IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1646 OF 2009 ***** 1. KAPILDEO SINGH S/O LATE SANICHAR SINGH R/O VILL.- AURAI, P.O. AURAI, VIA- PURAINI, P.S. PURAINI, DISTT.- MADHEPURA. …. …. Appellant/Respondent Versus 1. MD. MUSHTAQUE S/O LATE MD. HADESS R/O VILL.- AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA …. …. Respondent/Respondents 2. MD. IRFAN S/O LATE MD. JHAKRI NADAF R/O VILL.- CHANOLA RASOOL TOLA, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 3. MD. ISLAM ALI S/O MD. USMAN R/O VILL.- CHHOTI KHERHO, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 4. UMESH SHARMA S/O DANESH SHARMA R/O VILL.- BARI AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 5. PARMANAND SHARMA S/O BAUDHI SHARMA @ PRAMOD SHARMA R/O VILL.- BARI AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 6. MANORANJAN SINGH S/O HARDEO SINGH R/O VILL.- AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 7. MADAN CHOUDHARY S/O RAM KISHUN CHOUDHARY R/O VILL.- LALI TOLA, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 8. VINOD SHARMA S/O GHANSHYAM SHARMA R/O VILL.- CHHOTI KHERHO, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 9. SHIV KUMAR SHARMA S/O AYODHI SHARMA R/O VILL.- CHHOTI KHERHO, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 10. SHIVNANDAN PRASAD MANDAL S/O SITARAM MANDAL R/O VILL.- BASI KHERHO, P.O. AURAI, DISTT.- MADHEPURA 11. SHIVNANDAN PRASAD SINGH S/O LATE MAHADEO PRASAD SINGH R/O VILL.- BASI KHERHO, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA 12. SITA RAM SHARMA S/O TUGHAL SHARMA R/O VILL.- BARI AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA - 2 - 13. SURESH SHARMA S/O LATE KUNJ BIHARI SHARMA R/O VILL.- BARI AURAI, P.O. AURAI, P.S. PURAINI, DISTT.- MADHEPURA …. …. Respondents 1st Set 14. THE STATE ELECTION COMMISSION THROUGH ITS COMMISSIONER SONE BHAWAN, BIRCHAND PATEL MARG, PATNA 15. THE STATE OF BIHAR THROUGH THE DISTRICT MAGISTRATE/DISTRICT ELECTION OFFICER MADHEPURA 16. THE CIRCLE OFFICER, PURAINI BLOCK/RETURNING OFFICER PURAINI ANCHAL, DISTRICT- MADHEPURA 17. THE WELFARE OFFICER/ASSTT. RETURNING OFFICER PURAINI ANCHAL, DISTRICT- MADHEPURA …. …. Respondents 2nd Set ----------- For the Appellant : Mr. Rajendra Prasad Singh, Senior Advocate Mr. Anant Kumar, Advocate For Respondent No.1: Mr. S.N.P. Sharma, Senior Advocate Mr. Ashok Kumar, Advocate For the State : Mr. Ram Subhash Singh, Advocate For the Election Commission: Mr. Sanjeev Nikesh, Advocate ------------- Present: THE HON'BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE SHIVA KIRITI SINGH O R D E R (18/01/2010) As per Dipak Misra, C.J. - Defensibility of the order dated 16.12.2009 passed by the learned Single Judge in C.W.J.C. No. 17063 of 2008 is called in question in this appeal preferred under Clause X of the Letters Patent. - 3 - 2. The facts which are necessitous to be exposited for adjudication of this appeal lie in a narrow compass. The first respondent had contested the election for the post of Mukhiya of Aurai Gram Panchayat, District-Madhepura in the year 2006 and had lost the election to the present appellant who had obtained 23 votes more than him. The appellant was declared elected by the Returning Officer. His election was assailed before the prescribed authority- cum-tribunal in Election Case No.6 of 2006. The tribunal considering the material brought on record expressed the opinion that the election stood vitiated. 3. Being dissatisfied with the aforesaid order the present appellant preferred a writ petition forming the subject matter of C.W.J.C. No. 10714 of 2007 which was disposed of by order dated 13.2.2008 wherein this Court set aside the order of the tribunal and directed remit with specific direction to the tribunal to recount the ballot papers and pass a final order. The justifiability of the order passed by the writ Court was challenged in L.P.A. No.163 of 2008 which faced summary dismissal. 4. It is apt to note that the order passed by the Division Bench in appeal was challenged in Special Leave Petition before the Apex Court and their Lordships did not interfere. Thus, the - 4 - matter relating to recount of votes and declaration of result attained finality. 5. On uncurtaing of facts in chronology, it is discernible the election tribunal recounted the votes and on recount it was found that there were 4099 valid votes and 301 invalid votes. The total number of the votes were counted was 4400. On recount of the said number of votes the appellant was declared elected by a margin of five votes. Ergo, the original result declared by the Returning Officer received the stamp of approval of the election tribunal. 6. Grieved by the aforesaid decision of the tribunal the first respondent herein invoked the jurisdiction of this Court under Article 226 of the Constitution assailing the pregnability of the order of the tribunal on the foundation that though the total number of votes polled were 4400, both valid and invalid votes yet 93 ballot papers were not available before the tribunal and there being a marginal difference of five votes on recount, the entire process of election got vitiated. 7. The learned Single Judge, as is perceptible from the order, asked the State Government to file an affidavit to explain the discrepancy. After certain adjournments, eventually, an affidavit was filed stating, inter alia, that it had sent all the 4493 votes to the tribunal and the tribunal also counted 4493 votes. The learned Single - 5 - Judge adverted to the order of the tribunal and came to hold that the tribunal had not received 93 votes. The learned Single Judge referred to the original Form No.20 and held thus: “The margin being only five votes on re- count and 23 votes as originally counted, 93 votes are substantial specially when we feel that invalid votes were 229 on the earlier occasion and 301 on re-count. Thus, in my view, for this unexplained discrepancy, the results loose all authenticity and reliability. The only course i.e. left is to declare that the election result stands vitiated, as aforesaid and the only direction this Court, in such circumstances, can give is for holding re-election. It is only by that process the faith in democracy can be restored. I, thus, set aside the judgment of the Election Tribunal and ordered accordingly.” 8. We have heard Mr. Rajendra Prasad Singh, learned senior counsel along with Mr. Anant Kumar for the appellant and Mr. S.N.P.Sharma, learned senior counsel along with Mr. Ashok Kumar for respondent no.1 and Mr. Ram Subhash Singh, learned counsel for the State and Mr. Sanjeev Nikesh, learned counsel for the State Election Commission. 9. Mr. Singh, learned senior counsel appearing for the appellant has submitted that the learned Single Judge has committed grave error in holding that the result has lost all its sanctity - 6 - because the case of the State is that all votes were sent to the tribunal and in the finding recorded by the tribunal there was shortage of 93 votes. It is urged by him that for the unexplained discrepancy the appellant cannot be put to blame and the results cannot be said to have lost its authenticity and reliability. It is his further submission that this court had on the previous occasion had dwelled upon the facts in entirety and directed a recount of the votes and hence, the issue relating to number of votes could not have been reopened. It is further canvassed by him that when no role is attributed to the returned candidate and on an election dispute being raised and a recounting being directed and after excluding the invalid votes still the appellant‟s election was found to be valid there is an error on the part of the learned Single Judge to express the opinion that the sanctity of the election has been lost and, therefore, issue of a direction for re-election is the warrant. 10. Combatting the aforesaid submission Mr. S.N.P. Sharma, learned senior counsel for the respondent no.1 submitted that the order passed by the learned Single Judge is absolutely flawless inasmuch as in a democratic set-up sanctity and purity of the election has to be respected and when the order impugned so mirrors there is no justification for interference with the same. It is propounded by him that when the ballot papers were - 7 - missing and the elected candidate has been successful on a meager margin of five votes the circumstances do call for issue of a direction of re-election and hence, the order passed by the learned Single Judge is impregnable. 11. The centripoidal issue that emerges for consideration whether in the obtaining factual matrix the learned Single Judge was justified in directing for re-election. The sole ground that has weighed with the learned Single Judge is that there has been discrepancy of votes which were sent to the tribunal and that has been counted by the tribunal and the margin of votes in favour of the elected candidate is quite low. In this context it is appropriate to scan the anatomy of the Act, namely, Bihar Panchayat Raj Act, 2006 ( for brevity „the Act‟) specially Chapter 7, which deals with the elections and the Bihar Panchayat Election Rules, 2006 (for short „the Rules‟). Section 123 provides for constitution of the State Election Commission. Section 125 provides the Administrative Machinery for the conduct of election. Section 128 empowers the State Election Commission to nominate an Observer and prescribes the duties of an Observer. Section 130 deals with Electoral Offences and the penalties thereof. Section 137 stipulates that election to any office of a Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed. Section 139 prescribes the - 8 - ground for declaring the election to be void. The said provision, being relevant, is reproduced hereinbelow: - “139. Grounds for declaring election to be void – (1) Subject to the provisions of sub section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. - 9 - (2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidate is not void.” 12. Section 141 deals with corrupt practices. The said provision is as follows: - “141. Corrupt Practices - The following shall be deemed to be corrupt practices for the purposes of this Act- (i) bribery as defined in clause (1) of section 123 of the Representation of the People Act, 1951 (Central Act 48 of 1951), for the time being in force; (ii) undue influences as defined in clause (2) of the said section for the time being in force; (iii) that appeal by a candidate or his agent or by any other person with the consent - 10 - of a candidate or his agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to national symbols such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate; (iv) the promotion of or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the election of that candidate to or for prejudicially affecting the election of any candidate; (v) the publication by a candidate or his agent or by any other person with the consent of candidate or his agent of any statement of fact which is false and which he either believes to be false or does not believe to be true in relation to the personal character or conduct of any candidate or in relation to the candidature or withdrawal of any candidature being statement reasonably calculated to prejudice the prospects of that candidate‟s election; (vi) the hiring or procuring whether on payment or otherwise, any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his agent, or the use of such vehicle or vessel for the free conveyance of any voter (other that the - 11 - candidate himself, the member of his family or his agent) to or from any polling station provided in accordance with the rules made under this Act: Provided that the use of any public transport vehicle or vessel or railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause. Explanation- In this clause, the word “vehicle” means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise whether used for the drawing of other vehicles or otherwise. (vii) the holding of any meeting at which intoxicating liquors are served; (viii) the issuing of any circular, placard or poster having reference to the election which does not bear the name and address of the printer and publisher thereof; (ix) any other practice which the Government may by rule specify to be a corrupt practice.” 13. We have referred to the aforesaid provisions only to appreciate on what grounds the election can be declared to be void and what is precisely meant by corrupt practices. In this context it is appropriate to refer to certain aspects from the Rules. Chapter 6 of the Rules provides the Administrative Machinery for the conduct of - 12 - election. Chapter 7 deals with Conduct of Election. Chapter 8 deals with the candidate and his/her Agent. Chapter 9 deals with Poll for Election. Rules 66 which occurs in Chapter 9 deals with Sealing of ballot boxes, etc. after the close of the poll. Rule 67 provides for Account of Ballot Papers and Paper Seals. Rule 69 deals with Ballot- boxes, packets etc. to be sent to the Returning Officer. The said Rules reads as follows: - “Rule 69. Ballot-boxes, packets etc. to be sent to the Returning Officer: - (1) The Presiding Officer will send to the Returning Officer- (a) Ballot-boxes (b) Ballot-paper and paper seal account; (c) Sealed packets specified in Rule 68; and (d) All other papers used in poll, And deposit them at the specified place. (2) The Returning Officer or the officer authorized will arrange for the custody of things notes in sub-rule (1) from the time of the commencement of the counting of votes to the end of it. After counting of votes, the election related documents shall be kept in safe custody under the provisions of rule-84.” - 13 - 14. Chapter 10 of the Rules deals with Counting of Votes. Rule 73 states that the counting of the votes shall be done under the direct supervision and the control of the Commission. Rule 76 specifically provides the method for counting of votes. The said Rule is as follows: - “76. Counting of votes :- (1) Except the „rejected‟ votes, each ballot-paper shall be counted. (2) On completion of the counting of votes the Returning Officer or the Officer authorized by him shall record the result of counting candidatewise in Form-19 in case of Member of Gram Panchayat/Panch of Gram Katchahry and in Form-20 in the case of Mukhiya/Sarpanch/Member of Panchayat Samiti/Member of Zila Parishad. (3) Thereafter, the valid votes will be sealed in a separate packet be bundles together along with the rejected votes and the following particulars to be recorded on that, viz. - (a) the name of the Gram Panchayat and the number of the territorial constituency concerned in case of the election of Member of the Gram Panchayat/Panch of Gram Katchahry; the name and number of the Gram Panchayat in case of the election of Mukhiya/Sarpanch and the name of the Panchayat Samiti/Zila Parishad and number of the concerned territorial constituency in case of the election of Member of Panchayat Samiti/Zila Parishad; - 14 - (b) the name and serial number of the polling station to which the ballot-papers belong; and (c) the date of counting.” 15. Rule 79 deals with recounting of votes. The said Rule is reproduced hereinbelow: - “79. Recounting of votes: - The candidate or in his/her absence his/her election agent or counting agent may make a written application to the Returning Officer or the Officer authorized by him/her for recounting of votes stating therein the grounds for the same. (2) The Returning Officer or the Officer authorized by him/her may, fully or partially, accept or reject the application stating the reasons for the same. (3) If the Returning Officer or the Officer authorized by him/her accepts fully or partially the application under sub-rule(2), he/she shall get the ballot-papers recounted and amend the result of the counting in the form prescribed in sub-rule (2) of Rule 76 and declare the result. (4) After that, any application for further re-counting shall not be entertained. 16. It is seemly to note that Rule 81 authorises the Returning Officer to declare the results. 17. Chapter 11 deals with Records of Election. Rules 84 to 86 being relevant are reproduced hereinbelow: - - 15 - “84. Custody of the records relating to election: - The District Election Officer shall keep the packets specified in Rules 67, 68 and 76(3) in his safe custody as prescribed by the Commission. 85. Submission and inspection of the records relating to election: - The submission and inspection of the records relating to the election kept in safe custody shall be allowed only by the order of the Court/Authority prescribed in the Ordinance. 86. Destruction of the records relating to election: - The election records specified in Rule 84 shall be kept in safe custody for a period of one year or till the pendency of any legal proceeding and to be destroyed thereafter subject to any contrary direction issued by the Commission or a competent Court or Authority.” 18. Chapter 13 makes provisions for miscellaneous aspects. In the said chapter under Rule 112 there is a postulate for order on election petition. The said Rule being of signification is quoted hereunder: “112. Order on election petition : - (1) If, after hearing the Court of Law/the prescribed Authority decides that the elected person is guilty of misconduct under the provisions of section 139 or 141 of the Ordinance, it may declare the election of such elected candidate as void and order for re-election. - 16 - (2) The Court of law/prescribed Authority under the provisions of section 140 of the Act may declare another candidate as elected.” 19. On a scrutiny of the provisions of the Act and the relevant Rules, it is luminous on what bedrock an election can be challenged and what is the power conferred on the prescribed authority. As is evident, Section 139 provides the grounds for declaring the election to be void and Section 141 deals with corrupt practices. As far as corrupt practice is concerned there is no allegation of corrupt practice and the said issue stands closed by the earlier pronouncement. Therefore, the same need not be dwelled upon. What has been held by the learned Single Judge is that the purity of the election has been affected as certain ballot papers were not sent to the tribunal. An affidavit has been filed before the writ Court that non-availability of the ballot papers were not explained. The tribunal, as is evincible from the order, has only referred to the number of votes. Nothing else is revealed from the order. As is evident Section 139(1)(d)(iv) provides that if the prescribed authority is of the opinion that the result of the election, so far as it concerns the returned candidate, has been materially affected by non- compliance of the provisions of the Act and the Rules or the Orders made thereunder, he may declare the returned candidate to be void. - 17 - 20. On a perusal of the order passed by the prescribed authority it appears that no finding has been recorded on that score. On the earlier occasion this Court had directed a remit for recount. In the election petition the case of the petitioner was that a prayer for recount of votes was made under the Rules but the same was denied and, therefore, recount of vote should be done. Apart from that there was allegation of corrupt practice. The election tribunal had negatived the stand as regards the corrupt practice, which has been given the stamp of approval by this Court on earlier occasion. As far as the recount was concerned the tribunal had referred to the Exhibit P/3, the result-sheet showing the number of votes obtained by all 14 candidates who participated in the election for the post of Mukhiya. The number of valid votes polled therein is 4264. He has noted that in the first counting number of invalid votes were shown as 165 and the number of total votes as shown was 4429. 21. Be it noted, on assail being made to the said order, this Court had observed that the tribunal had actually found certain votes otherwise invalid were taken into consideration in declaration of result in question and that vitiates the election but the learned Single Judge while dealing with the earlier order had taken note of the fact that basic prayer of the election petitioner pertained to corrupt practice and there was no corrupt practice but, however, - 18 - noted the fact that in final counting some invalid votes were found place in declaration of the result and accordingly remanded the matter. The Division Bench affirmed the same as the order of recount did not have clarity. After the recount the present appellant had secured five votes more than the election petitioner. Nothing has come on record that the appellant had any role in non-sending of the ballot papers. There is no allegation in the election petition that there had been any violation of any of the provisions of the Act or the Rules. In the proceeding before the election tribunal discrepancy as regards number of votes was not raised. As it appears there is reference to that effect in the result-sheet and that gives a different picture. In this factual backdrop we are disposed to think that there should be further enquiry inasmuch as an