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Smt. Ram Rati Vs. Saroj Devi & Ors [1997] INSC 461 (25 April 1997)

K. RAMASWAMY, D.P. WADHWA

ACT:

HEADNOTE:

O R D E R Leave granted.

Wehave heard the counsel on both sides.

This appeal, by special leave, arises fromthe judgment of theHigh Court of Madhya Pradeshat Jabalpur bench, passed on October 30, 1996, in W.P.No. 632/95.

Elections to the post ofSarpanch of Gram Panchayat, Laua Kothar Block, Raipur Distt. Rewawere held on May 30, 1994. 223 voteswere polled in favour of the appellant while the respondent was polled 207 votes. Inform No.26-B, Ex.P2, the Returning officer had declared thatthe elections to the officerof Sarpanch ofthe Gram Panchayat wereheld and the appellant, Smt. Ram Rati, R/oVillage Loua Kothar, Raipur Kurchulian, Rewa Distt., M.P., was a candidate in thesaid election, was duly elected. The saidcertificate of the Returning Officer is dated June 1, 1994. The respondent, feelingaggrieved filed an Election Petition. In thesaid petition, the respondent stated that the election was not properly conducted; anapplication for recounting wasmade but itwas not dome; evidence wasadduced in support thereof. The Tribunal directed recounting, which hasbeen affirmed by the High Court. Thus this appeal, by special leave.

The question is : whether the respondenthas made any application for recounting? The order of the Tribunal indicates thus:

"Accordingto theaforesaid, after discussingthe election application and analysing the submissions of Applicant and Respondent No.1, The Vihit Adhikariat the first instance is satisfied with this that to decide thedisputeproperly itis essential that recounting be got done. Therefore, Returning Officer (Panchayat), Development Division, Raipur Karchuliyan Development Division, Raipur Karchuliyan District Rewa is hereby directed that after obtaining all the documents connected with Gram PanchayatLaua KotharSarpanch Election 1994 from the strong room inthe police custody, He should present himself inthe Court 1.3.95 at10.30 A.M." The question, therefore, is ; whether the respondent has made any application tothe ReturningOfficer and recounting wasproperly done? Rule 76 of the M.P. Panchayat Elections Rules, 1994 (for short, the `Rules') postulates thus:

"76. Recount of Votes - (1) After the completion of the counting, the ReturningOfficer (Panchayat) or such other officer authorised by him shall record in the result sheet in Forms mentionedin Sub- rule (2)of Rule 73 the total number of votespolledby each candidate and announce thesame.

(2) After such announcement has been madea candidate or, in his election agent mayapply in writing to the Returning Officer (Panchayat) or such otherofficers authorisedby him,for a recount of all or any of the ballot papers already counted stating the grounds onwhich he demands such recount.

(3) On such an application being made the returning officer (panchayat) or such otherofficers authorisedby himshall decide the matter and may allow the application in whole or in part or may reject it if it appears to him tobe frivolous orunreasonable.

(4) Every decisionof the returning officer (Panchayat) or such other officer (Panchayat ) or such other officers authorised by him, under the Sub-rule (3) shall be in writing and contain the reason thereof." Byapplication of sub-rule(1) of Section 76, after the completion of the counting, the Returning Officer (Panchayat) orsuch other officer authorised by him, shall record in the result sheet. in Forms mentioned in sub-rule (2) of Rule 73 (Form 26-B), thetotal number ofvotes polled by each candidates and announce the same. Under sub-rule (2), after such announcement has beenmade, acandidate of in hisabsence, his election agent, may apply in writing to the Returning Officer (Panchayat) or such other officers authorised by him, for a recount of all or any of there ballot papers already counted,statingthe grounds on which he demands such recount. Under sub-rule (3), onsuch application being made,the Returning Officer (Panchayat) or such other officers authorised by him, shall decide the matter and mayallow the application in whole or in part or may reject it if it appears to him to be frivolous or unreasonable. Under sub-rule (4) every decision of the Returning Officer (Panchayat) or such other officers authorised by him, under the sub-rule (3) ,shall be in writingand contain thereason thereof.

Itis difficult to give acceptance to the contention that the respondent made an application to the Returning Officerand the Returning officer had not recounted. In the light of the mandatory anguage of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing andgive reasonsin support thereof, while seeking recounting. If it is not done, then the Tribunal of the court is not empowered to direct recounting even after adduction ofevidence and consideration of the alleged irregularities in the counting.

The essential condition-precedent is that an application in writingshouldbe made and the Returning Officer should pass an order with reasons in support thereof either to recall the order or otherwise, in writing. The fact that the officerhad not passed any order in writing would indicate that the respondent hadnot made any application. Obviously, some subsequent had hot made any application. Obviously, some subsequentmanipulation, as contended by the appellant, would have taken place, as aresult of whichthe election petition was filed and the argumentswere addressed for recounting. Itis settled legal position that secrecy of ballot should not be breachedand asfar as possible, the secrecyof ballot or the court is required to order recount, that too on giving satisfactory grounds for recounting. In view ofthe fact that the rule itself provides that, assoon as theresult of the electionis announced, an application in writing must be made at the first instanceand thefact ***** no such application hasbeen placed before usdoes indicate that no such application had been made on thedate of thedeclaration ofthe result. The allegation of an application having been made, would bean afterthought. The Tribunal, therefore,has committed manifest error in directing recount.

The appealis accordingly allowed and the orders of the Tribunal and the HighCourt stand setaside. No costs. We, however, make it clear that we have proceededon the basis of plea of the respondent for recount under Rule 76 aforementioned which has beennegatived and we have not examined the powers of the Tribunal to order recount and the circumstances under which it can be so ordered.

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