Election Petitioner Seeking Recounting Of Votes Must Provide Material Justifying Such A Direction: Chhattisgarh High Court
The Chhattisgarh High Court recently set aside an order of an Election Tribunal whereby re-counting of votes in an election to the post of Sarpanch was ordered and the initial election result was interfered with.Allowing the appeal preferred by the candidate who was initially declared successful but was later removed from the said post owing to the Tribunal's order, a bench of Justice...
The Chhattisgarh High Court recently set aside an order of an Election Tribunal whereby re-counting of votes in an election to the post of Sarpanch was ordered and the initial election result was interfered with.
Allowing the appeal preferred by the candidate who was initially declared successful but was later removed from the said post owing to the Tribunal's order, a bench of Justice Goutam Bhaduri and Justice N.K. Chandravanshi observed,
"The tribunal while ordering for recounting, primarily relied on the statement of one Hira Singh, Vinay Pandey and Vikas Burman. All the three people, who were examined by the election petitioner were the agents of the losing candidate i.e. Dharmin Bai Kashyap. The people who were in-charge of the recounting process and were the independent witness were not called for evidence. When the election petitioner was sanguine of the fact the counting of votes was not properly carried out, the independent witnesses should have been brought to remove all ambiguity and to avoid one side probe cry."
Background
The brief facts of this case are that an election for the post of Sarpanch was held on 28/01/2020 wherein the appellant and the respondent No.4 primarily they were the contesting candidates. The election result favoured the appellant.
Later, an election petition was filed before the SDO (Revenue) with a prayer to recount the votes. Vide order dated 18 October, 2021, the election tribunal directed for recount of the votes of the Sarpanch in three booths. The said order was subject of challenge before the High Court wherein the order dated 18 October, 2021 was quashed and it was directed that the proceedings before the tribunal be decided in accordance with the provisions of Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, within a specified time.
Therefore, witnesses were examined in the election petition by the contesting parties. After the examination of the statement, initially order dated 20 December, 2021 was passed whereby the SDO had directed for recount of the votes. The said order was challenged by the appellant. However, before the hearing of the said writ petition, the order of removal of petitioner dated 31 December, 2021 was passed.
On 31 December, 2021, recounting of votes was carried out and the appellant's vote was reduced from 404 to 400 whereas the votes of respondent No.4 Dharmin Bai Kashyap remained to that of earlier one of 403. In result, respondent No.4 was declared elected Sarpanch.
An appeal against the said order was dismissed by a single bench. Hence, the instant proceedings.
Petitioner submitted that in a election petition under the 1995 Rules, specified relief is required to be claimed i.e. declaration of the election of returned candidate is void and in addition thereto further declaration is required to be claimed to declare petitioner or other contesting candidates as wining candidate.
He submitted that the petition before the election tribunal was only confined to recounting of votes without following the mandate of Rule 6 of Rules, 1995, as such the petition itself was not maintainable only for recount of votes.
Further he said that in the process of recount, the validity of the votes secured by the appellant was gone into and the number of votes secured by the appellant from 404 was reduced to 400 whereas the number of votes secured by the respondent who was subsequently declared elected remained the same as 403.
The Respondent no. 4 submitted that the order of recount is implicit. He said that the evidence rendered on behalf of the appellant would show that witness examined by appellant were not present in person during the initial counting of votes and therefore the order passed by the tribunal is well merited.
Findings
Ona perusal of Rule 6 of the 1995 Rules, the Court observed that the relief has to be not only the declaration of the elected candidate is required to be prayed to be void but the declaration to any candidate as elected is required to be made.
"The legislature in its wisdom has used the word 'and' in addition to (b) to Rule 6. The addition of such Rule purports that further declaration that he himself or any other candidate duly elected is required to be prayed. Consequently, as per the legislative intent dual prayer is an substantive addition which is required to be prayed. The requirement, therefore, is with certain object that in case of recounting and change of result, fresh election is not called for again."
On the aspect of evidence to order re-counting of votes, the Court said that in absence of clear unambiguous statement and for want of independent witness, apart from the witness Hira Singh, Vinay Pandey and Vikas Burman, who were on behalf of the election petitioner/agent no sanctity can be given as to their statement being interested witness.
"The votes which has been reduced of the appellant also speaks writ large that some new factor of consideration came to fore when the recounting was made. Simply because of the fact that the appellant was present during the recounting, there cannot be estopel against the law."
In view of the above, the appeal was allowed.
Case Title: Babli Sahu v. State Of Chhattisgarh and Ors.
Citation: 2022 LiveLaw (Chh) 43
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