Raj Devi Vs. Smt. Santosh and ors. - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....ordersarojnei saksena, j. 1. petitioner-raj devi has filed this petition under article 227 of the constitution of india against the order dated jannary 4, 1996, passed by the additional civil judge (senior division) gohana (sonepat) whereby he has allowed the petition filed by smt. santosh respondent no. 1 for inspection and recounting, of the ballot papers. 2. brief resume of the facts is that respondent no. 1 santosh filed an election petition under section 176 of the haryana panchayati raj act, 1994 (in short, the act) on january 14, 1995, for setting aside the election held for the post of sarpanch of village garhi ujale khan, tehsil gohana, the result of which was declared on december 15, 1995, whereby petitioner-raj devi was declared elected. raj devi was declared elected by.....

Judgment:
ORDER

Sarojnei Saksena, J.

1. Petitioner-Raj Devi has filed this petition under Article 227 of the Constitution of India against the order dated Jannary 4, 1996, passed by the Additional Civil Judge (Senior Division) Gohana (Sonepat) whereby he has allowed the petition filed by Smt. Santosh respondent No. 1 for inspection and recounting, of the ballot papers.

2. Brief resume of the facts is that respondent No. 1 Santosh filed an election petition under Section 176 of the Haryana Panchayati Raj Act, 1994 (in short, the Act) on January 14, 1995, for setting aside the election held for the post of Sarpanch of village Garhi Ujale Khan, Tehsil Gohana, the result of which was declared on December 15, 1995, whereby petitioner-Raj Devi was declared elected. Raj Devi was declared elected by difference of three votes only. She secured 435 votes while election-petitioner Smt. Santosh got 432 votes. Election-petitioner Smt. Santosh alleged in her election petition that before start of the election the petitioner had moved an application to the Presiding Officer/Returning Officer that in Ward No. 3 serial Nos. 93 and 94, namely, Sube Singh son of Shish Ram and Raj Bala wife of Sube Singh are having their votes at village Garhi Ujale Khan and they are also having their votes at Sainipura in Ward No. 4 at serial Nos. 1 and 2. Similar is the position of voters Muni Ram alias Munshi Ram son of Hira Lal alias Hira Singh. It was also averred that respondent No. 5 Abdul Salim UMO Jagsi, Tehsil Gohana, has illegally cancelled the votes which were cast in favour of the election-petitioner and which were valid ones. Respondent No. 5 and his team also wrongly gave benefit of cancelled votes to the elected candidate Raj Devi. The poor light arrangements also affected the result and gave an opportunity to the Returning Officer to declare Raj Devi petitioner to be the elected Sarpanch. Respondent No. 5 and his team also rejected the request of the election-petitioner for recounting of valid and cancelled votes. Allegations were made about corrupt practice also adopted by Raj Devi, elected candidate.

3. Smt. Raj Devi petitioner in her written statement countered all these allegations and pleaded that she was validly and legally elected as Sarpanch of Gram Panchayat, Garhi Ujale Khan. She denied to have adopted any corrupt practice and raised objections about the maintainability of the election petition filed by election-petitioner Smt. Santosh.

4. Issues were framed. Election petitioner's whole evidence, was recorded. Raj Devi-petitioner also examined five witnesses, but then she sought further adjournment for recording her remaining evidence. At that juncture on October 30, 1995, election-petitioner Smt. Santosh filed a petition for the inspection and recounting of the ballot papers, which was contested by the elected candidate petitioner Raj Devi.

5. Learned counsel for the election-petitioner argued that there is a difference of only three votes in between the election-petitioner and the elected candidate, petitioner Raj Devi. It was also pointed out that during evidence PW-2 Abdul Salim UMO has stated that an application was given by the election-petitioner to the Presiding Officer for recounting of ballot papers and they were recounted four times, but there is no entry in his diary about this. It was further pointed out that from the statement of PW-2 it is evident that one ballot paper, which was containing the thumb-impression as well as election stamp was cancelled. Therefore, inspection of the ballot papers is essential to know whether the vote was legally cancelled. Thus, it is obvious that mistake was committed in counting.

6. The learned lower Court, while weighing the evidence, considered the above facts and held that Om Parkash Sharma, DW-6, Presiding Officer, has stated that he does not remember as to what was done by him of those ballot papers, which were containing more than one election stamp on the ballot papers. Thus, considering all the evidence recorded before it, the learned lower Court allowed the petition for inspection and recounting of ballot papers moved on October 30, 1995 and BDPO was summoned along with the relevant election record of the post of Sarpanch held on December 15, 1994.

7. Aggrieved by this order the elected candidate Raj Devi has filed this petition. Her grouse is that there was no allegation in the election petition and there was no evidence worth reliance on the basis of which order for inspection and recounting of ballot papers could have been given. Petitioner's learned counsel contended that without recording complete evidence, the learned lower Court has short-circuited the enquiry by allowing the said petition and has ordered inspection and recounting of ballot papers without any valid ground.

8. The election-petitioner respondent's counsel, relying on Smt. Rajwati v. Smt. Rajesh Kumari and Ors. , (1996-2)113 P.L.R. 141, contended that under Section 176(4)(b) and 176(5) it is obligatory for the Court to make a scrutiny and computation of votes recorded in favour of each candidate in all those cases where validity of an election is in dispute between two or more candidates and where the challenge is not founded on an allegation of corrupt practice. He further contended that in this case a Single Bench of this Court has held that clause (a) of Section 176(4), which envisages holding of enquiry by the Civil Court to find out whether a candidate has committed corrupt practice 'within the meaning of Sub-section (5) of Section 176, Section 176(4) (b) does not contemplate an enquiry by the Court. He also valiantly argued that in this case a detailed enquiry was held by the lower Court and after scanning the evidence on record, it has passed the impugned order.

9. In Azad Singh son of Chhotu Ram v. Azad Singh son of Randhir Singh, (1995 PLJ 526), another Single Bench of this Court has held that under Section 176(4)(b) of the Act recounting of votes cannot be ordered just at the asking of the election-petitioner. It will depend on the facts and circumstances of each case and allegations made seeking recounting of votes. It is further held that ordinarily, recounting of votes would not be allowed, where allegation made and accepted, the result of election would not be materially affected. Election petitioner seeking recount of votes is prima- facie required to make out a case for recounting of votes, which may prima facie show that the result of the election is likely to be materially affected.

10. In Ram Sewak Yadav v. Hussain Kamil Kidwai and Ors. , AIR 1964 S. C. 1249 the Apex Court has held :-

' But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.'

11. In N. Narayana v. S. Sammalai and Ors. , AIR 1980 S. C. 206, while considering the Conduct of Election Rules, 1961, Rule 63(3), the Apex Court held :-

'The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court.

The Court would be justified in ordering a recount of the ballot-papers only where :

(i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded ;

(ii) 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

(iii) 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 '

12. In S. Raghbir Singh Gill v. Gurcharan Singh Tohra and Ors. ,5 AIR 1980 S.C.1362, the Apex Court has laid down conditions precedent for granting recount and has held :

'The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fishing out materials for declaring the election void. Only on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a purpose of fishing out materials.'

13. In P.K. K. Shamsudeen v. K. A. M. Mappillai and Ors. , AIR 1989 S. C. 640, while considering the provisions of Section 178 of the Tamil Nadu Panchayat Act (35 of 1958) their Lordships of the Apex Court have held :

' 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 hind sight 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 measures 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, Tribunal or Court should not order the recount of votes.'

14. In Shri Satyanarain Dadhani v. Uday Kumar Singh, AIR 1993 S. C. 367, while considering the ambit of Sections 100 and 94 of the Representation of People Act (43 of 1951) the Apex Court held :

'The secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course, The secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.' It further held that cryptic application claiming recount, without giving any details of any kind without mentioning even a single instance showing that any irregularity or illegality in the counting was brought to the notice of the Returning Officer, such an application cannot be allowed. It was also held that when there was no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition.

15. A Single Bench of this Court in Surjit Kaur v. Surjit Kaur and Ors. , 1995 (2) ILR P and H 165, set aside the order of the Deputy Commissioner where he ordered recount without taking any evidence and without affording opportunity of hearing to the elected candidate.

16. The provisions of Section 176(4) (b) of the Act were considered by a Division Bench of this Court in Bharat Singh v. Dalip Singh and Ors., (1996-1)112 PLR 70 and it was held that it would require the parties coming to the Court to show by cogent evidence that the bonafide dispute and strong grounds existed for questioning the legality of counting. It is incumbent upon the election petitioner to lay a firm foundation of a fact duly supported by evidence leading to making out a prima facie case for recount. The Division Bench further held that the basic questions to be decided are as to whether an order of recount has to be necessarily passed where the validity of the election has been challenged on the grounds other than corrupt practices, even though there are no pleadings or cogent evidence warranting the order of recount and as to whether the interpretation adopted by the learned subordinate Judge is legally and constitutionally valid. They further held that at the outset, it may be stated that Rules 62 to 72 of the Haryana Rules 1994 dealing with the recount of votes are pari materia to Rules 53 to 63 of the Rules framed under the Representation of People Act, 1951, known as the Conduct of Election Rules, 1961, which also deal with recount of votes. Relying on Ram Sewak Yadav's, Raghbir Singh Gill's, Satyanarain Dadhani's and N. Narayana's cases (supra) the Division Bench held that it has been ruled by the Supreme Court in a catena of cases that recount is not to be granted as a matter of course or right. Recount can only be granted where proper foundation of material facts has been laid in the pleadings of the parties duly supported by trustworthy evidence, which would satisfy the Court that in order to decide the dispute and to do complete justice between the parties, the inspection of ballot is necessary. It has further been held that the discretion in this behalf should not be exercised so as to enable the applicant to indulge in a roving enquiry. It is also held that in these judgments the Supreme Court has held that secrecy of ballot papers is paramount and recount of votes cannot be ordered as a matter of course and on the mere asking.

17. In this case there is only difference of three votes secured by the election-petitioner and the elected-candidate. Returning Officer on oath has admitted that while counting was being done prayer was made for recounting and it was done four times, but it is not recorded anywhere in the papers executed at that time. Thus, there is contemporaneous evidence, RW-6 Om Parkash has admitted in cross-examination that he does not remember what he decided about those ballot papers which were containing more than one election stamp on the ballot papers. Election-petitioner has adduced her complete evidence. Petitioner-elected candidate examined five witnesses and sought further time. At that stage this petition for identifying and recounting of ballot papers was filed. Scanning the evidence adduced by the parties, the learned lower Court passed the impugned order holding that there are grounds for allowing the petition for inspection and recounting of ballot papers. In the petition also these grounds were averred. Evidence was found satisfactory. Since there were allegations made in the petition itself to show that irregularities and illegalities were committed at the time of counting and further these facts were proved by the election petitioner by her evidence and few more facts were proved by the witnesses examined by the elected candidate, in my considered view, the lower Court has not fallen into any error in allowing the petition. It is not a case where order for recount is made on mere asking. Foundation is laid in the petition and it is duly proved by the evidence on record. Hence there is no ground to interfere in the impugned order. The petition filed under Article 227 of the Constitution of India, being meritless, is hereby dismissed. The lower Court is directed to pronounce the result of recounting.