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2007(3) JLJ 244
K.K. Lahoti, J.
Rafik Khan v. Sub-Divisional Officer-cum-Prescribed Authority
and others
Writ Petitions No. 7633, 9419 of 2005 and 3422 of 2006 (Jabalpur);
Decided on 4.9.2006.
All the petitions are being filed on the ground that in the election petition filed against the returned candidate, whether a recounting may be directed without recording evidence and satisfaction of the Election Tribunal that recounting is justified. Or where the recounting has been held in compliance of the order passed by the Tribunal in the aforesaid circumstances, and the result of election has changed, whether the order which has been passed without recording evidence and satisfaction of the Tribunal may be interfered in writ jurisdiction. [Para 1
Held: The Returning Officer cannot direct recount of votes or change the result of the election after declaration of result, and only remedy of an aggrieved party is an election petition under section 122 of the Act. The Act empowers the Tribunal to direct recount of votes.
In the election petition the recounting of votes cannot be ordered without pleadings, framing issues and recording evidence. The election petitioner should disclose illegalities and irregularities in counting of votes in the pleading and this fact should be proved by cogent evidence and in absence of pleading and proof no recounting can be ordered.
To permit or not to permit a recount is a question involving jurisdiction of the Tribunal. The Tribunal after considering the pleading and evidence, if records a satisfaction that counting was not done in accordance with the Rules or there are serious illegalities or irregularities in the counting, on being satisfied it may direct for recounting. Once the recount has been allowed by the Tribunal after recording aforesaid satisfaction, the result of recount, if changes, then the recount has to be given effect to. The only question is to be seen that recounting has been permitted within the well settled parameters of exercising jurisdiction. In all the aforesaid cases the Tribunal without recording evidence and its satisfaction within the parameters as held by the apex Court and this Court in the aforesaid cases directed recount. Though it is true that after the recount the result of election has changed substantially and election petitioner has been found to be a candidate who got the verdict of people, but the jurisdictional fact is missing. Until and unless firstly the Tribunal records its finding after recording the evidence of election petitioner and of the respondent (returned candidate) and thereafter on recording its own independent satisfaction that counting was either illegal or irregular and on being satisfied that recounting is necessary then only the recount ought to have been ordered, but without recording aforesaid finding and satisfaction if recount has been done the aforesaid recounting is not sustainable under law.
In the aforesaid circumstances, the order passed by the Election Tribunal directing recount is not sustainable. Accordingly it is quashed. 2002(2) Vidhi Bhasvar 300 (SC) followed. 1997(II) MPWN 98, 2004(4) MPLJ 280 and 2003(2) JLJ 232 relied on. AIR 1964 1249, AIR 1999 SC 768, AIR 2000 SC 16, (2000)8 SCC 355, (2002)3 SCC 742, AIR 2003 SC 2271, (2003)6 SCC 452 and (2005) 12 SCC 342 discussed. [Paras 8, 9 & 10
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1. This batch of petitions is decided by this order as the question involved in all the cases is common. All the petitions are being filed on the ground that in the election petition filed against the returned candidate, whether a recounting may be directed without recording evidence and satisfaction of the Election Tribunal that recounting is justified or where the recounting has been held in compliance of the order passed by the Tribunal in the aforesaid circumstances, and the result of election has changed, whether the order which has been passed without recording evidence and satisfaction of the Tribunal may be interfered in writ jurisdiction.
2. In WP No.7663/2005 (Rafik Khan v. Sub-Divisional Officer, Waraseoni and others), petitioner Rafik Khan has challenged order dated 30.7.2005 by which the Election Tribunal directed recounting. The petitioner was proceeded ex parte as he has failed to appear before the Election Tribunal after receiving the notice. Thereafter, the Election Tribunal by order dated 19.7.2005 after proceeding ex parte against the petitioner considered the pleadings, record and found that recounting appears to be necessary and directed recounting. The recounting was held on 25.7.2005, the result of election changed and the petitioner who was a returned candidate, his election was declared as void and respondent No.2 Jameel Ahmad declared as the returned candidate by a margin of 3 votes for the office of Panch of Ward No.18, Gram Panchayat Pandharwani.
3. In WP No.3422/2006 (Sevan Shah v. State of M.P. and others) petitioner Sevan Shah has challenged the order dated 22.2.2006 of Election Tribunal-cum-Sub-Divisional Officer, Amarwada in Election Petition No.6-A-89(21) 2004-05. In this case the Election Tribunal after receiving the reply filed by the returned candidate considered the matter on the basis of pleading and documents and directed the returning officer to remain present alongwith record of election. Thereafter recounting was held and in the recounting, petitioner Sevan Shah who was a returned candidate, his election was set aside and respondent Ravikar Shah was declared as a returned candidate with a margin of 5 votes.
4. In WP No.9419/2005 (Brijlal v. Shri Man Singh and others), petitioner Brijlal has challenged order dated 22.8.2005 by the Election
Tribunal-cum-Sub-Divisional Officer, Naihar, District Balaghat Annexure P-4, by which the Election Tribunal after serving notice of the election petition to respondents sent for the record of the election. The returned candidate filed the reply. The Election Tribunal considered the reply of petitioner and other respondents and on the basis of pleadings and documents filed by the parties directed recounting of votes. In compliance of order passed by the Election Tribunal the recounting was done and the petitioner Brijlal who was a returned candidate, his election was set aside and respondent Man Singh was declared as a returned candidate with a margin of 12 votes. In the recounting the result of election was changed.
In all the cases no evidence was recorded by the Election Tribunal and the case was decided on the basis of pleading and documentary evidence produced by the parties.
5. The petitioners have challenged the order passed by the Election Tribunal on the ground that the Tribunal without considering the pleading, recording the evidence directed recounting, which order is not sustainable under the law. It is submitted that the legal position has been settled by the apex Court that without recording satisfaction by the Election Tribunal that too after considering the pleading, the evidence and material on record, the recounting shall not be directed. On the aforesaid grounds the petitioners challenged the impugned order passed by the Election Tribunal.
Per contra, learned counsel for respondents/election petitioners supported the order passed by the Election Tribunal on the ground that infact there was serious illegality and irregularity in the co
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