Sakharam s/o Dagadu Jagtap vs Tukaram s/o Rambhau Raikar and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Bom) 522

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S.S. Dani, J.
Sakharam s/o Dagadu Jagtap ..... Petitioner.
Versus
Tukaram s/o Rambhau Raikar others.... Respondents.
Writ Petition No. 3297 of 1997, decided on 1-10-1997.
Advocates appeared :
S.B. Deshmukh, for petitioner.
V.D. Hon, with K.S. Bhore, for respondent No. 1.
K.B. Chaudhari, A.G.P., for respondent Nos. 3 and 4.
N.B. Suryawanshi, for respondent No. 2.
M.Y. Deshmukh, for respondent No. 5 to 8.

Headnote:Order XXXIX, Rules 1 and 2, Order XLIII, Rule I-Representation of People Act, 1951, Sections 81 and 83-Constitution of India, Article 226-Maintainability of writ jurisdiction-Interlocutory order-Recounting ordered by Distt. Court-Article 226 can not interfere with interlocutory order-Held-Can interfere only if it affects the root of petition Counting affects the election-Hence maintainable.-Coming to the facts involved in the case at hand, it may be noted that even though the present respondent No. 1 Election petitioner challenged the election of the present petitioner on various grounds, a pursis was filed by the present respondent No. 1 on 30.7.1997 waiving and withdrawing the allegations raised in the election petition except that of recounting of votes. It is, therefore, clear that it is only on the ground of recounting of votes that the election petition is to be decided and disposed of. In view of this, the impugned orders of the lower Court directing the recounting of the ballots cannot, therefore, be treated and style as interlocutory one inasmuch, as they go to the root of the election petition. The submissions made on behalf of the respondent No. 1 in respect of maintainability of the writ petition cannot, therefore, be upheld.
       Article 226-Election of Zilla Parishad and Panchayat Samiti-Election petition filed before District Court for recounting of votes-Court ordered recounting of votes through Commissioner-There is neither evidence nor any circumstance sufficient to order recount-Trial Court has passed the impugned order because small margin of votes-Order of trial Court directing recount of ballot paper quashed-Writ petition allowed.
       Article 226-Election to Taluka Panchayat- Trial Court ordered recounting of ballet paper-Order was passed because of small margin of votes between elected and defeated candidates-No evidence nor any circumstance to order recounting-Order of trial Court quashed.
       Article 226-See Code of Civil Procedure Code, 1908, Order XXXIX, Rules 1 and 2, Order XLIII, Rule 1.
       Sections 81 and 83-Distt. Courts order for recounting-If, can he ordered-Ground of challenge-Invalid votes-Margin very low-Held-If, specific reasons are present recounting can he allowed.- The trial Court considered that there is very narrow margin in the votes secured by the present petitioner and the respondent No. 1 and as large number of ballot papers were declared as invalid, it was necessary to order recount. It is, therefore, dear that the trial Court considered this margin of 23 votes between the elected and defeated candidates as a circumstance sufficient to order recount and as stated above, there is no evidence inasmuch as, the persons who filed affidavits for the present respondent No. 1 have not been cross-examined by the present petitioner. The position boils down to this that in the case at hand there is neither evidence nor any circumstance, sufficient to order recount and the trial Court has passed the impugned order only because of small margin of votes between the elected and defeated candidates. In view of this, and applying the principles laid down by the apex Court, as stated above, the impugned order of the trial Court-directing the recount of the ballot papers is, therefore, required to be quashed and cannot be sustained and upheld. The writ petition is, therefore, required to be -allowed and the impugned order of the trial Court will have to be quashed and set aside.
       Sections 81 and 83-See Code of Civil Procedure, 1908, Order XXXIX, Rules 1 and 2, Order XLIII, Rule 1.

JUDGMENT - S.S. DANI, J.:---Loni Vyanknath is a Constituency of Shrigonda Taluka Panchayat Samiti, District Ahmednagar. An election of this constituency took place on 2-3-97. The petitioner, respondent No. 1 and respondents No. 5 to 8 were the constesting candidates. The counting was done on 3-3-1997 by about 7 p.m. and the Returning Officer respondent No. 3 declared the present petitioner as elected by 23 votes. The present respondent No. 1 had applied for recounting of the votes but, it came to be rejected by the respondent No. 3. The present respondent No. 1 then approached the District Court, Ahmednagar and filed Election Petition No. 1 of 1997 challenging the election of the present petitioner. During the pendency of the election petition, the respondent No. 1 filed an application (Exh. 16) for calling the used Voters' list and other election record on 14-3-1997 which came to be granted by order of the District Court on 29-3-1997. The petitioner then took up the matter to this Court in Writ Petition No. 1578/1997 and by an order dated 24-4-1997, this Court directed the lower Court to decide the applications on hearing both the parties. The respondent No. 1 then filed an application (Exh. 37) on 19-4-1997 for recounting of the ballot papers and for that purpose, to appoint Court Commissioner. Both these applications came to be resisted on behalf of the petitioner. The respondent No. 1 then passed a pursis (Exh. 61) waiving all the challenges to the election except that of improper counting of votes. The District Court by an order dated 30-7-1997 allowed both these applications (Exh. 16 and 37) and on holding that it was necessary to recount the ballot papers to decide the dispute directed recounting through Commissioner whose name was to be suggested by both the parties to the Court within 15 days from the said order. It is this order dated 30-7-1997 that is being challenged in the present writ petition.

2. Shri Hon, learned Counsel for the respondent No. 1 initially raised a question of maintainability of this writ petition. It is submitted that admittedly, the writ petition is against the interim orders passed on Exh. 16 and 37 and inasmuch as, the election petition is yet to be decided on its own merits, this Court should not interfere under Article 226 of the Constitution of India, with such interlocutory orders. In support of this submission, Shri Hon, learned Counsel for respondent No. 1 placed reliance on the decisions in (P. Kunju Raman v. Krishna Iyer)1, A.I.R. 1961 Kerala 188 and (C. Achutha Menon v. Election Tribunal, Trichur)2, A.I.R. 1961 Kerala 186 wherein it is ruled that the High Court will not ordinarily interfere in writ petition under Article 226 with an interlocutory order and especially when it is not such as can be said it would go to the root of the election proceedings. In these two cases, admittedly, recount was ordered at the initial stage and there were various challenges in those election petitions and one of the challenges was in respect of counting of the votes. It is on these facts that it has been held in these two cases that interference by the High Court under Article 226 ordinarily should not be there in respect of such interlocutory orders passed in the course of the election proceedings. It may however be noted that in the said rulings, itself, it has been further ruled that interference can be made against the decisions and interlocutory orders if the orders go to the very root of the case, or a reversal of the order is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the case.

Coming to the facts involved in the case at hand, it may be noted that even though the present respondent No. 1 - Election petitioner challenged the election of the present petitioner on various grounds, a pursis (Exh. 61) (Exh. H to the writ petition) was filed by the present respondent No. 1 on 30-7-1997 waiving and withdrawing the allegations raised in the election petit

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