^^^.^^SSS^^T^r ^ •fl; y l"v B? THS HI<SI OOURT OF JUDia*.TIJRi Writ Petition No<. Petitioner $ BIIASPIR CHmT'v'iESGARn: of 2001 ftpf^i.c.^^r i'S06f Dashoda Bai v7/o &.shok Kuraar Verrr^ agedaaboufc 38 years '^ R/o. village Baili.arsari \. P<0» Sarangpurtela TJeih»& Oistt^ Kawardha^ (C<.G.) V/s /' Resgondents^ l), Shyam Bai ^/b Rarrikadasnx Verma aged aboxzfc 52 years:/ R/o Baiharsari Tah. & Distt'o" K^werdha. ^ •/'^^ ^". -• ^ ^-.^ Colleator^ Kawardha^ Qist-b, K^wardha 3) Sub- Qiv-isional Officer Coppetenfe Offioer ( panchayat? I^wardha , 4) presiding Officer ( panahaxa.t!). Vikas !<hand Bodala, Gram Panchayat Baihar- sari , Tah. & Distt. Kawardha» • 5) Asstfc^ presiding Offic;er ( Election^ Shri Som NByak/ Tahsildar Bodala village pcinchaya-b Blection Baitersari Tah.& Distt. Kaward!-ia:. W.IT PETITION UNDSR XRTICI.S , 226^27,_0^_.^^,CO^STITUTIpN OF IT?3D3%.. ?t^-v^~^s^yff^^s XI-HC—78 W^l"^lf^NT lll^^,^.^^ '^ £\ •g-^ ^IFTf^R, ^'tfl^re', t^TRfy ............43.'I):.N&.,.SQOj (^pt 26.11.2001 Smt.Renu Kochar, leamed Shri H.B.A9arwal, learned Shri Deep Kesharwani. ^Nw^r •wi^f -^ 're^ TJ:W$TC ^ jcounsel for the petitioner. jcounsel for the respondent No.l. learned Panel Lawyer for the s s< respondehts No.2 to 5. Heard. 2. The petitioner wofi elec^ed Sdrpanch of village Baiharsari. The election result was decta|-ed on 1st February, 2000. Being aggrieved, respondent No.l fjted election petition before Sub- Divisional Officer. Retums we^e filed by the writ petitioner as well as the ftetuming Officer. JThe learned Sub-Divisional Officer ordered that recount of vote^ be made. Being a99rieved by the |anuary, 2001, the petitioner filed jCollector, Kawardha. In the said kth 4 said order passed on 30T" ^ revisiori petition before the revision petition, recount ord^red by the S.b.O. was upheld vide order dated 26th Febr-uary; [2001. Hence, this petition under Article 226 of the Constitutibn| of Ihdia. 3. Smt.Renu Kodhar has v4^ strenuously urged before me that in the present facts and circu^istouices of the case the respondent No.l has not made out a cas^ for recount. In other words, it is submifted that it is not acas^ of recount inasmuch as recount has to be made only invwy^w^^wml cwes^^^^~^~'ft^~^BEt~1^'t ^pn -g^ -^?i?iT^i, "@~^?^, f^miy ^.........y.s,..te.,.s.Qo.4,. •^^^i^T^T ballots once counted and thejn packed cxnd sealed should not be opened. The ccise of th^ writ petitioner is that at the time of counting, the respondent Nc|.l had not made any compbint as regards irregularity in the ^ounting. It is however stated hy Smt.Renu Kochar that the r^spqndent No.l made a request for recount after the results wer^ announced and only having lost the election the resppndent No.3j Returning Officer, counting Supreme Court dedsion it is made the contest which was belatedly and infact at the tsrrjie when the Returning Officer w<xs to leave for Bodb. In the re-|urn filed by 1+ie Returning Officer before the S-D.O^ it was stat^d that no rule or procedure has been violated by him in the count^9 of the votes. According to the was done in the presence of the representatives of the caridi|jates. It was further stated ^hat since the votes / ballot paper^ had been sealed it was not possible for him to re-open at suc^i a belated stage inasmuch as no opplication was made during th^ course of counting the votes. 4. Smt.Renu Kochar reli^s on a Supreme Court dedsion reported in 1997 6 SCC 66 w|hich was considered in 1999 1 J.L.J. 200 oaro 90. It is conterlded that in view of the aforesaid |S^40-^ ^^ le9al yb^^s^R that secrecy of ballot should not be breacl^ed and as faras possible the secrecy Gi;PRj—Fs/350—i2/20(®f-fes»lte)t'should be maintajned. It is further contended that in rare cases the Tribunal or the Court is required to order recount that y :-J " XI-HC—78 ^i^r^lfN^ M^^m^^^' -I t^^^-^ ^ :^T^[|^-T^ '^^Fie', 'R^rrey ........GQ.S.KO..<..<s.Q®.4.^200^ ^w^ ^ •^ too on giving satisfactory grour|ds for recounting. In the present case we are to see whether thcj requjreinent prescribed in f <^fthe M.P Panchayat Nirvachan^iyam, 199^0^ ^^^i 5. In the aforesaid Supreme Court Case, which is relied upon by Smt.Renu Kochar, it was furtherf held ttin view of the fact that the rule itself provides that as ^oon as the result of election is announced an appliaation in wrjitin9 must be made at the first instcmce and the fact that no appears to me that in the ccise such applicdtion has been placed before the Court which indicate^ that no such application had been made on 1+ie date of the declarhtion of the r'esult. The allegation of on qsplication having been mc^de wouldbe an after thought". It referred to in the Supreme Court Case, there was no application rriade by the defeated candidate. In the present case, an applicatiol declaration of the result. Iri Supreme Court it appears; to mej such applicatjon the Returnjng ^ the fate of the flpplia^^^Ttl n was infact made but after the /iew of the dbove dedsion of the that there is no infirmity as far as the application of the defeated |Mndickite is concerned, inasmuch as .^-4. such opplicdtion^ei^a^deed rr|ade s^ the declaration of the result. What Smt.fenu K<^char subfflits is that on receipt of |0ffic6r should proc^d to decjde Us was not done. The Returning jQffi^ll^oughJ-_-to_explain howlhe dealt with the said (ap^licgtion when he submitt-ed return before the S.D.0. w^ -g-^ ^I^T^R, -^3^~R:, l^iray ..to..^.Ke..^.OO,4 ^FifeT^i ^ T^^R -^^HOT^T 6. In my opinion, since a |)rotest had been made by filing an applteation before the Returni^g Officer, the respondent No.l had every right to agitate the saic^maner before the Election Tribunal as his application was not cor^sidered favourably by the Returning Officer. In the present casej the S.D.O. after hearing the parties and upon perusal of certain d^cuments submined before him came to the conclusion that a cas^ for recount was made out. Henc^ recount was ordered. The Co|lector exercising Revisional Authorit/ also upheld the finding of the^ S.D.O. It cflmnot be said that if the ballot papers are open and re<|ount is madesuch action would in any way couse prejudice to any o| the partieson merit. It is for the competent Election Tribunal to examine this issue. Since the Election Tribunal is satisfied fhat a case for recount has been madr out <xnd particularly because ^f the fact that respondent No.^ad already submitted his comp|aint to the Returning 0^rjoon after the r^sults,v^rcannour|ced, ^A^ /^£;\ ^^^^"G-^C^C^/-—" -^ ^ _ \ _'. 7. / In my view. there \s ^o-^scope for this Court to interfep^ with the impugned orders p|»ssed by the S.D.O. and also by tiie Collector. 8. In the result this petitfon is dismissed.^ ^ CJ z Sd/- Chief Justice ^>s.A GF. PRj—FS/350—12/2000—50,000.