Smt. Anu Rangta v. State of Himachal Pradesh & Ors

In contrast the election petitioner-Ms. Ranju who had contested under the election symbol of “Bucket”, had 245 votes cast in her favour and there was one objected vote and therefore both the candidates had 246 votes each, including the objected votes. One of the objected votes did not contain the mark of the instrument supplied and it was deemed to be invalid vote for the election petitioner-Ranju and therefore her tally of votes came to

The elected candidate-appellant had invalid vote bearing Serial No.3755009 as it contained the mark of instrument both against her name and as against the column of ‘NOTA’. Similarly, in the Ballot Paper bearing Serial No.3756288, it was found that two marks were present against the name of the elected candidate-Ms. Anu Rangta and against the name of another candidate namely-Anjana Chauhan.

The learned Single Judge had folded all the said Ballot Paper to find out that whether it was a smudge mark and came to the conclusion that the same was not possible. Resultantly, the said vote was declared as invalid vote having a mark against two candidates. Another vote as such which was disputed out of the three votes containing Ballot Paper bearing 4 Serial No.3753592 had been checked and there was no smudge mark and no other mark it was validly considered against her name. Therefore, the entitlement from 243 was given to 244.

Resultantly, it has been held that the appellant had only polled 244 votes, whereas the election petitioner had polled 245 votes, since, her vote which had been objected to had found to contain not a proper mark. Resultantly, for the difference of one vote, the election petitioner was held to be a winning candidate and declared elected to the office of the Pradhan of the Panchayat, which had been held on 21.01.2021. Arguments of counsel for the appellant:

Mr. Ajay Sharma, learned Senior Counsel for the appellant has vehemently argued that the learned Single Judge had exceeded to his jurisdiction while exercising jurisdiction under Article 226 of the Constitution of India and submitted that as per the provisions of Section 164, the contents of the petition of the election petition had to show concise statement of material facts, on which the petitioner relied and a roving inquiry was not permitted as had allegedly been done by the learned Single Judge. He had also placed reliance upon Rule 76 of the “Himachal Pradesh Panchayati Raj (Election) Rules, 1994 (for short the ‘Rules, 1994’) which provide for Scrutiny and Rejection 5 of ballot papers to contend that the process had to be done by the Returning Officer on the grounds mentioned therein which provided that the ballot paper could be rejected on various grounds. These include when the voter could be identified or it did not bear any mark which would have been borne under the provisions of sub-Rule (3) of Rule 59, which provided that it had to be marked with such distinguishing mark as the District Election Officer (Panchayats) may direct or where it could have been marked in columns of more than one candidate or it had been marked by other than the equipment and the manner prescribed for that purpose. Similarly, reliance was placed upon Rule 79 of “Rules, of 1994” to contend that the recount of the votes had been prayed for and not the scrutiny and rejection of the ballot papers. The learned Single Judge had mixed up the said issue while examining the ballot papers while coming to a conclusion which was not permissible, keeping in view the strict law which governs the election petition.

It was thus argued that there was no specific allegations in the election petition of wrongful stamping and the only issue was regarding 13 votes, which were held to be invalid and which had been allegedly cast in favour of the petitioner and therefore the scrutiny as such of the invalid votes in dispute 6 which had been polled out of the total 944 was beyond the jurisdiction which the learned Single Judge had gone into and examined the objected three votes of the appellant and the one vote of the election petitioner.

Resultantly, reliance was placed upon judgment of the Apex Court in Bhabhi Vs. Sheo Govind and Others (1976) 1 SCC 687 to contend that the secrecy of the ballot paper was sacrosanct and the allegations made against the elected candidate must be clear and specific and supported by adequate statements of material facts; and the indulgence in a roving inquiry with a view to fish out materials for declaring the election to be void was not permissible.

He has also placed reliance upon judgment of the Apex Court in Vijay Bahadur Vs. Sunil Kumar & Others [2025] 4 S.C.R. 11 to contend that the view of the Apex Court was consistent that there have to be specific allegations and fishing out evidence could not be permitted and order of recount could not be ordered as a matter of course.

Lastly, while placing reliance upon Civil Appeal No.2517 of 2023 titled Dharmin Bai Kashyap Vs. Babli Sahu & Others, decided on 16.08.2023, it was contended that the Deputy Commissioner while allowing the appeal of the appellant 7 had come to the conclusion that there was no application given in writing for recount of the votes to the Returning Ofifcer and therefore in the absence of the same while falling back on Rule 79 sub-Clause (2) of the ‘Rules, 1994’ it was contended that it was not disputed that no application has been given in writing for the recount and therefore, it was not permissible. While arguing that in the absence of any such request, recourse by the learned Single Judge for the said procedure was uncalled for. Arguments of counsel for respondent No.6:

Mr. Ankush Dass Sood, learned Senior Counsel for respondent No.6 on the other hand argued that it was not disputed that in the initial stage the election petitioner had been elected under the difference of as many as 15 votes initially polled to the tune of 259 against 244, but the Returning Officer had wrongly not declared the result. Without any request recounting had taken place and as per the evidence and record admittedly it had been done on three times.

The last of the recount was that the votes were equal and thereafter on account of the toss, the appellant had been declared elected wrongly and therefore the recourse followed by the learned Single Judge was well justified. Having given its 8 consent, the petitioner as such was estopped from objecting to the said methodology in an appeal.

He has placed reliance upon the principle of estoppel acquiescene and waiver and fallen back on the judgment passed by the Apex Court in Chairman, State Bank of India and Another VS. M.J. James (2022) 2 SCC 301, wherein it has been held that acquiescence could be either direct with full knowledge and express approbation, or indirect and it was an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right and cannot afterwards complain.

He has also placed reliance upon a three-Judge Bench judgment of the Apex Court in Sohan Lal Vs. Babu Gandhi and Others (2003) 1 SCC 108 to submit that even in the absence of the written application, if there was sufficient evidence on record the Court or Tribunal as such could order to direct recounting of the votes and there is still no prohibition in the Act or under the Rules.

Accordingly, it is argued that the scrutiny and recount could not be limited to ballot papers which were objected to only or declared invalid but it was the larger exercise and all the ballot papers have to be examined and the Court was not helpless to 9 examine other ballot papers to come to the conclusion and if there was an error apparent and the Court could always exercise jurisdiction. Pleadings and evidence on record:

It is in this limited context, we have to see whether the learned Single Judge had kept himself within the parameters prescribed and whether there was any specific evidence on record on the basis of which interference could have been done while exercising the jurisdiction and dealing with the issue which was subject matter of consideration arising out of the order of the Authorized Officer, while dealing with the election petition.

Firstly, it is important to take into consideration what was the specific case as such of the election petitioner and what was the material on record on the basis of which the proceedings had been initiated.

It is to be noticed in the grounds which had been raised on which the petition had been filed under Sections 162, 163 and 164 of the ‘The Himachal Pradesh Panchayati Raj Act, 1994 read with Section 175, it was specifically stated that in ground No. 3 (vii) that the election petitioner had been declared elected and had led the process by 15 votes and after deducting 10 the valid votes casted in her favour she was declared to be a defeated candidate by draw of lots.

Similarly, it was again stated that 259 votes have been cast in her favour and 244 votes in favour of the elected candidate and she had been declared to be a winner and on being congratulated by her agent had come inside to sign as such when the Returning Officer had asked her that he had declared the respondent No.1 as a Pradhan by way of draw. Thus no proper procedure had been followed and the entire election process was null and void. The 13 of the votes as such which were valid and cast in her favour had been declared invalid and there was no double stamps. Resultantly, the total number of ballot papers deserved to be opened before the Court so they were to be recounted.

In the written statement, the fact of recounting already done three times at the spot when there were 20 agents present which fact was admitted by the appellant. It was also admitted that after agreeing of the draw, all the agents had signed the vote counting completion form. The factum of getting equal valid votes and call for the draw of votes was admitted.

The Authorized Officer in his decision dated

21.03.2022 had examined the evidence on record of the 11 witnesses who had appeared in which the election petitioner had examined herself and PW-2 Subhash. The elected petitioner had examined six witnesses in defence including official witnesses and the Authorized Officer had held that the counting was done three times. Similarly, the cross-examination of the witness RW- 3-Joginder Singh had been done by the elected candidate and it has come in the evidence that in the first counting, the election petitioner had got 249 votes and the elected candidate got 246 votes but the result had not been declared. In the second round of the counting of petitioner, two votes were counted in favour of another candidate and one vote was blank and in the third counting both got equal votes. Similarly, the Presiding Officer as well as of the Counting Officer RW-4-Manoj had stated that in the first counting, the election petitioner-Ranju was winning and the second counting, the elected candidate-Anju Rangta had won and there was difference of one or two votes and votes were counted three times. RW-5-Amrit Thakur, the Presiding Officer/Counting Officer stated that counting was done as per the procedure. Whereas, the Assistant Reutrning Officer namely Sh. Rohit Sahuta while appearing as RW-6 stated that the votes were found equal in all the three times and the counting have been done three times and therefore, the draw of lots has been done 12 as per law. He is stated to have raised allegations against the husband of the election petitioner that he had shouted and created the dreadful situation on the spot and was not satisfied with the first counting and second counting was done and he was satisfied with the second counting but third counting was done for self-satisfaction. Resultantly, the finding was recorded that the Assistant Returning Officer has done recounting without any written application form, which was required by law and there was no result of the first and second counting on the record.

In such circumstances, recounting was ordered by the Authorized Officer as there was sufficient evidence and material to show that there was an infirmity as such to the procedure prescribed as apparently, the first recounting was done without any written application and also, the result had not been declared. The said order had been then challenged in the appeal and the Deputy Commissioner had then taken technical view in the absence of any application for recounting and the result having been declared, the Authorized Officer as such was wrong in passing the order for recount and set aside the same. Our reasoning to uphold the order:

It is also a matter of record while placing reliance on Rule 79 of the ‘Rules, 1994’ the said order passed by the Deputy 13 Commissioner was without even appreciating or dealing with the evidence which is there as apparently there was an admission of the witnesses of the election petitioner of the elected candidate. In the first round of counting, the election petitioner had got more votes. Unfortunately, the Deputy Commissioner had relied upon the provisions as such of Rule 79 of the ‘Rules, 1994’ without appreciating the law laid down by the Apex Court in Sohan Lal case (supra), which provides that on the basis of evidence led on record, the resort as such can be done to, wherein subject matter of consideration as such was the earlier view in Ram Rati Vs. Saroj Devi and Others (1997) 6 SCC 66 which was overruled. Resultantly, it was held that the ratio was not correct and if there is evidence on record, the Court or the Tribunal is bound to consider the plea. The relevant portion reads as under:- “14. In view of Section 122 and the Rules, we are unable to agree with the ratio laid down in Ram Rati case [(1997) 6 SCC 66: AIR 1997 SC 3072]. It is not correct to hold that, in an election petition, after the declaration of the result, the court or tribunal cannot direct re-counting of votes unless the party has first applied in writing for re-counting of votes. There is no prohibition in the Act or under the Rules prohibiting the court or tribunal to direct a re-counting of the votes. Even otherwise, a pary may not know that that re-counting is necessary till after the result is declared. At this stage, it would not be possible for him to apply for re-counting 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 a case is made out, it may direct re-count depending upon the evidence led by the parties. In the present 14