Gajanand vs Ramcharan - 1997 Supreme(MP) 1126

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: B.P. Gupta
For the Respondent: P.R. Bhave

Headnote:(1) Panchayat Raj Adhiniyam, 1993 (M.P.) – – S.122 – – election petition – – recount of votes cannot be ordered even on consent – – secrecy of ballot cannot be broken lightly.
       (2) Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (M.P.) – – R.11(2) – – election petition – – recount of votes – – cannot be ordered in violation of this rule.
       (3) Estoppel – – cannot operate against law.
        Short Note
       1. The sole contention of the learned counsel relying on a short noted decision of this Court rendered at Bench at Gwalior in Chironjilal v. S.D.O. Vijaypur [1996(1) MPWN 109], is that recount of votes cannot be ordered even by consent of the parties unless clear averments in this respect are made in election petition and a clear finding for just decision of the case is recorded.
       2. Learned counsel for respondent No.1 relying on a decision of Punjab and Haryana High Court in Shri Mahender Singh v. Hukum Singh and Ors. [AIR 1993 Punjab and Haryana 172] submitted that where the parties agreed for recount and prima facie irregularities found during test check passing of order of recount of entire votes is permissible as parties cannot be permitted to approbate and reprobate. Therefore, the issue of recount was decided by the consent of the parties after recount of the ballots. The petitioner now is estopped to challenge the same and cannot contend that recount could not have been done without recording a prima facie finding on the material adduced by the election petitioner.
       Held: Admittedly, the prescribed authority did not record any prima facie finding for ordering recount. It is well settled that the justification' for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes.
       3. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interest of justice, a tribunal or Court should not order the recount of votes. See P.K.K. Shamsudden v. K.A.M. Mappillai Mohindeen and Ors. [AIR 1989 SC 640].
       4. In case of Shri Satyanarayan Dudhani v. Uday Kumar Singh [AIR 1993 SC 367], the Supreme Court has ruled that secrecy of ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of ballot paper has to be granted only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.
       5. This Court in W.P. No. 3938/95 (Devki Bai v. SDO & Ors.) decided on 3.2.1997, wherein on the statement of the election petitioner that in case votes are recounted, the election petitioner shall not press other grounds raised in the election petition, the prescribed authority ordered recount without coming to his prima – facie satisfaction even on the pleadings of the parties that a case for recount is made out and on recount of votes, the election of the returned candidate was set – aside, following the decisions of the Supreme Court referred above has observed that an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emanating from the recount of votes.
       6. In case of Chironjilal (supra), the Court has held that jurisdiction cannot be conferred by consent of parties and therefore, recount of votes cannot be ordered on the consent of the parties in violation of Rule 11(2) of Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rule, 1991 which lays down the procedure for inquiring into the election petition by the prescribed authority which as may be in accordance with the procedure applicable under the code to the trial of the suits. The Court following the decision in Dr. Jagjit Singh v. Giani Mastar Singh and Ors. [AIR 1966 SC 773] observed that the power can only be exercised where the averments are made for inspection of ballot boxes giving material facts which would enable the tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the matter of secrecy of ballot paper cannot be ignored and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard of the examination of validity or invalidity of votes and for their proper counting. Therefore, the consent of parties cannot give jurisdiction to inspect ballots and recount.
       7. No estoppel against statute is the well settled principle of law. Therefore, in view of law declared by the Supreme Court in the cases referred to above and the decisions of this Court. I am of the view that the order of prescribed authority cannot be sustained and is hereby quashed. The matter now shall go back before the prescribed authority to deal with the election petition in accordance with law afresh. The prescribed authority shall decide the election petition expeditiously as far as possible within an outer limit of four months from the date of appearance of the parties who shall appear before the prescribed authority on 10.3.1997. Petitioner to file a certified copy of this order before the prescribed authority.
       8. Accordingly, the petition stands allowed with no order as to costs.