LAWS(CHH)-2006-2-35

MAHESH DAS RATRE Vs. STATE OF C G

Decided On February 21, 2006
MAHESH DAS RATRE Appellant
V/S
STATE OF C.G. Respondents

JUDGEMENT

(1.) THE election of the Krishi Upaj Mandi, District Rajnandgaon was notified vide notification dated 30.12.2005 of the District Collector-cum-District Election Officer, Rajnandgaon, the second respondent herein, for election of the Chairman, Vyapari Pratinidhi and Krishak Pratinidhi. The petitioner along with four other candidates contested for the post of Chairman of Krishi Upaj Mandi for Mandi Samiti No.29 Gandai, District Rajnandgaon (C.G.). On 23-1-2006, the elections were held and the petitioner was declared elected by issuing Form-28 by the Returning Officer, the third respondent herein. Jivan Das Ratre, the fourth respondent herein being aggrieved by the election of the petitioner as Chairman of Kirshi Upaj Mandi Samiti No.29 Gandai submitted an application to the third respondent-Returning Officer on 25-1-2006 at 5:50 P.M. alleging that as per his information, at Booth No. 32, he secured 70 votes and one Shri Ghana Ram secured 4 votes, but, at the time of tabulation, 70 votes were shown in the account of said Ghana Ram and 4 votes were shown in his account. The fourth respondent contended that if the aforesaid mistake is corrected, he would win the election by 6 votes. A copy of the application dated 25.1.2006 was also sent to the second respondent herein.

(2.) ON 31.1.2006, a notice was issued from the office of the second respondent to the petitioner directing him to remain present on 3.2.2006 at 11 AM. for hearing otherwise ex parte proceedings would be drawn against him. In the said notice, it is stated that as per the application received from the fourth respondent, a report was called from the third respondent-Returning Officer and as per the report submitted by the third respondent, it was found that during the tabulation, the name of the candidate Ghana Ram is shown at Serial No.4 and the name of the fourth respondent is shown at Serial No.3 and because of this, the number of votes they secured were also wrongly mentioned. The petitioner appeared before the second respondent, as directed above, and filed his reply stating that on 24.1.2006, the petitioner was declared elected as Chairman of Krishi Upaj Mandi Samiti No.29 Gandai and certificate to that effect was issued to him in Form 28. The petitioner alleged that the fourth respondent made the application before the third respondent-Returning Officer on 25.1.2006 as an after-thought, because, the fourth respondent was also present along with the other candidates when the tabulation was done on 24-1-2006 and he did not raise any objection at that time. The petitioner also stated that the report of the Returning Officer was not supplied to him. The petitioner also contended that Rule 81 of the Krishi Upaj Mandi (Samiti Ka Nirvachan) Rules, 1997 (for short 'the Rules') does not confer any power or authority upon the District Election Officer to open any envelope containing counted ballot papers, or to direct recounting of votes. The petitioner also contended that if the report of the Returning Officer was made available to him, he would have answered whether there was any discrepancy in making entries during the tabulation of Booth No.32. In addition to his reply, the petitioner also submitted his written arguments. The second respondent, having considered the reply of the petitioner, passed the impugned order on 4-2-2006 for correction of Form-24 and Form 26 as also Form-28, if any necessity arises. The petitioner being aggrieved by the above order of the second respondent has preferred this writ petition.

(3.) SHRI Prashant Mishra, learned Additional Advocate General while supporting the impugned order of the second respondent, would highlight that the counting of the votes was done on 23-1-2006 and after the completion of the counting, Form-23 with regard to each booth was given to all the candidates and/or to their agents in presence of all and as per Form-23, Ghanaram secured only 4 votes whereas the fourth respondent got 70 votes in Booth No. 32 and at that time, the petitioner nor anyone else disputed the correctness of the votes shown against the names of Ghanaram and/or the fourth respondent and if that is the undisputable position, while preparing Form-24 with regard to Booth No. 32, since the number of votes secured by Ghanaram is wrongly shown against the name of the fourth respondent and the votes secured by the fourth respondent against the name of Ghanaram, it cannot be said that that mistake is not clerical or arithmetical mistake or error so as to confer power on the second respondent to correct the same by virtue of the power conferred under Rule 81 of the Rules. Shri Prashant Mishra would contend that though there is no reference to Form-24 in Rule 81, since Form-26 has to be issued on the basis of the result-sheet compiled in Form-23 and Form-24 in terms of Rule 78 (1) (b) and since it is the power of the second respondent to correct Form-26 also by virtue of the power under Rule 81, non-mentioning of Form-24 separately in Rule 81 would not mean that the second respondent has no power to correct Form-24. Meeting the contention of Shri Diwakar that the petitioner was not supplied with copy of the report of the Returning Officer would contend that as per the order-sheet dated 3-2-2006 maintained by the second respondent, the petitioner was allowed to inspect the original report of the Returning Officer and, therefore, it could not be said that the impugned order was made in violation of the principles of natural justice.