Partly allowed

Sugani Devi v. Bhanwar Lal and Anr.

Rajasthan HC9 Jul 2012CW/5358/2012

Case brief

AI extract

What is this about?

This writ petition challenges the Election Tribunal's order directing a recount of unused ballot papers. The High Court held that the Tribunal must first inspect and recount used ballot papers to resolve vote discrepancies. Recounting of unused papers is reserved if doubts persist after the initial recount.

What did the court decide?

Order of Election Tribunal directing recount of unused votes set aside; election petitioner allowed to inspect and recount votes actually polled on next date.

Sugani Devi Vs Bhanwar Lal and Anr. — Election Law | Rajasthan HC (2012)

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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ORDER

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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Dated:- 9^th July, 2012.

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HON'BLE MR.JUSTICE SANGEET LODHA

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Mr. L.R.Mehta, Senior Advocate assisted by Mr. Vishal Sharma, for the petitioner.

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Mr. Vijay Bishnoi, for the respondents.

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Reportable

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This writ petition is directed against order dated 19.5.12 of District Judge, Merta, whereby allowing an application preferred on behalf of the election petitioner, the respondent herein, for inspection of the record relating to election, has been allowed in terms that the unused votes shall be inspected and counted on the next date of hearing.

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Briefly stated the facts of the case are that the respondent no.1-election petitioner, preferred an election petition questioning the election of the petitioner herein, as the member of Panchayat Samiti, Jayal from Ward No.7. The election petition was preferred with the averments that total number of votes obtained by the candidates plus rejected ballot papers in the first round of counting, admittedly exceeded by 50 votes in the

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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2 second round of counting. It is alleged that admittedly, the total number of used ballot papers, whether valid, tendered or rejected and unused ballot papers also exceeds by 50 ballot papers to the number of ballot papers actually issued to the Polling Officer. As per the election record, 5720 ballot papers were allotted to various booths and out of the said votes, 3471 votes were casted and 2249 ballot remained unused. However, the total number of unused ballot papers whether valid, tendered or rejected comes to 3521. Precisely, according to the election petitioner, 50 votes were illegally added in the votes actually polled in favour of the returned candidate, the petitioner herein and thus she was wrongly declared elected.

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It is to be noticed that in the first instance, the election petitioner preferred an application for summoning the entire election related record with ballot papers from the District Election Officer, Nagaur. The application was allowed by the District Judge vide order dated 5.10.10. Aggrieved thereby, the petitioner herein preferred a writ petition being No.9923/10, which was disposed of by this court by order dated 21.10.11 observing that “it shall be expected of the learned Trial Court to deal with the record and ballot papers strictly in accordance with law and not to open the ballot papers before arriving at the necessary conclusion in that regard at the appropriate stage and

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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in accordance with law. The other part of the impugned order whereby record has been called by the Trial Court does not appear operating against interest of justice and does not call for interference. It goes without saying that this record is also to be dealt with in accordance with law. The impugned order dated 05.10.2010 shall, therefore, be read as modified to the extent indicated above.”

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After the examination of the Returning Officer by the Election Tribunal, the election petitioner while pointing out the discrepancies in the number of votes in first & second counting, preferred an application with the prayer that in the interest of justice, to find out the truth, the record relating to election produced by the District Election Officer may be inspected by the court. The application was allowed by the Election Tribunal vide order dated 13.3.12 with the directions that the inspection of the record relating to election and counting of votes shall be carried out on the next date. By the said order, an application preferred on behalf of the petitioner, a returned candidate, to cross examine co-defendant the Returning Officer was rejected.

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Aggrieved by the said order dated 13.3.12, the petitioner herein preferred a writ petition being No.2634/12 which was disposed of by this court vide order dated 2.4.12 in the following

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terms: -

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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“13. For the aforementioned reasons, the writ petition is partly allowed. The order impugned to the extent it directs the inspection of the record of election and recounting of the votes is set aside. The application preferred by the petitioner seeking direction to the election petitioner to disclose the provision of law under which the application is filed, shall stand rejected. The trial court is directed to decide the application preferred by the election petitioner afresh after giving an opportunity to the petitioner herein to file reply to the application. The petitioner herein shall file a reply to the application on or before 9.4.12. The application shall be decided by the trial court expeditiously taking into consideration the settled position of law as noticed above. The writ petition so far as it relates to challenge to the order declining an opportunity to the petitioner herein to cross examine the Returning Officer (NAW 2/1) is hereby dismissed. No order as to costs.”

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In terms of the directions issued by this court, the petitioner herein, filed a reply to the application preferred on behalf of the election petitioner as aforesaid. After hearing both the parties, the Election Tribunal arrived at the finding that in the first round of the counting, the total number of votes casted was found to be 3471 whereas in the second round of counting the same were found to be 3521 whereas, if the unused ballot papers deposited with the District Election Officer are deducted from the total number of ballot papers issued then number of votes casted cannot exceed 3471. Accordingly, while allowing the application preferred by the respondent by the order impugned so as to resolve the controversy as to total number of votes casted , the Election Tribunal has directed recounting of unused ballot papers. Hence, this petition.

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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Learned counsel for the petitioner contended that Election Tribunal has seriously erred in directing counting of unused ballot papers. Learned counsel submitted that if the result of the election is alleged to be materially affected by improper reception, refusal, rejection or addition of votes then the votes casted are required to be counted but in any case, the Election Tribunal could not have directed for recounting of unused ballot papers. Learned counsel submitted that the tribunal would be justified in directing the inspection and recounting of the ballot papers only when the election petition contains adequate statement of the material facts on which petitioner relies in support of his case and the Election Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, the inspection and recounting of ballot papers is necessary. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of “Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors., AIR 1964 SC. 1249. Learned counsel submitted that the counting of used or unused ballot papers cannot be ordered as a matter of course and for arriving at such conclusion, the evidence of both the parties has to be considered in accordance with law. Learned counsel submitted that inspection and recounting of ballot papers affects secrecy of ballot and therefore, unless a strong prima

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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6 facie case for inspection or recounting of ballot papers is made out, the court cannot issue directions for inspection and/or recounting of ballot papers. Accordingly, it is submitted by the learned counsel that the order impugned passed by the Election Tribunal deserves to be set aside.

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On the other hand, learned counsel appearing for the respondents submitted that the election petition contains an adequate statement of all material facts on which the allegation of irregularity and illegality in counting of votes is founded. It is submitted that after the examination of the petitioner and the Returning Officer by the Election Tribunal, it is apparent that the number of used votes increased in the second round of counting and the total number of ballot papers used and unused, exceeds the total number of ballot papers actually issued to the Polling Officer. Learned counsel submitted that the order impugned passed by the Election Tribunal after due appreciation of pleadings of the parties and evidence on record, is absolutely in accordance with law and does not warrant any interference by this court. Learned counsel submitted that the secrecy of the votes is sacrosanct but the principle of 'secrecy of ballots' cannot be pressed into service to suppress a wrong coming to light and to protect the fraud on election process. In support of his contentions, learned counsel relied upon the decision of the

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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Hon'ble Supreme Court in “Smt. Rekha Rana vs. Jaipal Sharma & Ors.”, AIR 2009 SC, 2946 . Learned counsel submitted that the petitioner has no objection if instead of counting the unused ballot papers, firstly, the used ballot papers i.e. the valid votes obtained by the candidates plus rejected ballot papers are counted and the question with regard to counting of unused ballot papers is left to be decided by the Election Tribunal at the appropriate stage, if the occasion arises.

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Learned counsel appearing for the petitioner has also no objection if recounting of the used ballot papers is ordered and the question with regard to counting of the unused ballot papers is left open to be decided by the Election Tribunal as proposed on behalf of the petitioner.

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I have considered the rival submissions and perused the material on record and decisions cited at the bar.

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Indisputably, before the inspection or recounting is ordered, the Election Tribunal must be satisfied that the election petition contains concise statement of all material facts and further on the basis of the material produced, the court must come to the conclusion that inspection of the ballot papers and recounting thereof is absolutely necessary to do complete justice between the parties. It is equally well settled that the inspection of documents or recounting of the votes cannot be allowed as a

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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matter of course.

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In Ram Sewak's case (supra), relied upon by the learned counsel appearing for the petitioner, the Hon'ble Supreme Court while emphasizing the importance to be attached to the secrecy of the ballot papers, observed that the court would be justified in granting an order for inspection provided following two conditions are satisfied:

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(i)that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

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(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary.”

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The court further observed:

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“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 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.” (emphasis added)

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In Suresh Kumar Yadav vs. Jai Prakash Mishra & Ors., (1975) 4 SCC, 822, the Hon'ble Supreme Court held that 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

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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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.

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In the matter of “S.Raghbir Singh Gill vs. S.Gurcharan Singh Tohra & Ors.”, (1980) Suppl. SCC 53, the Hon'ble Supreme Court observed:

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“22. The interpretation of Section 94 which appeals to us ensures free and fair elections. Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provided life-blood to parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime, viz., forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections.”

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In “A. Neelalohithadasan Nadar vs. George Mascrene & Ors.”, (1994) Suppl (2) SCC , 619, the Hon'ble Supreme Court while referring to the law laid down in Raghbir Singh Gill's case (supra) with a reference to “principle of secrecy of ballot”,

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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observed thus:

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“ 10.xxxx .....xxx But this right of the voter is not absolute. It must yield to the principle of “purity of election” in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. “Secrecy of ballot” principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the “secrecy of ballot” as an allied vital principle.”

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In Smt. Rekha's case (supra) relied upon by the learned counsel for the respondents, the Hon'ble Supreme Court has followed the law laid down in Raghbir Singh Gill's case (supra) and A. Neelalohithadasan Nadar's case (supra).

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In the backdrop of the position of law settled by the Apex Court as aforesaid, adverting to the facts of the present case, it is to be noticed that in the instant case, the total number of ballot papers issued were 5720. Indisputably, as per the statement prepared at various booths , the total number of votes polled comes to 3471. It is alleged that unused 2249 votes were deposited to the District Election Officer. It is pertinent to note that in the first round of the counting the total number of ballot papers, actually counted from all polling booths were shown as 3471 , however, in the second round of counting, the same increased by 50 votes and were shown as 3521. These

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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11 averments are specifically incorporated in the election petition filed by the petitioner and a complete chart of boothwise polling and the details of the ballot papers allotted to various booths are also set out in the election petition. It is pertinent to note that even the Returning Officer who was examined by the Election Tribunal admitted that the total number of votes allotted were 5720. He has also admitted that in the first round of the counting, total votes polled were counted as 3471 and in the second round of counting the same were found to be 3521. He has further categorically admitted that on 20.1.10, he had deposited 2249 unused ballot papers with the District Election Officer. Thus, if the number of unused ballots is added to the total number of votes counted in the second round, the total votes comes to 5770 whereas actually the total number of ballots issued were only 5720. Thus, on the facts and in the circumstances of the case, the doubt regarding the excess votes being counted in the second round of counting allegedly in favour of the petitioner, the returned candidate, can only be resolved by inspection and recounting of the votes. In considered opinion of this court, the question as to whether in the second round of counting, the excess votes were counted/included has to be resolved by counting the votes actually polled. Of course, if the discrepancy and confusion

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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12 regarding the votes polled still prevails after the recounting , it is always open for the Election Tribunal to even direct the recounting of unused votes. The parties shall also be at liberty to make a prayer in this regard before the Election Tribunal, if the occasion arises.

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In view of the discussion above, in considered opinion of this court, order impugned passed by the Election Tribunal directing recounting of the unused votes at this stage deserves to be set aside and the direction deserves to be issued for recounting of the used votes whether valid, tendered or rejected.

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Accordingly, the writ petition is partly allowed. The order impugned passed by the Election Tribunal directing recounting of unused votes is set aside. The application preferred by the election petitioner for inspection and recounting of votes is allowed in terms that the votes actually polled shall be inspected and counted under the supervision of Election Tribunal on the next date of hearing. If, even after recounting of polled votes, the doubt regarding the sanctity of counting or irregularities or illegalities alleged to have been committed during the counting prevails, it will be open for the Election Tribunal to direct the recounting of unused ballot papers as well if considered necessary to do complete justice between the parties. The

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SUGANI DEVI VS. BHANWAR LAL & ANR. (S.B.CIVIL WRIT PETITION NO.5358/12)

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parties shall also be at liberty to make the prayer in this regard before the Election Tribunal , if the occasion arises. No order as to costs.

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(SANGEET LODHA),J.

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Aditya/-

Sugani Devi v. Bhanwar Lal and Anr.

Case brief

What is this about?

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Sugani Devi v. Bhanwar Lal and Anr.

Case brief

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