Shankar Singh vs Ishwar Lal and Others

N.K. Mody, J.

Being aggrieved by the order dated 19.4.2005, whereby the SDO, Alot, District Ratlam prescribed authority has directed for recounting of votes, the present petition has been filed.

Short facts of the case are that the election of Gram Panchayat, Samalya, District Ratlam took place on 19.1.2005. The counting took place on the same day in which the petitioner secured 358 votes and the Respondent No. 1 secured 354 votes. Since, the petitioner secured four votes more than Respondent No. 1, therefore Petitioner was declared as elected Sarpanch of Gram Panchayat, Samalya, Distt. Ratlam. The election of petitioner was challenged by the Respondent No. 1 by filing the petition u/s 122 of M.P. Panchayat Raj Adhiniyam, 1993 on various grounds including on the ground that there were 92 votes which has been wrongly rejected by the Returning Officer at the time of counting. Hence, it was prayed that the election of petitioner as Sarpanch be declared void. Petitioner submitted the reply wherein the allegations made against the petitioner were denied and it was prayed that petition be dismissed.

Vide impugned order dated 19.4.2005 the Prescribed Authority passed the order whereby it was directed that instead of keeping the petition pending for recording of evidence unnecessarily votes should be recounted. Being aggrieved by the impugned order the present petition has been filed.

Learned counsel for the petitioner submits that without framing of issue, recording of evidence and coming to the conclusion that in the interest of justice, it is necessary to direct the recounting of votes, at the initial stage the Prescribed Authority has directed for recounting of votes.

Shri C.L. Yadav, learned counsel for the petitioner placed reliance on a decision reported in P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, , wherein it is held that :-

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 vote 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 interests of justice, a Tribunal or Court should not order the recount of votes.

Viewed in the light of these well enunciated principles, we find that the petitioner has neither made such averments in the petition nor adduced evidence of such a compulsive nature as could have made the Tribunal reach a prima facie satisfaction that there was adequate justification for the secrecy of ballot being beached in the petitioner''s case. Factors urged before us by Mr. Padmanabhan such as that the first respondent had accepted the correctness of the recount, and that he had conceded his defeat and wanted a reelection to be held cannot constitute justifying materials in law for the initial order of recount of votes made by the Tribunal.

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 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 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 of 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.

Mahender Pratap Vs. Krishan Pal and Others, ,

In this appeal, it has been sought to be projected that the application for recount was made in the permissible interval between the announcement of the result of counting and signing of result-sheet in Form-20. This plea raised in the appeal is contrary to the appellant''s own pleading and evidence and is thus, clearly an after thought. We thus find that petitioner''s case is based on misleading facts. The least we can do is to dismiss his appeal and confirm the order of the High Court rejecting his election petition.

As seen from the decided cases mentioned above, in election petitions which are filed with prayer for recount of votes, the Court has always insisted upon a high standard of proof of grounds as would impel the Court to direct recount of votes and reached the election results. It is only after the election petitioner is able to demonstrate before the Court by leading satisfactorily evidence that there was serious flaw in the counting procedure which had materially affected the result of election that the prayer for recount is generally allowed.

Learned counsel for the petitioner placed further reliance on 1998 JLJ 351, Pushpendra Singh Vs. Padmakar and others, where in it is held that,

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.

Learned counsel for the petitioner further placed reliance on Ramdeen Vs. State of M.P. and Others, where in it is held that.

Secrecy of ballots is important. Recounting has not to be ordered until and unless case for recounting is established satisfactorily by adducing evidence. In an election petition challenging the election of Sarpanch, the petitioner complained of certain irregularities in the counting and filed twelve affidavits, but the allegations were refuted by the returned candidate and it was contended that the counting was properly held and that there was no illegality or irregularity whatsoever. An application was also filed by the returned candidate to call those twelve deponents for cross-examination. The SDO outrightly allowed the election petition and directed recounting without recording evidence and without calling the deponents for cross-examination.

Impugned order cannot be allowed to stand. It is quashed. Matter remitted to the SDO to record the evidence of both the parties and thereafter first to decide the question whether case for order of recount was made out on the averments and the evidence adduced by the parties.

Learned counsel for the Respondent No. 1 placed reliance on 2004 (1) M.P. Weekly Notes 69 and submits that the writ petition itself is not maintainable.

From perusal of the decision of the Hon''ble Supreme Court it is evident that the position of law is settled. In the case of P.K.K. Shamsudeen Vs. K.A.M. Mappilai Mohindeen and others AIR 1989 supra, even the recount took place and the winning candidate file the election petition secured 28 votes less in the circumstances also Hon''able Supreme Court has held that 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 maintainability of the petition is concerned, in the case of Gabsingh Vs. Jorawarsingh reported in 2004(1) M.P. Weekly Notes, 69 after filing of the petition and before passing of the order the evidence was led by parties and after recording of the evidence, by the impugned order the Learned Competent Authority came to the conclusion that the case of recount is made out accordingly direction to recount was passed. In the circumstances, Hon''ble Single Judge has taken a view that the order appears to be justifiable. Since, in the present case, without any application of the Respondent No. 1 and also without recording of any evidence, merely on the pleadings made by the Respondent No. 1, the order has been passed, therefore, the order is not sustainable in law. Similarly, the judgment reported in 2004(1) MPWN Note 69 is quite distinguishable. On the facts and circumstances of the a case, petition stands allowed. Impugned Order is set-aside with the direction that the learned Court below after framing of issues and recording of evidence shall pass the order regarding recounting of votes. The electing petition shall be disposed of by the Court below at the earliest.

No order as to Costs.