Dharmin Bai Kashyap vs Babli Sahu

2023 INSC 712 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2517 OF 2023

DHARMIN BAI KASHYAP …APPELLANT

VERSUS

BABLI SAHU & OTHERS …RESPONDENT(S)

J U D G M E N T

BELA M. TRIVEDI, J.

1. The aggrieved appellant has preferred the present appeal challenging

the legality and validity of the impugned judgment and order dated

25.04.2022 passed by the High Court of Chhattisgarh, Bilaspur in Writ

Appeal No. 72 of 2022, whereby the Division Bench of High Court has

allowed the said writ appeal and set aside the order dated 06.01.2022

passed by the Single Bench in W.P. (C) No. 09 of 2022.

Consequently, the Division Bench has set aside the order dated Signature Not Verified Digitally signed by Neetu Khajuria Date: 2023.08.16 12:13:31 IST 20.12.2021 passed by the Sub Divisional Officer and also the Reason:

recounting of votes undertaken on 31.12.2021.

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2. The bare summary of facts necessary for the purpose of deciding this

Appeal are: -

(i) 28.01.2020 – The election of Gram Panchayat, Semarkona

Block, District Mungeli, Chhattisgarh took place for the post

of Sarpanch in which petitioner, respondent no.1 and

respondent nos.5 to 8 contested the election.

(ii) 30.01.2020 – The result of election was declared in which

respondent no.1 was declared elected.

(iii) 07.02.2020 - The petitioner filed the Election Petition before

the Sub Divisional Officer, Mungeli and prayed for recounting

of the votes mainly on the ground that there was no sufficient

light at the three booths as stated therein.

(iv) 18.10.2021 - The Sub Divisional Officer (R), Mungeli allowed

the said Election Petition and directed recounting of votes.

(v) 08.11.2021 – The respondent no. 1 having challenged the

said order dated 18.10.2021 passed by SDO approached

the High Court by filing writ petition, which came to be

allowed on the ground that SDO had not followed the due

process of law. The High Court also directed the SDO to

decide the Election Petition in accordance with the

provisions contained in Rule 11 of the Chhattisgarh

Panchayats (Election Petitions, Corrupt Practices and

2 Disqualification for Membership) Rules, 1995 (hereinafter

referred to as the Rules of 1995).

(vi) 20.12.2021 – The Sub Divisional Officer after recording the

evidences of witnesses held that there was insufficiency of

light at the polling stations, and ordered for recounting in

three polling stations on 31.12.2021.

(vii) 31.12.2021 – After the recounting of the votes, the petitioner

herein was declared as elected Sarpanch.

(viii) 06.01.2022 – The respondent no. 1 having challenged the

said order of SDO by filing the writ petition, the same came

to be dismissed by the Single Bench of the High Court.

(ix) 25.04.2022 – The respondent no. 1 having preferred the writ

appeal before the Division Bench, the same came to be

allowed vide the impugned judgment and order, mainly on

the ground that the relief claimed by the petitioner in the

Election Petition was not in consonance with the Rule 6 of

the Rules of 1995.

3. The crisp question of law that falls for consideration before this Court

is whether the Election Petition filed by the petitioner before the Sub

Divisional Officer (R) seeking relief of recounting of votes alone,

without seeking any relief under Rule 6 of the Rules of 1995 was

maintainable?

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4. Before adverting to the submissions made by the learned counsel for

the parties on the issue involved it would be apt to mention that as per

Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993

(hereinafter referred to as the said Act) an election under the said Act

could be called in question only by a petition presented in the

prescribed manner, and in case of Panchayat to the Sub Divisional

Officer (R), within 30 days from the date on which the election in

question was notified. The State Government in exercise of the

powers conferred by sub-section (1) of Section 95 read with Section

43 of the said Act of the 1993 has framed the Rules called the

Chhattisgarh Panchayat Nirvachan Niyam, 1995 (hereinafter

referred to as the Nirvachan Niyam 1995). Chapter IX of the said

Nirvachan Niyam 1995 deals with “Poll and voting for election”. Sub

rule (1) and sub rule (2) of Rule 77 thereof being relevant are

reproduced here under: -

“77. Counting of votes. – (1) Every ballot paper which is not rejected under rule 76 shall be counted:

Provided that no cover containing tender ballot papers shall be opened and no such ballot paper shall be counted.

(2) After the counting of votes in respect of a polling station has been completed, the Returning Officer or such other officer authorised by him, shall make the entries in result sheet in Form 16 for Panchas and in Part one of the result sheet in Form 17, 18 and 19 for sarpanch, members of Janpad Panchayat and Zila Panchayat respectively and announce the total number of votes polled by each candidate.”

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5. Rule 80 pertains to the recount of votes. The relevant sub-rule (1) and

(2) thereof are reproduced hereunder: -

“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) of 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 to if it appears to him to be frivolous or unreasonable.”

6. It is pertinent to mention that the State Government has also framed

the Rules of 1995, under the said Act of 1993. Rule 5 of the said Rules

of 1995 pertains to the “Contents of the petition” and Rule 6 pertains

to the “Relief that may be claimed by the petitioner”, which read as

under: -

“5. Contents of the petition. – An election petition shall

(a) contain a concise statement of all material facts on which the petitioner relies;

(b) set forth with sufficient particulars, the grounds on which the election is called in question;

(c) be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verifications of pleadings.

“6. Relief that may be claimed by the petitioner. - A petitioner may claim-

(a) a declaration that the election of all or any of the returned candidates is void; and

(b) in addition, thereto, a further declaration that he himself or any other candidate has been duly elected.”

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7. As stated hereinabove, the election of Gram Panchayat Semarkona,

District Mungeli had taken place on 28.01.2020, whereby the

respondent no. 1 was declared elected as the Sarpanch. The

petitioner had called in question the said election by presenting an

Election Petition on 07.02.2020 before the Sub Divisional Officer (R)

under Section 122 of the said Act of 1993, mainly on the ground that

the counting of votes was done hurriedly in the late evening hours,

without there being proper facility of light at three booths. The precise

relief claimed therein was as under: -

“…it is prayed that the votes of Booth Nos. 3, 4 and 5 of election area Gram Panchayat Semarkona, Tahsil and District Mungeli should be recount”

8. It was strenuously urged by the learned counsel for the appellant that

the Sub Divisional Officer (R) having recorded the evidence of the

witnesses and having been satisfied that there was no proper facility

of light while counting the votes at three booths, had rightly ordered

for recounting of votes. The said order of SDO was also confirmed by

the Single Bench of the High Court, however the same was wrongly

set aside by the Division Bench vide the impugned order on the

ground of non-compliance of the Rule 6 of the said Rules of 1995.

Placing heavy reliance on Three-Judge Bench decision of this Court

6 in case of Sohan Lal vs. Babu Gandhi and Others1, he submitted

that once the result is declared, the only remedy available to an

aggrieved party is filing of an Election Petition under Section 122, and

the Tribunal i.e., SDO in this case, is bound to consider the plea of

recounting of votes and also declare the result accordingly. He also

submitted that the agent of the petitioner had orally requested the

Returning Officer to recount the votes, immediately on the

announcement of total number of votes polled by each candidate, as

required under Rule 80 of the Nirvachan Niyam, 1995, however

Returning Officer did not pay any heed to it.

9. Rebutting the said submissions, learned counsel for the respondent

no. 1 submitted that no such objection was raised either orally or by

application in writing for re-counting of votes by the petitioner or her

agent, either during the counting or after the completion of counting

of votes. He further submitted that the only prayer prayed for by the

petitioner in the election petition was for re-counting of votes at three

selective booths, and such a prayer was not in consonance with Rule

6 of the said Rules of 1995.

10. At the outset, it may be noted that a three judge bench of this Court

in Sohan Lal vs. Babu Gandhi and others (supra) dealing with the

1 (2003) 1 SCC 108

7 provisions contained in M.P. Panchayat Raj Evam Gram Swaraj

Adhiniyam, 1993, similar to the provisions contained in the

Chhattisgarh Act, 1993, did not agree with the earlier decision in Ram

Rati vs. Saroj Devi and Others2 and held, inter alia, that there was

no prohibition in the Act or under the rules prohibiting the Court or

Tribunal to direct re-counting of the votes. The precise observations

made in Para 14 are reproduced 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 party may not know that the 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 case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati case [(1997) 6 SCC 66 : AIR 1997 SC 3072] is not correct.”

11. There cannot be any disagreement with the ratio laid down in the

afore-stated case of Sohan Lal, which has stated that till the result is

declared, it may not be possible for the party to apply for re-counting

2 (1997) 6 SCC 66

8 of votes to the Returning Officer, and his only remedy would be to file

Election Petition, and that in such a case, a Court or the Tribunal is

bound to consider the plea and where a case is made out, it may

direct re-counting depending upon the evidence laid down by the

parties. However, in the instant case the question involved is whether

the election petition could be filed seeking the prayer only for re-

counting of votes, without seeking any reliefs as contemplated in Rule

6 of the said Rules of 1995.

12. It is well settled principle of law that where a right or a liability is

created by a statue, which gives a special remedy for enforcing it, the

remedy provided by the statue must be availed of. It is also well

settled salutary principle that if a Statue provides for doing a thing to

be done in a particular manner, then it has to be done in that manner

and in no other manner. In Cherukuri Mani w/o Narendra Chowdari

vs. Chief Secretary, Government of Andhra Pradesh and Others3,

it is observed that “where the law prescribes a thing to be done in a

particular manner following a particular procedure, it shall be done in

the same manner following the provisions of law, without deviating

from the prescribed procedure.”

3 (2015) 13 SCC 722

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13. So far as the facts of the present case are concerned, Section 122 of

the said Act provides that an election under the said Act could be

called in question only by a petition presented in the prescribed

manner. The manner prescribed is in the Rules of 1995. Rule 5

pertains to the “contents of the election petition” and Rule 6 thereof

pertains to “the relief that may be claimed by the petitioner”. In the

said Rule 6, it has been provided that the petitioner may claim a

declaration that the election of all or any of the returned candidates is

void; and in addition, thereto a further declaration that he himself or

any other candidate has been duly elected. In view of the said Rule

6, there remains no shadow of doubt that in the Election Petition filed

under Section 122 of the said Act, the reliefs claimed have to be in

consonance with the said Rule 6 of Rules of 1995. It is true that as

laid down in Sohan Lal’s case, the Court or Tribunal may direct re-

counting of votes in the Election Petition, depending upon the

evidence laid down by the parties in the Election Petition, nonetheless

the Election Petition seeking the relief for re-counting of votes only,

without seeking any other reliefs i.e., declarations as contemplated in

Rule 6, would not be tenable in the eye of law. The main reliefs that

may be claimed in the Election Petition have to be the reliefs as

envisaged in Rule 6 of the said Rules of 1995.

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14. Though a faint attempt was made by the learned counsel for the

petitioner to argue that the agent of the petitioner had orally requested

the Returning Officer to re-count the votes immediately after the

announcement of total number of votes polled by each of the

candidates, admittedly no such request was made in writing either by

the petitioner or his agent to the Returning Officer as required under

Rule 80 of the Nirvachan Niyam 1995. Even otherwise the petitioner

was required to call in question, the election by filing an Election

Petition under Section 122 of the said Act, in the manner prescribed

under the Rules of 1995 which required the petitioner to seek

declarations as envisaged in Rule 6 thereof, and in such a petition,

she could have prayed for a relief of re-counting of votes.

15. There is hardly any need to reiterate the trite position of law that when

it comes to the interpretation of statutory provisions relating to election

law, jurisprudence on the subject mandates strict construction of the

provisions4. Election contest is not an action at law or a suit in equity

but purely a statutory proceeding, provision for which has to be strictly

construed. The petitioner having failed to make any application in

writing for re-counting of votes as required under Section 80 of the

Nirvachan Niyam, 1995, and having failed to seek relief of

4 (2020) 6 SCC 812 (Laxmi Singh and Others vs. Rekha Singh and others) 11 declarations as required under Rule 6 of the Rules of 1995, the

Election Petition filed by the petitioner before the Sub Divisional

Officer (R) seeking relief of re-counting of votes alone was not

maintainable.

16. In that view of the matter, we do not find any merit in the present

appeal.

17. The appeal is dismissed.

..………………………. J.

[BELA M. TRIVEDI]

.…................................J. [S.V.N. BHATTI]

NEW DELHI;

August 16, 2023

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