Suman Kanwar vs Rambharosi

The petitioner has preferred this writ petition claiming the following relief:

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction the impugned order dated 27.02.2019 Annex.1 may kindly be declared illegal and be accordingly quashed and set aside.

Any other relief to which petitioner appears entitle to may kindly be also be passed in favour of the petitioner."

Learned counsel for the petitioner has argued a very limited issue which is the main prayer of the respondent in the election petition, and the same was only to have recounting of the votes. The prayers made in the election petition of the respondent, read as under:

"अ- यह है कि दिनांक 24.01.2015 को ग्राम पंचायत नाडसर के सरपंच पद के लिए मतदान में अभ्यर्थी एवं प्रत्यर्थी को जो मत प्राप्त होना बताया गया है उन समस्त मतों तथा सभी निरस्त मतों की पुनः मतगणना कर अभ्यर्थी के अधिक मत होने की स्थिति में प्रत्यर्थी का निर्वाचन ग्राम पंचायत नाडसर के सरपंच के लिए अपास्त कर अभ्यर्थी को उक्त ग्राम पंचायत के सरपंच पद पर निर्वाचित सरपंच के रूप में घोशित किया जावे।

ब- इस याचिका का व्यय अभ्यर्थी को प्रत्यर्थी से दिलवाया जावे। स- अन्य कोई अनुतोश जो अभ्यर्थी के पक्ष में हो दिलाया जावे।"

The election of the petitioner as Sarpanch took place in Gram Panchayat Nadsar, Tehsil Bhopalgarh, District Jodhpur on 24.01.2015.

The limited argument of learned counsel for the petitioner is that the judgment rendered by Full Bench of the Hon'ble Apex Court in Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari and another (Civil Appeal Nos. 5710-5711 of 2912), required the recounting of votes only in certain conditions. Para 8 of the aforesaid judgment, reads as under:

"8. Before the court permits the recounting, the following conditions must be satisfied:

(I) The court must be satisfied that a prima facie case is established;

(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

(iv) An opportunity should be given to file objection; and

(v) Secrecy of the ballot should be guarded."

Learned counsel for the petitioner has demonstrated from the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter referred to as the 'Rules of 1994'), that how the court has to pass an order as per Rule 86 & 87 of the Rules of 1994, which reads as under:

"86. Powers of Court hearing petition.- The Judge hearing a petition shall have the same powers and privileges as a Judge of a Civil Court when trying a suit and may for the purpose of serving any notice or issuing any process of doing any other thing employ an officer, clerk or peon attached to his Court:

Provided that no injunction or stay order shall be issued restraining the person, whose election is questioned, from exercising the power and performing the duties under the Act and rule made thereunder.

Order of the Court.- (1) Upon the conclusion of the hearing the Judge shall make an order :-

(a) dismissing the petition, or

(b) declaring the election of all or any of the returned candidates to be void, or

(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.

1[(d) where any charge is made in the petition of any corrupt practice having been committed at the election, record -

(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and

(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice;

Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause

(d) above, unless -

(i) he has been given notice to appear before the court and to show cause why he should not be so named; and

(ii) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the court and has given evidence against him, of calling evidence in his defence and of being heard.]"

Learned counsel for the petitioner submits that there is a specific bar in Rule 86 of the Rules of 1994, for granting any injunction or stay in favour of any of the parties.

Learned counsel for the petitioner also states that after finally hearing the matter, the Court can take the call as per Rule 87 of the Rules of 1994.

Learned counsel for the petitioner has read the impugned order, the conclusion of which, reads as under:

"निश्कर्शतः न्यायालय के समक्ष पत्रावली के परिप्रेक्ष्य में ग्राम पंचायत नाडसर के सरपंच पद के मतदान की पुनः मतगणना किये जाने के अलावा कोई विकल्प उपलब्ध नहीं है। प्रकरण में दिनांक 24.1.2015 ग्राम पंचायत नाडसर के सरपंच पद के लिए जो भी मतदान हुए थे, उसकी पुनः मतगणना की जाती है, तो इस प्रकरण के न्याय निर्णय करने में सुविधा होगी तथा पुनः मतगणना के पश्चाताप स्वच्छ एवं संतुलित निर्णय पारित किया जा सकेगा। अतः इस प्रकरण के अंतिम विनिष्चय से पूर्व न्यायालय हाजा प्रकरण से संबंधित सरपंच पद के मतदान की पुनः मतगणना किया जाना न्यायोचित पाता है। न्यायालय द्वारा पारित उक्त मत की पुश्टि प्रार्थी द्वारा प्रस्तुत न्यायिक दृश्टांत से भी होती है।

जिला निर्वाचन अधिकारी, जोधपुर को पुनः मतगणना एवं व्यवस्था हेतु पृथक से तहरीर जारी हो। मतों की पुनः मतगणना के दौरान विवादित और निर्विवादित मतों को लेकर आदेश न्यायालय के पीठासीन अधिकारी के द्वारा ही पारित किया जाएगा। प्रकरण में आगामी पेषी को पक्षकार असालतन उपस्थित रहें अथवा उनकी ओर से उनके अधिवक्ता उपस्थित रहे। पत्रावली वास्ते आगामी कार्यवाही हेतु दिनांक 15.3.2019 को पेश हो।"

Learned counsel for the petitioner makes a limited prayer that the only principal prayer of the respondent, was for recounting of the votes, that was prayer "A", which has already been reproduced hereinabove.

Learned counsel for the petitioner submits that the final relief sought by the respondent cannot be granted at the interim stage without concluding the hearing. Learned counsel for the petitioner also submits that apparently, the impugned order dated 27.02.2019 is bypassing the rules and the settled principle that the final relief cannot be granted without finally conclude the hearing.

Learned counsel for the respondent however, submits that recounting was one of the prayers, and apart therefrom, two ancillary prayers were also there.

Learned counsel for the respondent opposed the aforesaid submissions made on behalf of the petitioner.

This Court, after seeing the prayer clause, finds that prayer "A" is for recounting of votes, prayer "B" is for compensation and prayer "C" is regarding any other relief, and therefore, there is only one prayer in the election petition, which pertains to recounting of the votes.

This Court also has perused the judgment of Arikala Narasa Reddy (supra), cited by learned counsel for the petitioner and the said precedent law makes it amply clear that recounting of votes is to be done only in a very limited ambit and after conforming to the parameters of the election rules.

This Court also carefully perused Rule 86 and Rule 87 of the Rules of 1994 and it is clear that the legislative mandate was that only after final hearing, a conclusion could be arrived at by the Election Tribunal. This Court is of the opinion that the learned court below has erred in passing interim orders of recounting, which was the final prayer granted vide the impugned order dated 27.02.2019. It is settled principle of law that no final relief can be granted at an interim stage even if the same is convenient to the Court. Thus, in the interest of justice, the impugned order has to be set aside with liberty to the parties to participate in the proceedings of the election petition and get the hearing concluded.

In light of the aforesaid observations, the present petition is allowed and the impugned order dated 27.02.2019 is hereby quashed and set aside. The learned court below is directed to conclude the hearing after adopting the due procedure as per the Rules of 1994. Both the parties shall be required to strictly adhere to the schedule settled by the learned court below to ensure expeditious disposal of the election petition. However, the learned court below shall be free to pass any orders, strictly in accordance with law, while complying with the necessary Rules and also after making adjudication on the merits of the case. The stay application No.3578/2019 stands disposed of accordingly.