Rameshchandra Bhilala vs Bashir and others

Shantanu Kemkar, J.

This intra Court appeal u/s 2 of the Madhya Pradesh Uchch Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed challenging the order dated 26-7-2010 passed by learned Single Judge of this Court in W.P. No. 6598/2010.

Briefly stated the appellant and the first respondent contested election tor the post of Sarpanch of Gram Panchayat Multhan, Tehsil Kasrawad, District-Khargone. In the said election the first respondent was declared elected as Sarpanch. Challenging his election the appellant preferred election petition uncer section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 before the Sub Divisional Officer (Revenue), Tehsil Kasrawad. In the said election petition the appellant/election petitioner prayed for recounting of the votes. The Sub Divisional Officer without framing issues and recording evidence by a non-speaking order dated 20-4-2010 allowed the said prayer made by the appellant and directed recounting of votes. In terms of the said order the recounting of the votes was done and the election of the first respondent was set aside by the Sub Divisional Officer vide order dated 25-5-2010 and the appellant was declared elected having found to have secured one vote more than the first respondent.

Aggrieved by the order dated 20-4-2010 by which recounting of the votes was ordered as also the result of recounting dated 25-5-2010 declaring the appellant to be elected on the post of Sarpanch, the first respondent filed a Writ Petition No. 6598/10 before this Court. The said writ petition was allowed by learned Single Judge vide order dated 26-7-2010. The writ Court set aside both orders, restored the status of the petitioner to the post of Sarpanch and directed the Sub Divisional Officer to decide the election petition in accordance with law preferably within three months. Aggrieved the appellant has filed this appeal.

Shri Vivek Dalai Learned Counsel for the appellant argued that the order of recounting passed by the Sub Divisional Officer on 20-4-2010 having been carried out and the appellant having been declared elected vide order dated 25-5-2010, the learned Single Judge could not have restored the status of the petitioner (first respondent herein) ignoring the result of the recounting in which the appellant secured more votes and declared elected.

Shri A.S. Garg, learned Senior Counsel for the first respondent on the other hand argued that the procedure adopted by the Sub Divisional Officer in deciding the election petition being contrary to law laid down by this Court as also by the Supreme Court, the writ petition was rightly allowed and the matter has rightly been remanded to the Sub Divisional Officer for fresh decision in accordance with law. He also argued that in view of the judgment of Supreme Court in the case of Udey Chand Vs. Surat Singh and Another, and by this Court in the case of Kailash Singh Vs. Narayan Singh and Others, as also in the case of Uday Singh Vs. Himmat Singh and Others, , the orders impugned the writ petition could not have been sustained and as such they have rightly been quashed by the learned Single Judge and the first respondent''s status has rightly been restored til fresh adjudication of the election petition.

Having head Learned Counsel for the parties, we find no merit in this writ appeal.

On going through the order dated 20-4-2010 by which recounting has been ordered by the Sub Divisional Officer we find that the recounting has been ordered by a cryptic order, in violation of the law laid down by the Supreme Court in the case of Udey Chand vs. Surat Singh (supra) as also by this Court in the cases of Kailash Singh vs. Narayan Singh (supra) and Uday Singh vs. Himmat Singh (supra). The Supreme Court in the case of Udey Chand vs. Surat Singh (supra) has held that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, and as in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting are made out, such an order cannot be made as a matter of course. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements which must be satisfied are : (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary.

In the case of Kailash Singh vs. Narayan Singh (supra) it has been held by this Court that recounting of votes cannot be ordered on mere pleadings. There should be contemporaneous evidence to support order of recount. The order of recounting of votes if passed without any evidence it can be interfered into by this Court in writ petition under Article 227 of the Constitution of India. In the case of Uday Singh vs. Himmat Singh (supra) it has been held by this Court that no re-counting can be ordered on mere asking, issue should have been framed and after recording the evidence the matter should have been decided.

On going through the order dated 20-4-2010 we find that the order of recounting has been passed ignoring the aforesaid settled legal position by a cryptic order. The re-counting has been ordered on mere asking without there being any evidence necessitating passing of such order. In the circumstances, the said order and the consequential order of recounting of votes have rightly been quashed by learned Single Judge. The Supreme Court in the case of Udey Chand vs. Surat Singh (supra) has interfered into the order of recounting, even after recounting was carried out and the election petitioner was being declared elected. While negating the identical contention as advanced in this appeal by Learned Counsel for the appellant, the Supreme Court in the case of Udey Chand vs. Surat Singh (supra) has observed in Paragraph No. 32 as under :-

Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taking place in terms of the Tribunal''s order, this appeal is rendered infructuous. The argument is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes.

In the circumstances we are not inclined to accept the appellant''s contention that the recounting as was ordered having been carried out and the appellant having been declared elected, in the said process of re-counting the writ petition could not have been allowed in favour of the first respondent. The order of re-counting itself being illegal and contrary to law laid down in the aforesaid cases, the same cannot be sustained as a result the consequential order dated 25-5-2010 is also not sustainable and as such the same have rightly been quashed by the writ Court. No case for interference in the order of learned Single Judge in this writ appeal is made out.

Accordingly, the appeal fails and is hereby dismissed. No order as to costs.