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2009 Supreme(MP) 974
R.S. Jha, J.
Gyanendra @ Chotu v. Anoop Chand and others
Writ Petition No. 16716 of 2007 (Jabalpur); Decided on 17.9.2009.
A.P. Singh for petitioner;
Samdarshi Tiwari, Government Advocate for State;
D.S. Thakur for respondent No.1
Headnote:(1) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- M.P. Panchayat (Nirvachan) Niyam, 1995 -- Rr.80 and 77 -order of recount of votes cannot be made on mere asking -- scarcity of light and overwriting on declaration form-cannot furnish ground for recounting.
An order of recount cannot be made on the mere asking or for the purpose of making a roving enquiry but can be made only on the basis of clear and specific pleading supported by clear evidence to the effect that the ballot papers of a particular booth had been wrongly accepted or rejected which, had they been counted in favour of the returned candidate or deducted from the votes polled by the returned candidate would have immediately affected the result of the election.
From a perusal of the election petition in the present case, it is clear that such a specific averment regarding particular booth; particular number of votes and defect in acceptance or rejection therein is totally missing. It is also clear that the Election Tribunal/ SDO had ordered recount not on the basis of such specific averment but on account of scarcity of light and overwriting in the declaration form issued which cannot form a ground for ordering recount but are grounds for generally challenging the election of the returned candidate under the provisions of the Rules. (2004)6 SCC 341, (2007) 1 SCC 341 and (1989) 1 SCC 526 followed. Writ Petition No.10717 of 2007 relied on. [Paras 9 & 10
(2) Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (M.P.) -- S.122 -- order of recount quashed being perverse -- all subsequent orders are liable to be quashed -- no benefit can be availed from interim order of recount passed by High Court. (1989)1 SCC 526 and (2007)1 SCC 341 followed. [Para 13
¼1½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk && 122 e-iz- iapk;r ¼fuo"kZpu½ fu;e] 1995 && fu- 80 rFkk 77 && dgus ek= ij erksa dh iquxZ.kuk dk vkns‘k ugha fn;k tk ldrk && izdk‘k dh deh rFkk ?kks"k.kk iz:i ij fyIrys[ku && iuqZx.kuk ds fy, vk/kkj ugha gks ldrkA
iquxZ.kuk dk vkns‘k djus ek= ij ;k vfrxkeh tk¡p djus ds iz;kstu ds fy, ugha fn;k tk ldrkA cfYd dsoy bl vk‘k; ds Li"V lk{; }kjk lefFkZr Li"V rFkk fofufnZ"V vfHkopu ds vk/kkj ij fd;k tk ldrk gS fd fof‘k"V cwFk ds eri= xyr rkSj ls Lohdkj fd, x, Fks] ftudh ;fn fuo"kZfpr izR;k‘kh ds i{k es x.kuk dh tkrh ;k fuo"kZfpr izR;k‘kh }kjk izkIr fd, x, erksa ls dVkSrh dh tkrh ;g fuo"kZpu ds ifj.kke dks rqjar izHkkfor djrkA
izLrqr ekeys esa fuo"kZpu vthZ ds ifj"khyu ls] ;g Li"V gS fd fof‘k"V cwFk] mlesa erksa dh fof‘k"V la[;k rFkk Lohd`fr rFkk vLohd`fr esa =qfV ds ckjs esa ,slk fofufnZ"V izdFku iw.kZr% foyqIr gSA ;g Hkh Li"V gS fd fuo"kZpu vf/kdj.k@mi[kaM vf/kdkjh us ,sls fofufnZ"V izdFku ds vk/kkj ij ugha cfYd izdk‘k dh deh rFkk tkjh ?kks"k.kk iz:i esa fyIrys[ku ds dkj.k iquxZ.kuk dk vkns‘k fn;k Fkk tks iquxZ.kuk dk vkns‘k nsus ds fy, vk/kkj ugha cuk ldrs gSa cfYd fu;eksa ds mica/kksa ds v/khu fuo"kZfpr izR;k‘kh ds fuo"kZpu dks lkekU;r% vkf{kiIr djus ds fy, vk/kkj gSA ¼2004½6 ,l lh lh 341] ¼2007½1 ,l lh lh 341 rFkk ¼1989½1 ,l lh lh 526 vuqlfjrA fjV ;kfpdk dz- 10717 lu~ 2007 voyafcrA ¼iSjk 9 ,oa 10½
¼2½ iapk;r jkt ,oa xzke Lojkt vf/kfu;e] 1993 ¼e-iz-½ && /kkjk && 122 e-iz- iquxZ.kuk dk vkns‘k foi;ZLr gksus ls vfHk[kafMr && i‘pkr~orhZ leLr vkns‘k vfHk[kafMr gksus ds fy, nk;h gSa & mPp U;k;ky; }kjk ikfjr iquxZ.kuk ds varfje vkns‘k ls dksbZ Qk;nk ugha mBk;k tk ldrkA ¼1989½1 ,l lh lh 526 rFkk ¼2007½1 ,l lh lh 341 vuqlfjrA ¼iSjk 12½
1. The petitioner has filed the present petition being aggrieved by order dated 22.11.2007 passed by the Election Tribunal/Sub-Divisional Officer, Kherlanji in an election petition filed by the respondent No.1 against the election of the petitioner as Sarpanch of Gram Panchayat, Amai, Tehsil Kherlanji, District Balaghat.
2. The brieffacts leading to filing of the petition are that the petitioner, the respondent No.1 and other candidates participated in the elections held for the post of Sarpanch, Gram Pane hay at, Amai, Tahsil Kherlanji, District Balaghat held on 23.1.2005 and the petitioner was declared elected having secured 433 votes as against the respondent No.1 who secured 430 votes. Being aggrieved by the election of the petitioner, the respondent No.1 filed an election petition before the Election Tribunal/Sub-Divisional Officer, Kherlanji under section 122 of the M.P. Gram Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 read with the provisions of the M.P. Panchayat (Election Petition Corn.1pt Practices and Disqualification for Membership) Rules, 1995. The Sub-Divisional Officer by the impugned order dated 22.11.2007 has ordered recount by allowing the petition being aggrieved by which the petitioner has filed the present petition.
3. It is submitted by the learned counsel for the petitioner that the impugned order has been passed by the Election Tribunal without taking into consideration the requirements of the provisions of law and in the absence of proper pleadings in the election petition. It is submitted by the learned counsel for the petitioner that the finding recorded by the SDO is also not based on proper appreciation of facts and application of mind to the evidence on record inasmuch as the Election Tribunal has recorded a finding contrary to the evidence on record.
4. Per contra, it is submitted by the learned counsel for the respondent No.1 that the Election Tribunal after recording a finding of the effect that the counting was effected in candle light, held that there was insufficient light and ordered recounting rightly. It is submitted that the impugned order is based on proper appreciation and due application of mind by the SDO and does not warant any interference.
5. I have heard the learned counsel for parties as length. From a perusal of the documents on record, it is clear that the election for the post of Sarpanch of Gram Panchayat Amai, Tehsil Kherlanji, District Balaghat was held on 23.1.2005, voting was continued till 3:00 o'clock in the afternoon and thereafter the counting started. In the initial count, the respondent No.1 was declared elected by one vote. The petitioner immediately filed an application under rule 80 of the M.P. Panchayat (Nirvachan) Niyam, 1995, and the recount was ordered. In the recount, the petitioner having obtained 433 votes, i.e., 3 votes more than the respondent No.1, was declared elected. From the record, it is also clear that the respondent No.1 on the next day, i.e.24.1.2005, filed an application for recount, which was not considered by the authorities and, in my opinion, rightly so in view of the provisions of rule 80 of the Rules, 1995 and judgment of the Supreme Court reported in the case of V.S. Achuthanandan v. P.J. Francis [(2001)3 SCC 81].
6. From perusal of the impugned order, it is also manifestly clear that the Election Tribunal in para 5 has extensively analysed and summarised the evidence of all the witnesses from a perusal of which it is clear that except respondent No.1, all the other witnesses including the official witnesses, have clearly stated that there was adequate and sufficient lighting arrangement, that the electricity was not available for a short period of time but during that period, there was no deficiency of light on account of the fact that patromaxes and other lighting arrangement had been made by the authorities and that the light was sufficient to enable all the persons present to clearly scrutinise the ballot papers
