Tulsiram vs Uttam Khan and others

A.K. Mishra, J.

Petitioner in the writ petition challenges the validity of the election of Uttam Khan/respondent No. 1 to the post of Sarpanch of Gram Kanora Ram Nagar, Block Batiyagarh, District-Damoh held on February 1st, 2000. Aggrieved by the election, petitioner Tulsiram preferred an election petition u/s 122 of M.P. Panchayat Raj Adhiniyam, 1993 before the prescribed authority S.D.O. mainly on two grounds; first the counting was not properly held and the second ground was that result of the election was materially affected due to cast of vote of a deceased person, namely, Munnalal. The facts are denied by returned candidate. S.D.O. recorded the evidence of parties and dismissed the election petition.

The parties in the writ petition have confined their submissions to two aspects recounting and cast of vote of deceased Munnalal. After recording the evidence, SDO as per order Annexure P/8 dated June 1st, 2000 ordered recount. Recounting was held; on recount one vote in favour of petitioner Tulsiram was found to be invalid and one vote in favour of Uttam Khan was also found to be invalid. The total votes obtained by different candidates are noted below:-

(1)

Uttam Khan

181 Votes

(2)

Kaluram

11 Votes

(3)

Jawahar

15 Votes

(4)

Tulsiram

180 Votes

(5)

Shankarsingh

12 Votes

(6)

Hukumsingh

151 Votes

Thus, the result of the election remained unchanged; there was rejection of one vote of petitioner and one vote of respondent No. 1 Uttam Khan. With respect to cast of vote of deceased Munna Lal whose name figured at Sr. No. 179 of the voters list; there is categorical finding recorded by the SDO that all the counterfoils were checked and in none of the counterfoils, it was mentioned that any ballot paper was issued in the name of deceased Munnalal whose name is mentioned at Sr. No. 179 of the voters list, thus, SDO further came to the conclusion that it has also not been established that in whose favour the vote of deceased Munnalal was cast. The election petition was dismissed as per order Annexure P/1 which is assailed in the present writ petition by the petitioner.

Shri R.K. Samaiya, learned counsel for petitioner submits that as per sub-rule (4) of rule 60 of M.P. Panchayat Nirvachan Niyam, 1995 (for short "Nirvachan Niyam") it is necessary for the polling officer at the time of issuing a ballot paper to a voter to record on its counterfoil, the electoral roll number of the voter as entered in the marked copy of the voters'' list. Learned counsel submits that there was failure on part of the polling officer to make such an entry; firstly he submits that by underlining the entry of deceased Munnalal, voters list indicates that vote of the deceased Munnalal as a matter of fact was cast. He further submits that a voter is required to put his signature or thumb impression on the ballot paper as per requirement of sub-rule (4) of rule 60. Learned counsel submissions has two facets on this count; first that since there was marking below the name of Munna Lal at Sr. No. 179 in the voters list, it has to be presumed that vote of Munnalal was cast; secondly he submits that in case on the counterfoil number has not been mentioned as 179, it is the failure of the polling officer and the result of the election has been materially affected by issue of such invalid vote. Thus, the election is liable to be set aside as margin of difference is only one vote.

Learned counsel further submits that as per rule 15 of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification For Membership) Rules, 1995, it is necessary to seek recrimination when a seat is claimed. Rule 15 provides that whereas, at an enquiry into an election, any candidate claims, the seat for himself, the elected candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the elected candidate and a petition had been presented calling in question his election. Relying on Rule 15, learned counsel submits that vote which was earlier counted in his favour could not be counted against him at the time of recount particularly when no recrimination was sought by winning candidate as against the present petitioner in the election petition.

First I take up the submission raised by learned counsel for the petitioner with respect to the vote of deceased Munnalal.

Voting procedure has been prescribed in rule 61 of the Nirvachan Niyam. The voter is required to mark on the ballot paper and then to insert the same into the ballot box and then he has to quit the polling station. Rule 62 deals with recording of vote by blind or infirm voter. Rule 64 deals with tendered votes." Sub-rule (1) of rule 64 of Nirvanchan Niyam provides that if a person representing himself to be a particular voter named in the voters'' list applies for a ballot paper after another person has already voted as such voter, the applicant shall after duly answering such questions as the Presiding Officer may ask, be entitled to receive a ballot paper as a "tendered ballot paper" in the same manner as any other voter. Such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling station as required under sub-rule (3) of rule 64 and such tendered vote has to be as provided under clause (b) of sub-rule (3) of rule 64 of the Nirvachan Niyam endorsed on the back with the words "tendered ballot paper". Sub-rule (4) of rule 64 provides that the voter, after marking a tendered ballot paper in the polling compartment and folding it, instead of putting it into the ballot box, shall give it to the Presiding Officer, who shall place it in a cover specially kept for the purpose. Under sub-rule (5) of rule 64 separate covers shall be used for keeping the tendered ballot papers for election to the offices of Panch, Sarpanch and Member of Janpad Panchayat and Zila Panchayat; on recount it has been found that no ballot paper was issued to the voter bearing Sr. No. 179 Munnalal. It has not been established that vote of deceased Munnalal was cast. In case there was any impersonation for deceased Munnalal, the objection would have been raised at the relevant time by the agent/petitioner to the polling officer. This material circumstance point out that vote of deceased was not cast and there is no mention on counter foil of issue of vote to any person impersonating deceased Munnalal. It does not appear that any oral/written objection was filed when the vote, if any, of Munnalal was cast. In the instant case, on enquiry categorical finding has been recorded by the SDO that on the counterfoils, there is no mention that a ballot paper was issued to the person mentioned at Sr. No. 179. Thus, it becomes doubtful that any ballot paper was issued to the person mentioned at Sr. No. 179 in the voters list. Thus, the finding recorded by the SDO that there was no material to come to the conclusion that any vote was illegally cast in favour of winning candidate/respondent No. 1 is unassailable and is based on appreciation of evidence and calls for no interference. The underlining in voter list below 179 does not tally with electoral roll number of voters on counterfoil.

Shri R.K. Samiya, learned counsel for petitioner next submitted that in accordance with rule 15 of The M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules of 1995"), it was necessary for the respondents to have prayed for recrimination; in the absence of filing of recrimination petition, the votes polled in favour of petitioner could not be recounted. Rule 15 of the Rules of 1995 is quoted below:-

Recrimination when seat claimed.- Whereas, at an enquiry into an election, any candidate claims, the seat for himself, the elected candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the elected candidate and a petition had been presented calling in question his election.

A bare reading of rule 15 of the Rules of 1995 makes it clear that the same is applicable when any candidate claims a seat for himself then it becomes necessary for the elected candidate or any other party to give evidence to prove that the election of such candidate would have been void if he had been the elected candidate and a petition had been presented calling in question his election.

In the instant matter, perusal of the election petition (Annexure P/4) filed by petitioner before the SDO shows that the petitioner has not claimed the seat for himself. He has simply prayed for general recount; he has not confined the prayer for recount of the votes counted in favour of elected candidate. Prayer has been made to make the general recount not of the particular votes.

Learned counsel for petitioner has placed reliance on a decision of the Apex Court in Jabar Singh Vs. Genda Lal, and on a decision in P. Malaichami Vs. M. Andi Ambalam and Others, . In the aforesaid decisions, it was laid down by the Apex Court that in the absence of recrimination petition by the returned candidate u/s 97 of the Representation of People Act, he loses the benefit of addition of valid votes wrongly rejected before recounting is involved. In Jabar Singh''s (supra) the Apex Court held that in the absence of recriminatory petition u/s 97 rejected votes of the returned candidate could not be scrutinised by the Court and he should not have the benefit of valid votes wrongly rejected by the returning officer and that the High Court has no jurisdiction to reconsider the rejected votes qua the returned candidate. In P. Malaichami (supra), the Apex Court has followed the said decision and laid down that in a case where an election petitioner prays not merely for setting aside the successful candidate''s election but also for declaring himself as elected, the only ground on which he can be so declared is that in fact he had received a majority of valid votes. It is in deciding as to who has got the majority of valid votes that section 97 comes into play. In such a case it is the duty of the successful candidate to file a recrimination petition as contemplated by section 97 of Representation of People Act, 1951. If he does not do so, he will not be allowed to lead any evidence raising any plea against the validity of the claim of the election petitioner. In Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, and in Bhag Mal Vs. Ch. Parbhu Ram and Others, , the same view was reiterated. The matter was referred to the larger Bench in N. Gopal Reddy Vs. Bonala Krishnamurthy and Others, .

The submission raised though attractive, but is devoid of substance. Rule 15 of the Rules of 1995 quoted above clearly comes into play only when seat is claimed by the election petitioner which is also the emphasis laid down by the Apex Court in Jabar Singh (supra) and in P. Malaichami (supra) and other decisions which is also the provision in section 97 of Representation of People Act. Perusal of the election petition filed in the instant case shows that seat has not been claimed by the election petitioner for himself. Thus, Rule 15 of the Rules of 1995 requiring returned candidate to file recrimination petition does not come into play.

For another reason submission that only the votes which were counted in favour of the returned candidate ought to have been counted and the scrutiny of the votes of election petitioner could not be resorted to cannot be accepted for the reason that petitioner himself has prayed in the election petition for a general recount. He has not confined his prayer of recount for particular votes polled in favour of returned candidate; When the prayer has been made for general recount and that has been accepted by the SDO, petitioner now after recount cannot contend that votes which were counted in his favour could not be scrutinised. When the prayer was made for general recount and that has been done, it is not now open to the petitioner to contend that only partial recount ought to have been done. Thus, the submission is devoid of substance.

There is no merit in the petition. It is dismissed. In the facts and circumstances of the case, parties to bear their own costs. No order as to cost.