Letters Patent Appeal No.681 of 2008 ----- Against the judgment and order dated 23.7.2008 passed by learned single Judge in CWJC No.11855 of 2007. ------ Shyam Nandan Sharma, son of late Kamala Prasad Singh, R/o Village- Okari, PS Ghosi, Distt. Jehanabad ….. Respondent …. Appellant VERSUS 1. The State of Bihar 2. The State Election Commissioner, Bihar, Patna 3. The District Magistrate –cum- District Election Officer, Jehanabad 4. The Sub-Divisional Officer, Jehanabad 5. The Block Development Officer, Modanganj- cum- Returning Officer, PO Modanganj, PS Ghosi, Distt. Jehanabad ….. Respondents …… Respondents 1st set 6. Rajesh Kumar Ranjan, son of Sri Awadhesh Kumr Singh @ Nageshwar Singh, resident of village- J.Kurua Kaurtiya, PS Ghosi, Distt. Jehanabad …. Petitioner ….. Respondent 2nd set 7. Devendra Sharma, son of Sri Kamta Singh, resident of village- Shekhpura, PS Ghosi, Distt. Jehanabad 8. Dinkar Kumar Sharma, son of Awadhesh Singh, resident of village- Okari, PS Ghosi, Distt. Jehanabad 9. Anand Priyadarshi, son of Radhey Shyam Sharma, resident of village- Okari, PS Ghosi, Distt. Jehanabad 10. Bina Devi, wife of Shyam Nandan Sharma, resident of village- Okari, PS Ghosi, Distt. Jehanabad 11. Madan Prasad Singh, son of Late Jaishankar Singh @ Jwala Shankar Prasad Singh, resident of village- Okari, PS Ghosi, Distt. Jehanabad 12. Binod Kumar, son of Sidheshwar Singh, resident of village- Shekhpura, PS Ghosi, Distt. Jehanabad 13. Purshotam Kumar, son of Yogendra Singh, resident of village- Dhobri, PS Ghosi, Distt. Jehanabad ….. Respondents ……. Respondent 3rd set ------- For the Appellant : M/s Shyam Nandan Sharma and Anil Kumar Singh, Advocates For the Respondents : M/s Ajay Kumar Thakur, Imteyaz Ahmad and Ravindra Kumar, Advocates ------- 2 P RE S E N T THE HON’BLE THE ACTING CHIEF JUSTICE & THE HON’BLE MR JUSTICE JYOTI SARAN ------ Shiva Kirti Singh, ACJ This appeal under Clause X of the Letters Patent of Patna High Court is directed against the order/ judgment dated 23.7.2008 passed by a learned single Judge of this Court whereby the writ petition preferred by respondent no.6, Rajesh Kumar Ranjan, was allowed to the extent of setting aside of judgment and order dated 28.8.2007 passed by the Election Tribunal-cum-Civil Judge (Junior Division), Jehanabad in Election case No.31/2006 and the Tribunal was directed not to stop after the recounting of votes only of booth no.63 but to hold recounting with respect to other six booths also in the court and thereafter pass fresh appropriate order in accordance with law. The effect of the order of the Writ Court is to revive the election case which had been dismissed only after recounting of votes of booth no.63 which showed an increase of two votes in favour of respondent no.6/ writ petitioner but the Tribunal did not proceed to recount the votes of booths in spite of similar allegations made in respect of those booths and dismissed the election petition because after recounting of votes of booth no.63 it found that the respondent no.6 had obtained 752 valid votes whereas returned candidate/ the appellant still had 753 valid votes to his credit. 3 2. The matter under controversy relates to election to the post of Mukhiya of Bishunpur Okari Gram Panchyat in which besides the appellant, respondents no.6 to 13 were also the contestants. The election was held on 18.5.2006 and counting took place on 10.6.2006. It is the case of the respondent no.6 / writ petitioner that voting took place peacefully on 14 booths i.e. booth no.60 to 73 and counting of votes started on 10.6.2006 and continued till 9 pm. Thereafter, at 10 pm the election petitioner/ writ petitioner was declared as successful candidate having secured 755 votes whereas the appellant, Shyam Nandan Sharma, had secured only 747 votes. It is further case of the election petitioner that after knowing the result of counting, the supporters of the appellant started creating nuisance and disturbance. The Returning Officer i.e. the Block Development Officer, Modanganj took the appellant in a room and after some time, they came out. The election petitioner was asked to come on the next day for receiving certificate of Mukhiya. However, on the next day, he was shocked to hear that the appellant was declared successful candidate by margin of two votes. The appellant was said to have secured 754 votes against the election petitioner’s 752 votes. The election petitioner sent a fax message to the State Election Commission making allegation against the Returning Officer that due to his wrong practices, the appellant had been declared elected as Mukhiya. The Commission vide its letter dated 12.6.2006 directed the District Magistrate-cum- Returning Officer to make an inquiry in the matter. Since the election petitioner’s plea for recounting after declaration of result was not accepted, he 4 ultimately challenged the election of the appellant before the election tribunal constituted under the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as ‘the Act’). While challenging the election, the election petitioner also prayed for recounting of votes of booths no.60, 61, 62, 63, 72 and 73. It was alleged by the election petitioner that the votes actually received by the appellant were subsequently by manipulation, increased at booth no.61 from 15 to 17, at booth no.63 from 33 to 34, at booth no.65 from 56 to 57, at booth no.72 from 64 to 65 and at booth no.73 from 162 to 168 and the votes of the election petitioner were reduced at booth no. 60 from 71 to 69 and at booth no.62 from 182 to 181. 3. From the order dated 4.8.2007 passed by the Election Tribunal, it is clear that after considering the averments in the election petition and the averments in the written statement of concerned opposite parties and on consideration of large number of documentary evidence filed on behalf of the election petitioner, it came to the conclusion that purity of election appeared to have been affected by the action of the Returning Officer and the real matter in controversy cannot be ascertained without opening of the box for the purpose of recounting of the ballots of booth no.63. While coming to such conclusion, the tribunal noticed that despite several orders and directions of the tribunal, the concerned official opposite parties did not produce the original copy of documents like form 20 and 21 nor they produced the report of the District Returning Officer required by the State Election Commission through its letter dated 12.6.2006. 5 4. From the final order passed on 28.8.2007, it appears that pursuant to order dated 4.8.2007 as well as 13.8.2007 recounting of votes of booth no.63 only was done. Since the recounting of only one booth was done, allegedly without any protest hence, the tribunal rejected the petition of the election petitioner dated 16.8.2007 wherein prayer was made for recounting of votes of booths no.60, 61, 62, 65 and 73 also. Thereafter the final judgment / order was passed on 28.8.2007 itself. A grievance was raised in the writ petition that since the final judgment / order was passed on the same date i.e. 28.8.2007 hence, the writ petitioner/ election petitioner was denied the opportunity to challenge the order rejecting his petition for recounting of votes of some other booths also. 5. The Writ Court by the order under appeal appreciated the submissions on behalf of the writ petitioner that the tribunal had acted in a most illogical manner by opting for recounting of votes with respect of booth no.63 alone instead of other booths also in respect of which manipulation had been alleged. The Writ Court further found that since the recounting with respect to booth no.63 proved that the allegation made by the election petitioner was true, there was no justification for not directing for recounting of votes of other booths in respect of which similar allegation had been made. On the basis of such facts and findings, the writ petition was allowed to the extent already noticed above. 6. At the time of admitting the appeal for hearing the Bench noted the principal question falling for consideration in this appeal in 6 the following words – whether paragraph 17 of the election petition discloses cause of action for recounting of votes. The order under appeal has remained stayed during the pendency of this Letters Patent Appeal. 7. In order to appreciate the main issue involved in this appeal i.e. whether pleadings in the election petition disclose a cause of action for recounting of votes, both the contesting parties have taken us through the averments in the election petition. It is definite case of the election petitioner in paragraph 10 that on conclusion of counting on 10.6.2006 he was declared to have secured highest number of votes leading by margin of eight votes but, as per averments made in subsequent paragraphs including paragraph 17 the appellant brought the Returning Officer under his collusion and on 11.6.2006, the Returning Officer declared the appellant as the successful candidate having secured 754 votes against 752 shown to have been obtained by the election petitioner. In paragraph 12, it has been alleged that complaint was immediately sent to the State Election Commission by fax and the Commission by a letter dated 12.6.2006 called for a report from the District Magistrate –cum- District Election Officer, Jehanabad. The averments in paragraph 13 contain allegations that votes secured by the election petitioner on basis whereof he was shown to be successful candidate on 10.6.2006 were reduced illegally and by similar illegal process the votes secured by the appellant were increased. In paragraph 15, the election petitioner alleged that he filed a petition for grant of certified copy of form no.20 and 21 but the 7 Returning Officer had deliberately avoided to grant certified copy because there had been manipulation in form no.20 and incorrect preparation of form no.21. 8. In paragraph 16, the election petitioner claimed that the total receipt of votes by him and the appellant as noted by one Umesh Sharma of village Kouriya in the counting hall was being enclosed and thereafter in paragraph 17 the mathematical figures were mentioned alleging how many votes were increased in favour of the appellant at different booths by manipulation and how many votes in favour of the election petitioner were reduced at different booths, also by manipulation. 9. On a careful consideration of the averments made in the election petition, as noticed above including those in paragraph 17 of the election petition, it is apparent that according to the case of the election petitioner there was no illegality or malpractice committed during the original counting of votes on 10.6.2006 but subsequently the number of votes polled by the election petitioner and the appellant were changed by manipulation and the appellant was wrongly declared to be successful candidate by showing that he had secured 754 votes against 752 shown to have been obtained by the election petitioner. 10. On behalf of the appellant it was strenuously argued that the allegations made in the election petition were not sufficient and lacked material particulars for interfering with the secrecy of the ballot papers by ordering for recounting of votes. It was also submitted that the law is well settled by several judgments of the Apex Court and of 8 this Court that recounting of votes cannot be ordered unless there has been written application for recounting made to the Returning Officer as required by Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as ‘the Rules’). 11. Taking the second submission first, it is found that as per law settled by the Apex Court in the case of Chandrika Prasad Yadav v. State of Bihar, AIR 2004 SC 2036 and in Hoshila Tiwari v. State of Bihar, 2008 (4) PLJR (SC) 62, Rule 79 of the Rules contains an important provision which empowers a candidate to make a written application for recounting stating the grounds for the same. If a candidate, who had this opportunity, does not avail of the same and fails to make a written application to the Returning officer, he must satisfy the tribunal giving cogent reasons why no such application could be made at the relevant time for consideration by the Returning Officer himself for the purpose of recounting of ballot papers. In absence of such written application for recounting or good and valid explanation for not making such an application, a subsequent claim for recounting of votes before the election tribunal may not carry much weight. However, the facts of each case must be appreciated for finding out whether a valid and good explanation has been made out for not making the required application for recounting of votes under Rule 79 of the Rules. 12. In the facts of the present case, it is clear that there was no complaint of any mistake or malpractice in counting of votes and the election petitioner was given to understand that he had secured highest 9 number of votes and would be given the certificate of being the returned candidate for the post of Mukhiya on the next day. In such circumstances, there could be no question of filing of a written application for recounting of ballot papers of any of the booths before the Returning Officer on the date and time of original counting, as contemplated by Rule 79 of the Rules. Hence, this submission on behalf of the appellant is found to be without any merits. 13. Before taking up other submission that the averments in the election petition are not sufficient to make out a case for recounting, it would be proper to record the fact that learned senior counsel for the appellant, Mr Shyam Nandan Sharma raised several issues and cited several judgments of the Apex Court covering almost the entire ambit of law relating to requirement of pleadings of material facts with fullest possible particulars. Some of the judgments cited were on the issue of allegations relating to corrupt practices. On the other hand, learned counsel for the respondent no.6 / the writ petitioner denied the aforesaid submissions. According to him, material particulars for recounting are contained in the election petition, particularly paragraphs 16 and 17 thereof. 14. Learned senior counsel for the appellant relied upon following judgments of the Apex Court for the proposition that if the grounds for recounting are vague and material facts are not pleaded then recounting cannot be ordered – (1) AIR 1969 SC 1201 ( SN Balakrishna v. Fernandez) (2) AIR 1970 SC 276 (Jitendra Bahadur v. Krishna Behari) (3) AIR 1972 SC 515 ( Hardwari Lal v. 10 Kanwal Singh) (4) AIR 1975 SC 403 ( Chanda Singh v. Shiv Ram) (5) AIR 1984 SC 396 (Hari Rai v. Hira Singh). 15. On behalf of the appellant special emphasis was laid on the judgment of the Supreme Court in the case of Satyanarain Dudhani v. Uday Kumar Singh, AIR 1993 SC 367, to highlight the principle that recounting of votes should not be done as a matter of course. In that case, the Supreme Court found that no objection was raised during counting and there was no evidence produced supporting commission of irregularities or illegalities in counting of votes and hence, recounting of votes ordered by the High Court, was set aside. 16. On behalf of respondent no.6, Mr Ajay Kumar Thakur, learned counsel, did not dispute the proposition of law settled by the Apex Court in the aforesaid judgments. His pointed reply was that in the present case the election tribunal as well as the writ court was satisfied that there was adequate statement of material facts and on the basis of evidence adduced on behalf of the election petitioner, the tribunal found that sufficient case had been made out for recounting of ballots. The election tribunal found that the materials brought on record raised a doubt regarding purity of the election in question and it also found that without opening of box for the purpose of recounting of ballot of booth no.63, the real controversy could not be resolved. It was further pointed out by Mr Thakur that against the finding in respect of Rule 79 of the Rules as well as for recounting of votes of one of the booths after reopening the box, no challenge was made by the appellant either before the election tribunal or before the writ court nor any cross 11 appeal has been preferred. It was further pointed out that on appreciation of facts noticed above as well as in view of finding by the election tribunal that there was overwriting in form no.20 and 21 and in spite of summons, the original forms were not produced, on facts the tribunal and the writ court have committed no error. It was further submitted that the writ court has been guided solely by the material facts within the parameters of law laid down by the Apex Court in coming to a conclusion that interest of justice as well as simple logic and reasonableness requires recounting of ballot papers even in respect of other booths in respect of which there was adequate allegation supported by evidence laid on behalf of the election petitioner. 17. The law relating to the issue involved in this appeal is well settled and it is found that the election tribunal as well as the writ court has decided the matter as per the settled law. The necessary allegations made in the election petition have been supported by necessary facts and there is no material to hold that a prima facie case has not been made out for recounting. The materials on record leave no room for holding that the election petitioner was attempting only for a roving and fishing inquiry. In the facts of the case, the settled law as well as justice required ordering for recounting of votes of all the concerned booths which were specifically pleaded to have been subjected to manipulation by enhancing the number of votes of the appellant and reducing the votes secured by the election petitioner, after recounting was over. 12 18. In view of facts stated in the relevant paragraphs of the election petition as indicated earlier, the settled law and the evidence adduced on behalf of the election petitioner, I am in agreement with the submissions advanced on behalf of the respondent no.6 / election petitioner and find no illegality in the order under appeal passed by the Writ Court. For the purpose of finding out whether the election petition disclosed cause of action for recounting of votes, paragraph 17 read with other material paragraphs noticed earlier leaves me with no option but to hold that the election petition discloses sufficient cause of action for recounting of votes. 19. In view of aforesaid facts, discussions and findings, I find no merit in this appeal. It is accordingly dismissed. However, there shall be no order as to costs. (Shiva Kirti Singh, ACJ) I agree. Jyoti Saran, J. (Jyoti Saran, J.) Patna High Court The 7th October, 2009. AFR/ S.Kumar