CE? xN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G.) WRIT mrmxcm No. 135 03' 2001 BETWEEN Laddu Ram aged about 38 years, s/o Baiha Ram, resident Of Village Umla Era Gaon ,Tahsil Keskal,district Eastar P ETI‘I‘ION ER AND u The Collector Béstar( Competent Authority ) at Jagdalpur, District Bastar (C.G.) Presiding O£ficer,rJanpad Panchayat, Polling Booth No.46, Area No.8, Kbrkodi,Tahsil Kawk&x Keskal,District Bastar. Returning Officer, Janpad Panchayat,Keskal, \w District Eastar . Ram Lal Salam s/o Ghadwaram, resident of v&llage Ibanora, Tahsil KeSkal, District Bastar (C.G.). RESPONDENTS WRIT PETITION UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA FOR ISSUmG A WRIT OF CERTIORARI ETC. ” HIGH COURT OF CHHATTISGARH BfLASPUR ‘JLP. NQ. 1365/2001 Ladn Ram V5 Collector, Bastar 8r, Others QRDER Poryt fer: % /0 1 / 2004 :%‘7__m*:# Sdl— § Fakhruddin Judge IGH COURTO ATISGARH, BILASPU .P. .600 I ad a ollector, Basta,&' Othe hIiVishnu Koshta, counsel for the Petition Sri‘f Gautam r Bhaduri, Dy. Advocate General f asponcrits No. 1 to 3. Si Gurudev Sharan,‘ counsel for the respondent N 95 a FakhrIiddin J By tls wnt pctlhon filed under Artlclc 27 of tho _ . onsututlon of Indla petmoner ls challenmg the order date 1 7 200 Annexure P6) assed responen NO l/Collector whereby 1t was directed recountmg of t (2} Briefly stated the facts are that the petitioner an responent No.4 contese the election of Janapad Pancha'yat Constitueney, No' 8- ’Korkoti Tahsil Keshkal (Basteu )Whic'h'kw hel on 1 2 2000 At the tune of countmg respondent No ra1sed oJectlon that certam anthmetlcal errors wer ommltted by e Pres1d1ng Officer in fllhng up chart of boot ereafter the Returning Officer sent the entire paper t ‘ Pursuant to the said order, respondent No 1 declai H F ¢§IHT R I W No135/21 Ln Rm V Vs C f rs, ‘ S er, h or rd hr o.74. £ E ' § ..... h 2 V V ‘ ‘ C g d 7 1 ( / p by dt he d d; td as 4 b e c th h ‘ Th s I e ‘ result on 22.2.2001 and issued the certificate/to the petitioner x as an elected candidate. Respondent No.4 being aggiieved by (the counting process filed an election petitibn under the provisions of Section 122 of the Panchéyat Raj Adhiniyam before respondent No. l/Collector on the gound that at the time of counting respondent No.2-Presiding Officer committed mistake in filling up the chart of booth No.8‘and inspite of the objection the Returning Officer did not correct the said mistake and prayed for recounting of booth No.8. The Tribunal issued the notice. The petitioner submitted reply ‘ thereto and denied the allegations of respondent No.4. The petitioner submitted before the Tribunal that no mistake has been committed by the Presiding Officer as such no recounting is: necessary. Respondent No.2-the Presiding b Officer also tilted his reply and submitted that at the time of counting, no mistake has been committed hy him and also stated that at the time of counting neither respondent No.4 nor his representatives raised any objection. Under these circumstances, no question arises for recounting the votes. The learned Tribunal/respondent No. 1 after hearing parties allowed the petition holding that as per facts and circumstances and material available on record that in form No.8 part-1 figures were wrongly shown in the counting slip and directed respondent No.3 to recount the votes of‘polling No.46, vide order dated 17.7.2001. Being aggrieved by this order petitioner has preferred this petition. 15 i a A M- NH x (3) Return has been filed on behalf of respondent No.4 in which Lit has been stated that he made an objection to respondent No.3/Returningv0fficer about certain mistakes committed by respondent No.2LPresiding Officer in counting a \the votes and respondent No.3? sent Ithe matter for nsiddration to respondent No.1 (Collector). It is also, ‘ w i submitted that at the same time, he also filed an election petition, which was ulLimaLely rejected by order dated 21. l 1.2000 passed by respondent no.1 (Annexm‘e P/ 1) on the ground that no result was declared officially, therefore, the petition is not maintainable and respondent No.3 declared the result in favour of the petitioner and as such the petitioner was declared elected. It is further submitted that efter declaration of the results respondent No.4 again filed election petition before the competent authority—respondent No.1 (Annexure P— l in which after giving reasonable opportunity of hearing to both parties and having gone through the entire record, respondent No.1 passed an order dated 17.7.2001(Annexure P—é) directing recounting. Respondent No. l found that no application was filed by respondent No.4 though an opportunity ol‘ raising objection by filing ‘ application was available to him and further no application for recounting the votes has been filed on that date i.e. 1.2.2006 when the counting of votes has been completed. The learned Collector herein respondent no. l While drawing above findings, prima faeie found some arithmetical errors from the facts floating on the surface ofthe record and passed the impugned order directing recounting of votes. (4) Shri Vishnu Koshta, counsel for the petitioner contended that once the result is declared no application for re~eount can be entertained and submitted that an application in writing to the Returning Officer is essential condition precedent for re- counting of votes and il‘ it is not done then the Tiibunal or the Court is not empowered to direct recounting. He further submitted that the order directing re—count, Without there being an application, is not proper.‘ In support of his ntention he placed reliance on a decision of the Apex Court x x, o in the case of Ram Rafi vs. Saroj Devi, reported m (1997) 6 SOC 66 (AIR 1997 SC 3072) and concluded the arguments. (5) The decision in Ram Rat! ¥s. Saraj Devi (supra} mued upon by counsel for the petitioner has been finally overruled by the Hon’ble Supreme Court in case. of Sohanlal —V5— Babu Gaedhi and othefe, [AIR [2003) 1 SCC 108). The Apex Court While discussing the case of Ram Rati (supra) held that there is 1m prohibiticn in the Act 01‘ under the Rules prohibiting the Court or Tribunal to direct receunting of votes. Paragraphs 8, 9, 10 and 11, 12, 13, & 14 of the said judgment are relevant and queted herein below: 3V In order to consider the correctness of the ratio laid down in Ram Rati Case it is necessary to see the provisions of the MP‘ Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (hereinafter called “the said Act”}. Section 43 of the Said Act empowere the State Government in consultation with the State Election Commission to make rules for preparation of electoral rolls and conduct of all elections. Section 95 further empowers the State Government to make rules for carrying out the purposes of the said Act. Section 122 provides that an election can be called in question only by a petition presented in case of Gram Panchayat, to the Sub—Divisional Officer. 9. Rule 80 reads as follows: “80. Recount of votes.- (1) After an announcement has been made by the Retumz’ng O]§‘i'cer or such other officer authorised by him of the total number of votes polled by each candidate under sub-rule (2) of Rule 7?, a candidate or, in his abseoce, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him for a recount of all or any of the votes already counted: stating the grounds on which he demaods such recoum, ' {2) On such an application being made, the by him shall decide the matter and may allow the V application in whole or in part or may reject it in unreasonable, \ \toto if it appears to him to be frivolous or \\ Returning Officer or such other officer authorised \ (‘\. (3) Every decision of the Returning Officer or such ether officer authorised by him, under sub-rule (2} shall be in writing and contain the reasons therefor: (4.) If the Retuming O}?icer oy such ether ofja’cer authorised by him} decides under sub-rule (2) to a££0w {m application either in whole or in part: he shall- (a) cozmt ihe ballot papers again in accordance with his decision; (b) amend the result sheet to the exfent necesswy after such recount; and (c) announce the amendment so made by him (5} After the total number of votes poiled by each candidate has been announced under sub-rule (2) or Ruie 77 of sub-rate (4) the Returning Ojiicer or such other o}?°tcer authorised by him shall complete and sign the resuZt sheet and no apptication for a recount shatt be entertained thereafter: Provided that no step under this sub-ruie shall be token on the completion 0f the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (J). {é} The counted ballot papers shall be bundled and kept in the manner mentioned in sub-rule (3) of Rule 77, ' (7) Result sheets in Forms 16; I7, 18 and 19for Punch, Saipanch, member of Janpad Panchayat and member of Zila Panchayat respectively, prepared by such other officers as are authorised by the Returning Officer, shall be eubmitted by them; in separate envelopes to the Returning Officer for compilation and tabulation of votes polled by each candidate. (8) The Returning Ojij‘icer on receipt of result sheets under sub-rule (7) shall enter or cause to be entered the total number of votes polled by each candidate contesting for a seat of Sarpanch, member Janpad Panchayat or member of Zila Panchayat at each polling station of the constituency concerned in subsequent part orparts of Forms 1 i7, 18 and 19 respectively and complete and sign the result sheet. " ‘ 10. Thus under sub—rule (5) once the result sheet is completed and signed, 110 application for Ic—count c311 be entertained. \ Rule 8 1 also pravides that after the counting of the votCS, the Rcturmng Offlccr shall prepare a return and (ieciare the candkiate who has Lhc largest number of votes to have been elected. Under Rule 83, a certificate is to be granted to the returned candidate who has been declared elected. Under Rule 84, after the certificate has been granted, the election officer or the Returning Officer can only correct clerical 0r arithmetical mistakes. Thus after declaration of reeulta, the Returning Oilieer has no power either to direct rte—count or t0 change the reeulte 0f the election. Once the result is declared, the enly remedy of an aggrieved party is an election petition under Section 122. XXXXXXXXX In View of Section 122 and the Rules, we are unable to agree with the ratio laid down in Ram Ratl case. It is not correct to hold that, in an election petition, after the declaration of the result, the court or trihnnai cannot direct. recounting of votes unless the party has first applied in writing for rte—counting of vetes. There is ne prohibition in the Act or under the Rules prohibiting the court or tribunal to direct a recounting of the votes. Even otherwise, a partv mav not know that the re-counting is necessary till after the result is declared. At this stage, it would not be possible for him to apply for re— counting to the Returning Officer. His only remedv would be to tile an election petition under Section 122V in such a case, the court or the tribunal is bound to consider the plea and where a case is made out, it maV direct re—count depending upon the evidence led bV the parties. (Emphasis supplied) l4. \ ‘\ (6) In View of the decision of the Supreme Court in case of Sohan Lal (supra) there is no prohibition in the Act or under the rules prohibiting the Court or Tribunal to direct. a recounting of votes. Even otherwise a party may not know \ that recounting is nece$sary till after the regult is declared as in L116 prasent case, the returning offlcar has dcalt with the matter in great detail and has given a tabilmtion in dcmcmstratc that thc case for rccount haS been madc out. 111 this commction, it is p6rtinent to réproduw thé r€1€vant portion of the impugned order dated 17.7.2001, which is quoted below: ”rrogomgmfaqmié‘iw(§e%ma%m W)a%amm—12a%mw-H ewmefe WWWEW‘rwmmmWWWW 86 271 297 62 359 wWW$W357+62~419€rW% imw WEWM$W~Ym¢iW~€YwW Wa§W§&WW%%WW—m1§ ‘ W359wmn—a%,419a@lma@amm% faw’hWWWWW—4s13ie6wmwug wwW—wa,m—w®€%mmwhi€%%t $%e$zfiv?rmmmqi?f%mmm-m¢m—w§6% mn$$W2713§faiéi l W%%WH§WWW%» L—Waom$%w%aa€%g%aaa§%q(z11$ @mm271W) m 'x lL—Ww‘f&moz$wmW6za%h a5? 11%. xeow$W£f§§¥H€hWWW WW$W§§H§2H§IW$mW W$WWH§%W$®W$ WW$€W~46$WW§§W@W 359w$Imggmmm§V {'7} From perusal of the impugned order, it is clear that an error was committed by respondent No.2. 1n foym N0. 18 part— ~1 total votes cast is written as 271. Respondent No.4 submitted that by showing the flgure ’27 1 inStead of 211, additional 60 vows in favour of the petitioner was entered [written by mismke or by error. it is further submittexi that total gumber of rejected votes shown as 62 metead of 2. \ This is clear from the order passed by the Tribunal. Under \these circumstances recounting has been properly ordered. \ (8} Oounsel for the parties durmg te course of argument h agrocd that the rocounting may be done by tho Tribunal. In this commmiou a dacisn 01‘ this Court 1'6;)01‘t6d in cass of io Asim 5aha vs. Cazzecwr, Kariké'r a6 whers 20w CGLJ 44' has boon refox‘rod. Para 9 of tho said judgment is relevant and quoted below: “9. So far as the operative portion of the order passe by the lower Tbunal is concerned, the same dcservee to b modified. It is not expected of a Tribunal that it would delegate its funetions. When a plea is accepted bV the election Tribunal regarding reection or accentance of certain votes, then it is the paramount duty rather pious duty of the Tribunal to itsel count and recount the votes. The lower Tribunal unfortunately lo sight of the fact that it was asking the same authority to recount which earlier committe the illegalities. The power to recount cannot be delegated to third partice as it i5 the duty of the Tribunal, which it must dischar in accordance with the law.” 9) in View of the above, recounting Will be one by the Tribunal and proper Videogrphy arrangemente, if required; may be made. ('10) Accordingly, this petition stands disposed of. Counsel fee as per the scale, if certified. Sdl- Fakhruddin Judge dyer/2004 d ri e j f st d ge ( d a