IN THE HIGH COURT OF JUDICATURE AT PATNA L.P.A. NO. 118 of 2010 ***** Pappi Singh wife of Sri Shambhu Singh @ Shambhu Sharan Singh, resident of village & P.O.-Dhokraha Block & P.S.-Majhaulia, District- West Champaran at Bettiah. …. …. Respondent/Appellant Versus 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner. 2. The District Election Officer (Panchayat), District West Champaran at Bettiah. 3. The Returning Officer (Panchayat)-cum-Block Development Officer, Majhaulia Block, District-West Champaran at Bettiah. 4. Munni Devi Sharma, wife of Sri Prabhat Kumar Sharma, resident of village-Dhokraha Tola, Shikarpur, P.O.-Shikarpur, Block & P.S.-Majhaulia, District-West Champaran at Bettiah. …. …. Petitioner/Respondent 5. Punam Devi Wife of Gauri Shankar Paswan, village Dhokraha, P.O.-Dhokraha, Block & P.S.-Majhaulia, District-West Champaran at Bettiah. …. …. Respondents/Respondent ------------ For the Appellant : Mr. Y.V. Giri, Senior Advocate Mr. Birendra Kumar, Advocate For the 4th Respondent : Mr. S.B.K. Mangalam, Advocate Miss Anamika Dubey, Advocate For the State Election Mr. R.S. Pradhan, Senior Advocate Commission. Mr. Sanjeev Nikesh, Advocate ------------ PRESENT - THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (10.05.2010) As per Dipak Misra, C.J. – Questioning the legal acceptability and defensibility of the order dated 23.12.2009 passed by the learned single Judge in C.W.J.C. - 2 - No. 5126 of 2009, the present intra-Court appeal has been preferred by the 4th respondent to the writ petition. 2. The election for the post of Mukhiya, Gram Panchayat Raj Dhokraha, Block Majhaulia, District-West Champaran was held on 27.5.2006 and votes were counted on 15.6.2006. The appellant secured 1392 valid votes and the respondent no.4-writ petitioner (hereinafter referred to as the 4th respondent) secured 1210 valid votes. The respondent no.5 secured 151 valid votes. The appellant was declared elected as she had secured the highest number of votes and a certificate in the prescribed proforma was issued in her favour. At the time of announcement of the result, no applications were made seeking recount of votes as provided under Rule 79 of the Bihar Panchayat Election Rules, 2006 (for short „the 2006 Rules‟). At the time of recounting, as set forth by the appellant, the Returning Officer had not counted the votes which did not have the distinguishing mark, namely, „Swastika mark‟ in favour of any candidate, keeping in view the guidelines issued by the State Election Commission. 3. The 4th respondent filed Election Petition No.25/06 before the learned Munsif, West Champaran at Bettiah, the Election Tribunal under the Bihar Panchayat Raj Act, 2006 (for brevity „the Act‟), assailing the election of the appellant on the ground that illegalities and irregularities had been committed by the Returning Officer at the time of counting of ballot papers. It was contended that the votes polled in her - 3 - favour without `Swastika mark‟ had illegally been rejected by the Returning Officer. The Returning Officer filed a written statement before the tribunal that as per the 2006 Rules and the guidelines issued by the State Election Commission, the votes were rejected as there was faulty mark and, hence, it cannot be construed that there had been improper rejection of votes by the Returning Officer. 4. The learned Munsif appreciating the material brought on record came to hold that the election petitioner had failed to prove the rejected votes in exact number; that no application was filed under Rule 79 of the 2006 Rules; that no illegality was committed in the counting of votes; that no valid votes were improperly rejected and, hence, there was no warrant or justification to interfere with the election of the elected candidate. Being of this view, the election tribunal dismissed the election petition. 5. Being dissatisfied with the aforesaid order, the election petitioner assailed it invoking the extra-ordinary jurisdiction of this Court. The learned single Judge after referring to the decisions rendered in T.H.Musthaffa v. M.P. Varghese & Ors., AIR 2000 SC 153, Era Sezhiyan v. T.R.Baly & Ors., AIR 1990 SC 838, Hari Shankar Prasad v. Shahid Ali Khan & Ors., AIR 2003 SC 1302 and Babita Devi & Ors. V. The State of Bihar & Ors., 2006 (3) PLJR 382 came to opine that the fact that the „Swastika mark‟ was defaced is not in dispute; that it was because of the poor quality of markers supplied for which the - 4 - Election Commission itself had taken serious action; that if on the said ground without counting such votes a candidate is allowed to be defeated, it would be adding insult to the injury; that the observations in L.P.A. No. 164 of 2008 would go a long way to show that material evidence is to be led in course of trial of the election petition and the decision does not say or cannot be treated to have held that such evidence cannot be led or considered in an election petition; that though the question was raised before the tribunal and the tribunal had taken note of it in paragraph 20 of the order, yet the same has not been accepted by it by holding that the election petitioner had failed to prove the number of such invalid votes; that once the election tribunal recorded a finding that the votes were indeed declared as invalid on the ground of defective `Swastika mark‟ due to defective markers supplied by the Election Commission which compelled the voters to use the defective markers, then those votes could not have been declared invalid; that it was incumbent upon the election tribunal to get the invalid votes scrutinized and, if they were declared invalid solely because of defective markers being used, that had to be declared valid in whose favour they were cast; that regard being had to the factual matrix and the scrutiny that is required to be done, the order passed by the learned Munsif deserved to be lanceted and the matter was to be remanded for recount and be decided on the basis of recount. - 5 - 6. We have heard Mr. Y.V. Giri, learned senior counsel along with Mr. Birendra Kumar for the appellant, Mr. S.B.K. Mangalam, learned counsel along with Miss Anamika Dubey for the 4th respondent and Mr. R.S. Pradhan, learned senior counsel along with Mr. Sanjeev Nikesh for the State Election Commission. 7. Mr. Giri, learned senior counsel, has raised the following contentions: - (a) It is not disputed that when the counting was over, an application under Rule 79 of the Bihar Panchayat Election Rules, 2006 was not filed and, therefore, the principle laid down in Hoshila Tiwari v. State of Bihar & Ors., 2008(4) PLJR SC 62 would squarely get attracted and it would defeat the prayer for recounting, inasmuch as, no acceptable explanation was offered in the election petition for not filing the application as postulated in the Rules. (b) The explanation which is required to be given as per the decision rendered in Hoshila Tiwari (supra) cannot be vague but has to be concrete as has been enunciated in Anita Devi v. State of Bihar & Ors., 2010 (1) PLJR 93. (c) The election petitioner in paragraph no.19 had only stated that he had made a request for recount of votes which was rejected but that would not suffice. That apart, an application was filed after expiry of sixteen days which is - 6 - an afterthought. Thereafter, an application was filed by the father-in-law of the election petitioner, stating, inter alia, that he is a social activist though he has no authority in law to file such an application. (d) The finding that has been recorded by the tribunal in paragraph nos. 15 and 16 has not been dealt with by the learned single Judge as a result of which the order passed by him for recount is indefensible. (e) The pleadings in paragraph nos. 9 to 12 of the election petition do not specifically state with material particulars that the election petitioner‟s votes were rejected despite the intention of the voter being clear. Quite apart from above, there is no pleading with regard to the exact number of ballot papers on which mark was affixed on the symbol allotted to the petitioner. What has been stated therein is that so many ballot papers were rejected and, therefore, the election is vitiated. (f) If the recount is allowed, there would be a roving enquiry which is impermissible in law regard being had to the well settled proposition of law pertaining to recount of votes. 8. Mr. Mangalam, learned counsel for the respondents, per contra, contended that when there is an instruction from the Election Commission not to count the votes where the „Swastika mark‟ was not - 7 - clear, filing of an application under Rule 79 would have been an exercise in futility. The non-filing of application cannot be an impediment for recount of votes to the case at hand as the voters had not cast their votes with any other instrument but with the one supplied by the Returning Officer and hence, Rule 75 does not get attracted. In support of the said proposition, he has commended us to Sashi Bhushan v. Prof. Balraj Madhok & Ors., AIR 1972 SC 1251, Sohan Lal v. Babu Gandhi and Ors., (2003) 1 SCC 108 and Hari Shankar Prasad v. Shahid Ali Khan and others, (2003) 10 SCC 101. 9. In Babita Devi Vs. State of Bihar & Ors. And other connected matters, 2006 (3) PLJR 382, a batch of writ petitions were filed raising the issue whether the ballot papers marked with only the wooden portion of the instrument (commonly called a stamp) were rightly rejected by the authorities concerned while counting the votes cast by the voters. The learned single Judge took note of the fact that the wooden stamps with rubber Swastik marks on the ends were supplied by the State Election Commission to all the booths for the use of voters for marking the ballots, but at many booths, the rubber containing the „Swastik mark‟ got detached and the Polling Officers of such booths allowed the voters to use the wooden portion of the said stamps for marking their ballots. It was contended before the learned single Judge that the voters and the candidates raised their objections immediately before the authorities concerned, but no heed was paid to it by the - 8 - Commission. The learned single Judge, after referring to the amenability of such an issue under Article 226 of the Constitution, has opined thus: “7. Furthermore, Rule 75(1) (chh) of the Rules prescribes that ballot papers in the ballot box will be rejected if the mark put thereon is by an instrument other than the instrument provided, but in the instant cases, the marks put on the ballot papers are not by any other instrument rather they are by the same instrument provided by the Commission, although the rubber marks were detached. Hence, the Commission should have come out with a specific stand with respect to the matter and if they have not yet taken any stand thereon, it is high time that they realize the gravity of the situation and take a final decision in respect thereof without any further delay so that such matter can be validly and uniformly decided by the authorities concerned. 8. In any view of the matter, Section 137 of the Act and Rule 106 of the Rules specifically provide that no election shall be called in question except by an election petition as prescribed under the said Section and Rule whereas Section 139 of the Act provides the grounds for declaring election to be void in which sub-section (1) (d) (iii) provides that if the result of the election insofar as it concerns as returned candidate has been materially affected by improper reception, refusal or rejection of any vote, which is void, the prescribed authority shall declare the election of the returned candidate to be void. In the aforesaid circumstances, the grievance of the petitioners mentioned above as well as other grievance can very well be redressed under the said provisions of law as the - 9 - authorities provided under the said provisions are fully competent to decide such matters in accordance with law after considering the pleadings and evidence of the parties as well as specific provisions of law including case laws.” 10. In Meera Devi Vs. The Bihar State Election Commission & Ors, 2008(2) PLJR 530, the learned single Bench referred to the decision in Suresh Kumar (supra) and many other decisions and eventually held thus: “19. In my view, as the voting pattern noted above, would show in the present case, because of the wrong stand generally taken by the State Election Commission and held to be wrong by this Court herein one cannot say with any amount of certainty as to whether the result reflect the true will of the people. The margin of the defeat is only 67 votes whereas over 1800 votes were declared invalid. Such situations in large number of constituencies where such a defect has taken place cannot but be ruled out. If by virtue of a wrong decision of the State Election Commission, the election process does not reflect the true will of the people then what good is the election for are we to be governed by people whom we have not been elected but got elected because of default of the Election Commission. I do not think this can be countenanced in any society, which has faith in democratic values and is based on democratic principle. 20. In my view, justice would be done if wherever the policy decision of the Election Commission or the principle contained therein has been applied and the same is questioned, then the authority would act holding the views - 10 - of Election Commission, as impugned, to be wrong and the correct view to be taken as enunciated by the Apex Court as this Court noticed above and act accordingly. The Election Commission would be well advised to withdraw its decision and direct that wherever votes have been rejected consistent with the view of the State Election Commission or the principle contained therein, which has been held to be erroneous by this Court, the action have to be reversed after scrutiny. 21. In other words the State Election Commission would be obliged to undo the effects of its wrong decision.” 11. The said decision came to be challenged in appeal in Bihar State Election Commission & Ors. Vs. Meera Devi & Ors., 2008 (4) PLJR 114, in which the division bench set aside the order passed by the learned single Judge and held as follows: “8. In so far as election matters are concerned, there is an appropriate forum authorized by law to go into all questions relating to election. The violation alleged to have been committed by the Commission by supplying defective stamps does not violate any constitutional provision or law. Furthermore, it has not come on record in the form of evidence that the voters used stamps supplied by the Commission which were incapable of producing appropriate marks. 9. In the first mentioned appeal, it was the contention of the respondents-writ petitioners that out of 3375 votes cast in the constituency, 1850 had been rejected and the difference between the winning candidate and the respondent-writ - 11 - petitioner was 67 votes. It was well within the competence of the respondent-writ petitioner to prove before the prescribed authority on an election petition that rejection of 1850 votes in the facts and circumstances of the case was improper. Only upon obtaining such a favourable adjudication on the election petition, the writ petitioner could avoid the lost election.” 12. After so holding, the division bench referred to Section 139 of the Act and thereafter proceeded to state as follows: “11. Learned counsel for the respondents-writ petitioners submitted that in relation to the subject matter in dispute we must pronounce something so that on the basis thereof the election petitions pending before the election tribunals may be decided. In absence of evidence that stamps supplied by the commission were faulty, and it is the Commission who compelled the voters to vote in the manner they voted in the rejected ballots, we can only say that the Commission was right while holding out repeatedly that in view of the law made by the State, a ballot without the mark made by the election stamp should be rejected.” 13. The Apex Court in Hari Shankar Prasad v. Shahid Ali Khan & Ors., 2003 (2) PLJR 152 was considering the direction issued by the Election Commission to the effect that if the Presiding Officer or the polling staff has, by mistake, supplied the distinguishing mark stamp to the voters for marking the ballot papers, the ballot papers so marked should not be rejected. The Returning Officer rejected the same. The - 12 - High Court while dealing with the election petition opined that the allegations had neither been proved nor any such allegation was ever made before at any point of time. The Apex Court, after referring to the instructions issued by the Election Commission, took note of the statement of the Returning Officer in evidence wherein he had stated that the distinguishing marks and the seals in those ballots had not been enquired and verified specifically from the polling staff. After analyzing the said factual scenario, their Lordships have opined that the High Court had clearly erred in placing reliance upon the order of the Returning Officer which was based on no enquiry much less from the concerned persons who could throw light on the fact. It is worth noting that their Lordships took note of the decisions rendered in Shri Manni Lal v. Shri Parmai Lal and Ors., (1970) 2 SCC p. 462, and T.H.Musthaffa v. M.P. Varghese & Ors., (1999) 8 SCC p. 692 and expressed the view as follows: - “17. On consideration of all the material available on the record, we find that the wrong stamp was made available to the voters by the polling officer. That being the position, such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner-appellant also as per the directions of the Election Commission. The margin of vote between two contenders is only 35 votes, counting 90 votes in favour of the appellant would provide a lead of 55 votes to the petitioner-appellant who would be entitled for being declared elected.” - 13 - 14. Be it noted, 90 ballot papers polled in favour of the appellant were rejected because of wrong rubber seal meant for putting „distinguishing mark‟ provided by the polling staff to the voters and the same continued to be used while casting their votes during the first one and a half hours. 15. We have referred to the aforesaid decisions only to highlight what has been stated by this Court and the Apex Court with regard to the instructions given by the Election Commission. 16. The fulcrum of the matter is whether in the obtaining factual matrix, a recount could have been directed. Rule 75 of the Rules which deals with the scrutiny of the ballot papers and their rejection reads as under: - 75. Scrutiny of the ballot papers and their rejection:- (1) At any ballot paper contained in the ballot box shall be rejected on the following grounds, if — (a) it bears any mark or writing by which the elector can be identified; or (b) the ballot paper is fictitious; or (c) it has been so damaged or mutilated that its identity cannot be established; or (d) it does not bear the distinguishing mark or the signature of the Presiding Officer; or (e) no vote is recorded on the ballot paper; or (f) voting marks have been put in the column of more than one candidate; or - 14 - (g) the mark on the ballot paper has been made by an instrument other than the prescribed one; or (h) the ballot papers are not printed in accordance with the name of the candidate or candidates, serial number & symbol allotted to a candidate as recorded in Form 9; or (i) other grounds prescribed by a general or special direction of the Commission; Provided that, where the Returning Officer or the Officer authorised by him/her is satisfied that any such defect mentioned in clause (d) has been caused by any mistake or failure on the part of a Presiding Officer or the Polling Officer, he may direct that the ballot papers shall not be rejected merely on the ground of such defect under clause (d): Provided further that, if the mark made by the voter extends to two columns of the ballot paper, the same will be counted in favour of the candidate in whose column the major part of such mark falls. (2) The Returning Officer or the Officer authorised by him shall, before rejecting the ballot-paper under sub-rule (1), give reasonable opportunity to each Counting Agent present to inspect the ballot paper there, but shall not allow him to handle any ballot paper. (3) The Returning Officer or the Officer authorised by him/her shall endorse the word "rejected" on the ballot paper so rejected and record the grounds of rejection either by hand or by a rubber stamp. (4) The rejected ballot papers shall be bundled together. - 15 - 17. Rule 79 of the Rules which provides for recounting of votes is as follows: 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 authorised by him/her for recounting of votes stating therein the grounds for the same. (2) The Returning Officer or the Officer authorised 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 authorised 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. 18. The Apex Court in Hoshila Tiwari (supra), while interpreting Rule 29, has held as follows: - “11. From the above it is clear that making of an application under Rule 79 of the Rules is a mandatory requirement. The learned Single Judge of the High Court though correctly understood the law laid down by this Court in regard to the application of Rule 79 still distinguishing the same came to the conclusion that a prayer can be made even before the Election Tribunal provided the required ingredients to establish the course for not making the application by the election petitioner in the election petition is shown. Learned counsel appearing for the respondent - 16 - referring para 25 of this Court‟s judgment in Chandrika Prasad Yadav contended that even this Court has accepted the above position in law that making of a request in election petition of re-counting is not totally excluded. As noted above we have no quarrel with this proposition provided in the election petition or in the subsequent prayer made by the aggrieved party produces sufficient explanation or material to show that in fact he was prevented by certain prevailing material situation for not making that application. In the present case we have examined the election petition carefully and we do not find any explanation offered by the election petitioner for not making an application as required under Rule 79 of the Rules. Learned counsel for the respondent points out that at a later stage a fax message sent to Chief Election Commissioner which in fact is disputed by the learned counsel for the appellant. Be that