CHANDESHWAR SAW versus BRIJ BHUSHAN PRASAD & ORS. on 28 January 2020

[2020] 1 S.C.R. 523

CHANDESHWAR SAW

v.

BRIJ BHUSHAN PRASAD & ORS.

(Civil Appeal No. 780 of 2020)

JANUARY 28, 2020

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Election Laws:

Panchayat Election – Complaint against returned candidate,by the election petitioner – Alleging that despite objection, numberof valid votes cast in his favour were being rejected and invalidvotes in favour of returned candidate were accepted – The Tribunalfinding the irregularities in counting of votes declared his electionas null and void and directed recounting of votes – In Writ PetitionSingle Judge of High court held that before recounting of votes,election of returned candidate should not have been set aside andrelegated the parties to Tribunal for passing appropriate order afterresult of recounting – After recounting process, results were kept insealed envelope – LPA filed against order of Single Judge –Tribunal’s direction to place the result in sealed envelope beforeDistrict Election Officer-cum-District Magistrate for declaration ofthe result – Challenged by returned candidate by way of a writpetition – The LPA as well as the writ petition of returned candidatewas decided against the election petitioner setting aside the directionof recounting of votes – Appeal to Supreme Court – Held : DivisionBench reversed the well considered decision of Election Tribunaland Single Judge of High Court, without analysing the pleadingsand the evidence – A declaration u/s. 140 of Bihar Panchayat RajAct, 2006 is issued that the election of the returned candidate is setaside being invalid and election petitioner is declared as havingbeen duly elected – Bihar Panchayat Raj Act, 2006 – s. 140.

Disposing of the appeal, the Court

HELD : 1.1 The Division Bench of High Court reversedthe well-considered decision of the Election Tribunal, which hasjustly been upheld by the Single Judge of High Court, withoutanalysing the pleadings and the evidence adduced by the appellant/

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Aelection petitioner during the trial of the election case. Theimpugned judgment merely adverts to the interim orders passedduring the pendency of the writ petition filed by respondent No.1 and the LPA and goes on to observe that for the (prima facie)opinion recorded therein, the matter in issue deserves to beanswered against the appellant/election petitioner and in favourBof respondent No. 1. [Para 8] [533-A-C]

1.2 Without reversing the finding of facts so recorded bythe Election Tribunal, merely by referring to decisions of thisCourt, the Division Bench could not have disturbed the order ofrecount as directed by the Election Tribunal in the peculiar factsCof the present case. Inasmuch as, the appellant/election petitionerhad not only pleaded about the serious irregularities committedby the officials during the counting of valid votes cast in his favourand invalid votes taken into account in favour of respondent No.1, but had also examined witnesses to substantiate that fact, asDnoted by the Election Tribunal and the Single Judge of the HighCourt. [Para 8] [536-F-H]

Mahender Pratap v. Krishan Pal & Ors. (2003) 1 SCC390 : [2002] 4 Suppl. SCR 339 – distinguished.

Bhabhi v. Sheo Govind & Ors. (1976) 1 SCC 687 ;E[1975] Suppl. SCR 202 – referred to.

1.3 Since the appellant had substantiated the allegation madein the election petition and the Election Tribunal being convincedabout the said claim proceeded to issue order of recount. Nofault can be found with that approach of the Election Tribunal norFit is possible to suggest that the Election Tribunal or the SingleJudge was not conscious about the necessity to substantiate theallegation about the serious irregularities committed by theofficials during the counting. The Court or Tribunal can directrecount of votes even if the party had not applied in writing forGrecounting of votes to the Returning Officer. There is noprovision in the Bihar Panchayat Raj Act, 2006 or in the Rulesprohibiting the Court or the Tribunal to direct recounting of votes.[Paras 9 & 10] [538-A-B, E]

Sohan Lal v. Babu Gandhi & Ors. (2003) 1 SCC 108 :[2002] 4 Suppl. SCR 333 – relied on.

Ram Rati (Smt) v. Saroj Devi & Ors. (1997) 6 SCC 66 :[1997] 3 SCR 1050 – stood overruled.

1.4 After the recount, the appellant/election petitioner hassecured 95 excess valid votes, more than the valid votes securedby respondent No. 1. That has reinforced the challenge set upby the appellant that the officials had committed seriousirregularities bordering on intentional manipulation of the validvotes secured by the appellant. As a result, the Court upholdsthe order of recount of votes, as passed by the Election Tribunal(dated 11.10.2018) and justly upheld by the Single Judge, in thefacts of the present case. [Para 11] [539-C-D]

2. The direction issued by the Election Tribunal to placethe report contained in sealed envelope before the DistrictElection Officer-cum-District Magistrate for declaration of result,even if inappropriate, would not affect the order of recount ofvotes. It was open to the High Court to mould the directionissued by the Election Tribunal and instead issue declaration asenvisaged under Section 140 of the Bihar Panchayat Raj Act, 2006.A declaration is issued under Section 140 of the Act that theelection of respondent No. 1 as returned candidate is set asidebeing invalid, and instead the appellant/election petitioner isdeclared as having been duly elected having secured highest votesamongst the contesting candidates and 95 more valid votes thanthat of respondent No. 1 in the subject election. [Paras 12 & 14][539-E-F; 541-A-B]

3.1. The order passed by the Election Tribunal, dated11.4.2019, which was subject matter of the writ petition filed byrespondent No. 1 also dealt with the application filed before italleging forgery of record/documents of the Tribunal. The Tribunalhas rightly observed that that is a separate matter and wouldrequire independent enquiry, for which the petition has beentreated as a petition under Section 340 of the Criminal ProcedureCode (Cr.P.C.) to be dealt with as per law. [Para 13] [540-D-E]

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A3.2. Respondent No. 1 by way of written submissions filedafter the matter was reserved for judgment, has adverted tocertain factual matters, so as to question the result of recount ofvotes. Presumably, the alleged acts of commission or omissionare already subject matter of proceedings initiated under Section340 of the Cr.P.C. That need not detain the Court from disposingBof this matter. The new factual matters do not find mention in theimpugned judgment. It would be open to respondent No. 1 topursue proceedings under Section 340 of the Cr.P.C., which willhave to be decided on its own merits in accordance with law.[Para 13] [540-F-H]

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Case Law Reference

From the Judgment and Order dated 27.08.2019 of the High CourtEof Judicature at Patna in Letters Patent Appeal No. 382 of 2019.

Amit Pawan, Abhishek Amritanshu, Anand Nandan, AkshatSrivastava, Hasan Zubair Waris, Rohit Rajeshi, Ms. Shivangi, Advs. forthe Appellant.

Abhay Kumar, Vineet Kumar Singh, Kumar Milind, Gopal Singh,FManish Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Leave granted.

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2. This appeal takes exception to the judgment and order dated27.8.2019 passed by the High Court of Judicature at Patna (for short,‘the High Court’), thereby setting aside the order of the learned singleJudge, dated 6.3.2019 and orders passed by the Court of Civil Judge(Junior Division)-cum-Election Tribunal, Danapur, District Patna, Bihar H

(for short, ‘the Election Tribunal’), dated 11.10.2018 and 11.4.2019 inElection Case No. 08/2016. Consequently, the above numbered electioncase filed by the appellant challenging the election of respondent No. 1as returned candidate for the post of Mukhia, Artyapur Gram PanchayatNo. 8 under Naubatpur Block, came to be dismissed.

3. Briefly stated, the election for the post of Mukhia, ArtyapurGram Panchayat No. 8 under Naubatpur Block was held on 6.5.2016, inwhich the appellant and respondent No. 1 alongwith 11 others hadcontested as candidates and after counting of votes on 4.6.2016, therespondent No. 1 was declared elected. During the counting, however,the appellant had noticed that number of valid votes cast in his favourwere being rejected, while even invalid votes in favour of respondentNo. 1 were being accepted and counted. The respondent No. 1 wasdeclared elected by a margin of 154 votes. In this backdrop, the appellantfiled an election case before the Election Tribunal, seeking recounting ofvotes, setting aside election of respondent no. 1 and declaring him(appellant) elected. The appellant specifically alleged about theirregularities committed during the counting process including the onethat swastika symbol pressed light ink was not being counted in favourof the appellant and despite grievance being made in that behalf, noheed was paid by the Returning Officer. At the same time, it was alsonoticed that some invalid votes cast in favour of respondent No. 1 wereaccepted and counted as valid disregarding the objection taken in thatbehalf. The election case proceeded for trial and after recording ofevidence of the witnesses produced by the concerned parties, the ElectionTribunal after due evaluation of the evidence, accepted the grievance ofthe appellant that the result sheet prepared by the election officer wasnot proper as the counting of votes was not done by the officials as perrules. The Election Tribunal proceeded to record finding of fact in favourof the appellant and answered the issue in the following words: - “………

By perusal documentary evidences as well as plaint on record itsappear that applicant has tried his level best to brought all materialfacts in his plaint and supported by his evidences, it is also appearedthat as soon as plaintiff got knowledge that some irregularities isgoing on while counting votes and he came to know that his 216valid votes has been rejected due light ink on the ballot but sametype of has been counted in favour of returned candidate then A

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Aimmediately he has made an application to concerned officers forrecounting which is marked Ex.-1, same has been made in hisplaint as well as supported by oral as well as documentaryevidences. Plaint of this case make out a prima facie case withregard to the valid votes of the plaintiff rejected. In this case allthe aforesaid conditions are fulfilled by the petitioner which areBdiscussed above. Thus, in the light of the discussions made abovethis tribunal finds that there were irregularities in the counting ofvotes in the present case, the result sheet prepared was irregular,not proper and counting of votes by the officials not done as perrule. Thus, there issue goes in favour of the petitioner.”CFinally, the Election Tribunal proceeded to pass the following order: - “ORDER

In the light of the aforesaid issues it is clear that in the countingthe Rule 79 of the Bihar Panchayat Election Rules were notfollowed by the counting authorities and hence on this sole issuethe election petition is fit to be allowed, but as per the discussionin issue No.3, 4 and 5 this tribunal found that there wereirregularities in the counting of votes in the present case and theresult sheet prepared was irregular and not proper. However, inthe issue No.6 it is found by this tribunal that:

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i) The O.P. no.1 was not properly declared Mukhiya.

ii) It is not proved by the petitioner that she has got more votesthan the votes of the O.P. No.1.

Thus, from the discussion made above it is clear that the petitionerFhas is not entitled to the relief of setting aside election of returnedcandidate. However, from the discussions and findings of the aboveissues it is also clear that the petitioner has been able to prove thatthe final result for the post of Mukhiya of Gram Panchaayt Raj.Dariyapur is not proper and the O.P. No.1 was not properlydeclared as Mukhiya but the final result can be ascertained by theGproper and minute recounting only. Hence, the petitioner is entitledto the relief as discussed above only.

Hence, in the light of findings of the all the issues in this case. It ishereby ordered that the final result for the post of Mukhiya ofDariyapur Panchayat, Block Naubatpur, District Patna is declared H

as null and void. The certificate in favour of the O.P. No.1 asreturn candidate is declared void. It is ordered to the O.P. No.15i.e. the District Magistrate, Patna cum District Election Officer,Patna to get the ballots of each booth for the post of MukhiyaDariyapur Panchayat recounted under his supervision within onemonth from the date of receipt of this order. It is also ordered theDistrict Magistrate, Patna Cum Election Officer Patna to takeover the election material which is laying in safe custody of thiscourt for recounting purpose and thereafter keep it as per law/rules. It is also ordered that the final result shall be prepared foreach candidate after recounting and the certificate shall be issuedin favour of the return candidate. Let a copy of this judgment besent to District Magistrate Cum District Election Officer, Patnaand Election Commission. All the petitions pending in this caseare disposed of as not pressed. Accordingly, the case is allowedon contest against those who have appeared in this case and Ex-parte against who has not appeared.

Judgment pronounced and delivered by me in open court.

Typed and corrected by me.”

This order was assailed by respondent no. 1 by way of Civil WritJurisdiction Case (CWJC) No. 21476/2018 before the High Court. Thelearned single Judge, after due consideration of the evidence on record,as considered by the Election Tribunal was pleased to uphold the findingof fact recorded by the Election Tribunal in the following words:- “…………….

Keeping in mind the aforesaid judicial pronouncements on thesubject when this Court proceeds to consider as to whether thelearned Election Tribunal has considered the materials availableon the record and whether based on such materials a prima faciesatisfaction regarding the truth of allegation for recounting of voteshas been taken? This Court finds that the learned Election Tribunalhas discussed the case of the election petitioner which specificallypointed out that the ballot papers containing Swastik symbolpressed with light ink was not being counted in favour of theelection petitioner whereas those were being counted in favour ofthe returned candidate (petitioner). The case of the electionpetitioner was supported by AW 2, AW 3, AW 4 and AW 5. The AB

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learned Election Tribunal has discussed the evidences of thewitnesses who have stated that they were present at the time ofcounting and had supported the case of the election petitioner. Infact, one Akhileshwar Kumar who has deposed as O.P.W.1 hassupported the case of the applicant in his examination-in-chief.The learned Election Tribunal has discussed his evidence also inthe impugned judgment. On going through the discussions madeby the Election Tribunal in the judgment, this Court finds that hehas dealt with the deposition of the witnesses produced on behalfof the returned candidate as well. It has been found that thereturned candidate and his witnesses has either deposed that theywere not present at the time of counting or they have no knowledgeregarding valid or invalid votes. The Tribunal held that the returnedcandidate has made contradictory statements regarding valid andinvalid votes when compared with other witnesses of his side.

After a careful perusal of the entire materials available on therecord, this Court is of the considered opinion that in the plaint theelection petitioner has made a categorical and positive allegationand he has supported his allegations by bringing witnesses whowere present at the time of counting. In these conditions if theElection Tribunal has found itself prima-facie satisfied and hascome to a conclusion that a recounting of vote is required, thisCourt finds no reason to take any other view.

In the opinion of this Court, learned Tribunal has rightly takenthe view as under:

“in this case all the aforesaid conditions are fulfilled by thepetitioner which are discussed above. Thus, in the light of thediscussions made above this Tribunal finds that there wereirregularities in the counting of votes in the present case, theresult sheet prepared was irregular not proper and counting ofvotes by the official was not done as per Rule. Thus, this issuegoes in favour of the petitioner.”

By virtue of the aforesaid discussions, this Court finds that thedirection for recounting of votes cannot be faulted with, there isno illegality much less any material illegality and this Court sittingin its supervisory writ jurisdiction does not find any reason tointerfere with the aforesaid direction.”

The learned single Judge of the High Court, however, reversedthe order passed by the Election Tribunal of setting aside the electionbefore the recounting of votes. The learned single Judge instead relegatedthe parties before the Election Tribunal for the limited purpose of passingappropriate orders only after the recount results become available. Infact, the recounting process was completed during the pendency of thesaid writ and the result was kept in sealed envelope. Resultantly, thelearned single Judge thought it proper to relegate the parties before theElection Tribunal for passing consequential orders after perusal of therecount results kept in sealed envelope.

4. The respondent no. 1 assailed the decision of the learned singleJudge by way of Letters Patent Appeal (LPA) No. 382/2019. Duringthe pendency of the said appeal, in terms of the directions given by thelearned single Judge, the Election Tribunal proceeded to pass an orderon 11.4.2019. The Election Tribunal in reference to Rule 81 of the BiharElection Rules, 2006 (for short, ‘the 2006 Rules’), directed to place thereport kept in sealed envelope before the District Election Officer-cum-District Magistrate, Patna for declaration of the election result. Therespondent no. 1, therefore, challenged the said order dated 11.4.2019passed by the Election Tribunal by way of CWJC No. 9655/2019. TheDivision Bench of the High Court proceeded to dispose of the LPA, aswell as, the writ petition (CWJC No. 9655/2019) together by a commonjudgment, which is subject matter of challenge in the present appeal.

5. According to the appellant, the Division Bench of the HighCourt committed manifest error in reversing the well-considered decisionof the Election Tribunal as rightly upheld by the learned single Judgeregarding necessity to direct recounting of votes in the fact situation ofthe present case. The Division Bench did not even bother to deal withthe factual aspects of the matter as analysed by the Election Tribunaland also by the learned single Judge of the High Court, before settingaside the direction regarding recount of votes. It merely referred to thedecision of this Court in Bhabhi vs. Sheo Govind & Ors.[1] and MahenderPratap vs. Krishan Pal & Ors.[2]. As a matter of fact, the DivisionBench did not make any enquiry, much less analysis of the pleadings andthe evidence, but went on to observe that the Election Tribunal withouteven inspecting the ballots or forming the prima facie opinion on the 1 (1976) 1 SCC 687

2 (2003) 1 SCC 390

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1 (1976) 1 SCC 687

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Abasis of material produced by the appellant/election petitioner, committederror in directing recount of votes. The impugned judgment reproducesthe interim order passed by the Division Bench on 24.7.2019 recordingits prima facie view and proceeded to adopt the view expressed thereinto reverse the well-considered decision of the Election Tribunal as upheldby the learned single Judge. Concededly, it is urged that the interimBorder passed on 24.7.2019 has not analysed the pleadings and evidenceproduced on behalf of the appellant/election petitioner, which hadcommended to the Election Tribunal and the learned single Judge of theHigh Court. All that is mentioned in the said order is that the ElectionTribunal proceeded to pass order of recount of votes in complete ignoranceCof law on the subject, whereas the Election Tribunal, as well as, thelearned single Judge had duly analysed the pleadings as well as theevidence produced by the appellant/election petitioner to conclude thatthere was enough evidence to substantiate the case made out by theappellant/election petitioner that the officials committed seriousirregularities during the counting of votes and failed to adhere to theDapplicable rules in that regard. The appellant would submit that thedecisions adverted to by the Division Bench can be of no avail andcannot be the basis to overturn the well-considered decisions of theElection Tribunal and the learned single Judge, directing the recount ofvotes in the peculiar facts of the present case.E6. The respondent no. 1 who had filed the LPA challenging theorders passed by the Election Tribunal, however, has supported thedecision of the Division Bench and would contend that no case for recountwas made out by the appellant/election petitioner either in the electionpetition or by way of any evidence produced to substantiate that relief.FRelying on the decisions of this Court referred to in the impugnedjudgment, it is contended that neither the Election Tribunal nor the learnedsingle Judge took note of the settled legal principles before directingrecount of votes. The appellant/election petitioner did not apply forrecount before the declaration of the results and that without even inspecting the ballots, the Election Tribunal proceeded to direct recountGof votes, which was impermissible. It is further submitted that nointerference with the impugned judgment is warranted.

7. We have heard Mr. Amit Pawan, learned counsel appearingfor the appellant and Mr. Abhay Kumar, learned counsel for therespondents.H

8. After considering the rival submissions, we have no hesitationin accepting the argument of the appellant that the Division Bench videimpugned judgment (dated 27.8.2019) has reversed the well-considereddecision of the Election Tribunal, which has justly been upheld by thelearned single Judge (vide order dated 6.3.2019), without analysing thepleadings and the evidence adduced by the appellant/election petitionerduring the trial of the election case. The impugned judgment merelyadverts to the interim orders passed during the pendency of the writ(CWJC No. 9655/2019) and the LPA and goes on to observe that forthe (prima facie) opinion recorded therein, the matter in issue deservesto be answered against the appellant/election petitioner and in favour ofrespondent No. 1. That is evident from the following extract of thejudgment under appeal: - “”……………….

“”……………….

From a perusal of the orders extracted hereinabove, the mootquestion that has to be determined by this Court is as to whetherthe Tribunal had proceeded in accordance with law to order arecount of the votes on the allegations made. Without reiteratingthe facts and even the position of law which stands extractedin our order dated 24[th] July, 2019, we find that the learnedcounsel for the respondent election-petitioner could notsuccessfully convince us to take a different view from whatwas expressed by us in the interim order quotedhereinabove. Keeping in view the law laid down by the ApexCourt in the case of Bhabhi Vs. Sheo Gobind and others,reported in (1976) 1 SCC 687, we find that the order ofrecount as upheld by the learned Single Judge in theimpugned judgment, therefore, is unsustainable as it is notin conformity with law. The Tribunal without even inspectingthe ballots or forming a prima facie opinion on the basis ofsuch material that was necessary to be gone into, proceededto pass an order of recount that cannot be sustained in law.The learned Single Judge, therefore, could not have upheldthe same.

From the narration of facts hereinabove, it appears that evenafter the judgment dated 6[th] march, 2019, the Tribunal appears tohave acted in ample haste and in our opinion, any action inproceeding to pass the order on 11[th] April, 1999 was in the nature A

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of an overreach so as to virtually circumvent the orders passedby this Court. This fact has been noticed by the learned SingleJudge while passing the interim order dated 18[th] June, 2019extracted hereinabove in C.W.J.C. No.9655 of 2019 with whichwe find ourselves in full agreement with.

The Tribunal, therefore, not only committed an error, but theaction of the Tribunal can be clearly described as one to be malicein law. The Tribunal, therefore, ought not to have proceeded forissuing any direction for declaration of results without evencomplying with the observations made in the judgment dated 6[th]of March, 2019. This manner of dealing with the matter by theTribunal, therefore, cannot be appreciated in the background ofthe case, more particularly, in the light of the arguments that havebeen advanced on the legal issue about the procedure to be adoptedby a Tribunal before ordering a recount.

Shri Manglam, learned counsel for the appellant, however,insisted that the matter should not be remitted even if the appealis allowed and the order dated 11[th] April, 2019 is quashed. Hissubmission is that the election petition itself was not maintainablekeeping in view the nature of the pleadings on record which donot make out any case for either a recount or even for trying theallegations levelled in the election petition. Pointing out to theframing of Issue No.1 by the Tribunal and the answer given to iton the strength of the findings arrived at, he contends that electionpetition has been found to be maintainable on the ground thatthere was a case made out for recount. This, he submits was aconverse procedure to record a finding, inasmuch as, once therewas evidence on record to the effect that no application for recounthad been filed, which is evident from the deposition of the ReturningOfficer, then in that event Issue No.1 has been wrongly decided.He further submits that the incident relating to the transfer of therecords from the strong room to the Court under the privatecustody of the sons of the election petitioner was also an additionalground apart from the fact that the Court itself had entertained aMiscellaneous Application for undertaking proceedings underSection 340 Cr.P.C. his submission is that an intentional false plea,therefore, clearly disentitled the election petitioner to maintain theelection petition and for which reliance has been placed by the learned counsel on the judgment in the case of Mahender PratapVs. Krishna Pal & Ors. reported in (2003) 1 SCC 390.

The contention, therefore, in short is that, this Court itself shouldhold that the election petition was not maintainable andconsequently, there is no occasion for remitting the matter backto the Tribunal concerned.

Responding to the aforesaid submissions, Shri P.K. Shahi,learned Senior Counsel appearing for the election petitionersubmits that even assuming for the sake of argument that theTribunal committed error in proceeding to order a recount withoutrecording appropriate findings, even though not admitting the same,yet the matter has to go back to the Tribunal, inasmuch as, theissue of maintainability was not the main issue, and it was theissue of recount which formed the basis of the entire litigation. Inorder to determine as to whether a recount would be permissibleor not on the basis of the evidence adduced will be a matter ofenquiry by the Tribunal itself and not by this Court in the exerciseof jurisdiction under Article 226 of the Constitution of India. He,therefore, submits that the matter will have to be looked intokeeping in view the evidence on record and also the pleadingswhich do indicate that there was sufficient material in order toattempt a recount on the allegations made.

Learned counsel for the State of Bihar has also advanced hissubmissions contending that the law as laid down by the ApexCourt in the case of Bhabhi Vs. Sheo Gobind and others (supra)deserves to be followed.

Having heard learned counsel for the parties and havingperused the records and in view of what has been recordedby us hereinabove, we find that the order of recount cannotbe sustained as the Tribunal acted in hot haste and theaction of the Tribunal even in subsequently passing an orderdated 11[th] April, 2019 clearly indicates that it is not an orderwhich can either be sustained in law or can be described tobe in conformity with the legal principles as laid down inthe case of Bhabhi Vs. Sheo Gobind and others (supra).

The manner in which the proceedings have been conductedby the Presiding Officer, therefore, cannot be appreciated and in A

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this background and having perused the material on record, wefind that upon the matter being remitted, the said Presiding Officerwho has passed the orders impugned, should not act as thePresiding Officer to decide the present dispute.

Accordingly, the present appeal (L.P.A. No.382 of 2019) isBallowed. The impugned judgment dated of the learned Single Judgedated 6[th] of March, 2019 is set aside.

The order of recount passed by the Tribunal dated 11.10.2018is also quashed. The order passed by the Tribunal on 11[th] April,2019, therefore, also cannot be sustained and is accordingly setaside. C.W.J.C. No.9655 of 2019 is also accordingly allowed.

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The matter shall now stand remitted to the Tribunal with adirection to the learned District Judge, Patna, to nominate the saidelection petition to an officer of the rank empowered to try theelection petition other than the officer who had dealt with thematter earlier.

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With the aforesaid directions, the appeal (L.P.A. No.382 of2019) and the writ petition (C.W.J.C. No.9655 of 2019 areaccordingly allowed.”

(emphasis supplied)

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Assuming that we were to take notice of the elaborate interimorders dated 24.7.2019 and 18.6.2019, there is nothing to indicate thateven at that stage of the proceedings, the Division Bench has hadoccasion to analyse the pleadings and evidence adverted to by the ElectionTribunal as commended to the learned single Judge. Without reversingFthe finding of facts so recorded by the Election Tribunal, merely byreferring to decisions of this Court in Bhabhi (supra) and MahenderPratap (supra), the Division Bench could not have disturbed the orderof recount as directed by the Election Tribunal in the peculiar facts ofthe present case. Inasmuch as, the appellant/election petitioner had notonly pleaded about the serious irregularities committed by the officialsGduring the counting of valid votes cast in his favour and invalid votestaken into account in favour of respondent No. 1, but had also examinedwitnesses to substantiate that fact, as noted by the Election Tribunal andthe learned single Judge of the High Court.

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9. Indeed, in the case of Bhabhi (supra), this Court has delineatedthe contours for issuing direction of inspection or recount of votes in thefollowing words: - “15. Thus on a close and careful consideration of the variousauthorities of this Court from time to time it is manifest that thefollowing conditions are imperative before a court can grantinspection, or for that matter sample inspection, of the ballot papers:

(1) That it is important to maintain the secrecy of the ballotwhich is sacrosanct and should not be allowed to be violatedon frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations madeagainst the elected candidate must be clear and specific andmust be supported by adequate statements of material facts;

(3) The Court must be prima facie satisfied on the materialsproduced before the Court regarding the truth of the allegationsmade for a recount;

(4) That the Court must come to the conclusion that in order togrant prayer for inspection it is necessary and imperative to dofull justice between the parties;

(5) That the discretion conferred on the Court should not beexercised in such a way so as to enable the applicant to indulgein a roving inquiry with a view to fish materials for declaringthe election to be void; and

(6) That on the special facts of a given case sample inspectionmay be ordered to lend further assurance to the prima faciesatisfaction of the Court regarding the truth of the allegationsmade for a recount, and not for the purpose of fishing outmaterials.”

If all these circumstances enter into the mind of the Judge and heis satisfied that these conditions are fulfilled in a given case, theexercise of the discretion would undoubtedly be proper.”

The question is: whether material facts to justify an order of recountof votes has been clearly pleaded and the same have been proved by theappellant/election petitioner in the present case? That issue has beenanalysed by the Election Tribunal extensively, as is evident from the A

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Aanalysis made by it, which commended to the learned single Judge. Sincethe appellant had substantiated the allegation made in the election petitionand the Election Tribunal being convinced about the said claim proceededto issue order of recount. No fault can be found with that approach ofthe Election Tribunal nor it is possible to suggest that the Election Tribunalor the learned single Judge was not conscious about the necessity toBsubstantiate the allegation about the serious irregularities committed bythe officials during the counting.

10. Similarly, in the case of Mahender Pratap (supra), the Courtwent on to reject the election petition in the facts of that case, havingnoted that incorrect statements were made in the pleadings, affidavits orCdepositions being an attempt to mislead the Court and more so, the recountapplication was made by the candidate (election petitioner) to theReturning Officer after the results were declared, which could not havebeen entertained by the Returning Officer. In the case of Sohan Lalvs. Babu Gandhi & Ors.[3], the three-Judge Bench of this Court hasDopined that the fact that recount request was not made by the candidateduring the counting, does not preclude filing of election petition or todirect recount in the election petition questioning the election after resultsof the election are announced. The decision in Ram Rati (Smt) vs.Saroj Devi & Ors.[4] came to be overruled and instead the Court heldthat in an election petition, after the declaration of result, the Court orETribunal can direct recount of votes even if the party had not applied inwriting for recounting of votes to the Returning Officer. There is noprovision in the Act or in the Rules prohibiting the Court or theTribunal to direct recounting of votes. The Court in paragraph 14 observedthus: -F“14. In view of Section 122 and the Rules, we are unable to agreewith the ratio laid down in Ram Rati case (1997) 6 SCC 66. It isnot correct to hold that, in an election petition, after the declarationof the result, the court or tribunal cannot direct re-counting ofvotes unless the party has first applied in writing for re-countingGof votes. There is no prohibition in the Act or under the Rulesprohibiting the court or tribunal to direct a re-counting of the votes.Even otherwise, a party may not know that the re-counting isnecessary till after the result is declared. At this stage, it would 3 (2003) 1 SCC 108H4 (1997) 6 SCC 66

not be possible for him to apply for re-counting to the ReturningOfficer. His only remedy would be to file an election petition underSection 122. In such a case, the court or the tribunal is bound toconsider the plea and where a case is made out, it may direct re-count depending upon the evidence led by the parties. In the presentcase, there was obvious error in declaring the result. We, therefore,hold that the ratio laid down in Ram Rati case (1997) 6 SCC 66 isnot correct.”

11. A priori, we have no hesitation in concluding that the DivisionBench has interfered with the well-reasoned judgment and order passedby the Election Tribunal, which was justly upheld by the learned singleJudge, directing recount of votes. It appears that after the recount, theappellant/election petitioner has secured 95 excess valid votes, morethan the valid votes secured by respondent No. 1. That has reinforcedthe challenge set up by the appellant that the officials had committedserious irregularities bordering on intentional manipulation of the validvotes secured by the appellant. As a result, we have no hesitation inupholding the order of recount of votes, as passed by the Election Tribunal(dated 11.10.2018) and justly upheld by the learned single Judge (videorder dated 6.3.2019), in the facts of the present case.

12. The next question is about the correctness of the directionissued by the Election Tribunal vide order dated 11.4.2019 to place thereport contained in sealed envelope before the District Election Officer-cum-District Magistrate, Patna for declaration of result. That directioneven if inappropriate, would not affect the order of recount of votes. Itwas open to the High Court to mould the direction issued by the ElectionTribunal and instead issue declaration as envisaged under Section 140 ofthe Bihar Panchayat Raj Act, 2006, which reads thus: -

“140. Grounds on which a candidate other than the returnedcandidate may be declared to have been elected - (1) If anyperson who has filed an election petition has, in addition to callingin question the election of the returned candidate, claims adeclaration that he himself or any other candidate has been dulyelected and the Prescribed Authority is of opinion- (a) that in fact the petitioner or such other candidate receiveda majority of the valid votes; or A

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A(b) that but for the votes obtained by the returned candidate bycorrupt practices the petitioner or such other candidate wouldhave 142 obtained a majority of the valid votes, the PrescribedAuthority shall after declaring the election of the returnedcandidate to be void declare the petitioner or such othercandidate, as the case may be, to have been duly elected.B

(2) The decision of the Prescribed Authority shall be final.”

In other words, the High Court ought to have moulded or modifiedthe operative order passed by the Election Tribunal, dated 11.4.2019 tothe effect that the election of the returned candidate (respondent No. 1)Cbe and is set aside as invalid and the appellant (election petitioner) isdeclared as having been duly elected having secured more valid votesafter recount. Resultantly, in this appeal, we proceed to issue thatdeclaration.

13. The order passed by the Election Tribunal, dated 11.4.2019,Dwhich was subject matter of CWJC No. 9655/2019 also dealt with theapplication filed before it alleging forgery of record/documents of theTribunal. The Tribunal has rightly observed that that is a separate matterand would require independent enquiry, for which the petition has beentreated as a petition under Section 340 of the Criminal Procedure Code(Cr.P.C.) to be dealt with as per law. As regards that direction issued byEthe Election Tribunal vide order dated 11.4.2019, the same is not thesubject matter of this appeal. In other words, we have only dealt withthe issues emanating from the stated direction issued by the ElectionTribunal regarding recounting of votes and to issue appropriate declarationin terms of Section 140 of the Bihar Panchayat Raj Act, 2006. TheFrespondent No. 1 by way of written submissions filed after the matterwas reserved for judgment, has adverted to certain factual matters, soas to question the result of recount of votes. Presumably, the allegedacts of commission or omission are already subject matter of proceedingsinitiated under Section 340 of the Cr.P.C. That need not detain us fromdisposing of this matter having noticed that the respondent No. 1 hadGsucceeded before the Division Bench on grounds which we have alreadyadverted to hitherto and rejected. The new factual matters do not findmention in the impugned judgment. It would be open to the respondentNo. 1 to pursue proceedings under Section 340 of the Cr.P.C., whichwill have to be decided on its own merits in accordance with law.

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14. Accordingly, this appeal succeeds. The impugned judgmentAand order is set aside. Instead, the election case being E.C. No. 08/2016 filed by the appellant before the Election Tribunal is allowed. Adeclaration is issued under Section 140 of the Act that the election ofrespondent No. 1 as returned candidate is set aside being invalid, andinstead we declare the appellant/election petitioner as having been dulyBelected having secured highest votes amongst the contesting candidatesand 95 more valid votes than that of respondent No. 1 in the subjectelection.

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15. The appeal is disposed of in the above terms with no order asto costs. Pending interlocutory applications, if any, shall stand disposedof.

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Kalpana K. Tripathy

Appeal disposed of.

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