IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
WP No 1571 of 2006
Parvatia
...Petitioner
VERSUS
1 Padmini
2 Geeta devi
3 Darupadi Bai
4 Jankibai
5 Renuka
6 Hembai
7 Presiding Officer Polling Booth No 114
8 Presiding Officer Polling Booth No 115
9 Returning Officer Cum Nayab Tahsildar
10 Sub Divisional Officer
11 M D Kanvre Sub Divisional Officer
...Respondents
! Shri Rajesh Pandey Advocate with Shri Rakesh Pandey Advocate for the petitioner
^ Shri B D Guru Advocate for respondent no 1
Shri Utkarsh Verma Deputy Govt Advocate for the respondent no 10 and 11
HONBLE JUSTICE SHRI SATISH K AGNIHOTRI
Dated: 17/04/2007
: Order
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF
INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF
MANDAMUS/CERTIORARY ETC. OR DIRECTION/ORDER IN THE LIKE
NATURE ETC.
ORDER
(Passed on 17th day of April, 2007)
1. The petitioner is the elected Sarpanch of Gram
Panchayat Govinvan, Tahsil Bilaigarh, District Raipur in the
election held on 15.01.2005, after drawing a lot on
18.01.2005 by the Returning Officer, as the petitioner and
the respondent no. 1 secured equal number of votes i.e. 365-
365.
2. The respondent no. 1 filed election petition under the
provisions of section 122 of the Panchayat Raj Avam Gram
Swaraj Adhiniyam, 1993 (hereinafter referred to as `the
Adhiniyam, 1993) on 21.2.2005 before the Specified Officer
i.e. the Sub Divisional Officer, Bilaigarh, District Raipur.
The petitioner filed her written statement to the election
petition and submitted specifically that the petitioner and
the respondent no. 1 had secured equal votes and with the
consent of respondent no. 1, the result was declared on
account of draw of lots. Respondent no. 1 did not raise any
objection to the procedure of draw of lots. Thereafter, the
Specified officer, without framing issues and without
conducting the trial of the case, directed for recounting of
votes. The said order was impugned in W.P. No. 3187 of 2006
(Parvatia Vs. Padmini & Others). This Court, vide order
dated 31.8.2005, set aside the order passed by the Specified
Officer and directed the Specified officer to proceed with
the matter and decide the same after giving opportunity of
hearing to the parties to adduce their evidence and cross
examine the witnesses of the other parties. The Sub
Divisional Officer, thereafter, framed issues and examined
the evidence adduced by both the parties and after
considering, came to the conclusion that the son of the
petitioner congratulated the son of the respondent no. 1
which led into victory procession on the basis that counting
slips of polling station no. 114 and 115 was not given to
all the agents except to the son of the petitioner.
Accordingly, the Sub Divisional Officer directed recounting
of votes polled in polling station no. 114 and 115 of Gram
Panchayat Govinvan vide order dated 21.03.2006 (Annexure
P/1)
3. Being aggrieved and dissatisfied with the impugned
order, the petitioner vide this petition has, challenged the
legality and validity of the impugned order.
4. Shri Rajesh Pandey, learned counsel appearing for the
petitioner would submit that the Specified Officer has
directed recounting of votes without any application made
for the same during counting of votes before the appropriate
authority. The order passed by the Specified authority is
contrary to the principles of recounting of votes as laid
down by the Supreme Court in various cases. The respondent
no. 1 has acquiesced for re-counting of votes as respondent
agreed for declaration of result by draw of lots without any
demur. The petition ought to have been dismissed on the
ground of lack of material facts and proper pleadings
regarding irregularities and illegalities committed in the
counting of votes. The verification of the election petition
was also not in accordance with law.
5. Shri B.D.Guru, learned counsel appearing for the
respondent no. 1 would submit that the contention of the
petitioner that the verification of the election petition
was not in accordance with law, could not be permitted to be
raised at this stage when the petitioner has not raised the
said ground in the election petition. Secondly, the ground
of lack of material facts was also not raised in the
election petition seeking for dismissal of the election
petition. On other grounds it was contended that the
sufficient opportunity of hearing was not given to the
respondents to raise the issue, and even otherwise the
respondent no. 1 is not debarred from raising issue of re-
counting of votes after the result by draw of lots has been
declared.
6. I have heard the learned counsel appearing for the
parties, perused the pleadings and documents appended
thereto. The question of maintainability of election
petition on account of infraction of Rule 5(a) and (c) of
C.G. Panchayats (Election Petitions, Corrupt Practices and
Disqualification for Membership) Rules, 1995 (hereinafter
referred to as “the Rules, 1995”) was not raised before the
Specified Officer. The verification was not in accordance
with law was also not raised either before the Specified
Officer or in the pleadings before this Court.
7. The respondent no. 1 in her election petition has
pleaded the material facts as under:
“6- ;g fd ;kfpdkdrhZ rFkk mlds leFkZdksa ds }kjk
fot; tqywl esa fudy tkus ds ckn vukosfndk dzekad 1
ijcfr;k ds }kjk vius iq+= lqdnsoizlkn tks fd xzk- ia-
xksfoanou dk iwoZ ljiap Fkk mldh enn ls ihBklhu
vf/kdkjh vukosnd dzekad 7 ,oa 8 ls lkaBxkaB dj fy;k
x;k ftlds pyrs mDr ihBklhu vf/kdkfj;ksa ds }kjk
lgk;d fuokZpu vf/kdkjh fcykbZx<+ ds le{k xyr x.kuk
i=d izLrqr djrs gq;s ernku dsUnz dzazekd 114 esa
;kfpdkdrhZ dks 159 ds ctk; 2 er de djds 157 oksV
izkIr djuk crk fn;k x;k gS rFkk voS/k er 35 ds LFkku
ij 2 er c<kdj 37 er vafdr dj fn;k x;k gSA blh rjg
ernku dsUnz dzekad 115 esa vukosfndk dekad 1 ijcfr;k
dks izkIr 169 oksV ds LFkku ij 170 oksV crkdj ,d
oksV vf/kd c<k fn;k x;k gS rFkk voS/k erksa dh la[;k
41 Fkh mls 1 oksV de djds 40 oksV vafdr dj fn;k x;k
vkSj bl rjg ;kfpdkdrhZ rFkk vukosfndk dzekad 1
ijcfr;k dks cjkcj cjkcj 365 & 365 oksV izkIr gksus
dh xyr ,oa "kM;a= iw.kZ tkudkjh rFkk x.kuk i=d
izLrqr dj fn;k x;kA ftlds vk/kkj ij fnukad 18-1-2005
dks ;kfpdkdrhZ vkSj vukosfndk dzekad 1 ijcfr;k ds
e/; Vkl }kjk pquko djkus dh dk;Zokgh djrsa gq;s ;gka
ij Hkh "kM;a= iw.kZ dk;Zokgh fd;k x;k vkSj vukosfndk
ijcfr;k dks Vkl esa thruk crk fn;k x;k tcfd
;kfpdkdrhZ dks ijcfr;k ds uke ls fudyk gqvk fpV dks
ugha crk;k x;k vkSj uk gh ;kfpdkdrhZ ds uke ds fpV
dks crk;k x;kA bl rjg vukosfndk dzekad 1 ijcfr;k tks
fd 3 oksV ls gkj pqdh Fkh mls fdlh rjg ftrkus dh xjt
ls ?kksj "kM;a= iw.kZ dk;Zokgh fd;k x;k gS tks fd
iw.kZr% voS/kkfud d`R; gSA
8- ;g fd ernku dsUnz dzekad 115 esa ihBklhu vf/kdkjh
}kjk Lor% ,d QthZ oksV Mkyk x;k gS vkSj vukosfndk
ijcfr;k dks ftrkus dk iz;kl fd;k x;k gSA mDr
QthZ er vxe oYn tksfgr tkfr dykj ds uke dk gS A
9- ;g fd xzk- ia- xksfonaou ds ljiap in gsrq Mkys
x;s er i=ksa dh iquZx.kuk ,oa tkap fd;k tk; rks
;kfpdkdrhZ 3 oksV ls vo'; thr gkfly djsxhA"
8. The petitioner, in her written statement dated
23.3.2005 (Annexure P/3) has not objected to lack of
material facts the defects in verification. The evidences
were examined. On perusal of the election petition, it is
evident that the respondent no. 1 has pleaded material facts
and particulars with regard to relief for recounting of
votes. So far as the defect in verification is concerned,
that was neither raised in the written statement filed by
the petitioner nor in the petition filed herein.
9. Law in regard to counting of votes is well settled. The
Supreme Court, in case of P.K.K.Shamsudeen, v. K.A.M
Mappillai Mohindeen, (1989) 1 SCC 526, observed as under :
“13. 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 hindsight 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 votes
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.”
10. In cas of M. Chinnasamy v. K.C. Palanisamy,(2004) 6 SCC
341, the Supreme Court held as under:
“28. The law operating in the field is no
longer res integra. Inspection of ballot
papers can be ordered when in the facts and
circumstances obtaining in the case, the
Tribunal finds it necessary to so direct in
the interest of justice. Discovery and
inspection of documents with which the civil
court is invested with power under the Code of
Civil Procedure when trying a suit may be
applied but such an order would not be granted
as a matter of course having regard to the
insistence upon the secrecy of the ballot
papers. Such an inspection may be ordered when
two conditions are fulfilled:
( i ) that the petition for setting aside an
election contains an adequate statement of the
material facts on which the petitioner relies
in support of his case; and
( ii ) the Tribunal is prima facie satisfied
that in order to decide the dispute and to do
complete justice between the parties
inspection of the ballot papers is necessary.”
11. In case of Chandrika Prasad Yadav v. State of Bihar
(2004) 6 SCC, the Supreme Court has held as under:
“20. It is well settled that an order of re-
counting 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 fishing inquiry shall not be made
while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse
to.
21. The requirement of maintaining the secrecy of
ballot papers must also be kept in view before a
re-counting can be directed. Narrow margin of
votes between the returned candidate and the
election petitioner by itself would not be
sufficient for issuing a direction for re-
counting.”
12. In the case of Gursewak Singh v. Avtar Singh (2006) 4
SCC 542, the Supreme Court has held as under:
“22. The said dicta has been reiterated in
M.Chinnasamy v. K.C.Palanisamy, Hoshila
Tiwari v. State of Bihar and Tanaji
Ramchandra Nimhan v. Swati Vinayak Nimhan.
The reason why we referred to the said
decision is that at every level, in case of a
challenge to an election, pleadings of the
parties have been held to play a significant
role.”
13. The decision of this Court in Ramdeo Ram Vs. Vijaynath
and others, 2007(1) CJLJ 215, relied on by the learned
counsel appearing for the petitioner is of no help to the
present case as in the present case, no objection was raised
at any point of time either in the election petition or in
the writ petition with regard to lack of material facts or
incomplete verification as per law.
14. It is clear from the law laid down by the Supreme Court
in various cases cited above that the election petitioner
must prove proper pleadings in order to seek relief of
recounting of votes. In the present case, on perusal of the
writ petition, it appears that the petitioner has
sufficiently pleaded the material facts for grant of relief
of recounting of votes.
15. I am of the considered opinion that the order of
recounting of votes directed by the Specified Officer on the
basis of pleadings and on the evidences adduced by the
parties is just and proper and needs no interference by this
Court.
16. In view of the above, this petition stands dismissed.
JUDGE