ORDER
R.S. Garg, Ag. C.J.
1. By this petition, filed under Article 227 of the Constitution of India, petitioner seeks to challenge the correctness, validity and propriety of the order dated 25-5-2000 passed in Case No. 2/A-89A (4)/99-2000 granting election petition of the respondent No. 5 and directing recount of the votes.
2. According to the learned counsel for the petitioner as an application for recount was not made to the returning officer immediately after declaration of the results, the Tribunal could not accept the plea and direct recount. It is further submitted that the Court/Tribunal has acted contrary to law by issuing a direction to the Returning Officer to recount the votes in the entirety. According to learned counsel for the petitioner, when the election petition is allowed by the Tribunal, then the Tribunal alone has the jurisdiction to direct recount and it is bound to recount the votes itself.
3. Learned counsel for the respondent No. 5, on the other hand, submits that the petitioner, immediately after counting of the votes, made a complaint to the Polling Officer that the counting slips were not issued to them and he also wanted to make a request for recount by the Polling/Counting Officer informed them that such an application is to be filed before the Returning Officer. Thereafter the respondent No. 5 met the Returning Officer and wanted to supply him the application for recount but his request was turned down and he was advised to file the election petition. According to the learned counsel for the respondent No. 5, even in the statements of the witnesses the facts have come that the counting slips were not issued and as none has said contrary to the statements of the respondent No. 5 that he went to make an application to the Returning Officer which the Returning Officer refused to accept, the Tribunal below was absolutely justified in granting the election petition in his favour. So far as the operative portion of the judgment of the lower Tribunal is concerned, he concedes to the argument submitted by learned counsel for the petitioner.
4. Shri Ranbir Singh, learned counsel for the State, however, submits that as the matter relates to election dispute, the State has nothing to say.
5. The respondent No. 5 examined himself as a witness. In his statement, he has clearly stated that he made an oral request to the Polling/Counting Officer for recount and also wanted to submit an application to him on which the Presiding/Counting Officer informed him that such an application was required to be filed before the Returning Officer. The respondent No. 5 also stated that immediately after the counting was over, the counting slips were not supplied to the petitioner. True it is that the petitioner as a witness, stated before the Tribunal that after finding that the respondent No. 5 lost the elections, he left the premises and thereafter the counting slips were supplied
to all. A serious dent has been given to the statement of the petitioner by another candidate who was examined as D.W. 2/1. Said Prabhat Mandal clearly stated that at the time of the counting, no dispute was raised but the counting slips were not supplied to anybody. Similarly, the D.W. Vishnu also stated that the counting slips were not supplied to the parties. D.W. Sushant Bairagi also stated that the counting slips were not given to all the candidates but it was only given to the petitioner Asim Saha through his agent Kamal Sana. From these statements, it does not appear that the lower Tribunal was unjustified in recording a finding that the mandatory provisions relating to supply of the counting slips were not violated.
6. So far as the respondent No. 5’s submission, that he tried to give an application to the Returning Officer but he refused to receive it, is concerned, it cannot be brushed aside simply on the ground that no application was submitted to him. What the law requires is that if somebody wants to raise a ground to challenge the election on the ground of recount or illegal acceptance or rejection of the votes, then it is expected of him that he must make an application to the Returning Officer immediately after the results are declared. But, the law does not say that if the Returning Officer refuses to receive such an application, then too the Court/Tribunal would harp upon the compliance of the said requirement. The law simply expects from everybody that everybody would follow the law and legal provisions. A person who is duty bound to receive such an application, if refuses to receive it, then the presentation of such an application before such authority would be deemed to be submission of such an application to that authority. If the authority refuses to accept the application, then it is not expected of an applicant that he would pounce upon the said authority, use criminal force and compel him to receive the application. Ultimately, it would be for the Tribunal to appreciate whether such an application was sought to be filed or in fact was filed. If such an application was presented before the authority but the said authority refused to accept the application, then the mandate as contained in the legal provisions relating to the election petition would be deemed to have been fully complied with.
7. In the present case, the respondent No. 5 has proved that he submitted an application to the Returning Officer with a prayer for recount but the said Returning Officer refused to receive the application.
8. On the merits, it cannot be held that the Tribunal was unjustified in granting the election petition and in directing the recount.
9.
So far as the operative portion of the order passed by the lower Tribunal is concerned, the same deserves to be modified. It is not expected of a Tribunal that it would delegate its functions. When a plea is accepted by the Election Tribunal regarding rejection or acceptance of certain votes, then it is the paramount duty rather pious duty of the Tribunal to itself count and recount the votes. The lower Tribunal unfortunately lost sight of the fact that it was
asking the same authority to recount which earlier committed the illegalities. The power to recount cannot be delegated to third parties as it is the duty of the Tribunal, which it must discharge in accordance with law.
10. So far as grant of election petition is concerned, the same is maintained but with the further direction that within seven days from the date of submission/receipt of copy of this order, the Election Tribunal shall call for the ballot boxes from the custodian of the same. Thereafter, it shall give a date of hearing to all concerned and in their presence, it shall open the boxes and thereafter recount the votes in accordance with law. The result of the recounting shall be declared in accordance with law and that shall form part of the judgment of the lower Tribunal.
11. The petition, to the extent indicated above, is allowed. There shall be no order as to costs.
12. Writ Petition partly allowed.
