Letters Patent Appeal No.640 OF 2008 Appeal against the judgment and order dated 17-7-2008 passed in C.W.J,.C.,No. 9402 of 2007 passed by the writ court -------- MEENA DEVI- WIFE OF SRI SIVJEE YADAV, RESIDENT OF VILLAGE- GOTHI, P.O. BANDHU SRIRAM, P.S. ANDAR, DISTRICT SIWAN ----------------Appellant Versus 1. THE STATE OF BIHAR THROUGH COLLECTOR, SIWAN 2 THE BLOCK DEVELOPMENT OFFICER-CUM- RETURNING OFFICER, BLOCK ANDAR, P.S. ANDAR, DISTRICT-SIWAN 3. GEETA DEVI, WIFE OF SRI SANJAY YADAV, RESIDENT OF VILLAGE- BANDHU SALONA, P.O. BANDHU SRIRAM, P.S. ANDAR, DISTRICT-SIWAN. 4. RAJ KUMARI DEVI, WIFE OF SRI RAJESH KUMAR YADAV, RESIDENT OF VILLAGE- BANDHU SALONA, P.O. BANDHU SRIRAM, P.S. ANDAR, DISTRICT -SIWAN. 5. BEBI SINGH, WIFE3 OF BIRENDRA SINGH, RESIDENT OF VILLAGE- SEKIYA, P.O. SANJALPUR, P.S. ANDAR, DISTRICT- SIWAN 6. SOBHA DEVI, WIFE OF SHIVJEE BAITHA, RESIDENT OF VILLAGE AND P.O. SANJALPUR, P.S. ANDAR, DISTRICT- SIWAN 7. SUSHILA DEVI, WIFE OF PARAS YADAV, RESIDENT OF VILLAGE- MIYAN-KE-BHATKAN, P.S.ANDAR, DISTRICT- SIWAN. 8. HIRA DEVI, WIFE OF SHAILESH SHARMA, RESIDENT OF VILLAGE- MIYAN-KE-BHATKAN, P.S. ANDAR,DISTRICT- SIWAN 9. HAMIDA KHATOON, WIFE OF ALI HASSAN ANSARI, RESIDENT OF VILLAGE- MIYAN-KE-BHATKAN, P.S. ANDAR, DISTT.- SIWAN 10. SUNAINA DEVI, WIFE OF SURENDRA BHAGAT, RESIDENT OF VILLAGE- GOTHI, P.O. BANDHU SRIRAM, P.S. ANDAR, DISTT. SIWAN ............. RESPONDENTS. --------- ADVOCATE FOR THE APPELLANT :- Mr.S.B.K.Mangalam ---------- ADVOCATE FOR RESPONDENTS :- MR. Y.V.GIRI, SR. ADVOCATE , SR. ADVOCATE MR. AJAY KUMR PANDEY, ADVOCATE ADVOCATE FOR THE STATE ;- MR. BIJAY KUMAR PANDEY, ADVOCATE ----------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE JUSTICE SMT. ANJANA PRAKASH - 2 - Shiva Kirti Singh,J This Letters Patent Appeal has been preferred against Judgment and Order dated 17-7-2008 passed by the Writ Court whereby Writ Petition bearing C.W.J.C. No. 9402 of 2007 was allowed and the order dated 21st. July, 2007 as well as the order dated 30th October, 2007 passed in Election Petition No. 72 of 2006 by learned Munsif- I, Siwan were quashed. 2. The facts leading to this appeal and necessary for deciding the issues may first be noticed in brief. For the post of Mukhia of Gram Panchayat Raj Miyan- Ke - Bhatkan the appellant as well as respondent no.10, Sunaina Devi filed nomination papers along with respondent nos. 3 to 9. The election was conducted on 27th May,2006. The counting was held on 15-6-2006 and respondent no.11 ( writ petitioner ) Sunaina Devi was declared elected as a result of counting which shows that respondent no.11 had secured 944 votes whereas the appellant had secured 886 votes. Thus, the winning margin of respondent no.11 was 58 votes. 3. The appellant filed election petition no. 72 of 2006 before learned Munsif-I, Siwan challenging the election of respondent no.11 and also seeking declaration in favour of herself that she be declared the duly elected candidate. In course of hearing the election petition, by order dated 21-7-2007 the learned Munsif ordered for recounting of votes in open court. The Returning Officer was directed to bring the relevant materials so that the recounting may be done on 7th August,2007. The writ petition bearing C.W.J.C. No. 9402 of 2007 was filed on 30th July, 2007, initially against the order directing for recounting of votes but when recounting was completed during the pendency of the writ petition, on the basis of recounting, final order was passed in the election petition on 30-10-2007 whereby the election of respondent no.11 was set aside - 3 - and the appellant (respondent no.10 to the writ petition) was declared elected. The final judgment was also challenged in the same writ petition through I.A. No. 6087/2007. By an order passed in the writ case on 7-11-2007 not only the I.A. was allowed permitting challenge to final judgment dated 30-10-2007 but the said judgment was also stayed. 4. The other relevant facts worth noticing are that on recount the writ petitioner/ respondent no.10 herein was found to have secured 886 votes instead of 944 votes and the appellant was found to have obtained 894 votes in place of 892 votes. But what is most significant is the undisputed fact which has been noticed by the Munsif and the writ court also that in respect of Booth No. 131 it was found that 38 ballot papers were missing and similarly from Booth No. 136 six ballot papers were missing at the time of recounting. Paragraph-14 of the judgment of learned Munsif discloses that when the big steel box containing the election materials was produced in Court, one of the brackets of lock was found up-rooted and only the other one was in right condition with seal on the lock. The stand of the Returning Officer was that he had brought the box in the same condition in which it was kept in strong room. In paragraph-16 of the judgment the learned Munsif has noticed that on the bundle- check slip of the elected candidate relating to booth no. 131 the total number written was 188 but on counting only 150 votes were found therein and on comparing it with the counter-foils 38 ballot papers appeared to be missing. Similarly, six ballot papers of the elected candidate were missing out of votes of booth no. 136 and the votes from the bundle of the elected candidate were found less in view of figures mentioned on the bundle- check slip of that booth. 5. For the purpose of issue relating to Rule 79 of Bihar Panchayat - 4 - Election Rules 2006 ( hereinafter referred to as the Rules”), it is necessary to notice that in paragraph-11 of the election petition allegations have been made regarding various kinds of irregularities in course of counting of votes and in paragraph 12 it has been alleged that during counting the husband of the election petitioner/appellant gave a written complaint petition to the Returning Officer but the same was not accepted and arbitrarily one of the candidates was declared elected and proposal for recounting was also turned down. In view of such irregularities and bunglings at the time of counting of votes, the husband of the election petitioner sent through registered post the information to the Returning Officer with a prayer for recounting. Such application was forwarded to higher officials but they did not take any action and hence election petition had to be filed. 6. By the judgment and order under appeal the writ court has considered the submissions in respect of two issues;- (i) Whether in view of 44 ballot papers found missing, the learned Munsif could have held and declared that the election petitioner had secured more votes than the candidate declared elected and (ii) whether the order of the learned Munsif dated 21-7-2007 directing for recounting of votes was proper and legal when according to the writ petitioner the mandatory requirements of Rule 79 of the Rules was not proved to have been followed. 7. It is not in dispute that if issue no.1 is decided in favour of the writ petitioner/ respondent no.10 herein, the other issue becomes superfluous and academic. In respect of issue no.1 the objective analysis of admitted facts reveals that on recount while the number of votes of the election petitioner showed an increase of two votes, from 892 to 894 and the votes of writ - 5 - petitioner/elected candidate showed decrease of 58 votes i.e. from 944 to 886 votes, it is however, also clear that 44 votes relating to booth no. 131 and booth no. 136 earlier shown to be in favour of the elected candidate were found missing. This number of ballot papers were found actually missing because in paragraph-16 of its judgment the learned Munsif has clearly indicated that the number of missing ballot papers was found out on comparing the relevant numbers from the counter-foils. In such a situation there can be no basis for a presumption, as drawn by the learned Munsif, sub- silentio, that the missing 44 votes could not have been votes cast in favour of the writ petitioner/elected candidate. In fact there is always a presumption of regularity of official acts unless such presumption is dis-placed by cogent materials. Hence, in absence of any cogent material to displace the presumption of correctness of total number of votes of the elected candidate mentioned on bundle-check slip, the said numbers must be presumed to be correct. In that eventuality, the conclusion would be that 44 ballot papers/ votes of the elected candidate/writ petitioner have been mis-placed/ stolen/removed by some one. In such circumstances number of votes after recounting would be 894 in favour of the election petitioner and 886+ 44 = 930 in favour of the writ petitioner/elected candidate. The margin of victory of the electede candidate would thus, stand reduced from 52 votes to 36 votes but it cannot be held and declared on the basis of materials available after recount that the election petitioner/appellant had proved that she had secured more votes than the candidate declared elected . 8. Even if there be any difficulty in drawing presumption in favour of earlier official writings and declaration relating to votes polled by the - 6 - concerned candidate, once it was found on recounting that 44 ballot papers relating to booth no. 131 and 136 are missing, it was not possible for the learned Munsif to hold that the election petitioner had succeeded in establishing her claim that she had secured more votes than the candidate declared elected. There could be no way of ascertaining as to how many of the missing ballot papers could be votes in favour of election petitioner or the rival candidate declared elected. The burden of proving relevant facts such as number of votes actually polled in favour of the concerned candidate lay upon the election petitioner. Had the election petitioner, on recount secured more than 44 votes than the elected candidate, the learned Munsif would have been justified in giving a finding that the election petitioner had secured more votes than the candidate declared elected. But in the present case this margin, after recount was only of 8 votes and hence the 44 ballot papers found missing could not have been ignored by the learned Munsif as insignificant or immaterial. 9. In view of aforesaid findings this appeal must fail. However, since, the parties have addressed this Court at length on the law relating to Rule 79 of the Rues and issue no.2 has been decided in favour of the writ petitioner by writ court holding that the order for recounting was in dis-regard of mandatory requirement of Rule 79, it is deemed necessary to express our opinion on this issue also though in brief. Rule 79 is contained in Chapter X of the Rules which is titled as “Counting of Votes”. Rules 72 to 78 relate to selection of place for counting of votes, supervision of counting of votes, Entry into the place fixed for counting, Scrutiny of the ballot papers and their rejection and then Rule 79 provides for- Recounting of votes. This Rule reads as follows:- - 7 - 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.” 10. The writ court has extracted relevant part of judgment of the Supreme Court in the case of Chandrika Prasad Yadav Vrs. The State of Bihar, ( 2004 ) 6 SCC 331. That judgment as well as a subsequent judgment in the case of Hoshila Tiwari Vrs. State of Bihar, 2008 (8) PLJR (SC) 62 were considered by a Division Bench of this Court recently in the case of Anita Devi Vrs. State of Bihar and others (LPA 373 of 2008) disposed of on 21-4-2009.To that judgment one of us (Shiva Kirti Singh,J) was a party. The Division Bench held that the law is well settled by the Apex Court that ordinarily, the statutory - 8 - remedy to seek recounting provided under Rule 79 should be availed of and if it is not done by the election petitioner, he has to state the reasons and furnish sufficient explanation as to why such statutory remedy was not availed of . In that judgment it was held by the Division Bench of this Court that the reasons for seeking recounting of ballot papers are required to be mentioned in the application under Rule 79. If such application could not be filed for any reason, the burden is upon the election petitioner to give reasons and sufficient explanation which should be based upon clear and specific pleadings which the Court may accept or may not accept depending upon the materials on record. 11. Learned counsel for the appellant persuaded us to look into relevant rules such as Rule-52 and Rule 63 of the Conduct of Election Rules, 1961, relating to assembly election, only to highlight that whereas under Rule 48 of the Rules only one counting agent is permitted in case of election for the post of Mukhia, 16 counting agents are permitted under 1961 rules relating to assembly election. On that basis a strong attempt was made to persuade this Court to hold that although Rule 79 of the Rules and Rule 63 of the 1961 Rules are in para materia, Rule 79 could not be applied with same rigour because the un-successful candidate in a Panchayat election may not have full details of irregularities in counting on account of availability of only one counting agent. On that ground, it was submitted that under Rule 79 a prayer for recounting should be held proper and permissible even if the reasons mentioned for recounting are not very specific or explicit. 12. The aforesaid submission, in effect means that when an application under Rule 79 is filed along with grounds for recounting, the grounds may at times be general in nature and yet they may deserve to be - 9 - considered for allowing recounting. 13. The submission, on the face of it looks attractive but cannot be accepted. Recounting of votes by the courts after declaration of result is a matter which involves disturbing the secrecy of the ballot papers and hence the Hon’ble Supreme Court in the judgments noticed above has held that order for recounting of votes can be passed only when the required conditions are fulfilled including-(i) pleading of all material facts stating irregularities in counting of votes (ii) a roving and fishing enquiry shall not be made while directing recounting of votes and (iii) objection to the said effect has been taken recourse to. If the submission of learned counsel for the appellant is accepted, it would amount to waiving the requirement of pleadings of material facts stating irregularities in counting of votes and it will encourage a roving and fishing enquiry by directing recounting of votes. Hence, we find no merit in the aforesaid submission. There is no good reason for us to take a different view than the view already taken by the Apex Court as noticed by the writ court and also in a recent judgment dated 21-4-2009 by the Division Bench in L.P.A. No. 373 of 2008 (Anita Devi Vrs. State of Bihar). 14. As a result, this Court finds that both the issues have been rightly decided by the writ court. In respect of issue no.2 it would be sufficient to point out that the writ court failed to be persuaded to accept the explanation that petition under Rule 79 was actually filed, on account of the election petitioner failing to bring on record the petition or copy thereof which was said to have been submitted to the Returning Officer through registered post. We are in agreement with the view taken by the writ court, since it is a well established rule of evidence that documentary evidence when claimed to be in existence - 10 - should be produced as the best evidence so as to prevail over oral evidence. His plea of filing application under Rule 79 as well as the alleged grounds for recounting could have been established by election petitioner by calling for or producing even the subsequent petition allegedly sent by Registered post but the same was not done for the reasons best known to the election petitioner/appellant. We find no good reasons to interfere with the judgment and order of the writ court and find no merit in this appeal. It is accordingly dismissed but without costs. ( Shiva Kirti Singh,J) I agree ( Anjana Prakash,J) ( Anjana Prakash, J) Patna High Court Dated the 27th August,2009 NAFR Naresh