Kanjit Bhilala vs Divisional Officer and Others

N.K. Mody, J.

Prayer in the petition is for quashing the order dated 02.05.2005, passed by respondent No. 1, whereby the election petition filed by respondent No. 1 u/s 122 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, which shall be referred herein after as Act was allowed and the election of Sarpanch which took place on 23.01.2005 was set aside.

Short facts of the case are that election of Sarpanch of Gram Panchayat, Kudujeta took place on 23.01.2005. In this election the petitioner and the respondents No. 2 to 9 were contesting candidates. On 23.01.2005, counting took place in which petitioner and respondent No. 2, both got 264-264 votes equally. Since, votes were equal, therefore, returning officer by exercising the powers conferred under Rule 82 of M.P. Panchayat Nirvachan Niyam, 1995, which shall be referred hereinafter as rules decided to proceed by toss. Accordingly, additional vote was given to the petitioner and petitioner was declared as elected Sarpanch. The election of the petitioner was challenged by the respondent No. 2 by filing the petition on 23.01.2005 u/s 122 of M.P. Panchayat Raj Adhiniyam before respondent No. 1. Case was heard on question of recounting. On 27.04.2005, the rejected votes were re-examined and report was prepared and kept in the record. Thereafter, vide order dated 02.05.2005, election petition filed by respondent No. 1 was allowed and the election of the petitioner as Sarpanch was set-aside. Being aggrieved by the impugned order the present petition has been filed.

Learned counsel for the petitioner submits that order passed by respondent No. 1 is illegal and deserves to be set-aside. It is submitted that there was no occasion for passing an order of recounting. Respondent No. 1 did not record any evidence. Apart from this no issues were framed by the respondent No. 1 and petition was allowed.

Shri Umesh Gajankush, learned counsel for respondent No. 1 submits that petitioner sought time to adduce the evidence or to cross examine the witnesses of whom affidavits were filed by respondent No. 2.

Shri A.K. Shrivastava, learned counsel for respondents No. 2 to 4 and 7 submits that votes which were secured by petitioner and respondent No. 2 are equal in numbers as both the candidates got 264 votes. It is submitted that specific allegations were made by respondent No. 2 in the petition and affidavits were filed in support of the contentions made in the petition. It is submitted that petitioner never asked to the respondent No. 1 that he wants to cross examine the witnesses, therefore, petitioner cannot challenge the order passed by respondent No. 1 at this stage after recounting of the votes.

Shri C.L. Yadav, Sr. Counsel appearing on behalf of the petitioner submits that reply was filed by the respondent No. 2 on 26.04.2005 and the order of recounting was passed on 27.04.2005 and recounting took place on 30.04.2005. Learned counsel placed reliance on a decision of this Court in the matter of Shankar Singh Vs. Ishwarlal and others in WP No. 616/2005 decided 09.05.2005, wherein after placing reliance on a decision of Apex Court in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, and Mahender Pratap Vs. Krishan Pal and Others, it was held that order of recounting passed without recording of any evidence, merely on the basis of the pleadings made by respondent No. 1, not sustainable under law. Petition filed before this court was allowed by setting aside the order passed by the Court below. Learned counsel submits that in the matter of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, , the Hon''ble Apex Court has observed as under:

Mr. Padmanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in the order of reference of the case of N. Gopal Reddy Vs. Bonala Krishnamurthy and Others, and hence it would be a travesty of justice and opposed to all democratic canons to allow the first respondent to continue to hold the post of the President of the Panchayat when the recount disclosed that he had secured votes less than the petitioner. We are unable to sustain this contention because as we have stated earlier an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced before the order of recount is made and not from the results emananting from the recount of votes.

Learned counsel for respondent No. 2 submits that since the recounting has taken place and respondent No. 2 has been declared elected by one vote, therefore, at this stage the petition cannot be entertained. Reliance has been placed by the learned counsel on a decision in the matter of Sohan Lal Vs. Babu Gandhi and Others, , wherein, Hon''ble Apex Court has observed that, "once result of election is declared the Returning Officer has no power either to direct recount or to change result of election."

Learned counsel for the petitioner Shri C.L. Yadav submits that it has nothing to do with the present case. It is submitted that order in the matter of Smt. Ram Rati Vs. Saroj Devi and others, was re-examined by the Hon''ble Apex Court in the case of Sohanlal supra and it was observed that in view of Section 122 and the rules, "We are unable to agree with the ratio laid down in Ram Rati case (supra). 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 the 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 a 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, hold that the ratio laid down in Ram Rati case (supra) is not correct."

Learned counsel submits that in this case the necessity to adduce the evidence was not dispensed with by Hon''ble Apex Court.

In the facts and circumstances of the case it is clear that without recording of any evidence and also without framing any issue, learned court below has directed for recounting of votes and allowed the petition.

In the facts and circumstances and the position of law as laid down by Hon''ble Apex Court the petition is allowed. The impugned order dated 02.05.2005 passed by respondent No. 1 is set-aside. Case is remanded back to the respondent No. 1 with a direction to frame the issues, record the evidence and pass a reasoned order.

With the aforesaid observations, petition stands disposed of.

C.C. as per rules.