^..•'; ^:"-^^-s^ y— INTHEHIGHGOURT fe. WRIT PETITlON: / ATBILASPUR,C.G. -S-^-o^oos (Petition under ardcte 226527^ Ta'asKam, Sft? Babula! Kiuim, agedaboot 37 ^y '^":^.. ^ ...... .-._ RESPONDENTS : V) SufeDivisional Of&cer(Revenue aun Competenl Aiithority)iJan}^i, Distl. Jsaggff- Champa C.G. i ^ Dwas Ram, S/&Paras Ram, R/o 'vSagK Kansa, Tahail Naroagaili, Distt. Jaiggji-Chami)a, C.G. \^ ^ Reftumag Of&er <pau h^at) Janpadjipaicli^a^ Jaiqpf (Nawagarii) Dfett. Janj^t-Cllant^a, C.G. 4)/ Piesidifflg ©ffiGer, pQlluigbooth; no.^30, Gram panch^at "Kansa, Janpad paiuAa^at JaiRJgjt (Nawagarh)Distt.Janjga-ChatBpa,C.©. State ofClih^garh, tfUDi^ the GtolIectOT cmn Distrut Eleetion QfBcer, Jattjgii, Distt. Janj@r- Champa, e.<5. ETITION OFINDIA.FORISS1 MANBAMUS/;( DIRECTIOaTOlftEGTIOKS ETC, HIGHCOURTOFCHHATTISGARH.BILASPUR W.P.No.2540 OF 2005 1,: t* ^. Teras Ram. • Vs. Sul(-Divisional OfBcer (Revenue-cuin Coiapetent Autfaorily) aad others ORDER Postfor 20.02.2006 ^--^ su"a Kun.ar sinha Judge ^ HIGH COUCT OF CHHATTISGARH, BILA8PUR W.P.No.2540 OF 2005 Teras Ram Vs. - Sub-Divisional OflBcer (Revenue-cuin-Coiapetent Aufhority) & others Shri Vistuiu Koshta, c<?uasel for the petitioner. Shri Arun Sao, Deputy Govt. Advocate, for the State/ respondeats no. 1,3,4 & 5. Dr. Shailesh Ahuja, counsel for respondeat no.2. Sunil Kumar Sinha. J ORDER (20.2.2006) A short question involyes for consideration in this writ petition as to whether an election petition filed under section 122 of The Panchayat Raj Adtuniyam 1993 (hereiaafter referred to as the Act)^ inainly witk tfae prayer ofrecountuigofvotes.wouldbe maintainable in absence ofa request for recoiuit at the tixae of counting before the returrung officer under Rule 80 of fhe M.P. Paachayat Nuvachan Rules (hereiaafter refeTred to as fbe Rules 1995) ? (2| The brief facts are that fhe petitionerand respondent no.2 contested election for tfae post of Sarpanch of Gram Paachayat ^KansflETDistt. Jaajgtr Champa (C.G) on 15. 1.2005. The total number ofvotes cast in fhe election was 526. The petitioner poUed 250 vdtes wfaereas fhe respondeiit no.2 poBed 252 votes and 24 voteslwere declared iavaUd. The result ofthe election ia. Form-17 undea?Rules 77(2) and80(3) was publiahed ^n 18,1.2005 (Aimexure P-3) arid in of this macuifir the respomlent np.3 was declared dected by a myi^.n twd votes. The petitioner cIiaBeDged'the yalidity offhe electionjlsefore ;fc Sa:3/Ett»U.it »a?aai:Ki US&iWS -2- ^ the specified ofBcer tinder section 122 of fhe Act 1993. He inainly raised fhe groiuid fhat fhe retuming officer had iaformed fhe petitioner that 527 batlot papera have 'been used in fhis election, whereas fhe total nuDiberofbaUot papeTS used comes as 526 as per fhe result sheet, tfaerefore, one ballot paper is missing. He also raised fhe ground that 5 votes which were cast in favour of the 1 petitioner have wrongly been declared invalid and for this an oral request was made by Ttim before fhe retuming oflBcer at fhe time of counting but the saine was rejected aud ultimately, fhe results were / declared. The contention was fhat if the recounting is done, he would be declared elected wifh ttie aid of fhose 5 votes which ha\« been fflegaUy declared invalid by the retuming officer and for ftus reason fhe maia prayer ui fhe election petition was for recountiag of votea. (3) In reply; before fhe Tnbuaal.fhe respondent no.2 deiued fhe contentions of fhe petitioner aad subinitted that fhe coimting was properly done and no case for recoiinting is made out He furfher submitted that since no application for recountmg was given try fhe petitioner, at the tiine of couxiting of votes, fherefore, fhe election petition on these grounds for recountmg caiinot be entertained. (4| The specided oflBcer heard on fhe laaintainability of thff electioa-petition oa thc ground of non-fiting of aa appltcatEpn for •:1'^- , ! , •; »,. ; • ', • recoi.uiting before ftie Returcung Olficer and held ttiat since an application for recounting was not given by fhe petitioner, under rule 80 of ths afiiresaid rules, an election petition makuig a prayer for recountmg was not inaintainable and on this guund oKly he dismissed the election petitian on 31.5.;2005. It is agaiitst this| ordci; the petitioner lias ffled this writ petifien. j 3- (S) The conteation oflearaed counsel for fhe petitioner is that in view of the recent decision rendercd in titie niatter of Sohanlal -Vs- Bdlm. Gtindht cmd others, ASR 2003 S.C.3SO. the election petitioa filed u/s 122 offhe Act, caanot be disnussed oa fhe ground fhat an appUcation under nile 80 ofthe aforcsaid Rules was not filed before the retumiug officer. Pter contra, learued counsel for reapondent no.2 1 subinitted that the aforesaid law would not be applicable ia this case and the specified ofi6cer has rightly rejected fhe elcetion petition at fhe prelumnary stage on the aforesaid ground. (6) I have heard leamed counsel for the parties at leugth and have also perused the records ofthe writ petition. (7) ttwas held by (he Apex Court in the matter of Smfc JBcmi JRatf -Vs- Stuvf DeM, AOt 1997 S.C. 3072 that unless a party firat appUes to the Retumiag Officcr for recounting ofvotes, it is not open to the Tribunal or fhe Court to direct recounting. It was held that au application for recozinting ni writing to the Retuming Officer was an essential pne-conditioa. (8| In the niatter of Sohccnlal -Vs- Bdhu Gcmdht (Supra.j the Apex Court while dealm^ wifh alm.ost fhc saoie points consiidered the earlier decisiori rendered in fhe m.atter of Rmn Rati -Vs- ScifO} Devi fS^rc^ said bsUi that the ratio laid domn in the said ease is not correct. Gonsidering fhe piovisions ofsection 43, 195 & 122 offhe Act and Rule 80 of the a&resaid Rules, the Apex Court Iield in this inatter that under Sub-Rule(5) of Rule 80, oaice the result slueet iSi compteted and sijpied nQ applicajion fiw recount can bejerttertained^ Itwas also held fhat ruleSl also prcwidfis thatafter 31coiuitmgoftti.e; votes, the Retuming Officer shaU prepare a retum and delclare fhfe; i--f ^O) 4- candidate who has the lai^est nuinber of votes to have been electe'd. Under rule 83, a certificate is to be granted to the retum.ed candidatc who has been declared elected. Underrule 84, after the certt&cate has been graated, the election ofiBcer or the Retumiag Officer can onty con-ect the clerical or aritiimetical mistakes. Therefore, after declaration of results, fhe Retunaing Officer has no power either to recoixnt or to change the res'tdts of the electiou. Oace fhe result is declared, the only reinedy ofan a^rieved party is an election petition under section 122 of the Act. Therefore, it was held that it is not ! ' . correct to hold that in an election petitioa, after declaration of the result, fhe Court orTribunal caiuiot direct recoimting ofvotes unless the party has applied for recouatm.g ofvotes. There is no prohibition in fhe Act or under fhe Rules prohibiting the Coiurt or Tribunal to direct the recoimting ofvotes. Even otherwise a party may not know fhat the recouhting is necessaiy tiU after result is declared. At fhis stage, itwould not be possible fiar him to apply for recouating to the Retummg Officer. His only -remedy wpuld be to ffle an election petition u/s 122 and in such a case, the Court or Tnbuiial is bound to consider fhc plea and where fhe case is xnade cyut, it may direct recount dependiag upon the evidence lcd by fhe parties. ( (9) Shri.AhujakamedcounselfinTespondeDtno.Sreferredtofhe decision rendered in the matter of Jlt.ChinnasttWBf -Vs^ K.C. -—'Palemlsmnutiiet-'.others t30<W 6 SCC 341 and argued that after considering nuinerousdecisions uicludjng the decisioa 6n Ram Ratis case (supra), fhe Apex Court laid down fhe priaciples onWUiGh a petition for recount ofvotes would beentertanied. ^SSBSSsa^^-^^^^a^^^. -5'- (10| It is importaut to inention here fhat in fhe said decision, fhe Apex Court has only neferred the decision of Raai Ratfs case m chi'onological refereaee of the cases decided on the question of recouating aud ultunately the Apex Coust held that fhe law operating iu fhe field is ao longer res integraasd the inspection of thc ballot papers caabe orderedwhen in the facts aad circuinstaaGes obtaiam^ ^ ia the case, fhe Tribunal jBnds it necessaiy to so direct in the iaterest of justice. Discovery and inspection of docuineats with whieh the civil court is iavested with pcwer iinder tbs'f Code of Civil Prcx;edurc when trying a suit m.ay be applied, but such aa order would not be ffasted as a matter ofcourse having regard to the insistence upon the secrecy ofthe batlot papers, Such an iaspection may be ordered when two conditions are fulfilled: \? 'y (i) fhat thepetition &>r setting aside jan etection coataias an adeqiiate stafement of the inaterial facts on whicli fhe petitibner relies i& support oftuscase; aud 1 (ii} fhe tribunal is prima facie satisfifid that in oider to decide fhe dispute and to do coiitplcte justice between Ihe parties inspectiou of tfafi baBot papera !s necessaiy. The Apex Court further held that in relation to an election petitioa, fbs provisions of Code ofCivil Procedure would apply and an order 6f sgeounting ofvotes can be passed when the fQUowing ingredients are satisfied. (i) ifthere is a pruna facie case; tU) niaterial facts fherefor aire pteadjed; I; (iii) fhe court shaB. not direct re-co'uintiD.g by-way ofrovmg or fishing ioquuy; aiul! | (iu) such an objection badbeen taiken recou^e to: •:. .'• • . •[ ; : i i:!j c <^. <.,- In fb]s judpiient, fhe decision rendered in the matter of Sohcmlal —Vs- Babu Gan.dhi (supra)ia not cited. In fact, this is not a decision on the pouit of refusal of entertaming aa electioti petition for recounting on the g'ound that an appUcation for recounting was not given at fhe t tune ofcounting ofvotes. pence the law, which holds the field on the poiat is fhe law rendered ia tfae matter of Sohanlal -Vs- Babu GcavSw (supra) that an eleetion petition filed u/s 122 of fhc Act for recouuting of ttie votes caTinot be disxaissed 'pn ttie ground fhat an application uuder rule 80 of the aforesaid Rules was not gjven before fhe Retuming Officer by fhe petitioner. (11) In fhe result, the petition is allowed and the impugned order dated 31.5.2005 passed by the SpeciGed Of&cer is set aside. The matteris remanded back to fh.e Specified Of&cer aad he is directed to dispose of fhe election petition on Inerits, ia accordance with taw, keeping ui miud the obseryations inade by this Court in this order referring to the decision rendered in the laatter of M.Chinnasamy Vs- K.C.Pcdcvdsazn.y (supraf. No order as to costs. Sd/- SunU Kumar Sinha Judge /Raof ! i