Mangilal Vs. Subhash and anr. - Court Judgment

R.R. Yadav, J.

1. The petitioner by filing the present writ petition questions the order impugned dated 20.7.96, anx. 1 to the writ petition, passed by learned Civil Judge (Sr. Division), Raisinghnagar, District Sriganganagar directing recounting of votes in an election petition filed by respondent No. 1 Subhash against him on the sole ground that the order impugned has been passed by the learned Election Tribunal against the mandatory provisions of estoppel as envisaged under Sub-rule (6) and under Sub-rule (7) of Rule 49 read with Rule 51 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (in short 'the Rules of 1994') framed by the State Government in exercise of its power under Section 102 read with Section 17(5) of the Rajasthan Panchayati Raj Act, 1994 (in short 'the Act of 1994').

2. The brief facts leading upto filing of the present writ petition are that the election for the office of Pradhan of Panchayat Samiti Raisinghnagar, Ward No. 9, took place on 20.1.95 and counting commenced on 22.1.95. In counting, Subhash, respondent No. 1, obtained 1225 votes, Mangilal, petitioner obtained 1220 votes, Surjeet Raj obtained 13 votes and Mewa Singh obtained 17 votes.

3. It is alleged that at the instance of petitioner Mangilal, Returning Officer ordered recounting of ballot papers of Subhash and Mangilal. After recounting of votes it was found by the Returning Officer that both, the petitioner and the respondent No. 1, polled equal number of votes i.e. 1218 votes each. When it was found by the Returning Officer that there is equality of votes in favour of Subhash and Mangilal, he decided to declare the result for office of Pradhan by drawing lot. Destiny smiled on Mangilal petitioner and he was declared elected Pradhan of Panchayat Samiti Raisinghnagar of Ward No. 9 by Returning Officer by drawing lot in the manner which he thought proper.

4. Aggrieved against declaration of the result for the office of Pradhan of Panchayat Samiti Raisinghnagar of Ward No. 9 by the Returning Officer by drawing of lot, respondent No. 1 Subhash filed an election petition under Section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994 on the ground inter-alia that he received majority of valid votes in comparison to Mangilal but by taking recourse of recounting by the Returning Officer, his seven valid votes were illegally and wrongly rejected while two votes of Mangilal were reduced in order to give a true colour to recounting.

5. The aforesaid election petition was presented by respondent No. 1 Subhash before the learned District Judge, Sriganganagar in prescribed manner on the prescribed grounds within the prescribed limitation who transferred the same in exercise of his power under Section 43(1) of the Act of 1994 for disposal in accordance with law to the learned Civil Judge (Sr. Division) Raisinghnagar.

6. After service of notice the present petitioner filed written statement denying the averments made in the election petition and both the parties were given opportunity to adduce evidence by the Election Tribunal.

7. It is evident from the averments made in the writ petition that an application was moved on behalf of respondent No. 1 Subhash before the Election Tribunal making a prayer for passing an order for recounting of his votes and votes polled in favour of Mangilal petitioner. After hearing both the contesting parties at length the Election Tribunal passed the impugned order in detail for recounting of votes on analytical discussion of material evidence and attending facts and circumstances available on record.

8. With the consent of the learned Counsel for the parties, I propose to decide this writ petition finally at admission stage.

9. Before dwelling upon the arguments raised at the Bar I consider it expedient to observe that in a democratic policy the secrecy of ballot papers and implicit faith on the Returning Officer both are to be treated to be sancrosanct. The courts of law and Election Tribunals are expected to maintain judicial restraint while passing an order for recounting because such orders tend to open the secrecy of ballot papers and also tend to erode the public confidence from the Returning Officers. If orders for recounting are passed by Courts and Tribunals for roving and fishing inquiries without strict scrutiny in the controversy between the parties then such orders for recounting may prove fatal for future survival of democratic institutions in a democratic country like ours.

10. Now courts of law have evolved strict principle for passing an order for recounting of ballot papers by way of judicial review only if three conditions precedent are fulfilled. Firstly, there must be specific allegations in the election petition about irregularities committed in counting or recounting of votes which may materially affect result of election, secondly, in support of such allegations in the election petition there must be cogent and convincing definable materials and evidence and lastly the courts or Tribunals before passing orders for recounting of votes must be objectively satisfied with the existence of first and second conditions enumerated above.

11. Learned Counsel for the petitioner Shri S.N. Sharma has frankly admitted before this Court that aforesaid three conditions precedent enumerated above are satisfied in the present case, therefore, it is not possible for him to assail the order impugned Anx. 1 for recounting passed by Election Tribunal in the present case. The frank admission made by the learned Counsel for the petitioner deserves appreciation.

12. With the aforesaid circumspection now I would like to examine the arguments advanced by the learned Counsel for the petitioner Shri Sharma which are confined with the interpretation of sub-rule(6) and Sub-rule (7) of Rule 49 as well as Rule 51 of the Rules of 1994 together with principle of estoppel.

13. It is contended by the learned Counsel for the petitioner that a mere look at Rule 49(6) and (7) of the Rules of 1994 leads towards an irresistible conclusion that if respondent No. 1 Subhash after recounting was done by the Returning Officer was not satisfied, he ought to have made a request in writing to the Returning Officer to again recount the votes. Since respondent No. 1 Subhash failed to do so, therefore, his claim for recounting in election petition would be barred by principle of estoppel. In support of his aforesaid contention he placed reliance on two decisions rendered by two different Division Benches of Patna High Court in case of Raghuni Nayak and Ors. v. District Magistrate, Darbhanga and Ors. reported in : AIR1959Pat7 and Jadunandan Puri v. The President, Board of Secondary Education, Bihar, Patna and Ors. reported in : AIR1976Pat58 . He also placed reliance on a decision rendered by a Division Bench of Andhra Pradesh High Court in case of Soma Venkatareddy v. Nakka Veladari Ramulu reported in AIR 1984 A.P. 298.

14. In order to appreciate the aforesaid argument advanced by the learned Counsel for the petitioner the relevant Sub-rule (6) and Sub-rule (7) of Rule 49 of the Rules of 1994 are quoted below which read thus:

49(6).--Any candidate present at the counting may, at any time during the counting of votes, request the Returning- Officer in writing, to recount the ballot papers relating to the ward and the Returning Officer may for reasons to be recorded either reject the request or order recounting of votes.

49(7).--The Returning Officer may, in his discretion recount the ballot papers of all or any of the candidates once or more than once, if he Is not satisfied as to the accuracy of the immediately preceding count.

15. Indisputably there is no ambiguity with regard to Sub-rule (6) of Rule 49 of the Rules of 1994 which provides that any candidate present at the counting may at any time during the counting of votes, request the Returning Officer in writing, to recount the ballot papers relating to the ward and the Returning Officer may for reasons to be recorded either reject the request or order recounting Of votes.

16. In fact this Court is called upon to interpret Sub-rule(7) of Rule 49 of the Rules of 1994 which is ambiguous and its ambiguity is to be removed by adopting recourse of construction. According to the aforesaid rule the Returning Officer may in his discretion recount the ballot papers of all or any of the candidates 'once or more than once', if he is not satisfied as to the accuracy of the immediately preceding count.

17. Shri S.N. Sharma, learned Counsel for the petitioner argued with emphasis that the petitioner made a request to the Returning Officer for recounting the ballot papers relating to Ward No. 9 which was allowed. Similarly under the aforesaid rule if after recount, Subhash was not satisfied, he ought to have moved an application in writing making a request to the Returning Officer for recounting the ballot papers again. Once he failed to do so, there would be a necessary inference that he was satisfied with recounting done by the Returning Officer.

18. I am not satisfied with the aforesaid argument of the learned Counsel for the petitioner for the reason that if the aforesaid Sub-rule(7) of Rule 49 of the Rules of 1994 is interpreted as suggested by the learned Counsel for the petitioner then it would lead to an absurdity and there would be no end of counting. In such a situation the expression 'once or more than once' used under Sub-rule (7) of Rule 49 of the Rules of 1994 has to be interpreted in the light of the provisions made under Sub-rule (6) of Rule 49 of the said Rules which provides 'recounting' of votes by Returning Officer on the request of a candidate in writing after recording reasons in support of his order for recounting.

19. The expression 'recounting' used under Sub-rule (6) of Rule 49 of the Rules of 1994 is preceded with prefix 're' before the second part of the ward 'counting'. The literal and dictionary meaning of ward 're' is 'again' as given in Chambers English dictionary, 1988 Edition page 1221. According to New Lexicon Webster's Dictionary Encyclopedic Edition 1988 page 830 the word 're' means again or another time. Thus the dictionary meaning of 're' is again and not again and again. Therefore, in my humble opinion the expression 'recounting' used under Sub-rule (6) of Rule 49 of the Rules of 1994 means counting of votes another time or again by Returning Officer in abundant caution to remove confussion from the mind of contesting candidates but it does not convey the intention of Rule making authority for counting of ballot papers again and again at the request of one candidate and thereafter at the request of another candidate and so on and so forth.

20. It is well settled principle of rule of interpretation that the provisions of a statute or statutory Rules should be read as whole in such a fashion by a court of law so as to harmonise with one another and such provisions of one section or one rule should not be read to defeat the provisions of another section or rule of the same enactment or same rules unless it is impossible to reconcile them. Here in the present case it is possible to effect reconciliation between Sub-rule(6) and Sub-rule (7) of Rule 49 of the Rules of 1994 with the expression 'recounting' used under Sub-rule (6) and expression 'once or more than once' used under Sub-rule (7) of the said Rules, therefore, I have no hesitation to hold that the expression 'once or more than once' means once again counting of ballot papers at the request of a candidate in writing by the Returning Officer after recording reasons for doing so by him.

21. There is yet another reason to arrive at the aforesaid conclusion. Assuming for argument sake that the expression 'once or more than once' used under Sub-rule (7) ,of Rule 49 of the Rules of 1994 is capable of two interpretations as suggested by Shri Sharma, learned Counsel for the petitioner yet after extending the rule of interpretation of absurdity to the aforesaid rule this Court would prefer to choose the meaning which is just reasonable, logical, intelligible and appealing to the sense of justice and fair play rather than interpreting the said expression in a perennial manner in conflict with expression recounting' used under Sub-rule (6) of the said Rule. I am of the view that the Rule making Authority while framing Sub-rule (6) and Sub-rule (7) of Rule 49 of the Rules of 1994 did not intend that meaning which is being suggested by Shri Sharma, learned Counsel for the petitioner to continue recounting perpetually for indefinite counts.

22. The next limb of the argument of Shri Sharma, learned Counsel for the petitioner about applicability of principle of estoppel in the present case is also not acceptable to me for the reasons that factually and legally it would be sheer pendantic approach to imagine and to believe that respondent No. 1 Subhash who was leading by margin of 5 votes to his rival candidate petitioner Mangilal in first counting would voluntarily agree with the result of equality of votes in recounting leaving his right of clear victory to his chance victory by drawing of lot. Sub-rule (6) and Sub-rule (7) of Rule 49 of the Rules of 1994 cast light as discussed in preceding paragraphs that after recounting at the request of petitioner Mangilal by the Returning officer it was not open for respondent No. 1 Subhash to make again a request for recounting. In this way inaction of respondent No. 1 Subhash not making request for recounting does not tantamount his voluntary consent to the equality of votes in recounting, therefore, his claim for recounting in election petition before election tribunal by way of judicial review cannot be deemed to be barred on principle of estoppel.

23. Learned Counsel for the petitioner also invited my attention towards provisions of Rule 51 of the Rules of 1994 which provide that in case of equality of votes, the result shall be declared by drawing of lot in the manner which the Returning officer may think proper. The learned Counsel for the petitioner strenuously urged before me that if there was equality of votes between the petitioner and Subhash and the Returning Officer proposed to declare the result by drawing of lot then Subhash ought to have refused to give his consent to participate In declaration of result by drawing of lot by the Returning Officer. Once he participated in declaration of result by the Returning Officer by drawing of lot and result gone against him, he cannot be allowed to file an election petition challenging declaration of result in favour of petitioner. In support of his contention he placed reliance on the decisions of Raghuni Nayak (supra), Jadunandan Puri (supra) and Soma Venkatareddy (supra).

24. In case of Raghuni Nayak (supra) it was held that if the petitioners knowing of the illegality in preparation of electoral roll participated in the election and acquiesced or concurred in the election they would be estopped from challenging the validity of election after having lost such election on the ground of illegal preparation' of electoral roll. The facts of the case of Raghuni nayak (supra) speak that defeated candidates filed an election petition stating therein that as no electoral roll as required by the Municipal Act and the rules framed thereunder was prepared, therefore, election held on incorrect preparation of electoral roll was invalid. The aforesaid contention was rejected by the learned Judges constituting Division Bench of Patna High Court holding that once the petitioners participated in an election they would be estopped after having lost election. As a matter of fact preparation of electoral roll on the basis of which elections are contested is not the same thing as of recounting. It is well known to all of us that whenever an electoral roll is prepared an opportunity is always afforded to every one to file an objection either to include names which are excluded in preparation of electoral roll or exclude names which are wrongly included in it. A complete machinery is provided to correct and rectify any mistake in electoral roll but there is no remedy against counting or recounting done by Returning Officer except by way of filing an election petition. I respectfully concur with the ratio decidendi propounded by the Division Bench of Patna High Court in case of Raghuni Nayak (supra) but ratio of that case is not applicable to the facts and circumstances of the present case. In the present case respondent No. 1 Subhash has not filed the election petition challenging the preparation of electoral roll on basis of which election for office of Pradhan was contested by him and his rival candidates but it is being challenged on specific allegation of irregularities committed in recounting and the learned election tribunal has passed the impugned order for recounting after being satisfied with fulfilment of conditions precedent for passing such order for recounting.

25. Learned Counsel for the petitioner also relied on a decision rendered by another Division Bench of Patna High Court in the case of Jadunandan Puri (supra) where it was held that Jadunandan Puri, petitioner, after participating in the interview before the Adhoc Managing Committee as a candidate for the post of Head Master of the said school especially when he himself had seconded the proposal of election of respondents No. 5 and 6 as the Secretary and the President respectively, it was not open to him to say in writ petition that the said Managing Committee was not duly constituted. It was held in that case that the petitioner is estopped from making such assertions. In fact according to the ratio of the case of Jadunandan Puri (supra) it can be safely observed that if one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed in any suit or proceedings between himself and such persons on his behalf to deny the truth of that thing. In fact it is precise argument of the learned Counsel for the petitioner that in the present case also respondent No. 1 Subhash by his act and omission intentionally permitted the petitioner to believe that drawing of lot between them is with his consent, therefore, declaration of result as Pradhan of Ward No. 9 by the Returning Officer under Rule 51 of the Rules of 1994 cannot be permitted to be questioned by him by filing election petition. Suffice it to say in this regard that was a case about challenge of the constitution of the Managing Committee before whom the petitioner voluntarily participated in interview with full personal knowledge about the nature of Managing Committee to be ad hoc but when he was not selected as Head Master, he preferred to file a writ petition. It was held in the case of Jadunandan Puri (supra) that by his act petitioner Jadunandan Puri voluntarily participated in the interview and as such he was debarred by principle of estoppel to challenge his non-selection by Adhoc Managing Committee even if it was found that it was not validly constituted. The participation in interview by Jadunandan Puri in case of Jadunandan Puri (supra) was his voluntary act whereas in the case on hand the act of participation of respondent No. 1 Subhash in declaration of result by Returning Officer on equality of votes between him and petitioner Mangilal within the meaning of Rule 51 of the Rules of 1994 is not attributable as his voluntary act of participation. Here in the present case even if Subhash refused to give his consent for declaration of result by drawing lot the Returning officer where the equality of votes was found by him was under statutory obligation under statutory Rule 51 of the Rules of 1994 to declare the result. It is evident from careful scrutiny of Rule 51 of the aforesaid Rules that said Rule does not contemplate consent or concurrence of candidates for declaration of result in case of equality of votes by the Returning Officer. It would be expedient to quote Rule 51 of the said Rules which reads thus:

51 Equality of Votes.--In case of equality of votes, the result shall be declared by drawing of lot in the manner which the Returning Officer may think proper.

From the facts stated above it is clear that the ratio enunciated in case of Jadunandan Puri (supra) is not attracted in the facts and circumstances of the case on hand.

26. Learned Counsel for the petitioner also placed reliance on the case of Soma Venkatareddy (supra) but the facts of the aforesaid case are also not applicable to the facts and circumstances of the present case. In the present case on hand respondent No. 1 Subhash has questioned the irregularity committed in recounting of ballot papers by the Returning Officer by way of judicial review in an election petition without his voluntary consent as discussed above whereas in case of Soma Venkatareddy (supra) voluntarily consent was given before the election tribunal and with the consent of both the parties the recounting was done by the election tribunal itself which was questioned at subsequent stage of election petition before the Election Tribunal. The recounting done with the consent of the parties in an election petition by an election tribunal cannot be placed at par with the irregularities committed in recounting by the Returning Officer, therefore, the principle of estoppel enunciated in case of Soma Venkatareddy (supra) is also not applicable to the facts and circumstances of the present case.

27. It is obvious that declaration of result in case of equality of votes by drawing lot is consequence of counting or recounting of votes done by the Returning Officer. Irregularities committed in recounting by Returning officer after fulfilment of its condition precedent as stated above are always subject to judicial review in election petitions filed by an aggrieved candidate under Section 43 of the Act of 1994 read with Rule 80 of the Rules of 1994. Any candidate present at the counting may at any time during the counting of votes and before declaration of result may request to the Returning Officer in writing to recount the ballot papers and the Returning Officer may for reasons to be recorded in writing either reject such request or order for recounting of votes. Once recounting of votes is done at instance of one candidate another candidate is not entitled to make a further request to the Returning Officer for recounting of votes under Sub-rule (6) and Sub-rule (7) of Rule 49 of the Rules of 1994. It is absolute discretion of the Returning Officer to allow or reject recounting of votes. Recounting of votes under Sub-rule(6) and Sub-rule (7) of Rule 49 of the Rules of 1994 do not require voluntary consent or concurrence of candidates hence question of estoppel does not arise as argued by Shri sharma, learned Counsel for the petitioner.

28. From the aforesaid discussion I am of the view that Sub-rule(6) and Sub-rule (7) of Rule 49 do not envisage voluntary consent or voluntary concurrence or voluntary participation of contesting candidates in allowing recounting by the Returning Officer but such order of recounting depends on the absolute discretion of Returning Officer provided he is not satisfied with the accuracy of the preceding count hence the plea of estoppel raised by the petitioner on the interpretation of the aforesaid Rules is hereby negatived. In fact the satisfaction of Returning Officer for allowing recounting has nothing to do with the consent, concurrence or voluntary participation by the contesting candidates.

29. In the penultimate conclusion I am also of the view that declaration of result in case of equality of votes by drawing of lot by the Returning Officer in the manner which he thinks fit and proper as contemplated under Rule 51 of the Rules of 1994 does not require voluntary consent or voluntary concurrence or voluntary participation of contesting candidates but it has to be undertaken by the Returning officer in discharge of his statutory obligation, therefore, in such a situation question of estoppel does not arise on this score as well.

30. As a result of the aforementioned discussion, the instant writ petition lacks merit and it is hereby dismissed in limine.