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2007(3) JLJ 301
Dipak Misra and Smt. S.R. Waghmare, JJ.
Sampat Devi (Smt.) v. Sub-Divisional Officer-cum-Prescribed
Authority, Niwadi and others
Writ Appeal No.677 of 2006 (Jabalpur) : against the order of
Single Bench passed in Writ Petition No.2840 of 2006;
Decided on 19.7.2007.
Held: There can be no shadow of doubt, the Returning Officer should decide the matter and may allow the application, if circumstances so warrant. But, an eloquent and fertile one, non-entertaining of such an application can never be the sole and the singular factor for issue of a direction for recount of votes. The Election Tribunal is required to apply its own mind to the pleadings and the evidence brought on record to satisfy that there is requisite and necessity for recount of votes. As the factual position would show, the Election Tribunal has answered the Issue No.1 in favour of the returned candidate. We have reproduced the reasonings ascribed by the Tribunal for issue of a direction for recount of votes. As is evincible, the Tribunal has been totally guided by the non-compliance of the Rules and the small margin of votes. Further, it has taken recourse to the conception of doing an effective and complete justice. The said grounds, in our considered opinion, are absolutely not germane or cogent for directing recount of votes. As has been held by the apex Court, the small margin of votes cannot be the sole ground for directing recounting. If we permit ourselves to say so, no evidence was adduced warranting a recount and infact, the Tribunal has failed to appreciate the factual scenario in proper perspective and directed for recount of votes. (2004)6 SCC 331 followed. [Para 15
(2) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- election petition -- person who has been chosen by majority should represent the constituency -- order of recount must stand or fall on nature of averments and evidence -- it cannot stand from results of recount.AIR 1989 SC 640 followed. [Para 13
(3) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- election petition -- recount can be ordered very rarely on specific allegation in pleadings -- petitioners has to prove improper acceptance of votes, etc. -- secrecy of ballot is always considered sacrosanct. (2000)8 SCC 355 followed. [Para 13A
(4) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- election petition -- order of recount of votes -- can be passed if prima facie case is made out -- if there is pleading of material facts of irregularities in counting, etc. (2004)6 SCC 331 followed. [Para 14
(5) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- election petition -- recount ordered -- Tribunal is under obligation to count the votes itself -- cannot hand over such duty to any committee. 2001(1) CWN 10 relied on. [Para 16
(6) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- merely because a recount has been directed -- it cannot be held to be sacrosanct if evidence is at variance with pleadings. AIR 2004 SC 541 and AIR 1966 SC 773 followed. (2003)5 SCC 650 referred to. [Para 17
(7) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- election petition -- recount of votes -- prima facie case must be made out for scrutiny and recounting -- errors should materially affect election. 1995 Supp.(2) SCC 101 followed. [Para 17
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && e-iz- iapk;r fuokZpu fu;e] 1955 && fu- 80¼2½ rFkk 80¼3½ && fuokZpu vthZ && fjVfuZax vkfQlj }kjk iquxZ.kuk ds vkosnu ij fopkj ugha fd;k tkuk && iquxZ.kuk ds fy, izkFkZuk eatwj fd, tkus ds fy, ,dek= vkSj ,dy vk/kkj ugha gks ldrk && rc vkSj Hkh tc voS/k ernku dk fook|d udkjk x;k gS &*& erksa esa de varj Hkh dksbZ vk/kkj ugha gSA
vfHkfu/kkZfjr % fjVfuZax vkfQlj dks ekeyk fofuf‘pr djuk pkfg, vkSj ;fn ifjfLFkfr;ksa esa okaNuh; gS rc vkosnu eatwj dj ldrk gS] blesa fdafpr~ Hkh lansg ugha gSA fdarq okfXerkiw.kZ vkSj moZj] ,slk vkosnu xzg.k ugha fd;k tkuk] erksa dh iquxZ.kuk dj funs‘k tkjh djus ds fy, ,dek= vkSj ,dy dkjd ugha gks ldrkA fuokZpu vf/kdj.k }kjk ;g lek/kku djus ds fy, fd erksa dh iquxZ.kuk vko‘;d vkSj visf{kr gS] vfHkopuksa vkSj vfHkys[kxr lk{; ij Lo;a dk euksfu;ksx visf{kr gSA rkfFrd vofLFkfr ds tSlk nf‘kZr gksxk] fuokZpu vf/kdj.k us fook|d Ø- 1 fuokZfpr vH;FkhZ ds i{k esa fofuf‘pr fd;k gSA erksa dh iquxZ.kuk ds fy, funs‘k tkjh djus ds fy, vf/kdj.k }kjk fn, x, rdZ geus mn~/k`r fd, gSaA tSlk izdV gS] vf/kdj.k iw.kZr% fu;eksa ds vuuqikyu vkSj erksa ds de varj ij ls vxzlj gqvk gSA blds vfrfjDr mlus izHkkoh vkSj iw.kZ U;k; iznku djus dh /kkj.kk dk vkJ; fy;k gSA gekjh lqfopkfjr jk; esa] mDr vk/kkj erksa dh iquxZ.kuk funsf‘kr fd, tkus ds fy, lqfuf‘pr :i ls lqlaxr vkSj rdZiw.kZ ugha gSA loksZPp U;k;ky; }kjk ;Fkk vfHkfu/kkZfjr] erksa dk de varj iquxZ.kuk funsf‘kr fd, tkus ds fy, ,dek= vk/kkj ugha gks ldrkA ;fn ge Lo;a dks oSlk dguk vuqKkr djsa] iquxZ.kuk okaNuh; gksus ds fy, dksbZ lk{; izLrqr ugha fd;k x;k vkSj okLro esa] leqfpr ifjizs{; esa rkfF;d ifj–‘; dk ewY;kadu djus esa vf/kdj.k foQy jgk gS vkSj erksa dh iquxZ.kuk ds fy, funs‘k fn;k gSA ¼2004½6 ,l lh lh 331 vuqlfjrA ¿ iSjk 15À
¼2½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && fuokZpu vthZ && ml O;fDr dks ftldk p;u cgqer ls fd;k x;k gS] fuokZpu {ks= dk izfrfuf/kRo djuk pkfg, && iquxZ.kuk dk vkns‘k] izdFkuksa dhs iz—fr vkSj lk{; ij ls ekU; vFkok vekU; gksxk && og iquxZ.kuk ds ifj.kkeksa ds ekU; ugha gks ldrkA ,l lh lh 355 vuqlfjrA ¿ iSjk 13À
¼3½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && fuokZpu vthZ && iquxZ.kuk] vfHkopuksa esa fofufnZ"V vfHkdFkuksa ij ls cgqr fojy :i ls vknsf‘kr dh tk ldrh gS && vthZnkj }kjk erksa dk vuqfpr Lohdj.k vkfn lkfcr fd;k tkuk gksrk gS && eri= dh xksiuh;rk lnSo vuqYya?kuh; ekuh tkrh gSA ¼2000½8 ,l lh lh 355 vuqlfjrA ¿ iSjk 13dÀ
¼4½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && fuokZpu vthZ && erksa dh iquxZ.kuk dk vkns‘k && ikfjr fd;k tk ldrk gS ;fn ekeyk izFke–"V~;k fl) gksrk gS && ;fn x.kuk vkfn esa vfu;ferrk ds rkfRod rF;ksa dk vfHkopu gSA ¼2004½6 ,l lh lh 331 vuqlfjrA ¿ iSjk 14À
¼5½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && fuokZpu vthZ && iquxZ.kuk vknsf‘kr && ikfjr fd;k tk ldrk gS ;fn ekeyk drZO;kc) gS && ,slk drZO; fdlh lfefr dks ugha lkSik tk ldrkA 2001 lh ,u MCY;w 10 voyafcrA ¿ iSjk 16À
¼6½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && ek= bl dkj.k fd iquxZ.kuk dk funs‘k ns fn;k x;k gS && funs‘k vuuqYya?kuh; vfHkfu/kkZfjr ugha fd;k tk ldrk] ;fn lk{;] vfHkopuksa ls fHkUu gSA , vkb vkj 2004 ,l lh 541 rFkk , vkb vkj 1966 ,l lh 773 vuqlfjrA ¼2003½5 ,l lh lh 650 fufnZ"VA ¿ iSjk 17À
¼7½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1933 ¼e-iz-½ && /kkjk 122 && fuokZpu vthZ && erksa dh iquxZ.kuk && laoh{kk vkSj iquxZ.kuk ds fy, ekeyk izFke–"V~;k fl) gksuk pkfg, && xyfr;ksa ls fuokZpu rkfRod :i ls izHkkfor gksuk pkfg,A 1995 lIyh-¼2½ ,l lh lh 101 vuqlfjrA ¿ iSjk 17À
Misra, J. -- 1. The acceptability and faultlessness of the order dated 4.9.2006 passed by the learned Single Judge in WP No.2840/2006 is called in question in this intra Court appeal preferred under section 2 of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005.
2. The appellant-petitioner (hereinafter referred to as "the appellant") invoked the jurisdiction under Article 226 of the Constitution of India questioning the soundness of the order dated 14.2.2006 passed by the Sub-Divisional Officer-cum-Prescribed Authority, Niwadi, District Tikamgarh in Election Petition No.11/2-89/04-05 whereby the Election Tribunal allowed the prayer of the election petitioner for the purpose of recount of votes and the order which entailed in declaration of the election petitioner as the returned candidate.
3. The facts which are imperative to be exposited are that the appellant was elected as the Sarpanch of the Gram Panchayat, Makara. The respondent No.2 preferred an election petition under section 122 of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short "the 1993 Act") before the SDO-cum-Prescribed Authority, Niwadi. She was elected by defeating the second respondent by a margin of six votes. In the election petition it was averred that certain irregularities were committed in counting of votes in respect of Booth No.130. In the election petition in paragraphs 3 to 6 certain allegations were made about the process of counting of votes. The English translation of the said assertions read as under:
"3. At the time of counting of ballot papers of polling Booth No.130 of Village Panchayat, Makara, the counting officer had disclosed that the petitioner had got 98 votes while at the time of counting of the votes of all the polling centres of the Village Panchayat only 96 votes of the said polling centre was added which is a gross irregularity and illegality and prays for countermanding of the election.
4. The counting officer has committed illegality and partiality openly and in a planned manner during the counting of votes in order to get Smt. Sampat Devi (respondent No.1) elected. One of the counting officer has declared that the petitioner has been defeated by a margin of 8 votes. Another counting officer had declared that the petitioner has been defeated by a margin of 6 votes. Thereafter the petitioner made a prayer for recounting but was told that now nothing could be done in this regard. According to the petitioner, the aforesaid process is wrongful and illegal.
5. Thereafter immediately on 27.1.2005. Shri Pratap Yadav, an agent of the petitioner as well as the agents of the respondents No.2, 3 and 4 had put forth an application to the election officer for recounting and conducting an enquiry about the aforesaid illegality. But the same was not considered.
6. Looking to the aforesaid attitude of the election officer, the petitioner has sent an application by fax to the District Election Commissioner, Tikamgarh and the State Election Commissioner praying for a recounting and further, making an enquiry. However, the application on account of influence of respondent No.1 and undue rigidity of the election officer was not considered. Therefore, on the aforesaid ground the election should be countermanded."
4. A reply was filed to the election petition by the present appellant disputing the facts that have been put forth in the election petition.
5. The prescribed authority, as is evincible, framed three issues. The said issues being translated in English read as under:
"(1) Whether during the counting of votes of the Village Panchayat, Makara counting was done in favour of the respondent No.1 in contravention of the legal process?
(2) Whether the election petitioner had submitted any application before the presiding officer or the returning officer and whether the said application was disposed on in accordance with law?
(3) Whether any legal ground and fact exists for recount of votes?"
6. The e
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