Ezhilarasi vs Kamala and The Returning Officer (The Commissioner), Panchayat Union

P. Jyothimani, J.—This Civil Revision petition is filed under Article 227 of the Constitution of India against the order passed by the Principal

District Judge, Villupuram sitting as Election Tribunal in I.A. No. 554 of 2007 in Election O.P. No. 100 of 2006 dated 21.7.2007 dismissing the

interlocutory application filed by the revision petitioner under Rule 68 of the Tamil Nadu Panchayats (Elections) Rules, 1995 for a direction against

the second respondent, the Returning Officer, to bring the ballot papers in sealed covers in respect of the election for the post of President of

Pidagam village, Villupuram taluk held on 15.10.2006, to enable the Tribunal to open the same and count the votes.

The case of the revision petitioner is that she has filed nomination for the post of President of Pidagam village in the election slated on

15.10.2006 and she was allotted ''lock and key'' symbol. She contested for the post of President of Pidagam Panchayat comprising the villages,

Pidagam, Nathamedu, Kuchipalayam and Pidagam colony consisting of four wards for this panchayat, viz., I, II, III and IV for the abovesaid

villages. The petitioner has alleged certain malpractices in the election and also in the process of counting. According to her, in respect of Ward

No. I, it consists of two booths, one for male and another for female. As per the records furnished by election officials in Form-20, in male ward

396 votes were polled and in female ward 470 votes were polled.

As far as Ward No. II, the total number of votes polled were 680 as per Form-20 issued by the election officials. In respect of Ward No. III,

363 votes were polled as per Form-20. In respect of Ward No. IV, 391 votes were polled as per Form-20. Therefore, as per Form-20,

according to the petitioner, total number of votes polled were 2168. However, when the counting took place on 18.10.2006, the number of votes

found, including invalid votes, were 2155+2 votes received through postal ballot, thus totalling 2157. That apart, she has raised a dispute in respect

of 50 ballot papers wherein thumb impressions were found on the name of petitioner, which were rejected at the time of counting and according to

her, it is against the Rules. According to the petitioner, she, through her agent, objected the same at the time of counting orally. The results were

declared on 18.10.2006, in which the first respondent was declared elected. It is with the said pleadings, the petitioner has filed the Election O.P.

before the Tribunal to declare the election of the first respondent as void and for a further declaration that the petitioner was duly elected by

ordering recounting of votes polled for the post of President of Pidagam village Panchayat.

The first respondent who has won the election, has filed a counter. The second respondent, the Returning Officer also denied the allegations

made by the petitioner in the Election O.P.

Pending the Original Petition, the petitioner has filed the abovesaid application in I.A. No. 554 of 2007. In the affidavit filed in support of the

application, the petitioner has stated that the shortage of number of votes polled itself shows that prima facie the election was not conducted in a

fair manner. That apart, at the instance of the first respondent, the second respondent and his subordinates have deliberately omitted to count the

votes polled in her favour which had been affixed with thumb impression on her name. It is her further case that at the time of counting on

18.10.2006, her agent has orally and also in writing objected the same to the Election Officer. In view of the same, she has filed the above

application. According to her, she has made out a prima facie case.

The first respondent has filed a counter affidavit denying various allegations made by the petitioner in the affidavit and also specifically denying

that no objection has been made either orally or in writing either by the petitioner or by her agent on the date of counting, viz., 18.10.2006. When

the interlocutory application was taken up by the Principal District Judge, Villupuram, there was no witness examined on both sides, however, the

petitioner has filed 12 documents which were marked as Exs.P-1 to P-12. Ex.P-1 is the copy of the complaint stated to have been given by the

petitioner to the second respondent dated 25.10.2006. Ex.P-10 is the copy of the complaint stated to have been given by the petitioner to the

second respondent on 18.10.2006. That apart, there are two other complaints, Exs.P-11 and P-12 dated 20.10.2006 and 23.10.2006 given by

the petitioner to the second respondent. All other exhibits are documents supplied to parties under Form-20, viz., Exs.P-3 to P-7 and Form-22,

Ex.P-8 by which the Election Officer has declared the result on 18.10.2006. Ex.P-9 is the identity card of the petitioner.

Considering all the documents, the learned Judge has dismissed the application on the ground that the petitioner has not brought out any specific

instance of malpractice to bring the ballot boxes to the Court for recounting. It is, as against the said order of the Election Tribunal/District Judge,

Villupuram, the present revision is filed by the petitioner.

The learned Counsel for the petitioner has brought to the notice of the Court, the contents of Exs.P-3 to P-7, which are all Form-20 relating to

various ballot papers issued by the election officials in respect of Ward Nos.I to IV out of which Ward No. I consists of two booths, one for male

and another for female. The learned Counsel, by comparing all the said exhibits, has contended that the total number of ballot papers issued under

Form-20 by the election officials would show that the number of votes polled were 2168, however, the Form-22 issued by the Election Officer on

the date of counting and the declaration of results on 18.10.2006 show that there were only 2157 ballot papers in the boxes and therefore,

according to the learned Counsel, prima facie there is a difference of 11 votes which draws the presumption of malpractice being done in

conducting of election and counting of votes. He would further submit that as per Rule 63 of the Tamil Nadu Panchayats (Elections) Rules, 1995

the ballot papers should not be rejected merely on the ground that the mark indicating the vote is not distinct and it was made more than once, if

the intention of the voter to cast vote for a particular candidate clearly appears from the way in which the paper is marked the same has to be

counted and therefore, according to the learned Counsel, the rejection of 50 votes on the basis that it contained thumb impression of voters is

against Rule 63. According to him, the ballot papers are to be brought to the Court to enable the Court to recount the same. However, the

Election Tribunal has rejected the application on improper appreciation of law and facts. To substantiate his contention he has relied upon various

judgments including Sohan Lal Vs. Babu Gandhi and Others, and Sadhu Singh v. Darshan Singh (2006) 4 MLJ 949 (SC).

On the other hand, the learned Counsel for the first respondent, who got elected in the election would submit that the points which are raised by

the petitioner in this interlocutory application are all to be decided by the Election Tribunal at the time of final adjudication of the matter. He would

submit that the petitioner''s application is to bring the ballot boxes into the Court, however, there is nothing in the affidavit as to what is the reason

for bringing the ballot boxes from the Election Office to the Court and in the absence of any such details in the affidavit, the application is not

maintainable. He would also submit that at the stage when the matter is not ripen for final adjudication, the question of bringing the ballot boxes to

the Court does not arise, unless a grave situation is in existence which is not the case of the petitioner. He would also state that the petitioner has

chosen to make a false allegation as if she, through her agent made an oral as well as written complaint on 18.10.2006 to the Election Officer.

According to him, as per Rule 66 of the Tamil Nadu Panchayats (Elections) Rules, 1995, any objection shall be raised only during the period, viz.,

after commencement of result, but before declaration of the same to the Returning Officer. In the present case, the counting and declaration took

place on 18.10.2006. According to him, when the petitioner has chosen to make an allegation that on 18.10.2006 itself through her agent, she has

made an objection orally, she must produce the acknowledgement for the same for having made such an objection on 18.10.2006. As per Rule

66, if the petitioner fails to produce any document to prove that she has objected on the same day, viz., on 18.10.2006, she is not entitled to the

right of recounting. He would submit that as per Ex.P-1 it is clear that the petitioner has made a complaint for the first time only on 25.10.2006 and

therefore, on that basis, the claim of the petitioner for recounting has to go. According to him, prima facie there is no case made out by the

petitioner and therefore, the question of bringing the ballot boxes to the Election Tribunal does not arise.

On direction from this Court, the learned Government Advocate appearing for the second respondent, the Returning Officer, has produced the

relevant file. On perusal of the file it is found that the petitioner has submitted a complaint to the second respondent on 25.10.2006. The file does

not contain any copy of complaint dated 18.10.2006 stated to have been given by the petitioner. In any event, the petitioner having stated that she

has given a written complaint on 18.10.2006 to the Election Officer, a duty is cast on her to prove that she has in fact submitted such objection on

18.10.2006 which is a mandatory requirement and relevant for the purpose of deciding the issue under Rule 66 of the the Tamil Nadu Panchayats

(Elections) Rules, 1995.

I have heard learned Counsel for the petitioner as well as learned Counsel for the respondents and also perused the entire records including the

file submitted by the counsel for second respondent.

It has to be noted that the election dispute is yet to be adjudicated by the learned District Judge, Villupuram. This interlocutory application is

filed under Rule 68 of the the Tamil Nadu Panchayats (Elections) Rules, 1995. Rule 68 speaks about the disposal of ballot papers. As per the said

Rule, after declaration of results, the Returning Officer shall keep in custody all the ballot papers which shall not be opened and their contents shall

not be inspected or produced except by the orders of the adjudicating authority or other competent court and after the period of six months, it is

open to the authorities to destroy the same unless or otherwise directed by the competent Court. The rule runs as follows:

Disposal of ballot papers.- (1) The Returning Officer shall, after declaring the results, retain in his custody or cause to be deposited in the

custody of the officer as may be specified by the State Election Commission, the packets of ballot papers, whether counted, rejected, cancelled or

unused, the sealed packets containing the declarations under Sub-rule (2) of Rule 52 and the marked copy of the electoral roll. These packets shall

not be opened and their contents shall not be inspected or produced except under the order of an election or other competent Court.

(2) The Returning Officer or the officer specified by the State Election Commission under Sub-rule (1), shall retain the packets and the marked

copies of the electoral roll for six months and shall, thereafter, unless otherwise directed by an election or other competent Court, cause them to be

destroyed.

The original petition filed by the petitioner is to set aside the election of the first respondent u/s 258 of the the Tamil Nadu Panchayats Act,1994.

In respect of recounting of votes, Rule 66 of the the Tamil Nadu Panchayats (Elections) Rules, 1995, stipulates a procedure and the said Rule

states as follows:

Recount of votes.- (1) After the completion of the counting and recording in Form 22 the total number of votes polled by each candidate under

Sub-rule 92) of Rule 64, the Returning Officer shall announce the same. After such announcement, and before the declaration of the result of the

election, a contesting candidate or in his absence his election agent, may apply in writing to the Returning Officer for a recount of all or any of the

votes already counted stating the grounds on which he demands such recount.

(2) On such application being made, the Returning Officer shall decide the matter and may allow the application in whole or in part, or may reject it

in toto if it appears to him to be frivolous or unreasonable.

(3) Every decision of the Returning Officer under Sub-rule (2) shall be in writing and contain the reasons therefor.

(4) If the Returning Officer decides under Sub-rule (2) to allow an application either in whole or in part, he shall-

(a) count the votes again in accordance with his decision;

(b) amend the result sheet in Form 22 to the extent necessary after such recount; and

(c) announce the amendments so made by him.

(5) After the total number of votes polled by each candidate has been announced under Sub-rule (1) or under Sub-rule (4) of this rule, the

Returning Officer shall complete and sign the result sheet in Form 22 and no application for a recount shall be entertained thereafter:

Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates or the election against present at the

completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (1).

Therefore, as per the said Rule, after completion of counting and recording the counting in Form-22, the Returning Officer shall announce the

result of counting and thereafter, he shall make a formal declaration of election. It is in between the time of announcement of result of counting and

the declaration of result, any contesting candidate or in his absence, his agent may apply in writing to the Returning Officer for recounting of all or

any of the boxes already counted with reasons for such demand. Therefore, in the present case, it is clear that the election for the post of President

of Pidagam panchayat along with other constituencies took place on 15.10.2006 and the counting took place on 18.10.2006. It is not in dispute

that both the announcement and declaration of result took place on the same day, viz., 18.10.2006. The petitioner has specifically stated in the

affidavit filed in support of the interlocutory application as well as in the original election petition that on the same day of counting, that is, on

18.10.2006, the petitioner through her agent has made an objection and also claimed recounting both orally and in writing. She has in fact

presented a copy of the complaint dated 18.10.2006 and the Tribunal has marked it as Ex.P-10, but, it does not contain any acknowledgement

from the second respondent. When Rule 66 contemplates a specific duty for the contesting candidate or his agent to make an application in writing

to the Returning Officer, necessarily it goes without saying that the Returning Officer is bound to acknowledge the same and consequently, it is the

duty of the contesting candidate or his agent to obtain such acknowledgement. In the absence of such acknowledgement, there cannot be any

presumption that on the date of counting an objection was made. As I have stated earlier, the records of the second respondent show that there is

no such complaint given by the petitioner to the second respondent on 18.10.2006. In such circumstances, simply because the petitioner is able to

show a discrepancy in the number of votes between Form-20 and Form-22 by which there is a shortage of 11 votes, one cannot presume any

malpractice at this stage. As pointed out by the learned Counsel for the respondents, it is not known, when a voter is given a ballot paper, whether

he puts it in the ballot box or he takes it away with him and these are all matters to be adjudicated in the final disposal and it may not be proper to

express any opinion on the same at this point of time.

The judgment referred to by the learned Counsel for the petitioner reported in Sohan Lal Vs. Babu Gandhi and Others, relates to a case

wherein after completion of adjudication on election petition, certain discrepancies were found. In that case, by referring to an earlier judgment of

the Supreme Court rendered in Smt. Ram Rati Vs. Saroj Devi and others, wherein it was held that unless a party first applies to the Returning

Officer for recounting of votes, it would not be open to the Court or Tribunal to direct recounting, the Supreme Court in the abovesaid case has

held that there is no provision under the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 or under the Rules prohibiting the Court or

Tribunal to direct recounting of the votes. The Supreme Court has also held that a party may not know that the recounting is necessary at the time

of counting till the results are declared and it is his only remedy to file an election petition u/s 122 of the said Act and in such a case, the Court or

Tribunal is bound to consider the plea where a case is made out; it may direct recounting depending upon the evidence let in by the parties. The

relevant portion of the judgment of the Supreme Court is as follows:

In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati''s case. It is not correct to hold that, in an

election petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the party has first applied in

writing for recounting of votes. There is no prohibition in the Act or under the Rules prohibiting the Court or Tribunal to direct a recounting of the

votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for

him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition u/s 122. In such a case, the Court or the

Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the

present case, there was obvious error in declaring the result. We, therefore, held that the ratio laid down in Ram Rati''s case is not correct.

The further reliance placed on the latest judgment of the Supreme Court in Sadhu Singh v. Darshan Singh (2006) 4 MLJ 949 (SC) also arose

from the final order of the Election Tribunal directing recount of ballot papers. The Supreme Court in the said case has given the following facts

which are relevant for directing recounting of votes:

(i) prima facie case must be established:

(ii) material facts must be pleaded, stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be directed by way of an order for recounting of votes;''

(iv) an objection to the said effect should be raised; and

(v) secrecy of ballot papers should be maintained.

Therefore, it is clear that the judgments which are relied upon by the petitioner are all cases where a final adjudication has been made and in the

present case, it is in the preliminary stage.

The learned Counsel for the first respondent Mr. V.R. Thangavelu, would place reliance on the judgment of the Madras High Court in P.V.

Thambidurai v. K. Paramasivam and Anr. 2005 (3) TLNJ (Civil) 439 wherein Mr. Justice A. Kulasekaran, while dealing with Order XI Rule 14

C.P.C. relating to election petition and exercising jurisdiction under Article 227 of the Constitution of India, like that of present case, has held that

the election petition is quasi criminal in nature and hence, allegations must be pleaded and proved clearly and with full particulars and mere vague

pleas are not sufficient. Following the judgment of the Supreme Court in Charan Dass v. Surinder Kumar and Ors., this Court in the above case

has held that until an iron-cast case is made out the secrecy of ballot box cannot be tinkered and the concluding paragraph of the judgment of this

Court is as follows:

The above said allegations are vague and general and not supported by any material facts. This Court do not find any concise statement of

material facts demanding the grant of inspection of the records. If the material facts are not stated, it cannot be permitted to make out a case for

fishing out evidence from an inspection of election materials. The said factors are relevant for consideration for summoning documents, which were

not considered by the trial court before passing the impugned order. Until a iron-cast case is made out the secrecy of ballot box cannot be

tinkered. Followed Charan Dass v. Surinder Kumar and Ors., . Such material facts are not found in this case for justifying summoning of election

materials.

It is also relevant to point out that in one of the judgments of the Supreme Court in Ram Chand Bhatia Vs. Shri Hardyal, wherein the Supreme

Court has held that in cases where charge of corrupt practice in election is made, it must be proved beyond reasonable doubt, by holding that the

election proceedings are quasi criminal in nature. In fact, the Supreme Court held that it would be unsafe to accept the oral evidence on the face

value without seeking for assurance from some other circumstances or unimpeachable documents. The wordings of the Apex Court are as follows:

The election proceedings involving charge of corrupt practice are of quasi-criminal nature and it was for the election petitioner to prove beyond

reasonable doubt all the necessary facts which would establish the allegation of corrupt practices that have been alleged in the election petition. The

respondent has failed to establish the link that the appellant was responsible for the printing of the offending poster. If the important link of the

charge is not established it will be difficult to accept the succeeding link that respondent or his agent or persons with his consent distributed the

offending poster in the various meetings. It would be unsafe to accept the oral evidence on its face value without seeking for assurance from some

other circumstances or unimpeachable document. In the present case neither the name of the appellant nor his party was anywhere mentioned in

the offending poster. It contained election symbol of another party and solicited vote for another candidate. Unless it is established that respondent

had also made a common cause with the contesting candidate to start verification campaign against the respondent, the appellant cannot be held

responsible for what had been done by the candidate for whom the poster was printed. Undue emphasis should not be laid on the post-election

facts and circumstances to prove that the appellant made a common cause with that candidate, the subsequent facts being too meagre to be relied

upon.

By applying the abovesaid ratio to the factual position of this case, I have no hesitation to hold that the entire case is at a preliminary stage and

the petitioner has not made any averment about the safety of the ballot papers with the second respondent except saying that prima facie she is

able to point out difference between votes polled as per Form-20 and votes found available as per Form-22 and that difference may not be

sufficient to come to a prima facie conclusion that there was malpractice. I am of the considered view that the reasons given by the learned Judge

are not irregular or illegal which deserve to be interfered with.

In view of the same, the C.R.P. fails and the same is dismissed. No costs. Connected miscellaneous petition is closed.