IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15982 OF 2006 SHANTI DEVI--------------------------------------(Petitioner) Versus THE STATE OF BIHAR & ORS-----------------------(Respondents) For The Petitioner : Mr. Sidheshwari Pd. Singh, Sr. Adv. with Mr. Ashok Kumnar, Advocate For The Respondent no.3 : Mr. S.N.P. Sharma, Sr. Advocate with Mr. Amarendra Kr. Singh, Advocate For the State : Smt. Nivedita Nirvikar, Adv., G.P.-16 For the State Election Commission : Mr. K.B. Nath, Advocate with Mr. Sanjeev Nikesh, Advocate P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA ************ Mihir Kr. Jha, J. Heard counsel for the petitioner, the State of Bihar, State Election Commission and the contesting respondent no.3. This writ application is directed against an order dated 17.11.2006 passed by the Munsif, Danapur in Misc. Case No. 26/2006, whereby and whereunder an application filed by respondent no.3, the election petitioner, for calling certain records including ballot papers of Lala Bhadsara Gram Panchayat elections 2006 has been allowed with a consequential requisition to the Block Development Officer (B.D.O.), Dulhin Bazar for their production in the court. Such an interlocutory order passed by the court below has been assailed by the writ petitioner on the ground that the court below while hearing on election petition ought to have not summoned documents pertaining to the election and especially 2 ballot papers at the behest of election petitioner in a routine manner unless a strong prima facie case was made out with regard to the requirement of such documents for its being used/ looked into for deciding the dispute in question. Expanding the said issue Mr. Sidheshwari Prasad Singh, learned Senior counsel in his usual simplistic flair had submitted that in terms of Rule 84 of the Bihar Panchayat Election Rules, 2006, the custodian of such documents being the Chief Election Officer, the court below had committed an error in directing the Block Development Officer to submit those documents as prayed for by respondent no.3, the election petitioner. Mr. Singh in this regard had expressed apprehension that if the documents were called for from the Block Development Officer there was every chance of such documents being spurious. He had further tried to distinguish the class of the documents which were prayed for by respondent no.3 to be produced and he was of the view that whereas the other documents could have been called for even at the initial stage of hearing of the election case, the ballot papers should have been only called for if the election petitioner, respondent no.3, was in a position to establish her prima facie case as with regard to need of looking into secrecy of ballot papers. It was in this regard that Mr. Singh had stressed that for constituting a prima facie case in respect of looking into the ballot papers it was necessary for the court to find 3 out as to whether the election petitioner, respondent no.3, had raised any such objection/ filed any application with regard to any irregularity in course of counting of the ballot papers because the court was required to call for ballot papers only when its production was absolutely necessary. Mr. Singh in fact had also taken a stand that respondent no.3, the election petitioner, as a matter of fact had never filed any application before the Returning Officer during the course of counting complaining any irregularity in the counting of ballot papers and as such, the prayer made by respondent no.3 at the initial stage of hearing of the election case was itself misconceived and ought to have been rejected. Counsel for the petitioner in this context had relied on the judgment of the Apex Court in the case of, Ram Sewak Yadav vs. Hussain Kamil Kidwai, reported in AIR 1964 S.C. 1249, in the case of Chandrika Prasad Yadav vs. The State of Bihar & ors., reported in AIR 2004 S.C. 2036, in the case of Banwari Yadav vs. the State of Bihar & ors., reported in 2007(4) PLJR 169 and in the case of Hoshila Tiwari vs. The State of Bihar & ors., reported in 2008(4) PLJR 62 (S.C.). Mr. S.N.P.Sharma, learned senior counsel for the Respondent no. 3, the election petitioner on the other hand, in his poignant style had refuted each and every submission of the learned senior counsel for the petitioner by making a direct reference to the averments made in the election petition filed by 4 Respondent no. 3. He had submitted that as the case of the election petitioner, respondent no.3, was based only on the ground of illegal counting of void/ spurious votes, a prayer made on behalf of respondent no.3 and allowed by the court below for calling such relevant documents including ballot papers could not be even faulted much less assailed in a writ petition, inasmuch as the impugned order dated 17.11.2006 being a purely interlocutory order did not decide any issue. Mr. Sharma had further submitted that the power of the court to call for a document including ballot papers as was exercised by the court below in the present case was absolutely distinct and distinguishable from an order of the court of opening of the ballot papers and infringing the sanctity of the ballot papers by way of inspection and recounting. It was further sought to be explained by him that as respondent no.3 was aware of this fact that soonafter conclusion of electoral process the records were still lying in the custody of the Block Development Officer, Dulhin Bazar who was the Returning Officer of the aforesaid Lala Bhadsala Grama Panchayat and as such a prayer was made by and/or on behalf of Respondent no. 3, the election petitioner to call for such documents including ballot papers from his custody and if in the meantime the documents including ballot papers was already transmitted to the Chief Electoral Officer, the court could have issued a fresh order for production of 5 such documents including ballot papers even to the Chief Electoral Officer. The learned Senior counsel appearing on behalf of respondent no.3 in fact while defending the impugned order had also questioned the maintainability of the writ application by taking a stand that a writ application against an interlocutory order of Election Tribunal was itself not maintainable as the same had not decided any issue nor could be characterized as a final order adjudicating the rights of the parties. In this context he had relied on the judgment of the Apex Court in the case of Hanuman Prasad vs. 3rd Addl. District Judge & ors., reported in AIR 2000 S.C. 3603, Bhaiji vs. Sub-divisional Officer, Thandala & ors., reported in (2003) 1 SCC 692, Union of India & ors. Vs. Vidhya Vagaria, reported in AIR 2004 S.C. 2220 and Union of India & anor. Vs. Kunisetty Satyanarayana, reported in AIR 2007 S.C. 906. Mr. Sharma had further placed reliance on the same judgment of Ram Sewak Sharma (supra) also relied by the counsel for the petitioner, namely, AIR 1964 SC 1249 and had further referred to the judgment of the Apex Court in the case of R.M. Seshadri vs. V.G.Vasantha Pal & ors., reported in AIR 1969 S.C. 692 and in the case of Martin Burn Ltd. Vs. R.N.Banerjee, reported in 1958 SC 79, to buttress his submission that not only the court has inherent power to call for documents and/or examine the same in the interest of justice but even concept of prima 6 facie case cannot be extended and expanded to mean a case beyond reasonable doubt or case to be driven to the hilt. Counsel for the State as also the Election Commission had nothing more to offer in their submission save and except to adopt the submissions made by Mr. S.N.P.Sharma, learned Senior counsel appearing on behalf of respondent no.3. Before this Court would proceed to decide this case in the background of the facts as stated in the writ application and/or counter affidavit on behalf of respondent no.3, it must record that pendency of this writ application for a period over 2 ½ years has literally taken away the essence of the election dispute, inasmuch as if the election petitioner now succeeds with her prayer made in the election petition she may not be able to reap the benefit as a period of nearly three years out of a possible tenure of five years has been lost only in deciding an issue arising out of an interlocutory order. This Court, therefore, in order to find out whether such writ petition ought to have been entertained in the first place by keeping this writ application pending from 22.11.2006 till date must note that the only person gainer out of such delay is the writ petitioner, the elected Mukhiya as she has continued in office from 15.6.2006 despite a serious challenge made to her election by respondent no.3. 7 All that in this regard has to be noted is that in the wake of 2006 general election for Gram Panchayat in this State the polling for the post of Mukhiya of Lala Bhadsara Gram Panchayat was held on 18.5.2006 and its result was pronounced by declaring the writ petitioner elected as Mukhiya by a margin of 279 votes. Respondent no.3 being the nearest rival candidate who had lost the election by 279 votes had filed an election petition on 14.7.2006 in which her case was confined only to the irregularity in counting of votes. From a reading of the election petition it would appear that she had alleged counting of 350 spurious votes in favour of the writ petitioner in booth nos. 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99 and 150 votes of such voters whose name were included in the same voter list either at two places or at three places. To that extent the case of respondent no.3 in her election petition could be found from paragraph nos.11 and 12 of the election petition which reads as follows: “11. That in the counting of the ballot papers various illegalities and irregularities were committed and the said illegalities and irregularities has materially affected the result of the election and the election of opposite party no. 1 is fit to be set aside. Only a few instances of such illegalities and irregularities are given below merely as illustrative and same is not exhaustive. (i) That in counting room no. 3 when the ballot boxes of booth no. 96, 97, 98 8 and 99 were brought at the counting table, all the counting agents except the counting agents of opposite party no.1 protested vehemently and loudly at the serious and vital defect and illegality namely that all the ballot boxes of aforesaid polling booth were brought to the counting table in a precarious condition namely the upper cover of all the ballot boxes were opened and hurriedly ballot papers were poured on the counting table. This unfortunate condition coupled with the strong protest lodged by the counting agents created a comment. However after some time the returning officer with the help of police asked the counting agents to keep quite and any how the situation was brought under control and the sorting out the ballot papers of different post commenced but in course of sorting out the ballot papers for the post of Mukhiya again protest was lodged that a large number of ballot papers not bearing the signature of presiding officer of the said booth besides the make and the paper of the ballot papers was also different so said ballot papers were spurious, the ink and colour of stamping on such papers was also different from general ballot papers. Stamping of ballot papers including the method and manner was different that a large number of ballot papers were stamped by one person and not by genuine and different voters. Over and above all such ballot papers were bearing stamping mark exclusively in favour of opposite party no.1. This unusual feature of stamping on spurious ballot papers in favour of the respondent no.1 makes the entire atmosphere tense and alarming. However, the returning 9 officer pacified the objections and counted all such spurious ballot papers in favour of opposite party no.1. Likewise when the boxes of both no. 90, 91, 92, 93, 94 and 95 were brought in counting room no.2 all the ballot boxes of aforesaid booths the upper cover of the ballot boxes were opened and same kind of spurious ballot papers without the signature of the presiding officer and without the distinguishing mark were detected in course of sorting out the ballot papers for the post of Mukhiya as such spurious ballot papers were different both in make and papers and were different from the other general papers and exactly of the same nature were found in counting room no.2. Objections were also raised in this like that of room no.2 but of no effect and all such spurious ballot papers were counted in favour of the opposite party no.1. In this way about 350 total spurious ballot papers counted in favour of opposite party no.1 in counting room no. 2 and 3 together. So, the first and foremost judicious duty has been cast upon the learned court to reject such about 350 spurious ballot papers counted in favour of opposite party no.1 and accordingly, it is also required to deduct 350 votes from the total votes counted in favour of the opposite party no.1. (ii) Another vital illegality was committed in the counting of the ballot papers was that 250 void votes were ought to have been treated as Zero votes by the returning officer have illegally and improperly counted in favour of opposite party no.1. In other words 75 persons were enrolled at two places in the same gram 10 panchayat. The details of which including the serial number of both the places and the names of the said voters as enrolled in the voter list of one gram panchayat are given by annexing the voter list of two places namely Lala Bhadsara, Bhalua and Laxmi Tola. It is suprising to indicate here that five persons have been enrolled from three places. The details of which is being furnished in this petition alongwith the voter list annexed with the petition. It is relevant to state here that it is the admitted position in law that any person cannot be enrolled as a voter from more than one place. It is also admitted position in law that if a person has been enrolled as a voter from more than one place he is required to cast his vote from one place only and if he casts his vote at both the places his both votes are void. It is also relevant to state here that all such persons who have been enrolled as a voters from more than one place in this gram panchayat are the workers and supporters of opposite party no.1 and they had cast their votes in favour of opposite party no.1. Thus about 150 votes being void votes are required to be deducted from the total votes counted in favour of opposite party no.1. 12. That it has already been stated that the opposite party no.1 has already been declared elected by securing an artificial majority of 279 votes more than the petitioner. So the only two vital illegalities committed in the counting of the ballot papers as stated in paragraph 11(i)(ii) has materially affected the result of the election and also renders the 11 election of opposite party no.1 as illegal, bad and void and as such, in the interest of justice the election of opposite party no.1 is fit to be set aside and in her place the election petitioner is required to be declared as a duly elected Mukhiya of Lala Bhadsara gram Panchayat Block Dulhin Bazar District Patna after recounting, inspection and scrutiny of total votes counted in favour of all the contesting candidates and also the bundle of rejected ballot papers.” It was with this specific pleading in the election petition that respondent no.3, the election petitioner, had made a specific prayer for not only calling the records including ballot papers of the concerned election in question but also to declare her (respondent no.3) as duly elected Mukhiya of Lala Bhadsara Gram Panchayat in Dulhin Bazar Block in place of the writ petitioner after his inspection, scrutiny and recounting of the ballot papers counted in favour of all the contesting candidates and also bundle of rejected ballot papers by setting aside the election of the writ petitioner as Mukhiya of the said Gram Panchayat. It is not in dispute that the writ petitioner whose result of election was questioned by respondent no.3 had appeared before the learned Munsif, the Election Tribunal, on 25.8.2006 and took time for filing of her written statement and while the same was yet to be filed respondent no.3 had moved an application on 16.9.2006 for calling the 12 relevant records of the election including ballot papers. The writ petitioner thereafter had filed her written statement on 22.9.2006 and on the same day she has also filed rejoinder to the application filed by respondent no.3 opposing the prayer for direction to call for the records of election petition. The court below after hearing the parties by the impugned order dated 17.11.2006 had allowed the prayer by directing the office to send a requisition to the Block Development Officer, Dulhin Bazar for production of such documents. In the opinion of this Court such an order of the court below only to the extent of issuing a direction to produce the documents in no way can be said to be either in excess of the power of the court or ex facie bad in law so as to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India. Reference in this connection may be made to the judgment of Apex Court in the case of Industrial Credit & Investment Corporation of India Ltd. Vs. Grapeo Industries Ltd. & ors., reported in AIR 1999 SC 1975, laying down a law that the interim order passed by the Tribunal or subordinate court can be interfered by a writ court only if the same is without jurisdiction or ex facie bad in law. As a matter the scope of this court while exercising its power under Articles 226 and 227 of the Constitution of India against an interim order of Tribunal is also well settled, as may be found in the 13 following passage of judgment of Apex Court in the case of Central Bank of India Vs. Gokal Chand reported in AIR 1967 S.C. 799. "All interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their cases in the pending proceedings. They regulate the procedure only and do not affect any right or liability of the parties. The expression 'interlocutory order' should be construed liberally including a number of steps taken by the court, such as, orders regarding summoning of witnesses, discovery, production and inspection of documents, issue of commission for examination of witnesses, inspection of premises, fixing date of hearing, admissibility of document or the relevancy of question etc. Ordinarily, a High Court in the exercise of the powers under Article 226 or Article 227 of the Constitution will not interfere with an interim or interlocutory order passed by a subordinate court or an inferior tribunal." In the background of aforesaid law laid down by the Apex Court the submission of learned Senior 14 Counsel on the strength of Rule 84 of the Bihar Panchayat Election Rules (hereinafter referred to as „the Rules‟) is also wholly misconceived, inasmuch as all that Rule 84 prescribes is that the account of ballot papers and paper seal as also other documents enumerated in Rule 67/ 68 as well as ballot papers would be kept under the custody of the District Election Officer as prescribed. Rule 84, therefore, at best prescribes the mode and manner of preserving the documents and that by itself can not vitiate the impugned order if respondent no.3 had sought a relief of calling documents in question from the custody of the Block Development Officer, Dulhin Bazar, the returning Officer, inasmuch as if such documents by that time after holding of the elections had already been transmitted and kept under the custody of the District Election Officer, the Block Development Officer had nothing more to do but to send a report to the Election Tribunal i.e. the court of Munsif that such documents had already been sent to the District Election Officer. Rule 84, therefore, by itself cannot be an impediment in passing of the impugned order as the source of power for directing the production of such documents of election still lies with the Election Tribunal as would be evident from the perusal of Rule 85. The moment Rule 85 gives power to the court of Munsif, the Election Tribunal, in the case of Panchayat election to pass an order both for 15 production and inspection of records relating to the election, it cannot be said that the impugned order passed by the court below in the present case was without jurisdiction. As noted above, the key question involved in the election petition filed by respondent no.3 was only revolving round the counting of votes and therefore, a simple order for production of such documents cannot be even faulted in law, especially when Rule 109 vests power in the court to conduct hearing of such election case by applying the provisions of Code of Civil Procedure. The power of a court under the provisions of the Code of Civil Procedure for calling for/ production of a document from any non-source cannot be doubted and in fact the said issue in respect of the election case itself is no longer resintegra, inasmuch as the Apex Court in the case of R.M. Seshadri (supra) has held that the power of the civil court to summon evidence including court witnesses in terms of Order 16 Rule 14 of C.P.C. could be exercised even suo moto without there being any formal application. Expanding the said proposition of law, this Court would also find that when there is a clear provision under Order 16 Rule 15 C.P.C. empowering the court to issue summons for producing the document, it must hold that the objection of the petitioner to the impugned order was/is wholly filmsy and infact frivolous. It has to be noted that in paragraphs 12 and 13 of the election petition there 16 was a specific allegation made by respondent no.3 in her election petition against the returning Officer as with regard to counting of votes and therefore, such Block Development Officer, the returning Officer of the election, if called upon to produce those documents was well under obligation to do so in terms of the Order 16 Rule 15 C.P.C. read with Rule 85 of the Election Rules. The apprehension of the petitioner that a mere direction of production of document in terms of the impugned order would also amount to inspection of such document and particularly the ballot paper to say the least is his misconceived notion, either innocent or deliberate. It does not stand to reason that when the legislature in Rule 85 has vested two separate power to the court conducting hearing of the election cases, namely, "Upasthapana" (production) and "Nirikshan" (inspection), of the relevant documents how could the petitioner assume that a mere order for the production of the documents would also amount to an order of the court for inspection of such documents. The emphasis of the learned Senior counsel for the petitioner that no inspection of ballot paper can be allowed in a routine manner in fact is a settled principle of law but then the question is as to whether the court below in the present case had passed such an order for