IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 4615 OF 2008 WRIT PETITION NO. 4615 OF 2008 WRIT PETITION NO. 4615 OF 2008 Shri Ramdas Govardhan Chavan and another. ... Petitioner. V/s. The Collector, District Solapur and others. ... Respondents. A.S.Desai for the petitioners. R.M.Patne, AGP for respondent Nos.1, 2 and 30. R.V.Govilkar i/b. S.S.Aradhye for respondent Nos.3 and 22. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 21st August 2008. DATED: 21st August 2008. DATED: 21st August 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the rival parties. . Perused petition. 2. By this petition, the petitioners have invoked writ jurisdiction of this Court under Article 227 of the Constitution of India [see prayer (a)] to challenge the order dated 4th April, 2008 passed in Election Petition No.15/2005 by the Additional Commissioner, Pune whereby the election petition was dismissed holding that the election of returned candidates was legal and valid. The petitioners and respondent Nos.4 to 29 are the members and shareholders of respondent No.3- Sakhar Karkhana duly registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 ("MCS Act" for short). 3. The respondent No.1 is the District Election Officer as contemplated under section 141-C of the MCS Act. The respondent No.2 is the Deputy Collector, who was appointed as a Returning Officer to conduct the election of respondent No.3- Karkhana. 4. The factual matrix reveals that the respondent Nos.1 and 2 declared election of the managing committee of respondent No.3- Karkhana in the month of July, 2005. Respondent No.1 finalised voters list and declared election programme as contemplated under rule 16 of the Maharashtra Co-operative Societies Election of Committee Rules, 1971 ("MCS Rules" for short). The petitioners and respondent Nos.4 to 29 as well as other 43 members filed their nominations to contest elections. There were 41 candidates in fray of election including the petitioners and respondent Nos.4 to 29. 5. The election of respondent No.3- Karkhana was held on 31st July, 2005. Respondent Nos.4 to 29 were declared as elected in the said election. The - 3 - petitioners filed election petition to challenge the election mainly on the ground that the process of counting of votes in the election was not carried out in fair and proper manner and that the Returning Officer and his staff have committed large scale mischief in the process of counting. According to the petitioners, examination of record of counting, mainly the counting sheets reveal the nature of illegalities and irregularities committed by the Returning Officer. That the process of counting was totally disorganised, right from the opening of the ballet boxes to the point of finally counting and recording the valid and invalid votes, which has, ultimately, resulted in disparity between the votes polled and the votes counted. According to the petitioners, the valid votes cast in favour of the petitioners and their panel members were wrongly recorded in favour of the elected respondents. That the Returning Officer has intentionally and deliberately omitted and neglected to mention as to how many ballot papers were rejected. In view of the aforesaid illegalities, according to the petitioners, they were, ultimately, shown to be defeated. - 4 - 6. On being served with the notice of election petition, some of the respondents filed their written statements opposing the election petition and challenged the maintainability of the said petition. 7. The aforesaid election petition was put to evidence after drawing issues as reflected in para-12 of the impugned order. The Election Tribunal framed as many as 13 issues and all of them were held against the petitioners. With the result, election petition came to be dismissed by the impugned order dated 4th April, 2008. 8. Being aggrieved by the aforesaid order, the present petition is filed invoking writ jurisdiction of this Court under Article 227 of the Constitution of India as stated hereinabove. 9. At the outset, it is necessary to place on record that immediately after declaring the results of the election, no application for recount was made by the petitioners to the Returning Officer as required under rule 60(2) of the MCS Rules. For the first time the validity of counting was sought to be challenged - 5 - in the election petition. As a matter of fact, in absence of application for recounting, the election petition on this count was not tenable. 10. Be that as it may, if the entire election petition is perused, it would be clear that no particulars of illegality with material facts are pleaded in the election petition. As matter of fact, whimsical and bald statements do not tantamount to a statement raising the ground for recount. The allegations made are absolutely vague and not precise. They are general and tend to blow suspicious circumstances. In number of cases the Apex Court has observed that it is easy to make allegation to tarnish an image of counting staff with bias and, particularly, in favour of the returned candidate. The courts should be slow and reluctant to deal with the credence of muds sludge against the counting officials by the desperate and defeated candidates. 11. In the case of Bhabhi v. Sheo Govind Bhabhi v. Sheo Govind Bhabhi v. Sheo Govind, AIR 1975 2117, the Apex Court ruled that before the Court can order inspection of ballot papers, in an election petition, the following conditions are imperative: - 6 - (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish - 7 - materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. 12 On the backdrop of the above parameters relating to recount, if one turns to the impugned order, the impugned order has dealt with each and every allegation made by the petitioners and appreciated the evidence brought on record. 13. The Additional Commissioner had rightly relied upon rule 60 of the MCS Rules of which sub-rule (2), specifically, makes it mandatory to a candidate to apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such - 8 - recount. No such application has been made as already indicated. There is no material evidence, either oral or written, brought on record in respect of the election held in respect of respondent Nos.4 to 29 which required the authority to order recount of votes and play with the secrecy of the ballots. 14. Thus, in totality of the circumstances, it leads me to to reach to the conclusion that no case is made out by the petitioners to entertain this petition and interfere with the impugned order. The view taken by the authority below is a reasonable and possible view based on appreciation of evidence on record. Each and every finding can be supported based on evidence. No perversity could be demonstrated by the petitioners flowing from the impugned order. This Court not being a court of appeal is not expected to reappreciate the evidence once again and substitute its own findings. The petition is without any substance and liable to be dismissed. 15. In the result, petition is dismissed in limine with no order as to costs. - 9 - (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)