CHANDESHWAR SAW versus BRIJ BHUSHAN PRASAD & ORS.
[2020] 1 S.C.R. 523, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Ratio
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CHANDESHWAR SAW
v.
BRIJ BHUSHAN PRASAD & ORS.
(Civil Appeal No. 780 of 2020)
JANUARY 28, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Election Laws:
Panchayat Election – Complaint against returned candidate,
by the election petitioner – Alleging that despite objection, number
of valid votes cast in his favour were being rejected and invalid
votes in favour of returned candidate were accepted – The Tribunal
finding the irregularities in counting of votes declared his election
as null and void and directed recounting of votes – In Writ Petition
Single Judge of High court held that before recounting of votes,
election of returned candidate should not have been set aside and
relegated the parties to Tribunal for passing appropriate order after
result of recounting – After recounting process, results were kept in
sealed envelope – LPA filed against order of Single Judge –
Tribunal’s direction to place the result in sealed envelope before
District Election Officer-cum-District Magistrate for declaration of
the result – Challenged by returned candidate by way of a writ
petition – The LPA as well as the writ petition of returned candidate
was decided against the election petitioner setting aside the direction
of recounting of votes – Appeal to Supreme Court – Held : Division
Bench reversed the well considered decision of Election Tribunal
and Single Judge of High Court, without analysing the pleadings
and the evidence – A declaration u/s. 140 of Bihar
Panchayat Raj
Act, 2006 is issued that the election of the returned candidate is set
aside being invalid and election petitioner is declared as having
been duly elected – Bihar Panchayat Raj Act, 2006 – s. 140.
Disposing of the appeal, the Court
HELD : 1.1 The Division Bench of High Court reversed
the well-considered decision of the Election Tribunal, which has
justly been upheld by the Single Judge of High Court, without
analysing the pleadings and the evidence adduced by the appellant/
   [2020] 1 S.C.R. 523
523
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election petitioner during the trial of the election case.  The
impugned judgment merely adverts to the interim orders passed
during the pendency of the writ petition filed by respondent No.
1 and the LPA and goes on to observe that for the (prima facie)
opinion recorded therein, the matter in issue deserves to be
answered against the appellant/election petitioner and in favour
of respondent No. 1. [Para 8] [533-A-C]
1.2 Without reversing the finding of facts so recorded by
the Election Tribunal, merely by referring to decisions of this
Court, the Division Bench could not have disturbed the order of
recount as directed by the Election Tribunal in the peculiar facts
of the present case.  Inasmuch as, the appellant/election petitioner
had not only pleaded about the serious irregularities committed
by the officials during the counting of valid votes cast in his favour
and invalid votes taken into account in favour of respondent No.
1, but had also examined witnesses to substantiate that fact, as
noted by the Election Tribunal and the Single Judge of the High
Court. [Para 8] [536-F-H]
Mahender Pratap v. Krishan Pal & Ors. (2003) 1 SCC
390 : [2002] 4 Suppl. SCR 339 – distinguished.
Bhabhi v. Sheo Govind & Ors. (1976) 1 SCC 687 ;
[1975] Suppl. SCR 202 – referred to.
1.3 Since the appellant had substantiated the allegation made
in the election petition and the Election Tribunal being convinced
about the said claim proceeded
to issue order of recount.  No
fault can be found with that approach of the Election Tribunal nor
it is possible to suggest that the Election Tribunal or the Single
Judge was not conscious about the necessity to substantiate the
allegation about the serious irregularities committed by the
officials during the counting. The Court or Tribunal can direct
recount of votes even if the party had not applied in writing for
recounting of votes to the Returning Officer.  There is no
provision in the Bihar Panchayat Raj Act, 2006 or in the Rules
prohibiting the Court or the Tribunal to direct recounting of votes.
[Paras 9 & 10] [538-A-B, E]
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Sohan Lal v. Babu Gandhi & Ors. (2003) 1 SCC 108 :
[2002] 4 Suppl. SCR 333 – relied on.
Ram Rati (Smt) v. Saroj Devi & Ors. (1997) 6 SCC 66 :
[1997] 3 SCR 1050 – stood overruled.
1.4 After the recount, the appellant/election petitioner has
secured 95 excess valid votes, more than the valid votes secured
by respondent No. 1.  That has reinforced the challenge set up
by the appellant that the officials had committed serious
irregularities bordering on intentional manipulation of the valid
votes secured by the appellant.  As a result, the Court upholds
the order of recount of votes, as passed by the Election Tribunal
(dated 11.10.2018) and justly upheld by the Single Judge, in the
facts of the present case. [Para 11] [539-C-D]
2. The direction issued by the Election Tribunal to place
the report contained in sealed envelope before the District
Election Officer-cum-District Magistrate for declaration of result,
even if inappropriate, would not affect the order of recount of
votes.  It was open to the High Court to mould the direction
issued by the Election Tribunal and instead issue declaration as
envisaged under Section 140 of the Bihar Panchayat Raj Act, 2006.
A declaration is issued under Section 140 of the Act that the
election of respondent No. 1 as returned candidate is set aside
being invalid, and instead the appellant/election petitioner is
declared as having been duly elected having secured highest votes
amongst the contesting candidates and 95 more
valid votes than
that of respondent No. 1 in the subject election. [Paras 12 & 14]
[539-E-F; 541-A-B]
3.1. The order passed by the Election Tribunal, dated
11.4.2019, which was subject matter of the writ petition filed by
respondent No. 1 also dealt with the application filed before it
alleging forgery of record/documents of the Tribunal.  The Tribunal
has rightly observed that that is a separate matter and would
require independent enquiry, for which the petition has been
treated as a petition under Section 340 of the Criminal Procedure
Code (Cr.P.C.) to be dealt with as per law. [Para 13] [540-D-E]
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
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3.2. Respondent No. 1 by way of written submissions filed
after the matter was reserved for judgment, has adverted to
certain factual matters, so as to question the result of recount of
votes.  Presumably, the alleged acts of commission or omission
are already subject matter of proceedings initiated under Section
340 of the Cr.P.C.  That need not detain the Court from disposing
of this matter. The new factual matters do not find mention in the
impugned judgment.  It would be open to respondent No. 1 to
pursue proceedings under Section 340 of the Cr.P.C., which will
have to be decided on its own merits in accordance with law.
[Para 13] [540-F-H]
Case Law Reference
[2002] 4 Suppl. SCR 339
distinguished
Para 5
[1975] Suppl. SCR 202
referred to
Para 5
[2002] 4 Suppl. SCR 333
relied on
Para 10
[1997] 3 SCR 1050
stood overruled
Para 10
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 780 of
2020.
From the Judgment and Order dated 27.08.2019 of the High Court
of Judicature at Patna in Letters Patent Appeal No. 382 of 2019.
Amit Pawan, Abhishek Amritanshu, Anand Nandan, Akshat
Srivastava, Hasan Zubair Waris, Rohit Rajeshi, Ms. Shivangi, Advs. for
the Appellant.
Abhay Kumar, Vineet Kumar Singh, Kumar Milind, Gopal Singh,
Manish Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. This appeal takes exception to the judgment and order dated
27.8.2019 passed by the
High Court of Judicature at Patna (for short,
‘the High Court’), thereby setting aside the order of the learned single
Judge, dated 6.3.2019 and orders passed by the Court of Civil Judge
(Junior Division)-cum-Election Tribunal, Danapur, District Patna, Bihar
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(for short, ‘the Election Tribunal’), dated 11.10.2018 and 11.4.2019 in
Election Case No. 08/2016.  Consequently, the above numbered election
case filed by the appellant challenging the election of respondent No. 1
as returned candidate for the post of Mukhia, Artyapur Gram Panchayat
No. 8 under Naubatpur Block, came to be dismissed.
3. Briefly stated, the election for the post of Mukhia, Artyapur
Gram Panchayat No. 8 under Naubatpur Block was held on 6.5.2016, in
which the appellant and respondent No. 1 alongwith 11 others had
contested as candidates and after counting of votes on 4.6.2016, the
respondent No. 1 was declared elected.  During the counting, however,
the appellant had noticed that number of valid votes cast in his favour
were being rejected, while even invalid votes in favour of respondent
No. 1 were being accepted and counted.  The respondent No. 1 was
declared elected by a margin of 154 votes.  In this backdrop, the appellant
filed an election case before the Election Tribunal, seeking recounting of
votes, setting aside election of respondent no. 1 and declaring him
(appellant) elected.  The appellant specifically alleged about the
irregularities committed during the counting process including the one
that swastika symbol pressed light ink was not being counted in favour
of the appellant and despite grievance being made in that behalf, no
heed was paid by the Returning Officer.  At the same time, it was also
noticed that some invalid votes
cast in favour of respondent No. 1 were
accepted and counted as valid disregarding the objection taken in that
behalf.  The election case proceeded for trial and after recording of
evidence of the witnesses produced by the concerned parties, the Election
Tribunal after due evaluation of the evidence, accepted the grievance of
the appellant that the result sheet prepared by the election officer was
not proper as the counting of votes was not done by the officials as per
rules.  The Election Tribunal proceeded to record finding of fact in favour
of the appellant and answered the issue in the following words: -
“………
By perusal documentary evidences as well as plaint on record its
appear that applicant has tried his level best to brought all material
facts in his plaint and supported by his evidences, it is also appeared
that as soon as plaintiff got knowledge that some irregularities is
going on while counting votes and he came to know that his 216
valid votes has been rejected due light ink on the ballot but same
type of has been counted in favour of returned candidate then
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]
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immediately he has made an application to concerned officers for
recounting which is marked Ex.-1, same has been made in his
plaint as well as supported by oral as well as documentary
evidences. Plaint of this case make out a prima facie case with
regard to the valid votes of the plaintiff rejected. In this case all
the aforesaid conditions are fulfilled by the petitioner which are
discussed above. Thus, in the light of the discussions made above
this tribunal finds that there were irregularities in the counting of
votes in the present case, the result sheet prepared was irregular,
not proper and counting of votes by the officials not done as per
rule. Thus, there issue goes in favour of the petitioner.”
Finally, the Election Tribunal proceeded to pass the following order: -
“ORDER
In the light of the aforesaid issues it is clear that in the counting
the Rule 79 of the Bihar Panchayat Election Rules were not
followed by the counting authorities and hence on this sole issue
the election petition is fit to be allowed, but as per the discussion
in issue No.3, 4 and 5 this tribunal found that there were
irregularities in the counting of votes in the present case and the
result sheet prepared was irregular and not proper. However, in
the issue No.6 it is found by this tribunal that:
i)  The O.P. no.1 was not properly declared Mukhiya.
ii) It is not proved by the petitioner that she has got more votes
than the votes of the
O.P. No.1.
Thus, from the discussion made above it is clear that the petitioner
has is not entitled to the relief of setting aside election of returned
candidate. However, from the discussions and findings of the above
issues it is also clear that the petitioner has been able to prove that
the final result for the post of Mukhiya of Gram Panchaayt Raj.
Dariyapur is not proper and the O.P. No.1 was not properly
declared as Mukhiya but the final result can be ascertained by the
proper and minute recounting only. Hence, the petitioner is entitled
to the relief as discussed above only.
Hence, in the light of findings of the all the issues in this case. It is
hereby ordered that the final result for the post of Mukhiya of
Dariyapur Panchayat, Block Naubatpur, District Patna is declared
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as null and void. The certificate in favour of the O.P. No.1 as
return candidate is declared void. It is ordered to the O.P. No.15
i.e. the District Magistrate, Patna cum District Election Officer,
Patna to get the ballots of each booth for the post of Mukhiya
Dariyapur Panchayat recounted under his supervision within one
month from the date of receipt of this order. It is also ordered the
District Magistrate, Patna Cum Election Officer Patna to take
over the election material which is laying in safe custody of this
court for recounting purpose and thereafter keep it as per law/
rules. It is also ordered that the final result shall be prepared for
each candidate after recounting and the certificate shall be issued
in favour of the return candidate. Let a copy of this judgment be
sent to District Magistrate Cum District Election Officer, Patna
and Election Commission. All the petitions pending in this case
are disposed of as not pressed. Accordingly, the case is allowed
on contest against those who have appeared in this case and Ex-
parte against who has not appeared.
Judgment pronounced and delivered by me in open court.
Typed and corrected by me.”
This order was assailed by respondent no. 1 by way of Civil Writ
Jurisdiction Case (CWJC) No. 21476/2018 before the High Court.  The
learned single Judge, after due consideration of the evidence on record,
as considered by the Election Tribunal was pleased to uphold the finding
of fact recorded by the Election
Tribunal in the following words:-
“…………….
Keeping in mind the aforesaid judicial pronouncements on the
subject when this Court proceeds to consider as to whether the
learned Election Tribunal has considered the materials available
on the record and whether based on such materials a prima facie
satisfaction regarding the truth of allegation for recounting of votes
has been taken? This Court finds that the learned Election Tribunal
has discussed the case of the election petitioner which specifically
pointed out that the ballot papers containing Swastik symbol
pressed with light ink was not being counted in favour of the
election petitioner whereas those were being counted in favour of
the returned candidate (petitioner). The case of the election
petitioner was supported by AW 2, AW 3, AW 4 and AW 5. The
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]
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learned Election Tribunal has discussed the evidences of the
witnesses who have stated that they were present at the time of
counting and had supported the case of the election petitioner. In
fact, one Akhileshwar Kumar who has deposed as O.P.W.1 has
supported the case of the applicant in his examination-in-chief.
The learned Election Tribunal has discussed his evidence also in
the impugned judgment. On going through the discussions made
by the Election Tribunal in the judgment, this Court finds that he
has dealt with the deposition of the witnesses produced on behalf
of the returned candidate as well. It has been found that the
returned candidate and his witnesses has either deposed that they
were not present at the time of counting or they have no knowledge
regarding valid or invalid votes. The Tribunal held that the returned
candidate has made contradictory statements regarding valid and
invalid votes when compared with other witnesses of his side.
After a careful perusal of the entire materials available on the
record, this Court is of the considered opinion that in the plaint the
election petitioner has made a categorical and positive allegation
and he has supported his allegations by bringing witnesses who
were present at the time of counting. In these conditions if the
Election Tribunal has found itself prima-facie satisfied and has
come to a conclusion that a recounting of vote is required, this
Court finds no
reason to take any other view.
In the opinion of this Court, learned Tribunal has rightly taken
the view as under:
“in this case all the aforesaid conditions are fulfilled by the
petitioner which are discussed above. Thus, in the light of the
discussions made above this Tribunal finds that there were
irregularities in the counting of votes in the present case, the
result sheet prepared was irregular not proper and counting of
votes by the official was not done as per Rule. Thus, this issue
goes in favour of the petitioner.”
By virtue of the aforesaid discussions, this Court finds that the
direction for recounting of votes cannot be faulted with, there is
no illegality much less any material illegality and this Court sitting
in its supervisory writ jurisdiction does not find any reason to
interfere with the aforesaid direction.”
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The learned single Judge of the High Court, however, reversed
the order passed by the Election Tribunal of setting aside the election
before the recounting of votes.  The learned single Judge instead relegated
the parties before the Election Tribunal for the limited purpose of passing
appropriate orders only after the recount results become available.  In
fact, the recounting process was completed during the pendency of the
said writ and the result was kept in sealed envelope.  Resultantly, the
learned single Judge thought it proper to relegate the parties before the
Election Tribunal for passing consequential orders after perusal of the
recount results kept in sealed envelope.
4. The respondent no. 1 assailed the decision of the learned single
Judge by way of Letters Patent Appeal (LPA) No. 382/2019.  During
the pendency of the said appeal, in terms of the directions given by the
learned single Judge, the Election Tribunal proceeded to pass an order
on 11.4.2019.  The Election Tribunal in reference to Rule 81 of the Bihar
Election Rules, 2006 (for short, ‘the 2006 Rules’), directed to place the
report kept in sealed envelope before the District Election Officer-cum-
District Magistrate, Patna for declaration of the election result.  The
respondent no. 1, therefore, challenged the said order dated 11.4.2019
passed by the Election Tribunal by way of CWJC No. 9655/2019.  The
Division Bench of the High Court proceeded to dispose of the LPA, as
well as, the
writ petition (CWJC No. 9655/2019) together by a common
judgment, which is subject matter of challenge in the present appeal.
5. According to the appellant, the Division Bench of the High
Court committed manifest error in reversing the well-considered decision
of the Election Tribunal as rightly upheld by the learned single Judge
regarding necessity to direct recounting of votes in the fact situation of
the present case.  The Division Bench did not even bother to deal with
the factual aspects of the matter as analysed by the Election Tribunal
and also by the learned single Judge of the High Court, before setting
aside the direction regarding recount of votes.  It merely referred to the
decision of this Court in Bhabhi vs. Sheo Govind & Ors.1 and Mahender
Pratap vs. Krishan Pal & Ors.2.  As a matter of fact, the Division
Bench did not make any enquiry, much less analysis of the pleadings and
the evidence, but went on to observe that the Election Tribunal without
even inspecting the ballots or forming the prima facie opinion on the
1 (1976) 1 SCC 687
2 (2003) 1 SCC 390
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]
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basis of material produced by the appellant/election petitioner, committed
error in directing recount of votes.  The impugned judgment reproduces
the interim order passed by the Division Bench on 24.7.2019 recording
its prima facie view and proceeded to adopt the view expressed therein
to reverse the well-considered decision of the Election Tribunal as upheld
by the learned single Judge.  Concededly, it is urged that the interim
order passed on 24.7.2019 has not analysed the pleadings and evidence
produced on behalf of the appellant/election petitioner, which had
commended to the Election Tribunal and the learned single Judge of the
High Court.  All that is mentioned in the said order is that the Election
Tribunal proceeded to pass order of recount of votes in complete ignorance
of law on the subject, whereas the Election Tribunal, as well as, the
learned single Judge had duly analysed the pleadings as well as the
evidence produced by the appellant/election petitioner to conclude that
there was enough evidence to substantiate the case made out by the
appellant/election petitioner that the officials committed serious
irregularities during the counting of votes and failed to adhere to the
applicable rules in that regard.  The appellant would submit that the
decisions adverted to by the Division Bench can be of no avail and
cannot be the basis to overturn the well-considered decisions of the
Election Tribunal and the
learned single Judge, directing the recount of
votes in the peculiar facts of the present case.
6. The respondent no. 1 who had filed the LPA challenging the
orders passed by the Election Tribunal, however, has supported the
decision of the Division Bench and would contend that no case for recount
was made out by the appellant/election petitioner either in the election
petition or by way of any evidence produced to substantiate that relief.
Relying on the decisions of this Court referred to in the impugned
judgment, it is contended that neither the Election Tribunal nor the learned
single Judge took note of the settled legal principles before directing
recount of votes.  The appellant/election petitioner did not apply for
recount before the declaration of the results and that without even
inspecting the ballots, the Election Tribunal proceeded to direct recount
of votes, which was impermissible.  It is further submitted that no
interference with the impugned judgment is warranted.
7. We have heard Mr. Amit Pawan, learned counsel appearing
for the appellant and Mr. Abhay Kumar, learned counsel for the
respondents.
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8. After considering the rival submissions, we have no hesitation
in accepting the argument of the appellant that the Division Bench vide
impugned judgment (dated 27.8.2019) has reversed the well-considered
decision of the Election Tribunal, which has justly been upheld by the
learned single Judge (vide order dated 6.3.2019), without analysing the
pleadings and the evidence adduced by the appellant/election petitioner
during the trial of the election case.  The impugned judgment merely
adverts to the interim orders passed during the pendency of the writ
(CWJC No. 9655/2019) and the LPA and goes on to observe that for
the (prima facie) opinion recorded therein, the matter in issue deserves
to be answered against the appellant/election petitioner and in favour of
respondent No. 1.  That is evident from the following extract of the
judgment under appeal: -
“”……………….
From a perusal of the orders extracted hereinabove, the moot
question that has to be determined by this Court is as to whether
the Tribunal had proceeded in accordance with law to order a
recount of the votes on the allegations made. Without reiterating
the facts and even the position of law which stands extracted
in our order dated 24th July, 2019, we find that the learned
counsel for the respondent election-petitioner could not
successfully convince us to take a different view from what
was expressed by us in the interim order quoted
hereinabove. Keeping in view the law laid down by the Apex
Court in the case of Bhabhi Vs. Sheo Gobind and others,
reported in (1976) 1 SCC 687, we find that the order of
recount as upheld by the learned Single Judge in the
impugned judgment, therefore, is unsustainable as it is not
in conformity with law. The Tribunal without even inspecting
the ballots or forming a prima facie opinion on the basis of
such material that was necessary to be gone into, proceeded
to pass an order of recount that cannot be sustained in law.
The learned Single Judge, therefore, could not have upheld
the same.
From the narration of facts hereinabove, it appears that even
after the judgment dated 6th march, 2019, the Tribunal appears to
have acted in ample haste and in our opinion, any action in
proceeding to pass the order on 11th April, 1999 was in the nature
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of an overreach so as to virtually circumvent the orders passed
by this Court. This fact has been noticed by the learned Single
Judge while passing the interim order dated 18th June, 2019
extracted hereinabove in C.W.J.C. No.9655 of 2019 with which
we find ourselves in full agreement with.
The Tribunal, therefore, not only committed an error, but the
action of the Tribunal can be clearly described as one to be malice
in law. The Tribunal, therefore, ought not to have proceeded for
issuing any direction for declaration of results without even
complying with the observations made in the judgment dated 6th
of March, 2019. This manner of dealing with the matter by the
Tribunal, therefore, cannot be appreciated in the background of
the case, more particularly, in the light of the arguments that have
been advanced on the legal issue about the procedure to be adopted
by a Tribunal before ordering a recount.
Shri Manglam, learned counsel for the appellant, however,
insisted that the matter should not be remitted even if the appeal
is allowed and the order dated 11th April, 2019 is quashed. His
submission is that the election petition itself was not maintainable
keeping in view the nature of the pleadings on record which do
not make out any case for either a recount or even for trying the
allegations levelled in the election petition. Pointing out to the
framing of Issue No.1 by the Tribunal and the answer given to it
on the
strength of the findings arrived at, he contends that election
petition has been found to be maintainable on the ground that
there was a case made out for recount. This, he submits was a
converse procedure to record a finding, inasmuch as, once there
was evidence on record to the effect that no application for recount
had been filed, which is evident from the deposition of the Returning
Officer, then in that event Issue No.1 has been wrongly decided.
He further submits that the incident relating to the transfer of the
records from the strong room to the Court under the private
custody of the sons of the election petitioner was also an additional
ground apart from the fact that the Court itself had entertained a
Miscellaneous Application for undertaking proceedings under
Section 340 Cr.P.C. his submission is that an intentional false plea,
therefore, clearly disentitled the election petitioner to maintain the
election petition and for which reliance has been placed by the
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learned counsel on the judgment in the case of Mahender Pratap
Vs. Krishna Pal & Ors. reported in (2003) 1 SCC 390.
The contention, therefore, in short is that, this Court itself should
hold that the election petition was not maintainable and
consequently, there is no occasion for remitting the matter back
to the Tribunal concerned.
Responding to the aforesaid submissions, Shri P.K. Shahi,
learned Senior Counsel appearing for the election petitioner
submits that even assuming for the sake of argument that the
Tribunal committed error in proceeding to order a recount without
recording appropriate findings, even though not admitting the same,
yet the matter has to go back to the Tribunal, inasmuch as, the
issue of maintainability was not the main issue, and it was the
issue of recount which formed the basis of the entire litigation. In
order to determine as to whether a recount would be permissible
or not on the basis of the evidence adduced will be a matter of
enquiry by the Tribunal itself and not by this Court in the exercise
of jurisdiction under Article 226 of the Constitution of India. He,
therefore, submits that the matter will have to be looked into
keeping in view the evidence on record and also the pleadings
which do indicate that there was sufficient material in order to
attempt a recount on the allegations made.
Learned counsel for the State of Bihar has also advanced his
submissions contending that the law as laid down by the Apex
Court in the
case of Bhabhi Vs. Sheo Gobind and others (supra)
deserves to be followed.
Having heard learned counsel for the parties and having
perused the records and in view of what has been recorded
by us hereinabove, we find that the order of recount cannot
be sustained as the Tribunal acted in hot haste and the
action of the Tribunal even in subsequently passing an order
dated 11th April, 2019 clearly indicates that it is not an order
which can either be sustained in law or can be described to
be in conformity with the legal principles as laid down in
the case of Bhabhi Vs. Sheo Gobind and others (supra).
The manner in which the proceedings have been conducted
by the Presiding Officer, therefore, cannot be appreciated and in
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]
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this background and having perused the material on record, we
find that upon the matter being remitted, the said Presiding Officer
who has passed the orders impugned, should not act as the
Presiding Officer to decide the present dispute.
Accordingly, the present appeal (L.P.A. No.382 of 2019) is
allowed. The impugned judgment dated of the learned Single Judge
dated 6th of March, 2019 is set aside.
The order of recount passed by the Tribunal dated 11.10.2018
is also quashed. The order passed by the Tribunal on 11th April,
2019, therefore, also cannot be sustained and is accordingly set
aside. C.W.J.C. No.9655 of 2019 is also accordingly allowed.
The matter shall now stand remitted to the Tribunal with a
direction to the learned District Judge, Patna, to nominate the said
election petition to an officer of the rank empowered to try the
election petition other than the officer who had dealt with the
matter earlier.
With the aforesaid directions, the appeal (L.P.A. No.382 of
2019) and the writ petition (C.W.J.C. No.9655 of 2019 are
accordingly allowed.”
(emphasis supplied)
Assuming that we were to take notice of the elaborate interim
orders dated 24.7.2019 and 18.6.2019, there is nothing to indicate that
even at that stage of the proceedings, the Division Bench has had
occasion to analyse the pleadings and evidence adverted to by the Election
Tribunal as commended to the learned single Judge.  Without reversing
the
finding of facts so recorded by the Election Tribunal, merely by
referring to decisions of this Court in Bhabhi (supra) and Mahender
Pratap (supra), the Division Bench could not have disturbed the order
of recount as directed by the Election Tribunal in the peculiar facts of
the present case.  Inasmuch as, the appellant/election petitioner had not
only pleaded about the serious irregularities committed by the officials
during the counting of valid votes cast in his favour and invalid votes
taken into account in favour of respondent No. 1, but had also examined
witnesses to substantiate that fact, as noted by the Election Tribunal and
the learned single Judge of the High Court.
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9. Indeed, in the case of Bhabhi (supra), this Court has delineated
the contours for issuing direction of inspection or recount of votes in the
following words: -
“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 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.”
The question is: whether material facts to justify an order of recount
of votes has been clearly pleaded and the same have been proved by the
appellant/election petitioner in the present case?  That issue has been
analysed by the Election Tribunal extensively, as is evident from the
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]
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analysis made by it, which commended to the learned single Judge.  Since
the appellant had substantiated the allegation made in the election petition
and the Election Tribunal being convinced about the said claim proceeded
to issue order of recount.  No fault can be found with that approach of
the Election Tribunal nor it is possible to suggest that the Election Tribunal
or the learned single Judge was not conscious about the necessity to
substantiate the allegation about the serious irregularities committed by
the officials during the counting.
10. Similarly, in the case of Mahender Pratap (supra), the Court
went on to reject the election petition in the facts of that case, having
noted that incorrect statements were made in the pleadings, affidavits or
depositions being an attempt to mislead the Court and more so, the recount
application was made by the candidate (election petitioner) to the
Returning Officer after the results were declared, which could not have
been entertained by the Returning Officer.  In the case of Sohan Lal
vs. Babu Gandhi & Ors.3, the three-Judge Bench of this Court has
opined that the fact that recount request was not made by the candidate
during the counting, does not preclude filing of election petition or to
direct recount in the election petition questioning the election after results
of the election are announced.  The decision in Ram Rati (Smt) vs.
Saroj Devi & Ors.4 came to be
overruled and instead the Court held
that in an election petition, after the declaration of result, the Court or
Tribunal can direct recount of votes even if the party had not applied in
writing for recounting of votes to the Returning Officer.  There is no
provision in the Act or in the Rules prohibiting the Court or the
Tribunal to direct recounting of votes.  The Court in paragraph 14 observed
thus: -
“14. In view of Section 122 and the Rules, we are unable to agree
with the ratio laid down in Ram Rati case (1997) 6 SCC 66.  It is
not correct to hold that, in an election petition, after the declaration
of the result, the court or tribunal cannot direct re-counting of
votes unless the party has first applied in writing for re-counting
of votes. There is no prohibition in the Act or under the Rules
prohibiting the court or tribunal to direct a re-counting of the votes.
Even otherwise, a party may not know that the re-counting is
necessary till after the result is declared. At this stage, it would
3 (2003) 1 SCC 108
4 (1997) 6 SCC 66
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not be possible for him to apply for re-counting to the Returning
Officer. His only remedy would be to file an election petition under
Section 122. In such a case, the court or the tribunal is bound to
consider the plea and where a case is made out, it may direct re-
count depending upon the evidence led by the parties. In the present
case, there was obvious error in declaring the result. We, therefore,
hold that the ratio laid down in Ram Rati case (1997) 6 SCC 66 is
not correct.”
11. A priori, we have no hesitation in concluding that the Division
Bench has interfered with the well-reasoned judgment and order passed
by the Election Tribunal, which was justly upheld by the learned single
Judge, directing recount of votes.  It appears that after the recount, the
appellant/election petitioner has secured 95 excess valid votes, more
than the valid votes secured by respondent No. 1.  That has reinforced
the challenge set up by the appellant that the officials had committed
serious irregularities bordering on intentional manipulation of the valid
votes secured by the appellant.  As a result, we have no hesitation in
upholding the order of recount of votes, as passed by the Election Tribunal
(dated 11.10.2018) and justly upheld by the learned single Judge (vide
order dated 6.3.2019), in the facts of the present case.
12. The next question is about the correctness of the direction
issued by the Election Tribunal vide order dated 11.4.2019 to place the
report
contained in sealed envelope before the District Election Officer-
cum-District Magistrate, Patna for declaration of result.  That direction
even if inappropriate, would not affect the order of recount of votes.  It
was open to the High Court to mould the direction issued by the Election
Tribunal and instead issue declaration as envisaged under Section 140 of
the Bihar Panchayat Raj Act, 2006, which reads thus: -
“140. Grounds on which a candidate other than the returned
candidate may be declared to have been elected - (1) If any
person who has filed an election petition has, in addition to calling
in question the election of the returned candidate, claims a
declaration that he himself or any other candidate has been duly
elected and the Prescribed Authority is of opinion-
(a) that in fact the petitioner or such other candidate received
a majority of the valid votes; or
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
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(b) that but for the votes obtained by the returned candidate by
corrupt practices the petitioner or such other candidate would
have 142 obtained a majority of the valid votes, the Prescribed
Authority shall after declaring the election of the returned
candidate to be void declare the petitioner or such other
candidate, as the case may be, to have been duly elected.
(2) The decision of the Prescribed Authority shall be final.”
In other words, the High Court ought to have moulded or modified
the operative order passed by the Election Tribunal, dated 11.4.2019 to
the effect that the election of the returned candidate (respondent No. 1)
be and is set aside as invalid and the appellant (election petitioner) is
declared as having been duly elected having secured more valid votes
after recount.  Resultantly, in this appeal, we proceed to issue that
declaration.
13. The order passed by the Election Tribunal, dated 11.4.2019,
which was subject matter of CWJC No. 9655/2019 also dealt with the
application filed before it alleging forgery of record/documents of the
Tribunal.  The Tribunal has rightly observed that that is a separate matter
and would require independent enquiry, for which the petition has been
treated as a petition under Section 340 of the Criminal Procedure Code
(Cr.P.C.) to be dealt with as per law.  As regards that direction issued by
the Election Tribunal vide order dated 11.4.2019, the same is not the
subject matter of this appeal.  In other words, we have only dealt with
the issues emanating from the stated direction issued by the Election
Tribunal regarding recounting of votes and to issue appropriate declaration
in terms of Section 140 of the Bihar Panchayat Raj Act, 2006.  The
respondent No. 1 by way of written submissions filed after the matter
was reserved for judgment, has adverted to certain factual matters, so
as to question the result of recount of votes.  Presumably, the alleged
acts of commission or omission are already subject matter of proceedings
initiated under Section 340 of the Cr.P.C.  That need not detain us from
disposing of this matter having noticed that the respondent No. 1 had
succeeded before the Division Bench on grounds which we have already
adverted to hitherto and rejected.  The new factual matters do not find
mention in the impugned judgment.  It would be open to the respondent
No. 1 to pursue proceedings under Section 340 of the Cr.P.C., which
will have to be decided on its own merits in accordance with law.
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14. Accordingly, this appeal succeeds.  The impugned judgment
and order is set aside.  Instead, the election case being E.C. No. 08/
2016 filed by the appellant before the Election Tribunal is allowed.  A
declaration is issued under Section 140 of the Act that the election of
respondent No. 1 as returned candidate is set aside being invalid, and
instead we declare the appellant/election petitioner as having been duly
elected having secured highest votes amongst the contesting candidates
and 95 more valid votes than that of respondent No. 1 in the subject
election.
15. The appeal is disposed of in the above terms with no order as
to costs.  Pending interlocutory applications, if any, shall stand disposed
of.
Kalpana K. Tripathy
Appeal disposed of.
CHANDESHWAR SAW v. BRIJ BHUSHAN PRASAD & ORS.
[A. M. KHANWILKAR, J.]