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SMT. KALAWATI versus SMT. BIMLA & ANR.

High Court of Rajasthan

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SMT. KALAWATI v SMT. BIMLA & ANR. - SAW Case No. 799 of 2006 [2007] RD-RJ 974 (20 February 2007)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

JUDGMENT

Smt. Kalawati v. Smt. Bimla & Anr.

D.B.CIVIL SPECIAL APPEAL(W) NO.799/2006 20th February, 2007

Date of Judgment ::

PRESENT

HON'BLE THE CHIEF JUSTICE SHRI S.N.JHA

HON'BLE JUSTICE SHRI GOVIND MATHUR

Mr. T.C.Sharma, for the appellant.

Mr. K.S.Gill, for the respondent. ....

BY THE COURT : (Per Hon'ble Mathur,J.)

This special appeal is directed to challenge the judgment and order of learned Single Judge dated 3.7.2006, accepting the writ petition of the respondent No.1 by setting aside the order dated 3.12.2005 passed by learned Civil Judge (SD), Bhadra, in an Election Petition preferred by present appellant under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as "the Act of 1994").

The facts leading upto the present appeal may be briefly stated as follows:

By way of an Election Petition under Section 43 of the Act of 1994, the election of respondent No.1

Smt. Bimla, as Sarpanch of Gram Panchayat Bharwana, was challenged by appellant Smt. Kalawati wife of Shri

Ramswaroop on the ground of improper reception and counting of votes. The appellant in the election petition alleged that at the time of scrutiny 120 ballot papers were found carrying seal at the line in between the names of Smt. Bimla and Smt. Kalawati wife of Jhanduram, but those ballots were counted in favour of Smt. Bimla despite objection. The appellant election petitioner also alleged that 30 ballot papers were carrying thumb impression instead of prescribed seal but those too were counted as vote in favour of

Smt. Bimla and that materially effected the election result. It is pertinent to note here that Smt. Bimla was declared elected on securing 591 votes and the election petitioner by securing 545 votes was nearest rival to the returned candidate.

On basis of the pleadings, learned Civil

Judge (SD) framed four issues and recorded evidence produced by the parties. During hearing of the election petition learned Civil Judge by and order dated 3.12.2005 after considering the evidence led by the parties, reached at the conclusion that for objective and judicious adjudication of the issue involved, inspection and recounting of ballot papers is necessary, therefore, ordered for that accordingly.

Aggrieved by the order aforesaid the returned candidate preferred a writ petition, that came to be accepted by judgment impugned dated 3.7.2006 on following counts:-

(1)the secrecy of ballots is sacrosanct and could not be violated without establishing prima facie that inspection and recounting of ballots was necessary for effectual determination of dispute. In the instant matter the case pleaded by the election petitioner in election petition and evidence in support thereof is so vague and inconsistent, that does not establish a prima facie case to order for inspection and recounting of ballot papers;

(2)learned Civil Judge failed to appreciate before making of an order for inspection and recounting of ballot papers that the discrepancy in total number of votes was such that it would have materially effected result of election; and

(3)the election petitioner failed to establish that any request in writing as required under Rule 49(6) of the Rajasthan

Panchayati Raj (Election) Rules, 1994 for inspection and recounting of ballot papers was made by her to the returning officer, therefore, the election petitioner is not entitled to seek inspection of ballot papers and their recounting.

While giving challenge to the judgment and order impugned the case of the appellant is that the issue of the inclusion of 120 ballot papers carrying seal at the dividing line between the names of the respondent No.1 and Smt. Kalawati wife of Jhanduram despite objection, as well as the issue of including 30 invalid votes being having thumb impression instead of seal is specifically pleaded by her in the petition and sufficient evidence is adduced to support the facts and grounds contained therein, as such learned

Single Judge erred, while holding the case pleaded by the election petitioner vague and the evidence adduced as inconsistent.

It is further contended that the conclusion of learned Single Judge to the effect that learned

Civil Judge failed to appreciate before making an order of inspection and recounting of ballot papers about material effect on result of the election due to discrepancy in total number of votes is erroneous as the respondent No.1 was declared elected by a margin of 46 votes, whereas the ballots in dispute are 150, thus this fact itself is sufficient to establish that the discrepancy alleged in the event of its acceptance would have effected result of the election materially.

By placing reliance upon the judgment of

Hon'ble Supreme Court in the case of Sohanlal v. Babu

Gandhi & Ors., reported in 2003(1) SCC 108, it is asserted by counsel for the appellant that where a prima facie case is made out, a Civil Judge (SD), while adjudicating an election petition under Section 43 of the Act of 1994, may direct for inspection and recounting of ballots irrespective of making request in writing in this regard, as such learned Single

Judge committed an error by holding that without establishing the factum of making a request in writing, no order for inspection and recounting of ballot papers could have been granted.

No doubt it is true that secrecy of ballot papers is sacrosanct and should not be violated merely on asking, but as held by Hon'ble Supreme Court in the case of Jitendra Bahadur Singh v. Krishna Behari and others, AIR 1970 SC 276, permission for inspection of ballot papers can be given, if the election petition contained an adequate statement of material facts on which election petitioner relies in support of his case and the authority adjudicating the election petition is satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary.

Thus, the question before us is whether the election petitioner pleaded adequate facts to warrant inspection and recounting of ballot papers?

On a careful consideration of election petition and evidence it is manifest that an unambiguous statement of facts was available on basis of that the Civil Judge (SD) prima facie found that inspection and recounting of ballot papers is essential in order to decide the dispute and to do complete justice between the parties. The facts pleaded in the petition reads as follows:-

"(3) $ 31-1-2005 & ' 31-1-2005 , . / 2& / 4 / 2:- 0 0 . 2& 1- 02 . 7 2- 545 . &$7 3- 530 <4- 591 . 5- 485 . 6- 64 4 / :- 13 :- 2230 2228 $ & ' ? 46 / . , -7 2 "

A & ' ,

" ? & 2& $ 591 K ' . " . ? K ' K 4$ 4$ K $ 120 / The appellant in her statements recorded before the Civil Judge (SD) also reiterated the factual averments as follows:- .

" 120 4 30 ' K

U U . 150 / << ' . . . . ' ."

" 120 / . 30 4 . "

The returned candidate respondent Smt. Bimla in her statement stated as under:-

"120 <. . The election petition certainly contains concise statement of material facts and that is substantiated by election petitioner in her statements. The question as to what would constitute material facts, depends upon the facts and circumstances of each case. In the instant matter the

Civil Judge (SD), on basis of statement of facts by recording adequate reasons found it prima facie necessary to inspect and recount ballot papers and rightly ordered to do so as in the existing circumstances that was the only mode to resolve the issue in dispute.

So far as the second argument of counsel for the appellant is concerned, it is worth to be noted that the election petitioner lost the election by 46 votes and dispute is with regard to counting of 150 alleged invalid ballot papers, therefore, certainly the alleged errors are of such magnitude that would materially effect the result of election.

We also found force in the contention of counsel for the appellant that where a case is made out, a Civil Judge (SD) while adjudicating an election petition under Section 43 of the Act of 1994 may direct for inspection and recounting of ballot papers irrespective of making request in writing in this regard. Rule 49(6) of the Rules of 1994 prescribes that any candidate, present at the counting, may at any time, during counting of votes, request the returning officer in writing to recount the ballot papers relating to the ward and the returning officer may, for the reasons to be recorded, either reject the request or order recounting of votes.

Hon'ble Supreme Court in the case of Sohanlal

(supra) while dealing with an analogous provision under M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993, held as under:-

"It is not correct to hold that, in an election petition, after the declaration of the result, the court or tribunal cannot direct re-counting of votes unless the party has first applied in writing for re-counting of votes. There is no prohibition in the Act or under the Rules prohibiting the court or tribunal to direct a re-counting of the votes. Even otherwise, a party may not know that the re-counting is necessary till after the result is declared. At this stage, it would not be possible for him to apply for re-counting to the Returning Officer. His only remedy would be to file an election petition under Section 122. In such a case, the court or the tribunal is bound to consider the plea and where a case is made out, it may direct re-count depending upon the evidence led by the parties."

Under Rule 49(6) of the Rules of 1994, the returning officer by recording reasons, may order for recounting of ballot papers, if a request in this regard is made in writing by a candidate, but it does not mean that if no such request is made then that candidate even in election petition cannot make a demand for recounting. The provisions of Rule 49 of the Rules of 1994 relate to counting of votes and there is no prohibition for recounting of votes either under the Act of 1994 or under the Rules of 1994. The law laid down by Hon'ble Supreme Court in the case of

Sohanlal (supra), therefore, clinches the issue and covers the controversy involved in the present case also.

On a careful reading of the judgment of learned Single Judge, in light of the discussion made above, we are satisfied that no convincing reasons are given therein, for setting aside the order dated 3.12.2005, passed by learned Civil Judge (SD).

In result, this special appeal deserves acceptance, therefore, the same is allowed. The judgment dated 3.7.2006 passed by learned Single Judge in SBCivil Writ Petition No.7236/05 is quashed, consequent thereto the order passed by learned Civil

Judge (SD), Bhadra dated 3.12.2005 in Election

Petition No.4/2005, Kalawati wife of Ramswaroop Jat v.

Bimla wife of Omprakash, stands restored.

No order to costs.

( GOVIND MATHUR ),J. ( S.N.JHA ),CJ.

Kkm/ps.


Copyright

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