Gendalal vs Narayan Acharya and others

K.K. Dube, J.—The election of Sarpanch of Gram Panchayat Muradpur, district Guna, was held on June, 15, 1978. The petitioner Was declared elected on 10-7-1978, An election petition was filed at the instance of respondent No. 1, Inter alia on the ground that the counting was not properly done as 25 votes were either improperly rejected or counted thus materially effecting the result. The respondent No. 1, asked for a recount The S. D. O. deciding the election petition ordered a recount. It was now found that respondent No. 1. had obtained four votes more then the petitioner Gendalal, Accordingly, respondent No. 1, was declared elected and the election petition was allowed.

The main plank of attack in this petition is that the recount could not be permitted by the S. D. O. as no foundation for the same was properly laid in the election petition It is also contended that no allegations as regardt illegal rejection of the votes had been made in the election petition. No. particulars as to the alleged illegality in the counting were made so as to claim a recount. It is now contended that the presiding officer had no jurisdiction to act in violation of the established principles of law as regards recount and that the election results were bound to be vitiated when the presiding officer had acted illegally.

Section 357 of the M.P. Panchayats Act, 1962. lays down that no election notified under the provisions of this Act shall be called into question except by a petition presented to the prescribed authority. Sub section (3) enjoins that such election petition shall be enquired into or disposed of according to such summary procedure as may be prescribed. The procedure is prescribed by the M.P. Panchayats (Election Petitions, Corrupt Practices and Diqualification for Membership) Rules, 1962 Rule 5 requires that an election petition shall.

(a) Contain a concise statement of all facts on which the petitioner relies :

(b) Set forth with sufficient particulars, the ground or grounds on which the election it called in question.

The petition, therefore, roust contain a concise statement of all material facts on which reliance is made and it must also contain sufficient particulars of the impugned acts and omissions which constitute the ground on which the election is to be set aside. Rule 8 provides that the violation of Rule 3 or rule 4 or rule 7 would be fatal and the petition must be dismissed after giving the petitioner an opportunity of being heard. Rule 11 lays down that the election petition shall be enquired into by the proscribed authority, as nearly as may be, in accordance with the procedure to the trial of suits. While the noncompliance of rule 3, 4 or 7 entailed a dismissal, a non compliance of rule 5 would be dealt with in accordance with the procedure prescribed under the Code of Civil Procedure.

Rule 22 (1)(d) (ii) provides that the improper reception, refusal or rejection of any vote or the reception of any vote which is void would be a good ground for setting aside the election if the election has been materially effected by it. Under rule 26, a finality attaches to the decision of the prescribed authority in the election petition. In the instant case, as already sated above, the election petition was allowed declaring the election of the petitioner who had been returned, to be void and that the respondent No. 1 hid been duly elected as Sarpanch, There being no appeal against the order of respondent No. 2 the decision is now challenged in these proceedings.

The scheme provided by the rules, stated above, follows the pattern laid under the Representation of the People Act. However, the Representation of the People Act provides an appeal against the decision in the election petition. There would be a difference in the approach while considering the matter in appeal and when the order is being looked into in proceedings under Art. 226 of the Constitution In T. C. Basappa v. T. Nagappa (AIR 1944 SC. 440) their Lordships of the Supreme Court laid down as under:--

The second essential feature of a writ of ''certiorari'' is, that the control which is exercised through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of ''certiorari'' the superior Court does not exercise the powers of an appellate tribunal. It does not review or re-weigh the evidence upon which the determination of the inferior tribunal put-ports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The offending order or proceeding so to say it put out-of the way as one which should not be used to the detriment of any person, vide per Lord Cairns in ''Walsall''s Overseers v. L. and N. W. Rly Co, (1879) 4 A. C. 30 at P 39,

It is in the above light that we have to examine whether the order of the respondent No. 2 ought to be set aside. The law regarding recount is laid down by the Supreme Court in a number of cases In R. Narayanan Vs. S. Semmalai and Others, ) it has been laid down thus:

The Court would be justified in ordering a recount of the ballot papers only where;

(1) the elation petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded:

(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties

Since the order for recount touches upon the secrecy of the ballot, it should not be made lightly as a matter of course. It has, therefore, been laid down by the Supreme Court that though no cast-iron rule of universal application can be laid down, the Court would be justified in ordering a recount, where all the material facts on which the allegations of illegality in counting are pleaded adequately in the election petition, and the Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. We have already indicated that whenever full particulars as required under rule 5 were not given in the petition it was not a defect as ipso facto entails dismissal of the petition.

Now, the petitioner had not objected to the recount. The petition contains avermants-that majority of the votes were cast in favour of the respondent No 1 and it was due to bungling of the counting officers that certain votes cast in his favour bad been wrongly rejected and those that ought to have been rejected have been wrongly counted in favour of the petitioner.

In S. Baldev Singh Vs. Teja Singh Swatantar (Dead) and Others, it was pointed out as under:

If formal defects had been misconstrued at some table as substantial infirmities, or vice versa, resulting in wrongful reception or rejection, the sooner it was set right the better, especially when a plea for a second inspeclion had been made on the spot Many practical circumstances or legal misconceptions might honestly effect the legal or arithmetical accuracy of the result and prestige or fatigue should not inhibit a fresh, may be partial, check....After all fairness at the poll must not only be manifest but misgivings about the process must be erased at the earliest.

The misgivings about fairness in counting have been expressed in the respondent''s petition,

In Balwan Singh Vs. Lakshmi Narain and Others, ) the Supreme Court laid down that an election petition is not liable to be dismissed in limine merely because full particulars of corrupt practices alleged in the petition are not set out It was then Stated that insistences upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition. But if the contesting parties go to trial despite the absence of full particulars of the corrupt practices alleged, and lead evidence on the plea raised in the petition, the petition cannot be dismissed for want of particulars because the defect is one of procedure and not want of jurisdiction of the tribunal to adjudicate upon a plea in absence of particulars The above observations were in connection with particulars of corrupt practices The matter undoubtedly would be some what different in the case of recount. However, it cannot be lost sight of that in the case of recount also it would be merely a defect in the procedure and not a defect in jurisdiction of the Tribunal, and that is what we have to consider in this case, as we are not sitting in appeal over the decision of the S.D.O. who decided the election petition. Support may be sought from Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, wherein it was observed as under :--

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Now there can be no doubt that the requirement of full particulars is of paramount importance, in cases of this kind as in cases of the ordinary Courts based on allegations of fraud or undue influence. But unlike the one in the above decision of this Court relied upon, in which the question that arose was as to the validity of an order dismissing the entire election petition on the preliminary ground of absence of particulars, the question in this case is different. This is a case where notwithstanding the absence of particulars, the evidence was allowed to be given and taken. The question in such a case would not be one of absence of jurisdiction but as to whether there has been any material prejudice occasioned by the absence of particulars.

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The S.D.O. deciding the election petition had jurisdiction to order a recount as there were factual averments complaining of illegalities done in the counting of votes. No particulars had been asked to be supplied by the petitioner, nor any grievance was made that a recount should not be permitted. In such circumstances, when recount was done, we do not think that we should interfere with the order, particularly when the recount exposed the illegalities committed during the course of counting. To interfere with such an order would be to perpetuate an illegality.

On 30.7.1979 when the SDO ordered record to be inspected, no objection was taken. On 1-8-1979 the record was opened and the inspection conducted. The doubtful votes were separated in presence of the parties On 2-8-1979 also no objection was taken. It is after this that the recount was done and it was found that the petitioner had received lesser number of votes. If no material particulars are given, the Tribunal has authority to strike out the allegations, Assuming that the allegations in the petition had not been struck out, the petitioner would have to show bow he had been prejudiced in the procedure adopted in continuing with the trial of the petition.

No appeal lies against the order passed in the election petition, and the order can only be challenged in a petition under Art. 226 of the Constitution within permissible limits. This is an important consideration, as the scheme of the Act contemplates finality of the order in election petition. It is unlike the scheme under the Representation of the People Act where an appeal is provided. The Panchayats Act contemplates as summary procedure, as prescribed The jurisdiction vested in the SDO deciding an election petition under the Panchayats Act is not to be interfered With, as we are not exercising powers of an appellate tribunal. It cannot be said in the present case that the order was palpably erroneous and the recount ordered was on a consideration of the allegations not before him and thus wholly injustified.

The decision of this Court in Laxminarayan v. Manjoor Ali and others (Misc. Petition No. 148/79 decided on 29 the August 1979) was cited by the petitioner to support the proposition that the order passed by the returning officer was vitisted when a prima facie case for a recount was not made out. In Laxminarayans case (supra) the application before the SDO was barred by time. The petition was thus liable to be dismissed on the short ground. The observations as regards competency of the SDO to hold a recount need not have been decided in that case. Moreover, the point that in writ jurisdiction the High Court will not interfere when the tribunal otherwise had jurisdiction, had not been considered We, therefore, do not think that it is necessary to refer the case to a larger bench.

14 Having regard to the discussion made above, we think that the Tribunal''s order in the circumstances of the case, need not be interfered with.

In the result, the petition fails and is dismissed with costs. Counsels fee Rs. 100/- The balance of the security amount shall be refunded to the petitioner.