Ram Rati Vs. Saroj Devi & Ors  INSC 461 (25 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R Leave granted.
heard the counsel on both sides.
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.
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
question is : whether the respondenthas made any application for recounting?
The order of the Tribunal indicates thus:
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
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.
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.
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.
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.
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.
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
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.