Election Contest Purely A Statutory Proceeding, Provisions Must Be Strictly Interpreted : Supreme Court

A Division Bench of the Supreme Court, comprising Justices Bela M. Trivedi and S.V.N. Bhatti, while hearing an appeal reiterated 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. The Court elucidated:

“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.”

In the present case, 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 (SDO) under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (Act), 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 SDO, after recording the evidences of witnesses, ordered for recounting in three polling stations on 31.12.2021. As a result, the votes were re-counted and the petitioner herein was declared as elected Sarpanch. The same was confirmed by the Single Bench of the High Court. However, Division Bench of the High Court set aside the said order as well as the order passed by the SDO for recounting of votes undertaken on 31.12.2021. Thus, the present appeal.

Pertinently, the arguments of the petitioner were two folds. Firstly, she relied upon the decision of the Apex Court in the case of Sohan Lal v. Babu Gandhi and Others, (2003) 1 SCC 108. The ratio led down in this case was 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. Secondly, she submitted that her agent 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 Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (Nirvachan Niyam 1995); however, Returning Officer did not pay any heed to it.

Court’s Observations

In its observations, the Court, while distinguishing Sohan Lal’s case with that of present case, noted that in the instant case the question involved is whether the election petition could be filed seeking the prayer only for recounting of votes, without seeking any reliefs as contemplated in Rule 6 of the said Rules of 1995.

Further, the Court, while placing its reliance on Cherukuri Mani w/o Narendra Chowdari v. Chief Secretary, Government of Andhra Pradesh and Others, (2015) 13 SCC 722, opined:

“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.”

Based on this, Court examined the relevant provisions and observed that Section 122 of the 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 Nirvachan Niyam 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”. The Court accepted the ratio laid down in Sohan Lal’s case and observed that the Court or Tribunal may direct recounting of votes in the Election Petition, depending upon the evidence laid down by the parties in the Election Petition. However, it categorically held that:

“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”

Thereafter, the Court addressed the second leg of the petitioner’s argument. It observed that a faint attempt was made by the petitioner to argue that her agent 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 as no such request was made in writing either by the petitioner or his agent to the Returning Officer as mandated under Rule 80 of the Nirvachan Niyam,1995.

In view of the same, the Court refused to grant any relief to the petitioner and dismissed the appeal by holding:

“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 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.”

Case Title: DHARMIN BAI KASHYAP v. BABLI SAHU & OTHERS, CIVIL APPEAL NO. 2517 OF 2023

Citation : 2023 LiveLaw (SC) 661

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