2002 JTR(SC) 1147
2003 2 AIC 409 ; 2003 AIR(SC) 320 ; 2002 AIR(SCW) 4803 ; 2003 1 AllCJ 591 ; 2003 1 AllMR(SC) 785 ; 2003 3 AWC 2563 ; 2003 1 DNJ 232 ; 2003 1 JCR(SC) 164 ; 2002 9 JT 474 ; 2003 1 MPHT 292 ; 2003 2 MPLJ 215 ; 2003 2 RCR(Civ) 731 ; 2002 8 Scale 555 ; 2003 1 SCC 108 ; 2002 Supp4 SCR 333 ; 2003 1 UJ 75 ; 2003 KHC 719 ; 2002 8 Supreme 408
2002(8) Supreme 408
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
M.B. Shah, S.N. Variava and D.M. Dharmadhikari, JJ.
Sohan Lal -Appellant
versus
Babu Gandhi & Ors. -Respondents
Civil Appeal Nos. 7623-7624 of 2002
(Arising out of SLP (C) Nos. 10858-59 of 2001)
Decided on 22-11-2002
Counsel for the Parties :
For the Appellant : Sushil Kumar Jain, Ms. Anjali Doshi and A.P. Dhamija, Advocates.
For the Respondent No. 1 : Niraj Sharma, Advocate.
For the Respondent No. 5 : B.S. Banthia and W.A. Nomani, Advocates.
IMPORTANT POINT
The rule in Ram Rati s case AIR 1997 SC 3072 that in case of M.P. Panchayat Election unless a party first applies to a Revenue Officer for recounting of votes it is not open to the Tribunal or the Court to direct recounting is not correct.
Act Referred :MADHYA PRADESH PANCHAYATS RAJ AVAM GRAM SWARAJ ADHINIYAM ACT : S.122, S.43, S.95
(A) The M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, governs local self-government elections in the state, specifying that an election can be challenged only through a petition to the Sub-Divisional Officer under Section 122. Rule 80 outlines the procedure for a recount of votes, requiring an application to the Returning Officer before result declaration, while Rule 83 and Rule 84 provide for declaration of results and correction of clerical errors post-declaration. These statutory provisions frame the permissible remedies and timelines for addressing discrepancies in electoral processes under the Act.
(B) The core legal principle is that an election petition under Section 122 is the exclusive remedy after result declaration, and a tribunal or court cannot direct a recount of votes unless the candidate had a reasonable opportunity to apply for recount before the result was officially declared; the doctrine of pre-result application is not an absolute bar to judicial review where an obvious error in declaration is evident.
Facts of the case:
In an election for Sarpanch of Gram Panchayat Ringnodiya, Indore, the Appellant was orally informed of victory after counting, but the official declaration showed Respondent No. 1 as winner. The Appellant filed an election petition, and the Sub-Divisional Officer, upon recounting, found errors in booth-wise vote allocation and declared the Appellant elected. The High Court allowed a Writ Petition by Respondent No. 1, relying on the ratio in Ram Rati vs. Saroj Devi that an application for recount to the Returning Officer is a pre-condition, and set aside the orders.
Findings of Court:
The higher court examined the provisions of the Act and held that Section 122 and the rules do not prohibit a court from directing recount in an election petition where the result suffers an obvious error. It observed that a party may not realize the need for recount until after declaration, making pre-application to the Returning Officer impractical, and that the court must consider the plea and direct recount if the evidence justifies it.
Issues:
Whether a Writ Court or Election Tribunal can direct recount of votes in an election petition without the party first having applied in writing to the Returning Officer for recount, and whether the doctrine laid down in Ram Ratis case is sustainable under the Act.
Ratio Decidendi:
The court held that the ratio in Ram Ratis case is not correct in the context of the Madhya Pradesh Panchayat Raj Act, as Sections 122 and the rules do not bar judicial direction for recount. A court can direct recount on an election petition if the circumstances reveal an error in declaration, and denial of such recourse would defeat the remedy available under the Act.
Result:
The impugned High Court judgment is set aside, the Writ Petition is restored to the High Court file for disposal on merits, and no order as to costs is made.
(A) The M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, governs local self-government elections in the state, specifying that an election can be challenged only through a petition to the Sub-Divisional Officer under Section 122. Rule 80 outlines the procedure for a recount of votes, requiring an application to the Returning Officer before result declaration, while Rule 83 and Rule 84 provide for declaration of results and correction of clerical errors post-declaration. These statutory provisions frame the permissible remedies and timelines for addressing discrepancies in electoral processes under the Act.
(B) The core legal principle is that an election petition under Section 122 is the exclusive remedy after result declaration, and a tribunal or court cannot direct a recount of votes unless the candidate had a reasonable opportunity to apply for recount before the result was officially declared; the doctrine of pre-result application is not an absolute bar to judicial review where an obvious error in declaration is evident.
Facts of the case:
In an election for Sarpanch of Gram Panchayat Ringnodiya, Indore, the Appellant was orally informed of victory after counting, but the official declaration showed Respondent No. 1 as winner. The Appellant filed an election petition, and the Sub-Divisional Officer, upon recounting, found errors in booth-wise vote allocation and declared the Appellant elected. The High Court allowed a Writ Petition by Respondent No. 1, relying on the ratio in Ram Rati vs. Saroj Devi that an application for recount to the Returning Officer is a pre-condition, and set aside the orders.
Findings of Court:
The higher court examined the provisions of the Act and held that Section 122 and the rules do not prohibit a court from directing recount in an election petition where the result suffers an obvious error. It observed that a party may not realize the need for recount until after declaration, making pre-application to the Returning Officer impractical, and that the court must consider the plea and direct recount if the evidence justifies it.
Issues:
Whether a Writ Court or Election Tribunal can direct recount of votes in an election petition without the party first having applied in writing to the Returning Officer for recount, and whether the doctrine laid down in Ram Ratis case is sustainable under the Act.
Ratio Decidendi:
The court held that the ratio in Ram Ratis case is not correct in the context of the Madhya Pradesh Panchayat Raj Act, as Sections 122 and the rules do not bar judicial direction for recount. A court can direct recount on an election petition if the circumstances reveal an error in declaration, and denial of such recourse would defeat the remedy available under the Act.
Result:
The impugned High Court judgment is set aside, the Writ Petition is restored to the High Court file for disposal on merits, and no order as to costs is made.
JUDGMENT
S.N. Variava, J.-Leave granted.
2. These Appeals are against the judgment dated 27th March, 2001. Briefly stated the facts are as follows:
3. On 20th January, 2000 the election for the post of Sarpanch, Gram Panchayat, Ringnodiya, Indore was held. After the counting of the votes, the Appellant was orally informed that he had won the elections. However when the result was officially declared, Respondent No. 1 was shown to have won. The Returning Officer then issued a certificate showing that Respondent No.1 had won.
4. The Appellant, therefore, filed an election petition before the Sub-Divisional Officer, Respondent No. 1 evaded services. By an ex-parte Order the Sub-Divisional Officer directed recounting of ballot papers. On such recounting it was found that in respect of booth No. 151 the votes polled in favour of the Appellant had been erroneously shown as having been polled in favour of Respondent No. 4. On a recounting of the votes it was found that the Appellant had won. The Sub-Divisional Officer, therefore, corrected the mistake by Order dated 3rd February, 2000 and declared the Appellant to have won the election.
5. Against the order of the Sub-Divisional Officer, Respondent No. 1 filed a Writ Petition in the High Court. On 23rd February, 2000 the High Court disposed of the Writ Petition by remanding the matter back to Sub-Divisional Officer. The Sub-Divisional Officer thereafter heard all parties and again passed an order to recount. On a second recount it was again found that the votes polled in favour of the Appellant had been erroneously shown as having been polled in favour of Respondent No. 4. Thus the Sub-Divisional Officer again corrected the results and declared the Appellant as having won the elections.
6. The 1st Respondent again filed a Writ Petition before the High Court. This Writ Petition has been allowed by the impugned judgment. In the impugned judgment, the High Court has followed a decision of this Court in the case of Smt. Ram Rati vs. Saroj Devi and Ors. reported in AIR 1997 Supreme Court 3072. In this decision it has been held that unless a party first applies to the Returning Officer for recounting of votes it is not open to the Tribunal or the Court to direct recounting. It was held that an application for recounting in writing to the Returning Officer was an essential pre-condition.
7. Based on this authority, the High Court set aside the order of the Sub-Divisional Officer solely on the ground that the Appellant had not applied to the Returning Officer for recounting. The High Court did not decide any other points raised in the Writ Petition.
8. When these Appeals came up before a bench of two Judges of this Court they had reservation about the principle laid down in Ram Rati s case. This matter was, therefore, directed to be placed before a three Judge Bench. It has accordingly been placed before us.
9. In order to consider the correctness of the ratio laid down in Ram Rati s case it is necessary to see the provisions of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter called the said Act ). Section 43 of the said Act empowers the State Government in consultation with the State Election Commission to make rules for preparation of electoral rolls and conduct of all elections. Section 95 further empowers the State Government to make rules for carrying out the purposes of the said Act. Section 122 provides that an election can be called in question only by a petition presented, in case of a Gram Panchayat, to the Sub-Divisional Officer.
10. Rule 80 reads as follows:-
"80. Recount of votes.-(1) After an announcement has been made by the Returning Officer or such other officer authorised by him, of the total number of votes polled by each candidate under sub-rule (2) or rule 77, a candidate or, in his absence, his election agent or his counting agent may apply in writing to the Returning Officer or such officer authorised by him, for a recount of all or any of the votes already counted, stating the grounds on which he demands such recount.
(2) On such an application being made the Returning Officer or such other officer authorised by him shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(3) Every decision of the Returning Officer or such other officer authorised by him, under sub-rule (2) shall be in writing and contain the reasons therefor.
(4) If the Returning Officer or such other officer authorised by him, decides under sub-rule (2) to allow an application either in whole or in part, he shall-
(a) count the ballot papers again in accordance with his decision;
(b) amend the result sheet to the extent necessary after such recount; and
(c) announce the amendment so made by him.
(5) After the total number of votes polled by each candidate has been announced under sub-rule (2) of rule 77 or sub-rule (4) the Returning Officer or such other officer authorised by him shall complete and sign the result sheet and no application for a recount shall be entertained thereafter;
Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (1).
(6) The counted ballot papers shall be bundled and kept in the manner mentioned in sub-rule (3) of rule 77.
(7) Result sheets in Form 16, 17, 18 and 19 for Panch, Sarpanch, Member of Janpad Panchayat and Member of Zila Panchayat respectively, prepared by such other officers as are authorised by the Returning Officer, shall be submitted by them, in separate envelops to the Returning Officer for compilation and tabulation of votes polled by each candidate.
(8) The Returning Officer on receipt of result sheets under sub-rule (7) shall enter of cause to be entered the total number of votes polled by each candidate contesting for a seat of Sarpanch, Member of Janpad Panchayat or Member of Zila Panchayat at each polling station of the concerned constituency in subsequent part or parts of Form 17, 18 and 19 respectively and complete and sign the result sheet."
11. Thus under sub-rule (5) once the result sheet is completed and signed, no application for recount can be entertained.
12. Rule 81 also provides that after the counting of the votes, the Returning Officer shall prepare a return and declare the candidate who has the largest number of votes to have been elected. Under Rule 83, a certificate is to be granted to the returned candidate who has been declared elected. Under Rule 84 after the certificate has been granted, election officer or the Returning Officer can only correct clerical or arithmetical mistakes.
13. Thus after declaration of results, the Returning Officer has no power either to direct recount or to change the results of the election. Once the result is declared, the only remedy of an aggrieved party is an Election Petition under Section 122.
14. In this case, as stated above, the Appellant had been orally told that he had won. He only came to know that Respondent No.1 had been declared elected after the result was declared. At this state, he could not have approached the Returning Officer for recount. The only remedy, therefore, available to the Appellant was to file an Election Petition.
15. In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati s case. It is not correct to hold that, in an election petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the party has first applied in writing for recounting of votes. There is no prohibition in the Act or under the rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting 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 case is made out, it may direct recount depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati s case is not correct.
16. In this view of the matter, the decision of the High Court cannot be sustained and is, therefore, set aside. As the Writ Petition was disposed off only on the basis of Ram Rati s case, the High Court has not dealt with other points raised in the Writ Petition. We therefore restore the Writ Petition to the file of the High Court. The High Court shall decide the same on merits.
17. The Appeals stand disposed of accordingly. There shall be no order as to costs.
(N.K.R.) Appeal disposed of accordingly.
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