HIGH COURT OF CHHATTISGARH. BILAaPUR Wrtt Petttipa No, 1445 of 2006 PETITIONBR: Siut. Dashoda Bai RE8POHDBNT8: Versn* ShaU Kumari. & others JUDGMBnt Ftostfbr: 26.03.2007 Sdf- Sunil Kumar Sinha Judge HICBI COUKT OF CHHATTI8GARH. BILASPI1R Writ Petttton No. 1445 of 2006 PETITIONBR RBSPOITOBMT8: Sm.t Dashoda Bai, wife of Shri Baldau Piajapati, ^ed about 50 years, resident of ViUage Chhatan, Tefasil MungeH, District BUaspur (C.G.) Vwna 1. Shail Kumari, wife of SIui Pawan Kumar Yadav, Adutfc 2. Kiran Bai, wife of Bhishain Kumar Soaker, Adulfc 3. Godawari Bai, wife of Doojiam Sahu, Adult 4. Dehria Bai, wife of Chaitiain S^ire, Adult. 5. Parvati, Bai, wife of HoUraia Sahu, Adult 6. Leela Bai, wife of Perurain Sahu, Adult. 7. Sadlma Bai, wife of Bah-ain Soiiker, Adult. AU reridente of VUtage CUiataa, Tehsil MnngeU, Dlstelct BUaspmr. 8. The Retuming OfBcer (Shri L.S. Dhmv), Boofh No. 129, Gram Paiichayat Chhatau, presentty worku^; as Professor, Govemment H^her Secondaiy School, Lonni, Tehsil & District Bilaspur. 9. The Sub Divisfonal Offfcer (Revenue), Mungeli, Distrtet Bilaspur. Appearance: Shri B.P. Shanna, couaselfor the petitioner. f^.S-ft^'^al SldA?tu f^^ Shri Sanjay K. Agrawal,rcourisel fot Tespoxrient No. 1. Shri M.K. Bhaduri aad Praven Kumar Tul^an, counsel for icspoadente No. 2 & 6. Shri V.K. Shrivastava, coimsel &r rcspondents No. 3, 4, 5 & • \ 7. \ Shri M.K. Ba^, counsel for respoulent No. 8. *. Shri Arun Sao, Govfc Advocate for fhc State/respondent No,9, ^31^^•S^^Ss'S^ss^s'^^^^ JUDGMBMT (26-03.2007} 8UIIIL KUMAR SINHA. J. (1) IiutiaUy, the petition was fited for quasbinent of fhc oider dated 10.3.2006 (Anncsauc P-1) passed by fhc Sp«:ified Officer (Sub-Dwisional OfG.cei), MimgeU ia Blectfon Peititon No.62- A/89(21)/04-05 whereby fhe said authority, after aBowu^ the election pctition fOed by respoiident no.l (one of the defeated candidates) ordered for recount of fbe votes cast in PoBing Booth No. 129 pertaiumg to fhc election of Sarpanch of Gram Pemcbaiyat Chhatan, Block and Tahsfl Mimgeli, Distt. Bflaspur (C.G). Later on when the recount was also doiie in compUauce ofttie sakl order and the respoadent no. l was dcclarcd elected in place of the petitfoner by order dated 20.3.ax)6 (Annexure P-7/R-1(2) as a result of securing xuoic nuinber of votes than the petitioner, the said oider was also challcnged by iacorporating aa. amendment in tbe writ petition. (21 The brief fects are that the petitioner and lespondents 110.1 to 7 were fhe candidates for electmn to thc post of Sarpanch of the aforesaMl Grain Panchayat The polling was conducted on 20.1.2005. In flie said electkin, fhe petitioner was declared elwted by maign of one vote. Afier such declaBBtion, respondent no. 1 fited an ekction petitiou u/s 122 of fhc M.P(C.G) Paiichayat Raj Adhiniyam 1994 prayiag fcr a recount intEiaUa pteadiag fhat lliere was no sufficient U^xt at fhe place ofcounting and the situatun was teaise as fhere were no siiffieient strength of seCTtrily foroe and for aU fhese reasons, lookiag to the situation, fhe Presiding OfiBcer any how coaipleted the counting wifhout even pioper scTutiny of the baUot papcis aad even tfie valid baBtot papers through whfch fhe votes were cast ia favour of fhe Bespondent ao. 1 were cancened by hiia. Respondeat no. 1 furthcr pfeads that most ofthe votes whfch were cancdled by the Presaluig Officer were fhe votes poBed in her favour. She also inakes aBegatiDns that when they tried to give an applicatfon for recount, the PresBiing Officer dkl not accept the same and advMed tbem to f3e an appMcatioa before Tahsildar at MiingelL Theieafler, on the next date i.e. 21.1.2005 an applfcatkin &r recoiint was fited before Assistaat Retumu^; OScer, MungeU who told fhat fhe recount is done at the counting place alone axid no action was tateen on her application. By over-aB pleading, the etection petitioner expressed her confidence fhat if the recount js done, she woiild certainfy win thc etection. A repfy to the said election petition was fited by Tespondeat no. 1 in which she denied aU above contenttons. She specificatty pleaded that the facts laentioned in thc election pctition are not true and fhe efection pettt»ndeserves to be dismissed. (3| During the course of evidence, the dectfon petitioner examined herself as P.W. 1 aad anotfaer witaess namely Moti Rain Yalav (P.W.2), whexeas, fhe petitioner hfirein estamincd 3 witnesscs iiainefy Sobhram sahu (D.W. 1), Raju s/o Gaaesh (D.W.2) aad Itomal Prasad Sahu (D.W.3). The Presiding OfBcer was also exanuned. Afiter coinpletton of the hcaring, the election petitioner was allowed and ultimatety ftie icapiigned order dated 10.3.2006 (Annexure P-1) for recouatiag was passed, which is under chaBengp in this petition. The Tribunal aUowed fhe petition inainfy on fhc report dated 14.3.2005 submitted by fhe Presiding OfiScer before tt holding that ^'according to the saul report, thcre was xio siififeieat tight * arrangement at the place ofooiuitiag and fhe situation at the Polling ^^^^^£^^^^^°fe@g^S^^^^^^^^^^^^^^^^J(^^^;^^ 4 Booth was tcnse, due to whfch, proper scrutiiy of baBot pscpexa were iiot donc aad also tfaat the matps. ofvotea was <mty cme. ^._ (4) Learoed counscl for the pctttioner argucd that fhe order for recount was passed wifhout any proper foundatton beu^ la&i down by the election pedtioner and furthcr fhat fhe samc was not substeatiatcd by the cogent and reliabte, oral and/or documentaiy evidence. He submitted fhatfhe reportofthe PresJdn^Officcritself shows that a lecouat was done by him, fhrough witfaout takmg apptteation fcova. the ofher sidc, and tfae results were declared and furtfaer that the conduct of fhe Presidiag Ofi&ser supporting fhe case of respondent no. 1 by fitlmg such a report appears to be coUusiye. Therefore, the oider inamly b^sed on such report dcseryes to be set aside. His ovcr aB subnrission was tbat the secrecy of baflot is a saciosaact princq)al wliich cannot be li^itty or hastify brokEn imless titiere is genuiae need fer it, recount cannot be oidered without recordmg dcfinite findiug for its necessily according to the Law. In the present case, on the superficial pteaduqp aad evideace, the recount has been ordered by tfae Tribuxial cven wiffaout seeii^ tfaat the election petitioner coiild not estabBsh that she had fited any application for recouat before fhe Presidiag Officer. (5) On the contraiy, learacd counsel for respondent no. 1 ai'gued that thc respondent no.1 had laid down proper foundatfon for recount and had also givcn an appBcation to fhe Presiding OfiBcer, but he deiued to accept the saine and iildmately when fhe applicatun was given to fhe Retumii^ OfiEfcer, he also deuied to take any action on it saying that fhe applicatk»n for Becount was npfy acceptable at the place of oountmg and nothing can be done in *. lis ofBce. HM submission was that in light of the recent law laid down by the Apex Coiirt, now it is not fhe requireinent of law to firsfly fite an applicatton for recount Jbefore the Presiding Ofifcer at the time of coiinting for inaintainmg aa electfon pctitton. When a proper foundatjon for recount has been laid down ia tfae efcction petition, and fhey have been established by ewdence, such fiwotous grounds are not availabte to the writ petitioner and fhe petitfon be disinissed. (6) So far as the reqiuremcnt of fBu^ c& an E^tpUcatbn for recount before the retuming offiteer under Riite 80 of the M.P. Paachayat Nirvachan Rutes (hereinafter referred to as the Rules) is concemed, earlier, fhe Apex Court hcld in the inatter of Smt. Kam. Katl -Vs- Sarol OevL AJR 1997 S.C. 3072 that untess a party first applies to the Retumiag OfiScer for recountmg of votes, it fa not open to fhe Tribziaal or thc Court to direct recotuatixig. It was heM that an appUcation for lecountmg in writing to tfae Retumiiig OfEcer was aa essential pre-conditton for filmg dectfon petition on such grounds. Later on, in the matter of S^emfat -Va- Baba Gan«Uri and otfters. AGR 3003 S.C. 330. fhe Apex Court while dealing almost the saine points considered the eariier decisfa>a of Smf, Rmn Rali's case (supra) aad heU that the ra.tk> laid down in fhe said case is not corrcct Consideru^ Chie piovismns of scction 43, 195 & 122 ofthe Act aiul Rute 80 offhe aforesaid Ruks, the Apcx Coiut held in fhis matter that under Sub-Rule (5) ofRule 80, oncc the result sheet is completed and sigaed no appUcation for recount cmi be entertamed. It was also heM that rule 81 also piovides that after recounting of the votes, fhe Retuming Officer shaU prepare a retura and declare the candidate who has tfac lat^est nxunber of votes to have bceu clected. Uudcr rule 83. a cerdficate is to be gmated to the retumed candidate who has been declared etected. Undcr rute 84, ater the certificate has been grantefl, the BIection OfGteer or fhe Retuming OflBcer can oaty correct the clerical or arithxnetical mistakes. Therefore, after declaration of resutts, the Retummg OflScer has no power eifhcr to recouut or to change the resuUs of thc efectioa. Once the reszdt is dectered, the onty reinedy of an aggrieved pariy is aa elcction petitmn under sectioa 122 of ibe Act 'nierefore, it was heM that it js not correct to hold tfaat m an etecyon petition, after declaiation of fhe resiilt, the Court or Tribunal cannot direct recoiintmg of votes untess the party has appBed for recounting of votes before the Retuming OfGcer. There is no prohibitton ia the Act or iiitder the Riites prohibiting the Oourt or Tribunal to direct the recounting of votes. Evea. ofherwise a pariy naay not know fhat the recountuig is necessaiy tiU after resutt is declared. At this stage, it would not be possibte for him to appfy for recoiinting to the Returumg OfGcer. Hte only Temedy woidd be to file aa efcction petitiou u/s 122 and ia svch cases, fhe Coiurt or Tribunal is bound to consKler the ptea and where (he casc is niade out, it inay direct re(M?unt depending upoa fhe evidence led by the parties, (7) Therefore it is clear that fhere was no requirement of law that for filing an etectfon petition for recouat, an applfcatton for re(»unt naust have been inade before the Retumiag OfiBcer at thc tune of cozmting of votes under Rute 80 of the aforcsaid Rulcs and fhe etection petition wouM be maintainabte and if the tribunal after consalering the plea finds that a caae ofrecount js inade out, it inay weB be directed by fhe Tribunal by passiag an appropriate order dcpenduig upon fhe endence ted by fhe partics. (8) Now the question arises tfaat in what ciTcumstanc«s,fhe ordcr of recoiuit has to be passed and Iiow the justifteation of fhe order can be tested. The Apex Court ia the niatter of Kesm, Svwak Ywa»» -y»ffttssate JBTtunff KIduid and others. AOt 1964 S.C. 1349 hdd fhat an order for inspection naay aot be granted as a mattcr of course: havmg regard to the insisteiice uym the sccrecy of fhe bafflot papers, fhe Court would bc ji^tifed in yanting an order for inspectfon proivided two conditions are fulfilled: (^ that the petition fbr setting aside an dectioa contains an adcquate statemfc-t of thc matBrial facte on which fhe petitfoiier reUes in support of his case; and (i^ the Tribiuial is prima facic satisficd that in order to deddc the dispute and to do comptete justice between the parties iaspectfon of thc baUot papers 1s necessary. The Apex Court also added a rule of caution whife enunciating fhe above law that an order for inspection for baHot papers caniiot be granted to support vague pfcas malc in the petitton not supported by the inatenal facts or fish out evULcnce to support such pteas. To establish a casc so pfcaded aa oider for inspectfon may undoubtedfy, if the interests of justice require, be grantcd. But a xnere aUegatfon that the petitioaer suspects or bcUevcs fhat there has been aa impBoper reception, refusal or rejection ofvotes wffl not be siififcient to support an oxder for mspection. (9) In llie xnatter of J>.P. Sharma. -Vs- Cwnmlsstoner tmO. Jtetaminp 0/flcer. 1984 <Sumri SCC 1S7, tbe Apex Court laid dowa that "It is weU csteblished that in oider to obtam recount of votes a proper foundatioa is reqiured to be laul by the dection petitkiner indicatmg tlie precise material on the basis ofwhfch it could be urged by hiin wifh somc substance that there has been eifher unpaoper reception of invalid votes ia favour of tfae etected candMiate or improper rejection of.valid votes in favour of the dcfeated candMiate or wToiig counting of votes in favour of the elected candjdate which had in reality been cast in forour of fhe defeated candidate." (10) Ia the matter of PJE.JE. Shmmmdecit -Va- K^JS. ISapplttMd JHWtbuIetfn vmA otttcrs. fl9891 1 SdC S26, the Apex Court further held that "the settted position of law is that thc justi&ation for an order for exanunation ofballot papers and recoiint ofvotes is not to be derived froni hinds^ht and by the result offfae recount of votes. On fhe contiaiy, the justification for aa otder of tccount of votes should be proivided by the inaterial plsced by an election petitioner on the ttireshoM before an order for recouat of votes is actuaUy made. The reason for fhis salutaiy rute fa that tfae preservatk>n of the secrecy of fhc baBot is a sacK>saiKrt princq>te wtuch cannot be lightfy or hastity bioken imless there is prima fecie genuiae need for it Tfae r^ht of a defeated caiuMate to assail fhe validity of an election result and seek Tecounting of votes has to be subject to fhc basic priacq>le that fhc aeciwy of tfae baBot is sacrosanct in a deinociacy and hence unfcss thc affeeted candidate is abte to aUcge aad substantiate in aoceptabte mcasiae by means of evMence Ifaat a priaia facie case of a tu^i degree of probabiUly existed for the recoiint of votes being ordered by thc EIection Tribunal ia fhc interest of justfce, a Tribunal or Court should iiot order the recoiiat ofvotes." (11) In the inatter of PJL Pufw -Va- JduuUrf Jlt^nsftefcftar XitdftwgwBa fwd. otheraiaOOS 3 SCC 742. it was held by (he Apex Coiut that thc recount of votes canuot be ordcred in a casnal Bdanner. It cannot be orderai because fhe xnaiya of defeat is me^Be. For seeldng recount, pioper.foimdation is to be laid in the pleadings by setdn^ out luaterial &c<s and later prowiag it by adducing requisite evidaice. The recount caanot be ordered on the ipse Sbdt of the election petitioner. It can be ordeTed in rare cases whcre specjfic altegations are niade and praved so as to do conaptete justice between the parties (SSee para 14). tt was also heM fhat the petitioner seeldng Tecoimt should alfege and picwe that fhere was ixaproper acceptance of votes or improper rejectfon of valul votes. If oiily the Court is satisfied abcmt the trufhftilness of the said alfcgatioas can it order recount of votes. Secrecy of baBot has always bcen coiisidered sacrosanct in a deinociatfc piucess of etectfon and it caiinot be disturbed lightty by bare aBcgatioas of illegaUly and uT^ularily in counting. (Seepara 13) (13) In thc inatter of Slaheiulra nrf -«s- lium i»us»JBatanffer tt»Mt others (aOOS^ 3 SCC 457 the Apex Court again heM that where no foundatfon was laui su^esting that there was impTopcr receptfon of votes in favour of wummg candidate or impioper rejection of votes which weie in favour of the etection petitioxier aor auy objection raised by the election petitmner at the tiine of countmg ofvotes, the High Courtbaa r^htfy refiised the recounting. The Supreme Court ateo heM that in casc fhere is an applkatfoa for recount allegung that tberc are inregularities or iUcgatitics in counting ofvotes, it is for fhe appBcant to establish his case and in absence of any endence, the applfaation for recount caiinot be allowed. (13) Recentty in thc matter of JBaMe» Knyh -<w- Shintter Pai SSIaffh m»*m.aVhw (WtfVTf 1 Slff9 .<M», the Apex Court has aaain 10 reiterated that the recount ofvotes should not ordinarity bc directed as fhere exists limitatiDns in this reganl. In the sakl case, the Supreme Court, referred to fhc decMions rendered in the inatter of V.Chinnasanm v. K.C. Pataniscinaf. f30<W €SCC 341. T«A. Ahanmwd Katoeer Va. AA Azez, 120031 S SCC 6SOt CSuimSrika Praaad TlwSas V. State of Bthar. (2004» 6 SOC 331. and Gurseuiafc Sinoh r. A»tar.Sinah. 12006) 4 SCC 543 and PAJR Shamswtteen's case {SttiMwl. (14( Ifwe examm.e the order of the Tribzmal, in light ofthe above decisions ofthe Apex Court, it wouM appear that for the purposc of l^ing down the foundatfon for recount, the election pctitioner has pkaded vide Para 3 that there was no sufGcient anangeiaent ofli^it at fhe place of dounting aad fhe situation was tense and the PresMiuig Ofi&cer aad other offteers were under fear. It is also pleaded that there was no arrangement ofadeqiiate police force aad niess^es about iacidents of Marpit , snatching of baltot papers at varfous other placcs were coiniag. It has been furfher pfeadcd vfcle para 4 that in the above situatmn, the Presiding Officer hurriedly counted the baUot papers and no deep scrutiny of the ballot papers was made by hua aud most of the baUot papcrs which were rejected in the scrutiny were in favour of fhe electton pctitfoncr. The oial objection wes made by the coiuiting agent but it was not accepted. The objectkfn.s were also inade by one Tulsirain Sahu and 3-4 other persons specificaUy nained as GokaBaa, Ram Khflavan and Rainadhar ete. Vide para 6 it has been pleaded that an application for recoun.t was given by the countmg agent of the efcction petitioner, but it was not entertaiaed and was returaed back to hiTn and it was told by the Presiding OflScer that they shouM fite such ^^ ^^^^^^ ^s^?^ ^^^is^%^???s^^^^^i;^^W£^!te^Ns^1 11 application before Tahsfldar, MungeM. These arc the oiity grounds which were pleadcd by tfae respondent no. 1 in hcr etection petitfon and on these grounds onfy after takiag thc evideace in the above maaner, (he order ofrecountwas passed. (IS) To substantiate these grozuuls, as stated above, only two witaesses were examiDfid by the electioa pcti.tk»ner, out of which PW. l fhe Electton Pfeti.tk>ner^has given a general stateincnt but her electiou agent (P.W.2) has givcn an elaborate statement as he was a peraon through out present He has stated in cxaminntron-in-chief that in the coiuitiag hall, there was a bulb and there was also a Petroinax. He has stated fhat the haU was of ttie sjze of50 x 30 ft. and many peraons gathered there and after the countiag, a prayer for recount was made but it was not accepted and they were advised to give an appltcatioa before the etection officer at Mungeli. In the cross exammatkin, fhis witoess has clearly admitted that process of counting was never afifected ou account of tense situation, He has further stated that fhe Petnimax was kept at a distance of 2-3 fect ixova. the tablc where fhe coiuiting was goiag on. These feictual aspects have been denied by the ofhcr side who have said fhat fhere was suf&cient light in fhe counting rooin and in fact no objections pertaining to countmg ete., was nnade. It has been specificaUy sani by Raju (D.W.2) that neifher any objectk>n was aaade by oountiiig agent at the tiine of counttag nor any written application was presented later on. He has stated that the counting was done twice. Likewise, similar statenient has been giyen by Komal Prasad Satm, (D.W.3) who has slated that at fhe tune ofcoiuiting, no body baa ffled eitherwritten or oral objection fbr the samc. 12 (16) A veiy uuportaat fact of fhe case is that aB fhe iadependent wituesses (specificaUy iiaaied in pafa 4 of the election petitfon) namely Tulsu-am Sahu, Gokaran, Ram Khilavan and Ramadhar were not examined by thc election petitioner ia support of her contention and the Tribunal has passed fhe order mainty on fhe evideuce of Presidiag Ofi&cer who was abo examined as an iudependent witness ia (his case. The Tribunal has coinpletefy lost sight of that part of evulence of Presiding OfBcer wtuch says that on fhe request being made by the election petitioner, thou^i he had not accepted fhe application for recouat, but, he had donc a recoiuit of votes. The Tribunal has also ignored tfaat veiy part in which he has admitted that the diaiy of Presiding OflBcer was wifh hiin which was submitted to fhe Returaung Officer after fhe election and in the said diary, he has never made entries regardmg '"insuffikaent l^hf, "situation of tension" aud ''countiii^ of votes Iiumedfy". He has further stated tfaat after tlie coiuiting, on the next day, he has submitted alt these materiab in MungeU aad tBl fhen thcre was no dispute. Ifwe examine the validily offhese adtnissions niade by the Presiding OfGcer, one ttiing clearfy emei^es that even without accepting an application, fbeTe was a aecount on fhe insteiice of fhe etectmn petitioner and in fhe said recount, fhe resiilt was not varied. The above stateinent of Presiding Offiteer ctearfy supports his report dated 14.3.2005, which was submitfed by him to the Ekction Tribunal in which also it is stated fhat when fhe appUcatfou for recount was being fited, he did not accept fhe application, however, he had hurriedfy inade recount and thercafter when he saw dissatisfaction, he advised fhem to fOe au appttcation 13 <. before the Rctuming Officer at MimgeU. This evidexice of Returaiag Officer is certainty suggestive ofthe fects fhat:- 0 there was no tense situation at the tuae of countmg, (ii) on a request bemg made fix>m respondents side he had made a recountuig, (iii) fhe djaiy of Presiding OflBcer was availabte wifh hiin and, (iv) be had not written anyfhiiig regardiag insufl5cient light, tense atmosphere aad hurriedly dofaig thc work of coiinting in the Presidiag OfScer's diaiy which was availabfc witfa tiim. AU these circuinstaaces are suggestive offhe fact that the Tribunal did not examine the endence of the Presiding Officer in proper perspective and has wrongly held fhat foundation laid &r recount was substantiated and a recoxuit, in fact, was necessaiy in this matter to secure fhe ends ofjustice. The Tnbimal has ignored fhe valuable and relevant evidence on fhe question of neccssity of recounting and the foundation of recounting tried to have been laid down by the etection petitioner was not at all estsbUshed and I hold it accordmgly. (17) In fhe resiilt the order dated 10.3.2006 (Anncxure P-1) passed by fhe Election Tribunal deserves to be quashed aad is accordui^- quashed. So far as the ofher ordcr dated 20.3.2006 (Anne?nuc P- 7/R-1(2) is concemed, whcn thc order of recount itself goes, the said order dated 20.3.2006 does not cany aay meanjng. As laid dowu in fhe case ofP.K.K. Shainsudeen (supr^ aa order ofrecount ofvotes must stand or faU on the nature ofaverments made and the evidence adduced before the ordcr of recount is naadc and not froin fhe results eniaDating fix>m the recount ofvetes. Even ifthe recount 14 disclosed that the etected candidate had not secured highest uiunber ofvotes, fhe result ofthe clectjoit cannot be disturbcd ifthc order of aecount is itseH" invalid. The ^stors such as the clected candidate accepted the correctaess of the recouat, and fhat he had conceded his defeat aud wanted a re-election to be held cannot also constitute justiJfying iiiaterials in law for the initial order of iccount ofvotes made by the Tribunal. (18) Therefore, the net result is that both the orders passed by tfae Tribunal i.e. order dated 10.3.2006 and 20.3.2006 are hereby quashed. The petition is allowed. The fitial result of fhe election would prevait The record of the Tribimal be sent back forthwith. There shaB be no order as to costs. Sd(- SunilK""1arSinha judge Rfto