A.^'l?, •© HjGH COURT OF CHHATTSSGARH AT BiLASPUR Single Bench : Hon'bie Shri Vijay Kumar Shrivastava, J, WritPetltJon No. 1411 of 2005 Janki Kujur Versus Phlimon & Others ORDER Postfor^-01-2,007 Sd/- V.K-Shrivastava Judge ^^ HSGH COURT OF CHHATTJSGARHATBILASPUR Singie Bench : Hon'ble Shri Vijay Kumar Shrivastava, J. WritPetition No. 1411 of 2005 PETJTIONER^ Janki Kujur widow of Late Nansai, Caste Uraon, aged about 42 years, resident of viilage Chjknipanl, Tehsij Pathalgaon, District Jashpur (CG). Versus RESPONDENTS: 1, Philmon, son of Loyaram, aged about 49 years, Caste Uraon, resident of VIIIage Chiknipanl, Tehsil Pathaigaon, Djstrict Jashpur(CG). 2. Tubiyas, Minj, son of Lorango, Caste-Uraon, 3. Dayaram, son of Jhagruram, Caste Uraon. 4. Devnees, son of Matiyas, Caste Uraon. 5. Laisai, son of Budhwa, Caste Uraon. 6. Manohariai, son of Gomaha, Caste Uraon. 7. Loharsai, son of Baital, Caste Nagvanshi. No.2 to 7 are resldents of Viiiage Chiknipani, Tehsil Pathalgaon, Dlstrict Jashpur (CG). 8. The Presiding Officer, Booth No.171. 9. The Preslding Officer, Booth No. 172. 10. The Preslding Officer, Booth No.173. 11. State of Chhattisgarh, through the Secretary, Department of Panchayat, DX.S, ^hawan, Rajpur. 12. The Sub Divisional Officer, Tehsi) Pathatgaon, District Jashpur. 13. The Returning Officer, Gram Panchayat EIectlon, Pathaigaon. Present:" Ku. Sharmila Singhai, counset forthe petitioner. Shri Ravish Chandra Agrawai, Sr» Advocate with Shri Sanjay S. Agrawai, counsef for the respondent No.1. Shri Parag Kotecha, counsel for respondents No.3, 4,6,8, 9 & 10. Shri Sunll Sahu, counsei for respondents No.2, 5 & 7. Ku. Deepaii Pandey, Pane! La\vyer for the State/respondents 11,12 & 13. O'RIIER (Passed on\O^January, 2007) Prescrsbed Authority (Panchayat), Pathalgaon, while tr/ing the eiection petltion bearing No.S/A-89/2004-05 vide impugned order dated 18-3-2005 directed for recounting of votes and after recountlng vlde impugned order dated 21-3-2005 declared respondent No.l/Phiimon elected In pjace of petitloner/Janki Kujur. Feeling aggrieved thjs writ petition under ArticSe 226/227 ofthe Constitution of India. 2) An eSectlon for the post of Sarpanch, Gram Panchayat Chlknipanl, took place. The petitioner and respondents No.1 to. 7 fiied their nomlnations, the were found in order, therefore, they were aiiotted symbois to contest the election. After polting counting of votes was conducted. The petitioner herein secured 254 votes whereas respondent No.1 herein secured 253 votes, therefore, by a margin of one vote petitioner was declared eiected and the Returning Officer on 27»1'U2Q05 issued a certificate in favour of the petitioner to that effect. 3) Being dissatisfied by the result of election respondent No.1 instituted an eiection petition under Section 122 of the M.P./C.G. Panchayat Raj Adhiniyam, 1993 (for brevity "Adhiniyam, 1993") before the © Prescribed Authority, inter alia, pieading that six valid votes cast in favour of respondent No.1 were kept in the category of invaiid votes and ai! the Presiding Officers in connivance with the petitloner in order to allow him undue advantage dld it and thereby after counting declared the petitioner as winnlng candldate. Respondent No.1 asked for showing the rejected votes, but the Presidlng Officers did not a!!ow it and even his application made to the Retuming Officer was iiiegaliy rejected. He ciaimed relief for recounting ofvotes and declaring himselfto be a returned candidate. 4) Respondents No.2, 4, 5, 6 & 7 supported the contention of respondent NoJ whereas respondent No,3, denled a!l the aliegations made by respondent No.1. He pleaded that in accordance with the rules, counting has been conducted, No objections have been raised by respondent No.1 or his agents or any other candidates and after completion of the counting the resuit was declared. Respondents No.8, 9 and 10 are the Presidsng Officers, they aiso denled aJt the aliegations, they further pteaded that no one ralsed any objections, after counting, countlng sllps have been given to contestants or thelr agents. 5) Petitioner contested the election petltion and pieaded that ailegations ieveled by respondent No.1 are false. During counting contestants and their agents were present, but no one raised any objection nor any appiicatlon was made. Even no such document has been fiied by respondent No.1 atong with his petition. In absence of his appiication in accordance with Niyam 80 of the M.P./C.G. Panchayat Niivachan Niyam, 1995 (for brevity "Niyam, 1995") and other particuiars hls petltlon is liable to be dlsmissed sn iimine. 6) No document retating to the application fifed by respondent No.1 before the Returning Officer for recounting has been annexed along with the petition, but subsequentiy one original document to this effect has ^) been jntroduced by respondent No.1. Copy of that document was not provided to petitioner or other respondents. Petitioner fiied an application for opportunity to adduce evidence, but hls appSication was rejected vide order dated 18-33a2005 stating that to determlne vaiid and inva!id votes no evidence is necessaiy and after perusai. of baliots it can be declded whether any mjschief has been played or not. Further the Prescribed Authority on the ground that respondent NoJ lost hls eiection oniy by margin of one vote, who made an application before the Returning Officer complaining mischief committed by the Presiding Officers and has also fiEed that appiication having note of Presiding Officer, ordered recountjng of the votes. On 21-3-2005 recounting was conducted and respondent No.1 was declared eiected in pface ofthe petitioner. 7) Niyam 80 of Niyam, 1995 is reproduced beiow : "80. Recount of Votes : (1) After an announcement has been made by the Returning Qfficer or such othsr officer authorized by him, of the totai number of votes polied by each candidate under sub-ruie (2) of ruie 77, a candidate or, in his absence, his election agent or his counting agent may appiy in writing to the Returning Officer or such officer authorized by him, for a recount of ail or any of the votes already counted, stating the grounds cn which he demands such recount. (2) On such an appiication being made the Returning officer or such other officer authorized by him shai! decide the matter and may aliow the appfication in whole or in part or may reject it in toto if It appears to him to be frivoious or unreasonable. (3) Every decision of the Returnjng Officer or such other officer authorlzed by him, under sub-ruie (2) shall be in writing and contain the reasons therefor. (4) if the Returning Officer or such other officer authorized by hlm, decides under sub-rule (2) to aiiow an application either in whole or in part, he shali— (a) (b) count the baliot papers again accordance with his decision; in amend the result sheet to the extent necessary after such recount; and (c) announce the amendment so made by him. (5) After the total number of votes polied by each candidate has been announced under sub-rule (2) of rule 77 or sub-rule (4) the Returning Officer or such other officer authorized by him shall complete and sign the result sheet and no appiication for a recount shati be entertained thereafter : Provided that no step under this sub-ruie shali be taken on the completion of the counting unti! the candidates and eiection agents present at the completion thereof have been given a reasonabie opportunity to exercise the right conferred by sub - rule (1). (6) The counted ballot papers sha!l be bundied and kept in the manner mentioned in sub-ru!e (3) of ruie 77. (7) Result sheets in Form 16, 17, 18 and 19 for Panch, Sarpanch, IVIember of Janpad Panchayat and Member of Zl!a Panchayat respectiveiy, prepared by such other officers as are authorized by the Retuming Officer, shall be submltted by them, in separate enveiopes to the Returning Officer for compilation and tabulation of votes po!!ed by each candidate. (8) The Returning Officer on receipt of resuit sheets under sub-rule (7) shall enter of cause to'be entered the total number of votes polied by each candidate contesting for a seat of Sarpanch, Member of Janpad Panchayat or Member of Ziia Panchayat, at each poiiing station of the concerned constltuency jn subsequent part or parts of Form 17, 18 and 19 respectiveiy and complete and sign the result sheet." 8) The Hon'ble Apex Court rending judgment in the case of Sohan Lal vs»Babu Gandhi and others heid as below: "After declaration of resuits, the Returning Officer has no power either to direct re-count or to change the results of the election. Once the result is deciared, the oniy remedy for an aggneved party is an eiection petition under Section 122. !n such a case, the court or the tribuna} is bound to consider the piea and where a case is made out, jt miay direct re-count depending upon the evidence led by the parties. !t is not correct to ho!d that in an election petition, after the declaratjon of the result, the court or tribunaS cannot dlrect re-counting ofj/ptes uniess (2003)1 SCC108 6 the party has first applied in writing for re-counting of votes. There is no prohibition In the Act or under the Rules prohibiting the court or tribunal to direct a re~ counting of the votes, Even other^/ise, a party may not know that the re-counting is necessary tiil after the result is declared. At this stage, it wouid not be possibie for him to apply for re-counting to the Retuming Officer." 9) From the legisiation and law laid down by the Hon'bie Apex Court, it is ciear that candidate contesting the election during counting of votes at an appropriate stage, but before dsclaration of results, has rlght to ask for recounting on valid grounds and thereafter he has right to cialm recounting by flling election petitlon. Therefore, during pendency of the eiection petitjon recounting can be ctaimed on vaiid grounds, even otherwise, candidate may not have asked for recounting during counting in accordance with Niyam 80 of Niyam, 1995. « 10) Here in the instant case, though an appiication addressed to the Returning Officer has been introduced by respondent No.1, but in that applicatjon he dld not mentlon the when 'rt was made, even some one who put his note by red ink also dld not mention the date of presentation of application or date beiow his initial. Here it Js not out of piace to mention that if this appiication was made to the Returning Officer it should have been in the fiie ofeiection proceedings, how this appiication, if endorsed by any of the eiection officer, carne to the custody of respondent No.1, has not been expiained. it is evident from its bare reading that this appjjcation was made after declaratlon of the resuit and the Retuming Officer or any officer authorized by him was not empowered to direct for recounting of votes after declaration of resuft. 11) Learned counsel for respondent NoJ vehemently contended that once the recounting has been ordered and counting has been compieted, the Court cannot refuse to give effect to its result and to support his contention, placed his reliance in judgment rendered by the Hon'ble Apex Court in the matter of T.A. Ahammed Kabeer vs. A.A. Azeez and others . On the other hand, learned counsei for the petitioner contended that if the order passed by the Prescribed Authority for recounting is in contravention of prescribed and settled norm on such a recoynt its result cannot be given effect to and placed her reiiance sn the judgment of the Hon'ble Apex Court in the matter of Vadivelu vs. Sundaram and others3. Law Said down by the Hon'bie Apex Court in both the above cases are reproduced below : "T.A.Ahamsned Kabeer (su0ra21; it is true that a re-count is not to be ordered merely for the asking or merely because the court is inclined to hotd a re- count. In order to protect the secrocy of baltots the court woutd permit a re-count oniy upon a clear case in that regard having been made out. To permit or not to permit a re-count is a question involvjng jurisdlction of the court. Once a re-count has been allowed the court cannot shut its eyes to the result of re-count cn the ground that the resuit of re-count as found is at variance with the pieadings. Once the court has permitted re-count within the well^eWed oarameters ofexerclsma lunBdlctlon in this reaard, it is the result of the re-count which has to be given effectto." 'Yadli'velu (supra3) : The Supreme Court has consistently taken the view that re-count of votes could be ordered very rare}y_ and_Qn_^€^j£_c alleaation m the Dle&dsnas sn the election petitlon that illeaBilty or hreauiaritv was commltted while countlnQ, The petitioner who seeks re-count should aiiege 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 allegation, it can order re-count of votes. Secrecy of baltot has always been considered sacrosanct in a democratic process of eiection and it cannot be disturbed lightly by bare allegations of iilegaiity or irreguiarity in counting. But sf it is proved that purity of eiections has been tarnished and it has materia!!y affected the result of the election whereby the defeated candidate is seriousjy prejudiced, the court can resort to re-count of votes under such'"'"^ circumstances to do justice between the partles." : (2003) 5 SCC 650 3 (2000) 8 SCC 355 ii 8 12) Sn M.P./C.G. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Ruies, 1995, Ruie 5 prescribes contents ofthe petition, which reads as beiow: "5. Contents of the petstlon.—Anelection petition shait— (a) contain a concise statement of al! materia! facts on which the petitioner relies: (b) set forth with sufficient particulars, the grounds cn which the election is calied in question: (c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908). for the verifications of pleadings." 13) From the above iegisiation and law laid down by the Hon'bie Apex Court In the aforesaid cases, it is heid that in ejection petitions when recount is ciajmed that cannot be allowed mereiy on the ambiguous aiiegatjons, but party claiming recount has a heavy duty to plead complete detaiis and to prove his allegations. An order of recounting of votes can be passed on specific pfeading and its proof and when a clear case for recounting is prima facie established weti within settled pararneter for recounting ofvotes. 14) Here in the instant case, it was aiieged that the Presiding Officers in connivance with the petitioner have rejected six votes, which were cast in favour of respondent No.1 and thereby six valid votes have not been counted in his favour and the same was specificaiiy denied by the petitloner and even by co-contestant i.e. respondent No.3 and Presiding Officers. No detalls regarding six ballots have been given by respondent No.1, therefore, so far as particuiars are concemed, sufficient particuiars are mlsslng. So far as trsa! is concemed, for determining the correctness of aliegation, the same was required to be tried in accordance with the Code of Civii Procedure, but without trying the dispute and without cons'sdering the nature of the pieading, when the petltioner by fiiing an appSscation prayed to adduce evidence, the same was rejected and ^ thereby refusing prayer for granting opportunity to petltioner, and without having any evidence in support of ailegations the Prescribed Authority jiiegaity, ignoring the weii settied parameters has exercised his jurisdiction by directing recountlng of votes, therefore, not oniy the impugned order 18-3-2005 dlrecting recounting of wtes is iliegai, even consequent to it another impugned order dated 21-3-2005 is aiso illegai, 15) !n the result, the petition is aliowed. Both the impugned orders dated 18-3-2005 and 21-3-2005 passed by the Prescribed Authority are quashed and accordingiy the eiection petition instituted by respondent No.1 is rejected. No costs. Gov^ri Sd/- V.K.Shrivastava Judge