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2003(2) JLJ 232
Dipak Misra, J.
Chandrawati (Smt.) v. Smt. Vijay Rajkumari and others
W.P. No. 2858 of 2001; Decided on 13.2.2002.
The petitioner and the respondents No.1 to 9 filed their nomination papers for membership of Janpad Panchayat from Ward No. 1(2) Bharatpur. ... Having got more votes, the petitioner was declared elected is a member of Janpad Panchayat. Being aggrieved by the result of the election, the respondent No.1 filed election petition under section 122 of the M.P. Panchayat Raj Adhiniyam, 1993. [Para 2
It is urged in petition that the respondent No. 1 had not made any specific ground for order of recount but in paragraph 13, a vague allegation was made that counting of votes was taken up very late without making alternative arrangement. [Para 5
The Tribunal has dealt with two aspects, namely, whether there was adequate light at the time of counting of votes and whether the counting took place at the appropriate place. With regard to the second aspect, the Tribunal has recorded a finding that the counting had taken place at the specified place as per the direction of the State Election Commission and there was no irregularity in the same but with regard to the first facet, the Tribunal opined that there was no adequate light when the counting had taken place as the same is perceptible on a perusal of the order passed for recount. Solely on this base, it directed for recount. [Para 10
Held: There has to be an imperative necessity and a foundation has to be made by bringing adequate material on record and adducing cogent evidence. In the instant case, the pleadings, as have been scrutinised by me, do not show the nature of irregularities that had crept in while the counting had taken place. It is not the case of the election petitioner that counting had taken place when there was no electricity supply; the count could not take place because of non-supply of electricity. The filing of an application for recount is not disbelieved but mere filing of an application does not ipso facto entitle the election petitioner to obtain an order from the Tribunal for recount or the Tribunal shall, in a routine manner, direct for recount of votes. There is nothing in evidence‘ to show what were the irregularities or illegalities committed by the Returning Officer so that a recount of votes was warranted. In absence of such a base or foundation, I am of the considered view that the Election Tribunal has fallen into gross error by directing recount of votes. AIR 1964 SC 1249, AIR 1966 SC 773, AIR 1972 SC 1251, AIR 1973 SC 215, AIR 1975 SC 283, AIR 1975 SC 376, AIR 1975 SC 701, AIR 1980 SC 200, AIR 1984 SC 396, AIR 1993 SC 367, (1999) 4 SCC 508, (2000) 8 SCC 355 and (2001) 3 SCC 81 discussed and followed. [Paras 12 to 25
(2) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S. 122 -- M.P. Panchayat Nirvachan Niyam. 1995 -- Rr. 80(1) and 80(2) -- application for recount made to Returning Officer but not entertained -- does not necessarily mean that election petitioner can ask for recount.
The present Rules also prescribe for the filing of an application and it is mandatory but that does not necessarily mean that the election petitioner can ask for recount of votes before the Tribunal on the ground that his application for recount was not entertained. 1997(2) Vidhi Bhasvar 195 (Se) followed. [Para 25
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1. Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legal validity of the order dated 18.6.2001 passed by the prescribed authority as contained in Annexure P-3, and further to issue a writ of certiorari for quashment of the same and further to issue a writ of mandamus commanding the Collector-cum-prescribed authority, the respondent No. 12 herein to proceed in accordance with law.
2. The facts as have been unfolded in the writ petition are that the election for various posts of Janpad Panchayat, Rampur Naikin, District Sidhi was held on 1.2.2000. The petitioner and the respondents No.1 to 9 filed their nomination papers for membership of Janpad Panchayat from Ward No. 1(2) Bharatpur. All the nomination. papers were found in order and symbols were allotted to the candidates and eventually the polling took place on 1.2.2000. The petitioner secured 983 votes whereas the respondent No. 1 obtained 980 votes. Having got more votes, the petitioner was declared elected is a member of Janpad Panchayat. Being aggrieved by the result of the election, the respondent No.1 filed election petition under section 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Act'). The petitioner filed her written statement in oppugnation of the election petition and specifically denied each and every ground urged in the election petition. A stand was also taken that the election petition was baseless and devoid of substance and, therefore, liable to be dismissed.
3. The prescribed authority framed three issues:
(i) Whether on account of inadequate arrangement of light during counting of votes, the counting of the ballots was affected ?
(ii) Whether the counting of votes was not in accordance with the instructions of the State Election Commission ?
(iii) whether the election petitioner is entitled to an order for recount of votes of polling booth No. 11, Amila ?
4. Before the Election Tribunal, the petitioner examined herself and she was cross-examined by the counsel for the election petitioner. Thereafter the case was fixed to 29.5.2001 for examination of remaining witnesses of the respondent No. 1. On 29.5.2001 the respondent No.1 was present with her counsel but the petitioner and her counsel were absent. The respondent No.1 thereafter closed her case without examining further witnesses. The election petition was adjourned to 12.6.2001 for arguments. The prescribed authority heard the arguments of the counsel for the respondent No.1. and closed the petition for the orders. Thereafter he passed the impugned order as contained in Annexure P-3 directing recount of votes polled in booth No. 11, Amilai on 28.6.2001. It was further directed that the recount would be done under the supervision of the Sub-divisional Officer, Churhat in accordance with the rule 80(4) of the Madhya Pradesh Panchayat Nrivachan Niyam, 1995. According to the petitioner, before the final order vide Annexure P-3 was passed, the petitioner had filed an application contained in Annexure P-4 for setting aside the order dated 25.5.2001 which was passed ex-parte against the petitioner. But when she came to learn that the final order had already been passed by the Collector, she submitted another application for suspension of execution or the impugned order but the same was not paid heed to.
5. It is urged in petition that the respondent No.1 had not made any specific ground for order of recount but in paragraph 13, a vague allegation was made that counting of votes was taken up very late without making alternative arrangement. It is also submitted that the allegations made in the election petition are absolutely vague. It is also averred that the order contained in Annexure P-3 was orally announced on 18.6.2001 and no final order in writing was passed on that date. No sooner the petitioner saw the written order the petitioner submitted an application f
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