Election Laws:
Panchayat Election – Complaint against returned candidate, by the election petitioner – Alleging that despite objection, number of valid votes cast in his favour were being rejected and invalid votes in favour of returned candidate were accepted – The Tribunal finding the irregularities in counting of votes declared his election as null and void and directed recounting of votes – In Writ Petition Single Judge of High court held that before recounting of votes, election of returned candidate should not have been set aside and relegated the parties to Tribunal for passing appropriate order after result of recounting – After recounting process, results were kept in sealed envelope – LPA filed against order of Single Judge – Tribunal’s direction to place the result in sealed envelope before District Election Officer-cum-District Magistrate for declaration of the result – Challenged by returned candidate by way of a writ petition – The LPA as well as the writ petition of returned candidate was decided against the election petitioner setting aside the direction of recounting of votes – Appeal to Supreme Court – Held : Division Bench reversed the well considered decision of Election Tribunal and Single Judge of High Court, without analysing the pleadings and the evidence – A declaration u/s. 140 of Bihar Panchayat Raj Act, 2006 is issued that the election of the returned candidate is set aside being invalid and election petitioner is declared as having been duly elected – Bihar Panchayat Raj Act, 2006 – s. 140. Disposing of the appeal, the Court
HELD : 1.1 The Division Bench of High Court reversed the well-considered decision of the Election Tribunal, which has justly been upheld by the Single Judge of High Court, without analysing the pleadings and the evidence adduced by the appellant/election petitioner during the trial of the election case. The impugned judgment merely adverts to the interim orders passed during 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 be answered against the appellant/election petitioner and in favour of respondent No. 1. [Para 8] [533-A-C]
1.2 Without reversing the finding of facts so recorded by the Election Tribunal, merely by referring to decisions of this Court, the Division Bench could not have disturbed the order of recount as directed by the Election Tribunal in the peculiar facts of the present case. Inasmuch as, the appellant/election petitioner had not only pleaded about the serious irregularities committed by the officials during the counting of valid votes cast in his favour and invalid votes taken into account in favour of respondent No. 1, but had also examined witnesses to substantiate that fact, as noted by the Election Tribunal and the Single Judge of the High Court. [Para 8] [536-F-H]
Mahender Pratap v. Krishan Pal & Ors. (2003) 1 SCC
390 : [2002] 4 Suppl. SCR 339 – distinguished.
Bhabhi v. Sheo Govind & Ors. (1976) 1 SCC 687 ; [1975] Suppl. SCR 202 – referred to.
1.3 Since the appellant had substantiated the allegation made in the election petition and the Election Tribunal being convinced about the said claim proceeded to issue order of recount. No fault can be found with that approach of the Election Tribunal nor it is possible to suggest that the Election Tribunal or the Single Judge was not conscious about the necessity to substantiate the allegation about the serious irregularities committed by the officials during the counting. The Court or Tribunal can direct recount of votes even if the party had not applied in writing for recounting of votes to the Returning Officer. There is no provision in the Bihar Panchayat Raj Act, 2006 or in the Rules prohibiting 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 has secured 95 excess valid votes, more than the valid votes secured by respondent No. 1. That has reinforced the challenge set up by the appellant that the officials had committed serious irregularities bordering on intentional manipulation of the valid votes secured by the appellant. As a result, the Court upholds the order of recount of votes, as passed by the Election Tribunal (dated 11.10.2018) and justly upheld by the Single Judge, in the facts of the present case. [Para 11] [539-C-D]
2. The direction issued by the Election Tribunal to place the report contained in sealed envelope before the District Election Officer-cum-District Magistrate for declaration of result, even if inappropriate, would not affect the order of recount of votes. It was open to the High Court to mould the direction issued by the Election Tribunal and instead issue declaration as envisaged under Section 140 of the Bihar Panchayat Raj Act, 2006. A declaration is issued under Section 140 of the Act that the election of respondent No. 1 as returned candidate is set aside being invalid, and instead the appellant/election petitioner is declared as having been duly elected having secured highest votes amongst the contesting candidates and 95 more valid votes than that 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, dated 11.4.2019, which was subject matter of the writ petition filed by respondent No. 1 also dealt with the application filed before it alleging forgery of record/documents of the Tribunal. The Tribunal has rightly observed that that is a separate matter and would require independent enquiry, for which the petition has been treated as a petition under Section 340 of the Criminal Procedure Code (Cr.P.C.) to be dealt with as per law. [Para 13] [540-D-E]
3.2. Respondent No. 1 by way of written submissions filed after the matter was reserved for judgment, has adverted to certain factual matters, so as to question the result of recount of votes. Presumably, the alleged acts of commission or omission are already subject matter of proceedings initiated under Section
340 of the Cr.P.C. That need not detain the Court from disposing of this matter. The new factual matters do not find mention in the impugned judgment. It would be open to respondent No. 1 to pursue proceedings under Section 340 of the Cr.P.C., which will have to be decided on its own merits in accordance with law. [Para 13] [540-F-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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