P. Saroja vs N. Meera Bai and Others

Ar. Ramalingam, J.—This civil revision petition has been filed against the order passed by the Principal District Judge, Chingleput in Election

O.P.No. 168 of 2001 on 31.1.2003.

Brief facts leading to the filing of this civil revision petition can be stated as follows :

There was election for the President of Urapakkam Panchayat Board on 18.10.2001 and in that election, one Meera Bai contested in the symbol

of Aeroplane as DMK party candidate and one Saroja in the symbol of Light House as AIADMK Party candidate and likewise eight more

candidates also contested on various symbols. Counting of votes was held on 21.10.2001 in the presence of Returning Officer cum Commissioner,

Kattankulathur Panchayat Union, Chingleput District. As per the counting, Meera Bai secured 818 votes and Saroja secured 825 votes and other

candidates also secured votes of different denomination put of the total votes polled viz., 4176. Out of the total votes, 379 votes were declared as

invalid. Meera Bai secured two votes in the second ward and nine votes with distinct marks. But, some of the votes polled for the said Meera Bai

were added with invalid votes and thereby Saroja was declared as successful candidate with the margin of seven vote. In fact, the said Meera Bai

secured more votes than the said Saroja. It so happened because the votes polled were not separated properly due to the influence of the said

Saroja and the Returning Officer ignored the request of Meera Bai at the time of counting and separating the votes. Further, the Returning Officer

and other election officials have not allowed Meera Bai and other candidates for verifying the vote properly. Meera Bai also gave objection letter

to the Commissioner by saying that if recounting is ordered, she would have fair chance of success. Anyhow, the Returning Officer has not

followed the principles of Tamil Nadu Panchayat Act and its Election Rules and thereby the Election of Saroja as successful candidate is void and

recounting should be ordered.

The successful candidate Saroja has filed counter by saying that the counting process was done properly and Saroja did not influence the

Returning Officer and the allegation as if Meera Bai secured more votes than Saroja is incorrect and in fact, the election was conducted as per the

procedure and rules of the Panchayat Act and in pursuance of the request of Meera Bai recounting was done in front of the candidates and agents

and results were declared accordingly. Hence, the petition is liable to be dismissed.

Based upon the contentions of either side, the Principal District Judge, Chingleput conducted enquiry and came to the conclusion that there was

some irregularities during the counting of votes and consequently the election of Saroja as successful candidate is void and recounting should be

made before that Court on 28.2.2003 at 3.30 p.m. and thereby allowed the petition.

Aggrieved against such order, this civil revision petition has been filed by the first respondent/petitioner viz., Saroja.

Point for consideration is whether the order, approach and reasoning of the Principal District Judge, Chingleput are proper, correct and justified.

On the side of Meera Bai, herself has been examined as PW1 and a Xerox copy of objection letter given to the Returning Officer has been

marked as Ex.P1. On the side of Saroja, herself has been examined as RW1 and her agent Bala Dhandayatham has been examined as RW2 and

the Assistant Election Officer concerned with Urapakkam Panchayat Board Election has been examined as RW3.

On keen perusal of the impugned order, I am able to understand that there were some irregularities in the counting of votes as per the allegations

contained in Ex.P1 and it is admitted by RW3 that a petition was given to the Returning Officer and the original of Ex.P1 has not been filed in

Court for indicating the nature of order passed by the Returning Officer on that petition and thereby non production of the petition given by Meera

Bai into Court leads to adverse inference and recounting of votes could be there and in consequence, Rules 66(2) and (3) have not been complied

with and irregularities alleged by Meera Bai are true and recounting should be ordered.

But, the learned counsel appearing for the revision petitioner relies upon the following rulings :

(1) Sundaram v. Vadivelu and two Ors., 1999 (1) LW 553; (2) Vadivelu Vs. Sundaram and Others, ; (3) P.H. Pujar Vs. Kanthi Rajashekhar

Kidiyappa and Others, ; (4) Mahendra Pal Vs. Shri Ram Dass Malanger and Others, ; (5) P.K.K. Shamsudeen Vs. K.A.M. Mappillai

Mohindeen and Others, ; (6) Iqbal Singh v. Avtar Singh and Ors., 1994 Supplement (2) SCC 746.

and advanced his arguments to the effect that there is no clear cut and specific pleading in the petition about the manner in which irregularities were

committed by the Returning Officer and there is no sufficient and satisfactory evidence to prove the alleged irregularities and that even Ex.P1 is not

based upon any substantial allegation and it is not only on frivolous grounds but also on suspicion and that unsuccessful Meera Bai has tried to

improve her case only in the chief examination as PW1 and counting was done with the principal agent of Meera Bai namely one Raju and neither

the said Raju nor her agents made any complaint about the irregularities at the time of counting and that Ex. P1 itself according to RW3 Assistant

Election Officer was given after the counting was completed and recounting was done and results were declared and that there is no evidence for

the said Meera Bai to show as if the successful candidate influenced the 10th respondent viz., the Returning Officer and that invalid votes were

counted in the presence of candidates and their agents and no invalid vote was counted in favour of Saroja and that simply because, the petition

was not filed into Court, it will not lead to the conclusion that there is acceptable case for setting aside the election and the petition filed by Meera

Bai was only with ulterior motive of unseating Saroja from the post of President of Urapakkam Panchayat Board by making baseless allegations,

The substantial principle laid down by the above said rulings cited by the counsel for the revision petitioner is to the effect that the pleading

should not be vague and it should be specific with regard to the nature of irregularities and recounting cannot be ordered on the basis of general

and bald allegations and the petitioner seeking recounting should prove that there was improper acceptance of invalid votes or improper rejection

of valid votes and that recounting can be ordered in rare cases on the basis of specific allegations in the pleadings supported by proof of improper

acceptance of votes or improper rejection of valid vote and recounting should not be casually ordered on mere ipse dixit of the petitioner and

merely because the margin of defeat of the petitioner is meager and in the absence of specific and acceptable evidence, application for recounting

cannot be allowed and where there is no prima facie case for recounting made out by there Election Petitioner, the order for recounting is invalid

and even if recounting is done based on erroneous order and successful candidate is found to have not secured highest number of valid votes the

result of the election already declared cannot be disturbed and that concise statement of facts to file the Election Petition is necessary based on

sufficient materials and mere suspicion arising from the averments cannot take place of proof.

In the light of the above observed principles laid down in the above said rulings, the question whether the unsuccessful Meera Bai has

sufficiently pleaded and proved the irregularities in acceptable manner has to be considered. Even in para 4 of the petition, it is alleged that the

unsuccessful Meera Bai came to know that during the counting, she secured 818 votes and the successful candidate Saroja secured 825 votes and

the other candidates secured various number of votes. This version indicates that the said Meera Bai cannot have personal knowledge of the

counting process and ,if not so, there is no need to say as if she came to know about those things. Further there is also another version to the effect

that the Returning Officer ignored Meera Bai''s request and the election officials did not allow her and other candidates to se and verify the votes

properly and that the objection letter was given to the commissioner and complaint was also given to Maraimalai Nagar Police Station. Therefore,

the cumulative effect of these versions go to show that she has not pleaded so with the personal knowledge about the nature and manner of

irregularities and as to how many votes were valid and rejected and. as to how many votes were invalid and counted in favour of successful

candidate and so on.

Moreover, it is to be significantly noted that Ex.P1 does not specifically disclose the nature and manner of irregularities and about the number

of votes improperly rejected or number of votes counted in favour of successful general and very bald allegations as if there is some confusion in

the counting and so all the votes polled should be counted again. If such general and bald allegations are considered with that of the allegations in

the election O.P., as if Meera Bai came to know about the counting process, it goes to show that Meera Bai is not specific and certain about the

manner and nature of irregularities and she has somehow filed the petition with the motive of unseating the successful candidate Saroja. Probably,

she should be on the advice of others belatedly. Moreover, except the mere ipse dixit of Meera Bai, there is no other evidence available on her

side to probablise the alleged irregularities in counting process, etc. Particularly the said Meera Bai as PW1 has clearly stated that the counting

started at 11.00 am properly and there was electricity failure and consequently, chairs and tables were changed and the votes were again counted

and at that time, the votes in her box were put in the boxes of other candidates and immediately she gave Ex.P1 complaint for recounting and

recounting was done and result was declared. At the same time, in the cross examination, Meera Bai has clearly admitted that one Raju was her

principal agent and he only participated in the election process on behalf of her and he only was present during the polling and counting on her

behalf and counting was also done in his presence and other agents and that no complaint was made about the electricity failure to the election

authorities and she gave Ex.P1 only after declaring Saroja as successful candidate and that the details of polling, counting were provided to her

principal agent. Further, she has admitted that Ex.P1 does not contain the signature of the Election Officer.

Therefore, the cumulative effect of the above said admissions of PW1 goes to indicate that polling, counting and all other acts were done in the

presence of the principal agent Raju who was all along present on behalf of Meera Bai. The said Raju in the capacity of principal agent does not

appear to have made any complaint about the failure of electricity or alleged irregularities or influence, etc. There is also no reason as to why the

said Raju has not been examined as a witness on behalf of Meera Bai. Likewise, there is no reason as to why none of the other contesting

candidates also have come to depose and speak about the alleged irregularities committed by the Returning Officer due to the influence of the

successful candidate Saroja. Moreover, RW3, viz., the Assistant Election Officer has categorically given evidence to the effect that he was also

present at the time of counting and it was done properly and particularly, the votes without specific marks alone were rejected as invalid and no

electricity failure occurred at the time of counting and generator was also provided in the counting places.

Ex.P1 was given only after declaring the result and even then recounting was done and again successful candidate was found to have secured

more votes. So, the evidence of RW3 coupled with the admission of PW1 goes to indicate that there cannot be irregularities in the counting

process as alleged by the unsuccessful candidate Meera Bai. At the same time, it is to be observed that no doubt, the election Officer has not

produced the original of Ex.P1 into Court. That does not mean that there were irregularities that too when none of the other contesting candidates

and their respective agents and particularly the principal agent of Meera Bai have not been prepared to give evidence about the alleged

irregularities. The failure to produce the original of Ex.P1 by the Election Officer may be a lapse, but at the same time, no inference can be drawn

as if there should be irregularities in the absence of specific pleadings and acceptable and reliable evidence on the side of unsuccessful candidate

Meera Bai.

In all probabilities, it is to be pointed out that because there is only meager margin of seven votes, the unsuccessful candidate Meera Bai has

made an attempt to file the Election Petition with some general and bald allegations as if there were irregularities. Even otherwise, in the absence of

specific pleadings and acceptable evidence on the side of the unsuccessful candidate Meera Bai, mere inference or suspicion cannot be a ground

for declaring the election as void or ordering for recounting. Therefore, in all force, I am satisfied that there are valid and sustainable grounds to

interfere with the order of the principal District Judge, Chingleput inasmuch as the order and its reasoning is not correct and justified. Accordingly, I

answer the point in favour of the petitioner Saroja and against the respondent Meera Bai.

In the result, the civil revision petition is allowed and the order of the Principal District Judge, Chingleput is set aside. No costs. The connected

C.M.P. is closed.