Pushpendra Singh vs Padmakar and Others

D.P.S. Chouhan, J.—The writ petition is directed against the order dated 12.12.1995, passed by the Sub-Divisional Officer, Teonthar (Annexure-P-5 to the petition), order dated 20.2.1996, passed by the Sub-Divisional Officer, Teonthar (Annexure-P1 to the petition) and the order dated 23.2.1996, passed by the Sub-Divisional Officer, Teonthar. styled as Annexure-P-8 in the position which infact is Annexure-P-11 to the petition.

Election for the office of Sarpanch of Gram Panchayat Panasi, Tahsil Teonthar took place on 30.5.1994 and there were 11 candidates including the present Petitioner at the contest. The contest was between the Petitioner Pushpendra Singh and the responded No. 1 Padmakar as both of them in the counting secured equal number of votes i.e. 144 each and the result was determined as per Rule 82 of the Madhya Pradesh Panchayat Nirvachan Niyam, 1995 by drawing lots. Subsequent to the declaration of the result, the rival candidate Padmakar challenged the election of the Petitioner by means of election petition u/s 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (for brevity hereinafter referred to as ''the Act'') before the S.D.O., Teonthar which was numbered as Election Petition No. 3/Sa-144/95-96.

The Election Tribunal on the objection retarding inadequate deposit of security amount which was Rs. 50/- passed an order on 12.12.1995, which is Annexure-P-5 to the petition. The amount of Rs. 50/- was deposited on 25.7.1994 and subsequently on 7.1.95 a sum of Rs. 200/- was deposited so to make the amount Rs. 250/-. Objection was rejected on the ground that at the time of filing of the election petition non-deposit of security amount of Rs. 250/- comes within the category of mistake of the Court for which neither of the party should be allowed to take advantage nor should be allowed to put to disadvantage. Further election petition is entertained and, therefore, the same has to be decided on merit. This order was not in accordance with the law as it was neither mistake or error of the Court or the Authority, as it was the duty of the parties under the rules known as "The Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 (for brevity hereinafter referred to as ''the Rules'') to deposit proper security amount. Apart from the duty having been cast on the Petitioner to file the petition according to law, for complying the requirement of law, duty is also cast on the Election Tribunal. Rule 7 relates to deposit of security and for non-compliance of the rules the petition has to be dismissed.

The State Legislature, after the election petitions were filed under the said Act, by way of legislation known as "The Madhya Pradesh Panchayat Nirvachan Yachika Pratibhuti Nikshep (Vidhimanyakaran) Adhiniyam, 1996" cured the defect. In view of this, so far as the relief relating to quashing of Annexure-P-5 is concerned, it has become irrelevant and is not pressed.

The election petition contains allegations in paragraphs 5, 6, and 7, which are extracted as below:

�5� ^^ ;g fd ernku dsUnz �ekad 79 esa 4 er ,sls izfr{ksfir fd, x, ftuesa Li"V :i ls eq>s er feyuk Li"V Fkk] bu erksa dks izfr{ksfir flQZ bl dkj.k ls fd;k x;k fd ernkrk ds vaxwBk dk fu�ku mDr erksa esa cus Fks dkj.k ;g Fkk fd eri= izkIr djus ds iwoZ eri= ds izfri.kZ esa gLrk{kj ;k vaxwBk fu�kuh yxkuk vko'';d gksrk gS la;ksxo� vaxwBk fu�kuh ds ckn mDr pkjksa ernkrkvksa }kjk mlh gkfk ls eri= idM+k x;k vkSj vaxwBs esa yxh L;gh ds dkj.k vaxwBk dk fpUg eri= esa cu x;k] esjh vkif�k dh vulquh dh x;h bl izdkj esjs erksa dks voS/k :i ls izfr{ksfir dj eq>s x.kuk ifj.kke esa ek= 25 er vafdr fd, x,] m�kjoknh �- 1 dks ,sls 3 ir fn, x, tks okLro esa izfr{ksfir Fks] ,sls erksa esa nks pquko fpUgksa esa eqgj yxh Fkh fdUrq bu erksa dks eqgj dk izfrfcEc dgdj izfr{ksfir ugha fd;k x;k cfYd m�kjoknh �- 1 ds ge esa Mky fn;k x;k tks vR;ar nqHkkZoukiw.kZ ,oa voS/kkfud gSA

�6� ;g fd ernku dsUnz �- 80 esa 3 er ,sls gSa tks Li"V :i ls esjs pquko fpUg esa vafdr gSa fdUrq ihBklhu vf/kdkjh m�kjoknh �- 1 ds nckc esa vkdj izfr{ksfir dj fn, o 4 er ,sls gSa ftuesa nks pquko fpUgksa esa eqgj yxh gksus ds ckotwn Hkh eqgj dh izfrfcEc dh lack nsdj m�kjoknh �ekad 1 ds ge esa tksM+ fn, bl izdkj erx.kuk ifj.kke esa eq> ;kfpdkdrkZ dks dqy 119 er o m�kjoknh �- 1 dks 11 er n�kZ;k x;kA

�7� ;g fd eq> ;kfpdkd�kkZ dks ernku dsUnz �- 1 79 esa dqy okLrfod er 29 ftuesa 4 er voS/k :i ls izfr{ksfir fd, x, rFkk m�kjoknh �- 1 tks okLrfod :i ls 116 er feyk gS ftlesa 3 er izfr{ksfir voLFkk ds tksM+s x, ernku dsUnz �- 80 esa eq> m�kjoknh dks ewy okLrfod er 122 izkIr gSa ftlesa 3 er voS/k :i ls izfr{ksfir fd;k x;k] blh izdkj m�koknh �- 1 dks okLrfod er 87 gh feys gS ftls 84 er izfr{ksfir fLFkfr esa m�kjoknh ds gd esa tksM+s x,A0

The Election Tribunal passed an order on 20.2.1996 for recount of the ballot papers which was got done through Returning Officer (Panchayat) Block Teonthar. The recounting was done and on the basis of the report of the recounting, the Election Tribunal passed an order 23.2.1996 and declared the election Petitioner as having been duly elected for the office of the Sarpanch. These two orders are subject-matter of challenge in the present petition.

Heard the learned Counsel for the Petitioner, Shri G.S. Bhagel, learned Counsel for the Respondent No. 1, Shri K.P. Mishra, learned Counsel for the Respondents No. 2, 5, 6 and 9, Shri P.C. Paliwal and the learned State Counsel Shri Vivekanand Awasthy, who represented the official Respondents.

Learned Counsel for the Petitioner submitted that the Election Tribunal has erred in law as it has not framed the issues for determination of the question involved in the election petition. Secondly, the Election Tribunal has not taken evidence as required under the law as the burden was on the election Petitioner to establish that he had a case for recounting. Thirdly, the Election Tribunal has mechanically acted as it has not discussed in its order declaring the Petitioner as elected or passed any other order that on what basis 3 ballot papers were added to the ballot papers of the election Petitioner and what were characteristic of those ballot papers and how they were found to be valid in his favour.

So far as first question regarding framing of the issues is concerned, the submission as advanced by the learned Counsel for the Petitioner is sans substance as the Election Tribunal has framed the following 3 issues (as is evident from the order dated 20th February, 1996):

izdj.k esa fuEu rF; fu.khZr fd;s tkus gSa %&

�1� D;k fnukad 31-5-94 dks [k.M Lrj ij ;kfpdkd�kkZ ,oa m�kjoknh �- 1 ds e/; cjkcj cjkcj er gksus dh fLFkfr esa iphZ Mkydj ljiap in ds fuokZpu dk fofu''p; fd;k x;k\\ vFkok

D;k ;g izf�;k [k.M Lrj ij fnukad 2-5-94 dks lEiUu gqbZ\\

�2� D;k ;kfpdkdrkZ }kjk fnukad 3�5-94 dks ernku dsUnzksa ij vFkok fnukad 31-5-94 dks [k.M Lrj ij erx.kuk ds laca/k esa dksbZ f�dk;rh vkosnu i= vFkok iqueZrx.kuk dk vkosnu i= ihBklhu vf/kdkjh@fuokZpu vf/kdkjh dks fn;k x;k Fkk\\

�3� D;k ;kfpdkdrkZ vFkok m�kjoknh �- 1 ds izfr{ksfir eri=ksa ds laca/k esa xM+cM+h gqbZ gS\\ D;k iqueZrx.kuk dk vkns� fn;k tkuk U;klksfpr gS\\

Accordingly this objection deserves to be rejected.

The second submission is that the Petitioner has failed, by leading evidence, in establishing his case regarding the recount of the ballot papers. Learned Counsel for the Respondent No. 1 submitted that in the election petition itself which contains the allegations duly verified, as required under the Code of Civil Procedure, it has been clearly mentioned giving numbers of the polling centres and also how many ballot papers for what reason either not counted for him which should have been counted or wrongly rejected which should not have been rejected. It is not necessary to repeat those allegations as the same are already extracted above.

It is a settled position of law that the election petition is not common law remedy. It is a remedy provided by the statute. Learned Counsel for the Petitioner submitted that no application for recount of ballot papers was given before the Returnning Officer and as such, it could not have been entertained in the election petition. Learned Counsel for the Respondent No. 1 submitted that before the Returning Officer the application for recount of ballot paper was given, but he did not entertain the same. Here it is not the question to be considered as it could be a fact of prima facie satisfaction of the Election Tribunal. It cannot be a cause for impediment so far as the power of the Tribunal is concerned that no recounting or inspection of the ballot papers would be done unless a person makes an application before the Returning Officer for recount of the ballot paper. In paragraph 13 in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, , which is extracted below, the Supreme Court maintained the importance of secracy as sacrosanct resting the burden on the candidate challenging election to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for recount:

Thus the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hind sight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election Petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interest of Justice, a Tribunal or Court should not order the recount of votes.

Learned Counsel for the Respondents submitted that the decision has laid down the principle of law which has to be applied before recount is done and consequent upon recount the result has been declared as after the recount is done and result is declared it is for the losing candidate to establish before the Court prejudice and in the present petition the Petitioner has failed to prove any prejudice. This argument is sans substance. In the case of P.K.K. Shamsudeen (supra) the Supreme Court considered the aspect in paragraph 15, which is extraced as below:

Mr. Padamanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is choosen 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 their 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 cannons 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 28 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 emanating from the recount of votes.

So far as the present case is concerned, it is accepted position that no evidence whatsoever was led before the Election Tribunal by the election Petitioner so as to establish and substantiate in any acceptable measure by means of evidence a prima facie case having in existence high degree probability for recount of the ballot papers.

In view of above, decision of the Election Tribunal cannot be allowed to sustain.

The third submission as advanced by the learned Counsel for the Petitioner is that the Election Tribunal has not recorded reasons regarding recounting of three ballot papers in favour of the election Petitioner as to what was the nature and characteristic of such ballot papers as the Tribunal has not seen such ballot papers and has passed the order only on the basis of report of the Returning Officer who made the recounting of ballot papers. Though in view of the decision on the second point this point loses its significance, so far as the merit of the case is concerned it has got relevance. So far as the guidance of the Election Tribunal is concerned the Election Tribunal is supposed, in such circumstances, to look into such ballot papers which are counted in favour of a person or are taken away from the stock of the person in whose favour they have been counted. The Tribunal is also supposed to look to them himself and to record reasoning by dealing each ballot paper, as to why they were wrongly counted and why they have been counted by the Election Tribunal in favour of a particular candidate.

In view of above, the writ petition is allowed. The impugned order dated 20.2.1996 (Annexure-P-1 to the petition) and the order dated 23.2.1996 (Annexure-P-11 to the, petition) are set aside.