Supreme Court: In an appeal challenging the legality and validity of judgment and order passed by the Division Bench of Chhattisgarh High Court on 25-04-2022 setting aside order and recounting of votes undertaken on 31-12-2021 for Gram Panchayat elections for the post of Sarpanch, the Division Bench of Bela M. Trivedi* and S.V.N. Bhatti, JJ. held the Election Petition filed before the Sub Divisional Officer seeking re-counting of votes only not maintainable for not following the procedure laid in the rules regarding re-counting of votes.
Summary of Facts
Gram Panchayat elections for Sarpanch were conducted on 28-01-2020, wherein, the petitioner and 5 of the respondents contested for the post. Election results were declared electing respondent No.1 as the Sarpanch. On 7-02-2020, the petitioner came up with the Election Petition praying for recounting of votes on the ground that counting of votes was hurriedly done in the late evening hours and there was insufficient light (brightness) at the three polling stations. The Sub Divisional Officer allowed the said petition and directed the recounting of votes and the same was passed by the SDO. The said order was challenged before the High Court which was allowed on the ground that the SDO did not follow due procedure 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 Disqualification for Membership) Rules, 1995 (‘1995 Rules’). On recounting of votes, the petitioner was declared as the elected Sarpanch. The challenge against the same was dismissed by the Single Bench of High Court but allowed by the Division Bench on the ground that the relief claimed by the petitioner was not in consonance with Rule 6 of 1995 Rules.
Court’s Analysis
The Court in the instant matter considered the question of “whether the petitioner’s Election Petition before the Sub Divisional Officer seeking recounting of votes only, in the absence of any relief under Rule 6 of 1995 Rules was maintainable?” The Court highlighted that as per Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (‘1993 Act’), an election could be questioned only by a petition in the prescribed manner, and for Panchayat elections, it was to be presented to the Sub Divisional Officer within 30 days from the date on which the election in question was notified.
The Court pointed towards the Chhattisgarh Panchayat Nirvachan Niyam, 1995 (‘Election Rules 1995’) framed by the State government while exercising powers conferred by Section 95(1) read with Section 43 of 1993 Act, whose Chapter IX dealt with ‘Poll and voting for election’. The Court further scrutinised Rule 77(1) and 77(2) laying the provision regarding counting of votes, and Rule 80 for recounting of votes, Rule 5 pertaining to ‘Contents of the petition’ and Rule 6 for ‘Relief that may be claimed by the petitioner’.
Case Laws on Recounting of Votes
The Court particularly pointed out decision of 3-Judge Bench in Sohan Lal v. Babu Gandhi, (2003) 1 SCC 108 dealing with similar set of laws for Panchayat elections wherein, it was observed that there was no prohibition upon the Court or Tribunal to direct re-counting of the votes. The Court relied on the said judgment stating that it may not be possible for the party to apply for re-counting of votes to the Returning Officer till the result is declared, and the only remedy would be filing the Election Petition, for which, a Court or Tribunal is bound to consider the matter and direct re-counting depending upon the evidence laid.
Coming back to the question of law in the instant matter, the Court hinted towards the settled 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” and 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.” The Court relied on Cherukuri Mani v. State of A.P., (2015) 13 SCC 722 wherein, the Court 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.”
Regarding facts of the instant case, the Court expressed that Section 122 of 1993 Act provided for election to be called in question only by a petition presented in the prescribed manner, and the said manner was prescribed under the 1995 Rules. Its Rule 6 pertaining to relief to be claimed 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. The Court therefore clarified that as per Sohan Lal case (supra), the Court or Tribunal may direct recounting of votes in the Election Petition, but only seeking re-counting of votes in the absence of any other reliefs (e.g., declarations as contemplated in Rule 6) would not be tenable as per law.
The Court observed that the petitioner was required to file an Election Petition under Section 122 of 1993 Act in consonance with Rule 6 of 1995 Rules. The Court referred to Laxmi Singh v. Rekha Singh, (2020) 6 SCC 812 and commented that “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 provisions 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.”
Conclusion
The Court held the Election Petition filed before the Sub Divisional Officer seeking re-counting of votes only not maintainable, since the petitioner failed to make a written application for re-counting of votes as per Section 80 of 1995 Rules and failed to seek relief as per the requirements of Rule 6 of 1995 Rules. Therefore, the instant appeal was dismissed by the Court.
[Dharmin Bai Kashyap v. Babli Sahu, 2023 SCC OnLine SC 1000, decided on 16-08-2023]
Judgment authored by: Justice Bela M. Trivedi
Know Thy Judge | Supreme Court of India: Justice Bela Madhurya Trivedi
Advocates who appeared in this case :
For Appellants: Advocate on Record Sameer Shrivastava, Advocate Satvic Mathur, Advocate Yashika Varshney;
For Respondents: Advocate on Record Abhinav Shrivastava, Advocate Sudhir Verma, Advocate Ritu Reniwal, Advocate Mahesh Kumar, Advocate Sunit Kumar Toppo, Advocate Shivam Sharma, Advocate Devika Khanna, Advocate V. D. Khanna, Advocate on Record Vmz Chambers.
Election law is not a very popular subject among legal fraternity, academia and even students or research scholars. In democratic nations, there is a great deal of apathy, indifference and cynicism against politicians. It is against this backdrop that judgment of the Honourable Supreme Court of India is an important reminder to all stakeholders to study this law seriously. The Division Bench of Justice Bela M. Trivedi and Justice S.V.N. Bhatti held the Election Petition filed before the Sub Divisional Officer seeking ‘re-counting of votes only’ to be not maintainable as the petitioner did for not follow the prescribed procedure in the relevant law and the rules regarding re-counting of votes. The learned justices held that “where a right or a liability is created by a statue”, that provides a special remedy for enforcing it, such lawful remedy ought to be availed of” and 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”. Rule of law is indeed strengthened by adopting such an approach.