IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.352 of 2010
RENU DEVI W/O NAVIN SINGH R/O VILL.- NIMA, P.O.
SHYAM NAGAR NIMA, P.S. AMAS, DISTT.- GAYA
...RESPONDENT - APPELLANT
VERSUS
1. KUSUM DEVI W/O MATHURA PRASAD RAVIDAS R/O
VILL.- AKAUNA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
2. ZUBAIDA KHATOON W/O MUNSHI NAYEEMUDDIN R/O
VILL.- BAIDA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
3. DURGAWATI SINGH W/O SATYENDRA KUMAR SINGH R/O
VILL.- NIMA, P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.-
GAYA
4. NAZRINA KHATOON W/O AFROZ KHAN R/O VILL.-
SUPAIL, P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.-
GAYA
5. PUNAM DEVI W/O ASHOK KUMAR SINGH R/O VILL.-
NIMA, P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.- GAYA
6. BABITA DEVI W/O LAXMAN MANJHI R/O VILL.- SUPAIL,
P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.- GAYA
7. MADHURI DEVI W/O ARUN KUMAR MAURYA R/O VILL.-
AKAUNA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
8. SHAHNAZ KHATOON W/O NEYAZ AHMAD KHAN R/O
VILL.- SUPAI, P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.-
GAYA
9. SHAHNAZ BANO W/O MD. KHALIQUR RAHMAN R/O
VILL.- BAIDA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
10. SHANTI DEVI W/O RAJESHWAR SINGH R/O VILL.- NIMA,
P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.- GAYA
11. SHOBHA DEVI W/O SHARVAN KUMAR R/O VILL.-
AKAUNA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
12. SALMA KHATOON W/O MD. IRSHAD ANSARI R/O VILL.-
AKAUNA, P.O. SHERGHATI, P.S. AMAS, DISTT.- GAYA
13. SUFI KHATOON W/O KHAIRUDDIN AHMAD R/O VILL.-
KURMATHU, P.O. SHYAM NAGAR NIMA, P.S. AMAS, DISTT.-
GAYA
14. THE STATE OF BIHAR THROUGH PRINCIPAL
SECRETARY PANCHAYATI RAJ GOVT. OF BIHAR, PATNA
... RESPONDENTS- RESPONDENTS
2
15. SABINA KHATOON W/O BADRUDDIN AHMAD R/O VILL.-
KURMATHU, P.S. AMAS, DISTT.- GAYA
..... WRIT PETITIONER- RESPONDENT
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FOR THE APPELLANT : M/s Rajendra Pd. Singh, Sr Advocate
Rajeev Kr. Singh, Nand Kishore Singh
Rakesh Kr. Singh, Advocates
FOR THE RESPONDENT : Mr S.B.K. Mangalam, Advocate
———-
PRESENT
THE HON‟BLE THE CHIEF JUSTICE
THE HON‟BLE MR JUSTICE SHIVA KIRTI SINGH
Shiva Kirti Singh, J. This appeal under clause 10 of the Letters Patent
of this Court has been preferred against the judgment and order of the
learned single Judge dated 3.2.2010 whereby writ petition bearing
CWJC No.2159 of 2009 has been allowed by setting aside judgment
of learned Additional Munsif, Sherghati, Gaya – cum- Election
Tribunal in Election Petition No.01 of 2006/ 01 of 2007 with a further
direction that the learned Tribunal will rehear the arguments and
proceed in accordance with law to deliver judgment.
2. Appellant is the successful candidate in the election held
on 2.6.2006 for Gramp Panchayat Akauna ,Block Amas, District
Gaya. Her margin of victory over the writ petitioner was of four votes.
3. According to the case of the writ petitioner / election
petitioner, the counting of votes which began on 18.6.2006 was
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completed at about 2.30 a.m. of 19.6.2006 and it was announced that
the election petitioner had secured 651 votes against 634 by the
appellant and had thus won the election by a margin of 17 votes. It is
her further case that the Returning Officer, the Anchal Adhikari of
Sherghati block on account of being tired, decided to prepare Form 21
and 22 and issue the certificate etc. at 10.00 a.m. on 19.6.2006 but
when the election petitioner reached the counting station at 9.30 a.m.,
she was surprised to find that Form 21 and 22 had been prepared and
issued in favour of the appellant and by manipulation in preparing
Form 20 the writ petitioner was shown to have secured 620 votes only
against 624 votes by the appellant.
4. Admittedly, the writ petitioner did not or could not file
any application for recount of votes before the Returning Officer as
required by Rule 79 of the Bihar Panchayat Election Rules 2006
(hereinafter referred to as „the Rues‟) nor any further explanation was
pleaded in the election petition for not filing such a petition for
recounting of votes.
5. The stand of the appellant in her written statement was
that the counting of votes began at SMS College, Sherghati and
continued without any break till declaration of results on 19.6.2006
and no results either official or unofficial was announced by any
official before completing final scrutiny under Instruction No.18 of
Chapter II of Book of Instructions issued by the State Election
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Commission, Bihar. It was only after scrutiny of ballot papers that the
result was declared in favour of the appellant who was granted
certificate as per law.
6. The deposition of the Returning Officer annexed as
Annexure-5 to the writ petition discloses that he has categorically
stated that counting of votes continued without any break till
afternoon of 19.6.2006 and only thereafter the results were declared
and before that results had not been declared officially any time. He
has further deposed that during the counting of votes nobody raised
any objection and on scrutiny by him it had been ascertained that the
appellant had secured majority votes and hence, she was declared
elected as per law. He has also deposed that scrutiny was done in
presence of observers. He has categorically denied the claim of the
writ petitioner/ election petitioner that he had asked her to collect
certificate in the morning. He has also denied that Form 21 and 22
were prepared behind the back of any candidate or agent.
7. From the judgment and order of the Election Tribunal
dated 16.12.2008 contained in Annexure-6 to the writ petition, it is
found that he has considered all the relevant facts as well as several
judgments of the Apex Court and this Court and found that the
election petitioner had not filed application under Rule 79 of the Rules
and had failed to make out any case for recounting. The issue of
corrupt practice was also decided against the writ petitioner / election
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petitioner on the basis of evidence and other cogent materials.
Accordingly, the election petition was dismissed on contest.
8. From the order under appeal it has been shown that the
learned single Judge has not found any error in the approach of the
Election Tribunal either on facts or on law but has concluded at the
very beginning of the order as follows : –
“Both the learned counsels agreed that the Trial
Court has found that after votes were counted, the
Returning Officer carried out a recheck of votes
when parties were not present. He accordingly
corrected From 20 and later declared result on that
basis. Election petition has been dismissed on the
sole ground that as required by Rule 79 of the
Bihar Panchayat Election Rule 2006, petitioner had
not given any application for recount and not
having done so, his prayer for recount in the
election petition could not be entertained. In my
view the judgment can not be sustained.”
9. So far as scope and effect of Rule 79 of the Rules is
concerned, by now the law is well settled by catena of judgments
that normally for success before the Election Tribunal on the plea of
recounting of votes, an election petitioner must show that
opportunity was availed and required application under Rule 79 of
the Rules was filed before the Returning Officer at the appropriate
time. It is also settled law that non- filing of such application can be
explained on the basis of specific pleadings to the effect that the
situation or the circumstances were difficult and chaotic or that for
any such good reason such application could not have been filed
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before the Returning Officer. When such explanation is found
convincing, non filing of application under Rule 79 can be ignored
and if a case is made out on evidence, order can be passed by the
Election Tribunal for recounting of votes in part or whole as per
case made out.
10. In the present case, the explanation for non- compliance
with Rule 79 is not based upon any finding of fact by the Election
Tribunal or arrived at by the Writ Court but only because both the
counsels agreed that after counting of votes, scrutiny was carried out
when parties were not present. In the appeal, a strong protest has been
raised that no such agreement was expressed by learned counsel for
the appellant. It has been further submitted that when parties had
filed their pleadings as claim and counter claim before the Election
Tribunal and had led evidence on the disputed facts and issues, it was
not proper to decide such an important issue on the basis of an alleged
verbal agreement of counsel for the appellant before the Writ Court
that recheck or scrutiny was made when parties were not present.
11. When an election dispute has been decided after contest
on the basis of averments of the parties and evidence adduced by
them, in our considered view, it would not be prudent to interfere
with findings in such a judgment of the Election Tribunal only on
verbal submissions of one of the counsels. Verbal submissions on
such vital issue may suffer from several defects and infirmities
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including non- preparedness on the part of the counsel, lack of
communication skills on his part or misunderstanding the
communication. Clearly, it would be highly unjust and unfair to the
concerned party to ignore her pleadings and evidence and decide an
important issue after the same has been decided by the original court,
merely on verbal stand of his counsel.
12. It is found that it was on such verbal admission by the
counsel of the appellant before the Writ Court that the judgment of
the Election Tribunal was set aside after giving a finding that the
prayer of recount had been incorrectly decided on the basis of
absence of application under Rule 79 of the Rules.
13. I am of the considered view that the finding of the
learned Election Tribunal on the issue of recount could be reversed
only on the basis of pleadings and evidence and not merely on the
basis of verbal concession of counsels for the parties. Such
concession, in the facts of the case, could not be a legal and sufficient
material to neutralize the pleadings and evidence available on record
before the Election Tribunal.
14. Learned counsel for the writ petitioner submitted that in
view of pleadings and evidence of the writ petitioner before the
Election Tribunal it must be held that sufficient explanation was
made out for not filing the application for recounting of votes
required by Rule 79 of the Rules. We have examined the pleadings
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and other materials on that basis but we are not in a position to take a
different view from that of the Election Tribunal that no case has
been made out for recount of votes. The matter could have been
different if the case made out by the writ petitioner that scrutiny was
done behind her back after declaration of result had been accepted by
the appellant in her pleadings and evidence or if there had been a
finding on evidence that the writ petitioner had succeeded in
establishing her claim. But that is not the situation here. Hence, there
is no option but to interfere with the judgment of the Writ Court. As
a result, the same is set aside and the writ petition is dismissed.
15. This appeal stands allowed but without any order as to
costs.
(Shiva Kirti Singh, J.)
R. M. Doshit, CJ I agree.
(R. M. Doshit, CJ)
The 13th July, 2010
NAFR
S.Kumar