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2014 DIGILAW 456 (PAT)

Renu Devi v. State Of Bihar

2014-04-15

KISHORE KUMAR MANDAL

body2014
ORAL ORDER Aggrieved by the judgment and order dated 14.01.2013 passed by learned Sub-Judge-IV-cum-the Election Tribunal (hereinafter referred to as Election Tribunal) in Election Case No. 110 of 2011 (Annexure-1), the petitioner (respondent in the said Election Petition) has filed the present writ application seeking appropriate writ/order for quashing the entire election case pending before the Election Tribunal. According to the petitioner, continuance of the said proceeding is sheer abuse of the process of the law. By the said order, the Tribunal, on the consideration of the materials placed before it, both oral and documentary, came to the conclusion that the election petitioner, respondent no. 7 herein, had made out a case for recounting of the ballot papers and thus directed for recounting of the same in open Court in presence of the parties or their counsels. 2. The relevant facts briefly be noticed for appreciating the submissions of the parties. 3. The petitioner as well as Respondent No. 7 contested election for being elected Member of the Zila Parishad, Bettiah from Gaunaha Anchal of West Champaran. Apart from the petitioner and Respondent no. 7, eight other candidates had filed their nomination papers and contested the election. The voting had taken place on 09.05.2011 and the counting was made between 21.05.2011 to 23.05.2011. The result of the election was announced on 23.05.2011. The petitioner herein had secured 8524 valid votes whereas the Respondent no. 7 had bagged 8394 valid votes. Other candidates had also polled valid votes the details whereof is not necessary to be noticed. The petitioner was accordingly declared elected by a margin of 130 votes. The Respondent no. 7 thereafter filed the election petition before the Election Tribunal giving rise to Election Petition No. 110/2011. A copy of the election petition is enclosed as Annexure-5. The Respondent no. 7 prayed the following relief(s): “It is, therefore, prayed that your honour would be pleased enough to allow this application with specific direction to election officials for re-counting the entire polled votes including the rejected votes of the member of Zila Parishad a fresh in the presence of either authorised agents or the parties and thereafter to declare the result a fresh and in the meantime this O.P. no. 6 may not be either allowed to take oath or from discharging any official work and to that effect a rule of law be passed in the manner not to destroy the ballot papers and to deposit the same in the court custody the matter is finally disposed off in accordance with law.” 4. On going through the election petition, it appears that an issue with regard to unfair counting of vote(s) was raised by the petitioner. In paragraphs 10 and 11 of the election petition, the Respondent no.7 asserted as under:- “10. That after knowing the unethical, illegal and in most arbitrary manner of the Returning Officer in the matter of the Returning Officer in the matter of unfair counting of votes, the petitioner made protest before and after the election to election office; under the Act for taking an appropriate action in the matter of considering for recounting of votes but none of them entertained the petitioner’s request. 11. That the election officer turned down the petitioner’s request without giving any direction on the point of unfair counting of votes, giving rise to the instant case.” 5. It is further noted that in the election petition (Annexure-5), the Respondent no. 7 had only impleaded the returned candidate (the writ petitioner) as Respondent no. 6 besides the official respondents. Written submissions were filed by the petitioner as well as the official respondents. The Election Tribunal on appreciation of evidence found that the petitioner and/or her husband had in fact filed applications for recounting vide Exts. A and A/1 and in the light whereof recounting of certain booths were made by the Returning Officer and the petitioner showed her satisfaction. However, the Tribunal came to a different conclusion that there is no material that based on Exhibit A, it can be said that the husband of the Respondent no. 7, who was also the election agent, was satisfied with the recounting of the entire polled votes at all the booths. Accordingly, the said order was passed which is assailed in the present writ application. 6. Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioner has made two fold submissions. It has been stated that the petitioner has not approached the Tribunal with clean hands inasmuch as she suppressed important facts obviously to mislead the Court. Accordingly, the said order was passed which is assailed in the present writ application. 6. Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioner has made two fold submissions. It has been stated that the petitioner has not approached the Tribunal with clean hands inasmuch as she suppressed important facts obviously to mislead the Court. In a matter like election dispute, the purity of the election cannot be permitted to be abused on frivolous grounds. He has relied in this regard on an order passed by a Division Bench of this Court in L.P.A. No. 1587 of 2013 (Sunita Kumari versus The State Election Commission and Others) copy whereof has been handed in by the Counsel which is taken on record and marked “X” for identification. It is next contended that the proceeding before the Election Tribunal in the shape and form it was presented was fit to be rejected on the ground that the election petitioner had failed to implead all the contesting candidates as party respondents to the said election petition. In an election petition where relief, as noticed above, has been prayed, it was incumbent upon the election petitioner to implead all the contesting respondents as parties to the said proceeding. He has relied in this regard on Rule 106 of the Bihar Panchayat Election Rules and on an order passed by this Court in Md. Zakir Hussain versus Hareshwar Prasad Singh since reported in 2001 (4) P.L.J.R. 713 . 7. Learned counsel for the contesting respondent, on the other hand, has contended that the petitioner had earlier filed a writ application before this Court against an order passed on her application seeking rejection of the election petition. The same was permitted to be withdrawn by an order dated 13.03.2012 (Annexure-11) allowing the petitioner to raise objection in this regard during the hearing of the case. It is next contended that recounting of the ballot papers will neither prejudice the petitioner or the respondent. He further urged that the matter has not finally been concluded by the Election Tribunal. Under the impugned order, only recounting of the ballot papers has been directed. The respondent has thus supported the impugned order. 8. Learned counsel for the petitioner, in reply, submitted that the relief which was prayed for has already been granted by the learned Election Tribunal. Under the impugned order, only recounting of the ballot papers has been directed. The respondent has thus supported the impugned order. 8. Learned counsel for the petitioner, in reply, submitted that the relief which was prayed for has already been granted by the learned Election Tribunal. It is only the declaration of result in the light of recounting is to be made which would be formal in nature. It is, thus, incorrect to say that the election petition, till date, has not been finally decided by the Election Tribunal. 9. I have considered the submissions of the parties and perused the materials on record. 10. In the election petition, the election petitioner (Respondent no. 7) had categorically taken a stand that an application for recounting was filed by the husband of the petitioner who was also her election agent but the same was not allowed. The Tribunal in course of the hearing of the matter found that in fact application(s) were filed by either the petitioner or her husband (Election Agent) marked as Exts. A and A/1. It is the categorical stand of the writ petitioner relying on Annexures-2 to 4 that on an application filed by the election agent of the election petitioner (Respondent no. 7 herein) for recounting such recounting of votes of several booths was made whereafter she expressed her satisfaction inasmuch as sought to withdraw her objection filed in this regard. Election reflects the will of the people. The purity of the process cannot be lightly interfered at the behest of an unsuccessful candidate. If any objection is filed in course of counting/requesting/recounting of the ballot papers, the Election Officer can accept either in whole or in part the same or reject the same with reasons assigned. In the case at hand, the objection of the election petitioner was accepted by the Election Officer and recounting in part was allowed and in fact recounting of the votes was made and only thereafter result of the election was announced. The respondent expressed her satisfaction. Reverting to the election petition, as noticed above, it is seen that the election petitioner specifically asserted that although such application for recounting was filed but the same was not allowed. This was a deliberate/incorrect statement of a material fact to the knowledge of the election petitioner. The respondent expressed her satisfaction. Reverting to the election petition, as noticed above, it is seen that the election petitioner specifically asserted that although such application for recounting was filed but the same was not allowed. This was a deliberate/incorrect statement of a material fact to the knowledge of the election petitioner. Narrow margin of 130 votes by which the petitioner was declared elected cannot be a ground to abuse judicial process. The Court has to ensure purity of the election until it is otherwise satisfied that there has been a large scale illegalities vitiating either the election process or the process of counting of votes. This Court would note hereinbelow relevant observation made by the Apex Court in the case of Baldev Singh Mann v. Surjit Singh Dhiman since reported in (2009) 1 SCC 633 : “25. In the instant case, the respondent won by less than 1000 votes out of nearly 70,000 polled votes. In the impugned judgment, it is aptly observed that a candidate who loses by such a slight margin finds it hard to accept defeat. Therefore, the candidate who has narrowly lost would ordinarily make all efforts and gather all kinds of material against the elected candidate and level all kinds of allegations of corrupt practices whether substantiated or not…...” 11. The counsel for the petitioner has rightly relied on the order passed by a Division Bench of this Court in L.P.A. No. 1587 of 2013 marked “X” where considering these two aspects of the matter, the appeal was dismissed and the relief was denied. 12. Adverting to the next submission of the petitioner, it appears the respondent no. 7 in her election petition not only prayed for recounting of the ballot papers but also prayed for declaration of result of the candidate who after such recounting is found to have secured the highest number of votes. The petitioner, in view of the aforesaid relief, was required to implead all the contesting candidates as party to the election petition which has not been done by her. If the said preposition is answered in affirmative then the election petition itself filed by the respondent no. 7 was fit to be rejected. 13. Rule 106 of the Bihar Gram Panchayat Election Rules, 2006 in this regard requires particular attention. If the said preposition is answered in affirmative then the election petition itself filed by the respondent no. 7 was fit to be rejected. 13. Rule 106 of the Bihar Gram Panchayat Election Rules, 2006 in this regard requires particular attention. The same is extracted hereinbelow: “106 Election Petition:- An Election petition against any elected candidate may be filed under Section 137 of the Act before the prescribed Court within (30) thirty days of the declaration of the election results. (2) The following may be joined as respondents by the petitioner to his/her election petition:- (a) Where the petitioner, claims to declare the election of all or any of the returned candidate as void in addition to his/her claim for any other candidate to be legally elected, in such a case all the contesting candidates other than the petitioner; and where no additional claim has been made, all the candidates, and (b) Any other candidate against whom allegation of any corrupt practices are made in the petition.” 14. It is thus manifests that where the election petitioner seeks to declare the election of the returned candidate as void and further prays to declare her or any other contesting candidate as duly elected candidate after recounting, the law enjoins the election petitioner to implead all the contesting candidates other than the petitioner as party to the election petition. To conclude on this point, it is held that the respondent no. 7 was obliged to implead all the contesting candidates as party to the election petition. This Court had an occasion to deal with said aspect of the matter in the light of aforesaid provision in the case of Md. Zakir Hussain (supra) and held as under in paragraph nos. 11 and 14 thereof: “11. True it is that the general law says that the plaintiff is dominus-litis and is entitled to join the party of his own choice but this right of the plaintiff is not absolute. The opposite party in a civil suit can always raise an objection regarding misjoinder or non-joinder of the party. The question relating to misjoinder of the parties cannot be equated with non-joinder of the parties as the same does not affect the jurisdiction of the court and the court at the time of final disposal of the matter may not award any relief to the plaintiff against the persons unnecessarily joined. The question relating to misjoinder of the parties cannot be equated with non-joinder of the parties as the same does not affect the jurisdiction of the court and the court at the time of final disposal of the matter may not award any relief to the plaintiff against the persons unnecessarily joined. But in a case of non-joinder of a person required to be joined as a party, the court would be left with no option but to dismiss the suit because no effective decree or order can be passed in such a matter. 14. Once the plea of the election petitioner, that results of the election were adversely affected because of wrong counting or wrong rejection of the votes, is accepted and the court proposes to infringe the secrecy of the franchise, then, not only the votes cast in favour of the election petitioner are to be recounted but the votes cast in favour of the other candidates will also have to be seen. Today no body knows about the final result of the election petition. In a case like present where the election petitioner has made allegation of corrupt practices and has also asked for recounting of the votes. In the opinion of this Court every person who contested the election would be necessary party.” 15. Bearing in mind the aforesaid legal principles, if I turn to the Election Petition (Annexure-5), it is found that except the returned candidate no other contesting candidate in the said Election Petition was made party to the Election Petition. If that be so, then the learned Court below could not have proceeded further to examine the grievance of the election petitioner and pass the order for recounting of the votes. This Court feels no difficulty in view of the materials on record to conclude that the Election Petition in the form and shape it was presented seeking the relief(s), as noticed above, was fit to be rejected on the ground of non-joinder of the necessary parties to the Election Petition. The fundamental defect in the election petition cannot be cured at this stage. For the aforesaid reasons, I find considerable substance in the submission of the petitioner that the order impugned in the writ petition as well as the Election Petition itself is/are fit to be quashed/rejected. 16. The fundamental defect in the election petition cannot be cured at this stage. For the aforesaid reasons, I find considerable substance in the submission of the petitioner that the order impugned in the writ petition as well as the Election Petition itself is/are fit to be quashed/rejected. 16. In this context, the submission of the respondent that earlier an application filed on behalf of the petitioner for rejection of plaint under Order 7 Rule 11 of Election Petition having been dismissed by the Election Tribunal and on challenge affirmed by this Court by order dated 13.03.2012 merits to be taken note of only to be rejected. Any defendant to the suit or the Election Petition may raise diverse issues of fact and law. It appears the petitioner had filed an application seeking rejection of the Election Petition on the ground that the pleadings therein were only vague statements of material facts. The same was rejected by the Election Tribunal. However, this Court in the writ proceeding arising therefrom vide order dated 13.03.2012 (Annexure-11) had permitted the petitioner to raise all legal issues during the hearing of the case. Even otherwise non-joinder of necessary party goes to the root of the dispute and disables the Election Tribunal from granting the effective relief(s). In absence of other contesting respondents, the relief prayed for in the application for recounting of ballot papers and declaration of result afresh could not have been allowed. If an issue to this effect is raised, the Court is only required to peruse the Election Petition and the relief(s) prayed therein. No evidence is required. The said contention of the respondent is, therefore, not sustainable in law. 17. For the reasons aforenoted, the application is allowed. The order dated 14.1.2013 passed by learned Election Tribunal in Election Case No. 110 of 2011 (Annexure-1) is quashed and set aside. The Election Petition filed by Respondent No. 7 giving rise to the aforesaid case is also rejected. 18. There shall be no order as to costs.