IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1544 of 2009 DHARAMSHILA DEVI, W/O SRI MANJI SINGH, R/O VILL.- ANHARI BAG, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL- JAGDISHPUR, DISTT.- BHOJPUR ……… (RESPONDENT No. 4) ……………………………………………….…………..APPELLANT Versus 1. THE STATE ELECTION COMMISSION, SONE BHAWAN, BIRCHAND PATEL PATH, PATNA THROUGH THE STATE ELECTION COMMISSIONER, PATNA, 2. THE DISTRICT MAGISTRATE-CUM-DISTRICT ELECTION OFFICER (PANCHAYAT), DISTT.- BHOJPUR, 3. THE RETURNING OFFICER (PANCHAYAT)-CUM-BLOCK DEVELOPMENT OFFICER, JAGDISHPUR BLOCK, DISTT.- BHOJPUR, 4. ASHA DEVI, W/O RAM BABU, R/O VILL.- ANHARI BAG, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL- JAGDISHPUR, DISTT.- BHOJPUR, 5. CHAND MINI DEVI, W/O JAI RAM SINGH, R/O VILL.- BHAIRO KE MARAYEE, P.O. HETAMPUR, P.S. TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR AT ARA, 6. INDRA RASHANI DEVI, W/O SHEO PARSHAN SINGH, R/O VILL.- PANCH KE TOLA, P.O.- MANODEHRI, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 7. KAMINI DEVI, W/O HARI KRISHNA SINGH, R/O VILL.- HETAMPUR, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 8. MINA DEVI, W/O SURENDRA SINGH, R/O VILL.- HETAMPUR, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 9. RUNA DEVI, W/O SRI DIWAS SINGH, R/O VILL.- HETAMPUR, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 10. LALITA DEVI, W/O HIRDYA SINGH, R/O VILL.- PANCH KE TOLA, P.O.- MANODEHRI, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 11. LAL MINI DEVI, W/O PARAS SINGH, R/O VILL.- HETAMPUR, POST- HETAMPUR, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 12. LAL MUNI DEVI, W/O VIJAY SINGH, R/O VILL.- AMRUYA, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL- JAGDISHPUR, DISTT.- BHOJPUR, 2 13. BADRI DEVI, W/O MAHENDRA RAI, R/O VILL.- HETAMPUR, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 14. SHABNAM DEVI, W/O SURENDRA SINGH, R/O VILL.- AMRUYA, P.O.- HETAMPUR, P.S.- TIYAR, ANCHAL- JAGDISHPUR, DISTT.- BHOJPUR, 15. SHAKUNTLA DEVI, W/O KAMTA KUNERA, R/O VILL.- HETAMPUR, P.O.- HETAMPUR, P.S.- TIYAR ANCHAL JAGDISHPUR, DISTT.- BHOJPUR, 16. SULAKSHANI DEVI, W/O RAMBHAJU MAHTO, R/O VILL.- HETAMPUR, POST- HETAMPUR, P.S.- TIYAR ANCHAL- JAGDISHPUR, DISTT.- BHOJPUR, (ALL RESPONDENTS) 17. PRAMILA DEVI, W/O SRI RABINDRA SINGH, R/O VILL.- KATAI BOJH, P.O.- MANO DEHRI, P.S.- TIYAR ANCHAL JAGDISHPUR, DISTT.- BHOJPUR ………… (WRIT PETITIOENR) …………. RESPONDENTS. ----------- For the Appellant:- Mr. Basant Kumar Choudhary, Sr. Advocate with Mr. Sanjay Kumar, Advocate. For the State Election Mr. R.S. Pradhan, Sr. Advocate with Commission:- Mr. Sanjeev Nikesh and Mr. Dheeraj Kumar Roy, Advocates. For the Respondent No.17:- Mr. S.B.K. Mangalam & Ms. Anamika Dubey, Advocates. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (11.02.2010) As per Dipak Misra, C.J.- The centroidal and seminal issue that emanates for consideration in this appeal preferred under Clause 10 of the Letters Patent is whether annulment of the order dated 15.04.2009 passed in Election Petition No. 3 06/2006 by the learned 2nd Munsif, Bhojpur at Arrah, the election tribunal under the Bihar Panchayat Raj Act, 2006 (for brevity `the Act’), whereby he had allowed the election petition and set aside the election of the elected candidate solely on the basis of recount of votes by the learned single Judge vide order dated 13.11.2009 passed in CWJC No. 5131 of 2009 is defensible in law or warrants to be dislodged. 2. Filtering unnecessary details, the factual exposé necessitous for adjudication of the present appeal are that the appellant-petitioner (hereinafter referred to as `the petitioner’) contested for the post of Mukhiya of Gram Panchayat Raj, Hatempur in Jagdishpur Block of District – Bhojpur. The counting of votes had taken place on 16.06.2006. The respondent no. 17, Pramila Devi, was declared elected having secured 796 valid votes whereas the petitioner had secured 792 votes. It is an admitted fact that at the time of counting of votes no protest was lodged by the petitioner. The election of the elected candidate was called in question before the election tribunal on the ground of irregularity in counting. The tribunal framed 4 certain issues for adjudication of the controversy. In course of recording of evidence, the election petitioner moved an application for calling for the ballot papers of certain Wards for the purpose of re-count alleging that initially on close of counting, the election petitioner was declared elected by a margin of four votes but, on the next day, when the results were formally announced, the respondent no. 17 was shown to have won by four votes and, accordingly, results were declared. A complaint was sent to the State Election Commission which sought explanation from the District Election Authorities but what ensued thereafter was not known to the election petitioner as no one had stated anything regarding that in the written statement or in evidence. On 05.02.2009 the election tribunal noticing the facts mentioned hereinabove called for the ballot papers of certain Wards. The tribunal noted that it had called for the ballot papers at that stage to save time if at a later stage if it would be thought seemly and appropriate to order for a recount. As is patent from the order passed by the tribunal, on 03.03.2009 the evidence of the election petitioner was concluded and, as no one 5 was present on behalf of the returned candidate, the tribunal foreclosed the evidence. Thereafter, pursuant to the order dated 05.02.2009 the records that had been received from the custodian of ballot papers were directed to be exhibited and the matter was fixed for arguments. On 06.03.2009, on a prayer being made by the elected candidate, the order foreclosing evidence was recalled and witnesses were examined on several dates. On 25.03.2009 recording of evidence was completed and the matter was set out for arguments. Arguments were concluded on 02.04.2009 and the matter was fixed for delivery of judgment on 13.04.2009. On the said date the learned Munsif instead of delivering judgment proceeded with recount and marked various documents as exhibits on behalf of one party or the other. Nothing has been mentioned that the same was done in presence of the parties or the documents were marked on the basis of admission by the parties. Eventually, the judgment was rendered on 15.04.2009 and the tribunal on the basis of re- count done by itself expressed the view that the elected candidate had, in fact, secured 726 valid votes whereas the 6 election petitioner had secured 792 valid votes. Being of this view, the tribunal declared the election petitioner to have been elected as Mukhiya. 3. Being dissatisfied with the aforesaid order, the respondent no. 17 herein invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India by preferring a writ petition. It was contended before the learned single Judge that the tribunal has fallen into grave error by calling for ballot papers without any material on record anticipating that in case of recount to be directed, the same would be necessary; that the recount process was taken up by the learned Munsif by himself in the absence of parties and, that too, without any justification or warrant for recount of ballot papers; that the tribunal has committed serious irregularity by expressing the view that the ballot papers were public documents; that the election petitioner had not made out a case for recount by leading cogent evidence; that no finding was recorded by the learned Munsif to the effect that the counting stood vitiated in view of the evidence brought on record but straightway proceeded for re-count 7 on his own which is inconceivable in law; and that the procedure adopted by the tribunal is wholly illegal and the elected candidate should not suffer inequitable decision of being unseated from the post of Mukhiya. 4. The learned single Judge appreciating the factual scenario in entirety and considering the submissions canvassed before him came to hold that the recount of votes was done by the tribunal on its own and the said exercise was undertaken in the absence of the parties or their counsel; that the documents could not have been marked as exhibits as the same had not been proven by adducing evidence; that the tribunal has fallen into grave error by not recording a finding that a recount was warranted in the obtaining factual matrix. 5. Being of this view the learned single Judge quashed the order passed by the tribunal and directed that another Munsif should take up the matter and conclude the same within two months. 6. We have heard Mr. Basant Kumar Choudhary, learned Senior Counsel along with Mr. Sanjay Kumar, Advocate for the appellant, Mr. R.S. Pradhan, learned 8 Senior Counsel along with Mr. Sanjeev Nikesh and Mr. Dheeraj Kumar Roy, Advocates for the State Election Commission and Mr. S.B.K. Mangalam along with Ms. Anamika Dubey, learned counsel for the respondent no. 17. 7. It is submitted by Mr. Choudhary, learned Senior Counsel for the appellant that the learned single Judge has fallen into grave error by not taking note of the fact that the tribunal was convinced that the recount was the warrant on the basis of the assertions made in the petition and other material on record and hence, the order of recount did not suffer from any infirmity. The further proponement of Mr. Choudhary is that the appellant has been declared elected by a margin of 66 votes and, therefore, regard being had to the concept of purity of election in a democratic set up the final order should not have been unsettled. 8. Mr. Mangalam, learned counsel for the contesting respondent supporting the order of the learned single Judge canvassed that the order of the tribunal being wholly unsustainable has been correctly lanceted by the learned 9 single Judge inasmuch as the tribunal had not ascribed any cogent and germane reason while undertaking the exercise of recount of votes. It is his further submission that the tribunal should have kept in mind that a strong case has to be made out for recount as secrecy of votes has its own sacrosanctity in a democratic polity and, further, unless acceptable cogent evidence is brought on record, a recount cannot be directed or undertaken in a routine manner. It is urged by him that when the tribunal has proceeded with recount without recording a finding in that regard, the result emanating therefrom cannot be the governing factor to give the stamp of approval to the order of recount as the same being vulnerable from the very beginning. It is put forth by him that as the tribunal has adopted a novel procedure in the case at hand as the ballot papers were called for anticipating an order of recount and further the recount was done by itself in the absence of the counsel for the parties the entire exercise plays foul to the fundamental conception of recount of votes. 9. Before we advert to the factual matrix and appreciate the rivalised submissions canvassed at the Bar, 10 it is profitable to refer to certain authorities in the field relating to recount of votes. 10. In Bhabhi v. Sheo Govind and others, AIR 1975 SC 2117, a two-Judge Bench of the Apex Court while dealing with conception of recount of ballot paper has laid down the following principles: “15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving 11 inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials. If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.” 11. In Ku. Shradha Devi v. Krishna Chandra Pant and Others, AIR 1982 SC 1569, it has been held thus: “8. When a petition is for relief of scrutiny and recount on the allegation of misconduct, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of misconduct, petitioner must furnish prima facie proof of such error.” 12. In A. Younus Kanju v. R.S. Unni and Others, AIR 1984 SC 960 the election petitioner failed to offer prima facie allegation and proof of errors in counting of ballot papers. In that context, their Lordships held as under: “The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the 12 rule indicated by this Court to justify a direction for recount.” 13. In Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, while dealing with the basic facet of inspection of ballot papers and re-counting their Lordships have expressed thus: “5. …. this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the course. The reason is twofold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus. 6. The court would be justified in ordering a re- count of the ballot papers only where: (1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute 13 and to do complete and effectual justice between the parties.” 14. In Satyanarain Dudhani v. Aduay Kumar Singh, AIR 1993 SC 367, it has been stated as follows: “10. It is thus obvious that neither during the counting nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.” 15. In Bahoran Lal v. Ganesh Prasad and others, AIR 1999 MP 7, it has been held as under: “The law is settled as to when and under what 14 circumstance the recount can be ordered. In the case of Km. Shradha Devi v. Krishna Chandra Pant, AIR 1982 SC 1569, the Supreme Court in para 8 observed that when a petition is for relief of scrutiny and recount on the allegation of misconduct, the petitioner has to offer prima facie proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of misconduct, petitioner must furnish prima facie proof of such error. If proof is furnished of some errors in respect of some ballot papers, scrutiny and recount cannot be limited to those ballot papers only. Reliance was placed on paragraph 940 of Halsbury’s Law of England, 4th Edn., Vol. 15 and it was observed that : “This Court has in terms held that prima facie proof of error complained of must be given by the election petitioner and it must further be shown that the errors are of such magnitude that the result of election so far as it affects the returned candidate is materially affected, then recount is directed. Reliance was also placed in the case of Khilari v. The IVth Additional District Judge, Sonbhadra, AIR 1992 All 186 wherein the case of Beliram Bhalaik v. Jai Behari Lal Khachi, AIR 1975 SC 283 was noted where the Supreme Court said: “…….. Although no castiron rule of universal application can be or has been laid down. Yet from a beadroll of the decisions of the Supreme Court, two broad guidelines are discernible that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (1) all the material facts on which the allegations of irregularity or illegality in counting are 15 founded are pleaded adequately in the election petition, and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.” 16. In Vadivelu vs. Sundaram and others, (2000) 8 SCC 355, a three-Judge Bench of the Apex Court, after referring to the decisions rendered in the cases of Satyanarain Dudhani (supra), Jitendra Bahadur Singh vs. Shri Krishna Behari, (1969) 2 SCC 433; D.P. Sharma vs. Commr. and Returning Officer, 1984 Supp SCC 157; P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, AIR 1989 SC 640, Ram Sewak Yadav vs. Hussain Kamil Kidwai, AIR 1964 SC 1249; S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra, 1980 Supp SCC 53, R. Narayan v. S. Semmalai, (1980) 2 SCC 537; and M.R. Gopalkrishnan vs. Thachady Prabhakaran, 1995 Supp (2) SCC 101, expressed thus: “16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or rejection of valid votes. If only the 16 court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties.” 17. In Chandrika Yadav vs. State of Bihar, (2004) 6 SCC 331 = AIR 2004 SC 2036, the Apex Court has laid down the following norms: “20. It is well settled that an order of recounting of votes can be passed when the following conditions are fulfilled: (i) A prima facie case; (ii) Pleading of material facts stating irregularities in counting of votes; (iii) A roving and fishing inquiry shall not be made while directing recounting of votes; and (iv) An objection to the said effect has been taken recourse to. 21. The requirement of maintaining the secrecy of ballot papers also be kept in view before a recounting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for recounting.” 18. In Kattinokkula Murali Krishna v. Veeramalla 17 Koteswara Rao and Ors., (2010) 1 SCC 466, the Apex Court, after referring to the order of the election tribunal which has directed recount and affirmation thereof by the High Court, eventually set aside the order of recount. In paragraph 10, the Apex Court referred to the order of the tribunal which we think appropriate to reproduce herein below: “10. The Tribunal held that since no prejudice would be caused to the appellant and re- counting of all the votes will redetermine the number of votes polled by the contesting candidates, including the election petitioner and the appellant, it was a fit case for re-count of ballot papers. The Election Tribunal answered Issues 1 and 2 against the election petitioner and Issue 3 in favour of the election petitioner and against the appellant. As regards Issues 4 to 6, the Election Tribunal observed that these will be answered only after completion of re- counting of votes.” Thereafter, their Lordships referred to the decisions in P.K.K. Shamsudeen (supra) and Vadivelu (supra) and opined thus: “23. Having viewed the matter in the light of the principles enunciated above, we are constrained to hold that the Election Tribunal as also the High Court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. It is manifest from the aforeextracted Para 4 of the election petition, containing the grounds of challenge, the allegations regarding irregularity or illegality in the counting of votes 18 were not only vague, even the basic material facts as could have made the Election Tribunal record a prima facie satisfaction that re-count of ballots was necessary, were missing in the petition. It is pertinent to note that upon consideration of the evidence adduced by the parties, the Election Tribunal had itself observed that the election petitioner had failed to state any material facts regarding the failure of the Election Officer to mention reasons for rejection of votes and further there was no specific allegation as to on which table the votes polled in favour of the election petitioner were mixed with the votes polled in favour of the appellant; and on which table the votes polled in his favour were rejected as invalid. Precisely for this reason, and in our view rightly, the Election Tribunal had declined to take into consideration the evidence adduced by the election petitioner on the point. xxx xxx xxx xxx 25. It needs to be emphasised that having regard to the consequences