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2014 DIGILAW 1266 (PAT)

Baijnath Yadav v. State of Bihar

2014-12-19

ANJANA MISHRA, I.A.ANSARI

body2014
ORDER : ANJANA MISHRA, J. The present appeal has been preferred against the order, dated 24.04.2014, passed in CWJC No. 19640 of 2013, whereby and whereunder a learned single Judge of this Court, while hearing an application preferred against the order passed by the learned Election Tribunal, Jehanabad, in Election Case No. 04 of 2011, upheld the order, date 04.09.2013, with certain modifications and has permitted recounting of ballot papers of those polling booths only, which fall within Narayanpur Panchayat of the constituency, in question. 2. Being aggrieved by the restricted recounting of votes by the learned single Judge, the appellant herein has preferred the present intra Court Appeal seeking to get set aside the order, dated 04.09.2013, aforementioned, as also the order, dated 04.09.2013, passed, in Election Case No. 04 of 2011, by the learned Sub Judge IV of the learned Election Tribunal, Jehanabad, whereunder an Advocate Commissioner had been appointed to proceed with the recounting of ballot papers polled at the polling booths of Ratani Part II constituency, Jehanabad, held in the year 2011. 3. The present dispute arose out of an election for Jehanabad Zila Parishad, wherein the writ petitioner-appellant herein, namely, Baijnath Yadav, along with respondent No. 6 herein, namely, Rekha Devi, and others filed their nomination papers for contesting the election of Member of Ratani Part II Constituency and polling for the same was held. The counting of votes took place between 14.05.2011 and 16.05.2011 at V. T. School Campus, Jehanabad, and the said counting was held in presence of the authorized counting agents of the respective candidates and the Returning Officer. The counting proceeded peacefully; but during the last round of counting, objections were raised alleging illegalities being committed in the counting. The counting agent of Smt. Rekha Devi, one of the candidates, lodged, according to respondent No. 6 herein, protest with the Returning Officer; but on receiving no response from the Returning Officer to the oral objection so raised, a petition was filed before the Election Officer of Ratani Constituency alleging that the counting of votes could not be observed properly by the election agents and counting was done collusively to favour the appellant herein. 4. 4. It was alleged by Rekha Devi (i.e., respondent No. 6 herein) that on account of such illegal counting, the result was declared and Baijnath Yadav (i.e., the appellant herein) was declared to have received 2939 votes as against Rekha Devi (i.e., respondent No. 6 herein), who was declared to have received 2898 votes and, thus, Baijnath Yadav (i.e., the appellant herein) was declared as having won the election by a margin of 41 votes and even the Election Officer, as alleged by respondent No. 6 herein, Rekha Devi, took no steps to the objection so raised. 5. Being aggrieved by such declaration of result, Rekha Devi filed Election Case No. 4 of 2011, on 07.06.2011, mentioning, in detail, the alleged illegalities committed in the counting including the alleged non-counting of the valid votes in her favour and putting them in a bundle of invalid votes in respect of several booths including that of Narayanpur Panchayat, which was under the said constituency. She further prayed for recounting of votes and, upon recounting, to set aside the election of the returned candidate and declare her as the returned candidate of the said constituency. 6. In the Election Case No. 4 of 2011, the appellant herein, Baijnath Yadav, who was the returned candidate, filed his written statement. The written statement was also filed by the official respondents and evidence was recorded. 7. On 27.08.2013, a petition was made by the election petitioner, Rekha Devi, before the learned Election Tribunal, seeking recounting of votes cast at the polling booths of Narayanpur Panchayat Constituency. By the petition, so made, Rekha Devi urged before the learned Tribunal that: (i) a prima facie case for recounting had been made out; (ii) objection had been raised by her counting agent during counting; (iii) the materials on record prove the illegalities committed in the counting of votes; and (iv) the recounting of votes, polled at the booths of Narayanpur Panchayat, would not amount to a roving and fishing enquiry. 8. Taking note of the aforementioned petition, the appellant herein, being the returned candidate, filed his objections to the said petition. The parties were heard on the said petition and the official respondents filed a rejoinder stating that they had no objection to the recounting of votes. 9. 8. Taking note of the aforementioned petition, the appellant herein, being the returned candidate, filed his objections to the said petition. The parties were heard on the said petition and the official respondents filed a rejoinder stating that they had no objection to the recounting of votes. 9. The learned Tribunal, upon hearing the parties, issued, by its order, dated 04.09.2013, directions for recounting of votes of the entire constituency. The learned Tribunal further directed that the said recounting be done by an Advocate Commissioner in the presence of the parties and their respective lawyers. It is relevant to mention that all election materials and ballot boxes of the aforementioned election had been called for by the learned Tribunal and was kept in its custody. 10. Being aggrieved by the order, dated 04.09.2013, passed in Election Case No. 4 of 2011, directing recounting of votes by the Advocate Commissioner of the entire constituency, the returned candidate preferred writ petition, bearing CWJC No. 19640 of 2013, wherein the election petitioner, Rekha Devi (i.e., respondent No. 6 herein), too, appeared and filed counter affidavit therein. In the counter affidavit, Rekha Devi, respondent No. 6 herein, confined her prayer for recounting of booth of only Narayanpur Panchayat and not the whole constituency. The learned single Judge, accordingly, disposed of the writ application upholding the order of the learned Tribunal and modified the order of recounting of votes of only Narayanpur Panchayat and not of the whole constituency. 11. Aggrieved by the order of the learned single Judge, upholding partly the order of the learned Tribunal and directing recounting of votes of only Narayanpur Panchayat, the appellant herein has preferred the present appeal. 12. We have heard learned counsel for the appellant and also learned counsel for respondent No. 6. So far as the official respondents are concerned, they have expressed that they have no objection to the recounting of votes so as to maintain the purity of the election process. 13. Learned counsel for the appellant herein has submitted that the order impugned is against the settled view of the Courts, as laid down in a catena of decisions, inasmuch as counting of votes can be permitted only if a prima facie case is established in an election dispute. 13. Learned counsel for the appellant herein has submitted that the order impugned is against the settled view of the Courts, as laid down in a catena of decisions, inasmuch as counting of votes can be permitted only if a prima facie case is established in an election dispute. The further submission of the appellant herein is that the learned Tribunal has seriously erred in issuing directions for recounting of votes of Narayanpur Panchayat by an Advocate Commissioner, appointed by the learned Election Tribunal, though this Court has already held that recounting of votes cannot be done by Advocate Commissioner. The contention of the appellant herein is that the election petitioner had never filed any petition for recounting of votes of only Narayanpur Panchayat and, therefore, without amending the relief, which had been sought for by the election petitioner, no order of recounting could have been made, more so, when the election petitioner had failed to bring on record specific evidence regarding commission of illegalities and irregularities in the counting of votes of Narayanpur Panchayat. It is also contended by the appellant herein that no candidate, other than the election petitioner, had expressed any grievance either against the counting or the declaration of results of Ratani Part II Zila Parishad constituency, Jehanabad, and, hence, the order of the learned Election Tribunal, as also the order of the learned single Judge, passed, in CWJC No. 19640 of 2013, are not sustainable in law. 14. The appellant has further contended that for maintaining an application under Rule 79 of Bihar Gram Panchayat Election Rules, 2006, one must make a written application to the Returning Officer, or the officer authorized by him/or, for recounting of votes, stating therein the grounds for the same, but the election petitioner had given no material facts in her election petition nor had the Returning officer or the officer authorized by him/her given any reason for accepting the application seeking recounting as envisaged by sub-Rule (2) of Rule 79 of Bihar Gram Panchayat Election Rules, 2006. In this context, learned counsel for the appellant herein has referred to a decision of this Court in Hoshila Tiwary v. State Of Bihar, reported in 2004 (3) PLJR 513 , wherein the scope of an application, made under Rule 79 of Bihar Gram Panchayat Election Rules, 2006, has been discussed and explained as follows: “9. In this context, learned counsel for the appellant herein has referred to a decision of this Court in Hoshila Tiwary v. State Of Bihar, reported in 2004 (3) PLJR 513 , wherein the scope of an application, made under Rule 79 of Bihar Gram Panchayat Election Rules, 2006, has been discussed and explained as follows: “9. Rule 79 of the Rules, inter alia, provides for recounting of the votes, same reads as follows :- “79, Recounting of votes.- (1) The candidate or in his absence his election agent or counting agent may file a written application to the Returning Officer or the Officer authorised by him for recounting of votes stating therein grounds for the same. (2) The Returning Officer or the Officer authorised by him may fully or partially accept or reject the application stating the reasons for the same. (3) If the Returning Officer or the Officer authorised by him accepts fully or partially the application under Sub-rule (3) then he will get the ballot-papers recounted and amend the result of the counting in the form prescribed in Sub-rule (2) of Rule 76 and declare the result. (4) After that no application for recounting will be entertained again. 15. Learned counsel for the appellant herein, in support of his submission that the learned Tribunal ought to be satisfied that a prima facie case is made out before recounting is directed and must give a clear finding, in this regard, which is wanting in the present case, has referred to the decision of the Supreme Court in R. Narayanan v. S. Semmalai ( AIR 1980 SC 206 ). The relevant observations, made by the Supreme Court, in R. Narayanan (supra), read as under: “19. The law on the subject is absolutely clear and while the learned Judge had relled on some of the decisions of this Court he has failed to apply them correctly to the facts and circumstances of this case. On the question of recount as far back as in the case of Ram Sewak v. Hussain Kamil, (1964) 6 SCR 238 this Court pointed out as follows :- “But the Election Tribunal is not on that account without authority in respect of the ballot papers. On the question of recount as far back as in the case of Ram Sewak v. Hussain Kamil, (1964) 6 SCR 238 this Court pointed out as follows :- “But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers.” “An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled. (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection”. “Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the light of the provisions of Section 83 (1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered.” To the same effect is a later decision of this Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 . In the case of Jitendra Bahadur Singh v. Krishna Behari, (1970) 1 SCR 852 this Court observed as follows :- “In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures/from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information? It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition”. “The trial court correctly came to the conclusion that before an order of inspection of the ballot papers can be made it must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations”. 16. It did say that it was so satisfied but it gave no reasons whatsoever as to how it came to be satisfied. A judge can be satisfied only on the basis of proof and not on the basis of mere allegations”. 16. Countering the decision of the learned Tribunal to permit recounting in the presence of an Advocate Commissioner, it is further submitted, on behalf of the appellant herein, that recounting of votes, as a matter of course, has been disapproved in Raj Kumar v. Bihar State Election, Commission, reported in 2004 (4) PLJR 225 , wherein this Court, in paragraph 7, has clearly stated as follows: “7. In the opinion of this Court, the order passed by the Court below is patently illegal and violates the very requirement of the election law. When an allegation is made by somebody that the votes were not properly counted, there was bogus voting and there was mistake of identity, then such evidence should be brought on the record and the trial court should record a finding even on preponderance of probability that the allegations made by the election petitioner in fact are proper and stand proved. Simply on the basis of some submissions made by a defendant who does not appear in the witness box the court below cannot record a finding that the secrecy of the votes should be violated in the manner like this. Even otherwise, the order of the court below cannot be approved because the Court below has directed that the ballot box be opened and votes be examined by two counsel. Under the law, the votes were to be counted and examined/checked by the Presiding Officer of the Court himself. It is a judicial act and it cannot be delegated to a counsel. 17. The respondent No. 6 herein, Rekha Devi, has seriously contested the appeal and supported the order of the learned single Judge. It has been urged, on behalf of the election petitioner, that on account of illegalities committed in the counting of votes, she was defeated by a margin of 41 votes, though objections were raised by her counting agent during the course of counting. It has been urged, on behalf of the election petitioner, that on account of illegalities committed in the counting of votes, she was defeated by a margin of 41 votes, though objections were raised by her counting agent during the course of counting. It is urged, on behalf of respondent No. 6 herein, Rekha Devi, that in Election Case No. 4 of 2011, she had clearly stated the illegalities committed in the counting, which included non-counting of the valid votes, polled in her favour and also her allegation of putting valid votes, cast in her favour, in the bundle of invalid votes in respect of several booths including that of Narayanpur Panchayat of the Constituency, in question. It was averred, in the election case, that the Authorized Returning Officer, Ratni Faridpur Block cum Circle Officer, Modanganj (Opposite party No. 4 in Election Case No. 4 of 2011) in collusion with Opposite party No. 5 (i.e. the appellant herein), had indulged in widespread bungling in counting and, despite protests by respondent No. 6 herein, the appellant herein was declared as the returned candidate from the Constituency. The respondent No. 6 herein further submitted that it was in the background of such illegalities that she was constrained to file Election Case No. 4 of 2011 with prayer for recounting and, upon recounting, to set aside the election of the returned candidate. 18. The submission, thus, on behalf of respondent No. 6 herein (i.e., the election petitioner), is that all the material facts, which were required to make out a prima facie case in favour of recounting, had been placed before the learned Tribunal and it had been specifically averred, in the election case, that objection, with regard to illegalities committed in the process of recounting, had been raised during course of counting and even thereafter. The further submission on behalf of respondent No. 6 herein is that material illegalities, in conducting the counting process, were highlighted in the election case, written statement was filed by the official respondents as well as by the returned candidate, evidence was adduced by the parties concerned and having heard the parties in contest, the recounting was allowed. 19. It is contended, on behalf of the appellant, that it was only after due consideration of all aspects of the matter that the learned Tribunal had ordered recounting of votes of the entire Constituency. 19. It is contended, on behalf of the appellant, that it was only after due consideration of all aspects of the matter that the learned Tribunal had ordered recounting of votes of the entire Constituency. Learned counsel for the election petitioner (i.e., respondent No. 6 herein) also contended that they had filed a petition, dated 27.08.2013, before the learned Tribunal for recounting of votes cast in the booths of Narayanpur Panchayat of the Constituency and objection was also filed by the returned candidate to the said petition seeking recounting. However, the official respondents filed their rejoinder stating therein that they had no objection to the recounting of votes and it was only after hearing all the parties that the learned Tribunal, by its order, dated 04.09.2013, directed recounting of votes taking into consideration and noticing the decisions in Chandrika Prasad Yadav v. State of Bihar & Others, reported in 2004 (3) PLJR 133, wherein this Court has observed as follows: “20. It is well-settled that an order of recounting of votes can be passed when the following conditions are fulfilled. (i) A prima facie case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) An objection to the said effect has been taken recourse to. 20. It is submitted, on behalf of respondent No. 6 herein, that the learned Tribunal, upon considering all aspects of the matter, came to the finding that a prima facie case had been made out and all conditions for ordering recounting of votes had been satisfied by the election petitioner and it was, then, that the recounting was directed. 21. In support of the above contention, learned counsel for respondent No. 6 herein has also drawn the attention of this Court to a decision in Chandrika Prasad Yadav v. State Of Bihar, reported in (2004) 6 SCC 331 , as well as a decision of this Court in Shahabuddin And Etc. v. State Of Bihar, reported in 2006 (1) PLJR 91 , wherein it has been maintained that in a case of a dispute between maintaining secrecy of votes and purity of election, the latter should prevail. 22. We have heard learned counsel for the appellant and also learned counsel for the respondents including the Election Petitioner and the Election Commission. 23. 22. We have heard learned counsel for the appellant and also learned counsel for the respondents including the Election Petitioner and the Election Commission. 23. In order to ascertain sustainability of the submissions advanced by the learned counsel for the appellant, this Court has taken note of the material facts pleaded in the election petition, which was appended to the writ application, i.e., Annexure 1 to the writ application. In para 7 of the said election petition, the respondent herein has brought on record the material facts, which were placed before the Returning Officer, who was engaged in counting of the votes and bringing to their notice the illegalities committed in the counting of votes. It has been submitted, in the election petition, that at the time of counting of votes, such illegalities were brought to the notice of the Returning Officer, whereupon several letters, regarding illegalities committed during the course of recounting, were issued bearing letter No. 32, dated 25.5.2011, written by the Observer - cum - District Collector, Jehanabad, as also letter No. 622, dated 26.5.2011, written by Senior Deputy Collector addressed to the District Returning Officer. In paragraph 10 of the said election petition, the election petitioner had pointed out to opposite party No. 4, i.e. the Returning Officer, Ratani Faridpur Block - cum – Circle Officer, Modanganj, that there was bunglings in the counting of votes and that the same be recounted in presence of the contesting candidates. It was also alleged by the election petitioner that the opposite party No. 4, by abusing his official position, had committed illegalities in the counting of votes, which had materially affected the result of the election. 24. In the wake of such averments having been made in the election petition, it is apparent that the election petitioner had made out a prima facie case for recounting of votes before the Election Commission and that all material facts, relating to irregularities committed in the counting of votes, had been placed before the concerned authorities during the course of the counting itself and it was on the basis of such materials having been placed before the learned Tribunal that the learned Tribunal proceeded to issue directions for recounting of votes of Narayanpur Panchayat. The learned single Judge, while considering the case, has taken note of the findings arrived at by the learned Tribunal that the election petition contained sufficient materials making out a prima facie case for recounting of votes. The learned Single Judge, while considering the case and the decision of the learned Tribunal directing recounting of votes, has noticed that the learned Tribunal directed recounting after being fully satisfied, on consideration of the submissions of the parties and in the light of the evidence adduced in support thereof, that a prima facie case for recounting had been made out. Having noticed these findings, the learned Single Judge upheld the finding and declined to interfere with the decision arrived at by the learned Tribunal. The only alteration made by the learned Single Judge is that the recounting of ballot papers was restricted to those booths only, which fell within the Narayanpur Panchayat of the constituency. 25. A counter affidavit has been filed, in the writ petition, by the Circle Officer of Modanganj, Jehanabad, and at paragraph 9 of the said counter affidavit, it has been admitted that the counting agent of Rekha Devi had filed a petition before the Returning Officer, which was rejected, and, therefore, the election petitioner filed Election Case No. 4 of 2011 giving details of the illegalities committed during the course of counting and the learned Tribunal, upon due consideration of the materials available on record and upon considering the written statements filed by the returned candidate and also the official respondents of the Election Case No. 4 of 2011, came to the finding that it was a fit case, wherein the election petitioner had established her grievances and made out a prima facie case for recounting of votes. Further-more, the learned Tribunal came to the finding that it had been well proved that objections had been raised during the course of counting itself by the election petitioner and that the recounting, if ordered, would not amount to a roving enquiry as all conditions for such a decision had been satisfied in the facts and circumstances of the case. 26. While hearing the appeal earlier, it had been ordered that the directions of the learned Single Judge be proceeded with and the counting be held, but the result of the recounting be not given effect without obtaining leave of this Court. 27. 26. While hearing the appeal earlier, it had been ordered that the directions of the learned Single Judge be proceeded with and the counting be held, but the result of the recounting be not given effect without obtaining leave of this Court. 27. Having heard learned counsel for the appellant and learned counsel for respondent No. 6 and other respondents and upon perusal of the materials on record and after considering the rival submissions, we find that the order of the learned Single Judge does not suffer from any infirmity, factual or legal. We, therefore, see no reason to interfere with the orders impugned in this appeal. 28. As we find the present appeal devoid of any merit, we dismiss the appeal.