Bharat Kashyap vs Tularam and Others

Satish K. Agnihotri, J.—The instant petition arises from the order dated 22.06.2011 (Annexure - P/1) passed by the Sub Divisional Officer (Revenue) (Election Tribunal) (for short ''the Tribunal), Janjgir-Champa, in Revenue Case No. 01/A-89(21)/2009-10, whereunder, the petition filed by the respondents No. 1 (Election petitioner) was allowed and Tribunal directed to recount votes in respect of polling booth No. 234 and 236 on finding that there were discrepancies in the records. The facts, in brief, are that the petitioner was declared as elected Sarpanch of the Gram Panchayat of Village Salkhan, Tahsil Nawagarh, District Janjgir-Champa, in the election held on 25.01.2010. Being aggrieved, the respondent No. 1 filed an election petition on 08.02.2010 (Annexure P/2) seeking a direction for recounting of the votes cast in the election. In the pleadings, it was pleaded that in polling booth No. 234, the return candidate got 60 votes, and the election petitioner secured 62 votes. It was further pleaded that irregularities were committed in counting of votes of polling booth No. 234. In the result sheet, 184 votes were shown to have been secured by the return candidate and only 9 were shown to have been secured by the election petitioner, and as such, the writ petitioner was declared as elected. It was further alleged that the respondent No. 24 and 25, namely V.K. Lakra, Tahsildar and R.S. Patel, the Prescribed Officer of Polling Booth No. 234, have manipulated the votes. The petitioner filed his reply contradicting the averments made by the election petitioner in the election petition holding that there was no irregularity and also the election petition be rejected as the election petitioner ought to have made an application for re-counting before declaration of the result. It was further contended that the counting slip was prepared which has no endorsement of the prescribed authority and as such, the same may be rejected.

The Presiding Officer of the Election Tribunal, by order dated 26.04.2010 directed re-counting of the votes which was challenged before this Court in W.P. (227) No. 2144/2010. In the meantime, recounting was done. Thereafter, the election petition was decided on 30.04.2010 in favour respondent No. 1. Both the orders were challenged in W.P. (227) 2144/2010. This Court, after hearing the parties, quashed both the orders i.e. 26.04.2010 and 30.04.2010 and directed the Election Tribunal to consider and decide the case in accordance with the provisions of law, after framing proper issues, by order dated 30.06.2010 (Annexure P/6). The Tribunal, subsequently, by order dated 30.08.2010, directed the Chief Executive Officer to hand over the charge of the Sarpanch to the election petitioner. Both the orders dated 25.08.2010 and 30.08.2010 were challenged before this Court in W.P. (C) No. 5735/2010 and 6583/2010. This Court heard both the petitions jointly and quashed the orders directing the Tribunal to conclude hearing as per the direction dated 30.06.2010 passed by this Court in W.P. (S) No. 2144/2010 and then pass the final order. Thereafter, the election petition was heard and after framing of the issues, the impugned order was passed.

Shri B.P. Gupta, learned counsel appearing for the return candidate (writ petitioner) would submit that the petitioner examined the records of the case which was fixed for final hearing on 25.06.2011 wherein it was found that the Tribunal, recorded the evidence and examined the witnesses produced by the election petitioner and posted the matter for argument and proceeded against the election petitioner, ex-parte. There was no objectivity. The Sub Divisional Officer was biased as the complaint was accordingly made to the Collector (Annexure P/4). The Tribunal has decided the entire case on the basis of written statement of the respondent No. 2 to 23 and 25 without affording an opportunity of hearing to the return candidate for examination as well as cross examination. The respondent No. 3 and 12, in their affidavits have clearly stated that they have not filed any written statement nor they have engaged any counsel and also stated that there was no illegality in the election result. The Tribunal relied on a piece of paper which was neither certified copy nor was filed by the competent officer. The election petitioner has disputed the votes of polling booth No. 234, without producing the sufficient evidence in support of his contention. Affidavit filed by the respondent No. 3 and 12 have completely been overlooked. The Tribunal has gone against the well settled principles of law that secrecy of the votes should not be disturbed unless there is strong proof in support of the allegation. The election petitioner, as required under the provisions of the Evidence Act has failed to prove his case and the documents annexed thereto, in the petition were also not proved in accordance with law.

In the argument, without pleading in the petition, learned counsel for the writ petitioner submitted that the election petition was devoid of detailed facts and as such, the same was required to be dismissed at the admission stage under Order 7 Rule 14 of the C.P.C. He would rely on decision of the Supreme Court in Beliram Bhalaik Vs. Jai Beharilal Khachi and Another, , Bhabhi Vs. Sheo Govind and Others, Mahant Ram Prakash Dass Vs. Ramesh Chandra and Others, , R. Narayanan Vs. S. Semmalai and Others, the decision of the learned Division Bench of the High Court of Madhya Pradesh in Vidhyawati Lilhare Vs. Sub-divisional officer-cum-prescribed Officer, lanji, balaghat and Others, .

Shri Sharma, learned counsel appearing for the respondent No. 1, the election petitioner, would submit that the writ petitioner has made serious allegations against the Sub Divisional Officer (Revenue) without impleading him by name. The allegation of malafide or bias cannot be made against the office, but against the person concerned and on this ground alone, this petition deserves to be dismissed.

Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.

All other respondents, except the S.D.O./respondent No. 35, have chosen not to appear before this Court, despite service of notice.

It is stated that the counting of votes took place on 28.01.2010. During counting, the election petitioner secured 60 votes and the writ petitioner secured 62 votes in polling booth No. 234. Accordingly, an entry was made in the result sheet by the competent officer i.e. respondent No. 25 under the provisions of Rule 77(2) of the Chhattisgarh Panchayat Nirvachan Niyam, 1995. The petitioner managed to get the result sheet replaced and it was noted that the writ petitioner obtained 184 votes and the answering respondent received only 9 votes. The petitioner has also not filed the result sheet before any authority. Accordingly, he was declared elected holding that the return candidate i.e. writ petitioner secured 798 votes in total and the election petitioner/respondent No. 1 secured 709 votes. A complaint was made to the authorities and this was also published in the newspaper. For want of relief from the concerned officer, the election petitioner filed the instant election petition.

Recounting was done pursuant to the order dated 22.06.2011, wherein the election petitioner had secured more votes than the petitioner. However, the same was not given effect to during the election proceeding. In the pleadings of the election petition (Annexure P/2), the election petitioner has sought for recounting of votes, without specifying the polling booth number, however, in the averments, the election petitioner has made complaint only in respect of recounting in polling booth No. 234. There is no pleading or facts in respect of the polling booth No. 236. The main ground raised in the election petition was that there was a manipulation in counting of votes in polling booth No. 234 wherein, initially it was informed that the election petitioner had obtained 60 votes and the return candidate had obtained 62 votes. Thereafter, in the final list, the some other votes were shown. The election petitioner has annexed hand written note which was accepted as Exhibit P/15. The Tribunal examined that the respondent No. 2 to 23, who participated in the election, in their written statement, stated that in polling booth No. 234, the election petitioner got 60 votes and the writ petitioner got 62 votes which was given in result sheet by the Presiding Officer to all the participants. It was also stated that thereafter, the manipulation was done. The respondent No. 25 and the Prescribed Authority Incharge of polling booth No. 234, in his reply, has stated that in polling booth No. 234, election petitioner got 60 votes and the return candidate secured 62 votes. The Tribunal has examined all the facts, written statements filed by the parties.

Contention of learned counsel for the writ petitioner is that the witnesses who have filed written statement and have also filed affidavits, were neither examined nor cross examined. On query, asto whether a request was made for cross examination of the witnesses, as they have filed written statements and affidavits, the writ petitioner/return candidate is not clear about that. In the same time, the Tribunal has considered the votes of polling booth No. 236 also, though the same was not the subject matter of the election petition. The Tribunal came to the conclusion that counting of votes were manipulated in respect of the polling booth No. 234 and 236 holding that the election petitioner got 60 votes and the return candidate got 62 votes. Case of the return candidate is that once it has been recorded and there was no objection, recounting of votes should not have been directed.

On the other hand, learned counsel for the election petitioner would submit that if the objection could not be raised on account of non supply of information, and if ultimately it is found that there was a serious manipulation which lead to declaration of the result in favour of the return candidate, on the above stated technicalities, the election petitioner cannot be deprived of proper election.

On perusal of the papers, it is found that some of the result sheets are in printed form and some are hand written on a plan piece of paper, like in case of result sheets in respect of polling booth No. 234 (Annexure P/13) is in printed form and Annexure P/14 is hand written on a plain paper, not properly signed by the presiding officer. Booth wise result sheet is at Annexure R/1-1 wherein the election petitioner got 60 votes (Exhibit P/5) and in the polling booth No. 234, it was also duly signed by the Presiding Officer. The official document aforestated, clearly support the case of the election petitioner. Serious allegations have been made against the Tribunal without impleading the officer concerned as party respondent. There cannot be allegation against the office but against the officer. Thus, the allegation cannot be accepted for want of impleadment of the concerned officer by person.

I have examined the impugned order dated 22.06.2011 (Annexure P/1) which is a detailed one. The Tribunal has framed all the relevant issues and thereafter, discussed each and every evidence and documents produced before him. The finding recorded by the Tribunal to the effect that there was serious manipulation as there was two different counting slips, one was in printed form and other was a plain piece of paper duly signed by the officers, having major difference in votes and as such, it was necessary to order recounting of votes, is just and proper, warranting no interference.

It is well settled principle of law that order of recounting cannot be passed lightly as the same affects secrecy of the ballot, except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. The Supreme Court, in Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, observed as under:

11....It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied....

Learned counsel for the petitioner had cited several decisions in order to establish that there should be a specific pleading in the election petition before recounting is directed. The secrecy of the ballot paper is paramount. There is no quarrel on this principle. Thus, it is not necessary to refer all the cases which have been relied on and cited by him.

Further, it is an obligation of the election petitioner to prove the facts. In the case on hand, the documents have been accepted without proper examination. It is found that the Tribunal has considered each and every aspects of the matter and it is also not the case of the return candidate that despite the request of the return candidate, opportunity was not afforded to him for cross-examination any of the witnesses. The return candidate has not brought out any documents to show that he wanted to examine or cross examine some witnesses or which have been rejected by the Tribunal. (See: Sushil Kumar Vs. Rakesh Kumar, and Life Insurance Corporation of India & Another v. Ram Pal Singh Bisen).

It is well settled that mere production and marking of the documents as exhibit is not true proof of its content. It has to be properly executed by examination of the concerned person if it is doubted by other side. (See: Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another,

In view of the above, this Court is of the firm view that the Tribunal has considered all the facts carefully and after affording opportunity of hearing to the return candidate, in some case cross examination was not done as the return candidate had not requested for the same. Thus, it may be treated as admitted by him. The purity of the counting is doubted on account of the fact that the number of votes in the counting sheets varied from one level to another and as such, the contention of the return candidate that since no application was made before the declaration of the result, no counting could have been directed, does not merit acceptance. However, since the pleadings was in respect of the polling booth No. 234 only, thus, the direction of the Tribunal to recount votes in respect of polling booth No. 236 is quashed as the same was contrary to the pleadings. Other part of the impugned order directing recounting of votes of polling booth No. 234 is in accordance with law, being legal and proper, and is upheld. Accordingly, the petition is allowed partly, to the above extent.

No order asto costs.