Holding

The Supreme Court overruled the ratio in Ram Rati’s case, holding that a court or tribunal may direct a recount of votes in an election petition even if the aggrieved party has not first applied to the Returning Officer.

Summary

An election for the post of Sarpanch of a Gram Panchayat was held. The appellant was orally told he had won, but the official result declared the respondent as the winner. The Sub‑Divisional Officer, on an ex‑parte order, recounted the votes and corrected a clerical error, declaring the appellant the winner. The respondent filed writ petitions, and the High Court set aside the SDO's order, relying on the earlier Supreme Court decision in Smt. Ram Rati v. Saroj Devi, which required a prior written application to the Returning Officer before a court could order a recount. The Supreme Court held that this ratio was incorrect, observing that the Act and its rules do not prohibit a court or tribunal from directing a recount in an election petition even without such an application, and that the aggrieved party’s sole remedy after declaration is an election petition under Section 122. Consequently, the High Court’s order was set aside and the writ petition restored for merits determination.

Issues considered

Whether a court or tribunal can direct a recount of votes in an election petition without a prior written application to the Returning Officer.
Whether the ratio laid down in Smt. Ram Rati v. Saroj Devi is applicable to elections under the MP Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.
What is the proper remedy for an aggrieved party after the declaration of election results?

Subjects

Election lawRecount of votesElection petitionPanchayat electionsReturning OfficerSupreme CourtOverrule

Judgment

SOHAN LAL A
v.
BABU GANDHI AND ORS.

NOVEMBER 22, 2002

[M.B. SHAH, S.N. VARIA VA AND D.M. DHARMADHIKARI, JJ.] B

MP. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993-Sections 80
and 122-Election to the post of Sarpanch of Gram Panchayat-Recounting
of votes-Held: After the declaration of the result, Court or Tribunal can C
direct recounting of votes and the Returning Officer has no power either to
direct recount or to change the results of the election-Once the result is
declared, the only remedy of an aggrieved party is to file an Election Petition
under Section 122-Hence order of High Court setting aside order of Sub
Divisional Court directing recount of votes on the ground that the aggrieved
party had not applied to the returning officer for recount of votes, is set D
aside-Election Laws.
•
Election was held for the post of Sarpanch of a Gram Panchayat.
Appellant was orally informed that he had won the election after counting
of the votes. However, when the result was officially declared, respondent
No. I won the election. Aggrieved appellRnt filed an el•ction petition before E
the Sub-Divisional Officer (SDO). SDO directed recounting of votes and
it was found that appellant had won. Respondent No.I filed a writ petition.
On remand of the matter to SDO, it was again found that appellant had
won. Respondent again filed a writ petition. High Court following the
decision in Smt. Ram Rati v. Saroj Devi and Ors case that unless a party F
first applies to the Returning Officer for recounting of votes it is not open
to Tribunal or Court to direct recounting, allowed the appeal. However,
it did not decide any other points raised in the petition. In appeals before
this Court the two Judge Bench had reservation about the principle laid
down in Ram Rati's case and referred the matter to three Judge Bench.

Disposing of the appeals, the Court
G

HELD: I.I. After declaration of results, the Returning Officer has
no power either to direct recount or to change the results of the election.
In view of Section 122 of the M.P. Panchayat Raj Avam Gram Swaraj
Adhiniyam, 1993 the holding that, in an election petition, after the H
333
334 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A declaration of the result, Court or Tribunal cannot direct recounting of
votes unless the aggrieved party has first applied in writing for recounting
of votes is incorrect. There is no prohibition in the Act or under the rules
prohibiting Court or Tribunal to direct recounting of votes. Even otherwise
a party may not know that recounting is necessary till after result is
declared. At this stage, it would not be possible for him to apply for
B recounting to the Returning Officer. His only remedy would be to file an
Election Petition under Section 122. Jn such a case, Court or Tribunal is
bound to consider the plea and where case is made out, it may direct
recount depending upon the evidence led by the parties. 1338-C-El

1.2. In the instant case, there was obvious error in declaring the
C result: Appellant had been orally told that he had won. He only came to
know that Respondent No.I had been declared elected after the result was
declared. At this stage, he could not have approached the Returning
Officer for recount. The only remedy, therefore, available to appellant was
to file an Election Petition; Therefore the decision of High Court is set
D aside, As the writ petitfon was disposed off only on the basis of Ram Rati 's
case and High Court did not deal with other points raised in the writ ......
petition, it is restored to the file of High Court which it shall decide on '

merits. 1338-B, D, F)

Smt. Ram Rati v. Saro} Devi and Ors., AIR (1997) SC 3072, overruled.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7623-7624
of 2002.

From the Judgment and Order dated 27.3.2001 of the Madhya Pradesh
High Court in W.P. No. 914/2000 and M.C.C. No. 128 of 2001..
F
Sushil Kumar Jain, Ms. Anjali Doshi and A.P. Dhamija, for the
Appellant.

Niraj Sharma, Adv. for the Respondent No. 1.

G B.S. Banthia and W.A. Nomani, for the Respondent No. 5.

The Judgment of the Court was delivered by

S. N. VARIA VA, J. Leave granted.

fhese Appeals are against the judgment dated 27th March, 200 I. Briefly
H
SOHAN LAL v. BABU GANDHI [S.N. VARIAVA, J.J 335
stated the facts are as follows:- A
On 20th January, 2000 the election for the post of Sarpanch, Gram
Panchayat, Ringnodiya, Indore was held. After the counting of the votes, the
Appellant was orally informed that he had won the elections. However when
the result was officially declared, Respondent No. I was shown to have won.
The Returning Officer then issued a certificate showing that Respondent no. B
I had won.

The Appellant, therefore, filed an election petition before the Sub-
Divisional Officer. Respondent no. I evaded services. By an ex-parte Order
the Sub-Divisional Officer directed recounting of ballot papers. On such C
recounting it was found that in respect of booth no. 151 the votes polled in
favour of the Appellant had been erroneously shown as having been polled
in favour of Respondent No. 4. On a recounting of the votes it was found that
the Appellant had won. The Sub-Divisional Officer, therefore, corrected the
mistake by Order dated 3rd February, 2000 and declared the Appellant to
have won the election. D
Against the order of the Sub-Divisional Officer, Respondent No. I filed
a Writ Petition in the High Court. On 23rd February, 2000 the High Court
disposed of the Writ Petition by remanding the matter back to Sub-Divisional
Officer. The Sub-Divisional Officer thereafter heard all parties and again
passed an order to recount. On a second recount it was again found that the E
votes polled in favour of the Appellant had been erroneously shown as having
been polled in favour of Respondent No. 4. Thus the Sub-Divisional Officer
again corrected the results and declared the Appellant as having won the
elections.

The !st Respondent again filed a Writ Petition before the High Court. F
This Writ Petition has been allowed by the Impugned Judgment. In the
Impugned Judgment, the High Court has followed a decision of this Court in
the case of Smt. Ram Rati v. Saro} Devi and Ors. reported in AIR (1997)
Supreme Court 3072. In this decision it has been held that unless a party first
applies to the Returning Officer for recounting of votes it is not open to the G
Tribunal or the Court to direct recounting. It was held that an application for
recounting in writing to the Returning Officer was an essential pre-condition.

Based on this authority, the High Court set aside the order of the Sub-
Divisional Officer solely on the ground that the Appellant had not applied to
the Returning Officer for recounting. The High Court did not decide any H
336 SUPREME COURT REPORTS [2002) SUPP. 4 S.C.R.

A other points raised in the Writ Petition.

When these Appeals came up before a bench of two Judges of this
Court they had reservation about the principle laid down in Ram Rati's case.
This matter was, therefore, directed to be placed before a three Judge Bench.
It has accordingly been placed before us. '
B
In order to consider the correctness of the ratio laid down in Ram Rati's
case it is necessary to see the provisions of the M.P. Panchayat Raj Avam
Gram Swaraj Adhiniyam, 1993 (hereinafter called the said 'Act'). Section 43
of the said Act empowers the State Government in consultation with the State
C Election Commission to make rules for preparation of electoral rolls and
conduct of all elections. Section 95 further empowers the State Government
to make rules for carrying out the purposes of the said Act. Section 122
provides that an election can be called in question only by a petition presented,
in case of a Gram Panchayat, to the Sub-Divisional Officer. Rule 80 reads as
follows:-
D
"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
E 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
F the application in whole or in part or may reject it in toto if it appears
to him to be frivolous or unreasonable.

(3) Every decision of the Returning Officer or such other officer
authorised by him, under sub-rule (2) shall be in writing and contain
the reasons therefor.
G
(4) If the Returning Officer or such other officer authorised by him,
decides under sub-mle (2) to allow an application either in whole or
in part, he shall-

(a) count the ballot papers again in accordance with his decision;
H (b) amend the result sheet to the extent necessary after such recount;
SOHAN LAL v. BABU GANDHI [S.N. VARIAVA, !.] 337
and A
(c) announce the amendment so made by him.

(5) After the total number of votes polled by each candidate has been
announced under sub-rule (2) of rule 77 or sub-rule (4) the RetU'.·ning
Officer or such other officer authorised by him shall complete and B
sign the result sheet and no application for a recount shall be
entertained thereafter;

Provided that no step under this sub-rule shall be taken on the
completion of the counting until the candidates and election agents
present at the completion thereof have been given a reasonable C
opportunity to exercise the right conferred by sub-rule ( 1).

6. The counted ballot papers shall be .bundled and kept in the manner
mentioned in sub-rule (3) of rule 77.

7. Result sheets in Form 16, 17, 18 and 19 for Panch, Sarpanch,
Member of Janpad Panchayat and Member of Zila Panchayat D
respectively, prepared by such other officers as are authorised by the
Returning Officer, shall be submitted by them, in separate envelops
to the Returning Officer for compilation and tabulation of votes polled
by each candidate.

8. The Returning Officer on receipt of result sheets under sub-rule (7) E
shall enter of cause to be entered the total number of votes polled by
each candidate contesting for a seat of Sarpanch, Member of Janpad
Panchayat or Member of Zila Panchayat at each polling station ofttie
concerned constituency in subsequent part or parts of Form 17, 18
and 19 respectively and complete and sign the result sheet." F
Thus under sub-rule (5) once the result sheet is completed and signed,
no application for recount can be entertained.

Rule 81 also provides that after the counting of the votes, the Returning
Officer shall prepare a return and declare the candidate who has the largest G
number of votes to have been elected. Under Rule 83, a certificate is to be
granted to the returned candidate who has been declared elected. Under Rule
84 after the certificate has been granted, the election officer or the Returning
Officer can only correct clerical or arithmetical mistakes.

Thus after declaration of results, the Returning Officer has no power H
338 SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R.

A either to direct recount or to change the results of the election. Once the
result is declared, the only remedy of an aggrieved party is an Election
Petition under Section 122.

In this case, as stated above, the Appellant had been orally told that he
had won. He only came to know that Respondent No. I had been declared
B elected after the result was declared. At. this stage, he could not have
approached the Returning Officer for recount. The only remedy, therefore,
available to the Appellant was to file an Election Petition.

In view of Section 122 and the rules, we are unable to agree with the
C ratio laid down in Ram Rati's case. It is not correct to hold that, in an election
petition, after the declaration of the res;.IJt, the Court or Tribunal cannot direct
recounting of votes unless the party has first applied in writing for recounting
of votes. There is no prohibition in the Act or under the rules prohibiting the
Court or Tribunal to direct a recounting of the votes. Even otherwise a party
may not know that the recounting is necessary till after result is declared. At
D this stage, it would not be possible for him to apply for recounting 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 case is made out, it may direct recount depending
upon the evidence led by the parties. In the present case, there was obvious
E error in declaring the result. We, therefore, hold that the ratio laid down in
Ram Rati's case is not correct.

In this view of the matter, the decision of the High Court cannot be
sustained and is, therefore, set aside. As the Writ Petition was disposed off
only on the basis of Ram Rati's case, the High Court has not dealt with other
F points raised in the Writ Petition. We therefore restore the Writ Petition to the
file of the High Court. The High Court shall decide the same on merits.

The Appeals stand disposed of accordingly. There shall be no order as
to costs.

G N.J. Appeals disposed of.