CHANDESHWAR SAW Vs. BRIJ BHUSHAN PRASAD
LAWS(SC)-2020-1-79
SUPREME COURT OF INDIA
Decided on January 28,2020

Chandeshwar Saw Appellant
VERSUS
Brij Bhushan Prasad Respondents


Referred Judgements :-

BHABHI VS. SHEO GOVIND [REFERRED TO]
RAM RATI VS. SAROJ DEVI [REFERRED TO]
MAHENDER PRATAP VS. KRISHAN PAL [REFERRED TO]
SOHAN LAL VS. BABU GANDHI [REFERRED TO]


JUDGEMENT

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)cumElection Tribunal, Danapur, District Patna, Bihar (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 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 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 Exparte 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 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 examinationinchief. 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 primafacie 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."

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.

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