REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.               OF 2009 (Arising out of SLP (C) No.19564 of 2005)

Kedar Singh Kushwaha … Appellant

Versus

Dhaniram & Anr. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Appellant was the Sub-Divisional Officer Pichhore.   

In  the  said  capacity,  he  was  a  Specified  Officer  for  determination  of  

election  disputes  in  terms  of  the  provisions  of  Madhya  Pradesh  Panchayats  

(Election  Petition,  Corrupt  Practices  and  Disqualification  for  Membership)  

Rules,  1995  (for  short,  ‘the  Rules’)  framed  in  terms  of  Section  122  of  the  

Madhya Pradesh Panchayat Raj Adhiniyam (for short, ‘the Act’).

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3. Respondents 1 and 2 herein contested an election for the post of Sarpanch  

of Gram Panchayat, Khadoya, Block; Tehsil Pichhore.  The second respondent  

was declared elected.   Questioning the legality  whereof,  the first  respondent  

filed  an  application  for  setting  aside  his  election  in  the  Court  of  Specified  

Officer,  Pichhore.  Upon  hearing  the  parties,  the  Specified  Officer  directed  

recounting of all the votes polled in the said election.  Relying on or on the basis  

of such re-counting, the election petition was dismissed.

4. Questioning  the  legality  and/or  validity  of  the  said  order,  the  first  

respondent  filed  a  writ  petition  before  the  High  Court  contending  that  the  

Specified Officer had no jurisdiction to direct re-counting of votes only on the  

ground that no objection was raised by the parties as prior thereto and that he  

was  required  to  arrive  at  the  conclusion  that  sufficient  evidence  had  been  

brought on record by the parties for the said purpose.   

It  was  also  urged  that  such  a  judicial  power  could  not  have  been  

delegated in favour of the Tehsildar.   

A learned Single Judge of the High Court by reason of a judgment and  

order dated 24.7.1996 allowed the said writ petition, setting aside the order of  

the Specified Officer and remitted the matter back to it directing the election  

petition to be decided within two months. It was furthermore directed that the  

Specified Officer should also decide the preliminary objections raised by the

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respondent in the Election Petition.  The parties were directed to appear before  

it on 19.8.1996.

5. Despite the said order, however, no action thereon was taken.  Notices  

were issued only on 23.10.1997.    

By reason of an order dated 30.12.1997, the appellant who was holding  

the post  of the Specified Officer/Sub-Divisional Officer at  the relevant time,  

again directed for recounting of ballot papers.  On the premise that by reason  

thereof  the  appellant  had  disobeyed  the  order  of  the  High  Court  dated  

24.7.1996, a contempt petition was filed by the first respondent.  It was pointed  

out  that  neither  the  preliminary  objection  was  heard  nor  any  evidence  was  

recorded.  It was furthermore pointed out that despite the fact that the period of  

two months expired on or about 18.10.1996 but without obtaining an order of  

extension from the High Court, he issued the said order for recounting of the  

votes.   

6. The High Court issued Rule Nisi on the said application.  Appellant was  

directed to remain present in the court.  It, however, stands admitted that for one  

reason or the other, he did not appear before the Court and bailable warrants of  

his arrest were issued for his appearance on 6.5.1998.   

Appellant filed a show-cause in the said contempt proceedings.  Upon  

hearing the parties, the appellant was found guilty of willful disobedience of the

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order of the High Court and a fine of Rs.1,000/- and his detention till the rising  

of the court, was directed.

7. An intra-court appeal preferred by the appellant thereagainst in terms of  

Section 19 of the Contempt of Courts Act, 1971 was dismissed by reason of the  

impugned order dated 17.5.2005.

8. Mr. Banthia, learned counsel appearing on behalf of the appellant, would  

submit that the High Court committed a serious error in passing the impugned  

judgment insofar as it failed to take into consideration that the matter came up  

before  the  appellant  only in  1997 whereupon he took all  necessary steps  to  

dispose of the proceedings before him.  It was urged that failure on the part of  

the appellant to appear before the high Court pursuant to the directions issued  

was occasioned by non-grant of permission therefor by the higher authorities.  

Our attention in this behalf has, inter alia, been drawn to an intimation given by  

the appellant to that effect before the Collector on 4.5.1998.   

9. Indisputably,  the  appellant  was  the  Specified  Officer  and  in  the  said  

capacity  was  authorized  to  determine  the  election  petition  filed  by  the  first  

respondent.  The Election Petition filed by him was dismissed only on the basis  

of an order of recounting passed by the Specified Officer in respect whereof  

allegedly no objection was raised.  The High Court, however, in its order dated  

24.7.1996,  in  clear  terms,  pointed  out  that  the  prescribed  authority  has  no

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jurisdiction in that behalf even with the consent of the parties.   Relying on or,  

inter alia,  on the basis of a decision of this Court in  P.K.K. Shamsudeen v.  

K.A.M. Mappillai Mohindeen & Ors. [AIR 1989 SC 640], the High Court made  

extensive reference to the Rules, to hold :

“From the aforesaid rules, it is clear that any order of  recounting can be passed after conclusion of the trial  and the recounting can only be ordered by the Sub- Divisional  Officer  who  is  a  prescribed  authority  to  decide the dispute.  The sub-divisional officer has not  acted  properly,  inasmuch  as  it  acted  illegally  in  delegating the powers of recounting to the Tehsildar.  The authority is described as Sub-Divisional Officer  as  the  authority  to  decide  the  election  petitions,  therefore, any act done by the Tehsildar of recounting  cannot  be  said  to  be  proper  and  on  the  basis  of  recounting  by  the  Tehsildar,  the  Sub-Divisional  Officer  gravely  erred  in  dismissing  the  election  petition.  The order dismissing the election petition is  hereby  set  aside  with  a  direction  to  Sub-Divisional  Officer  to  decide  the  petition  according  to  law and  shall also decide the preliminary objections raised by  the respondents before him.  He cannot shirk from his  responsibility and delegate his powers to subordinate  authority.”

It was on that premise that the aforementioned directions were issued.

10. Indisputably, the said order was not complied with as the election petition  

was not  disposed of within the period specified therefor by the High Court.  

Indisputably again, pursuant to the order of the High Court, the parties appeared  

on 19.8.1996.  The appellant, in his order sheet dated 3.12.1997, recorded that  

the order of the High Court was received on 28.2.1997.  Why, despite the same,

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he  did  not  take  any  step  to  issue  notices  to  the  parties  and  proceeded  to  

determine the issue before him has not been explained.  The appellant, in his  

order dated 23.12.1997, proceeded on the basis that the High Court need not be  

approached for obtaining further directions from it.   

From a perusal of the order dated 13.1.1998, it appears that proceedings  

started at 4 pm on that day, the ballot boxes were opened and a direction for  

recounting of the ballot papers was made.  Indisputably, preliminary objections  

of the parties had not been determined.  Why an order of recounting was passed  

despite the clear finding of the High Court has not been explained.  The effect  

of the decision of this Court in P.K.K. Shamsudeen (supra) was also not taken  

into consideration.  The premise on which the High Court passed its judgment  

dated 24.7.1996 was neither noticed nor considered.  

11. It is now well settled that an order directing recounting must be preceded  

by application of mind by the Prescribed Authority.  [See  M. Chinnasamy v.  

K.C. Palanisamy & Ors. [(2004) 6 SCC 341] and  Chandrika Prasad Yadav v.  

State of Bihar & Ors. [(2004) 6 SCC 331]

It is, thus, idle to contend that the appellant did not understand the effect  

and purport of the order.  The High Court, in our opinion, has rightly arrived at  

a finding that as a responsible and high ranking officer, the said plea was not  

available to him.  He, therefore, could not have committed the same error as

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was done by his predecessor in office.  Even during the proceedings before the  

High Court, appellant’s conduct was not above board.  Why he could not appear  

before the High Court at the earliest possible opportunity has not been properly  

explained.  In terms of the Rules framed by the High Court under the Contempt  

of Courts Act, the appellant has rightly been called upon to appear.  He could  

not have ignored the same on the premise that the Collector did not give him  

permission therefor.  Even otherwise, no order refusing such permission by the  

Collector has been brought on record.

12. Keeping in view the facts and circumstances of the case, we are of the  

opinion that  no case  has been made out  for  interference with the impugned  

judgment.   This  appeal  is,  therefore,  dismissed.    However,  in the facts and  

circumstances of the case, there shall be no order as to costs.

..…………………………..…J.     [S.B. Sinha]

..…………………………..…J.     [Cyriac Joseph]

New Delhi; August 4, 2009