^\' ^-"M .••''"' ^r-^- *--';\56 >^^y '0 ^•'E"..,-^",.-,^x 'v'w'" y-'" t'IN THE HIGH COURT OF JUDICATURE ATBILASPUR CHHATTISGARH WRIT PETITION. N0^2-£^OF2005 BETWEEN PrahaJad S/o Charan Singh, by caste Gond, aged about 62 years, resident of Village Lailunga, Tahsil and Police Station Lailunga District Raigarh (CG). PETITIONER AND i 1. The State of Chhattisgarh, Through the Specified Officer/ Sub Divisional Officer, Gharghoda District Raigarh (CG). Suresh Kumar S/o Shanker Lal, by caste Bhil, resident of Lailunga , Tahsil and Police Station Lailunga District Raigarh (CG). Mahesh S/o Chaitu Ram by caste Oraon, resident ofLailunga , Tahsil and Police Station Lailunga District Raigarh (CG). Anup Sai S/o Nanhi Ram, by caste Kanwar, resident of Lailunga, Tahsil and Police Station Lailynga District Raigarh (CG). RESPONDENTS WRIT PETITION UNDER ARTICLE 226/227 OFLCONSTITUTION OF INDIA ^^i^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.No.S264of2005 Petitioner : Prahalad S/o Charan Singh VERSUS Respondents : State of CG and others. Shri Awadh Tripathi learned counsel for the petitioner. Mr. Sandeep Dubey GA for the respondent No-1/state. Mr. B.D. Guru leamed counsel for respondent No.2. ORDER (Passed on 30 -11 -2005) Dhirendra Mishra, J This petition has been flled by the petittoner under Artictes 226/227 of the Constitution of India against the order dated 5.10.2005 passed by Sub Divistonal Officer/Specified OfRcer (Panchayat) Gharghoda. 2. The case of the petitioner is that he is the elected Sarpanch of Gram Panchayat Lailunga. Respondent No.2 who was also a candidate for the Panchayat election, lost the election by one vote and thus had preferred an election petition under section 122 of the Panchayat Raj Adhiniyam on the ground that on the date of counting the associates of the petitioner had illegally tried to enter in Polling Booth No. 47, fought wfth the Police Officers posted in the said booth and thereby created an atmosphere of terror as a resutt of which the ballet papers were brought by the concerned Presiding Officer to the Janpad Panchayat Laitunga in the absence of the election agents. Thereupon, respondent No.2 complained to the Election Officer, Lailunga and requested for recount of votes. However, prayer of respondent No.2 regarding recount was denied and the petitioner was declared elected by one vote. tt is also aUeged that that in potling booth No. 49 total votes of 423:were cast but they were informed that number of votes cast in ttiat booth was 425. It was also aileged that there was some discrepancy in the number of the rejected votes. The Specified Officer by the impugned order dated 5.10.2005 allowed the election petition of respondent No.2 recording a finding that 9-- imr" the allegation of the respondent No.2 that there was disturbance at the time of counting in polling booth No. 47 and there was no arrangement for adequate light at that time, is very much established by the statements of the witnesses and as a result of which counting could not be held on the appointed day and thus for all these reasons the recount of votes had been ordered. 3. Learned counsel Tor the petitioner has challenged the above order on the ground that the Specified Officer ought to have rejected the election petition as the same was not in conformity with the rules 3, 11 and 12 of the (Election Petition, Cormpt Practices and disqualification for Membership) Rules, 1995 (hereinafter referred to as 'Rules of 1995'). N is further alleged that respondent No.2 did not annex as many attested copies of the petition as there are respondents and the Tribunal was required to follow the procedure prescribed in the Code of Civil Procedure as per rule 11 of the Rules of 1995 and accordingly ought to have framed the issues before proceeding to record evidence. tt is ftirther argued that as perRule 80 (1), Rute 76 (2) and Rule 77 of the M.P. Panchayat Nirvachan Niyam, 1995, the election petitioner or tris agent is required to file an application in writing to the Returning Officer or any authorized officer for recount stating the grounds on which demand for recount is made. However, no such document was filed along with the election petition and accordingly the tribunal has committed an illegality by permitting re-count sotely on the ground that the petitioner was elected by a slender margin of one vote. tt is argued that the slender margin cannot be a ground for re-count. Learned counsel for the petitioner relied on the decisions of the M.P. High Court in the matter of Amol Sinah Vs. Hamir Sinah reported in 1996 (11 IVIPWN 122. in the matter of Lakhan Lal Patel Vs. State of M.P. and others report«lin 2002 (3t MPLJ. 41 and in the matter of Mohan Sinah Vs. Satendra Sinah and others reported in 2003 (DMPLJ 234. 4. On tfte other hand learned counsel for the respondents opposing the petition submits that all the grounds raised by the petitioner were never raised in reply to the election petition or at the time of argument and / ^ the same was raised for the first time on 25.7.2005 in the written argument. tt is argued that rule 11 of the Rules of 1991 is not mandatory and in appropriate cases if the faets and circumstances of the case warrant, re-count may be ordered. In support of the submission, leamed counsel for the respondents relies on the judgment of the Supreme Court in the matter of T.A. Ahammed Kabeer Vs. A.A. Azeez and others reported in 2003 (51 SCC 650 and in the matter of Sohanlal Vs. Babu Gandhi and others reported in AIR 2003 SC 320. 5. According to learned counsel for the petitioner Rules of 1995 have been held to be mandatory which says that attested copies of the documents duly signed by the election petitioner have to be supplied to the counset for the respondents and since according to the leamed counsel for the petitioner, the respondent No.2 in this case has not supplied the same, the tribunal ought to have dismissed the election petition at the outeet. 6. Relying on the judgment in the matter of Mohan Singh (supra) leamed counsel for the petitioner submits that as per rule 80 of Panchayat Nirvachan Niyam, 1995 in the absence of an appticaUon beingsubmitted to the Returning OfBcer for recounting immediately after announcing the result, the recount of votes cannot be ordered. 7. On the other hand leamed counsel for the respondents relying on the judgment of the Supreme Court in the matter of Sohanlal Vs. Babu Gandhi and others (supra) submits that the Court is bound to consider the prayer for recount in the election petition under section 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam and where case is made out, the Tribunal may direct recount depending upon the evidence led by the parties. Further relying on the decision of the Supreme Court in the matter of T.A-Ahammed Kabeer Vs. A.A. Azeez and others (Supra) learned counsel for the respondents submits that in an election petition mere question to be decided is correct counting of votes without entering into an adjudication as to the propriety, impropriety or vatidity of acceptance, rejection or reception of any vote. He further submits that the rule of practice should not be unduly stretched; for the purity of the ^ l'IIF eiection process needs to be preserved unpolluted so as to achieve ttie predominant goal of democracy that only he should represent the constituency who has been chosen by the majority ofthe electors. 8. have heard learned counsel for the parties. 9. So far as the objection of the petitioner that non compliance of Rule 3 of 1995 is concemed, there is no obj'ection from the side ofthe petitioner either in his reply or in the subsequent proceedings and the same was raised for the first time in the written argumente submitted by him, and therefore 1 am of the opinion that this objection cannot be entertained at this stage. 10. So far as the question of non framing of issues is concemed, the petitioner has not been able to show as to what prejudice has been caused to the petitioner on account of non framing of issues. Thus the second question can also not be sustained. 11. Learned Tribunal after going through the pleadings of the respective parties and on the basis of oral evidence on record has arrived at the conclusion that on the date of polling and counting there was disruption in the election process in booth No. 47 which affected the counting. Leamed Tribunal further recorded a finding that the counting was conducted under inadequate light arrangement and it is only because of these disturbances the petitioner has won ie election by one vote. Thus keeping in view all these lacunas the recount has been ordered by the Tribunal. 12. Thus in view of the aforesaid discussion and keeping in view the judgment of the Supreme Court cited above, 1 am of the opinion that the instant petition is devoid of substance. The same is accordingty dismissed. Sd/- Dhu^endraMishra Judge