Smt. Roopa Tiwari vs The State Of Madhya Pradesh
2024 Latest Caselaw 3514 MP

Madhya Pradesh High Court

Smt. Roopa Tiwari vs The State Of Madhya Pradesh on 7 February, 2024

                                1




       IN THE HIGH COURT OF MADHYA PRADESH
                       AT JABALPUR
                            BEFORE
             HON'BLE SHRI JUSTICE VIVEK JAIN
               WRIT PETITON NO. 24183 OF 2023.

BETWEEN :-
SMT. ROOPA TIWARI W/O SHRI DILIP
TIWARI, AGED ABOUT 40 YEARS, OCCUPATION:
MEMBER     OF     JANPAD     PANCHAYAT
CONSTITUENCY WARD NO. 2 NEBUHA VILLAGE
TEKAR GRAM PANCHAYAT JAMUAA NUMBER 2
TAHSIL MAJHAULI DISTRICT SIDHI (MADHYA
PRADESH)

                                           ....-PETITIONER


(BY SHRI SANJAY K. AGRAWAL, ADVOCATE WITH SHRI YASHVARDHAN
JAIN- ADVOCATE)



AND
1.   THE STATE OF MADHYA PRADESH
     THROUGH THE PRINCIPAL SECRETARY
     PANCHAYAT DEPARTMENT VALLABH
     BHAWAN, BHOPAL (MADHYA PRADESH)
2.   COMMISSIONER, (REVENUE)   DIVISION
     REWA (MADHYA PRADESH)
3.   COLLECTOR, DISTRICT SIDHI (MADHYA
     PRADESH)
4.   TAHSILDAR MAJHAULI DISTRICT SIDHI
     (MADHYA PRADESH)
5.   SMT. SHYAM KALI SAHU W/O SHRI
     RAMRAJ SAHU VILLAGE DHANAULI ,
     TAHSIL MAJHAULI, DISTRICT SIDHI
     (MADHYA PRADESH)
6.   SMT ABHA SINGH W/O SHRI SANTOSH
     SINGH  VILLAGE  NEBUHA,   TAHSIL
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     MAJHAULI, DISTRICT SIDHI (MADHYA
     PRADESH)
7.   SMT. KAVITA GUPTA W/O SHRI NAGMUNI
     GUPTA VILLAGE      NEBUHA,   TAHSIL
     MAJHAULI ,DISTRICT SIDHI (MADHYA
     PRADESH)
8.   SMT. LEELA WATI SAHU @ RAMBAI W/O
     SHRI MANBAOR SAHU VILLAGE NEBUHA,
     TAHSIL MAJHAULI, DISTRICT SIDHI
     (MADHYA PRADESH)
9.   SMT. RAJWATI W/O SHRI GANGA SAHU
     VILLAGE NEBUHA TAHSIL LMAJHAULI
     DISTRICT SIDHI (MADHYA PRADESH)
10. SMT. SHAKUNTALA SAHU W/O SHRI SHIV
    KUMAR SAHU VILLAGE DHANAULI,
    TAHSIL MAJHAULI, DISTRICT SIDHI
    (MADHYA PRADESH)
11. SMT. SHUSHILA SAHU W/O SHRI MUKESH
    SAHU VILLAGE DHANAURA , TAHSIL
    MAJHAULI , DISTRICT SIDHI (MADHYA
    PRADESH)
12. SHRI SURESH PRATAP SINGH IN CHARGE
    BOOTH POLLING OFFICER POLLING
    BOOTH NO. 43,44,45 NEBUHA, JANPAD
    PANCHAYAT     MAJHAULI,      TAHSIL
    MAJHAULI DISTRICT SIDHI (MADHYA
    PRADESH)
13. SHRI RAM NARAYAN PANDEY IN CHARGE
    BOOTH POLLING OFFICER POLLING
    BOOTH NO. 38,39,40 NEBUHA JANPAD
    PANCHAYAT     MAJHAULI,     TAHSIL
    MAJHAULI, DISTRICT SIDHI (MADHYA
    PRADESH)
14. SHRI CHANDRA SHEKHAR PRASAD
    SHUKLA IN CHARGE BOOTH POOLING
    OFFICER POLLING BOOTH NO.43,44,45
    NEBUHA JANPAD PANCHAYAT MAJHAULI,
    TAHSIL MAJHAULI, DISTRICT SIDHI
    (MADHYA PRADESH)
15. SHRI B.K. PATEL NAYAB TAHSILDAR AND
    RETURNING        OFFICER     JANPAD
    PANCHAYAT CONSTITUENCY NEBUHA
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     MAJHULI       DISTRIT      SIDHI     (MADHYA
     PRADESH)

                                                             ....RESPONDENTS


(STATE BY SHRI PUNEET SHROTI -GOVERNMENT ADVOCATE)
(RESPONDENT NO. 5 BY SHRI ANSHUMAN SINGH -ADVOCATE)
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        Reserved on                           :       19/12/2023
        Pronounced on                         :       07/02/2024
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       This petition having been heard and reserved for judgment/order,
coming on for pronouncement this day, this Court passed the following:
                                        ORDER

The present petition has been filed under Article 226 of the Constitution of India arising out of the order dated 28.8.2023 (Annexure P-

3) passed by the Election Tribunal of Collector, Distt. Sidhi (MP), whereby the election petition of the respondent No.5 challenging election of the petitioner as a member of Janpad Panchayat Majholi, Distt. Sidhi, has been allowed by ordering recount of votes. The order annexure P-5 dated 15.9.2023 rejecting revision against the said order has also been put to challenge whereby the Commissioner has rejected the Revision on the ground of the same being not maintainable.

2. The learned senior counsel appearing for the petitioner has contended that the Collector has wrongly passed the order annexure P-3 directing recount without there being any just and rational basis for such an order. It is also stated that the Election Tribunal/Collector did not follow the procedure and neither framed issues, nor took evidence of the parties. By referring to the order sheets drawn by the Collector from the date of filing of the Election Petition to the date of passing of final order, it is pointed out that the case was not even fixed for evidence. The record of the

election process was called and after receipt of the record, the case was straight away heard finally and the order of recount was passed.

3. The learned counsel for the petitioner has also submitted that the only consideration that weighed in the mind of the authority/Election Tribunal was that there was only 1 (one) vote winning margin in favour of the petitioner. It is argued by the learned senior counsel that mere fact of the election being a close contest is not sufficient to order recount, unless a palpable error or malpractice is established in the matter of counting of votes, that too after giving the parties due opportunity to rebut the allegations of malpractices in counting process.

4. The learned senior counsel also contended that the Election Tribunal has carried out a roving enquiry in the matter and allowed recount of votes noting an irregularity that was not even alleged by the election petitioner in the election petition. It is thus, contended that the enquiry in challenge to election should be restricted to the pleadings of the parties and no roving enquiry can be carried out for the matters that are not agitated by the election petitioner. The learned counsel relied on the judgment of the Hon'ble Supreme Court in the case of Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331 and in the case of M. Chinnasamy v. K.C. Palanisamy, (2004) 6 SCC 341. Reliance is also placed on the judgment in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, reported in 1989 (1) SCC 526.

5. It is also contended that as per rule 11 (1) of the M.P. Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules 1995, it has been laid down that the Election Tribunal shall follow the same procedure as laid down for trial of Civil suits. Thus, there was failure of mandatory procedure in not framing issues and not taking evidence of the parties. To buttress this submission, he has relied

upon the judgment passed in the cases of Vadivelu v. Sundaram and Ors., reported in 2000 (8) SCC 355, Ram Niwas vs. Pooran and Ors, reported in 2001 (II) MPJR 198, Pooran vs. The Election Officer and Ors, reported in 2001 (II) MPJR 190 and 3 Rameshchandra Bhilala vs. Bashir and Ors., reported in 2011 (1) MPHT 35. It is, thus, contended that there has been failure of justice due to non-adherance to mandatory procedure by the Tribunal as laid down by the Rules of 1995.

6. Per contra, it is contended by the learned counsel for the respondent No.5/Election Petitioner that the Election Tribunal has duly given a finding of ballot paper account in form No. 15 not tallying with the number of ballots counted as given in form no. 18. Thus, the illegality in counting of ballots was writ large on face of record. For this reason, no evidence was necessary and once the election record itself made the illegality clear, nothing further was required to be undertaken by the Tribunal by resorting to recording of evidence that would have been an empty formality and nothing else. The learned counsel also refers to the judgment of the Hon'ble Supreme Court in the case of Kalyan Singh Chouhan Vs. C.P. Joshi reported in 2011 (11) SCC 786, to contend that framing of issues in election petition is not a mandatory requirement. The election petition can be decided even in absence of framing of issues, if the parties went to trial knowing fully well, the issues arising between the parties. Thus, it is contended that the order annexure P-3 directing recount may be affirmed and the petition may be dismissed.

7. Heard learned counsel for the parties and perused the record.

8. Before entering into the legality of the order annexure P-3 passed by the Election Tribunal of the Collector, first the legality of revisional order annexure P-5 is taken up. It is not disputed by rival parties that as per Rule 25 of the Rules of 1995, the order passed by the Specified Officer in

Election petition shall be final. There is no remedy of appeal or revision against the order passed in Election petition. Thus, the order annexure P-5 holding the revision to be not maintainable is lawful and proper. Hence, as there is no other statutory remedy against the order annexure P-3, this petition is being decided on the legality of the order annexure P-3 passed by the Election Tribunal/Collector being the Specified Officer.

9. The first issue raised by the petitioner is the non-adherance to mandatory procedure by not framing issues and not recording evidence. A perusal of the order sheets shows that the record of the election was received on 15.3.2023. On 27.3.2023, time was granted to the present petitioner to file reply, which was filed on the next date fixed, i.e. 3.7.2023. As the Presiding Officer was not available on 03.7.2023, next date 05.7.2023 was fixed by the Court Reader. On 05.7.2023, the Election Tribunal straight away heard arguments of the election petitioner and the present petitioner was given liberty to submit written arguments and the case was posted for passing orders. After 2-3 dates, the final order was passed. Thus, the case was never fixed for evidence.

10. In this regard, the procedure for trial of election petition has been laid down by rule-11 of the Rules of 1995. The relevant rule is as under :-

"11. Procedure before the specified officer and his powers. -

(1) Subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits :Provided that it shall have only be necessary for the specified officer to make a memorandum of the substance of the evidence of any witness examined by him.

(2) The specified officer, shall have the powers which are vested in a Court under the Code of Civil Procedure,

1908 when trying a suit in respect of the following matters :-

(a) discovery and inspection;

(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;

(c) compelling the production of document;

(d) examination of witnesses on oath;

(e) reception of evidence taken on affidavit; and

(f) issuing commission for examination of witnesses and summoning and examining suo motu any person whose evidence, appears to him to be material";

11. In the light of aforesaid, it has been submitted by the Counsel for the petitioner that election petition shall be tried as a suit as per provisions contained in the Code of Civil Procedure and the same are required to be mandatorily followed. He has relied upon the judgment passed in the cases of Vadivelu v. Sundaram and Ors., reported in 2000 (8) SCC 355, Ram Niwas vs. Pooran and Ors, reported in 2001 (II) MPJR 198, Pooran vs. The Election Officer and Ors, reported in 2001 (II) MPJR 190 and 3 Rameshchandra Bhilala vs. Bashir and Ors., reported in 2011 (1) MPHT 35.

12. The aforesaid provision of Rule-11 duly shows that there is a violation of mandatory procedure by not recording evidence.

13. So far as the reliance of the respondent No.5 on the judgement in the case of Kalyan Singh Chouhan Vs. C.P. Joshi reported in 2011 (11) SCC 786 is concerned, the said judgment lays down that issues are not mandatory to be framed. The following has been held therein -

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. (Vide Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] , Kunju Kesavan v. M.M. Philip [AIR 1964 SC 164] ,Kali Prasad Agarwalla v. Bharat Coking Coal Ltd. [1989 Supp (1) SCC 628 : AIR 1989 SC 1530] , Sayeda Akhtar v. Abdul Ahad [(2003) 7 SCC 52] and Bhuwan Singh v. Oriental Insurance Co. Ltd. [(2009) 5 SCC 136 : (2009) 2 SCC (Cri) 619 : (2009) 2 SCC (Civ) 399 : AIR 2009 SC 2177] ).

14. Even otherwise, this issue is no longer res-integra. It is well settled that the object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. 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 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. (See Nagubai Ammal v. B. Shama Rao [AIR 1956 SC 593] , Nedunuri Kameswaramma v. Sampati Subba Rao [AIR 1963 SC 884] , Kunju Kesavan v. M.M. Philip [AIR 1964 SC 164] , Kali Prasad Agarwalla v. Bharat Coking Coal Ltd. [1989 Supp (1) SCC 628] , Sayeda Akhtar v. Abdul Ahad [(2003) 7 SCC 52] and Bhuwan Singh v. Oriental Insurance Co. Ltd. [(2009) 5 SCC 136)]. Hon'ble Apex Court in the case

of Nedunuri Kameswaramma v. Sampati Subba Rao reported in AIR 1963 SC 884 held as under :-

"Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer."

15. However, the reliance on the judgment in case of Kalyan Singh Chouhan (supra) does not make the violation of procedure cured, because in the present case not only issues are not framed, but also the evidence has not been taken. There has been no "trial" in the present case.

16. On this anvil, it was argued by the learned counsel for the respondent No.5 that no evidence was required in the present case, as the Collector had called for original election record and noting some discrepancy in ballot paper accounts, has arrived at conclusion that the counting of votes was erroneous, hence, the recording of evidence would be a mere futile exercise having no practical utility.

17. On the aforesaid aspect, the pleadings of the election petition and the discrepancy found by the Collector in the election record are required to be examined. Copy of the election petition is not on record, however, at the time of hearing, it was admitted by learned counsel for the rival parties that the entire election petition has been reproduced by the Collector in para 2 (1) to 2 (16) of the order Annexure P-3. The said reproduced part of the election petition is as under :-

¼1½ tuin iapk;r {ks= usowgk okMZ Øekad 2 rglhy e>kSyh] ftyk&lh/kh e/; çns'k 'kklu }kjk e/; çns'k iapk;r jkt ,oa xzke Lojkt vf/kfu;e 1993 ds v/khu xfBr LFkkuh; laLFkk gS] ftlesa çR;sd 5 o"kZ ds fy, tuin lnL; ,oa iapk;r dk fuokZpu fu;e 1994 ds v/khu lEiUu gksrk gSA

¼2½ xr fuokZpu ds i'pkr~ mä tuin iapk;r {ks= uscwgk Øekad 2 ds tuin lnL; ,oa iap;rks ds inkf/kdkjh lEer gksus ds dkj.k eåç 'kklu LFkkuh; fuokZpu }kjk uohu inkf/kdkfj;ksa ds fuokZpu gsrq vf/klwpuk tkjh dh xbZ] ftlds vuqlkj fuokZpu lEiUu djkus gsrq fuEukuqlkj dk;ZØe fu;r fd;k x;kA

¼d½ uke funsZ'ku i= çLrqr dh vof/k fnukad 30-05-2022 ls fnukad 06-06-2022 rd A ¼[k½ uke funsZ'ku i=ks dh laoh{kk fnukad 07-06-2022 ¼x½ uke funsZ'ku i=ksa dh okilh fnukad 10-06-2022 le; 2-00 cts nksigj rd A ¼?k½ vH;fFkZ;ksa dks fuokZpu dk çrhd fpUg vkoaVu fnukad 10-06-2022- le; 3]00 cts nksigj ckn lsA ¼M½ ernku fnukad 01-07-2022 lqcg 7 cts ls nksigj 3- 00 cts rd A ¼p½ erx.kuk fnukad 04-07-2022 ¼N½ ifj.kke dh ?kks"k.kk fnukad 14-07-2022 ¼³½ fuokZpu ds ifj.kke dh vf/klwpuk dk fnukad 14-07-

¼3½ fuokZpu dh mä vf/klwpuk tkjh gksus ds iwoZ gh ernkrk lwph dk vfUre çdk'ku fd;k tk pqdk FkkA mä ernkrk lwph esa ;kfpdkdrhZ ,oa mÙkjoknh Øekad 1 rk 8 lHkh dk uke oS/k ernkrk ds :i esa çfo"V gSA bl çdkj tuin iapk;r {ks= uscwgk dekad 02 ds fy;s ;ksX; ,oa vgZrk çkIr gSA

¼4½ vf/klwpuk çlkfjr gksus ij fu/kkZfjr frfFk ds vUnj gh ;kfpdkdrhZ ,oa mÙkjokfn;k Øekad 1 rk 8 ds }kjk vius 2 uke funsZ'ku i= tuin lnL; gsrq fuokZpu vf/kdkjh ds le{k fof/kor çLrqr fd;k x;k ,oa fuos'k dh jkf'k Hkh fnukad 03-06-2022 dks tek dh xbZ] fnukad 07-06-2022 dks dh xbZ] laoh{kk esa mijksä of.kZr lHkh

vH;fFkZ;ksa ds uke funsZ'ku i= oS/k ik;s tkus ij mUgs Lohdkj fd;k x;kA

¼5½ uke funsZ'ku i=ksa dh okilh ds i'pkr~ ;kfpdkdrkZ ,oa mÙkjokfn;k Øekad 1 rk 8 vFkkZr~ dqy 9 vH;FkhZ gksus ls ernku dh fLFkfr fufeZr gksus ij fnukad 01-07-2022 dks ernku dh dk;Zokgh lEiUu djkbZ xbZA ftlesa mä tuin lnL; ds fy, dqy 9 ernku dsUæ Øe'k% ernku dsUæ Øekad 33] 34] 38] 39] 40] 43] 44] 45] 46 cuk, x;s ,oa mä lHkh ernku dsUæks esa ernku lEiUu djk;k x;kA

¼6½ fnukad 04-07-2022 dks LFkku vkbZ-Vh-vkbZ-Vh- dkyst e>kSyh ¼vkS|ksfxd çf'k{k.k laLFkku½ erx.kuk dk dk;Z mÙkjoknh Øekad 9- 10- 11 }kjk ,oa fjVfuaZx vkQhlj çHkkjh rglhynkj e>kSyh ch-ds- iVsy ds funsZ'ku esa lEiUu fd;k x;kA

¼7½ tuin iapk;r {ks= uscwgk ds ernku dsUæ Øekad 33] 34] 38] 39] 40] 43] 44] 45] 46 esa dqy 4109 er] ernkrkvksa }kjk Mkys x;s Fks] vkSj bl çdkj dqy 4109 ernkrkvksa us viuk erkf/kdkj dk ç;ksx fd;k FkkA-

¼8½ fnukad 04-07-2022 dks dh xbZ] x.kuk esa ernku dsUæ Øekad 33 esa 35] 34 esa 23] 38 esa 26] 39 esa 20] 40 esa12 43 esa 14 44 esa 34] 45 esa 15] 46 esa 33] dqy 212 erksa dks ç{ksfir fd;k x;k gS] uksVk 11 feykdj 223 erA bl çdkj dqy 3836 er oS/k ik;s x;s gS] ftuesa çR;sd vH;FkhZ dks çkIr erks dk fooj.k fuEukuqlkj gS&

1- ;kfpdkdrkZ dks çkIr er 807 2 mÙkjcknh Øekad 1 dks çkIr er 808 3- vkHkk flag dks çkIr er 765 4- dfork xqIrk dks çkIr er 232 5- y{eh dks çkIr er 595

¼11½ Åij of.kZr 9 ernku dsUæksa ds eri=ksa dh oS/k ,oa voS/k eri=ksa dh x.kuk djkbZ tk; rks fuf'pr :i ls mÙkjoknh Øekad 1 ds oS/k erks esa deh gksxh] vkSj ;kfpdkdrkZ ds oS/k erks dks vfof/kekU; djus ds dkj.k mls çkIr erks dh la[;k esa o`f) gksxh vkSj og gj n'kk

esa mÙkjoknh Øekad 1 ls vf/kd er çkIr djus ds vk/kkj ij fotbZ gksxh] lkFk gh U;k; çkIr gksuk mldk uSlfxZd vf/kdkj gS] mä n'kk esa iquxZ.kuk fd;k tkuk fof/k laxr gSA

¼12½ ;g fd ekuuh; U;k;ky; }kjk eri=ksa dks vkgwr fd;k tkdj mldh iqu fof/k vuqlkj x.kuk djkrs gq;s ifjofrZr ifj.kke ds vk/kkj ij mÙkjokfn;k Øekad 1 dk fuokZpu fujLr fd;k tkdj ;kfpdkdrkZ dks tuin iapk;r us okMZ 02 ds tuin lnL; in ij fof/kor fuokZfpr ?kksf"kr fd;s tkus ;ksX; gSA Qyr% ;g ;kfpdk çLrqr dh tk jgh gSA ;|fi ;kfpdkdrkZ }kjk fnukad 05-07-2022 dks mÙkjoknh Øekad 12 ds le{k iqueZrx.kuk gsrq vkosnu fn;k x;k Fkk ysfdu x.kuk ugha djkbZ xbZ rRi'pkr~ fnukad 06-07-2022 dks Jheku~ dysDVj egksn;

lh/kh dks mä erx.kuk djk;s tkus gsrq vkosnu fn;k x;k Fkk] ysfdu muds }kjk Hkh Loh--fr ugha nh xbZ ftlls ;kfpdk çLrqr djus dh ukScr mRiUu gqbZA

¼13½ fnukad 04-07-2022 ds erx.kuk ds i'pkr~ mÙkjokfn;k dks iksfyax cwFk Øekad 34 esa ek= 24 fof/k ekU; er ik;s x;s Fks] rFkk ;kfpdkdrkZ dks 337 fof/k ekU; er ik;s x;s Fks] pwafd fnukad 04-07-2022 dks x.kuk i=d ugh fn;k x;k Fkk vfirq lkfj.khdj.k fnukad 14- 07-2022 dks fd;k tkdj mÙkjokfn;k ds i{k esa cwFk Øekd 34 esa vfu;ferrk ,oa voS/krk ojrh xbZ ,oa mÙkjoknh Øekad 12 vius vf/kdkj dk nq:i;ksx djrs gq;s mÙkjokfn;k ds i{k esa 24 ds ctk; 25 fof/kekU; erks dks vafdr djk fn;sA ftlls ;kfpdkdrkZ dks /kka/kyh iw.kZ dk;Zokgh ls 1 erks ls ijkftr gksuk iM+kA

¼14½ tuin iapk;r {ks= uscwgk okMZ Øekad 2 ds tuin lnL; in ds fuokZpu dh vf/klwpuk fuokZpu vk;ksx } kjk mÙkjoknh Øekad 1 ds i{k esa fnukad 14-07- 2022 dks tkjh dh xbZ gS Qyr% ;g ;kfpdk eåçå iapk;r jkt ,oa xzke Lojkt vf/kfu;e dh /kkjk&122 dh mi/kkjk&2 ds v/khu fu/kkZfjr dkykof/k ds vUnj çLrqr gSA

¼15½ ;g fd eåçå iapk;r ¼fuokZpu vftZ;k Hkz"Vkpkj vkSj lnL;rk ds fy, fugZrk½ fu;e 1995 ds fu;e 7 ds

v/khu ;kfpdkdrhZ }kjk visf{kr dh jkf'k çfrHkwfr ds :i esa vkt gh ekuuh; U;k;ky; esa tek dh xbZ gS] rFkk ,slh tek jlhn dh ewy çfr bl ;kfpdk ds lkFk çLrqr gSA

¼16½ vLrq ;kfpdk çLrqr dj fuosnu gS fd fuokZpu vk;ksx }kjk mÙkjoknh Ø01 dks tuin iapk;r uscwgk Ø- 2 tuin iapk;r e>kSyh ftyk lh/kh eåçå ds tuin lnL; gsrq lE;d :i ls fuokZfpr ?kksf"kr fd;s tkus vf/klwpuk fnukad 14-07-2022 dks voS/k ,oa 'kwU; ?kksf"kr fd;k tkdj iqueZrx.kuk djk;s tkus dk fuosnu fd;k x;k gSA D;ksafd mÙkjoknh Ø-1 dk fuokZpu çR;sd ç;kstu ds fy;s 'kwU; gSA

18. As per these averments, the allegation was that valid votes polled in favour of the election petitioner (present respondent No.5) have been declared invalid in all the 9 booths and in this manner, as many as 212 votes have been declared invalid. It was also alleged that in booth No. 34, there was malpractice as the present petitioner had actually got 24 valid votes, but which were counted as 25.

19. Thus, the allegation was regarding valid votes polled in favour of election petitioner being declared as invalid in all 9 booths, and there being wrong counting in booth No. 34.

20. On the contrary, the Collector, in the order annexure P-3, has found that the ballot paper accounts in form No. 15 prepared by presiding officer (number of votes polled in ballot box) and form No. 18 (account of votes found in ballot box at the time of counting) does not tally in booth No. 33,40 and 46.

21. Such type of allegation in election petition was there in respect of booth No. 34, but not in respect of booth No. 33, 40 and 46. Thus, it is clear that the Collector conducted a roving enquiry and fished out something which was not there in the pleading of the election petitioner.

22. The law in the matter of legality of roving enquiry by the Election tribunal is very clear. The Hon'ble Supreme Court in the case of Kalyan Singh Chouhan (supra) has held as under :-

17. During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue.

Before the court permits the recounting, the following conditions must be satisfied:

(i) The court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

(iv) An opportunity should be given to file objection; and

(v) Secrecy of the ballot requires to be guarded.

[Vide Jagjit Singh (Dr.) v. Giani Kartar Singh [AIR 1966 SC 773], Suresh Prasad Yadav v. Jai Prakash Mishra [(1975) 4 SCC 822 : AIR 1975 SC 376] , M. Chinnasamy v. K.C. Palanisamy [(2004) 6 SCC 341 :

AIR 2004 SC 541] , Chandrika Prasad Yadav v. State of Bihar [(2004) 6 SCC 331 : AIR 2004 SC 2036] , Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan [(2006) 2 SCC 300 : AIR 2006 SC 1218] , Gursewak Singh v. Avtar Singh [(2006) 4 SCC 542 : AIR 2006 SC 1791] and Baldev Singh v. Shinder Pal Singh [(2007) 1 SCC 341] .] xx xx xx

19. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be

based on grounds outside the pleadings of the parties.

The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.

(Vide Sri Mahant Govind Rao v. Sita Ram Kesho [(1897-98) 25 IA 195] , Trojan & Co. v. Nagappa Chettiar [AIR 1953 SC 235] , Raruha Singh v. Achal Singh [AIR 1961 SC 1097] , Om Prakash Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256: AIR 2002 SC 665] , Ishwar Dutt v. Collector (L.A.) [(2005) 7 SCC 190 : AIR 2005 SC 3165] and State of Maharashtra v. Hindustan Construction Co. Ltd. [(2010) 4 SCC 518 : (2010) 2 SCC (Civ)

207).

23. In the case of Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331, it has been held as under :-

20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:

(i) a prima facie case;

(ii) pleading of material facts stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and

(iv) an objection to the said effect has been taken recourse to.

24. In the case ofM. Chinnasamy v. K.C. Palanisamy, (2004) 6 SCC 341, the following has been held by the Hon'ble Supreme Court :-

25. The High Court furthermore applied a wrong legal test in passing the impugned judgment insofar as it proceeded to hold that the first respondent would not be prejudiced if a re-counting is ordered. The test required to be applied for directing a re-counting being well settled, the High Court must be held to have misdirected itself in law. The question of prejudice of the election petitioner would not be a relevant factor keeping in view the constitutional and statutory scheme involving holding

of an election and the consequences emanating from the direction of re-counting which may lead to identification of voters as the same is not at all desirable.

26. In the instant case, it was all the more necessary for the election petitioner to plead the material facts with certain precision having regard to Ext. P-9 in terms whereof the re-counting was prayed for having regard to alleged rejection of 15,000 votes. Furthermore, although a distinction exists in terms of clauses (a) and (b) of Section 83(1) of the Act, but it should be borne in mind that pleading of material fact would include disclosure of all such information which if not rebutted would result in allowing the petition. A distinction between "particulars" and "full particulars" should also be borne in mind.

25. The finding of malpractice in counting process as noted in para-7 of the order Annexure P-3 is beyond the pleading of the election petitioner. It was not open for the Election tribunal to have fished out something from the record that was not pleaded by the election petitioner.

26. Even if such a roving enquiry had been permissible, in that event also, recording of evidence was all the more necessary, so as to give an opportunity to the successful candidate to justify the ballot paper accounts.

27. Resultantly, the order annexure P-3 cannot withstand judicial scrutiny. The same deserves to be, and is hereby set aside. The Collector/Election Tribunal is directed to decide the election petition on merits after granting opportunity to the rival parties to adduce evidence in support of their rival pleadings, and not beyond that.

28. In terms of the aforesaid, the petition stands allowed.

(VIVEK JAIN) JUDGE MISHRA ARVIND KUMAR MISHRA 2024.02.07 17:48:31 +05'30'