A-F;-R, HIQH COURT OF CHHATTISGARN AT Btl.ASPUR rTT^^"'"""1 Slngte Bench : Hon'bte Shri Vijay Kumar Shnvastava, Jl. Wnt Petition No. 1410 of 2005 M^satram Versus Rameshwar Prasad & Ottiers ORDER Postfor (0-01-2007 Sd/- V.K.Shrivastava Judge < ?'-~ HI6H CQURT OF WHATTES6ARH AT BIUISPW Singlc Bench : Mon'bte Shri Vyay Kumar Shrivastova, J. WritPetJtionNo, 1410 pf 2008 PETITIONER s RESPONbENTS Mc^atram, son of Behra, Cc^te Naganshi, a^ad aboyt 46 yew^/ resident of Vjtlage Lude9, Tehsit Pathalgaon, Dj^tnct Jashpyr (C6). Verws 1. Rameshwar Prasad, scm of Bcyru, . Casgte-Uiraaon, r^idcnt ^f Lyd€Q, TehsiJ Pathatgaon, Oistrict Jashpyr 2. Shcrf<untala bevi/ wife of Shri &ilip, Caste KOJWQP, 3. fteemeesh T»rl<cy/wn of Mohcyia, Caste Uraon, 4. Dhansir^h, ^m of Shrl Bha9atram/ Caste Na9yanshi. 5. fianpat, son of Jodhan, Coste Nagvcmdpii. 6. Tobiyas, son of Frcuicts, Caste UrQ^ri, 7. Pramod, son of Aloysis, Caste Ur^n. 8, Sinion, son of Kiartisai, Coste Uraan. No. 2 to 8 are residents of Lydeg^ Tehsil PathQlgaon, Di^tnct Ja^hptr (C6). 9. Shri Heninarcycn, Presidln9 Officer', ^>oth No.141, village Prinsary School, Bhumara, TehsiS KynkurE, Djst. Jc^hpyr (C©), 10. Shri Devchcran ftwi^ Presidir»| Officer, Booth No.142, vi(S<a9& Primary Schoot, Jloodwine, Tahsit KwkurL Di^t. Ja^hpyr (C0). 11. Shri ftAw^m Khatklw, PresidmQ OffiGer, Booth No.143, Village Kynkuri, TeAisil Kunkuri, Dist.Jashpur(CS). 12. Shri Vincent AAiry, Presidin9 Offww. Bootii No.!44, \TiS!flge Pakarmugar, Tehsii Kunkuri, &j^trsict Ja^hpUF. 13. Shri Santosh Kumar' Patel, Presidlng Offjecr, Booth No,145, Vitlage P.W.D. Kunkuri, Tah; Kunkur'i, Dtet. J'oshpur (C^). 14 Shri D.R. Nirata, Presiding Officer, Booth Nol46, Pdmary Sehool, Chheridand, Tflh-Kunkur*i, Dist. Jashpur (C@). 15. State of Chhattisgwh, through the Secretary, Gepartment of Panchayat, &.K.S. Bhawan, Raspur. 16. Tl^e Sub Divlsioncd Officer, Tehsil Pdthaigaon. Dist. Joshpur. 17. The Returnim Officer, ©rom Paiicheyat Electlon, Patha^aon, Present :<tt Ky. Sharniita Singhoi, coursel for the petitton^». Shri Rwish Chandra AgrawaS, Sr. Advocate with Shri Sanjay S. AQr^wd, coon^S for tha r'^pondent No.l. Shri PWQQ Kotecha, counset for respondeiits No.2, 3, 6 & 7. Shri Sunil Sahu, counsel for respondents No.4,5,8,9, 10,11,12 & 14. None for respondent Nb.l3. Ku. Deepali Pandey, P<xnet Lawyer for the State/respondents 15,16 & 17, o IJ&JB.R . _"• O^assad apsVO J^msary, 2007} Prescribed Authority (Panchayat) Path^aon, white trylng Kie election petition bearing No.2/A-89/2004-05 vide impuanedorder dated 18-3-20)5 directed for recounting of votes and after reeounting vide z impu9ned order dated 20N-3-2C%3S dectared respondent No.l/Rameshwcr Prcead duly etected for the post of Sarpcmch of &rom Panehcyat Ludeg, m piace of petitioner/Masatram. Feeting c^9rieved this writ petition under Article 226/227 of the Constitution of Indio. 2) In nutsheil, the facts of the case are that electiom for vcrious posts of ©ramPanchayat Lude9, District Jashpur were held. Petitioner and respondents NoJ to 8 contested the eiection for the post of SarpcGnch. Petitioner secured 612 votes whereas respondent No.l secured S85 votes. After countsn9 petitioner was dectared as elected Sarpanch and accordiiigly a certificate was i^sued in his favour. 3) P@€tin9 a99rteved respondent No.l institutcd an eiection petition under Section 122 of the C.6. Peinchayat Ray Adhiniycnn, 1993 (for* brevity ^Adhiniyam, 1993") before the Prescribed Authority, infcr alia, pteadi^ that the Prle$idin9 Officer did not atlow to peruse the votes which arc dectared irsvaStd, no proper li9ht arrangement was there and Presidin9 Offteer in order to allow undue <dv<Q8itage to the petitioner has declared 20% of the valid votes a3 iwalid and also did not 9ive countin9 slip$ to any of the contestants or their agcnts; even written complaint was mode to the ftetumin9 Officer, but that was remained a futile exercise. Therefore, respondent Nto,l sou9ht relief of recountjn9 of vot&s. 4) Respondents No.2, 3, 4, 5 <&7 supprted the ciaim of respondent No.l. The Presidin9 Officers/respondents No. 9, tl, 12 & 14 opposed the r'" applicatiors ond stated that fair and independent coynting has bean conducted, valid and imatid votes hwe been shown to the contestants, no one raised any objection. Proper ti9ht arrQngement^WGS 1+»eremd countln9 '-—— s ? ..??. <BP 4 •^•^...^..w^.^.s.^.u, stips were providedl to those agents who were present during coynt»n9 of votcs. 5) Petitioner contested the petltion, ii^er elm, on the ground that respondent No.l did not lodge any complaint or raised any objection durin9 countin9; each ballot paper hos been shown to candldates and their a9ents< Polling and counting has been conducted in aceordance with rules, Nto Gpplicatson was made to the Retuming Officer and the petition filed by re^ondent No.l is not mcimtaimble. 6) Petitioner durin9 trial ftled an application for taking evidence, but the Prescribed Authority did not allow it and turned down the same and in order to determine the mischief committed durin9 the course of counting, passed an order to recount and therecrf+er on 20-3-2005 erfter recoynting declared respondent No.l as on elected candidate. 7) Learned counsel for the petitioner contended that the apptication fiied by respondent No.l umier Section 122 of the Adhiniyam, 1993 does not failwjthin the cate9ory of election petttion, therefore,, r^tlher triai of the etection petition was possible nor in obsence of any competent eiection petition recountin9 of votes can be ordered, her entphasis was that respondent No,l only made a prayer for reeounting of votes and did not clasm retief in accordonce with Rule 6 of Ihe M.P</C.©.Panchcyats ^BIectjon Petitions, Corrupt Practices and Dssqualification for AAembership) Rules, 1995 (henceforth, "Rules 1998") On the otiier hand, learned counseS for respondent No.l vehemently opposed the same and relying on the judgment rendered by Hon'ble Apex Court in the matter of Rypadhar hyari Vs. 5 SQr^cidhor BheitrGi contended that thoygh hte etection petltson i^ not very happily worded, yet he is entitled for relief of dectaration of retyrned candidate void and further declaration that he is duly elected. 8) Rule 6 of Rules, 1995 reads as betaw: "6. Retlef that may claimed by the petitioner:- A petitiorier m(s/ &laim- (a) a declciration that th& election of atl or any of th@ retyrrsed candidat^ is vald; arsd (b) in addition thereto, a further declcration that he hlmsciif ora any other eorididat^ ha^ been duty elected." 9) Hon'ble the Apex Court in the mater of Rypadhw Puyciri (suprci) hc^ held 0$ below: "The relief ciause in the eiection petition in thc pr@sent c^©^as wt very happity s^orded. Ho^ev^r, one connot be obiivsous of the fact that panchaye* elections are pcrt of ©ramS^esrqj system. Most of the provl^ior^ rcSating to cl^tiots wd aS^tton petitions in the laws 9overni»i9 P<mchoyats are in ^wy matena ^sth the provblons contdned Sn 1fie Representation of the Peopie Act, 1951. Yet tiiia procedoral laws relatjng to panehcyat elections and ^ieetion petitions carr^t be alb^ed to bc irit€rpt%€teci with too much rli9idity and by indul9in9 in hair- spiitting." 10) Prom legislation and iaw laid down by Hon'ble the Apex Court irs the aforesaid cese, it is ciear that although in eiection petition arisir^ out of Panchayat elections, anterpretation with too much ri9idity cannot be atlcwed yet in sum ond substance, jt must fatl within the pari fnctfcria of election p&titson. 11) Por proper appreciation/ the petition instituted by responclent No.l Ss reproduced below: 1 (2004) 7 SCC 654 . 6 1. m %> 23 WR^ 20(% ??r ?^ wa TNTTO ^n? ^ ^TN^ gt^ W XNPR! 4 WTO ^R %T ?RWft ^T ! 1^rf WTPB ^^fRiT %W:} wm ^F? aii^Pfcrt t^ri ^RIT ^IT i 2. ^? ^ 23.12(X)5 ^T 1RT?FT TNI^ *!?1^«'(H! yW it ^a^ ^pppnr ^pf ^ ararnf^ ^gf ^RT ^ %j^ ^ q^-^ ^jfsr c?^W^W| 3. ^? ^' WT wnm ^.^T •4 WN ^l ^cl ^ ^WT 20%I¥a s^iftf^fl^TWTj 4 ^? l^ ^i ^W ^ ^ ?RT WfNRI 1to^N ^tR^Nf ^ W€ <3nq1^( ^ ^T^ ^T? ^ ^lteRN 3{t(^FNI ^ ^RRR ferr ^TOTI 5. W^ 3!T^5 ^ ^IPHT T^ te^? 3|^l<t)^Nl iRI Im1iPHT ^t-ER'^l^qT^Tj 6. M (^ 1TW WIWI ^^T ^ WTO €R- ^ ^ct x^ (^ ^ ^ y{N -^? ^fWff ^FfT •?%Fra t<T 4 3{!c!^(»>t( 3Rf: ^TR ^f ^ ^^i t t? ^R ^NPRT ^ri ^ WWI ^ *i^lvlMf 4 ^{iq^ ^^Rncfi ^cft ^ t ^RT^ N ^ ^N 1Rf iRit g^t \sN gr? ^^^iyMf Wf^ ^t ^qr ^ 12) From bare recriing of the petition^ it te ciear 1+iQt this is not on \ eiectson petition, bvt merety subsequent Qpplication for recovnting of vot©s, election p&tition and appiicationi for recounting of votes are n@t one and the ^ame. Therefore, the instant petition itself was not m election petitton, hence the Prescribed Authority WGKS not competent to declare the ejecti<m of the returned candidate void or to decicre the respondent No.l as an etected candidate. 13) Niyam 80 of MP/C& Panchayat Nirvachan Niyam, 1999 (henceforlti, ttNiyam 1995) is reproduced bebw 2 %80, Recmmt of Vates : (l) After an announc&ment hos been made by the Retyrning Offle&r or ^u<£h other officer authorized by hini, of the totat number of vote^ polled by ewh c^rsdidate yndar ^d>-ryS@ (2) of rule 77, a candidate or, sn his ebsence, his eJeGtion agcrst or his courstir^ agent moy appty in ^t^itlng te thc fteturnin9 Officer or swh offic^r outhorized by him, f'w a tit€€oy?itof all ar wy of the vot^s ali^cdy counted, statin9 the 9rounds on which he demands ^ych ra&oynt^ (2) On such an apptication bein9 mode the R@tumin9 offscer Qf" ^uch othar...offl€eraythorteed by him ^hatS decide the matter and mcy allow the application tn ^holc or in pwt 01" mey rejact it in toto If it ^pears to him to be frivolous or unreasonable^ (3) Every decision of the fteturnin9 Offteer or sueh other officer aythorizcd by him, vrider ^ub-rule (2) shdl be in wrkstin9 and contain the reasons therefor- (4) If the Retuming Officer or ^such other officer aythorl^ed by hjrti, declde^ yrsder ^yb-rylc (2) to ' allcw an applicQtion either in whole or in part, he shaSS- (a) count the bdbt papers ^ain in accordance i^ith hi^ dacisiori; (b) aniend the resutt sheet to the extent nacessary after such recaunt; and (c) announce the amenciment w made by him. (5) After the total number of votes polled by each eafididata beeri arswyncad yndcr ^yb-rySc (2) of rule 77 or sub-rule (4) the ftetyminQ Officer or such other affjcer authorized by him sliial§ compteta and 5<9n the resuit sheet and no qpplicatson for a reeaint 4iall be ent^rtalned thereafter ^ Provided that no step under this syb-rule ^hatl bt taken on ^the complction. of th^ coyrstlriQ yirtii fn^ candidates and eiection egents present at th& compS^tlon thereof hwe baen glvers a reasonabla opportunsty to exercise the ri9ht conferred by syb - ruie (l). (6) The counted boilot papers shail be byrriSed arsd kept in the mwnar iTientioned In ^vb-ryje (3) of rvSa 77. — c^—'^— 8 (7) Result sheets in Porm 16, 17, 18 and 19 for Parsch, Sarpench, Member of Janpad Panchayat cmd Member of Zila Panchayat respectively, prepared by ^ych other offices^ a^ ar© aithon^cd by the, Returning Officer, shalt be sybmitted by them, in S€pa?^t<^ cweSop^ to the R€turinjrig Offieer' for compslation and tdbuiation of votes polled by each canciEidate. (8) The Returning Officer on receipt of rcsuSt ^hact^ under ^yb-roSe (7) entcr of cay^e to bc entered the total number of wtes plled by each candjdate coritestiry for a seat af Sarpanch, Membar of Janpcri Panchayat or Member of Ziia Panchcyat at each poiling st^tion of the conecmed con^tityerscy in sub^equent port or parts of Form 17, 18 aid 19 raspectiveSy md co.mpSete and ^ign tha re^yit shait/' 14) The Hon'ble Apex Court r9endin9 judgment Jn the case of Sotoys Lal vs. Bksbu ^andht and others2 held as below ? "After declaratiion of nsylts; the Return^ Officer has no pc^rer'either to direct re-count or^to charge the results of the electjon. Once the resySt ss—i declared, the only rernecty for an ag9riev©dparty Is Qra eiection petition under Section 122. In ^ych a c^e, the court or th@ tribunal as bound to comider thc plea ^nd where a case is m^de out, It may direet re-coyrrt dependitig upoin the e.videnee Scd by thc. pcrtses. It l^ not correct to hold that m an election petition, after the decteratlon of the re^ylt, the coyrt or tnbuna!'., carsnot direct re-coyntir^ of votes • uniess the party has flr^t appiied In ^riting for re-coyntlng of votes. There is no prohibition in the Act or under the Ryies prohibiting the court* or tribunaS to direct a r@- coytiting of ths vot@s, Ev^n otherms^ a party m<3y .. not Rnow that the re-coynting is neccssary tifl after the resuit ?5 d@clcred. At thi^ st^ge, It ^oyld not be pogsjblc for hlm ta apply for* rt-eoynting to the ftetumin9 Officer." 15) From the l€9i5latiotiand law laid dowrs by the Hon'ble Apex Gourt it is ctear that candidate contesting the election during countin9 of votes at an appropriate 5+090, but before declaration of results, has right to ask for recountir^ on vaSid grounds and thereafter h@ hos right to claim recoyfnting by filir^ election petition. ll^erefore, so far as Jurisdiction to pass orders 2 (2003) 1 SCC 108 •w 9 '^^; -yl for recountin9 during pendency of eJ^etion petition is concemad, the same exists asr^ if any ccundidate did not ask for recoyntin9 durlng coyntsng m accordance with Niycro 80 of NJVCOT, 199S, he is not debarred to ask for recountin9 after filin9 of election petition. 16) Here in the instant case, l^ough an appiiGatson address^d to the ftetLirnin9 Officer has been introduced by respondent No.l, but in that appiscation he did not mention tlie date when it was made, even some one who put his note aiso did not wention the date of presentation of application or date below his inltiai. Here it is not out of place to mention that if 1+iis application was macje to the Returnin9 Officer it should have been in the file of election proceedings, how this application, If endorsed by any of the election officer, came to 1+ie custody of respondent No.l, has not been explained, It is evideiit from its bare reading 1^hat this flpplication was made after declaratton of the result and the fteturlnin9 Officer or any officer ayl+ionzed by him was not empowered to direct for recounting of votes after decbration of resuSt- 17) Learned counsel for respondent No,l vehemently oontended that once the recountina has been ordered and recounting hcis been completed, the Court ccnnot refuse to 9ive effect to its result and to support his contention, plc»sed his reliance in jud9ment randered fay the Hon'ble Apex Court m the matter of T.A, Ahammed Kabeer vs. A.A, Aseez and ethers3. On the other hand, lewned coyiisel for the petitiomr contended that if the order passed by the Prescrifaed Authyity for recounting is in ' (2003).5 SCC 650 [ 10 contrayention of prescribedl and settled norm an such a recoynt its result cannot be yven effect'to and piaced her r&liance in the Jud9ment of the Hon'ble Apex Court in the matter of Vadhwstu ^. 5ynelon»n endl <rtders4 L<3W laid down by the HonNe Apex Court 5n both the above ca^s cre reproduced below s *J.A. Ahominecl Kd?eer (aiBra^ ; It i@ true thflit a re-count i^ not to bc wdw^d mer&ly fw th^ askir^ or m^reiy because the court is inciined to hold a re- coynt. In qrder to protect the secrecy of b<s!bts the court would pcrmit a re-count only upon a cl@cr eos@ m that regwd having been madle out To permit or not to peramit a re-coynt is a qy^stjon intVolvsriQ jyri^tetiati of the court Once a re-count has been aitowedl the court connot shut sts eyes to the result of re-count on the 9round that.the re^ySt of r©-counta? fovnd Is;,' at variance with the pieadings. Once the coyrt has > permitted re-coyrrt" wthln the lyelj^ettted v parawi€t©p^of exeroi^in<a jydsdi^tion in this reawd, $t is the result of the re-'count which has to be given effect to." "Vadlwly feutN^*! ; The Siipreme Cowt hos csonsistently tcik^n the vic^ that re-eount of votc^ could be ordered very rcraly <3^d ons^BCiflcjg^^ m th©DSeadin<s^ m the etectson &@titJon the^ SIS^aaljty or JweQuiority was committed while coyntim Tlis petstfoner^ho seek^ re-covnt ^hoyld dtese arsd j?rwe that,ther>e ^as.JmoroBier awetstanee of,m^^ or mproper r^iection of vdid votes. If only 1+ie coMTt is satjsfled aboyt the trythftihess of the alteoetton, it can order re-CQunt of vptes, Secrew of bdbt has ajwa^_bem.^OT^er^,^acpQsa^ w^€€^_of ^{eetion and }tc«m^be di^teb^d.ijih^ by bore Qtleqations of illeQality or irreqylcrity in counting. But if it is proved that pyrity of etectJom has been tornished and it has niateriaiiy affeeted the resu't of the eiection i^hereby . the clcfecited candidate is ^erioy^ly prejydieed, the coyrt eon • resort to re-count of votes under syd^i circumstances to do justice between the partie^. 18) In Rules 1995, rule S prescribes contents of the petition ^yhich reads a^bdows . ... tt5. Contents of the petition." An eSection petition shdlS- (a) contain a concise statement of att material facts ofs whteh thc pctitionar6 rcSi^; (2000) 8 SCC 355 11 (b) set forth with sufftcient particuiars, the grounds on (^hich the eScction is eaJSed in que^ts'ons (c) be signed by the petitioner and verified in the mQnner Said down irs the Code of CN! Prkoe@dyrs€ l9C%. (V of 1908), for the verifications of plewlings." 19) Prom the above le9islation and l<w Jaid dl<wn by the Hon'fate Apex Court in the aforesaid cases, it 1$ held that in eleetion petitions when recount is ctaimed that cannot be allowed merely on the ambsgxious allegations, but party cjaimin9 recount has a heavy duty to ptead complete details and thereafter to prwe his alle9ations. An order of recoisnting of votcs can be possed on spedfjc pleoriing and its proof ond when a cSeor case for recounting is, prima fade, estabtished wel! within parameter for recounting of votes. 20) Here in l+ie instant case, it was oiieged that 1fie Presiding Officer did not dbw to peruse the valid votes which are declared imaltd, no proper light wro^gement was there ond Presiding Officer in order to provide undue advcntage to th@ petitioner has deciwcd 20% of the valld votes «^invalid and also did not give countin9 slips to any of tihe contestants or their agents; even written cGniplaint was mode to the fteturnin9 Officer, bvt that wa$ reniairwd futile exercise. So far as triaj is concerned, for deterniining the correctness of allegation, the same was required to be tried m Qccordance ^ith the Code of CivSl Procedure, but without trying Ihe dispute without considering the nature of the pleadin9 andwithout there being evittence to support- the correctness of allegations^ the Prescrtbed Authority illegally ignorin9 the well settled parQmeters, has exercised jurisdliction by directir^ recounting of votes, tiierefore, not only the impugned order dated Raju 18-3-2005 directing recountir^ of votes is itl®9al even consequent to that another impu9ned order dated 20-3-2005 is also itlegal. 21) In the result, the petition is alloiwed. Both the impu9ned orders dated 18-3-2005 and 20-3-2005 passed by the Prescnbed Authority are qucc^ied and accordin9ly the eiection petition instituted by respondent Nol isrejected, Istocosts. Sd/- V.K.Shrivastava Judge