Samarendra Nath Mal v. Asoke Chandra Pradhan — 1979 DIGILAW 383 (CAL)

Judgment This Revisional application is directed against Orders dated 3rd March, 1979, 9th March, 1979 and 19th March, 1979 and consequential orders made subsequently by the learned Munsif, First Court, Contai, in E.D.C. No.1 of 1978. It appears that the last election of the Panchayat Samity for Majilapur 3 Constituency under Contai Development Block in the district of Midnapore was held on 4th June, 1978. The petitioner in the Revisional application and the opposite parties nos. 1 and 2 wore the contesting candidates in the said election of Panchayat Samity and the petitioner was declared elected by the opposite party no. 4 viz. Block Development Officer, Contai.-1, who was the Returning Officer of the aforesaid election of Panchayat Samity. Thereafter, a dispute petition was fled on July 26, 1978 by the opposite party no. 1 in the First Court of the learned Munsif, Contai under the provisions of Section 204 of the West Bengal Panchayat Act, read with Rule 74 of the West Bengal Panchayat (Election) Rules, 1974 and upon the said application, a case being E.D.C. No.1 of 1978 was started. In the said application under Section 204 of the West Bengal Panchayat Act, read with Rule 74 of the West Bengal Panchayat (Election) Rules; 1974, (hereinafter referred to as the 'Panchayat Act' and the 'Election Rules' respectively,) the said applicant viz. the opposite party No. 1, Ashoke Chandra Pradhan contended that the opposite party No.3, namely, the Presiding Officer, Bhuniyapada Primary School Booth had wrongly recorded 197 votes in favour of Shri Samarendra Mal, the petitioner herein, instead of 140 votes although the opposite party No.2, Moniruddin Sk. secured 197 votes and the said Asoke Chandra Pradhan secured 186 votes relating to the said Booth. It was contended by the said Asoke Chandra Pradhan in his Election Dispute application that because of such wrong recording of votes in respect of Bhuniyapada Primary School Booth in favour of the said Sri Samarendra Mal, the said Samarendra Mal was wrongly declared as elected in the aforesaid Panchayat Samity election. A prayer was made in the said Election dispute case for calling for the validly polled ballot papers relating to Bhuniyapada Primary School booth from the B.D.O., Contai I, who was the Returning Officer of the Panchayat Samity Election and to examine the said ballot papers. A prayer was made in the said Election dispute case for calling for the validly polled ballot papers relating to Bhuniyapada Primary School booth from the B.D.O., Contai I, who was the Returning Officer of the Panchayat Samity Election and to examine the said ballot papers. The petitioner in this Rule namely Samarendra Mal filed a written objection inter alia denying the allegations made in the said election petition filed by the opposite party No. 1 Asoke Chandra Pradhan and it was inter alia contended by the present petitioner Sri Samarendra Mal that the aforesaid section disputes petition was hopelessly time barred as the said petition was filed long after 30 days from the date of the declaration of the result. It was also contended that the decision of the said case absolutely depended upon recounting of votes relating to the said booth but such recounting was within the exclusive power and jurisdiction of the Presiding Officer of the said booth, namely, the opposite party No. 3 under the provisions of Rule 64 of the Election Rule, and the said Sri Asoke Chandra Pradhan not having filed any written objection before the Presiding Officer at the time of counting of votes of the said booth, the said Sri Pradhan was precluded from contending that there was wrong counting of votes relating to the said booth and as such he was bound by the result sheet contained in Form No. 21 and counting sheet contained in Form No. 20A made by the said Presiding Officer under the Election Rules. It was also contended that in the aforesaid facts and circumstances, the learned Munsif had no jurisdiction and authority to direct for recounting of validly polled ballot papers. The learned Munsif after hearing the parties however rejected the aforesaid objection of the present petitioner Sri Samarendra Mal and directed that the validly polled ballot papers relating to the said Bhuniyapada Primary School Booth should be examined for the purpose of correctly adjudicating the said election dispute case. The petitioner in this Rule also alleged that a revisional application was made by the present petitioner against the said order dated 1st December, 1978 directing for recounting of ballot papers but the learned Counsel for the opposite party No. 1 appeared before this Court and obtained several adjournments for filing caveat and/or objection to the said revisional application. The petitioner in this Rule also alleged that a revisional application was made by the present petitioner against the said order dated 1st December, 1978 directing for recounting of ballot papers but the learned Counsel for the opposite party No. 1 appeared before this Court and obtained several adjournments for filing caveat and/or objection to the said revisional application. The petitioner made several application for adjournment and stay of actual re-examination and/or recounting of the validly polled ballot papers relating to the said booth, but the learned Munsif paned the impugned orders dated 3rd March 1979, 9th March 1979 and 19th March, 1979 as a follow up measure of his earlier order dated 1st December, 1978 and as a matter of fact recounting was made and report was filed before the Court on such recounting. The present petitioner in view of the said subsequent development did not press his previous revisional application and the present revisional application was thereafter filed inter alia challenging the Orders dated 3rd March, 1979, 9th March, 1979 and 19th March, 1979 palled by the learned Munsif, First Court, Counsel in the said Election Dispute Case No. 1 of 1978 and also the aforesaid Report dated 9th March, 1979 of the Sheristadar concerning the recounting of ballot papers. 2. At the hearing of the Revisional application Mr. Maiti the learned Counsel for the petitioner contended that the expression 'dispute' has not been defined either in the Panchayat Act or in the said Election Rules and as such the said expression 'dispute' should be construed in its ordinary popular meaning. Rule 75 of the Election Rules provides for the procedure to be followed when a dispute relating to election is railed. Mr. Maiti, the learned Counsel for the petitioner, contended that the power of the Judge in an election dispute case is limited to the grounds enumerated in Rule 78 of the Election Rules and the expression 'dispute' appearing in Rule 78 to the effect that "if any dispute arises as to the validity of the election under the Panchayat Act" should be construed in such a way that such construction does not militate against the provisions contained in Rule 75 of the Election Rules. Mr. Mr. Maiti contended that the Judge exercising his powers in the election dispute case only deals with those disputes which can come within the scope and ambit of Rule 78 of the Election Rules and not any or every dispute. Mr. Maiti contended that a votes has a right to raise election dispute under section 204 of the Panchayat Act, but such right under section 204 is controlled by the provisions of Rules 74 to 79 of the Election Rules. Mr. Maiti contended that a dispute relating to the counting of votes and/or recounting of votes for the purpose of ascertaining the correct entries in the counting sheet or result sheet has been specifically provided for in Rule 64 of the Election Rules and such recounting is required to be made in accordance with the Rule 62, read with Rule 61 of the Election Rules and the power and authority of such recounting lie exclusively with the Presiding Officer concerned. If such a dispute is not railed under the said Rules, the dispute relating to the error in counting or re-counting or erroneous entries in the counting sheet or result sheet cannot be made by a candidate by presenting an application under section 204 of the Panchayat Act. Mr. Maiti contended that where a particular remedy has been provided for in a statute, that remedy is required to be followed before the concerned authority in the manner provided therefor and by necessary implication the other authority will have no power to deal with such disputes. Mr. Maiti contended that where a candidate who did not challenge the correctness of counting of validly polled ballot papers of a particular booth and also the correctness of the entries in the counting sheet and result sheet as per the provisions of the Election Rules indicated hereinbefore it is no longer open for such a candidate to raise a dispute under section 204 of the panchayat Act read with the Rules 74 to 79 of the Election Rules. Mr. Mr. Maiti contended that a dispute relating to wrong counting and erroneous entries in the counting sheet and the result sheet does not come under the purview of the disputes envisaged in Rules 74 to 79 of the Election Rules and as such the aforesaid order of the learned Munsif directing for recounting of the said votes and consequential steps taken for such recounting and filing of report are illegal and should be quashed. Mr. Maiti contended that the learned Munsif was not acting as a Judge of a civil court in the said election dispute case but he was acting as persons designata. But even assuming that the learned Munsif was acting as a Judge of the Civil Court, he was bound by the provisions of the said Panchsyat Act and the Election Rules in disposing of the said election dispute case and in the facts of the case he has no inherent power for directing for recounting. Mr. Maiti contended that the election dispute is purely a statutory proceeding unknown to common law and as such, an election dispute case should be disposed of in accordance with the provisions of the Panchayat Act and the Election Rules. For this contention Mr. Maiti referred to the decision of the Supreme Court made in the case of (1) Kamraj Nadar v. Kunja Thavar reported in A.I.R. 1958 Supreme Court, page 687. Mr. Maiti also referred to Maxwell on Interpretation of Statutes, 11th Edition, page 123 for the proposition that there are three classes of case in which a liability may be founded upon a Statute. The first class of case is where there is liability existing at common law and the liability also affirmed by the Statute which gives a special and particular form of remedy being different from the remedy existing at common law. In such a case, unless the Statute contains words which expressly or by necessary implication include the common law, the remedy of the party suing has his election either to pursue the remedy under common law or remedy under the Statute. The second class of case is where the Statute gives the right to sue merely but provides no particular form of remedy. The second class of case is where the Statute gives the right to sue merely but provides no particular form of remedy. In that case the party can only proceed by an action at the common law but there is a third case namely where liability not existing at common law is created by the Statute which at the same time gives a special and particular remedy for enforcing it. In such case, the remedy provided by the Statute must be followed and it is not competent for an aggrieved party to pursue the course applicable to the second class. In this connection, Mr. Maiti referred to the decision of the Privy Council made in the case of (2) Nazir Ahamed v. Emperor, reported in A.I.R. 1936 P.C. page 253. It was held in the said decision that where a power is given to do a certain thing in a certain way, either it must be done in that way or not at all, and all other methods of performance are necessarily forbidden. Mr. Maiti submitted that the aforesaid principle was also followed by the Supreme Court in the case of (3) Ramchandra Keshav Adke v. Govind Joti Chavare & Ors. reported in A.I.R. 1975 Supreme Court, page 915. Accordingly Mr. Maiti contended that in dealing with the said dispute made by a contesting candidate, the learned Munsif could not direct for recounting of validly polled votes as the powers to decide disputes were circumscribed by the provisions of Section 204 of the Panchayat Act, read with Rules 74 to 79 of the Election Rules. 3. Mr. Bhunia, the learned Counsel appearing for the opposite party No. 1, contended that under section 204 of the Panchayat Act, the Munsif or the District Judge acts as person a designata and not as a Court inasmuch as it will appear from the said Section 204 that an election dispute is to be made to the learned Munsif or the learned District Judie and not to the court of the learned Munsif or the Court of the learned District Judge. Secondly, an election dispute petition is required to be filed and no plaint is required to be presented as is made in an ordinary civil suit. There are also special provisions for depositing security with the election dispute petition under Section 204 (2) of the Panchayat Act. Secondly, an election dispute petition is required to be filed and no plaint is required to be presented as is made in an ordinary civil suit. There are also special provisions for depositing security with the election dispute petition under Section 204 (2) of the Panchayat Act. It has also been provided in section 204(5) that the procedure to be followed by the learned Munsif or the learned District Judge will be a procedure prescribed in the Rules and not usual procedure laid down in the Civil Procedure Code. It will also appear that some powers of the Civil Court and not all the powers of the Civil Court have been given to the learned Munsif or the District Judge deciding election dispute case. It will appear from the provisions of Rule 75 of the Election Rules that the election dispute should be enquired into as nearly as possible in accordance with the provisions of Civil Procedure Code for disposing of suits. Mr. Bhunia contended that in the aforesaid circumstances, an election dispute petition under section 204 of the Panchayat Act is not a civil suit within the meaning of section 9 of the Code of Civil Procedure but under the provisions of Section 204 of the Panchayat Act, any voter can raise any dispute as to the validity of an election. Mr. Bhunia contended that an election comprises all stages of election including recounting under Rule 64 and as such at any stage, if there is any dispute, a petition under Section 204 of the Panchayat Act can validly be made. For this contention Mr. Bhunia referred to the decision of this Court made in the case of (4) Guru Charan Banerjee v. Returning Officer, reported in 68 C.W.N. page 270 and (5) Sushil Kumar Dhara v. The Election Commission of India and ors. reported in A.I.R. 1973 Calcutta 184 and a Supreme Court decision made in the case of (6) Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and others reported in A.I.R. 1978 S.C. page 851. Mr. Bhunia next contended that the expression "any'' appearing in Section 204 of the Panchayat Act clearly implies that any kind of dispute may be brought for adjudication under Section 204 and the power of railing any kind of dispute under Section 204 is not circumscribed by the provisions of Rule 64 of the Election Rules. Mr. Bhunia next contended that the expression "any'' appearing in Section 204 of the Panchayat Act clearly implies that any kind of dispute may be brought for adjudication under Section 204 and the power of railing any kind of dispute under Section 204 is not circumscribed by the provisions of Rule 64 of the Election Rules. Accordingly filing of objection under Rule 64 is not obligatory and a candidate if he is voter is not debarred from raising section dispute under Section 204 of the Panchayat Act simply because objection under Rule 64 was not filed. Mr. Bhunia also contended that a voter cannot raise a dispute under Rule 64(2) and such right to raise dispute is limited to the candidates. Mr. Bhunia contended that posting of 197 votes against a wrong name has resulted in non-compliance with Rule 64 read with Form 20 of the Election Rules. Under the said Rule, it is required to make proper entries relating to the votes polled by the respective candidates and election dispute made in the instant case squarely comes under Rule 78(3). Mr. Bhunia contended that under Rule 76(2)(a) and (c) of the Election Rules, the learned Munsif has power to order discovery and inspection and for production of documents and under Section 204(3), the learned Munsif has jurisdiction to hold such enquiry as may deem fit and proper to him. Mr. Bhunia also contended that it wm appear from the deposition of the opposite party no. 1 namely the said applicant in the Election Dispute Case that the Presiding Officer did not declare the result after the completion of counting and there was no cross-examination by defendants no. 3 namely the Presiding Officer and defendant No. 4 namely the Returning Officer on the said statement of the opposite party No. 1. Mr. Bhunia contended that in aforesaid circumstances, there was no occasion to file objection under Rule 64(2) of the Election Rules. It was also stated by the opposite party No.1 that he made a written objection to the Returning Officer about the wrong recording of votes polled, but the Returning Officer had said that he had no power to rectify such entry and he had advised the opposite party No.1 to go to the Court of law and there was no cross-examination by the defendant No.3 and the defendant No. 4 on this statement also. It was also stated by the opposite party No. 1 that his agent was not asked to sign and on that question also no cross-examination was made. It was stated by the defendant No. 3 namely the Presiding Officer in his written statement that the mistakes might have been committed by him due to exhaustion. 4. In reply to the aforesaid contention of Mr. Bhunia, Mr. Maiti contended that in the instant case, the dispute has been railed by a candidate himself and in such circumstances, the special remedy provided for in Rule 64 read with Rules 61 and 62 of the Election Rules must be followed and a candidate not having reported to such remedies, cannot take advantage of an election dispute under section 204 of the Panchayat Act. 5. After considering the submissions made by the respective counsel appearing for the parties, it appears to me that Section 204 of the Panchayat Act is quite wide in its amplitude and all disputes relating to the election under the Panchayat Act can be raised under the said Section 204 of the Panchayat Act. In my view the nature of dispute raised in the instant election dispute application comes under Rule 78(3) of the Election Rules and the learned Munsif is competent to adjudicate the said dispute under section 204 of the Panchayat Act, read with Rule 78 of the Election Rules. It cannot be contended that the applicant is precluded from making the said application railing election dispute under section 204 of the Panchayat Act simply because as a candidate he could have raised objection under a different provision at a particular stage. It may be noted that the applicant deposed that he had no opportunity to raise disputes before the concerned authorities and as aforesaid, his statements in this regard remained unchallenged in cross-examination. The power to raise the said dispute is there under the provisions of Section 204 of the Panchayat Act and in my view, such power is not excluded either expressly or by necessary implication by any of the provisions of the Panchayat Act and the Election Rules. The power to raise the said dispute is there under the provisions of Section 204 of the Panchayat Act and in my view, such power is not excluded either expressly or by necessary implication by any of the provisions of the Panchayat Act and the Election Rules. In my view, the learned Munsif in proceeding with the election dispute case has power to ask for discovery and inspection and production of documents under Rule 75(2)(a) and (c) and in the facts and circumstances of the case for effective adjudication of the disputes raised, recounting of votes was essentially necessary. In the circumstances, no interference is called for in this revisional application and the Rule, therefore fails and is discharged, but I make no order as to costs. Let the records be sent down to the court below as expeditious a practicable.