KAILASHI Vs. BHAROSHI BAI

JUDGEMENT

(1.) THIS matter was placed before me due to conflicting judgments delivered in the present case by Hon. Shri Justice Abhay gohil and Hon. Shri Justice P. K. Jaiswal. On account of difference of opinion, the division Bench has formulated following two questions for opinion by this Court whether as per proviso to Rule 12 of the Rules of 1995, without any application and without any prayer either by the parties, directions can be made in the writ appeal for examination of Returning Officer, and to call the Returning Officer in evidence? whether in view of direction made by the Learned Single Judge with regard to opening of tendered votes afresh after giving opportunity of leading evidence to the parties and after following the procedure laid down by the Apex Court in the case of Dr. Wilfred D'souza vs. Francis manino Jesus Ferrao, (1977) 1 SCC 396, any interference is warranted in this writ appeal?

(2.) BRIEF facts of the case are that elections for the post of Sarpanch of Gram panchayat Zaida, Tehsil and District Sheopur were held on 16-1-2005. In the said elections, petitioner Kailashi and private respondents were contesting parties. Counting of the votes took place on 28-1-2005. In the initial counting, both kailashi and Shrimati Bharosi Bai obtained 244 votes each. Other candidates could get lesser votes. Hence, an application was filed by petitioner Kailashi for recounting of votes for Wards No. 169, 170 and 171. Shrimati Bharosi Bai had also filed an application for recounting of entire constituencies. Her application was rejected and therefore, she left the place. Prayer of the petitioner was accepted and votes were recounted for three constituencies and it was found after recounting that there is no difference in votes. After this, polling recounting was done and votes of all the constituencies were recounted and it was found that the petitioner secured two votes more than Shrimati Bharosi Bai and was declared vide document annexed with the writ petition as Annexure P/4. This election result was challenged by Shrimati Bharosi Bai on the ground that second recounting was done behind her back and is, therefore, violative of principles of natural justice, by filing an election petition before the Sub Divisional Officer.

(3.) SUB Division Officer, before whom the election petition was filed framed issues and ultimately came to the conclusion that in the present case, election results be declared on the basis of tendered votes. This order dated 23-3-2006 annexed as Annexure P/1 with the writ petition was challenged by the present petitioner by filing writ petition. The learned Single Judge after hearing both the parties held that opening of tendered votes is permissible in view of the judgment of the Apex Court in the case of Dr. Wilfred D 'souza vs. Francis manino Jesus Ferrao, (1977) 1 SCC 396. The learned single Judge further held that before opening the tendered votes, the procedure prescribed by the Apex court in the case of Dr. Wilfred D'souza (supra) be followed. As per the aforesaid judgment of the Apex Court, before opening tendered votes, two points must be proved; viz (a) the Court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidates in whose favour it was cast; and (b) that the Court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked. It may also be mentioned that the proper occasion for scrutinising the tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the Court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.