^^i7^ HIGH COURT OF CHHATTISGARH. BiLASPUR Civil Revision No.45 of 2008 APPLICANT: NON-APPLICANTS: Smt.Anita Netam Versus District Eieclion OiT<cer and others Post for Dronouncement of Qrder on 1 Octoher, 2010 Sd/- T.P. Sharma Judge ^ '^^^•^ ^ ''^ & ^,^^' APPLICANT: HIGH COURT OF CHHATTISGARH. BILASPUR Civil Revision No.45 of 2008 Smt. Anita Netam, W/o Shri Fulel Singh Netam, aged about 36 years, R/o 123 E, Risali Sector-Bhliai, Ward No.58, Bhilai Nagar, Tahsii & District Durg (C.G.) RESPONDENTS: Versus 1. District Election Officer, Local Election (Bhilai Municipa! Corporation), Premises of Cotlectorate, Durg, District Durg (C.G.) 2. Returning Officer (Local Election) Bhilai Municipal Corporation, District Durg (C.G.) 3. Smt. Vidya Thakur, W/o C.R. Thakur, aged about 39 years, R/o 13-A Risali Sector, Bhilai, District Durg (C.G.) 4. Smt. Subhadra Thakur, W/o Shri P.R. Thakur, aged about 42 years, R/o 144-D, Ruabandha Sector, Bhilai, District Durg (Revision underSection 441 ofthe Chhattisgarh Munidpai Corporation Act, 1956) Present: Mr. Prateek Sharma, Advocate for the applicant. Mr. Vinay Harit, Senior Advocate with Mr. Surya Kant Mishra, Advocate for non-applicants No.1 & 2. Mr. H.B. Agrawal, Senlor Advocatewith IVIiss Pragya Singh, Advocate for non-applicant No.3. None present for non-applicant No.4. Sinale Bench: Hon'bie Mr. T.P. Sharma. J ORDER (Passed on 1st October, 2010) 1. By this revision under Section 441-F of the Chhattisgarh Munidpal Corporation Act, 1956 (for short 'the Act'), the applicant has challenged legality & propriety of the order dated 24-1-2008 passed by the District Judge, Durg in Misc. Judiciai Case/Election Petition No.4/2006, whereby iearned District Judge has dismissed the eiection petition filed under Section 441 of the Act for recounting, re-declaration of the result election and declaration ofelection ofnon-applicant No.3 nult & void. •^yyy^^-^E7S%^SS:-^ 2. Order is impugned on the ground that the Court below has failed to exercise the jurisdiction vested on it by not declaring the election of non- appiicant No.3 as null and void. 3. As per pleadings of the parties, election of Municipal Councillor of Ward No.58 of Municipal Corporation, Durg, was held on 16-12-2005 in which total 2328 voters have exercised their right of franchise and as per non- applicants No.1 & 2, totai 814 votes were cast in favour of the applicant; 816 votes were cast in favour of non-applicant No.3; and 630 votes were cast in favour of non-applicant No.4. Non-applicant No.3 won the election by two votes. As per the aliegation of the applicant, in absence of sufflcient arrangement of iight, symbols in the ballot papers were not clearly visible and the persons engaged in counting were facing problem, and without minute scrutiny ofthe bailot papers, non-applicants No.1 & 2 have declared the result in favour of non-applicant No.3. Persons engaged in counting were reckless and committed serious irregularities in countjng. On the aforesaid grounds, petition for recounting and deciaration of resuit of non-appiicant No.3 null & void was fited by the appilcant. By filing independent written statement, non-applicants No.1 & 2 have denied the allegations made in the petition. Non-applicant No.3 has also denied the allegations made in the petition. 4. During the course of trial, the applicant herein applied for recounting of valid bailot papers vide her appiication dated 20-11-2007. After hearing the parties, the Court beiow has ordered for recounting of ballots vide order dated 24-1-2008, ballot papers were counted in the Cpurt premises and on the direction of the Court below, non-appljcants No.1 & 2 have submitted their report dated 24-1 -2008. As per the result of recounting, 813 votes were found vaiid in favour of the applicant; 814 votes were found valid in favour of non-applicant No.3; and 632 votes were found valid in favour of non-applicant No.4, likewise 68 votes were found invaiid, in total 2327 voters cast their votes. 5. On the basis of recounting and after closing of evidence by both the parties, the petition was dismissed by the order impugned. 6. I have heard learned counsel for the parties, perused the order impugned and record of the Court below. 7. Mr. Prateek Sharma, learned counsel for the applicant, vehemently argued that as per the information given by the Retuming Officer, total $' 475 ballot papers were used jn Booth No.58 B.S.P. Primary School, Risaii; 526 ballot papers were used in Booth No.359 B.S.P. Middle Schooi, Risali; 413 baliot papers were used in Booth No.360 B.S.P. Higher Secondary School, Risali Sector; and 415 ballot papers were used in Booth No.361 B.S.P. High School, Risali Sector; and 502 ballot papers were used in Booth No.362 B.S.P. High School, Risali Sector, Bhilai, thereby total 2331 vaiid ballot papers were used. As per the information of non-applicants No.1 & 2, 814 votes were cast in favour of the appiicant, 816 votes were cast in favour of non-applicant No.3 and 630 votes were cast in favourof non-appticant No.4, thereby total 2260 votes were caste in favour of the applicant, non-applicant No.3 & non- applicant No.4 and 68 bailot papers were found invalid, and three ballot papers were found short. Non-applicant No.3 has won the election oniy by two votes. In recounting, again one valid bailot paper was found short, in total 2327 ballotpapers were found to have been used. Learned counsel further argued that non-applicants No.1 & 2 were under obligation to perform their duty impartially and independently without any , bias to give effect to the real intention of legislature for impartial and fair election in the democratic system. However, in the present case, as per the documents of non-applicants No.1 & 2, three ballot papers were missing and 2328 bailot papers were found in the ballot box at the time of counting, but at the time of recounting only 2327 ballot papers were found which shows that non-applicants No.1 & 2 have not discharged their duty fairly and impartially. Learned counset plaeed reliance in the matter of Udey Chand v. Surat Singh and another1 and submitted that as held by the Supreme Court in the aforesaid case, the legislature mandates every officer, agent, etc. who pertorms duty in connection with the recording or counting of votes, to maintain the secrecy of votes. But in the present case, non-applicants No.1 & 2 have not discharged their duty as per the intention of the legislature. Learned counsel further placed reliance in the matter of Kedar Singh Kushwaha v. Dhaniram and another2 in which the Supreme Court has held that recounting of votes cannot be directed only on the ground that opposite party has no objection for such recounting. 1 (2009)108cc 170 2 (2009) 9 SCC 396 ^^wsss^-sas^w 8. On the other hand, Mr. Vinay Harit, learned Senior Advocate appearing on behalf of non-applicants No.1 & 2 and Mr. H.B. Agrawal, learned SeniorAdvocate appearing on behalfof non-applicant No.3 opposed the revision and submitted that in the present case, at the instance of the applicant herein recounting was directed by the District Judge and after considering the case of both the parties, recounting was done in the Court and flnally report was submitted. As per the result of recounting, 813 votes were cast in favour of the applicant, 814 votes were cast in favour of non-applicant No.3 and 632 votes were cast in favour of non- applicant No.4, and 68 votes were found invalid. Even on recounting of ballot papers at the instance of the trial Court, non-applicant No.3 is returned candidate and succeeded in the etection of Councillor. 9. Mr. H.B. Agrawal, learned Senior Advocate appearing on behaif of non- applicant No.3, also placed reliance in the matter of Udey Chand (supra) and submitted that although there was no valid reason for recounting of votes, but as a result of recounting of votes, non-appiicant No.3 is returned candidate and has succeeded in the election by one vote. After recounting of votes there was no dispute retating to resuit and the matter has reached to its finality, therefore, there is no force in the instant revision. lO.Definitely, as held by the Supreme Court in the matter of Udey Chand (supra), every officer, agent, etc. who performs duty in connection with the recording or counting of votes is required to maintain secrecy of votes and required to discharge his duty clearly and impartially. As held .- by the Supreme Court in the matters of Udey Chand (supra) and Kedar Singh (supra), recounting shall not be permitted without complete statement relating to irregularity or illegality in counting ofvotes. 11.As per the petition of the applicant, there was no sufficient provision of light at the time of counting of votes and the officers engaged in counting were feeling difficulty in counting even relating to identifying valid and invatid votes and the symbols, it appears that this was the cause for difference in counting. However, finally the ballot papers were recounted before the District Judge at his direction. As per the result of recounting, non-applicant No.3 was found returned candidate. In these circumstances, it is difficult to hold that non-appiicants No.1 & 2 have committed illegality effecting the result of election. '§ Soma 12.After considering the aforesaid facts, learned District Judge has dismissed the petition. The District Judge has neither failed to exercise the jurisdiction vested on it nor has committed any illegality requiring interference in exercise of revisional jurisdiction. 13.Consequently, the petition is liable to be dismissed and it is hereby dismissed. No order as to costs. Sd/- T.P. Sharma Judge