@JUDGMENTTAG-ORDER
S.S. Subramani, J.@mdashPetitioner seeks issuance of Writ of Certiorari calling for the records of the 1st Respondent relating to his proceedings dated 24.3.1998 and quash the order made in R.P. No. 853 of 1998 VI and pass such further orders.
2. Petitioner is a member of Thithipalayam Primary Agricultural Co-operative Bank and in the election held on 14.5.1997 he was declared elected as one of the Board Members along with Respondents 6 to 13. The fifth Respondent herein filed an application u/s 90 of the Tamil Nadu Co-operative Societies Act seeking recount of all the votes polled on 14.5.1997 in the election conducted for the Board of Thithipalayam Primary Agricultural Co-operative Bank and also to announce the result therefore.
3. It is the case of the Petitioner that the only contention in the aforesaid dispute raised u/s 90 of the Act was that there was no proper counting and 162 votes were declared as invalid votes and the margin of difference between him and the winning candidate was only 17 votes. His allegation was that on account of sleeplessness, the counting was not proper and out of the total 1113 votes polled, 162 votes were declared as invalid votes and without any details, he alleged that numerous votes cast in his favour were declared as invalid votes. This according to him was due to the fact that the counting commenced at 7.00 p.m. and continued upto 1.00 a.m. in the election dispute, Petitioner filed a detailed counter setting out that he had correctly counted the votes and election officer also filed counter in similar way. Evidence has also been taken in the dispute and finally second Respondent by order dated 14.10.1997, directed for recounting of all votes by Co-operative Sub-Registrar on 10.1.1998. Petitioner challenged the said order before the revisional authority u/s 153 of Co-operative Societies Act. Even before the revisional authority (sic) the revision, recounting was made by the Co-operative Sub-Registrar but the results were not declared. Thereafter revisional authority i.e., the first Respondent on 24.3.1998 came to the conclusion that he would himself recount the votes. Even though the same was objected by the Petitioner, and others, recounting of all votes were made and found that the order of the second Respondent was correct and dismissed the revision. According to the Petitioner, pleading and evidence do not show that recounting is necessary and this Court is bound to quash the same under Article 226 of the Constitution of India.
4. A counter affidavit has been filed by the 5th Respondent on whose complaint recounting was ordered. In the counter it is said that the order is not liable to be interfered with when the second Respondent and first Respondent concurrently found that the recounting is to be allowed. There is no error of jurisdiction and Article 226 of the Constitution of India should not be invoked. According to him, by ordering recounting, authorities must be presumed to have accepted his contention that the counting was not made in accordance with Law. It is also contended that the Petitioner and others have also stated in their counter as well as in the deposition that they have no objection in recounting the votes. Under these circumstances, the discretionary remedy is not to be used. It is also said that after recounting, the results have changed and there is vast difference in number of votes held by the 5th Respondent, from the result which was declared earlier. It prayed for dismissal of the Writ Petition.
5. The second Respondent ordered recounting mainly for the reason that some of the candidate in the case alleged to have stated that they have no objection in ordering recounting. In the deposition also the same is repeated by the 11th Respondent who has been examined on behalf of the successful candidates. Mainly relying on this evidence, the order for recounting was passed. The same was also confirmed by the revisional authority.
6. The learned Counsel for the Petitioner submitted that even though in the election under the Co-operative Societies Act all principle as enunciated by the Representation of People''s Act may not apply, at least the guidelines which are applicable to elections generally must be made applicable to the election under Co-operative Societies Act. The argument is the very Co-operative movement is to achieve a democratic movement. If the Principle of democracy is made applicable, naturally the general principles of election also has to be applied to the election of the Co-operative Societies. Why learned Counsel argued in that way was to order recounting, at least there must be some allegations prima facie for interference and evidence also must be let in to show that there was some irregularities. The further argument is very jurisdiction to order recounting depends upon the pleadings and proof that is adduced by the Petitioner in the election dispute and the same cannot be ordered mainly on the basis of so-called no-objection. If Petitioner''s case cannot be accepted, then there is no necessity to rely on no objection to order recounting. The further argument is that so-called no objection was made only for the purpose of proving their bona fides and not a free consent. It is further submitted that even the so-called no-objection is subject to certain conditions, which has not been considered by the tribunal below.
7. As against the said contentions, the learned Government Pleader submitted that when the Respondents themselves have no objection in ordering recounting a discretion has been exercised by the authorities below by passing the impugned order. It is not liable to be interfered with under Article 226 of the Constitution of India.
8. I will first consider what are the averments made by the Election Petitioner i.e., 5th Respondent when he raised dispute u/s 90 of the Co-operative Societies Act. Paragraphs 5 and 6 of the election petition read thus,
V. There were 35 candidates filed their nominations and contested the election. In the election the total number of polling of votes is 1113. The polling of votes was closed at 5 P.M. on 14.5.1997. The counting of the votes was taken place from 7. P.M. that day itself and continued upto 1 A.M. on 15.5.1997 in the midnight. Since the counting was also taken place immediately in continuation of the polling of the votes in the same day, the election officer and his assistants became so tired the candidates and their agents also became tired.
VI. In such restless situation and in the midst of tension anxiety and sleeplessness, the counting was taken place. As a result, the counting was not properly done. The votes were not scrutinised correctly. In fact very many invalid votes have been declared as valid votes and very many valid votes have been declared as invalid votes. Apart from this, it has been declared that there were 162 votes as invalid votes. It is stated that the Petitioner secured 377 votes and his nearest rival said to have secured 394 by the first Respondent as such there is a difference of only 17 votes between the winning candidates and this Petitioner.
By extracting the above paragraphs, it should not be understood that unless there is specific pleading regarding the details of irregularities in the counting are specified, recounting should not be ordered. I am extracting the above paragraphs only for the purpose of showing how the pleadings are vague. Except for a general acqusition that the counting is not proper, no details are given. P.W.1 is the Election Petitioner. While he was examined, he stated thus,
9. In this connection, it must also be noted that the Petitioner had been a candidate earlier also and it is not his first experience in competing elections. When the counting was going on he never raised any protest and it has come on in evidence from the Election Officer that he took up about 4-1/2 hours to count only 1113 votes. That shows that the counting was taken very carefully and slowly so that every candidate will have an opportunity to peruse the votes and raised their objections. In his evidence also P.W.1 does not say anything about the details of irregularity in counting. Only allegation in the pleading us well as in evidence is that all the people are tired because of election from morning to evening and subsequently when the counting took place everyone was feeling sleepy and that much has caused mistake in counting. I do not think that on the basis of this pleading without anything more, a case had been made put for ordering recounting.
10. As against the evidence of P.W.1, we have the Election Officer himself. If we read his evidence, it proves how the case of the election Petitioner is false. According to him there are ten persons to assist him for counting and the counting begun at 6.30 p.m. and by about 10.30, p.m., entire counting was over and it was declared that 162 votes are invalid. He further said that counting took place in four tables and he was supervising each and ever table. He perused each and every ballot paper. The suggestion put to him that he had not counted all the valid votes was denied by him. He also denied that invalid votes counted in favour of some successful candidates. He also denied the allegation that he was tired and sleepy when the counting was joint on. He also stated why he took 4-1/2 hours for counting when the ballot papers were only 1113. He said that he took much time to verify each and every ballot paper and all the valid votes were taken for counting. Opportunities were given to others also and there was no irregularity in the counting. On the basis of this evidence no other conclusion could be possible except to dismiss the election petition.
11. What is the effect of the so-called no objection alleged to have been made by the 11th Respondent to the election petition, who has been examined on behalf of the successful candidates? Before going into the effect of so called no-objection, it is better to extract the relevant portion of the evidence. This is what he said in is evidence, on which much reliance was placed by the authorities below:
12.1 do to think that the said portion of the deposition could be taken as a clear no-objection. One big circumstance against the election Petitioner is that 35 candidates and their agents are also present at the time of counting and counting taken place in four tables. It is not possible under normal circumstances that all the 35 candidates and their agents will agree that 162 votes were invalid, unless they are invalid. The Petitioner also not stated as to which Rule of the Co-operative Societies Act has been violated and in what way the counting was not irregular except for the physical weakness which has been stoutly denied by the Election Officer who is only competent person to speak about the same. There is no allegation of any illegal procedure in counting.
13. When on the basis of pleading Petitioner has not made out case, I do not think that the Tribunal is competent to order recounting on the basis of so called no-objection. It is for the election Petitioner to prove that the irregularity has been committed and the jurisdiction of the Tribunal depends upon the pleadings and proof. If there is no pleading and proof on the basis of which satisfaction could be entered the tribunal will be acting without jurisdiction in ordering recounting. The very purpose of conducting an election by secret ballot is that secrecy of voting must be maintained. Whether it be for general election, or for Co-operative Society Election, that principle can never be overlooked. That is why in every case of election all Courts have held while ordering recounting that must be done only when the Court is fully satisfied that grounds have been made out for the same. The approach by the authorities below that no prejudice would be caused if recounting is ordered is not the way it is to be looked into. A statement of ''No objection'' for recounting is not relevant in such cases since no order could be passed on consent.
14. In the recent decision of Honourable Supreme Court reported in 1995 Suppl. (2) S.C.C. 101 (M.R. Gopalakrishnan v. Thachady Prabhakaran and Ors.), Their Lordships summarised the entire case regarding recounting. Of Course, that is a case under the Representation of People''s Act. But according to me the said principle also could be applied in the case under Co-operative Societies Act, where also the election is by secret ballot. Their Lordship in the said judgment held thus,
After a cursory glance of the relevant provisions discussed above, it is thus abundantly clear that the Rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result in declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agent are well informed of the nature of the objection that was raised with regard to the ballott papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that this Court has repeatedly told that the secrecy of the vote has to be maintained and a demand of recount should not ordinarily be granted unless the election Petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election Petitioner, in order to seek an order of recount, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. The demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election Petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed & prima facie case for the recount, no tribunal or Court would be justified in directing the recount.
This Court in Bhabhi v. Sheo Govind while dealing with the question of direction for inspection and recount, one a close and careful consideration of various authorities of this Court laid down certain guidelines and conditions which are imperative before a Court can grant inspection of the ballot papers. The said conditions and guidelines are set out below: (SCC. pp.693-94, para 15).
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court mast be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.
In a recent decision in
(Emphasis supplied)
15. It is at this juncture an argument was taken by the Respondent that recounting has already been done and the results have also been declared and the Petitioner alone is declared as defeated and that the very purpose of maintaining secrecy has now ceased to exist. I do not think that such an argument could be accepted.
16. If the election petition itself is not maintainable, recounting on the basis of wrong order will not make the petition maintainable. I take reliance only on the decision of the Honourable Supreme Court reported in
Mr. Padmanabhan also contended that the purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors and that is the essence of democratic process, and this position has been observed by a Bench of this Court in their order of reference of the case of
(Emphasis supplied)
17. The same principle applies to Co-operative Elections also and a Division Bench of Kerala High Court in the Case
The secrecy of the ballot should not be violated except where a compulsive case is made out. Recount can be ordered only on the materials placed before the Arbitrator prior to the order. Recount cannot be justified from the results emanating from the recount of votes. The result of the recount can by no stretch of imagination be considered as a sufficient justification of the order of recount.
18. A further contention was raised by the counsel for the Respondent that I should not interfere in the concurrent finding of the authorities below, under Article 226 of the Constitution of India. If concurrent finding is entered without jurisdiction and without considering the Law concerning elections, I feel it is my duty to interfere to rectify the illegality committed. An order which was passed without taking into consideration the pleadings and evidence of the person who came before the authority to have the election set aside, cannot be said as an order passed with jurisdiction. The impugned order was passed only on surmises and based on no evidence. The so called no objection will not confer jurisdiction to commit any illegality. I used the word ''illegality since according to me for ordering recount it is for the Petitioner to plead and prove to the satisfaction of the authorities that prima facie case has been made out for recounting. Till such satisfaction is entered, no authority can pass an order of recounting, for secrecy of ballot has to be maintained at all costs.
19. In the result, I set aside the impugned order and the election petition filed by the fifth Respondent stands dismissed. The Writ Petition is allowed but without cost. Consequently, W.M.P. Nos. 11731 and 24055 of 1998 are closed.
