Sheshrao Nivrati Surwase Vs. Nilkanth Jyotiba Gaikwad and ors. - Court Judgment

Excerpt:
bombay village panchayats act, 1958 - section 15 - bombay village panchayats rules, 1966 - rule 35 - election petition - prayer for recount of votes - court cannot order recount of votes unless and until it is established by leading evidence that such an application for recount was given to the returning officer and was refused by him.;unless and until the petitioner proves after leading evidence before the trial court, that he had moved such an application for recount before the returning officer and the same was refused by the returning officer, then and then alone, the court would assume jurisdiction to grant the relief of recount. it is settled law that recount of ballot papers cannot be, as a matter of course. the reason is two-fold, firstly that such an order affects the secrecy of the ballot which under the law is not likely to be disturbed and secondly, the rules provide an elaborate procedure and unless and until it is categorically established that the returning officer has colluded in the corrupt practice, recount cannot be directed. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. ' thus, the apex court has laid down that the court would be justified in ordering a recount only when the election petition contains adequate statements of all material facts on which allegations of illegality or irregularity in counting are founded and on the basis of evidence adduced, such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting and further, when the court trying the petition is prima facie satisfied for making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.a.p. deshpande, j.1. heard counsel for the parties.2. the counsel for the petitioner orally prays for deletion of respondent no. 3. prayer granted, respondent no. 3 stands deleted.3. rule. rule made returnable forthwith. taken up for final hearing by consent of parties.4. mr. rodge, counsel appearing for the respondent nos. 1 and 2, waives service for the said respondents, and mrs. akolkar, assistant government pleader appearing for the respondent nos. 4 and 5, waives service for the respondents.5. the petitioner instituted an election petition under section 15 of the bombay village panchayats act, 1958, and prayed for a relief for setting aside the declaration of election in favour of the returned candidates viz. the respondent nos. 1 and 2. in the election petition, multifold grounds are raised touching the corrupt practice allegedly committed by the respondent nos. 1 and 2, in collusion with the returning officer. neither issues are framed nor any evidence is led. at a very early stage, the petitioner moved an application for recount and the same has been granted as a matter of course. it is this order passed by the trial court, which is challenged by filing the instant writ petition.6. mr. gunale, learned counsel appearing for the petitioner, contended that unless and until it is shown by the petitioner, that he had made an application for recount, before the returning officer, as is contemplated by rule 35 of the bombay village panchayat rules, 1966, the court has no jurisdiction to grant recount. the case of the petitioner is that he wanted to tender an application demanding a recount under rule 35 but the said application was not accepted by the returning officer and no orders are passed thereon. serious allegations are made against the returning officer, not only in regard to indulging in corrupt practice in collusion with the respondent nos. 1 and 2, but also about alleged refusal to accept the application for recount. unless and until the petitioner proves after leading evidence before the trial court, that he had moved such an application for recount before the returning officer and the same was refused by the returning officer, then and then alone, the court would assume jurisdiction to grant the relief of recount. it is settled law that recount of ballot papers cannot be, as a matter of course. the reason is twofold, firstly that such an order affects the secrecy of the ballot which under the law is not likely to be disturbed and secondly, the rules provide an elaborate procedure and unless and until it is categorically established that the returning officer has colluded in the corrupt practice, recount cannot be directed.7. the learned counsel for the petitioner has placed reliance on the judgment of the apex court reported in : [1997]3scr1050 , in the case of smt. ram rati v. saroj devi and others. an identical question fell for consideration of the apex court. while answering the same, the court held that unless and until an application for recount is made before the returning officer, the court trying the election has no jurisdiction to order recount of the ballots. the said judgment was under madhya pradesh panchayat raj adhiniyam and madhya pradesh panchayat elections rules. rule 76 of the said rules is in pari materia with rule 35 of the bombay village panchayat election rules and the judgment of the apex court squarely applies to the present case. the apex court observed in para 6 of the judgment, thus :'it is difficult to give acceptance to the contention that the respondent made an application to the returning officer and the returning officer had not recounted. in the light of the mandatory language of rule 76 of the rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking recounting. if it is not done, then the tribunal or the court is not empowered to direct recounting even after adduction of evidence and consideration of the alleged irregularities in the counting. the essential condition precedent is that an application in writing should be made and the returning officer should pass an order with reasons in support thereof either to recall the order or otherwise, in writing. the fact that the officer had not passed any order in writing would indicate that the respondent had not made any application. obviously, some subsequent manipulation, as contended by the appellant, would have taken place, as a result of which the election petition was filed and the arguments were addressed for recounting. it is settled legal position that secrecy of ballot should not be breached and as far as possible, the secrecy of ballot should be maintained. in rare cases, the tribunal or the court is required to order recount, that too on giving satisfactory grounds for recounting. in view of the fact that the rule itself provides that, as soon as the result of the election is announced, an application in writing must be made at the first instance and the fact that no such application has been placed before us does indicate that no such application had been made on the date of the declaration of the result. the allegation of an application having been made, would be an afterthought. the tribunal, therefore, has committed manifest error in directing recount.'as the point is no longer res integra, applying the ratio laid down by the apex court, the impugned order passed by the trial court need to be quashed and set aside.8. the situation wherein recount could be ordered in an election petition, the guidelines are laid down by the apex court in the judgment reported in : [1975]3scr21 , in the case of suresh prasad yadav v. jai prakash mishra and others. in para 5 of the judgment, the apex court observed thus :'before dealing with these contentions, we may recall, what this court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. the reason is twofold. firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. secondly, the rules provide an elaborate procedure for counting of ballot papers. this procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost fool-proof. although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this court may be indicated thus:the court would be justified in ordering a recount of the ballot papers, only where:'(1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.'thus, the apex court has laid down that the court would be justified in ordering a recount only when the election petition contains adequate statements of all material facts on which allegations of illegality or irregularity in counting are founded and on the basis of evidence adduced, such allegations are prima facie established affording a good ground for believing that there has been a mistake in counting and further, when the court trying the petition is prima facie satisfied for making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. in the present case, the trial court has proceeded to order recount without there being any evidence led by the parties.9. at this stage, the learned counsel for the respondents/original petitioners submitted that as the trial court was inclined and had actually granted recount, the respondents/original petitioners have filed a pursish indicating that original petitioners do not propose to lead any evidence. he submits that as this court has reversed the said order of granting recount passed by the trial court, the respondents be permitted to withdraw the said pursish and be permitted to lead evidence. mr. gunale, counsel appearing for the petitioner, has no objection for permitting withdrawal of the pursish with a view to enable the respondent to lead evidence.10. in the result, writ petition is allowed. the order dated 18-2-2003, passed by the civil judge (junior division), chakur, below exhibit 14 in election petition no. 7/2002, is quashed and set aside. the respondents/original petitioners are permitted to withdraw the pursish intimating the court about not leading of any evidence and they are permitted to lead evidence in support of the petition.11. rule is made absolute in the above terms. in the circumstances of the case, there shall be no order as to costs.