Recounting of votes is not possible when certain ballot papers are found to be damaged or destroyed, and the earlier counting should be treated as final in such cases.

JUDGMENT

      1. Heard.

2. Writ Court has made present reference before the Division Bench.

3. The petitioner contested the election of Ward Member of District Panchayat Guna from Ward No. 1. Respondent No. 3 was declared elected by a margin of 113 votes. The petitioner filed an election petition under the provisions of Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam 1993 (hereinafter referred to the 'Act of 1993'). The petitioner also prayed a relief of recounting. The authority vide order dt. 9th August 2011 ordered recounting of votes. When recounting was carried out, the authority - Collector-District Election Officer Guna found that the ballet papers of polling centers No. 43, 44, 45, 46, 47, 48, 50, 51, 54, 59, 60, 97, 276, 277, 278 and 279 total 16 were damaged due to seepage and it was not possible to recount them. Hence, the Collector sought the explanation from the authority that whether counting of earlier votes of those 16 polling centers be counted as it is or the votes of the polling centers be declared as zero (0) and thereafter the result of recounting be declared. When the result of recounting was not declared, the petitioner filed a writ petition before this court.

4. Learned Writ Court has formulated the following substantial question of law and referred the same to the Hon'ble Chief Justice with recommendation to refer the matter before the Larger Bench:

"If appropriate forum directs recounting of the votes and if it is found that the votes in certain polling stations are destroyed, what direction can be issued in this regard?"

5. Thereafter, the Hon'ble Chief Justice referred the matter to the Division Bench to answer the aforesaid reference.

6. Rule 80 of the M.P. Panchayat Nirvachan Niyam, 1995 (hereinafter referred to the 'Rules of 1995') prescribes recount of votes. The relevant provision of this court is as under :-

"80. Recount of votes.-(1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under sub-rule (2) of rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which the demands such recount.

(2) On such an application being made the Returning Officer or such other officer authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.

(3) Every decision of the Returning Officer or such other officer authorised by him, under sub-rule (2) shall be in writing and contain the reasons therefor.

(4) If the Returning Officer or such other officer authorised by him, decides under sub-rule (2) to allow an application either in whole or in part, he shall-

(a) count the ballot papers again in accordance with his decision;

(b) amend the result sheet to the extent necessary after such recount; and

(c) announce the amendment so made by him.

(5) After the total number of votes polled by each candidate has been announced under sub-rule (2) of rule 77 or sub-rule (4) the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter:

Provided that no step under this sub- rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1).

(6) The counted ballot papers shall be bundled and kept in the manner mentioned in sub-rule (3) of rule 77."

7. In the rule, there is no provision that what would happen when it is not possible to recount certain votes due to destruction. However, Rule 72 of the Rules of 1995 prescribes fresh poll in case of destruction, tempering etc. of ballot