D.B.Civil Special Appeal (Writ) No.402/2013 Smt.
Chail Kanwar & ORS.Vs Smt.
Swaroop Kanwar 1 1 D.B.Civil Special Appeal (Writ) No.402/2013 Smt.
Chail Kanwar & ORS.Vs Smt.
Swaroop Kanwar DATE OF ORDER
: 6th January 2014 HON’BLE Mr.JUSTICE DINESH MAHESHWARI HON’BLE Mr.JUSTICE V.K.MATHUR Mr.Ankur Mathur for the appellants.
Mr.Ravinder Singh for the respondent.
<><><> This intra-court appeal against the order dated 29.11.2012, as passed by the learned Single Judge of this Court in CWP No.12167/2011 is reportedly time barred by 75 days.
An application seeking condonation of delay has been moved with the submissions that the appellant being a rustic villager and not acquainted with the requirements of law, could not take appropriate steps within time to file the appeal within limitation.
Having regard to the circumstances, while ignoring the short delay in filing appeal, we have considered the matter on merits.
After having heard the learned counsel for the appellant and having perused the material placed on record, we are unable to find any reason to entertain this intra-court appeal.
Put in a nut-shell, the sum and substance of the matter is that the appellant, who had been a candidate in the elections held in the year 2010 for constitution of Gram Panchayat Magar Talab, Panchayat Samiti Desuri, has filed an election petition questioning the election of respondent No.1.
The appellant has, inter alia, D.B.Civil Special Appeal (Writ) No.402/2013 Smt.
Chail Kanwar & ORS.Vs Smt.
Swaroop Kanwar 2 alleged that the respondent had resorted to corrupt practices during election and has also alleged that counting of ballet papers was tainted with corruption.
The respondent has denied the allegations so made.
On the pleadings of the parties, the Tribunal framed the issues on 23.11.2010.
While the matter was pending for evidence, an application was moved by the appellant (election-petitioner) with the submissions that looking to the allegations made in the election petition, proper it would be that the ballet papers were requisitioned and were ordered to be recounted.
The Tribunal proceeded to allow the application by the impugned order dated 08.11.2011, inter alia, with the following observations.
“हम र मत म इस पकरण म मख व द ह ह कक मतगणन उच त तर क स नह क गई ह और दद पकरण म मतद न स सबच"त दसत ज मतपत तलब कर उभ पक क समक उनक पन:गणन कर ल ज ए त+ समभ त:इसक ब द क+ई व द शष नह रहग ।" The order so passed by the Tribunal was questioned in the writ petition leading to this appeal.
In the impugned order dated 29.11.2012, the learned Single Judge has found the Tribunal having erred in exercising its discretion and in directing recount of the votes at the given stage where the parties were yet to adduce their evidence.
The learned Single Judge was of the view that before the parties had adduced their evidence, no conclusion could have been drawn by the election Tribunal that the allegations contained in the election petition were prima facie established.
The learned Single Judge has, therefore, set aside the order impugned but has left it D.B.Civil Special Appeal (Writ) No.402/2013 Smt.
Chail Kanwar & ORS.Vs Smt.
Swaroop Kanwar 3 open for the Tribunal to take a decision in respect of the recounting of the votes on the basis of material on record at the appropriate stage.
Seeking to question the order aforesaid, the learned counsel for the appellant submits that there is no prohibition as such in law for an order for recount; and in the given set of facts and circumstances of the present case, the Tribunal has exercised its discretion perfectly in accord with law; and there was no justification for the learned Single Judge to have interfered with the discretion so exercised by the Tribunal.
In our view, the submissions as sought to be made on behalf of the appellant do not make out a case for interference.
The learned Single Judge has examined the record of the case and has also referred to the decisions of the Hon'ble Supreme Court cited before him.
The learned Single Judge has rightly pointed out that when the ground taken by the election-petitioner about improper counting of the votes was being seriously contested by the returned candidate, the Tribunal could not have directed recounting of the votes straight away without there being any material to arrive at the conclusion that illegalities or irregularities were committed by the Returning Officer in counting of the votes or some corrupt practice was adopted during the counting.
A look at the order dated 08.11.2011, as passed by the Tribunal, makes it clear that instead of proceeding with the trial of the election petition, the Tribunal considered recounting itself as a short- D.B.Civil Special Appeal (Writ) No.402/2013 Smt.
Chail Kanwar & ORS.Vs Smt.
Swaroop Kanwar 4 cut or a shorter method to deal with the dispute while observing that “probably”.
no dispute would remain after re-counting.
Such a tentative observation, in our view, is not sufficient to order a re-count.
In our view, while dealing with the election disputes and particularly before adopting the couRs.of recounting of the votes, the conclusion in accord with law is required to be reached by the Tribunal concerned, so as to be prima facie satisfied that in order to resolve the dispute and to do complete justice, the inspection of ballet papers is necessary.
Merely taking note of allegations about the so-called corrupt practice or illegality in counting cannot be taken sufficient for the purpose of ordering recount of the votes.
In the totality of the circumstances, the order as passed by the learned Single Judge being just, proper and in accordance with law, calls for no interference.
The appeal fails and is, therefore, dismissed.
(V.K.MATHUR),J.
(DINESH MAHESHWARI),J.
sudhir//