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CASE NO.: Appeal (civil)  1999 of 2003

PETITIONER: Chandrika Prasad Yadav

RESPONDENT: State of Bihar & Ors.

DATE OF JUDGMENT: 05/04/2004

BENCH: CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT: J U D G M E N T

With Contempt Petition (Civil) No. 174/2003

S.B. SINHA, J:

       The extent of jurisdiction of election tribunal to  direct recounting of votes is the primal question involved  in this appeal which arises out of a judgment and order  dated 18.11.2002 passed by a Division Bench of the High  Court of Judicature at Patna in L.P.A. No. 1149/2002  dismissing the appeal arising out of an order dated  7.10.2002 passed in Writ Petition marked as CWJC No.  5004/2002 whereby and whereunder a learned Single Judge of  the High Court allowed the writ petition filed by the  respondent herein questioning an order of the election  tribunal dated 20.10.2001.

BACKGROUND FACTS:

       The private parties hereto contested an election for  the post of Mukhiya of Raj Gamhariya, Gram Panchayat.  The  said election was held on 19.4.2001 and the votes polled  therein were counted on 20.5.2001.  The contention of the  appellant was that the returning officer had informed him  that he had secured 900 votes out of which 150 had been  declared invalid and, thus, he got 670 valid votes whereas  the respondent Mahendra Rai had secured only 622 votes.   However, when the result was finally declared on 21.5.2001,  the 4th respondent herein was declared elected by securing  allegedly 32 more votes than the appellant herein.  The  total votes polled by the appellant was shown as 670 and  votes polled by the 4th respondent was shown as 702.   

       The appellant allegedly moved an application for  recounting of votesbefore the returning officer but the same  was not entertained.  The appellant thereafter filed an  election petition questioning the election of the 4th  respondent herein before the learned Munsif, Raxoul, East  Champaran primarily on the ground of irregularities in  counting of votes.  Before the election tribunal, the  parties adduced their respective evidences whereafter the  learned Munsif by an order dated 20.10.2001 directed  inspection and recounting of ballot papers; pursuant to or  in furtherance whereof the Returning Officer, East Champaran  was directed to produce the ballot papers.  

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       Aggrieved thereby and dissatisfied therewith, a writ  petition was filed by the 4th respondent herein which was,  however, withdrawn.  Recounting of the ballot papers was  held on 23.3.2002 as a result whereof the appellant was said  to have secured 671 votes; whereas the 4th respondent  secured 667 votes.  The Election Petition, therefore,  thereafter was allowed by a judgment and order dated  6.4.2002.  The 4th respondent being aggrieved by and  dissatisfied therewith filed a writ petition before the  Patna High Court which was marked as CWJC No. 5004/2002.  By  an order dated 7.10.2002, the said writ petition was allowed  whereagainst a Letters Patent Appeal was filed by the  appellant herein which was dismissed by a Division Bench of  the High Court. Hence this appeal by special leave.

SUBMISSIONS:

       Mr. Amarendra Sharan, learned senior counsel appearing  on behalf of the appellant would submit that the High Court  committed a manifest error in passing the impugned judgment  purporting to rely upon or on the basis of the decision of  this Court in Ram Rati (Smt.) Vs. Saroj Devi and Others  [(1997) 6 SCC 66] wherein it has been held that it is  mandatory for the election petitioner to file an application  for recounting of votes before the returning officer in  terms of the election rules, although the same has since  been overruled by a 3-Judge Bench of this Court in Sohan Lal  Vs. Babu Gandhi and Ors. [JT 2002 (9) SC 474: (2003) 1 SCC  108].

       The learned counsel would urge that as in a democracy  the rule of majority should prevail, the learned Munsif was  within his jurisdiction to direct recounting of votes upon  satisfying itself the necessity therefor and in that view of  the matter the High Court should not have interfered with  the said judgment.   

       Mr. Sharan would submit that the learned Munsif had  assigned valid and cogent reasons in support of his order  upon taking into consideration the pleadings of the parties  and the evidences brought on records and in that view of the  matter the High Court erred in setting aside the same.   

       Mr. Rakesh Dwivedi, learned senior counsel appearing on  behalf of the 4th respondent, on the other hand, would  contend that the High Court has rightly proceeded on the  premise that the pleadings of the appellant being vague and  general in nature, no case was made out for recounting of  votes.  The learned counsel pointed out that prayer for  recounting of votes made by the appellant was on the basis  that he had filed a proper application before the returning  officer but he failed to prove the said fact nor brought on  the records of the case a copy thereof.  As regard the  findings of the learned Munsif to the effect that the Ex.  A/20 contained cutting and over-writing, the learned counsel  would submit that no such case had been made out in the  election petition.  It was pointed out that in any event  having regard to the fact that 100 valid votes had not been  counted so far as the appellant is concerned; and in fact  more than 400 votes polled by the 4th respondent herein  were held to be not valid and, thus, the appellant herein  was not prejudiced at all.   

       Drawing our attention to the judgment of the learned  Single Judge as also the Division Bench of the High Court,

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the learned counsel would urge that the High Court analysed  the pleadings of the appellant made in his election petition  and came to the conclusion that the same are absolutely  vague and general in nature and no reliance thereupon could  have been placed by the learned Munsif.  Filing of an  application before the returning officer for recounting of  votes may not be mandatory but Mr. Dwivedi would aruge that  the same goes a long way to show that as to on what basis  the recounting was sought for.  The order of the returning  officer allowing or rejecting the same, the learned counsel  would contend, be of great assistance for the Election  Tribunal to judge the correctness thereof.

STATUTORY PROVISIONS:

       Section 140 of the Bihar Panchayat Raj Act, 1993  mandates that the election of Mukhiya shall not be called in  question before any forum except by way of an election  petition.  The State of Bihar in exercise of its power  conferred upon it under Section 121 of the said Act framed  rules known as Bihar Panchayat Election Rules.  It is not in  dispute that various provisions exist as regard rejection or  acceptance of votes and the right of a candidate or his  authorised agent to question the same by filing an  appropriate application therefor before the prescribed  authority.  Rule 79 of the Rules provides that the candidate  or in his absence his agent or his counting agent can file  an application to the election officer or the officer(s)  authorised by him praying for recounting and the basis  therefor.  On reciept of such an application, the election  officer can accept either in whole or in part the same or  reject the same wherefor reasons are required to be  assigned.  In the event of election officer accepting either  in whole or in part such a prayer of the candidate, he would  recount the votes whereafter the result or the number of  votes polled may be amended.  However, no application would  be accepted for further recounting.

ANALYSIS OF REUIREMENTS OF LAW :         The law relating to recounting of votes is now well- settled.  The provisions of the Act and the rules framed  thereunder provide that in relation to an election petition  the provisions of the Code of Civil Procedure would apply.   An election petition, therefore, must contain coincise  statement of material facts.  It is well-settled that the  question as to what would constitute material facts would  depend upon the facts and circumstances of each case.

       We have been taken through the averments made in the  election petition.  The learned Single Judge of the High  Court in his judgment dated 7.10.2002 upon noticing  paragraphs 6 to 11 and 17 of the election petition held:

"10. From the pleadings of respondent  No. 4, it is manifest that the  allegations made by him were quite vague  and did not come up to the stringent  standards laid down by the Supreme  Court."

       The appellant has not produced before us a copy of the  affidavit affirmed in support of the Election Petition to  show as to how the averments made in the Election Petition  were verified.

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       Our attention has also been drawn to paragraphs 19 to  21 by Mr. Sharan which read as under:

"19. That, in all 16 Booths were in the  electoral area of Gram Panchayat Raj,  Gamhariya Kala, vide Booth No. 106 to  121.

20. That, the dependent No. 1 has  wrongly been declared elected, by a  margin of 32 votes, as against the  plaintiff.

21. That, as a matter of fact, the  plaintiff has got, near about 200 excess  valid votes than the defendant No. 1."

       The averments made in the said paragraphs do not  improve the appellant’s case inasmuch as therein also no  material fact has been averred as to how and in what matter  the so-called valid votes were kept out of consideration or  invalid votes had been taken into consideration.  The  appellant in paragraph 11 of the election petition  categorically stated that a request was made to the  returning officer for recounting of the votes but he did not  pay any heed thereto.  In the aforementioned situation, it  was obligatory on the part of the appellant to prove the  said fact.  The averments made in the election petition  clearly go to show that the appellant was aware of his right  to file an appropriate application before the returning  officer praying for a recounting.  If the said application  was not entertained, he should have proved the said fact by  bringing on record the original application which was  refused to be accepted or a copy thereof.  He should have  also adduced evidence in that behalf before the learned  Munsif.

In his order dated 20.10.2001, the learned Munsif held:

"In view of documentary as well as oral  evidence I find that there are  sufficient materials available on record  to show that allegation of petitioner,  about illegal reception of votes in  favour of opposite party and mischief in  preparation of result are clearly  evidence and euitch (sic) about  something hidden.  In Pvt (sic) 4/12  G.P. Mahendra Rai was shown to have got  81 votes but on the very first look of  form 20(A/12) shows that 31 was made 81  and in A/13 total votes 237 was changed  into figure 287.  There is no initial in  any cutting like wise in Ext. A/20  Mahendra Rai was shown to have got 509  votes but it was out (sic) and 122 votes  have been shown in favour of Mahendra  Rai.  There is no initial of any officer  on this cutting too.  In oral evidence  D.W.-9 and D.W.-12 have supported the  petitioner allegations."

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       The learned Munsif in his order dated 20.10.2001 failed  to analyse the evidences adduced by the parties.  He also  did not state as to what materials were brought on record to  show that there had been illegal reception of votes in  favour of the opposite party.  Reference to Ex. 4/12 only  shows certain interpolation but whether the same had  materially affected the result or not had not been taken  into consideration.

       Mr. Dwivedi is right in pointing out that whereas the  appellant could have claimed 100 more votes on the basis  thereof, 509 votes polled by the 4th respondent had been  brought down to 122 votes.  There is also nothing on record  to show that as to how and in what manner D.W.-9 and D.W.-12  had supported the allegations made by the petitioner.

       The learned Munsif despite having opined that an order  for inspection of ballot papers cannot be granted to support  vague pleas and not supported by material facts but failed  to point out as to which averments made by the appellant  could be accepted as disclosing material facts, on the basis  whereof an order for recounting could be passed. The said  order dated 20.10.2001 being not supported by any cogent or  valid reasons could not have been sustained.

       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.

       The requirement of maintaining the secrecy of ballot  papers must also be kept in view before a recounting can be  directed.  Narrow margin of votes between the returned  candidate and the election petitioner by itself would not be  sufficient for issuing a direction for recounting.

       In M. Chinnasamy Vs. K.C. Palanisamy & Ors. [2003 (10)  SCALE 103] this Court upon noticing a large number of  decisions held that it is obligatory on the part of the  Election Tribunal to arrive at a positive finding as to how  a prima facie case has been made out for issuing a direction  for recounting holding:

"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  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 any evidence  can be permitted to be adduced which is  at variance with the pleadings.  The

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court at a later 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."  

       It was further held that for the said purpose the  Tribunal must arrive at a finding that the errors are of  such magnitude which would materially affect the result of  the election.  As regard standard of proof, this Court held:

"The requirement of laying foundation  in the pleadings 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 of  recounting of votes must be of a very  high standard and is required to be  discharged. [See Mahender Pratap vs.  Krishan Pal and Others - (2003) 1 SCC  390].                               (See also Mukand Ltd. Vs. Mukand Staff & Officers  Association, JT 2004 (3) SC 474)

The order of the learned Munsif did not satisfy the  statutory requirements.  

RULE 79 OF BIHAR PANCHAYAT ELECTION RULES, 1995 \026 WHETHER  MANDATORY OR DIRECTORY

       Rule 79 as noticed hereinbefore enables a candidate to  file an appropriate application for recounting of votes.   Rule 79 unlike rules framed by other States does not say  that such an application would not be maintainable after  declarations of the votes polled by the parties or prior  thereto.  Such an application, therefore, can be filed at  any point of time.  The very fact that Sub-rule (3) of Rule  79 provides for amendment of the result relating to the  votes polled by the respective candidates and as, such  amended result is required to be announced in the prescribed  form under Sub-rule (2) of Rule 79, the same itself is a  pointer to the fact that even after announcement of result  for recounting an application would be maintainable.  It may  be true that only because such an application had not been  filed before the returning officer by itself may not  preclude the Election Tribunal to go into the question of  requirement of issuing a direction for recounting but there  cannot be any doubt whatsoever that Rule 79 serves a  salutary purpose.  Counting of ballot papers in terms of the  rules takes place in presence of the candidate or his  counting agent.  When an agent or a counting agent or the  candidate himself notices improper acceptance or rejection  of the ballot papers, he may bring the same to the notice of  the prescribed authority.  As noticed hereinbefore, in a  given case, an application for recounting either before  announcement of the result or thereafter, would be  maintainable.  Once an application is filed by an agent or a  counting agent or the candidate himself pointing out the  irregularities committed by the officers appointed for the

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counting the ballot papers, immediate redressal of  grievances would be possible.  As indicated hereinbefore,  while filing such an application the basis for making a  request for recounting of votes is required to be disclosed.   The returning officer is statutorily enjoined with a duty to  entertain such an application, make an inquiry and pass an  appropriate order in terms of Sub-rule (2) of Rule 79 either  accepting in whole or in part such requests or rejecting the  same wherefor he is required to assign sufficient or cogent  reasons.  In the event, such an application is allowed  either in whole or in part, he is statutorily empowered to  amend the results also.

       Ordinarily, thus, it is expected that the statutory  remedies provided for shall be availed of.  If such an  opportunity is availed of by the Election Petitioner; he has  to state the reasons therefor.  If no sufficient explanation  is furnished by the Election Petitioner as to why such  statutory remedy was not availed of, the Election Tribunal  may consider the same as one of the factors for accepting or  rejecting the prayer for recounting.  An order of the  prescribed authority passed in such application would   render great assistance to the Election Tribunal in arriving  at a decision as to whether a prima facie case for issuance  of direction for recounting has been made out.

       In Ram Rati (supra) a 2-Judge Bench of this Court while  interpreting Rule 76 of M.P. Panchayat Elections Rules, 1994  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 not 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..."

       A 3-Judge Bench, however in Sohan Lal (supra) while  considering the provisions of M.P. Panchayat Raj Avam Gram  Swaraj Adhiniyam, 1993 and the Rule 80 of the Rules framed  thereunder held:

"13. In view of Section 122 and the  rules, we are unable to agree with the  ratio laid down in Ram Rati’s case. It  is not correct to hold that, in an  election petition, after the declaration  of the result, the Court or Tribunal  cannot direct recounting of votes unless  the party has first applied in writing  for recounting of votes. There is no  prohibition in the Act or under the  rules prohibiting the Court or Tribunal  to direct a recounting of the votes.  Even otherwise a party may not know that  the recounting is necessary till after  result is declared. At this stage, it  would not be possible for him to apply

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for recounting to the Returning Officer.  His only remedy would be to file an  Election Petition under Section 122. In  such a case, the Court or the Tribunal  is bound to consider the plea and where  case is made out, it may direct recount  depending upon the evidence led by the  parties. In the present case, there was  obvious error in declaring the result.  We, therefore, hold that the ratio laid  down in Ram Rati’s case is not  correct."

       In Vadivelu Vs. Sundaram and Others [AIR 2000 SC 3230]  wherein this Court while considering a pari materia  provision contained in T.N. Panchayats Act, 1994 as also  upon noticing a large number of decisions observed:  "The appellant-election petitioner  could not make out a case for re-count  of votes. He filed the application for  re-count before the Returning Officer  only after the declaration of result and  that was rightly rejected by the  Returning Officer. The appellant had no  case that the illegality or  irregularity, if any, committed had  materially affected the result of the  election. Taking all the aspects into  consideration, we are of the view that  the learned Single Judge was perfectly  justified in holding that the Election  Tribunal erred in appointing a  Commissioner and ordering the re-count  of votes. The counsel for the appellant  contended that the powers of the  revisional court are not as wide as the  powers of the appellate court and,  therefore, the learned Single Judge  should not have set aside the order  passed by the Election Tribunal. We do  not find any force in this contention.  When there is error of jurisdiction or  flagrant violation of the law laid down  by this Court, by exercising the  revisional powers, the court can set  aside the order passed by the Tribunal  to do justice between the parties. The  illegality committed by the Election  Tribunal has been corrected by the  revisional order. We find no merit in  the present appeal and the same is  dismissed."

       Vadivelu (supra) was relied upon by the High Court and  in our opinion having regard to the averments made by the  appellant in his Election Petition the ratio of the said  decision applies to the fact of the present case also.

       The question as to whether a statute is directory or  mandatory would not depend upon the phraseology used  therein.  The principle as regard the nature of the statute  must be determined having regard to the purpose and object  the statute seeks to achieve.  (See P.T. Rajan Vs. T.P.M.  Sahir and Ors., 2003 (8) SCALE 165)

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CONCLUSION  :

       For the reasons aforementioned, we are of the opinion  that the judgment of the High Court does not call for any  interference.  The appeal as also the contempt petition are  accordingly dismissed. No costs.