1. 'sien i\.;^ cr^\^l— BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH) WRIT APPEAL N0. O^ / 2007 APPELLANT RESPONDENTNO.l Philmon, son of Loyaram, aged about 49 years, caste Uraon, years, caste uraon, >.<^j/.»' resident of village Chiknipani, ^\^.«^^ . V^" ^"' Tah. Pathalgaon, District Jashpur ^..•'-^- 9.>:^^- ..-••^^?^" ^y' ^•••••""" RESPONDENTS PETITIONER RESPONDENTS ^^ ^.^^t 1££^^??T1 ^^y^ik.iy^ | I.^^X., ..-4^ ^^^^^^y. ^•?p^ ""^^^--^^ .^ ^ o \w ^ '^y 1. (CG) VERSUS Janki Kujur, widow of Late Nansai Caste - Uraon, aged about 42 years, resident of village Chiknipani, Tahsil Pathalgaon, District Jashpur (C.G.) 2. Tubiyas Minj s/o Lorango Caste Uraon, 3. Dayaram son of Jhagruram, caste Uraon, 4. Devness, son of Matiyas, Caste Uraon, 5. Lalsai, son of Budhwa, caste Uraon, 6. Manoharlal, son of Gomaha, caste Uraon, 7. Loharsai, son of Baital, Caste Nagvanshi, Respondents No.2 to 7 are resident of village Chiknipani, Tahsil Pathalgaon, District Jashpur (Chhattisgarh) 8. The Presiding Officer, Booth No.171 .01 ., 9. The Presiding Officer, Booth No.172 10. Presiding Officer, Booth No. 173, 11. State of Chhattisgarh, through the Secretary, Deptt ^ of Panchyayat D.K.S. Bhawan, Raipur (CG) 12. The Sub Divisional Officer, Tahsil Pathalgaon, Distt. Jashpur (CG) 13. The Returning Officer, Gram Panchayat Election Pathalgaon. WRIT APPEAL UNDER RULE 157 SUB CLAUSE 10 OF THE CHHATTISGARH HIGH COURT RULE. 2005 ^•ft' 3s/°? TF XI-HC-78 ^im^l 9h*1|ch 3:^^TPTT^T, ^Tfl^^l^, fsfcni^y MtA:^/^^^.. ^ 200 31 3ll^l M5(ch (l:[^t3^^) ^TT^T^T^Jcb cTS?T3n^T9h^icb ?^<TT^H:;Rf^T3:n^T <=t)ix4?^i41Ti ^i^ciT^:tel<Fl'<Ri<-<;i< ^3Tf^T3TT^?T DB: - Hon'ble Shri L.C. Bhadool& Hon'ble Shri Dhirendra Mishra. JJ. 14-2-2007:- Shri Prashant Jaiswal, ^r. Advocate \Mth Shri Vinay Pandey, counsei for the appellants in Writ ^ppeals No.3/2007 and 4/2007. Miss Sharmila Singhai, coujnsel for respondent No.1, Shri U.N.S. Deo, Govt. Ad\tocate forthe State. In Writ Appeai No.3/200 No.4/2007 filed by Rameshwar therefore, they are being dispose< These writ appeals hav| challenging legality, propriety ar| January 2007 passed by the Nos. 1411/2005 filed by Janki H No.3/2007 and 1410/2005 filed b| W.A. No.4/2007. 7 filed by Philmon and Writ Appeal Rrasad, similar point of law is involved, of by this common order. 9 been preferred by the appeilants d correctness of the order dated 10th learned Single Judge in Writ Petition .ujur, respondent No.1 herein.in W.A. y Masatram, respondent No.1 herein in No.1 herein namely Janki Kuju) Panchayat Chiknipani whereas, Ram was elected as Sarpanch of| was questioned by petitioners na| by fiiling election petltions unc| Panchayat Raj Evam Gram Swar^ 1993') on the ground that their Brief facts leading to filing <t>fthese writ appeals are that respondent r was etected as Sarpanch of Gram other respondent No.1 namely, Masat Gram Panchayat Ludeg. Their election mely, Philoman and Rameshv^ir Prasad |er Section 122 of the Chhattisgarh ^j Adhiniyam, 1993 (for short 'Adhiniyam, ^alid votes were put in the category of invalid votes, thereby rejected v|aiid votes illegally, and invalid votes of P.T.O. XI-HC-78 ^TT^T^T^Jch cT8TT3TT^Tsh^icb I:^ 3^T ^ll^Krt^, ^T{1^4l<o, f®ldiy^< +ii*iwi a»+iich ^200 ^l ^s<ch (I?^3^^) S^TTW^T 3TT^T ^^— re-couht respondent No.l liei'eiti weie election petitions were allowed dated 18-3-2005 ordering thereto, recounting was done In tt case of Masatram, recounting vi| were challenged before the le; petitions. Vide impugned condusion that the prescribed ^ following procedure as (Election Petitions, Corrupt Membership) Rules, 1995 (for eiection petition was not in therefore, order dated 18-3-20051 dated 21-3-2005whereby result| quashed in the case of Janki Kuj^ orders dated 18-3-2005 and ^gally accepted as vatid votes. Doth ordej's envisa^ed consfcinance We have heard tearned co Learned counsel for the s|( dated 18-3-2005 for recount c|f objection if the matter is remanc|ed setting aside the said order, as t| without foltowing procedure as ef\ 1995, the trial of the election pe|i Rules, 1995. As far as disiln concerned, that is not in conson^ CM<4T^i<nvi ^i^^T^:te^Ft'<Ri^i< ^^rf^TT3TT^T t>y the prescribed authority vide order in both election petitions. Pursuant he case of Janki on 21-3-2005 and in the fes done on 20-3-2005. Those orders trned Single Judge in the above writ >, learned Single Judge came to the (uthority ordered for recounting without in the Chhattisgarh Panchayats Practices and Disqualification For hort 'the Rules, 1995')as also that the with Rule 5 of the Rules, 1995, [whereby recount was ordered and order was announced after recounting were ir. Similarly, in the case of Masat Ram, were quashed. 20-3t2005 ^nselforthe parties. [ppellants submitted that as far as order |f the votes is concemed, he has no back to the prescribed authority after le prescribed authority passed that order ivisaged in Rules 11 & 1-2 of the Rules, :ition can be ordered in accordance with lissal of the election petition itself is mce with the settled law, as the material 32 P.T.O. XI-HC-78 OT^T^Tf^T^F cT^TW^Tsh^ich w 3:^T ^TPTT^PT, ^Tfl^41<o, Rcrll<H^< 33 HIHMI Sh+lich ^ 200 3^ l^l ^^cb ?^<TT^H:^rf?cTW^T -?- facts in consonance with Rule 5-^fthe Rules, 1995 were already pleaded by the appellants. On the other hand, Miss Sl| order passed by the leamedSin^ ofthe appellant herein is correct. In view of the submissi<| appellants herein, we are require^ to whether learned Singie Judg| petition itself ftled by the ruie is Rule 5 of the Rules, impugned order which envisages "S.Contents of the petitioti (a) contain a concise st; petitioner relies: >n made by learned counsel for the to give our fmding only on the point as }^ was right in dismissing the eiection appella(its herein. In this connection, retevant which has been reproduced in the Dhat 19|95 (b) set forth wflth suffici election is called in In this context, we have their election petitions. In the petition discloses that on 3 potlii were deliberately put in the respondent No.1 (returned votes and they were counted as votes of polling station Nos. 171 petitioners or his agents. In tl petitioner ofpoiling station No.17; <=bl^T<^41-1 HTTOf^ fWt <f^<:^l< ^)3Tf^T3Tr^T armila Singhai submitted that impugned le Judge dismissing the election petition i.- An election petition shall- .tement of ail material facts on which the i^nt particulars, the grounds on which the duestion;" peruse pleadings of the petitioners in cjase of Philmon, para-4 of the election ^g stations valid votes of the petitioner cate^ory of invalid votes. 6 invalid votes of candi|date) were put in the category of valid ^alid votes. Even valid votes and invalid and 172 were not made known to the 1e same manner, 6 valid votes of the 1 were put in the category of invalid votes P.T.O. XI-HC-78 TocT^INId^, ^Tn<r111<o, fst^ll'My *<1*1^11 «>+1|Ctl ^ 200 34 ^T^RF3F(1^1 ^TT^TofiT^ich c^TTW^T5h^lcb ^RTTW ^f?cT 3T^?T A- vtlas and efforts were made by the p^ petitioner and respondent No.1 was declared defeated by a m^rgin petitioner was declared elected b^ made by the petitioner was reject^d In the case of Rameshwait been mentioned in paras-2, 3, 6 a( has been mentioned that in ordet votes of the petitioner were decla( whereas in those baltot papers cl| An objection was raised by the p< his valid votes are being mixed ir| to the objection of the petitioner. a!!owed to inspect ballot papers invalid. The election agents wetfe favour given to respondent No.1,| informed about the activities of t| was made. Now, question is that as election petitions, constitute a co| \Miich the petitioner relies'. The down by the Apex Courtin the m^ Azeez & others reported in Sundaram and others reported U Ahammed Kabeer (Supra) the AR <=t)i^F<n41Ti w^ff ^ te1^' <Ri^i< ^^iKi^3Tr^T 'esiding officer to ensure defeat of the unduly benefited, thereby petitioner of one vote whereas, earlier the a margin of4 votes. Prayer ofrecount by the presiding officer. t, materiai facts regarding recount have |id 7 ofthe eiection petition. In para-2, it to benefit respondent No.1, 20% valid (•ecf as invalid by respondents No.9 to 14 ^ar seal was in favour of the petitioner. ^titioner before the presiding officer that the invalid votes but no heed was paid The petitioner and his agents were not ^nd in hurry, valid votes were declared not given counting slips. For undue [respondent No.15 returnin.g officerwas |ie presiding officer, but no intervention Ito whether above facts in the above hcise statement (of all material facts on ^ettled law for recount of votes is laid ttters of T.A. Ahammed Kabeer V. A.A. (12003) 5 SCC 650 and Vadivelu V. (2000) 8 SCC 355. In the case of T.A. }ex Court held that irh P.T.O. XI-HC-78 ^^^TTsn^ra-^ ^Tfl<i^<o, [c«rt!<Hy 35 ^i«<w a»*iich ^ 200 ^TT^T^T^ich cTSTT317^T5bH|cb -/ „/ ^: 3ll^l ^5|cb (l^3^ST) 5^TT^C^f?cT3TT^T llt is true that a re-d to hold a re-count. 1 <=hi^^<'nr< ^l^<nT^teI<Ft'<Ri^i< ^'3Tf^T3n^?T ount is not to be ordered merely for the asking or me|"ely because the court is indined i order to protect the secrecy of the ballots the couft would permit a re-count only upon a clear case 11)1 that regard having been made out. To permit or| not to permit a re-count is a question involving jui count has been allo eyes to the result o1 risdiction ofthe court. Once a re" ^ed the court cannot be shut its re-count on the ground that the result of re-count a|s found is at variance with the pleadings. Once tljie court has permitted re-count within the well-set jiinsdfction in this rea\arcf^ it is the resuit ofthe re-count which has to be give In the case of Vadivelu (S ^ effect to". |pra), the Apex Court held that "Re-count of votes on soecific alfeaatlo^ QetAion that iffeaalit\ w/?/7e countina. TM shoufd afleae and valfd votes. If only| truthfulness of the a| votes. Secrecy of b| !ed oarameters of exercisina ould be ordered verv rarelv and in the oleadSnas in the electfon ^ pr Afeou/ar^y wa^ comm oetitioner who seeks re-count proj/e^JftatJAefe_w^ acceptance of 'snvaW v<^es or imorooer reiection of the court is satisfied about the legation, it can order re-count of allot has always been considered sacrosanct in a dem|ocratic process of election and it cannot be disturbe^ lightly by bare allegation of ^ li^ P.T.O. XI-HC-78 3^T<^INIcn^, ^Tn<MJI<o, IS|^I<M^< ^IHdl sb^lcb --«-*«-< ->»<<<^ 200 3ii^i ^5i cn 36 3^T^)T^ich cTSTTW^T$h^l<=h ^1^1 5;?cTTW:^f5<T3T1^T -4- iliegatit^ror irreguiantl that purity of electio^ materially affected tlj the defeated candid court can resort to circumstancesto do Therefore, as per the ratio the petitioner wtio filed election ^ facts constituting ground for re-coij the pteadings in the election p^ committed while counting, there vu| or improper rejection ofvalid vote^ The Apex Court in the Palanisamy and others reported "For re-counting part| as enumerated in t tables, at which suc| disclosed. The narri chi^?oi41ri ^i^ciT^:tel:^t<Ri<-<ii< ^3Tf^T3TT^T / in counting. but IT it ts proved is has been tarnished and it was le result of the election whereby ate is seriously prejudiced, the re-count of votes under such iUstice between the parties." Emphasis supplied t)f above decisions, in the first instance, ^etition is required to plead atl material |nt. There must be specific atlegation in |tition that iilegality or irregutarity was ^s improper acceptance of invaiid votes matter of M. Chinnasamy V. K.C. n (2004) 6 SCC 341 held that es are required to plead material facts, as regard as t|o which category of irregularities ie election petition occurred at which centre and at v|Aat time. The details as regards h objections were raised to be es of the counting agents be disclosed. The petiti|oner is required to disdose the details of the nam^s of polting stations, counting centres, tables, partif votes in relation wtt ;ulars of round ofthe counting of lereto atleged irregularities had P.T.O. XI-HC-78 3:5ET^ii<qicnq, ^^^i(o, f^tcni^y <-(1*1WI Sh+lich ^ 200 37 311^1 ^si <»»(*iei^c«<6r) 3TT^T^T^i<=b cTSTT3TT^T$h^i<=h lf^ lN»llll^r ^FcTT^K ;Hf??T 3:T1^T ^- <=b^foi41Ti ^i^KnT^te^tI^^K ^3:rf^T3TT^T taken place under al( the four categories and basis of material facts and p^rticulars." Based on above principte,| if we examine case of the appellants herein, in the case of Philmon, on|y it has been mentioned that valid votes of the petitioner were put in the cjategory of invalid votes. 6 invalid votes of the respondent No.1 (returned| candidate) were put in the category of vaiid votes and no information wa^ given to the petitioner and his election agents regarding vatid and invatic) 172. 6 votes of the petitioner oi\ category of invalid votes. After perusal of eiection pe|:itions, we are ofthe considered opinion that aliegation of the petitioner in of material facts and sufficient p^rticulars In order to pass order for re- count. As per Sub-rule (2) of Ru| or his agents are entitled to have| papers. Even though it has be^ petitioner were put in the categofl the respondent No.1 were put particulars ofthose ballot papers rest of allegatjons are vague in r| each and every ballot paper, coi| the eiection petition filed by Ran^ votes of election Centre Nos. 171 and eiection centre No.173 were put in the para-4 of the eiection petitlon are bereft e 76, at the time of counting, candidate reasonable opportunity to inspect ballot ?n mentioned that 6 valid votes of the y of invalid votes and 6 invalid votes of n the category of valid votes, but no las been mentioned in the petition. The lature. No specific allegation regarding nting table, name ofthe election agent has been mentioned in respeot of|each irregularity committed. Similarly, in eshwar, altegation of the petitioner, as narrated above, are totally vagu|e and no material facts and sufficient particulars have been pleaded r^garding ballot papers, counting table, P.T.O. XI-HC-78 3:n^T^F)T^i<=b <TSTT3TT^?T5b^lcb L \, ;^ Ban/e '^ 3^T^TraT?R, ^Tn^ji<o, ^cni<r<^< *11+1^1 Sh+lich ^ 200 38 311^1 ^5|ch ^RTTW^TW^T —^^ name of eiection agent in respe| counting officer. Therefore, both election and sufficient particulars in oifder recounting of votes. Hence, elec^ and sufficient pari:iculars have Single Judge. Ghl^T^I^-1 HHToff ^ tecA' <r3K-4K ^3Tf^q'3T[^T ;t of each irregularjty committed by the p^titions were lacking in "al! materia! facts" to constitute cause of action for ;|:ion petitions lacking in "all material facts" |rightly been dismissed by the learned !n the circumstances, we ^Io not find any illegaiity or infirmity in the orders ofthe learned Single Judg|e. in the resutt, both the writl to be dismissed and they are her^-by appeals being devoid ofmerits, are iiable dismissed.- Sd/- L.C. Bhadoo Judge Sd/- Dhirendra Mishra Judge P.T.O.