VISHWANATH VERMA vs STATE OF MADHYA PRADESH & OTHERS

Petitioner, an elected Sarpanch, Gram Panchayat Saghankala, Janpad Panchayat Hanumana calls in question the order dated 18.03.2016 passed by Prescribed Authority in an election petition under Section 122 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993; whereby, direction has been issued for recounting of votes.

Election for the post of Sarpanch was held on 13.01.2015. Seventeen contestants filed their nomination of which one later withdrew. Thus sixteen candidates

contested for the post which was unreserved. The main contest, as will be evident from the results was between the petitioner and respondent No.1. Petitioner contested on the symbol "Kitaab" whereas respondent No.1, the election petitioner contested on the symbol "Kanch Ki Gilas". In the counting held on 17.01.2015 wherein the petitioner was declared winner with 78 votes against 77 votes received by respondent No.1.

The respondent No.1 on the allegations that in her favour 80 votes were casted but because of the dispute raised by the polling agent of the petitioner who happened to be her son and against the wishes of Shri Umashanker Kol, the Presiding Officer of polling booth No.49 and by influencing the Prescribed Officer of polling booth No.48 Shri Amit Singh Patel, got recounting done and got 3 votes which were in favour of the respondent No.1 rejected. That the application filed by respondent No.1/election petitioner for recounting was not entertained. Whereafter on the representation given by the respondent No.1 to the Returning Officer for recounting was returned saying that he can seek redressal in Appeal. On these grounds respondent No.1 filed the election petition with further contention that at polling booth No.48 respondent got 46 votes whereas petitioner got 48 votes. At polling booth No.49, respondent claimed that she got 34 votes and the petitioner 30 votes. That in both the polling booths 30 & 22 respectively were declared invalid of which maximum votes declared invalid were casted in favour of respondent No.1. It was contended that had these votes were taken into consideration, the respondent could have been the winner by a margin of 22 votes. It was further contended that one Maniraj Singh who was to cast, his vote at polling booth No.48 was allowed to cast the vote at polling booth No.49. That one Pushpendra Singh casted his vote at both the polling booth.

It is also the contention by the respondent that the voters at serial No.849, 850, 851, 855, 854, 861, 862, 864, 869 and 879 were the voters of other Gram Panchayat, Polling Booth No.46 of Gram Panchayat Bandliya yet they were permitted to cast their votes at Polling Booth No.49 of Gram Panchayat, Saghankala.

It was further contended that though an objection was raised by agent of respondent No.1 against the dual voting done by Rajneesh Kumar, (serial No.893 & 448), Archana Dwivedi (serial No.693 & 694) and Pradeep Tripathi (serial No.699 & 700), yet no cognizance was taken thereon. It was also contended that the son of petitioner No.1 is indulged in corrupt practice and sought votes by extending bribe and on the basis of religion.

The Election Tribunal registered the case. Petitioner, whose election was challenged was arrayed as respondent No.1.

She denied all the allegations made in the election petition and contended that the election was done in accordance with the Rules and that there was no irregularity. All other adverse allegations made by respondent No.1 in the Election petition were also denied.

Respondent No.2, 3, 4, 5 and 13 supported the cause of the election petitioner.

Petitioner filed an affidavit under Order 18 Rule 4 of the Code of Civil Procedure, 1908. Whereas, respondent No.1, election petitioner reiterated the contention raised by her in the election petition. Vide said affidavit her witness Rajesh Kumar Chaturvedi also supported the cause of respondent No.1 by filing an affidavit under Order 18 Rule 4 of CPC. Further, in cross-examination in respect of the allegation made in affidavit he admitted of not filing any written complaint to the Presiding Officer but made only a oral request. The petitioner also filed an affidavit and examined her witnesses who supported the cause of the petitioner that the election was in accordance with the procedure prescribed.

The Prescribed Authority i.e. Sub-Divisional Officer, Mauganj, District Rewa after conclusion of evidence passed the order in the following terms : "VERNACULAR MATTER OMITTED"

Evident it is from the findings that the Prescribed Authority has taken into considering the margin of votes while directing for recounting. And also that the rejected votes were more. Though there is no findings that the rejection of votes was bad.

Petitioner criticizes the order on the basis that the same being cryptic and does not advert to alleged illegality or irregularity said to have been committed during recounting of votes is not tenable in law. It is further contended that even the Election petition filed by respondent No.1 was not in consonance with sub-rule (2) of Rule 3 of the M.P. Panchayat (Election Petition, Corrupt Practices and Disqualification for Members) Rules, 1995 (hereinafter referred to as ''the Rules of 1995''). It is contended that solely on the ground that the objection raised by agent of respondent No.1 having not been considered by the Presiding Officer cannot be a ground for directing recounting of the votes.

Countering the contentions raised on behalf of the petitioner, learned counsel appearing on behalf of respondent submits that election petition was in accordance with the stipulations contained under Rule 3 of the Rules of 1995 and since the petitioner and her agent had indulged in corrupt practices, the Prescribed Authority was well within its jurisdiction for direction recounting of votes.

Respective parties have relied upon the decisions in Dr. Omprakash Soni vs. Ashok Kumar Bhargava AIR 1996 M.P.43; Chandrika Prasad Yadav vs. State of Bihar (2004) 6 SCC 331; Shriniwas Tiwari vs. Rajkumar Urmalia ILR 2014 MP 113;. Rani Maraskole vs State of Madhya Pradesh (2016) 2 MPLJ 457; Smt. Anita vs Sakhi & ors. (2016) 3 MPLJ 437; Ram Rati vs Sub-Divisional Officer Sidhi and ors. (2005) 3 MPLJ 101.

After hearing learned counsel for the parties, the question which crops up for consideration is as to whether the Prescribed Authority for the reasons which find mention

in the impugned order, was justified in directing for a recounting. But, before dwelling upon the same, the submissions made on behalf of the petitioner that the election petition was not in the manner as is prescribed under sub-rule (2) of Rule 3 of the Rules of 1995 needs to be addressed first.

To ascertain the same, record from the Election Tribunal was sought which has been made available by learned Government Advocate.

That the election petition was presented on 12.02.2015 by respondent No.1-petitioner who was personally present alongwith counsel. The Prescribed Authority after being satisfied that the same is in consonance with the Rules of 1995, registered it and directed for issuing notices. That notices were issued alongwith the copy of the petition which was duly received by the petitioner, as is evident from the endorsement by her in the notice received by her. That no objection was raised by the petitioner of the nature which is raised in this petition that the stipulations contained under sub-rule (2) of Rule 3 of the Rules of 1995 has not been adhered to. It is also borne out from the proceedings before the Prescribed Officer that at no point of time, present petitioner has raised a ground as to non-compliance of stipulations contained under sub-rule (2) of Rule 3 of the Rules of 1995 which provides for : "(2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."

The petitioner having failed to establish that there is non-compliance of sub-rule (2) of Rule 3 of the Rules of 1995, contentions raised that the election petition ought to have been dismissed for non-compliance of sub-rule (2) of Rule 3 of the Rules of 1995, stands negatived.

Coming to the challenge on merit, it is borne out from the impugned order that though very many grounds were raised by election petitioner in her election petition in respect of corrupt practice which were specifically denied by the present petitioner. The Prescribed Authority instead of dwelling upon the allegations made in the election petition and the contentions raised therein and without formulating the issues and getting himself satisfied that because of non-entertaining of the objection raised on behalf of respondent No.1 at the time of counting and that there is difference of only one vote directed for recounting.

For recounting or even for scrutiny of votes certain parameters must be fulfilled as held in Chandrika Prasad Yadav vs. State of Bihar (2004) 6 SCC 331 : "20. It is well-settled that an order of recounting of votes can be passed when the following conditions are fulfilled :

(i) A prima facie case;

(ii) Pleading of material facts stating irregularities in counting of votes;

(iii) A roving and finishing inquiry shall not be made while directing recounting of votes; and

(iv) An objection to the said effect has been taken recourse to.

In Vadivelu vs. Sundram : (2000) 8 SCC 355 it is held : "16. The result of the analysis of the above cases would show that this Court has consistently taken the view that recount of votes could be ordered very rarely and on specific allegation in the pleadings in the Election Petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegation, it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties."

[Please see decision in Bhabhi vs. Sheo Govind AIR 1975 SC 2117; Ku.Shradha Devi vs. Krishna Chandra Pant AIR 1982 SC 1569; P.K.K.Shamsudeen vs. K.A.M.Mappillai

Mohindeen AIR 1989 SC 640; Satyanarain Duchani vs. Aduay Kumar Singh AIR 1993 SC 367 and Bahoran Lal vs. Ganesh Prasad AIR 1999 MP 7].

In M.Chinnasamy vs. K.C.Palanisamy (2004) 6 SCC 341, it is held : "15. ... It is trite that an order recounting of votes can be passed when the following ingredients are satisfied : (1) If there is a prima facie case; (2) material facts therefor are pleaded; (3) the court shall not direct recounting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to.

... ... 44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. [See Mahender Pratap v. Krishan Pal and Others - (2003) 1 SCC 3390 : 2003(1) RCR(Civil) 96 (SC)].

In T.H. Mustaffa (supra), this Court held that when the pleadings do not contain the material facts and necessary particulars, any amount of evidence would be insufficient.

Even in the recount it was found that the returned candidate has not secured majority of the votes, the result could not have been disturbed, unless prima facie case of high

degree of probability existed for recount of votes. [See P.K.K. Shamsudeen v. K.A.M. Mapillai Mohindeen - (1989) 1 SCC 526 at 530, 531]."

Furthermore, in a similar fact situation a Division Bench of this High Court in Vidyawati Lilhare vs. SubDivisional Officer-cum-Prescribed Officer 2010(1) MPLJ 115 was pleased to hold : "10. ......... Suspicion is not a ground and clearance of doubt is not a reason. In our considered opinion, this is not a fit case where recount should have been directed to be done. We are disposed to think that the same has been directed solely on the ground that the election petitioner had filed an application under Rule 80 which was rejected and that alone is not a sufficient ground.

In the case at hand also there being no material evidence nor any findings that 20 votes were wrongly rejected, the Prescribed Authority is not justified in directing the recounting of votes merely because respondent No.1 lost by a margin of one vote.

Consequently, the impugned order is set aside.

Petition is allowed to the extent above. No costs.