rks mRrjoknh Ø- 2 o mlds leFkZdksa
us ;kfpdkdrkZ o x.kuk vfHkdrkZvksa dks erx.kuk dsUnz ls ckgj fudky
fn;k] tc dqN nsj ckn ;kfpdkdrkZ dk x.kuk vfHkdrkZ iqu% erx.kuk
dsUnz esa x;k rc rd erksa dh x.kuk yxHkx iw.kZ gksus okyh Fkh] blh le;
;kfpdkdrkZ ds x.kuk vfHkdrkZ us ihBklhu vf/kdkjh lxkSM+h dyk iksfyax
cwFk dks ernku dsUnz ds vUnj fjdkmfUVax gsrq gkFk ls fy[kdj vkosnu
i= fn;k Fkk] fdarq ihBklhu vf/kdkjh us vkosnu i= ysus ls euk djrs gq;s
'ks"k er fcuk fdlh dks voyksdu djk;s fxurs gq;s erksa dks lhycUn dj
fn;k bl rjg ihBklhu vf/kdkjh us erksa dh x.kuk esa voS/kkfud izfØ;k
viukrs gq;s mRrjoknh Ø- 2 dks vuqfpr ykHk igqWapkus dh n`f"V ls nwf"kr
erx.kuk dh gS] ;kfpdkdrkZ ds ckj ckj vuqjks/k ds i'pkr~ Hkh ihBklhu
vf/kdkjh us iqu% erx.kuk ugha djkbZA**
10- ^^;g fd erksa dh iquxZ.kuk djk;s tkus dk vf/kdkjh vf/kfu;e esa
of.kZr gS ihBklhu vf/kdkjh us ;kfpdkdrkZ dh iquxZ.kuk ds vuqjks/k dks
vekU; djrs gq;s ;kfpdkdrkZ dks lafo/kku iznRr vf/kdkj ls oafpr fd;k
gS rFkk mijksDr ifj.kke ,d ckj dh x.kuk ij vk/kkfjr gS tks fd nwf"kr
ls dh x;h gSA**
22. Considering the pleadings made in the election petition and
also the judgements on which parties have placed reliance, I am of the
opinion that though it is pleaded that some irregularities have been
committed during the course of counting of votes and objection with
regard to the same was raised and application was moved for recount
but that application has not been accepted. When this was the specific
allegation made in the election petition and statement with regard to the
same has been made by the agent who was there at the time of counting
of votes substantiated that he made an application before the Returning
Officer but that has been rejected and has also raised his grievance
before the Returning Officer but that application has not been accepted,
it is suffice to say that there was sufficient pleading with regard to the
irregularities and as per Rule 80, the counting agent has tried to fulfil the
requirement to raise a demand of recounting of votes but that was not
accepted by the Returning Officer and, therefore, the ground has been
taken in the election petition with a specific pleading.
23. In a case of Chandeshwar (supra), the Supreme Court has
considered that some of the valid votes declared invalid and some of the
votes which should have been counted in favour of election petitioner
were counted in favour of return candidate and grievance raised before
the Returning Officer but it was not accepted and no heed was paid by
the Returning Officer then except election petition, no other mode
available. In this case also, the grievance was made about the
irregularities committed during the course of counting of votes and that
has also been substantiated by adducing evidence. The election tribunal
after due evaluation of evidence accepted the grievance of the election
petitioner and ordered for recounting of votes. As Shri Yadav has
pointed out that in pursuance to order of recount of votes, the recounting
also got done and election petitioner secured more than two votes than
that of the present petitioner/return candidate but because of the interim
order passed by this Court in the writ petition, result has not been
declared. He has placed reliance on several judgements saying that once
recounting is allowed, its effect cannot be ignored. Although those
judgements in the existing circumstances do not favour the respondent
for the reason that the order of recounting passed by the election tribunal
is in question in this writ petition and if it is found that the said order is
not proper, the effect of recounting in all subsequent proceedings would
go. Thus, in my opinion, the submission made by counsel for the
petitioner criticizing the order of the election tribunal on the ground that
issue is not framed, in view of the above discussion has no substance
and secondly, the election petition contained vague pleading and as
such, recounting could not be ordered, is also without any substance.
24. As has been discussed that under the existing circumstances
when inspite of irregularities pointed out by the agent of the election
petitioner, if Returning Officer not accepted the grievance and also
refused to accept the application in which request for recounting of
votes had been made, no other remedy was available with the defeated
candidate but to file an election petition and raise the said grievance.
Even otherwise, the pleadings made in paras 9 and 10 of the election
petition are not so vague and not laying any foundation that order for
recounting of votes cannot be made and election petition could have
been dismissed.
25. Merely because election petitioner was not present in the
counting centre but information conveyed to him by his agent and those
information became his personal knowledge and, therefore, in the
verification column he has stated that whatever pleaded in the election
petition is of his personal knowledge. The submission of Shri Upadhyay
does not convenience this Court that the averments made in the election
petition and verification of election petitioner does not fulfil the
requirement of proper pleading and that averments can also not be
considered to be of personal knowledge of election petitioner.
26. It is not a case which could be considered to be a case of no
pleading. On the contrary, it is a specific pleading about submitting a
written application before the Returning Officer by the counting agent,
therefore, this Court cannot say about non compliance of Rule 80 of
Niyam, 1995. Thus, as per this Court, there was sufficient pleading
which has also been substantiated by leading evidence and, therefore,
the order of Election Tribunal, does not suffer from any illegality and
irregularity.
27. Ex-consequentia, the petition suffers from any substance, is
hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
rao
Digitally signed by
SATYA SAI RAO
Date: 2023.08.18
12:55:17 +05'30'
