JUDGMENT
G.N. Prasad, J.
1. The petitioner before this court is the first respondent to an election petition which has been filed under the provision of Rule 72 of the Bihar Panchayat Election Rules, 1959, for avoiding his election to the office of the Mukhiya of Besardh Gram Panchayat., within Murliganj Anchal of the district of Saharsa. He has filed this application under Articles 226 and 227 of the Constitution of India against the order of the Election Tribunal for recount of the ballot papers pertainnig to the impugned election. The main contention of the petitioner is that the Election Tribunal dealing with an election petition under the Bihar Panchayat Election Rules, 1959, hereinafter referred to as ‘the Rules’, is not competent to hold a recount of the ballot papers relating to the impugned election.
2. The election in question was held on the 9th June, 1965. Besides the petitioner, four other candidates had filed their nominations, but the nomination paper of one of them was rejected and two of the other candidates withdrew their candidatures. So the real contest was between the petitioner and Shri Bhola Prasad Mandal, opposite party No. 1 in this court. As a result of the counting of votes, it was announced that the petitioner had secured 575 votes as against 557 votes secured by Shri Bhola Prasad Mandal. Hence the petitioner was declared to have been duly elected. Thereupon, Shri Bhola Prasad Mandal filed an election petition under Rule 72 of the Rules, in which he made various allegations against the legality of the petitioner’s election. In substance, the case put forward by the election petitioner was that, in fact, it was he who had secured the larger number of valid votes, but the Block Development Officer of Murliganj (Opposite Party No. 7 in this court), who was in collusion with the petitioner, broke the seal of the ballot box and conducted a re-count, although he had no authority to do so, and in course of such a recounting, the ballot papers standing in favour of the election petitioner were illegally rejected. As a matter of fact, the entire recounting had been done in a mala fide manner by an officer who had no authority to interfere with the work of the Presiding Officer. In paragraph 22 of the election petition, the election petitioner put forward his case in the following terms:
“That this petitioner submits that this petitioner ought to be declared elected on the votes secured and ballot papers be counted and scrutinised as the declaration mainly depends upon it.”
The relief which the election petitioner sought was that the election of Shri Rasik Lal Yadav be set aside and that the election petitioner should be declared to have been elected as Mukhiya of the Gram Panchayat in question.
3. The petitioner appeared before the Election Tribunal and filed his written statement, wherein he asserted that he had been rightly declared to be the successful candidate in the impugned election.
4. Upon the pleadings of the parties, the Election Tribunal framed three issues in the case as follows:
“1. Has there been any illegality or irregularity in publishing and conducting the election?.
2. Is the counting of votes correct and has the petitioner obtained the highest number of votes and been declared the Mukhiya elected?.
3. Has there been any other counting by the B. D. O., Murliganj and has he the jurisdiction to do it ?.”
On the 14th October, 1966, however, the election petitioner filed a petition intimating to the Tribunal that he had waived all the issues except one namely, “Whether the counting was correctly done by the Presiding officer”.
5. At the instance of the election petitioner, the Block Development Officer of Kumar Khand, who had acted as the Election Officer in the impugned election, was examined as a witness before the Tribunal. Thereupon a prayer was made on behalf of the petitioner to afford him an opportunity to examine himself before the Tribunal. This prayer was allowed and 6th March, 1967 was fixed for the evidence of the petitioner. On that date however, the petitioner did not examine himself and although Hazri was filed on his behalf before the Tribunal, the case was adjourned to the 28th March, 1967. On the 28th March, 1967, the petitioner filed a petition for time on the ground of his illness and also made a prayer for the examination of the Presiding Officer as a witness on his behalf. But the petitioner does not appear to have pursued the matter, and on the 26th April, 1967, the Tribunal recorded the following order:
“25-4-67 was closed due to Moon-eclipse.
Petitioner filed Hajri, Respondent also filed Hajri through his lawyer.
Although Hajri has been filed, in spite of information having been sent to the effect that the case will be taken up at 10 A. M. none turns up on behalf of the respondent.
Let him pay Rs. 20 as cost of adjournment to the petitioner.
Put up on 15-5-67 for hearing and counting of the ballot papers.”
The order of the 15th May, 1967, is important and may, therefore be quoted in extenso:
“Petitioner filed hazari. Respondent absent. Later, Respondent filed Hazri.
Learned lawyer for the respondent submits that he has no instruction for today. But to some reason, the respondent has not been able to turn up as contended by the learned lawyer. It is therefore prayed that another date be fixed.
Put up on 23-5-67 for recounting of the ballot papers. Necessary staff be requisitioned from the 1st Section of the Collectorate. Election (illegible) also be summoned to assist me in the counting.
Put up on 23-5-67.”
6. On the 23rd May, 1967, the following order was recorded:
“Petitioner filed Hazari. A time petition filed on behalf of the respondent.
A time petition filed on behalf of respondent indicates that they were under the misunderstanding that today was a holiday, as such there will not be any court work. I feel this kind of misunderstanding is justified in the circumstances, today being declared optional holiday on account of the Budha Jayanti.
Therefore this prayer is allowed.
Put up on 5th June, 1967 for counting of ballot papers and hearing. Staff necessary be requisitioned from Est. section.”
On the 5th June, 1967, a petition was filed on behalf of the petitioner in which it was prayed that the ballot papers should not be inspected. The matter was put up for orders on the following day, and on the 6th June, 1967, the impugned order was recorded, which is in the following term:
“Petitioner filed Hajari. Respondent absent.
The respondent has not made his appearance. Only a petition has been filed on his behalf by the lawyer on 5-6-67 in which it has been urged that no prima facie case making the recounting of ballot papers essential has been made out as no evidence to substantiate the allegation made in the election petition has been adduced.
I find from record that the Election Officer has already been examined and that on several dates the respondent has been evading progress of the case.
From this I feel that possibly it serves the proposal of the respondent who is the elected Mukhia to let the case linger as longer as possible so that during the pendency of the case he can continue in office without risk of the result of this case which might go even against him. But this is a totally wrong way of proceeding and it puts the necessary (Petitioner — Ed) to unnecessary harassment. Since there is none to represent the respondent, his petition even cannot be scrutinised to his satisfaction. But I cannot help him, because he has chosen to absent himself.
This petition is therefore heard ex parte and rejected because it is urged on behalf of the petitioner that issue of dispute on the result of counting had already been decided after full hearing and (Illegible) could challenge it at this stage in this court.
For this, since, counting ought in all fairness be in the presence of both the parties. I do not propose to hold the counting today.
Put up on 27-6-67″
7. Learned counsel for the petitioner has put forward two contentions before us. The first contention, as already indicated, is that the rules do not authorise the Election Tribunal to hold a recount of the ballot papers relating to the impugned election. The second contention, which is in the alternative, is that the election petitioner has not made out a case for recount of the ballot papers.
8. For a proper decision on the first point, it is necessary to refer to some of the rules of the Bihar Panchayat Election Rules, 1959. Rule 74 applies to a case like the present one where, in addition to calling in question the election of a returned candidate the election petitioner claims a declaration that he himself or any other candidate has been duly elected., and it provides that one of the grounds upon which such a declaration can be claimed is:
“(a) that the petitioner or such other candidate in fact received a majority of valid votes.”
The next relevant rule is Rule 79, which provides, inter alia, in Sub-rule (2) that every election petition shall be tried by the Election Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Rule 86 confers upon the Tribunal the powers of the Civil court for compelling the production of documents. Rule 87 reads:
“In respect of any matter not specifically provided for in these rules, the Election Tribunal shall proceed in such manner as it considers proper in the circumstances of the case.”
Finally, I would refer to Rule 82, Sub-rule (1) of which provides:
“At the conclusion of the trial the Election Tribunal shall declare whether the returned candidate or any person who has lodged a petition and claimed a seat has been duly elected, or whether the election is void on account of its being materially affected by any corrupt or illegal practice or improper acceptance or rejection of nomination paper or on account of a large number of cases in which bribery or undue influence has been committed or any sufficient cause.”
9. So far as the present case is concerned, it is manifest that it has been sought to be brought within the ambit of Clause (a) of Rule 74, inasmuch as the election petitioner has maintained that it is he, instead of the petitioner before this court, who has, in fact, received the majority of valid votes. In other words, the simple question which the Tribunal has been called upon to decide is which of the two contesting candidates did, in fact, receive the majority of valid votes, and being armed with all the requisite powers of a court, when trying a suit under the Code of Civil Procedure, the Tribunal must be deemed to be invested with the power of compelling the production of all the ballot papers which were used in the impugned election so that it may be in a position to do complete justice between the parties after scrutinising the ballot papers and satisfying itself as to which of the contesting candidates did, in fact, receive the majority of votes. It is true that the rules do not specifically provide for a scrutiny and a re-count of the ballot papers at the stage of an election petition but on that ground alone, it would not be legitimate to hold that the Election Tribunal has absolutely no power to scrutinise or re-count the ballot papers relating to the election which is under challenge before it. Rule 87 appears to me to be sufficient to invest the Tribunal with the necessary powers relating to the scrutiny and re-count of the ballot papers. So far as the present case is concerned, it is abundantly clear that the Election Tribunal cannot come to a correct decision on the question as to whether or not the election petitioner or the successful candidate had, in fact, received the majority of valid votes unless it looks into the ballot papers in question for itself. As a matter of fact, this is all that the election petitioner wants the Election Tribunal to do, because he feels that a proper counting of the ballot papers would reveal the truth of his case that it is he who has, in fact, received the majority of valid votes.
To shut out the power of scrutiny and recount of the ballot papers would, in my opinion, amount to withholding from the Tribunal the most relevant material for coming to a correct decision on the question raised before it, because the question as to whether the election petitioner has or has not received the majority of valid votes can best be decided with reference to the relevant ballot papers themselves. I, therefore, see no justification for holding that the rules contained in the Bihar Panchayat Election Rules, 1959, do not empower the Election Tribunal to hold a scrutiny and re-count of the ballot papers concerned. It is of course quite true that the secrecy of the ballot papers must he maintained, but that should not stand in the way of the Tribunal having access to the ballot papers, if that should become necessary, in a case like the present, for the purpose of deciding which of the contesting candidates did, in fact, receive a majority of valid votes. In my opinion, the necessity of maintaining the secrecy of the ballot papers may in certain circumstances yield to the more paramount duty which the Tribunal dealing with an election petition has to discharge, namely, that of doing real justice between the parties. In the present case, however, that contingency does not arise, inasmuch as the Tribunal will have merely to recount the ballot papers without reference to the marked copy of the voters’ list and thus maintain the secrecy of the ballot papers inviolate. I, therefore, find no justification for holding that the Election Tribunal is not competent to hold a recount of the ballot papers in an appropriate case, which the present case undoubtedly is.
10. The contention of learned counsel for the petitioner to the effect that the Election Tribunal is not competent to scrutinise and recount the ballot papers, is however, supported by a Bench decision of this court in Maksudan Ram v. Kamla Prasad, 1967 BLJR 123 = (AIR 1967 Pat 305). But since the correctness of the view expressed therein has been doubted, so the present Bench has been constituted for an authoritative pronouncement on the point at issue. The opinion which Untwalia, J. (S. N. P. Singh, J. concurring) has expressed in the Bench decision aforesaid proceeds largely upon a comparison of the concerned rules of the Bihar Panchayat Election Rules, 1959, with the corresponding provisions of the Representation of the People Act (Act 43 of 1951) and the Conduct of Election Rules, 1961. His Lordship has noticed that in certain respects the rules of the Bihar Panchayat Election Rules are different from and fall short of the provisions of the Representation of the People Act, 1951, and the Conduct of Election Rules, 1961, and that has been taken to be a justification for holding that unlike the court dealing with an election petition under the Representation of the People Act, 1951, the Election Tribunal constituted under the Bihar Panchayat Election Rules has not been invested with the power of recounting the ballot papers relating to the impugned election. The first point of difference which has been emphasised by Untwalia, J. is that whereas under Section 92 of the Representation of the People Act, as it stood prior to the amendment of the Act made in 1966, the Election Tribunal had been vested with the powers of a court under the Code of Civil Procedure when trying a suit in respect of discovery and inspection of documents, Rule 66 of the Bihar Panchayat Election Rules makes no mention of such power of discovery and inspection, and it has, accordingly been held:
“This power not having been granted in express terms to the election tribunal trying election disputes under the Rules it can be legitimately inferred that the State Government omitted the power to order discovery and inspection purposely and did not like to grant this power to such a tribunal.”
It seems to me, however, with great respect that this cannot be a valid ground for holding that an Election Tribunal dealing with an election petition under the Bihar Panchayat Election Rules has no power of scrutinising or re-counting the ballot papers. It will be recalled that despite the provisions contained in the old Section 92 of the Representation of the People Act, 1951, it was pointed out by their Lordships of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 that the provisions of Order 11 of the Code of Civil Procedure relating to discovery and inspection of documents cannot be utilised for securing the production of the ballot papers on the simple ground that the Returning Officer is not a party to an election petition. In other words the power of scrutinising and recounting of the ballot papers, which the Election Tribunal had under Section 92, was not dependent upon its power of discovery and inspection. Such power was recognised to have existed in the Election Tribunal by reason of its power of compelling the production of documents, as will be apparent from the following passage in the judgment of their Lordships of the Supreme Court:
The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers; that power is clearly implicit in Sections 100 (1) (d) (iii), 101, 102 and Rule 93 of the Conduct of Election Rules 1961. This power to order inspection of the ballot papers which is apart from Order 11 Code of Civil Procedure may be exercised, subject to the statu tory restrictions about the secrecy of the ballot papers prescribed by Sections 94 and 128 (1).”
Rule 86 of the Bihar Panchayat Election Rules clearly provides that the Election Tribunal shall have the power of compelling the production of documents. I am, therefore, clearly of opinion that the power of scrutinising and re-counting of the ballot papers cannot be denied to the Election Tribunal on the ground that it has not been specifically invested with the powers of ordering discovery and inspection of documents.
11. The second ground which has weigh-ed with Untwalia, J. for coming to the conclusion which he has expressed in the Bench decision aforesaid is that Rule 82 of the Rules relating to the grounds on which an election, in relation to a Gram Panchayat can be declared void does not contain grounds like ‘the improper reception, refusal or rejection of any vote or the reception of any vote which is void”, which are to be found in Section 100 (1) (d) (iii) of Act 43 of 1951. I would, however, read Rule 82 along with Rule 74 and point out that the first part of Rule 82 covers a case where the Tribunal is satisfied, upon the materials before it, which of the contesting candidates has, in fact, received the majority of valid votes. In other words, the first part of Rule 82 is designed to deal with a case where the election of a returned candidate is challenged on the footing that he has not, in fact received the majority of valid votes. This ground for challenging the election of a returned candidate does not depend upon the other two grounds mentioned in Clauses (b) and (c) of Rule 74, which are covered by the remaining portion of Rule 82 (1) of the Rules, I cannot persuade myself to hold that an election petitioner who merely alleges that there has been a bungling or mistake in the matter of counting of ballot papers is left with no remedy before the Election Tribunal. On the contrary, I am inclined to think that it is open to an election petitioner to ask the Election Tribunal to hold, with reference to the ballot papers in question, that the returned candidate has not actually secured the majority of valid votes, and for coming to a correct decision on this point, the Election Tribunal must necessarily have access to the ballot papers. I would, therefore, hold that absence of any specific provision like that contained in Section 100 (1) (d) (iii) of Act 43 of 1951 in Rule 82 of the Bihar Panchayat Election Rules does not preclude the Election Tribunal from scrutinising and re-counting the ballot papers relating to the impugned election.
12. One more ground which Untwalia, J. has given for holding that the Election Tribunal constituted under the Bihar Panchayat Election Rules has no power to hold a recount of the ballot papers is that the rules do not provide for a recount of votes prior to the declaration of the results of the election, which may be done under Rule 63 of the Conduct of Election Rules, 1961. On this point, his Lordship has expressed himself in the following terms:
“To my mind, this again indicates that the framers of the Rules did not like in their wisdom to introduce the complication of recounting of votes cast in an election of the office-bearers of the Gram Panchayat at any stage–neither at the stage when the counting has been finished by the Presiding Officer or the Election Officer as the case may be nor at the stage of the trial of the election disputes. Compared to the number of elections which are held in the State of Bihar under the Representation of the People Act, the number of elections held under the Bihar Panchayat Raj Act and the Rules, is large enough to justify the keeping out the power of recounting of ballot papers where the counting has been done in accordance with the rules framed in relation to conduct of the Gram Panchayat election. In my opinion, therefore, the election tribunal has no power to order inspection or recounting of ballot papers under the rules.”
I do not, however, find any warrant for thinking that because the Bihar Panchayat Election Rules contain no provision like Rule 63 of the Conduct of Election Rules, 1961, the Election Tribunal must necessarily be deemed to have no power to scrutinise or hold a recount of the ballot papers. On the contrary, I should think that such power must be deemed to be possessed by the Election Tribunal because in the absence of such a power, any mistake or irregularity in the matter of counting of the ballot papers would remain unrectified for all times to come. Such a position cannot, in my opinion be within the contemplation of the rule-making authority. Since an order for inspection and re-count of the ballot papers can be made in appropriate cases by the court dealing with an election petition under Act 43 of 1951, in spite of the existence of a provision like Rule 63 under the Conduct of Election Rules, 1961, I should think that there is greater reason for holding that such power must be exercised by an Election Tribunal constituted under the Bihar Panchayat Election Rules, so that there may be at least one scrutiny and recounting of the ballot papers for ensuring a correct declaration of the final result of the election. I am further of the opinion that the power of the Election Tribunal dealing with a Gram Panchayat election ought not to be restricted upon a comparison of the Panchayat Election Rules with the provisions of the Representation of the People Act, 1951, and the Conduct of Election Rules, 1961, because the Bihar Panchayat Election Rules are not so elaborate as the other set of rules, and instead of making elaborate provisions, it has been indicated in Rule 87 that in respect of any matter for which no specific provision is to be found in these rules, the Election Tribunal must proceed in such matter Us it considers proper in the circumstances of a particular case. This provision leaves no room for doubt that in an appropriate case, such as one which we have before us, the Election Tribunal has full jurisdiction to scrutinise and recount the ballot papers in order to come to a correct conclusion as to which of the contesting candidates has been duly elected and to make requisite declaration under the first part of Rule 82 (1). It follows that the contrary view expressed by the Division Bench in 1967 BLJR 123 = (AIR 1967 Pat 305) is not correct and must, accordingly, be overruled.
13. The alternative contention which learned counsel for the petitioner has put forward before us takes its colour from the provisions of the Representation of the People Aet, 1951, under which an order for inspection of ballot papers would not be justified unless two conditions are satisfied; (i) that the election petition contains an adequate statement of the material facts upon which the election petitioner relies in support of his case, and (ii) that the court is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, it is necessary to hold an inspection of the ballot papers. But I do not think that the legal position is similar so far as an election petition under the Biliar Panchayat Election Rules is concerned while it is true that an inspection of ballot papers cannot be ordered as a matter of course and every effort must be made to maintain the secrecy of the ballot papers, all that is necessary to justify a scrutiny and recounting of the ballot papers is that the Election Tribunal must, in the circumstances of the case before it, feel satisfied that complete justice cannot be done between the parties unless a recount is held. Such satisfaction may be obtained by the Tribunal not merely from the evidence adduced before it, but also on the basis of the conduct of the parties. In the instant case, the Election Tribunal took note of the attitude and conduct of the petitioner in keeping away on the 15th May, 1967, and corning out at a late stage on the 5th June, 1967, with a petition that the ballot papers should not be inspected, and yet remaining absent from the Tribunal on the following day. From the attitude of the petitioner the Tribunal was amply justified in holding that the whole
g
ame of the petitioner was to let the case nger on as long as possible so that he could continue in office as long as the final results of the election petition are not known. If the petitioner thought that he had been rightly declared as the successful candidate in the election, then it would not have been necessary for him to adopt such a delaying tactics before the Tribunal. I, therefore, overrule the alternative contention of the learned counsel for the petitioner and hold that the Election Tribunal had ample justification for being satisfied that there should be a scrutiny and recounting of the ballot papers for a proper disposal of the election petition.
14. For those reasons which I have given above, I hold that no case has been made out for interference with the order of the Election Tribunal. The application is, accordingly, dismissed, but in the circumstances, there will be no order as to costs.
Misra, C.J.
15. I agree.
K.B.N. Singh, J.
16. I agree.