fc- IN THE HIGH COURT AT BIIASPUR W.P. N0, i ^i ss PETITIONER S/0 Balram aged about 39 years.l village Kunwarpur, P.i Tah» Ambikapur, Distt, IB] Mw RESPONDENTS VERStIS t. Bbagwat prasad S/0 I'ate Tegna Ram, aged about 45 years, Resident of village- Kedarpur, Tah. Ambikapur, Dlstt..- Surguja( C.G.) .-^-^ ^"''- 2« Aitwar Sai S/0 sirdar, aged about 45 years.Resldent of village Kunwarpur, P.S. - La)chaiaptir, Tah. Anibikapur, Distt. Surguja(C.G<>) 3. Balvlr Singh S/0 Bodhrai, aged about 49 yeara Resident of vlllage Kunwarpur» P.S»- Lakhanpur, Tab. •<^iiblkapur, Distto- Surguja(C.S.) 4. presiding Officer Booth No»- 59, Gram Panehayat vlllage- Kanwarpur, p.S» Lakhanpur, Tah. Ambikapur, Distt. ~ Surguja(C.Go) PETmON .UNDER ARTICLES 226/227 QFTHE CONSTITUTIQN OF INDIA FOR ISSUANCE OP A WRITIN THENATURE OF GERTIORARI AND MANDAMUS ETC. DIRECTION/DIRECTIONS,ORDER/ORDERS \ ^S'SUissgsa •---t^^^-y- WRIT PETITION N0. 132 OF 2000 Sainath Singh ;;^..>-<£i;i.;^?^l;^; yy^,^-'^7'^^^- r'-^^^^"^~^ ss-aa -V- Bbagwat Prasad and others. O R D)B R Post for Ah-4-2002 Sd/- Fakhruddin Judge IN THE HIGH COURT OF CHHATTISGARHAT BILASPUR WRIT PETITION N0. 132/2000 Sainath Singh Vs. Bhagwat Prasad aiid others ORDER Per Hon.Fakhruddin, J : The petitioner had filed a petition before the Sub Divisional Officer, Ambikapur on the ground that in booth no.59 of grara panchayat, Kunwarpur wrong counting has been made. Prayer clause of the said petition is also to the effect for recounting ofvotes ofbooth no.59. Another prayer was fhat the election, whereby the respondent no. 1 has been declared elected, be declared void. 2. The Sub Divlsional Officer by fhe unpugned order dated 8/8/2000 has atlowed the petition to the extent that ffae recoiinting ofvotes ofbooth no.59 be made. Even on the recounting of votes, the petitioner could not succeed. -2- 3. This petition has been filed by fhe petitioner on fhe ground that recounting m other booth nos.58 and 60 of gi'am panchayat, Kiuiwarpur be niade. 4. Learned counsel for the respondent no. 1 submits that this was not the prayer before the Sub Divisional Officer. Even no such averment was made in the said petition. 5. Riile 5 ofthe Madhya Pradesh Panchayats (Election Petitions, Comipt Practices and Disqualification For Menibership) Rules, 1995 provides fhe contents of the petition, whlch reads as under : "5. Contents ofthe petition- An election petition shall- (a) contain a concise statement of all material facts on which the petitioner relies; (b) set forth wifh sufficient particiitars, the grounds on which the election is called in question; (c ) be signed by fhe petitioner and verilied in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for fhe verifications of pleadings." 6. So far as fhe rellef of the election petition regardms declaration of election to be void is concemed, it is relevant to quote Rule 21 of the aforesaid rules, which reads as under : "Grounds for declaring election to be void: (l)Subject to the provisions ofsub- rule (2) if the specified officer is of opinion-(a) that on the date of his -3- election the returned candidate who was not qualified or was disqualified to be chosen to fiU the seat under the Act; or (b) that any corrupt practice has been com.raitted by a retumed candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or ( c) that any nomtnation paper has been unproperly rejected; or (d) that the result of fhe election in so far as it concems retumed candidate has been materially affected- (i) by the improper acceptance of any nommation; or (u) by a corrupt practice having been committed in fhe interest of the returaed candidate by a person actinj with fhe consent of the candidate or his agent; or (iu) by the improper acceptance, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of the Act or of any rules or orders made thereunder; the specilied officer shall declare the election of the returned candidate to be void. (2) If in the opinion of the prescribed authority a retumed candidate has been giiilty by an agent of any corrupt practice, but the prescribed authority is satisfled- (a) that no such corrupt practice was comiaitted at fhe election by fhe candidate and every such corrupt practice was committed contrary to fhe uistructions and without the consent of the candidate; (b) that the candidate took all reasonable means for preventing the comnuiission of corrupt practice at the election; and (c) fhat m aU other respect the election was free from any corrupt practice on the part of the candidate or any of his agent; then the prescribed authority may decide that the -4- election of the returned candidate is not void." 7. A perusal of the election petition goes to show that the averments and allegations inade in paragraph 3 the petition relate to Ulegality and uregularity regarding counting of votes at polling booth no.59. The relief clainied in paragraph 9 is that the recounting of votes be got done at polUng booth no.59 and after recounting ofvotes result be declared. 8. Learned Presiding Offlcer vide hls order dated 5/10/2000 considered the matter and by a reasoned order as per prayer dtrected the recountuig of votes of poUing booth no.59. Recounting was done on 14/11/2000 and even on recounting the result of the election reinauied the same and the election petitioner lost. 9. Before the Presiding Officer, coiinsel for the petitioner was not been able to poiat out any illegality or uregularity in recounttng held on 14/ 11/2000. He however contended that recounting should also have been done at poUin^ boofh nos.58 and 60 as weU. The said prayer was rejected by fhe Presiding Ofiicer. Again this prayer has been reiterated ui fhis petition by the coiinsel. -5- 10. This Court has also considered fhe aspects and heard the leamed counsel for the parties. 11. The recount has been clatmed by the petitioner only in respect of booth no.59 and that prayer has already been ;ranted. The trial of the election petition has to be in accordance with law. The petition has to contend the grounds as required in Rule 21 of the aforesaid rules. So far as election petition is concerned, it is not a common law remedy. It is provided by a Statute. 12. The Apex Court ui the case of P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen and others, reported in AIR 1989 SC 640 has maintained the unportance of secrecy as sacrosanct resting the burden on the candidate chaUenging election to allege and substantiate in acceptable measure by nieans of evidence that a pnma facie case of a high degree of probability existed for recount. In paragraph 13 of the said judgment, the Supreuie Court has held as under : "13. Thus, the settled position of law is that the justification for an order for -6- \,1 examination of baUot papers aad recount of votes is not to be deprived from htnd sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on fhe threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be Ughtly or hastUy broken unless there is pruna facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recountuig ofvotes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless fhe affected candidate is able to allege and substantiate tn acceptable measui'e by raeans of evidence that a pruna facie case of a high degree of probability existed for fhe recount of votes beuig ordered by the Election Tribunal in the interests ofjustice, aTribunal or court should not order the recount ofvotes." 13. In fhe instant case, recount of polling booth no.59 was prayed and the same was allowed. Recounting of poUlng booth no.59 was done and even after the result was declared, the petitioner lost. So far as the present. case is concemed, it is accepted position that the averments made and prayer made regarding recounting of votes at polling booth no.59 and no averment is made in MMii -7- the petition regarding recounting ofvotes in other polling boothnos. 58 and 60. 14. Havuig considered tfae facts and circumstances and the material.available on record, no case for interterence is inade out. The relief prayed for has ah'eady been granted to the petitioner. | 15. The pefttibn fails ;and is disinissed with[jcosl!s. i Counsel fee Rs.500/-, tfeertifled. \'! Sd/- Fakhruddin Judge in-4..ii