1996 Supreme(MP) 1314

IN THE HIGH COURT OF MADHYA PRADESH
T.S. DOABIA, J.
Chironjilal – Appellant
Versus
S.D.O. Vijaypur – Respondent
W.P. No. 1357 of 1995 (G)
Decided on : 25-01-1996

Headnote:(1) Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (M.P.) – R. 11 (2) – recount of the votes polled – cannot be ordered on consent of the parties – clear averment in this respect should be made in election petition – – recounting should not be made unless it is essential for just decision of the case – finding should be recorded – secrecy of the ballot is sacrosont in democracy.

       (2) Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (M.P.) – R. 3 (2) and 8 – attestation of documents not done in accordance with this provision – election petition is liable to be dismissed at the very thresh hold.

       (3) Jurisdiction – cannot be conferred by consent of the parties.

        Short Note

       1. The petitioner is challenging order, Annexure P/1. By this the election Court has directed recount. This order has been challenged on the ground that unless and until a case is made out for recount the election Court could not permit examination of ballot papers.

       2. The learned counsel for the respondents submits that this was a consent order, and therefore, this consent order cannot be challenged in the present petition. He has drawn my attention to the last three lines in the order, Annexure P/1, in which it has been clearly indicated that the counsel for the respondent has no objection to the recount. This argument has been countered by the learned counsel for the petitioner. He has submitted that consent would not confer jurisdiction on the election Court to order recount. This can only be done if a positive finding is recorded that a case for recount has been made in this regard. He has placed reliance on a decision given in the case of Bhupendra Singh v. Gulab Singh (1995 (2) Vidhi Bhasvar 159). In the above case, it was held as under:

       "In Dr. Jagjit Singh v. Giani Kartar Singh (AIR 1966 SC 773), the election petitioner had challenged the election of the returned candidate. In the recount of votes ordered by the Tribunal it was found that the election petitioner had secured 22,491 votes and the returned candidate had secured 22,412 votes. The tribunal allowed the election petition and declared the election – petitioner to have been duly elected. The High Court set aside the order of the Tribunal. The judgment of the High Court was confirmed by the Supreme Court. In doing so the Supreme Court observed as follows : –

       "Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising the power the Tribunal has to bear in mind certain important considerations. Section 83 (1) (a) of the Act (Representation of the People Act, 1951) requires that an election petition snail contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which section 83 (1) (a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers 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 for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice care must be taken to see that election petitioners do not get a chance to make a roving, or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void."

       3. In this view of the matter, I prefer the view expressed by the Supreme Court in Dr. Jagjit Singh's case (supra) which decision has been noted and approved in P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen & others (supra). Apart from this in Sukhad Raj Singh v. Ram Harsh Mishra and others (supra), the matter was being dealt with at the Supreme Court stage and all that was agreed to was that the parties would abide by the result and the recounting done by the Joint Registrar of the High Court. A reading of the above judgment only brings out that the agreement was to the effect that the Joint Registrar of the High Court would supervise the recount and that would be final. This does not support the proposition that recounting could be ordered on the basis of consent.

       4. Apart from this, there is dispute as to whether the petitioner had consented or not. The learned counsel for the respondents has stated that this Court should not go into this question of fact and whatever has been recorded on the Court file should be taken as correct. I am not pronouncing any opinion on this matter. The petitioner would be at liberty to make an application before the competent authority and seek review. It is for the prescribed authority, respondent No. 13, to take a decision in this regard."

       5. Thus mere consent would not confer jurisdiction. A case for recount has to be made out. The Election Court would also as such reconsider this aspect again and pass fresh order.

       6. Learned counsel for the petitioner submits that the election petition is 'defective in asmuch as the attestation has not been done in accordance with law. He is placing reliance on the decision given in Dr. Omprakash Soni v. Ashok Kumar (1995 (2) Vidhi Bhasvar 309). The above decision in Omprakash Soni v. Ashok squarely covers this aspect of the matter. In the above case it has been held that if there is defective attestation, then, the election petition is to be dismissed at the very threshhold.

       7. As such, this petition is allowed. The election Court would decide the matter in accordance with law. 1995 (2) Vidhi Bhasvar 159 relied on. AIR 1966 SC 773 followed.