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2012 DIGILAW 691 (PAT)

Shamima Khatoon v. State Of Bihar

2012-04-27

SHEEMA ALI KHAN

body2012
ORDER 1. Heard the parties. 2. The petitioner has filed this writ application making the following prayers: (a) To call fort the result-sheet for the post of Mukhiya of Gram Panchayat Raj Gidihan, prepared in Form 20 Part 1, Form 20 Part 2 and Form 21 and thereafter to prepare a fresh final result-sheet in accordance with law. (b) For a declaration that respondent no. 3 i.e. the State Election Commission in exercise of the powers under Section 123 of the Bihar Panchayat Raj Act, 2006 should declare the petitioner the returned candidate in view of the fact that the Returning Officer has intentionally favoured respondent no. 9 who was declared as a winning candidate. (c) To take appropriate legal and penal action against the Returning Officer who has committed fraud while preparing the final result-sheet. 3. The facts are that after the elections were declared the counting of votes took place on 18.5.2011 and as per the rules the final result-sheet was prepared. It has been specifically stated at paragraph 10 that the result-sheet would declare that the petitioner was leading as he had got 1037 votes vis-à-vis respondent no. 9 Gayatri Devi who had only got 1028 votes. Despite the discrepancy in votes the result-sheet was fraudulently prepared by making interpolation in it and respondent no. 9 was declared as the returned candidate. The petitioner has annexed to the writ application the result-sheet. After the election process was over the petitioner filed an Election Case No. 14 of 2011 raising these issues for a declaration that the petitioner should be declared as the elected candidate. 4. The petitioner relies on Annexure-5 which is the report of the Sub-divisional Officer, Hathua addressed to the District Magistrate, Gopalganj wherein he has stated that on perusal of the table wise preparation under Form 21, 1037 votes were polled in favour of the petitioner whereas 1028 votes were polled in favour of respondent no. 9. The result-sheet on the other hand shows that only 820 votes have been shown in the chart by the Returning Officer. 5. This Court in view of the apparent discrepancy as contained in Annexures 1, 2 and 3 called for the original records. The objection raised by respondent no. 9. The result-sheet on the other hand shows that only 820 votes have been shown in the chart by the Returning Officer. 5. This Court in view of the apparent discrepancy as contained in Annexures 1, 2 and 3 called for the original records. The objection raised by respondent no. 9 in short is that the petitioner has filed an election petition for the same relief and as such she cannot be allowed by way of this writ application to ventilate her grievances before this Court. It is submitted that disputed questions of fact are involved. It was contended that the result chart produced by the petitioner has been tampered with in favour of the petitioner by the concerned Sub-Divisional Officer, Hathua and as such this Court ought not to enter into the facts and issue a writ of mandamus/quo-warranto removing respondent no. 9 from the post of Mukhiya or directing the respondents to do so. Both the parties have relied on documents such as findings of the State Election Commission, which are apparently in favour of the petitioner, letter of the District Magistrate, Gopalganj as contained in Annexure-12 to the supplementary affidavit, letter of the Secretary, State Election Commission to the Principal Secretary, Panchayat Raj Department and various other letters issued in this context, to submit that in view of the materials that have come before this Court it would amount to gross injustice if respondent no. 9 is allowed to continue as a Mukhiya as the Returning Officer in connivance with respondent no. 9 has fraudulently tilted the results in favour of respondent no. 9. 6. Both the parties have relied on several decisions to substantiate their submissions. I would like to state here that I have examined the original records in this case. It would not be proper for me to pass my comments with respect to Form-20 and 21 in view of the order that intend to pass, as it may affect one or both of the parties adversely. I will only refer to the submissions made on behalf of the petitioner and respondent no. 9 in this regard. 7. It would not be proper for me to pass my comments with respect to Form-20 and 21 in view of the order that intend to pass, as it may affect one or both of the parties adversely. I will only refer to the submissions made on behalf of the petitioner and respondent no. 9 in this regard. 7. It has been argued that on perusal of Annexure-1 at page 15 of the writ application which deals with Booth No. 1 and after comparing it with Annexure-2 (page 30 of the brief) it would appear that one Rabri Devi had obtained 23 votes in Booth No. 1 which has been shown as 32. The petitioner apparently had obtained 89 votes which has been shown as 80 votes. Thus the total votes polled is 315 which tallies in Form-20 Part 1 and Form-20 Part 2. 8. Counsel for the respondent on the other hand submits that there is an apparent interpolation in Form-20 Part 1 by making the “zero” of 80 as 9 and also by showing 23 votes of Rabri Devi as 32 votes thus balancing 315 votes. It is further pointed out that the number 9 in 89 and the number 9 in the case of Suganti Devi differs which indicates that there has been some sort of interpolation. The submissions of the petitioner and the respondent will need to be verified in the proper proceedings. I have only indicated one of the objections raised by both the parties. There is a similar objection with respect to Booth No. 5 which again needs to be examined by the appropriate authority. 9. Learned counsel for the petitioner submits that the respondent has not denied the chart and, therefore, claims that the facts are admitted. Now that the original records are before this Court, I cannot hold that the facts would be admitted even if they are not specifically denied in the counter affidavit, although it has been said that these matters are part of questions raised in the election petition. 10. In order to substantiate his case that this Court can interfere under Article 226 with respect to issues raised before this court in view of the findings of the Sub-Divisional Officer, Hathua and the State Election Commission, Mr. Mangalam refers to a series of decisions. 10. In order to substantiate his case that this Court can interfere under Article 226 with respect to issues raised before this court in view of the findings of the Sub-Divisional Officer, Hathua and the State Election Commission, Mr. Mangalam refers to a series of decisions. This Court under Article 226 can interfere in a given set of facts the State Election Commission may also interfere in certain circumstances and pass an order for repoll. However, in present facts where the reports & charts are disputed it is not fit case for interference under Article 226 of the Constitution. 11. It has been submitted on behalf of the petitioner that in view of all the reports as mentioned aforesaid, the State Election Commission having recorded its opinion that the result chart has been wrongly prepared, the Commission should have passed an order for recounting of the ballot papers or for re-election to the said post of Mukhiya. In this context, counsel for the petitioner refers to the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner & Ors. [ AIR 1978 SC 851 ]. The facts were that the Legislative Assembly election was held in Ferozepore. When the counting commenced, a mob of irritated persons indulged in violence and the ballots of certain booths could not be taken into account as they were destroyed. The State Election Commission ordered for repoll of the entire 9 segments of the Ferozepore constituency. The order was challenged by filing a writ under Article 226. The writ Court held that there was no occasion for the High Court to entertain the writ application as the State Election Commission was acting within its powers under Article 324 (1) of the Constitution. The Court further held that the writ application was barred under Article 329 (9) of the Constitution and the High Court rightly dismissed the writ application. The facts as stated above are not helpful for the petitioner to substantiate his argument as far as the writ Court is concerned as the judgment holds that election disputes can only be challenged by filing an election petition. The next case referred to by the counsel for the petitioner is the case of Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253). The next case referred to by the counsel for the petitioner is the case of Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253). Specifically counsel for the petitioner refers to paragraph 4 wherein the Court has held “the results of the election are subject to judicial scrutiny and control only with an eye on two ends. The first was that the true will of the people is reflected in the results and the second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation.” It was also emphasized on behalf of the petitioner that the Court had held that if the results are tainted with corrupt practice or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not free and true will, exercised intelligently by deliberate choice. The facts in this case are that the election petition was dismissed on the ground that it did not fulfill the mandatory requirements to furnish material facts and particulars enjoined by Section 83 of the Representation of the People Act and as such there was no occasion for the petitioner to rely very heavily on this case as there is nothing that would really help the petitioner in the entire judgment, therefore, the petitioner has not been able to convince this Court that this Court would be justified in the facts of this case in interfering by issuing a writ of mandamus and quo-warranto setting aside the election or for ordering for recounting of the ballot papers. They would come within the prerogative of the appropriate authority under Section 137 of the Gram Panchayat Raj Act to pass an order if the Authority concerned is satisfied regarding the facts as pleaded by the petitioner. 12. Counsel for the petitioner also refers to the case of K. Venkatachalam Vs. A. Swamickan & Anr. [ (1999) 4 SCC 526 ]. In this case the question arose before the Court whether a person who was disqualified to contest the elections could be allowed to continue to hold the post to represent Lalgudi constituency. 12. Counsel for the petitioner also refers to the case of K. Venkatachalam Vs. A. Swamickan & Anr. [ (1999) 4 SCC 526 ]. In this case the question arose before the Court whether a person who was disqualified to contest the elections could be allowed to continue to hold the post to represent Lalgudi constituency. While referring all the cases on this issue finally the Apex Court held that there would be no bar to challenge the election of a candidate who was disqualified even prior to the election to hold the post of seat on which he has been elected. The Apex Court has held that Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be held to the provisions of the act for the appropriate reliefs. 13. The next argument is, that, it is the case where fraud has been committed by the concerned officers in allowing a person who had got lesser votes to be declared as elected by manipulating the result-sheet. It is argued that fraud vitiates everything. Before discussing the cases relied on by the counsel for the petitioner, I would like to clarify here, that the question of fraud requires to be proved and I cannot hold on the materials before me that a fraud was committed by interpolation of the result-sheet and even if it was committed then whether it was in favour of the returned candidate or in favour of the petitioner. The cases referred to by the petitioner do not really deal with the issues at hand. For example Indian Bank Vs. Satyam Fibres (India) Private Limited [ (1996) 5 SCC 550 ] refers to a judgment which involves both civil and criminal consequences. The Court has merely held that before recoding a finding of fraud, the Court is obliged to decide a question regarding fraud by recording evidence and in appropriate cases can also record the decree/order. There is no doubt about this proposition of law but the finding of fraud must be alleged and proved which can only be done by leading evidence in this case. The petitioner also relies on the judgment of A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors. [ (2007) 4 SCC 221 ]. There is no doubt about this proposition of law but the finding of fraud must be alleged and proved which can only be done by leading evidence in this case. The petitioner also relies on the judgment of A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors. [ (2007) 4 SCC 221 ]. It has been argued on behalf of the petitioner that paragraph 22 indicates that any judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order-by the first court or by the final court- has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even collateral proceedings. It is, therefore, argued on the basis of the aforesaid observations that this Court can issue appropriate writ as according to the petitioner the respondent no. 5 has been declared as a Mukhiya by practicing fraud. In the case of Indian Bank (Supra) considering the prima facie evidence that the petitioner in connivance with the officers of Port Trust had committed fraud the High Court had issued directions to pass fresh orders. The Supreme Court upheld the order of the High Court. In the present case fraud has to be proved. 14. The stand of Mr. Y.V. Giri, senior counsel appearing on behalf of respondent no. 9 is that the petitioner has already filed an election petition before the appropriate authority under Section 137 of the Act and the allegations levelled against the respondents and the officers are of corrupt practices. The question as to whether the result-sheets have been tinkered with or there is some sort of forgery committed or fraud is a question of fact, which can only be proved by leading evidence. It is submitted that merely because there is a report in favour of the petitioner which has not been supported by the District Magistrate does not clothe the petitioner the right to come to move this Court under Article 226 to interfere by passing an order or issuing a writ in favour of the petitioner. It is further submitted that the petitioner cannot take recourse to two forums. The State counsel also supports the case of Gayatri Devi, respondent no. It is further submitted that the petitioner cannot take recourse to two forums. The State counsel also supports the case of Gayatri Devi, respondent no. 9 rather than the case of the petitioner. Several judgments have been referred to in order to show to this Court that the case is not maintainable under Article 226 and that the petitioner cannot pursue parallel proceedings. I will merely mention the citations, as it is apparent from my order aforesaid that this Court finds difficulty in interfere in this matter and holding that the fraud was played or that respondent no. 9 has wrongly been declared as a returned candidate. The cases referred to are 2008 (4) PLJR 144, 2009 (3) PLJR 933 and 2009 (1) PLJR 712 for the purposes of submitting that this matter cannot be decided under Article 226. Counsel also refers to (2006) 12 SCC 484 to submit that parallel proceedings should not be allowed to continue. 15. Having regard to the facts of this case which have been discussed in detail, this Court directs the Munsif, Gopalganj who is hearing the Election Case No. 14 of 2011 to decide this case expeditiously. The Court below should examine the result-sheet and if the Court below finds that there are doubts regarding the authenticity and the manner in which the result-sheet has been prepared under Form 20 Part 1 and Form 20 Part 2, take further evidence or record conclude the case, after taking evidence of the parties within the shortest possible time. Since the result-sheets are with this Court they are being sent directly to the Munsif, Gopalganj to expedite the matter. At the most this Court expects that a final judgment would be delivered within a period of six months on receipt of the record from this Court. The petitioner and respondent no. 9 are directed to co-operate and the Court below should not grant unnecessary time to them unless they show good reason for praying for time. 16. This writ application is thus, disposed of in the aforesaid terms.