Dhaniram Markam vs SDO (Revenue) Baihar and Others

Rajendra Menon, J.—Challenging an order-dated 2.6.2012 passed by the Election Tribunal, Baihar, District Balaghat in the matter of conducting recounting of votes and declaring respondent No. 2 as an elected Sarpanch of the Gram Panchayat in question, this writ petition has been filed. It may be noted that the recounting of votes which is impugned in this writ petition is a result of certain directions issued earlier by this Court on 5.3.2012, in Writ Petition No. 9422/2011, filed by the present petitioner.

Elections to the Gram Panchayat in question namely Gram Panchayat Pandariya, Tehsil Baihar, District Balaghat were held on 18.1.2010 and based on the counting of votes undertaken, the results were notified on 3.2.2010. Petitioner herein, Dhaniram Markam, was declared as elected. Being aggrieved thereof an election petition was filed at the instance of respondent No. 2 Shri Natthu Singh. The election petition was registered and was put to trial before the Election Tribunal namely, Sub Divisional Officer (Revenue), Baihar. Issues were framed and finally it was found on the basis of evidence and material that came on record that counting of votes was not done properly, there were various infirmities in the counting. In some of the booths at the time of counting, in the night electricity was not available due to power cut and finding there to be some infirmity an order was passed on 30.5.2011, by the Election Tribunal directing for recounting. The recounting was undertaken on 31.5.2011, as the result of recounting was declared vide order-dated 31.5.2011, declaring respondent No. 2 Natthu Singh as the elected Sarpanch.

Challenging the order of recount dated 30.5.2011 and the result of recounting dated 31.5.2011, a writ petition was filed by the present petitioner before this Court being Writ Petition No. 9422/2011 (Dhaniram Markam Vs. Natthu Singh and others). The said writ petition was decided by a Bench of this Court vide order-dated 5.3.2012 -Annexure P/7. After appreciating the entire matter, this Court came to the conclusion that the order passed on 30.5.2011, finding infirmity in the counting process, was proper and the direction for recounting was validly passed. Accordingly, challenge made to the order passed for recounting dated 30.5.2011 was dismissed, and the order passed by the Election Tribunal on 30.5.2011 was affirmed. However, as the Election Tribunal itself did not undertake the recounting, but delegated its power of recounting to a third person, the process of recounting and the order passed after recounting on 31.5.2011 was quashed and the matter was remanded back to the Election Tribunal for conducting the recounting afresh, the order passed in the writ petition and the findings recorded in paragraphs 9 and 10, read as under:

In view of this, this petition partly succeeds and is hereby partly allowed. The order dated 31.5.2011 contained in Annexure P/5 passed by the Election Tribunal, after recount of votes is hereby quashed. The order passed by the Election Tribunal on 30.5.2011 is affirmed. It is directed that recount of votes be done afresh by the Election Tribunal itself, after hearing the objection of the petitioner which has been raised with respect to keeping the packets of votes, and after recount, proper order be passed, in accordance with law, within a period of two months from the date of the order passed today. It is submitted by learned counsel for the parties that in compliance of order dated 31.5.2011, the respondent No. 2 was made to function as Sarpanch, but on the strength of an interim order passed by this Court on 20.6.2011, the charge was again taken back from him. In view of this, till the recounting as directed herein above is completed, if the petitioner is working as Sarpanch, he be allowed to work as Sarpanch of the concerned Gram Panchayat.

In the result, the writ petition is allowed in part to the extent indicated herein above. There shall be no order as to costs.

In pursuance to the aforesaid, notices were issued by the Election Tribunal to all concerned vide Annexure P/8 on 26.5.2012, recounting was undertaken in accordance to the requirement of law on 2.6.2012 and thereafter respondent No. 2 was again declared elected having secured six votes more than the petitioner. Challenging the subsequent action of recounting and declaration of result, this writ petition has been filed.

During the course of hearing of the writ petition, learned counsel for the petitioner made three fold submissions:

(a) The first submission made was to say that the direction for recount issued by the Election Tribunal was unsustainable, it was not warranted and contending that the counting of votes done originally was proper, challenge is made to the order of recount passed by the Election Tribunal;

(b) The second ground canvassed was that inspite of the direction issued by this Court on 5.3.2012, in Writ Petition No. 9422/2011, vide order-dated 26.5.2012 - Annexure P/8 the Election Tribunal appointed Shri Tirkey-Tehsildar, Baihar; Shri Gendam-Accountant; and, Shri Dhupe-Assistant Grade II, to undertake the recounting, which was not permissible.

(c) The third ground canvassed was that certain infirmity in the ballot papers as pointed out in Annexure P/9, has not been properly considered and therefore, the recount undertaken is unsustainable.

Shri D.K. Tiwari, learned counsel for respondent No. 2, refuted the aforesaid and submitted that all the three grounds are unsustainable. As far as the direction passed by the Election Tribunal for recount is concerned, it is stated by learned counsel that this order was passed on 30.5.2011 and in Writ Petition No. 9422/2011 as this order has been upheld and the same has attained finality, now this question cannot be reconsidered again by this Bench which exercises co-ordinate jurisdiction. As far as the second objection is concerned, Shri Tiwari invites my attention to the original records and the procedure followed for recounting held on 2.6.2012, and says that the entire recounting was undertaken by the Election Tribunal itself and the persons named in Annexure P/8 were only summoned for the purpose of assisting the Election Tribunal. It was submitted by learned counsel that the recounting was done strictly in accordance to the directions issued by this Court by the Election Tribunal and, therefore, the second ground is also unsustainable. Finally, Shri Tiwari argued that the objections raised by the petitioner in Annexure P/9 pertaining to validation or otherwise of certain ballot papers were considered by the Election Tribunal at the time of recounting and they were rejected as they were unsustainable. It is argued by him that once recounting of votes has been undertaken and there is no illegality or infirmity in the same, further indulgence into the matter is not called for. Placing reliance on the case of Ladu Ram Vs. Collector and Others, , it was argued by learned counsel that now no further indulgence can be made for further recounting into the matter, on the grounds canvassed.

In reply, Ms. C.V. Rao, learned counsel for the petitioner, argued that after the first order was passed on 5.3.2012 by this Court in Writ Petition No. 9422/2011, the matter was again considered in a writ appeal filed by the present petitioner and in the Writ Appeal, all questions were kept open and the Writ Appeal was withdrawn. That being so, it is argued that the direction for recounting of votes can be considered again by this Court.

I have learned counsel for the parties at length and perused the records.

As far as the first ground with regard to the direction issued by the Election Tribunal for recounting of votes is concerned, the said direction is contained in the order passed on 30.5.2011. This order was subject matter of adjudication in Writ Petition No. 9422/2011, and after going through the original record, evidence and other material available in the record of the said writ petition, from paragraph 6 onwards the matter has been considered, and finally the order passed by the Election Tribunal on 30.5.2011, directing for recounting, was affirmed by the writ court as indicated hereinabove. The order as reproduced hereinabove, i.e.. paragraph 9, of W.P. No. 9422/2011, clearly shows that the order-dated 30.5.2011 passed by the Election Tribunal has been affirmed. Even though a writ appeal was filed, but no interference has been made by the Division Bench and there is nothing available on record to say that the directions issued by the writ court on 5.3.2012, in Writ Petition No. 9422/2011, is interfered with by the writ appellate court. Under such circumstances, now the direction for recount ordered by the Election Tribunal on 30.5.2011, cannot be reconsidered by this Court as the order passed on 5.3.2012 in this regard, in Writ Petition No. 9422/2011, operates as res judicata in the matter and this aspect of the matter cannot be reconsidered now by this Bench. Accordingly, the first ground canvassed has to be rejected.

As far as the second ground is concerned, in the directions issued by this Court on 5.3.2012, in Writ Petition No. 9422/2011, the direction was that the recounting of votes afresh shall be undertaken by the Election Tribunal itself. By referring to Annexure P/8, the notice issued by the Election Tribunal to all concerned intimating the date, time and place of recounting, an argument was advanced that the recounting was not undertaken by the Election Tribunal, but the power for recounting was delegated to Shri Tirkey-Tehsildar, Baihar; Shri Gendam-Accountant; and, Shri Dhupe-Assistant Grade II. This contention of the petitioner on examination and on scrutiny of original record is found to be wholly misconceived and unsustainable. Annexure P/8 is only an intimation and notice by the Election Tribunal to all concerned to remain present on 2.6.2012, at a particular place at 11.00 AM, for the purpose of undertaking recounting as ordered by this Court in the first Writ Petition. Thereafter, in the original records produced by the learned Deputy Advocate General, the entire proceedings are available which indicates that after the direction for recount was issued by this Court on 5.3.2012, in Writ Petition No. 9422/2011, the matter was placed before the Election Tribunal on 26.5.2012; the Tribunal initiated the proceedings, and thereafter fixed the proceeding for recounting on 2.6.2012. On 26.5.2012 itself, the notice-Annexure P/8 was issued and in the notice the persons concerned-Shri Tirkey-Tehsildar, Baihar; Shri Gendam-Accountant; and, Shri Dhupe-Assistant Grade II, were only intimated to remain present at the time of recounting. Thereafter, the complete order-sheet dated 2.6.2012, pertaining to recounting, goes to show that the entire recounting was undertaken by the Election Tribunal itself and in the recounting both the petitioner and respondent No. 2 were present alongwith their counsel and their signatures are also obtained. That being so, the contention of the petitioner that the Election Tribunal again delegated the process of recounting to subordinate officers is not correct. On the contrary, the material available in the original file pertaining to recounting shows that the recounting was undertaken by the Election Tribunal itself and no delegation of power in this regard was ordered. That being so, the second ground canvassed is also unsustainable.

As far as the third ground is concerned, it pertains to certain objections raised by the petitioner in an application-Annexure P/9. In the application submitted to the Election Tribunal-Annexure P/9, after the recounting was done on 2.6.2012, the petitioner pointed out four infirmities in the ballot papers to say that the votes were either invalid or valid. With regard to one ballot paper bearing No. 073344, pertaining to Booth No. 137, it was the case of the petitioner that due to folding of the ballot paper, the ink has spread to some other places and, therefore, the ballot paper is invalid. Similar objection was raised with regard to three or four more ballot papers. The proceeding of 2.6.2012 goes to show that at the time of scrutiny of ballot papers, while counting was in progress, all these objections were considered and rejected. That being so, it is a case where the recounting has been done and the petitioner now wants to point out certain infirmity in the counting by saying that certain invalid votes were declared as valid and certain valid ballot papers were declared as invalid. In support of such a bald and vague allegation, no concrete material or evidence is adduced.

This Court while exercising limited jurisdiction in a petition under Article 227 of the Constitution does not exercise the powers of an appellate authority. That apart, in the matter of conducting election, the sanctity of the ballot paper has to be maintained and merely for the asking recounting of votes cannot be ordered. In the present case, except for making a bald allegation with regard to irregularities in the counting, petitioner is unable to point out to this Court any legal infirmity, statutory violation or substantial error in the counting undertaken, which warrants interference. On a perusal of the original records and on going through the same, this Court is of the considered view that no illegality is committed in the matter of recounting. The recounting has been done in accordance to the remand order passed by this Court.

The prayer now made by Ms. C.V. Rao, learned counsel for the petitioner, to further recount the ballot is on the basis of the objections raised in Annexure P/9.

To consider this aspect of the matter, it is necessary to take note of the law laid down by the Supreme Court in the matter of ordering recount of votes or inspection of ballot papers, and the principle laid down with regard to maintaining secrecy of the ballot as sacrosanct in a democratic set up. In the case of M.R. Gopalakrishnan Vs. Thachady Prabhakaran and Others, , this aspect of the matter was considered and while taking note of a prayer made for recounting of votes, it was held by the Supreme Court that an order to seek recounting of votes has to be accepted only in a ''rare case''. For seeking such a relief, the person concerned has to place material on record and make out a prima facie case on the threshold before a recount can be ordered. It is held by the Supreme Court that demand of a defeated candidate for recount of votes or a demand for re-examination of the ballot paper has to be considered keeping in view that the secrecy of the ballot paper as sacrosanct in a democracy and, therefore, until and unless material available on record are substantial enough and the evidence of a reliable character, making out a strong case, action should not be taken.

In the case of Bhabhi Vs. Sheo Govind and Others, , the Supreme Court while dealing with the question of issuing a direction for inspection of ballot paper and recounting after taking note of various aspect of the matter, has laid down six guidelines, which read as under:

(i) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(ii) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

Dhaniram Markam Vs. SDO (Revenue) Baihar and others.

(iii) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;

(iv) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;

(v) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and, (vi) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.

Thereafter, in the case of Satyanarain Dudhani Vs. Uday Kumar Singh and Others, , the Supreme Court again made certain observations with regard to secrecy of the ballot papers and it was held that secrecy of the ballot papers cannot be permitted to be tinkered lightly and orders of inspection of the ballot papers or recount of votes should not be granted as a matter of course. It has been held that a High Court for doing so, should be satisfied from the material and evidence available that the irregularities and illegalities pointed out are so apparent and the evidence available so contemporaneous that recount can be ordered, but on the basis of bare allegations a recount cannot be ordered.

If the aforesaid principles are applied to the present case and if the prayer made for recount or inspection of the ballot papers based on the objections contained in Annexure P/9 are taken note of, it would be seen that except for pointing out some defects in the ballot papers and the marks indicated therein, no specific evidence or material is available. That apart, from the proceedings of the recount available on record, it is seen that when the ballot papers were being recounted on 2.6.2012, these objections were considered in front of everybody and thereafter a decision taken. Nothing is brought to the notice of this Court so say as to why the decision taken by the Election Tribunal in this regard should be interfered with. The Election Tribunal in the absence of any allegations of bias or malafide is deemed to have conducted the proceedings properly and now merely on the basis of the allegations made in Annexure P/9, I see no reason to order any further inspection of the ballot papers or recount. On the contrary, the proceedings available in the original record goes to show that the recount was undertaken in accordance to the directions issued by this Court on 5.3.2012, in Writ Petition No. 9422/2011, and now after the recount and the result declared, based on the grounds canvassed in this petition, no further indulgence is called for. Accordingly, the petition stands dismissed. No order as to costs.