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2005(3) JLJ 48
K.K. Lahoti, J.
Ram Rati v. Sub-Divisional Officer, Sidhi and others
Writ Petition No. 3973 of 2004 :
against the order of Sub-Divisional Officer, Sidhi, passed in Election Petition No. 1 of 2003-04;.
Decided on 1.4.2005.
Election of Sarpanch, Gram Panchayat Kukudijhar, was held on 20.12.2002. In the said election, respondent No.2 and petitioner were rivals apart from other six rival candidates. During the course of counting of votes there was manipulation and the valid votes received by respondent No.2 were kept in rejected votes. In the result it is declared that petitioner Ram Rati got 318 votes and respondent No.2 got 317 votes and by a margin of only one vote, petitioner was declared elected Sarpanch for the one post. Respondent No. 2 immediately applied for recounting, but her application was not accepted. Thereafter on the same day at 7.30 p.m., respondent No.2 filed an application for recounting to the Election Officer but he returned it and thereafter the election petition was filed. [Para 2
The respondent No.1, considering the evidence and impressed with the fact that there is difference of only one vote and there are serious allegations in respect of rejection of valid votes, found a case for recounting and directed recounting of votes. Learned counsel for petitioner assailed the aforesaid order on the ground that there was no proper verification of election petition and merely that there was a margin of one vote, will not be a ground for directing recounting of votes. [Paras 3 & 4
Held: On the date of counting, respondent No.2 immediately approached the presiding officer and thereafter to the election officer demanding recounting. There is difference of only one vote between the petitioner and respondent No.2 and when serious allegations are made in respect of rejection of valid votes by treating these as invalid votes, then the presiding officer ought to have considered this objection immediately.
From the perusal of record it appears that in the counting of ballots of polling booth No. 39 there were 11 rejected votes and at the counting of ballots of polling booth No. 31 there were total 12 rejected votes and total rejected votes are 32 in number. The difference between petitioner and respondent No.2 is of only one vote. The contention of petitioner is that her legal votes were rejected and were kept as rejected votes. . In the aforesaid circumstances, considering the evidence on record, if the Sub-Divisional Officer found that recounting is necessary, then the authority has done justice in the case and has rightly directed recounting of votes, which requires no interference of this Court.
AIR 1993 SC 367, 1981 JLJ 163, 1995(2) Vidhi Bhasvar 309 and (2004) 6 SCC 331 discussed. 1998(1) Vidhi Bhasvar 170 relied on. [Paras 9 & 10
(2) Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (M.P.)--R.5--facts of election petition duly verified by affidavit in support thereof -provisions of rule complied with. [Para 7
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1. Petitioner has invoked power of superintendence under Article 227 of the Constitution of India, challenging the validity of order dated 4.10.2004 by Sub-Divisional Officer, Gopadbanas, District Sidhi in Election Petition No. 1/2003-04 (Shivkali v. Dashmanti and others), by which the respondent No. 1 directed recounting of votes for the election held on 20th December, 2002 for the post of Sarpanch, Gram Panchayat Kukudijhar, Gopadbanas, District Sidhi.
2. The facts necessary for the decision of the case• as stated by respondent No.2 Shivkali in the election petition filed before respondent No.1 are that electron of Sarpanch, Gram Panchayat Kukudijhar, was held on 20.12.2002. In the said election, respondent No.2 and petitioner were rivals apart from other six rival candidates. During the course of counting of votes there was manipulation and the valid votes received by respondent No. 2 were kept in rejected votes. In the result it is declared that petitioner Ram Rati got 318 votes and respondent No. 2 got 317 votes and by a margin of only one vote, petitioner was declared elected Sarpanch for the one post. Respondent No. 2 immediately applied for recounting, but her application was not accepted. Thereafter on the same day at 7.30 p.m., respondent No.2 filed an application for recounting to the Election Officer but he returned it and thereafter the election petition was filed. The main allegation in the petition is that valid votes received by respondent No.2 were kept in the rejected votes, which affected the interest of respondent No.2 seriously. On the aforesaid ground, the election petition has been filed with a prayer for recounting and for declaration of result of petitioner as invalid.
3. The petitioner by filing reply contested the election petition and all the allegations of election petition have been denied. The petitioner also raised a contention that the election petition is not verified and is liable to be dismissed. Respondent No. 1 framed issues and recorded evidence of parties. Respondent No. 1 while deciding issue No. 1 found that the election petition has been verified by filing affidavit of respondent No.2, which is proper and on this ground the election petition cannot be rejected. While deciding issue No. 2 in respect of recounting the respondent No.1 considered the evidence of respondent No.2 and her witnesses Ramratan Gupta, Zalim Singh and Abhimanyu Singh, who have stated that the valid votes were kept in invalid (rejected) votes and thereafter the petitioner was declared as returned candidate. The respondent No. 2 filed an application for recounting, but it was rejected by the Presiding Officer. The petitioner examined herself and also witnesses Kailash Prasad and Virendra Kumar, who have stated that there was proper counting of votes and no application for recounting was filed by respondent No.2 to the Presiding Officer. The respondent No.1, considering the evidence and impressed with the fact that there is difference of only one vote and there are serious allegations in respect of rejection of valid votes, found a case for recounting and directed recounting of votes.
4. Learned counsel for petitioner assailed the aforesaid order on the ground that there was no proper verification of election petition and merely that there was a margin of one vote, will not be a ground for directing recounting of votes. Reliance is placed on the apex Court judgment in Satyanarain Dudhani v. Uday Kumar Singh and others [AIR 1993 SC 367], a Division Bench decision of this Court in Gendalal v. Narayan Acharya and others [1981 JLJ 163] and Single Bench decision in Dr. Omprakash Soni v. Ashok Kumar Bhargava and others [1995(2) Vidhi Bhasvar 309 = AIR 1996 MP 43], and contended that the impugned order be quashed.
5. The respondent No.2 supported the order on the ground that there is proper verification of election petition by respondent No.2 by filing affidavit and Rule 3 of M.P. Panchayat (Election Petitions, Corrupt P
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