Prasad Yadav Vs. State of Bihar & Ors  Insc 222 (5 April 2004)
S.B. Sinha & S.H. Kapadia.
Contempt Petition (Civil) No. 174/2003 S.B. SINHA, J:
extent of jurisdiction of election tribunal to direct recounting of votes is the
primal question involved in this appeal which arises out of a judgment and
order dated 18.11.2002 passed by a Division Bench of the High Court of
Judicature at Patna in L.P.A. No. 1149/2002 dismissing the appeal arising out
of an order dated 7.10.2002 passed in Writ Petition marked as CWJC No.
5004/2002 whereby and whereunder a learned Single Judge of the High Court
allowed the writ petition filed by the respondent herein questioning an order
of the election tribunal dated 20.10.2001.
private parties hereto contested an election for the post of Mukhiya of Raj Gamhariya,
Gram Panchayat. The said election was held on 19.4.2001 and the votes polled
therein were counted on 20.5.2001. The contention of the appellant was that the
returning officer had informed him that he had secured 900 votes out of which
150 had been declared invalid and, thus, he got 670 valid votes whereas the
respondent Mahendra Rai had secured only 622 votes.
when the result was finally declared on 21.5.2001, the 4th respondent herein
was declared elected by securing allegedly 32 more votes than the appellant
herein. The total votes polled by the appellant was shown as 670 and votes
polled by the 4th respondent was shown as 702.
appellant allegedly moved an application for recounting of votesbefore the
returning officer but the same was not entertained. The appellant thereafter
filed an election petition questioning the election of the 4th respondent
herein before the learned Munsif, Raxoul, East Champaran primarily on the ground of irregularities in counting of
votes. Before the election tribunal, the parties adduced their respective
evidences whereafter the learned Munsif by an order dated 20.10.2001 directed
inspection and recounting of ballot papers; pursuant to or in furtherance
whereof the Returning Officer, East Champaran
was directed to produce the ballot papers.
thereby and dissatisfied therewith, a writ petition was filed by the 4th
respondent herein which was, however, withdrawn. Recounting of the ballot
papers was held on 23.3.2002 as a result whereof the appellant was said to have
secured 671 votes; whereas the 4th respondent secured 667 votes. The Election
Petition, therefore, thereafter was allowed by a judgment and order dated 6.4.2002.
The 4th respondent being aggrieved by and dissatisfied therewith filed a writ
petition before the Patna High Court which was marked as CWJC No. 5004/2002. By
an order dated 7.10.2002, the said writ petition was allowed whereagainst a
Letters Patent Appeal was filed by the appellant herein which was dismissed by
a Division Bench of the High Court. Hence this appeal by special leave.
Sharan, learned senior counsel appearing on behalf of the appellant would
submit that the High Court committed a manifest error in passing the impugned
judgment purporting to rely upon or on the basis of the decision of [(1997) 6
SCC 66] wherein it has been held that it is mandatory for the election
petitioner to file an application for recounting of votes before the returning
officer in terms of the election rules, although the same has since been
overruled by a 3-Judge Bench of this Court in Sohan Lal 108].
learned counsel would urge that as in a democracy the rule of majority should
prevail, the learned Munsif was within his jurisdiction to direct recounting of
votes upon satisfying itself the necessity therefor and in that view of the
matter the High Court should not have interfered with the said judgment.
would submit that the learned Munsif had assigned valid and cogent reasons in
support of his order upon taking into consideration the pleadings of the
parties and the evidences brought on records and in that view of the matter the
High Court erred in setting aside the same.
Dwivedi, learned senior counsel appearing on behalf of the 4th respondent, on
the other hand, would contend that the High Court has rightly proceeded on the
premise that the pleadings of the appellant being vague and general in nature,
no case was made out for recounting of votes. The learned counsel pointed out
that prayer for recounting of votes made by the appellant was on the basis that
he had filed a proper application before the returning officer but he failed to
prove the said fact nor brought on the records of the case a copy thereof. As
regard the findings of the learned Munsif to the effect that the Ex. A/20
contained cutting and over-writing, the learned counsel would submit that no
such case had been made out in the election petition. It was pointed out that
in any event having regard to the fact that 100 valid votes had not been
counted so far as the appellant is concerned; and in fact more than 400 votes
polled by the 4th respondent herein were held to be not valid and, thus, the appellant
herein was not prejudiced at all.
our attention to the judgment of the learned Single Judge as also the Division
Bench of the High Court, the learned counsel would urge that the High Court analysed
the pleadings of the appellant made in his election petition and came to the
conclusion that the same are absolutely vague and general in nature and no
reliance thereupon could have been placed by the learned Munsif. Filing of an
application before the returning officer for recounting of votes may not be
mandatory but Mr. Dwivedi would aruge that the same goes a long way to show
that as to on what basis the recounting was sought for. The order of the
returning officer allowing or rejecting the same, the learned counsel would
contend, be of great assistance for the Election Tribunal to judge the
140 of the Bihar Panchayat Raj Act, 1993 mandates that the election of Mukhiya
shall not be called in question before any forum except by way of an election
petition. The State of Bihar in exercise of its power conferred
upon it under Section 121 of the said Act framed rules known as Bihar Panchayat
Election Rules. It is not in dispute that various provisions exist as regard
rejection or acceptance of votes and the right of a candidate or his authorised
agent to question the same by filing an appropriate application therefor before
the prescribed authority. Rule 79 of the Rules provides that the candidate or
in his absence his agent or his counting agent can file an application to the
election officer or the officer(s) authorised by him praying for recounting and
the basis therefor. On reciept of such an application, the election officer can
accept either in whole or in part the same or reject the same wherefor reasons
are required to be assigned. In the event of election officer accepting either
in whole or in part such a prayer of the candidate, he would recount the votes whereafter
the result or the number of votes polled may be amended. However, no application
would be accepted for further recounting.
OF REUIREMENTS OF LAW:
law relating to recounting of votes is now well- settled. The provisions of the
Act and the rules framed thereunder provide that in relation to an election
petition the provisions of the Code of Civil Procedure would apply.
election petition, therefore, must contain coincise statement of material
facts. It is well-settled that the question as to what would constitute
material facts would depend upon the facts and circumstances of each case.
have been taken through the averments made in the election petition. The
learned Single Judge of the High Court in his judgment dated 7.10.2002 upon
noticing paragraphs 6 to 11 and 17 of the election petition held:
From the pleadings of respondent No. 4, it is manifest that the allegations
made by him were quite vague and did not come up to the stringent standards
laid down by the Supreme Court." The appellant has not produced before us
a copy of the affidavit affirmed in support of the Election Petition to show as
to how the averments made in the Election Petition were verified.
attention has also been drawn to paragraphs 19 to 21 by Mr. Sharan which read
That, in all 16 Booths were in the electoral area of Gram Panchayat Raj, Gamhariya
Kala, vide Booth No. 106 to 121.
the dependent No. 1 has wrongly been declared elected, by a margin of 32 votes,
as against the plaintiff.
as a matter of fact, the plaintiff has got, near about 200 excess valid votes
than the defendant No. 1."
averments made in the said paragraphs do not improve the appellant's case
inasmuch as therein also no material fact has been averred as to how and in
what matter the so-called valid votes were kept out of consideration or invalid
votes had been taken into consideration. The appellant in paragraph 11 of the
election petition categorically stated that a request was made to the returning
officer for recounting of the votes but he did not pay any heed thereto. In the
aforementioned situation, it was obligatory on the part of the appellant to
prove the said fact. The averments made in the election petition clearly go to
show that the appellant was aware of his right to file an appropriate
application before the returning officer praying for a recounting. If the said
application was not entertained, he should have proved the said fact by
bringing on record the original application which was refused to be accepted or
a copy thereof. He should have also adduced evidence in that behalf before the
order dated 20.10.2001, the learned Munsif held:
view of documentary as well as oral evidence I find that there are sufficient
materials available on record to show that allegation of petitioner, about illegal
reception of votes in favour of opposite party and mischief in preparation of
result are clearly evidence and euitch (sic) about something hidden. In Pvt
(sic) 4/12 G.P. Mahendra Rai was shown to have got 81 votes but on the very
first look of form 20(A/12) shows that 31 was made 81 and in A/13 total votes
237 was changed into figure 287. There is no initial in any cutting like wise
in Ext. A/20 Mahendra Rai was shown to have got 509 votes but it was out (sic)
and 122 votes have been shown in favour of Mahendra Rai. There is no initial of
any officer on this cutting too. In oral evidence D.W.-9 and D.W.-12 have
supported the petitioner allegations." The learned Munsif in his order
dated 20.10.2001 failed to analyse the evidences adduced by the parties. He
also did not state as to what materials were brought on record to show that
there had been illegal reception of votes in favour of the opposite party.
Reference to Ex. 4/12 only shows certain interpolation but whether the same had
materially affected the result or not had not been taken into consideration.
is right in pointing out that whereas the appellant could have claimed 100 more
votes on the basis thereof, 509 votes polled by the 4th respondent had been
brought down to 122 votes. There is also nothing on record to show that as to
how and in what manner D.W.-9 and D.W.-12 had supported the allegations made by
learned Munsif despite having opined that an order for inspection of ballot
papers cannot be granted to support vague pleas and not supported by material
facts but failed to point out as to which averments made by the appellant could
be accepted as disclosing material facts, on the basis whereof an order for
recounting could be passed. The said order dated 20.10.2001 being not supported
by any cogent or valid reasons could not have been sustained.
well-settled that an order of recounting of votes can be passed when the
following conditions are fulfilled:
prima facie case;
Pleading of material facts stating irregularities in counting of votes;
A roving and fishing inquiry shall not be made while directing recounting of
An objection to the said effect has been taken recourse to.
requirement of maintaining the secrecy of ballot papers must also be kept in
view before a recounting can be directed. Narrow margin of votes between the
returned candidate and the election petitioner by itself would not be
sufficient for issuing a direction for recounting.
103] this Court upon noticing a large number of decisions held that it is
obligatory on the part of the Election Tribunal to arrive at a positive finding
as to how a prima facie case has been made out for issuing a direction for
from the clear legal position as laid down in several decisions, as noticed
hereinbefore, there cannot be any doubt or dispute that only because a
recounting has been directed, it would be held to be sacrosanct to the effect
that although in a given case the court may find such evidence to be at
variance with the pleadings, the same must be taken into consideration. It is
now well-settled principle of law that evidence adduced beyond the pleadings
would not be admissible nor any evidence can be permitted to be adduced which
is at variance with the pleadings. The court at a later stage of the trial as
also the appellate court having regard to the rule of pleadings would be
entitled to reject the evidence wherefor there does not exist any
pleading." It was further held that for the said purpose the Tribunal must
arrive at a finding that the errors are of such magnitude which would
materially affect the result of the election. As regard standard of proof, this
requirement of laying foundation in the pleadings must also be considered
having regard to the fact that the onus to prove the allegations was on the
election petitioner. The degree of proof for issuing a direction of recounting
of votes must be of a very high standard and is required to be discharged. [See
Mahender Pratap vs. Krishan Pal and Others - (2003) 1 SCC 390].
JT 2004 (3) SC 474) The order of the learned Munsif did not satisfy the
79 OF BIHAR PANCHAYAT ELECTION RULES, 1995 WHETHER MANDATORY OR DIRECTORY Rule
79 as noticed hereinbefore enables a candidate to file an appropriate
application for recounting of votes.
79 unlike rules framed by other States does not say that such an application
would not be maintainable after declarations of the votes polled by the parties
or prior thereto. Such an application, therefore, can be filed at any point of
time. The very fact that Sub-rule (3) of Rule 79 provides for amendment of the
result relating to the votes polled by the respective candidates and as, such
amended result is required to be announced in the prescribed form under
Sub-rule (2) of Rule 79, the same itself is a pointer to the fact that even
after announcement of result for recounting an application would be
maintainable. It may be true that only because such an application had not been
filed before the returning officer by itself may not preclude the Election
Tribunal to go into the question of requirement of issuing a direction for
recounting but there cannot be any doubt whatsoever that Rule 79 serves a
salutary purpose. Counting of ballot papers in terms of the rules takes place
in presence of the candidate or his counting agent. When an agent or a counting
agent or the candidate himself notices improper acceptance or rejection of the
ballot papers, he may bring the same to the notice of the prescribed authority.
As noticed hereinbefore, in a given case, an application for recounting either
before announcement of the result or thereafter, would be maintainable. Once an
application is filed by an agent or a counting agent or the candidate himself
pointing out the irregularities committed by the officers appointed for the
counting the ballot papers, immediate redressal of grievances would be
possible. As indicated hereinbefore, while filing such an application the basis
for making a request for recounting of votes is required to be disclosed.
returning officer is statutorily enjoined with a duty to entertain such an
application, make an inquiry and pass an appropriate order in terms of Sub-rule
(2) of Rule 79 either accepting in whole or in part such requests or rejecting
the same wherefor he is required to assign sufficient or cogent reasons. In the
event, such an application is allowed either in whole or in part, he is
statutorily empowered to amend the results also.
thus, it is expected that the statutory remedies provided for shall be availed
of. If such an opportunity is availed of by the Election Petitioner; he has to
state the reasons therefor. If no sufficient explanation is furnished by the
Election Petitioner as to why such statutory remedy was not availed of, the
Election Tribunal may consider the same as one of the factors for accepting or
rejecting the prayer for recounting. An order of the prescribed authority passed
in such application would render great assistance to the Election Tribunal in
arriving at a decision as to whether a prima facie case for issuance of
direction for recounting has been made out.
Rati (supra) a 2-Judge Bench of this Court while interpreting Rule 76 of M.P. Panchayat
Elections Rules, 1994 held:
the light of the mandatory language of Rule 76 of the Rules, it is incumbent
upon a candidate or an agent, if the candidate was not present, to make an
application in writing and give reasons in support thereof, while seeking
recounting. If it is not done, then the tribunal or the court is not empowered
to direct recounting even after adduction of evidence and consideration of the
alleged irregularities in the counting..." A 3-Judge Bench, however in Sohan
Lal (supra) while considering the provisions of M.P. Panchayat Raj Avam Gram Swaraj
Adhiniyam, 1993 and the Rule 80 of the Rules framed thereunder held:
In view of Section 122 and the rules, we are unable to agree with the ratio
laid down in Ram Rati's case. It is not correct to hold that, in an election
petition, after the declaration of the result, 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.
otherwise a party may not know that the recounting is necessary till after
result is declared. At this stage, it would not be possible for him to apply
for recounting to the Returning Officer.
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 error in declaring the result.
therefore, hold that the ratio laid down in Ram Rati's case is not
correct." wherein this Court while considering a pari materia provision
contained in T.N. Panchayats Act, 1994 as also upon noticing a large number of
appellant-election petitioner could not make out a case for re-count of votes.
He filed the application for re-count before the Returning Officer only after
the declaration of result and that was rightly rejected by the Returning
Officer. The appellant had no case that the illegality or irregularity, if any,
committed had materially affected the result of the election. Taking all the
aspects into consideration, we are of the view that the learned Single Judge
was perfectly justified in holding that the Election Tribunal erred in
appointing a Commissioner and ordering the re-count of votes. The counsel for
the appellant contended that the powers of the revisional court are not as wide
as the powers of the appellate court and, therefore, the learned Single Judge
should not have set aside the order passed by the Election Tribunal. We do not
find any force in this contention.
there is error of jurisdiction or flagrant violation of the law laid down by
this Court, by exercising the revisional powers, the court can set aside the
order passed by the Tribunal to do justice between the parties. The illegality
committed by the Election Tribunal has been corrected by the revisional order.
We find no merit in the present appeal and the same is dismissed." Vadivelu
(supra) was relied upon by the High Court and in our opinion having regard to
the averments made by the appellant in his Election Petition the ratio of the
said decision applies to the fact of the present case also.
question as to whether a statute is directory or mandatory would not depend
upon the phraseology used therein. The principle as regard the nature of the
statute must be determined having regard to the purpose and object Sahir and Ors.,
2003 (8) SCALE 165)
the reasons aforementioned, we are of the opinion that the judgment of the High
Court does not call for any interference. The appeal as also the contempt petition
are accordingly dismissed. No costs.