HARIKISHUN SINGH v. KASHINATH RAI — 1969 DIGILAW 79 (PAT)

JUDGMENT : G. N. Prasad, J. This application under Articles 226 and 227 of the Constitution of India is directed against the ORDER :of the Election Tribunal constituted under the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as “the Rules”), setting aside the election of the petitioner to the office of Mukhiya of Dihri-Sonbarsa Gram Panchayat of Jagdishpur Anchal held in June, 1965. Besides, the petitioner, there were two other candidates in the field, namely, Shri Kashinath Rai (respondent no. 1) and Shri Sheo Bachan Mishra (respondent no. 2). As a result of the counting of votes, which was held by the Presiding Officer (R.W. 1, the contesting candidates were found to have secured the following number of votes :- Shri Harikishun Singh (Petitioner) - 322 votes. Shri Kashinath Rai (R. No. 1) - 285 votes. Shri Sheo Bachan Mishra (R. No. 2) - 16 votes. Consequently, the petitioner was declared elected by majority of votes. Thereafter, the election of the petitioner was called in question by respondent no. 1 by means of an election petition under Section 84B of the Bihar Panchayat Raj Act, 1947 (hereinafter referred to as "the Act"), read with Rule 72 of the Rules. 2. In substance, the case of the election-petitioner was that at the time of the counting of votes, the Presiding Officer did not allow him to inspect the ballot papers, to which he was entitled under the Rules, and acted arbitrarily in counting, in consequence of which many valid ballot papers of the election-petitioner were rejected as invalid whereas many invalid ballot papers of the petitioner were accepted as valid. According to the ejection-petitioner, therefore, the result of the election had been materially affected and he had secured a large number of valid votes than those secured by the petitioner. Hence, the election-petitioner prayed that the election of the returned candidate be set aside and that he be declared to be the successful candidate, as contemplated by Rule 76 of the Rules. 3. Hence, the election-petitioner prayed that the election of the returned candidate be set aside and that he be declared to be the successful candidate, as contemplated by Rule 76 of the Rules. 3. In course of the hearing of the election petition, the election-petitioner secured an ORDER :from the Election Tribunal for inspection of the ballot papers, but, at the instance of the petitioner the said ORDER :for inspection of the ballot papers was set aside by this Court, and the Election Tribunal was directed not to take into consideration any material disclosed by making an inspection of the ballot papers. 4. During the hearing of the election petition, a point was raised on behalf of the petitioner that the election petition was vague inasmuch as no definite particulars had been furnished with regard to the ballot papers alleged to have been illegally counted in favour of the petitioner, or illegally rejected from among the ballot papers of respondent no. 1. To meet this objection to the frame of the election petition, the election-petitioner got an ORDER :for amendment of the election petition by including therein an averment to the effect that the number of ballot papers illegally counted in favour of the petitioner was 40 and that the number of ballot papers of respondent no. 1 which were illegally rejected was 30. All the allegations, however, were denied by the petitioner in his written statement and it was maintained that the election-petitioner was not entitled to any relief. 5. Several issues were framed by the Tribunal, out of which only issue nos. 3, 4, 5 and 6 are relevant for the present purpose. They are :- "3. Were invalid votes polled in favour of the respondent accepted as valid? If so, has it materially affected the result of the election? 4. Were valid votes polled in favour of the petitioner illegally rejected? If so, has it materially affected the result of the election ? 5. Is the election of the respondent illegal and invalid? 6. Has the petitioner received majority of valid votes but for the improper acceptance of illegal votes in favour of respondent no. 1 and improper rejection of valid votes, polled in favour of the petitioner? If so, is the petitioner entitled to be declared elected Mukhiya of the Dihri-Sonbarsa Gram Panchayat?" 6. 6. Has the petitioner received majority of valid votes but for the improper acceptance of illegal votes in favour of respondent no. 1 and improper rejection of valid votes, polled in favour of the petitioner? If so, is the petitioner entitled to be declared elected Mukhiya of the Dihri-Sonbarsa Gram Panchayat?" 6. The Tribunal noticed that it was called upon to decide all these issues on the basis of oral evidence only. The oral evidence on the side of the election-petitioner consisted of his own evidence as P.W. 3 and that of two other witnesses, Ramnath Singh (P.W. 1) and Mahendra Kumar (P.W. 2). On the side of the petitioner, the Presiding Officer (R. W. 1) was the solitary witness. With regard to R.W. 1, the Tribunal observed that his evidence was not of any help on the main question, namely, the question of improper acceptance and rejection of ballot papers. But dealing with the evidence of the election-petitioner, the Tribunal observed as follows :- "As against this the petitioner has produced three witnesses including himself, P.W.1 is the most competent witness being petitioner's counting agent. This witness has given every detail of the rejection and acceptance of the ballot papers at the time of counting P.W.2 has also supported the allegations made in the petition. The petitioner has also supported his allegation on oath." The Tribunal has then observed :- "Thus it is seen that the petitioner has examined the most competent witnesses who were entitled to be present at the time of counting and are expected to know every detail at the time of counting whereas no witness has been examined on behalf of the respondent though enough time was at his disposal. The evidence of the petitioner is ex-parte and there is no reason to disbelieve their statements. In this view of the matter I am inclined to believe the petitioner and hold that about 20 to 25 valid votes of petitioner were improperly rejected and about thirty votes of the respondent were improperly accepted as valid. If these 20 to 25 votes are added to the votes of petitioner and 30 invalid votes left out of account the respondent's majority is materially reduced. Thus I am of opinion that the improper acceptance of invalid votes and improper rejection of valid votes have materially affected the result of the election." 7. If these 20 to 25 votes are added to the votes of petitioner and 30 invalid votes left out of account the respondent's majority is materially reduced. Thus I am of opinion that the improper acceptance of invalid votes and improper rejection of valid votes have materially affected the result of the election." 7. It will be noticed that the Tribunal has not indicated how valid votes of the election-petitioner were improperly rejected and how the votes counted in favour of the successful candidate were invalid or improperly accepted. Rule 51 (2) of the Rules lays down the several grounds upon which the Presiding Officer is bound to reject a ballot paper. Therefore, it was incumbent upon the Tribunal to record a clear finding as to under which clause or clauses of Rule 51 (2) some of the ballot papers counted in favour of the petitioner were fit to be rejected as invalid. Likewise, it was incumbent upon the Election Tribunal to show how some of the ballot papers of the election petitioner, which were rejected as invalid, did not merit rejection in view of the provisions of Rule 51(2). The Election Tribunal has based its decision entirely upon the oral testimony of respondent no. 1 and his witnesses, but their testimony cannot be of any avail, unless it contains the relevant particulars of the ballot papers as mentioned in Rule 51 (2). Their individual opinion as to validity or invalidity of the ballot papers can be of no consequence. The Tribunal had to come to its own independent conclusion on the basis of the materials brought before it, whether the ballot papers were improperly rejected or not, or whether the ballot papers, which were counted, were invalid or not, as indicated in the relevant rule. 8. It is manifest that the Tribunal was misled on account of the frame of the election petition which was defective. Under Rule 75 of the Rules, it was incumbent upon the election petitioner to state in the election petition the material facts on which he relied in ORDER :to show that the result of the election had been materially affected by reason of improper rejection of his valid votes and improper inclusion of the invalid votes in favour of the successful candidate. The material facts in such circumstances would be the failure on part of the Presiding Officer to comply with the provisions of Rule 51(2) relating to the acceptance or rejection of the ballot papers. In other words, the election petition should have contained how 40 of the votes counted in favour of the petitioner should have been rejected on one or more of the grounds mentioned in Rule 51 (2). Likewise, definite particulars ought to have been mentioned in the election petition itself as to the circumstances in which 30 of the alleged valid ballot papers of respondent no. 1 had been improperly rejected by the Presiding Officer. Since these material facts were not mentioned in the election petition, the Tribunal was not in a position to apply its mind as to whether there had been any impropriety on the part of the Presiding Officer in the matter of acceptance or rejection of ballot papers. The result, therefore, is that the decision of the Election Tribunal gives absolutely no indication as to the grounds upon which some ballot papers of the petitioner have been held to be invalid and some other ballot papers of respondent no. 1 have been held to be valid. 9. The Election Tribunal has fallen into an error in proceeding upon the footing that the witnesses of the election-petitioner had given details of rejection and acceptance of the ballot papers at the time of counting. No such details had been given in the election petition nor they have been given by the witnesses examined by the election-petitioner. The Election Tribunal felt impressed by the circumstance that the evidence adduced by the election petitioner was ex-parte. Here again, the Tribunal was in error inasmuch as even in a case where the evidence on one side is ex-parte, the duty of the Tribunal is to scrutinise the same in ORDER :to decide whether it is fit to be accepted or not. This is all the more necessary in the trial of an election petition because it is well settled that the entire onus of proving his case rests upon the election-petitioner. The successful candidate may choose not to give any evidence and put the election-petitioner to the strict proof of his own case. This is all the more necessary in the trial of an election petition because it is well settled that the entire onus of proving his case rests upon the election-petitioner. The successful candidate may choose not to give any evidence and put the election-petitioner to the strict proof of his own case. Therefore, the Tribunal in the present case was not absolved from its responsibility of scrutinising the evidence adduced by the election-petitioner merely because it thought that it was ex-parte. Since the Tribunal failed to scrutinise the evidence of the election petitioner's witnesses it has lost sight of the fact that, to all intents and purposes, there was only one witness before it on the side of the election-petitioner whose evidence had some relevance on the question which it was called upon to decide. The first witness Ramnath Singh had stated in his examination in chief itself that he was not in a position to say how many valid votes had been declared to be invalid. The second witness Mahendra Kumar, who had acted as counting agent of the election-petitioner, stated that Kashinath Rai had not stayed throughout the stage of counting of the ballot papers inasmuch as he had left shortly after the counting was taken up. To the same effect is the evidence of the Presiding Officer, who, deposing on the side of the petitioner made categorical statement that Kashinath Rai was not present at the time of counting of ballot papers. This statement of the Presiding Officer was not controverted in the cross-examination. Thus, the evidence of Ramnath Singh was inconclusive and the evidence of Kashinath Rai himself was of no oral value. Thus, only the evidence of Mahendra Kumar, the counting agent, needed real consideration at the hands of the Tribunal. Even so, his evidence was not definite with respect to the number of the valid votes of respondent no. 1 which were declared as invalid. This is what he said :- "Aise karib paintis saintis vote the jo meri dristi men nejayaj the kintu unhe jayaj karar diya gaya tha." He further stated :- "Kashinath Rai ke matpatron ki jab ginti ho rahi thi to unke samajh se kuchh jayaj vote najayaj kar diye gaye jis per unhon ne aapatti ki thi. This is what he said :- "Aise karib paintis saintis vote the jo meri dristi men nejayaj the kintu unhe jayaj karar diya gaya tha." He further stated :- "Kashinath Rai ke matpatron ki jab ginti ho rahi thi to unke samajh se kuchh jayaj vote najayaj kar diye gaye jis per unhon ne aapatti ki thi. Andaj se main kah sakta hun ki aisa bis pachis vote the." It would be noticed that, so far as the latter statement of Mahendra Kumar is concerned, it is not based upon his own knowledge or opinion, but upon the opinion of Kashinath Rai himself. Since, however, the Tribunal was misled by proceeding upon the footing that the exparte evidence of the election-petitioner called for no scrutiny, it failed to realise that there was hardly any evidence of acceptable nature to justify the findings to which it has arrived on the question of the proper acceptance or rejection of votes. 10. For the aforesaid reasons, the decision of the Election Tribunal cannot be allowed to stand, and is hereby quashed. In the circumstances of this case, there will be no ORDER :as to costs. Application allowed.