DHARMIN BAI KASHYAPversusBABLI SAHU & OTHERS

                  [2023] 11 S.C.R. 150 : 2023 INSC 712



                              CASE DETAILS

                       DHARMIN BAI KASHYAP
                                       v.
                        BABLI SAHU & OTHERS
                      (Civil Appeal No. 2517 of 2023)
                             AUGUST 16, 2023
           [BELA M. TRIVEDI AND S.V.N. BHATTI, JJ.]

                               HEADNOTES

       Issue for consideration : Whether the election petition filed by the
petitioner before the Sub Divisional Officer seeking relief of recounting of
votes alone, without seeking any relief under Rule 6 of the Chhattisgarh
Panchayats (Election Petitions, Corrupt Practices and Disqualification for
Membership) Rules, 1995 was maintainable.
       Election Laws – Chhattisgarh Panchayats (Election Petitions,
Corrupt Practices and Disqualification for Membership) Rules, 1995 –
r.6 – Relief that may be claimed by the petitioner –Election of Sarpanch
– Election petition filed before the Sub Divisional Officer u/s. 122 seeking
relief of recounting of votes alone, without seeking any relief u/r. 6 –
Maintainability of:
        Held : 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 – Furthermore, 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
– s. 122 provides that an election under the said Act could be called in question
only by a petition presented in the prescribed manner – Manner prescribed
is in the Rules of 1995 – In r. 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 thereof, in the Election
Petition filed u/s. 122, the reliefs claimed have to be in consonance with the
r. 6 – 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

                                        150
        DHARMIN BAI KASHYAP v. BABLI SAHU & OTHERS                          151


Petition – Petitioner having failed to make any application in writing for re-
counting of votes as required u/s. 80 of the 1995 Act, and having failed to
seek relief of declarations as required u/r. 6, the Election Petition filed by the
petitioner before the Sub Divisional Officer seeking relief of re-counting of
votes alone was not maintainable – Chhattisgarh Panchayat Raj Adhiniyam,
1993 – Chhattisgarh Panchayat Nirvachan Niyam, 1995. [Para 13 and 15]
      Election laws: Statutory provisions relating to election law –
Interpretation of:
       Held: 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. [Para 15]

        LIST OF CITATIONS AND OTHER REFERENCES

      Sohan Lal vs. Babu Gandhi and Others (2003) 1 SCC 108 : [2002]
4 Suppl. SCR 333 – relied on.
     Ram Rati vs. Saroj Devi and Others (1997) 6 SCC 66 : [1997] 3
SCR 1050; Cherukuri Mani w/o Narendra Chowdari vs. Chief Secretary,
Government of Andhra Pradesh and Others (2015) 13 SCC 722 : [2014] 6
SCR 750; Laxmi Singh and Others vs. Rekha Singh and others (2020) 6
SCC 812 – referred to.

        OTHER CASE DETAILS INCLUDING IMPUGNED
               ORDER AND APPEARANCES

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.2517 of
2023.
      From the Judgment and Order dated 25.04.2022 of the High Court
of Chhattisgarh at Bilaspur in WA No.72 of 2022.
        Appearances:
        Sameer Shrivastava, Adv. for the Appellant.
      Abhinav Shrivastava, Sudhir Verma, Ms. Ritu Reniwal, Sourav Roy,
Mahesh Kumar, Kaushal Sharma, Sunit Kumar Toppo, Ms. Devika Khanna,
Mrs. V D Khanna for M/s VMZ Chambers, Advs. for the Respondents.
152            SUPREME COURT REPORTS                      [2023] 11 S.C.R.



        JUDGMENT/ORDER OF THE SUPREME COURT

                               JUDGMENT
       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 20.12.2021 passed by
the Sub Divisional Officer and also the recounting of votes undertaken
on 31.12.2021.
       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,
       DHARMIN BAI KASHYAP v. BABLI SAHU & OTHERS                          153
                   [BELA M. TRIVEDI, J.]

              Corrupt Practices and 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 fi led 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?
       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 hereunder: -
154           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      “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.”
      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;
        DHARMIN BAI KASHYAP v. BABLI SAHU & OTHERS                           155
                    [BELA M. TRIVEDI, J.]

      (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.”
       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 07.02.2020before
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 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

1   (2003) 1 SCC 108
156           SUPREME COURT REPORTS                           [2023] 11 S.C.R.


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
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

2   (1997) 6 SCC 66
        DHARMIN BAI KASHYAP v. BABLI SAHU & OTHERS                              157
                    [BELA M. TRIVEDI, J.]

      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 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.”
        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.

3   (2015) 13 SCC 722
158            SUPREME COURT REPORTS                           [2023] 11 S.C.R.


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.
       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 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.

Headnotes prepared by:                                             Appeal dismissed.
Nidhi Jain