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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.