Election Petition No. 3 of 2023 · High Court

by filing Writ-C No.3610 of 2023, which was disposed of on

02.05.2023, observing that all steps shall be taken to ensure free and fair election. He further argues that yet another Writ-C No.3831 of 2023 was also disposed of with similar observations vide judgement dated 12.05.2023. He argues that along with the election petition, the petitioner had moved an application for decision on the application filed for recounting in view of the discrepancies as stated in the election petition. As the same was not being decided, the petitioner approached this Court by filing an application under Article 227 No.2287 of 2024, which was disposed of on 08.05.2024, wherein the Court had granted liberty to the petitioner to move an application for early disposal, which was directed to be considered within a period of three weeks. In terms of the said liberty, the petitioner had approached the Tribunal to decide the application. However, instead of deciding the application for recounting, the District Judge vide its order dated 22.10.2024, disposed of the urgency application only and did not pass any order on the application for recounting, as such, the petitioner once again approached this Court by filing an application under Article 227 No.5640 of 2024, which was disposed of on 29.11.2024, directing the court to decide the interim application, if not already decided and also directed that the application for recounting shall also be decided in accordance with law, if not already decided. In terms of the said directions given by this Court on 29.11.2024, the order impugned came to be passed.

6. While doing so, the District Judge held that the burden of proving the averments as contained in the election petition was on the petitioner and in case, the petitioner succeeds in discharging the said burden by leading appropriate evidence, the court can consider to passing directions for recounting. It also recorded that the petition was pending for framing of issues and at that stage, it would not be proper to decide the request for recounting. It was also observed that a similar observation was made in the earlier order dated 22.10.2024 and in that circumstances, the petitioner cannot be given interim relief, which would amount to a final relief.

7. Shri Gaurav Mehrotra, learned counsel appearing on behalf of the petitioner argues that the District Judge erred in not deciding the application on the ground that granting of interim relief would amount to grant of final relief, which according to him, is contrary to the judgement of this Court in the case of Mohd. Mustafa Vs. Up Ziladhikari Phoolpur and others 2007 (6) AWC 5536. The reliance has been placed on paragraph 23, which is quoted herein-below:- "23. We have carefully examined the reasoning given by a learned Single Judge in Abrar's s case (supra) wherein the learned Single Judge opined that the disposal of an application for recount would amount to be a final order as it disposes of the application for recount finally. As explained by us, hereinabove, a mere order for recount does not finally alter the status of the contesting parties and it does not, in any way, finally determines the status of an elected candidate. The finality comes only after the disposal of the ejection application as the relief of setting aside an election or dismissing an election application comes at the final stage and not by mere disposal of an application of recount or ordering recount on deciding the issue framed for this purpose."

8. He further relies upon the judgement of learned Single Judge in the case of Smt. Rajesh Vs. State of U.P. and others; Writ-C No.60883 of 2014, wherein the following was observed:- "There cannot be any dispute to the proposition that order of recounting is an interlocutory order and unless and until the election is set aside or the election petitioner has been declared elected, this would not result in the disposal of the election petition or allowing the election petition. The order dated 1.11.2014, therefore, cannot be said to be a consequential order. This Court while allowing the writ petition had observed only that as there was certain overwriting and cutting in the counting sheet and margin of votes between the election petitioner and the winning candidate was only one vote, there was no reason to interfere in the order of recounting passed by the prescribed authority. The merits of the election of respondent no. 4 was not subject matter of adjudication before this Court. The order dated 1.9.2014, therefore, would not result in final adjudication on the merits of the election petition between the parties."

9. His next submission is that law with regard to the recounting was summarized by the Hon'ble Supreme Court in the case of Mahendra Pal Vs. Ram Dass Malanger and others (2000) 1 SCC 261 with the following effect:- "30. In the present case, it is not disputed, as indeed it cannot be, that in Form 20-A, Ex.P-2, it is recorded that the total number of votes found in the ballot boxes of 82 polling stations pertaining to this constituency were 35310 whereas a perusal of statement of "roundwise detailed result of counting, certified copy whereof is Ex. P-3, records that the total number of valid and rejected votes counted for the purpose of declaring the result were 35318. A difference of 8 votes had been projected in Annexure P-2 and Annexure P-3. The margin of difference between the votes polled by the election petitioner and the returned candidate, in the present case, was only 3 votes. Unless a satisfactory explanation was furnished during the trial about the discrepancy, there would be need to inspect the ballot papers to clarify doubts regarding the excess counting of 8 votes, allegedly in favour of the returned candidate. This was also necessary to dispel doubts about the allegations of irregularity in counting. Had the Returning Officer, instead of rejecting the application for recount made a test check, soon after the declaration of result, he could have silenced the scepticism and removed all doubts but since that was not done, the learned designated Judge ought to have considered the matter in its correct perspective.

31. Indeed, recount of ballot papers cannot be ordered just for the asking but it is equally well settled that while maintenance of secrecy of ballot is sacrosanct, maintenance of purity of election is equally important."

10. In the light of the said, it is argued that the District Judge has erred in not deciding the application on its own merits and the observations based upon which the exercise of discretion has been denied is arbitrary and illegal.

11. Learned counsel for the respondent, on the other hand, strongly opposes the argument by arguing that it is very well settled that the relief of recounting, is based upon pleadings and evidence to be led, which can be led only after framing of issues. He argues that in the present case, even issues have not been framed and thus, any order of recounting of votes at this stage, would be without there being any material evidence to justify the recounting.

12. He further argues that at the time of recounting, no objections with regard to the allegations of improper recounting of votes were raised and the allegations for the first time were raised as an afterthought, which is also contrary to the provisions contained in the Municipalities (Conduct of Election of P and EP) Order, 1983, wherein in Order 31, the Returning Officer is duly empowered to order of recounting, if he is not satisfied on the basis of the material available with regard to accuracy of the previous counting. He argues that in absence of any material, at the instance of the petitioner at the time of recounting, its exercise cannot be claimed at this stage as is being done by the petitioner.

13. My attention has also been drawn to the judgement of the Hon'ble Supreme Court in the case of Vadivelu Vs. Sundaram and others (2000) 8 SCC 355 with emphasis on paragraphs 18 and 20, which are as under:- "18. From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for re-count of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the counting officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, could not supplement anything by way of evidence.

20. The appellant-Election Petitioner in this case has not stated as to when did he file the application for re-count. He has stated that he had given an application to the Returning Officer for recounting of votes and the request for recounting was not accepted. At the time of the evidence also, the appellant has not stated as to when did he file the application. In cross-examination, he stated that at about 10.00 p.m. on 14.10.1996, it was announced through loud speaker that the 1st respondent was elected and he denied the allegation that the application for re-count was made at

11.45 p.m. The 1st respondent was examined as RW 1. He deposed that the result of the election was declared at 10.30 p.m. and in all probability, the appellant filed an application for re-count after the result of the election was declared. Therefore, the application for re-count was not filed in accordance with Rule 66 of the Tamil Nadu Panchayats (Elections) Rules,

1995."

14. Reliance has also been placed on the Full Bench judgement of this Court in the case of Ram Adhar Singh Vs. District Judge and others 1985 SCC Online All 246, wherein the Full Bench had summarized the law with regard to the recounting in paragraph 14 to the following effect: "14. The Principles laid down in Bhabhi's case (supra) have again been applied and followed by that Court in the case of N. Narayanan v. S.

by filing Writ-C No.3610 of 2023, which was disposed of on

02.05.2023, observing that all steps shall be taken to ensure free and fair election. He further argues that yet another Writ-C No.3831 of 2023 was also disposed of with similar observations vide judgement dated 12.05.2023. He argues that along with the election petition, the petitioner had moved an application for decision on the application filed for recounting in view of the discrepancies as stated in the election petition. As the same was not being decided, the petitioner approached this Court by filing an application under Article 227 No.2287 of 2024, which was disposed of on 08.05.2024, wherein the Court had granted liberty to the petitioner to move an application for early disposal, which was directed to be considered within a period of three weeks. In terms of the said liberty, the petitioner had approached the Tribunal to decide the application. However, instead of deciding the application for recounting, the District Judge vide its order dated 22.10.2024, disposed of the urgency application only and did not pass any order on the application for recounting, as such, the petitioner once again approached this Court by filing an application under Article 227 No.5640 of 2024, which was disposed of on 29.11.2024, directing the court to decide the interim application, if not already decided and also directed that the application for recounting shall also be decided in accordance with law, if not already decided. In terms of the said directions given by this Court on 29.11.2024, the order impugned came to be passed.

6. While doing so, the District Judge held that the burden of proving the averments as contained in the election petition was on the petitioner and in case, the petitioner succeeds in discharging the said burden by leading appropriate evidence, the court can consider to passing directions for recounting. It also recorded that the petition was pending for framing of issues and at that stage, it would not be proper to decide the request for recounting. It was also observed that a similar observation was made in the earlier order dated 22.10.2024 and in that circumstances, the petitioner cannot be given interim relief, which would amount to a final relief.

7. Shri Gaurav Mehrotra, learned counsel appearing on behalf of the petitioner argues that the District Judge erred in not deciding the application on the ground that granting of interim relief would amount to grant of final relief, which according to him, is contrary to the judgement of this Court in the case of Mohd. Mustafa Vs. Up Ziladhikari Phoolpur and others 2007 (6) AWC 5536. The reliance has been placed on paragraph 23, which is quoted herein-below:- "23. We have carefully examined the reasoning given by a learned Single Judge in Abrar's s case (supra) wherein the learned Single Judge opined that the disposal of an application for recount would amount to be a final order as it disposes of the application for recount finally. As explained by us, hereinabove, a mere order for recount does not finally alter the status of the contesting parties and it does not, in any way, finally determines the status of an elected candidate. The finality comes only after the disposal of the ejection application as the relief of setting aside an election or dismissing an election application comes at the final stage and not by mere disposal of an application of recount or ordering recount on deciding the issue framed for this purpose."

8. He further relies upon the judgement of learned Single Judge in the case of Smt. Rajesh Vs. State of U.P. and others; Writ-C No.60883 of 2014, wherein the following was observed:- "There cannot be any dispute to the proposition that order of recounting is an interlocutory order and unless and until the election is set aside or the election petitioner has been declared elected, this would not result in the disposal of the election petition or allowing the election petition. The order dated 1.11.2014, therefore, cannot be said to be a consequential order. This Court while allowing the writ petition had observed only that as there was certain overwriting and cutting in the counting sheet and margin of votes between the election petitioner and the winning candidate was only one vote, there was no reason to interfere in the order of recounting passed by the prescribed authority. The merits of the election of respondent no. 4 was not subject matter of adjudication before this Court. The order dated 1.9.2014, therefore, would not result in final adjudication on the merits of the election petition between the parties."

9. His next submission is that law with regard to the recounting was summarized by the Hon'ble Supreme Court in the case of Mahendra Pal Vs. Ram Dass Malanger and others (2000) 1 SCC 261 with the following effect:- "30. In the present case, it is not disputed, as indeed it cannot be, that in Form 20-A, Ex.P-2, it is recorded that the total number of votes found in the ballot boxes of 82 polling stations pertaining to this constituency were 35310 whereas a perusal of statement of "roundwise detailed result of counting, certified copy whereof is Ex. P-3, records that the total number of valid and rejected votes counted for the purpose of declaring the result were 35318. A difference of 8 votes had been projected in Annexure P-2 and Annexure P-3. The margin of difference between the votes polled by the election petitioner and the returned candidate, in the present case, was only 3 votes. Unless a satisfactory explanation was furnished during the trial about the discrepancy, there would be need to inspect the ballot papers to clarify doubts regarding the excess counting of 8 votes, allegedly in favour of the returned candidate. This was also necessary to dispel doubts about the allegations of irregularity in counting. Had the Returning Officer, instead of rejecting the application for recount made a test check, soon after the declaration of result, he could have silenced the scepticism and removed all doubts but since that was not done, the learned designated Judge ought to have considered the matter in its correct perspective.

31. Indeed, recount of ballot papers cannot be ordered just for the asking but it is equally well settled that while maintenance of secrecy of ballot is sacrosanct, maintenance of purity of election is equally important."

10. In the light of the said, it is argued that the District Judge has erred in not deciding the application on its own merits and the observations based upon which the exercise of discretion has been denied is arbitrary and illegal.

11. Learned counsel for the respondent, on the other hand, strongly opposes the argument by arguing that it is very well settled that the relief of recounting, is based upon pleadings and evidence to be led, which can be led only after framing of issues. He argues that in the present case, even issues have not been framed and thus, any order of recounting of votes at this stage, would be without there being any material evidence to justify the recounting.

12. He further argues that at the time of recounting, no objections with regard to the allegations of improper recounting of votes were raised and the allegations for the first time were raised as an afterthought, which is also contrary to the provisions contained in the Municipalities (Conduct of Election of P and EP) Order, 1983, wherein in Order 31, the Returning Officer is duly empowered to order of recounting, if he is not satisfied on the basis of the material available with regard to accuracy of the previous counting. He argues that in absence of any material, at the instance of the petitioner at the time of recounting, its exercise cannot be claimed at this stage as is being done by the petitioner.

13. My attention has also been drawn to the judgement of the Hon'ble Supreme Court in the case of Vadivelu Vs. Sundaram and others (2000) 8 SCC 355 with emphasis on paragraphs 18 and 20, which are as under:- "18. From the above pleadings, it is evident that the appellant has not set forth material facts or particulars required for re-count of votes. To justify his contention that there was irregularity or illegality in the counting, except making some general and bald allegations, no other details are given. Though an allegation is made that electoral roll contained the names of dead persons, that the 1st respondent took advantage of the same, and that some persons had impersonated and cast votes in his favour, no details are given as to who committed such irregularity. The appellant has also not mentioned as to how many such votes had been cast in favour of the 1st respondent. So also, the appellant has not alleged the nature of the illegality or irregularity said to have been committed by the counting officers. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes also is not explained by the appellant. In short, the Election Petition is bereft of all details and the appellant, while examined as PW 1, could not supplement anything by way of evidence.

20. The appellant-Election Petitioner in this case has not stated as to when did he file the application for re-count. He has stated that he had given an application to the Returning Officer for recounting of votes and the request for recounting was not accepted. At the time of the evidence also, the appellant has not stated as to when did he file the application. In cross-examination, he stated that at about 10.00 p.m. on 14.10.1996, it was announced through loud speaker that the 1st respondent was elected and he denied the allegation that the application for re-count was made at

11.45 p.m. The 1st respondent was examined as RW 1. He deposed that the result of the election was declared at 10.30 p.m. and in all probability, the appellant filed an application for re-count after the result of the election was declared. Therefore, the application for re-count was not filed in accordance with Rule 66 of the Tamil Nadu Panchayats (Elections) Rules,

1995."

14. Reliance has also been placed on the Full Bench judgement of this Court in the case of Ram Adhar Singh Vs. District Judge and others 1985 SCC Online All 246, wherein the Full Bench had summarized the law with regard to the recounting in paragraph 14 to the following effect: "14. The Principles laid down in Bhabhi's case (supra) have again been applied and followed by that Court in the case of N. Narayanan v. S.