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2007 DIGILAW 1359 (PAT)

Banwari Yadav v. State Of Bihar

2007-08-16

NAVIN SINHA

body2007
Judgment Navin Sinha, J. 1. The petitioner successfully contested for the post of Mukhiya from Gram Panchayat, Raj Haradiya, under the Bhore Block, District Gopalganj. The rival candidate, respondent no. 7, questioned his election in Election Petition No. 8 of 2006, under Sec. 137 of the Bihar Panchayat Raj Act (hereinafter referred to as the Act) before the Munsif, Gopalganj. The relief sought was for recount of ballots and thereafter set aside the election of the petitioner and declare the plaintiff/ respondent no. 7 as having been elected. 2. By order dated 30.4.2007 the Court held that it was prima facie satisfied that a case had been made out for calling the ballot papers and recounting of votes. The consequential orders dated 6.6.2007 and 17.7.2007 came to be passed after recount on an equality of votes that the petitioner and respondent no. 7 had secured 906 votes each and 253 ballots were found invalid from the total of 3409 ballots counted when respondent no. 7 was declared elected as the Mukhiya and the petitioner was unseated. I.A. No. 3487 of 2007 was then filed assailing the orders dated 6.6.2007 and 17.7.2007. The I.A. application is allowed. 3. Learned Senior Counsel Shri Y.V. Giri for the petitioner, submitted that in the original count the petitioner secured 911 votes whereas respondent no. 7 secured only 896 votes. There was thus a difference of fifteen votes. The Election Petition was incompetent, and lacking in allegations of material facts with regard to illegality during counting and did not disclose how the result was materially affected. The recount of ballots was a serious matter affecting the sanctity of the election process and could not be ordered for the mere asking. Sec. 140 of the Act vested power in the Election Court only to declare which candidate received majority of the valid votes. There was no provision for a draw of lots by lottery in an election petition under Sec. 137 of the Act read with Rule 106, if on recount there was equality of votes. Rule 80 of the Bihar Panchayat Election Rules (hereinafter called the Election Rules) dealing with draw of lots was available only at the time of counting of the votes before the Election Officer. The powers of the Election Court are limited to examining the grounds in Sec. 139 of the Act for declaration of invalidity. Rule 80 of the Bihar Panchayat Election Rules (hereinafter called the Election Rules) dealing with draw of lots was available only at the time of counting of the votes before the Election Officer. The powers of the Election Court are limited to examining the grounds in Sec. 139 of the Act for declaration of invalidity. Rule 80 of the Rules was akin to Sec. 65 of the Representation of Peoples Act (hereinafter referred to as "the R.P. Act"). There is no provision under the present Act or Rules for recount in an election petition as provided for in Sec. 102 of the R.P. Act. The legislature in its wisdom having not done so the Court was required to interpret the law as it stood. 4. In the event of equality of votes during counting of an election petition under the Bihar Panchayat Act, the Election Petition must fail. Alternatively it was urged that if the ballots be equal then the election itself has to be declared void. The petitioner originally got 911 votes which was reduced to 906 in Court in recount. If these five votes be added to the 869 votes originally secured by respondent no. 7 he gets a total of 901 votes only. The grant of 906 votes to him without a discussion from where the balance five votes came makes the order impugned unsustainable. 5. The Court, for the recount was required to call for the Returning Officer and other Government functionaries. The counting of the votes in Court by the Peon of the Court was an incurable illegality. Reliance was placed upon 2005(7) SCC 494, 2007(3) SCC 617 , 2004(6) SCC 331 , AIR 2003 SC 2271 and AIR 1964 SC 1249 in support of the propositions. 6. Shri Basant Kumar Choudhary appearing on behalf of respondent no. 7 submitted that the present controversy related to recounting of votes for which the determining provision was Sec. 140 of the Act as distinct from Sec. 139, which deals with the issue of disqualification to set aside an election. The words "in fact" in Sec. 140(1) (a) was wide enough to take within its fold the issue of recounting during the suit, the drawing of a lottery in case of a tie during such recounting to arrive at the determination as to who had received the majority votes. The words "in fact" in Sec. 140(1) (a) was wide enough to take within its fold the issue of recounting during the suit, the drawing of a lottery in case of a tie during such recounting to arrive at the determination as to who had received the majority votes. Rule 80 of the Election Rules was procedural and substantive in nature. The exclusion of the rule to an election petition will lead to absurd results. To throw out the petition in such situation was not the legislative intent. The drawing of lots in case of a tie was an accepted mode in all spheres of life. In the suit there was no prayer for declaration that the election was void under sec. 139 of the Act. The Court cannot make out a third case different from what the parties were pleading. Reliance was placed on AIR 1994 SC 1775 in support of the submission that full effect has to be given to the legislative intent and the Court can go behind the words and enactment to give full effect to it. Placing reliance on AIR 2002 SC 1334 it was submitted that the Court may in cases of clear necessity invoke the principle of casus omissus from within the four corners of the statute itself readily infer to such a procedure. 7. That the R.P. Act was an exhaustive Code with regard to Assembly and Parliamentary elections only. The present Act was not an exhaustive Code only to regulate elections to the Panchayat. The drawing of analogy from the R.P. Act was therefore not appropriate. The recount was not done by a Peon. The order dated 6.6.2007 has to be read as a whole and not by culling out lines from the order. Read as a whole it was apparent that the recounting was done in the Court in the presence of several Officials of the Commission and the Government Officials in open proceedings. It was lastly submitted that the election petition contained material facts fit to go to trial and on which the Court was satisfied to order recount. 8. Learned Counsel for the Commission supported Shri Choudhary to submit that there was a distinction between the R.P. Act. He relied upon a Division Bench order of this Court in CWJC No. 460 of 2005. 9. 8. Learned Counsel for the Commission supported Shri Choudhary to submit that there was a distinction between the R.P. Act. He relied upon a Division Bench order of this Court in CWJC No. 460 of 2005. 9. The right to challenge an election is not a fundamental, constitutional or common-law right. It is a legal right regulated by the law, the Bihar Panchayat Raj Act and the Rules. Sec. 137 provides for institution of an election petition and the necessary parties to the petition. Section 139 provides the ground for declaring an election to be void in such a suit. Section 140 vests the election courts with the power to decide who received the majority of valid votes when a person not only challenges the Returned Candidate but claims a declaration in favour of himself. Sec. 146 vests the power in the Government to make Rules under which the Bihar Panchayat Election Rules, 2006 have been framed. Rule 79 provides for recounting of votes on an application made to the Election Officer in writing specifying ihe grounds for the same. It does not limit such application to the period of counting but even thereafter. Rule 80 deals with the procedure in case of equality of votes where after the results are to be declared in Form 21 under Rule 81. Rule 106 provides for the limitation to institute an election petition and the necessary parties. Rule 108 requires the election petition to disclose the material facts in support of the allegations. The petition is to be signed and verified in accordance with Order 6 of the Code of Civil Procedure. The petition is to be heard under Rule 109 in accordance with the Code of Civil Procedure, 1908. 10. Respondent No. 7 at the time of counting on 15.6.2006 and later on 16.6.2006 gave an application that an effort was being made to defeat him and declare the petitioner as the winning candidate by recounting of votes. Efforts were being made to chase him away. This was injustice and therefore proper recounting be done. It certainly was not an application for recount under the rules. No grounds have been disclosed as required by law. Only if grounds were disclosed the Returning Officer was statutorily required to make an enquiry and pass appropriate orders under Section 79(2). Efforts were being made to chase him away. This was injustice and therefore proper recounting be done. It certainly was not an application for recount under the rules. No grounds have been disclosed as required by law. Only if grounds were disclosed the Returning Officer was statutorily required to make an enquiry and pass appropriate orders under Section 79(2). The second application stated that he had been defeated by six votes and that his valid votes had been declared invalid while the invalid votes of the petitioner had been declared valid and therefore the need for recount. No details of the valid or invalid votes were disclosed making the application completely vague and floundering. 11. The Election plaint is on record as Annexure 2. The allegations are of irregularities and favouritism during counting. Procedures were not followed during counting and that valid votes of Plaintiff/ respondent no. 7 had been declared invalid. The ballots of the five posts for which elections were held were to be segregated after polling and before commencement of counting on separate tables. This was not done in conspiracy when counting for the Panchayat of Plaintiff/respondent no. 7 commenced. This led to a crowd assemblage during counting preventing verification of votes by the candidate or his election agent. The written protest of respondent no. 1 was refused acceptance. Immediately after the counting of votes Plaintiff/ respondent no. 7 requested for recount in writing when the application was torn. Three valid votes of the plaintiff/respondent no. 7 were illegally put in the bundle of votes of the petitioner. Likewise five votes of defendant no. 7 were illegally put in the bundle of the petitioner alongwith four invalid votes bearing thumb impressions only. That the plaintiff/respondent 7 had sent a fax message to the Election Officer of the illegalities. The verification of the plaint stated that the plaintiff had read the petition and that the contents of the same were true to his knowledge and that no part of it was wrong or fabrication. The affidavit in support there was likewise. 12. The hiatus in the application given during counting and immediately thereafter and the grounds urged in the plaint is remarkably noticeable. If what is urged in the plaint was a fact during counting, no explanation has been given for not stating the grounds earlier. This in itself raises a serious doubt about the allegations. 13. 12. The hiatus in the application given during counting and immediately thereafter and the grounds urged in the plaint is remarkably noticeable. If what is urged in the plaint was a fact during counting, no explanation has been given for not stating the grounds earlier. This in itself raises a serious doubt about the allegations. 13. The suit plaint as noticed above does not disclose material facts of the allegations with regard to illegalities during counting to justify an order of recount. What are material facts to be disclosed in an election petition to make out a cause of action has been elaborated by the Supreme Court in Virendra Nath Gautam Vs. Satpal Singh, (2007)3 SCC 617 at paragraph 35 as under: "All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state a single material fact, hence, will entail dismissal of the Suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial." Distinguishing between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e particulars or evidence) it was held that the pleadings must contain facta probanda and not facta probantia. 14. The election plaint is vague when it states that the valid votes of the plaintiff/respondent no. 7, were declared invalid and the invalid votes of the petitioner were declared valid. There are no details of the same. If the pleading with regard to the 12 votes given to the petitioner illegally be also taken into consideration, the plaintiff/respondent no. 7, lost by 15 votes. Yet 3 votes remain available to the petitioner make him the winning candidate. There are no more material facts with regard to the nature of illegality during counting to disclose a cause of action. 15. 7, lost by 15 votes. Yet 3 votes remain available to the petitioner make him the winning candidate. There are no more material facts with regard to the nature of illegality during counting to disclose a cause of action. 15. Order 6 Rule 15 of the Code of Civil Procedure requires the pleadings to be verified at the foot of the plaint by reference to the numbered paragraphs of the pleadings as to which are verified to knowledge and which are verified upon the information received and believed to be true. The verification to the plaint and the affidavit in support of the same simply states that the entire contents of the petition were correct, that nothing had been concealed or fabricated. Quite apparently the verification and the affidavit is also not in accordance with law. The plaintiff does not specify which parts of the allegation were true to his knowledge and which he verifies as being true to his belief. 16. The Munsif in his order dated 30.4.2007, while ordering recount has laid emphasis on the fact that the plaintiff/ respondent no. 7, had in fact lodged written protest during counting with regard to the alleged irregularities. Unfortunately the learned Munsif has completely glossed over the requirement under Rule 79 of the Election Rules to disclose the grounds on which recounting was sought. In absence of the necessary averments in the protest petition the mere fact that an application was given, which was vague, cannot sustain an order for recount by a roving enquiry. That the averments in the plaint were completely at variance with the protest and was not explained was not taken note of by the Munsif. The fact that witnesses in the suit may have supported the same was not relevant in the absence of grounds. The fact that more persons than permitted may have been present in the counting room does not ipso facto lead to the conclusion of irregularities in counting. The illegal counting of 12 votes in favour of the petitioner has weighed much with the Munsif even while ignoring that the total difference was of 15 votes when 3 votes still remained to declare the petitioner as the winning candidate. The illegal counting of 12 votes in favour of the petitioner has weighed much with the Munsif even while ignoring that the total difference was of 15 votes when 3 votes still remained to declare the petitioner as the winning candidate. That material facts were missing in the plaint to make out a prima facie case with regard to the number of invalid votes of the petitioner credited to him and the valid votes of the plaintiff/respondent no. 7, rejected were issues not considered by the Munsif. Without the availability of the pleadings the learned Munsif by placing unnecessary reliance upon the evidence of certain plaintiffs witnesses has arrived at a decision by surmises and conjectures that the petitioner was in a position to exercise undue influence over the Government Officials by corrupt practices. That there were several mysterious circumstances creating ample doubts and that both sides had no objection if recount was done in the supervision of the Court to pass the impugned order. In pursuance thereof the impugned orders dated 6.6.2007 of the result of recount came to be passed and the declaration made in favour of the plaintiff/respondent no. 7, on 17.7.2007 after draw of lots in an equality of votes during recount unseating the petitioner. 17. It has been consistently held that the sanctity of the election process is not to be lightly interfered with and recount is a serious matter. In the case of Ramrati vs. Saroj Devi, (1997)6 SCC 66 , while considering the requirement of Rule 76 of M.R Panchayat Election Rules, 1994, similar to the present Rule 79, it was held: "In 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 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." 18. In Chandrika Pd. Yadav vs. State of Bihar & Ors., 2004(6) SCC 331 , it was held that Rule 79 serves a salutary purpose. Counting of the ballot papers in terms of the Rules takes place in presence of the candidate or his counting agent. In Chandrika Pd. Yadav vs. State of Bihar & Ors., 2004(6) SCC 331 , it was held that Rule 79 serves a salutary purpose. Counting of the ballot papers in terms of the Rules takes place in presence of the candidate or his counting agent. While filing such an application the basis for making a request for recounting of votes is required to be disclosed. 19. The jurisdiction of the Court to order a recount is circumscribed by the limitations of existence of a prima facie case, pleading of material facts stating irregularities in counting of votes, that a roving and fishing enquiry cannot be made while directing recounting of votes and that an objection to the said effect had been taken recourse to. In M. Chinna Swami vs. K.C. Palanishami, 2004(6) SCC 341 , it was held: "32. Apart 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 not 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 can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at a latter 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." Concluding at paragraph 44 it was held: "The requirement of laying foundation in the pleading 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 for recounting of votes must be of a very high standard and is required to be discharged." 20. In Jagjit Singh (Dr.) vs. Giani Kartar Singh, AIR 1966 SC 773 , the argument that when the Tribunal considering the evidence made in light of the allegations was satisfied that inspection should be ordered may not be interfered with was rejected, holding: "35. We are not prepared to accept this contention. In Jagjit Singh (Dr.) vs. Giani Kartar Singh, AIR 1966 SC 773 , the argument that when the Tribunal considering the evidence made in light of the allegations was satisfied that inspection should be ordered may not be interfered with was rejected, holding: "35. We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether sufficient had been mentioned by the applicant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot paper; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have first enquired whether the application made by the appellant satisfied the requirement of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general and the all object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent no. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers and examine the validity or invalidity of the ballot papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the Statutory Rules and with the object of keeping the ballot papers secret." 21. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the Statutory Rules and with the object of keeping the ballot papers secret." 21. In the case of Baldeo Singh vs. Shinder Pal Singh & Anr., (2007)1 SCC 341 , while considering the provisions of the Punjab Panchayati Raj Act, 1994 and the Rules thereunder it was held that the verification of the election petition was a very important aspect and which cannot be ignored while deciding the correctness of the averments made in an election petition. 22. On the facts of the case and the law as discussed above, the Court arrives at the conclusion that there was no compliance with Rule 79 by the plaintiff/respondent no. 7 and therefore there never was an application by him for recount during counting on grounds of alleged irregularities. This finding is further fortified by the pleadings in the election petition which are completely at variance and do not support the availability of such grounds at the time of recount. The pleadings in the election petition were completely lacking in material particulars nor disclosing a prima facie case to order a recount. The order of the learned Munsif is more in the nature of a fishing enquiry to arrive at a conclusion for recount. Even while considering the salutary principles to order recount, the learned Munsif has still glossed over the legal necessity for the same and appears to have been swayed by his own conclusions of undue influence by the petitioner upon Government Officials and the willingness of the parties by consent to go for a recount. The order therefore is unsustainable. 23. In view of the aforesaid findings, this Court does not consider it necessary to deal with the other submissions made on behalf of the petitioner. 24. The impugned order dated 30.4.2007 and the consequential orders dated 6.6.2007 and 17.7.2007 in Election Petition No. 8 of 2006 passed by the Munsif, Gopalganj are accordingly set aside. The petitioner is reinstated to his winning position. 25. The writ application is allowed. There shall be no order as to costs.