Patna High Court
Ishrat Jahan Haidry vs The State Of Bihar & Ors on 2 December, 2016
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 14936 of 2016
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Ishrat Jahan Haidry, wife of Tanveer Ahmad Haidry Resident of Village and P.O.
Ratanpura, P.S. Moro, District- Darbhanga.
.... .... Petitioner/s
Versus
1. The State of Bihar through the District Magistrate, Darbhanga.
2. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel
Path, Patna through the State Election Commissioner.
3. The Secretary, the State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
4. The District Magistrate-cum-District Election Officer (Panchayat), Darbhanga,
District- Darbhanga.
5. The Block Development Officer, Hayaghat, District- Darbhanga.
6. The Block Development Officer, Hanuman Nagar, District- Darbhanga.
7. Abha Devi, wife of Narayan Chaudhary, Resident of village- Godhwara, P.O.
and P.S. Moro, District- Darbhanga.
8. Anjari Khatoon, wife of Kamre Alam, Resident of village and P.O. Ratanpura,
P.S. Moro, District- Darbhanga.
9. Kanchan Devi, wife of Sudhikshan Chaudhary, Resident of village- Moro, P.O.
and P.S. Moro, District- Darbhanga.
10. Kahakasa Bano, wife of Bashir Ahmed, Resident of village and P.O. Ratanpura,
P.S. Moro, District- Darbhanga.
11. Kiran Devi, wife of Arun Rai, Resident of village and P.O. Moro, P.S. Moro,
District- Darbhanga.
12. Kumkum Kumari, wife of Mukul Chaudhary, Resident of village and P.O.
Moro, P.S. Moro, District- Darbhanga.
13. Pramila Devi, wife of Suresh Rai, Resident of village and P.O. Moro, P.S.
Moro, District- Darbhanga.
14. Bharati Devi, wife of Saroj Chaudhary, Resident of village- Godwara, P.O.
Moro, P.S. Moro, District- Darbhanga.
15. Rafat Khatoon, wife of Samim Parvej, Resident of village and P.O. Ratanpura,
P.S. Moro, District- Darbhanga.
16. Ram Kumari Devi, wife of Ramashankar Paswan, Resident of village and P.O.
Moro, P.S. Moro, District- Darbhanga.
17. Raushan Jahan, wife of Md. Raees, Resident of village and P.O. Ratanpura, P.S.
Moro, District- Darbhanga.
18. Shail Devi, wife of Vinod Paswan, Resident of village- Hasanpur, P.O. and P.S.
Moro, District- Darbhanga.
19. Sanju Devi, wife of Sujan Rai, Resident of village and P.O. Moro, P.S. Moro,
District- Darbhanga.
20. Sima Devi, wife of Randheer Choudhary, Resident of village and P.O. Moro,
P.S. Moro, District- Darbhanga.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S. B. K. Manglam &
Ms. Anita Kumari, Advocates
For the Respondent No. 2 & 3 : Mr. Amit Shrivastava &
Mr. Girish Pandey, Advocates
For the State : Mr. Patanjali Rishi, A.C. to A.A.G. 6
Patna High Court CWJC No.14936 of 2016 dt.02-12-2016
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date: 02-12-2016 Heard learned counsel for the parties.
The challenge in the present writ application is to the procedure adopted at the time of counting of the votes in the election held for the post of Mukhiya of Gram Panchayat Raj, Moro in the district of Darbhanga on 02.06.2016, by the Returning Officer, Hanuman Nagar.
The petitioner was a candidate for the post of Mukhiya of Gram Panchayat Raj, Moro and pursuant to election, the counting was also held on 02.06.2016. During the counting in the first round, as the difference between the candidate who appeared to have the maximum number of votes and the petitioner who was at number two, was only of three votes, on the joint representation of the petitioner and the other candidate, recounting was done for booths No. 1, 5, 7 and 14 to 16, pursuant to which the number of votes in favour of the petitioner and the other candidate became equal. At this stage, the Returning Officer went in for a 3rd round of recounting and it appears that the respondent no. 7, was shown to have polled 878 votes whereas the petitioner has been shown to have received 865 votes, and accordingly, the respondent no. 7 was declared elected. Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 3/10 Learned counsel for the petitioner submitted that in terms of Rule 79 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the 'Rules') after the first counting, there can be a second recounting, but any application for further recounting after that shall not be entertained, which, in effect, bars any further recounting after only one recounting. Learned counsel submitted that the consequences are also provided for in Rule 80 of the Rules which takes care of such a situation where there is equality of votes and the same has to be resolved by draw of lots and it would be deemed that the person in whose favour the lot is drawn, has secured an additional vote. Learned counsel submitted that on the basis of the order passed by the Returning Officer (Panchayat), Hanuman Nagar, the respondent no. 5, who is also the Block Development Officer, Hayaghat, Darbhanga, copy of which has been annexed as Annexure- 5 to the writ petition dated 02.06.2016, a declaration of respondent no. 6 having been elected is totally perverse and directly in conflict with Rules 79 and 80 of the Rules and such action, besides being beyond jurisdiction, is clearly arbitrary and mala fide. Learned counsel submitted that though the petitioner has moved the Election Tribunal-cum-Munsif, Darbhanga in Election Petition No. 04 of 2016, against the election of respondent no. 6, but in the present case, on the basis of the admitted facts, which have been noted in the order Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 4/10 impugned itself, not only the election is required to be set aside but action against the concerned officer should also be taken so that such blatant abuse and misuse of authority does not go unpunished.
Learned counsel for the State Election Commission raised a preliminary objection and submitted that once the petitioner has invoked the alternative statutory remedy by filing an Election Petition, and that too prior to moving before this Court, the writ petition should not be entertained.
Learned counsel for the petitioner, responding to such preliminary objection, submitted that where there is a blatant misuse and abuse of power by any officer who is responsible for the fair conduct of election, the Court not only has the power to entertain, but should also intervene, to maintain and uphold the right of the citizen and also ensure justice to the electorate. For such contention learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner reported as (1978) 1 SCC 405.
Having considered the rival contentions on the point of maintainability of the writ petition, the Court has no hesitation in holding that in the present writ application, the Court does have the power and jurisdiction to take judicial notice of the conduct of the Returning Officer for declaring the respondent no. 6 elected, in the Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 5/10 manner which is apparent from the order dated 02.06.2016. The view of the Court finds support in the aforesaid decision of the Hon'ble Supreme Court in the case of Mohinder Singh Gill (supra) , the relevant portions being quoted hereinbelow:-
"16. Secondly, the pregnant problem of power and its responsible exercise is one of the perennial riddles of many a modern constitutional order. Similarly, the periodical process of free and fair elections, uninfluenced by the caprice, cowardice or partisanship of hierarchical authority holding it and unintimidated by the trust, tantrum or vandalism of strong-arm tactics, exacts the embarrassing price of vigilant monitoring. Democracy digs its grave where passions, tensions and violence, on an overpowering spree, upset results of peaceful polls, and the law of elections is guilty of sharp practice if it hastens to legitimate the fruits of lawlessness. The judicial branch has a sensitive responsibility here to call to order lawless behaviour. Forensic non-action may boomerang, for the court and the law are functionally the bodyguards of the people against bumptious power, official or other.
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19. The old articles of the supreme lex meet new challenges of life, the old legal pillars suffer new stresses. So we have to adopt the law and develop its latent capabilities if novel situations, as here, are encountered. That is why in the reasoning we have adopted and the perspective we have projected, not literal nor lexical but liberal and visional is our interpretation of the articles of the Constitution and the provisions of the Act. Lord Denning's words are instructive:
"Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic a mere working mason, laying brick on brick, without thought to the overall design. He must be an Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 6/10 architect -- thinking of the structure as a whole building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends."
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113. Article 324(1) vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the legislature of every State and of elections to the offices of the President and Vice-President held under the Constitution. Article 324(1) is thus couched in wide terms. Power in any democratic set-up, as is the pattern of our polity, is to be exercised in accordance with law. That is why Articles 327 and 328 provide for making of provisions with respect to all matters relating to or in connection with elections for the Union Legislatures and for the State Legislatures respectively. When appropriate laws are made under Article 327 by Parliament as well as under Article 328 by the State Legislatures, the Commission has to act in conformity with those laws and the other legal provisions made thereunder. Even so, both Articles 327 and 328 are "subject to the provisions" of the Constitution which include Article 324 and Article
329. Since the conduct of all elections to the various legislative bodies and to the offices of the President and the Vice-President is vested under Article 324(1) in the Election Commission, the framers of the Constitution took care to leaving scope for exercise of residuary power by the Commission, in its own right, as a creature of the Constitution, in the infinite variety of situations that may emerge from time to time in such a large democracy as ours. Every contingency could not be foreseen, or anticipated with precision. That is why there is no hedging in Article 324. The Commission may be required to cope with some situation which may not be provided for in the enacted laws and the rules. That seems to be the raison d'etre for the opening clause in Articles 327 and 328 which leaves the exercise of powers under Article 324 operative and effective when it is reasonably called for in a vacuous area. There is, however, no doubt whatsoever that the Election Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 7/10 Commission will have to conform to the existing laws and rules in exercising its powers and performing its manifold duties for the conduct of free and fair elections. The Election Commission is a high-powered and independent body which is irremovable from office except in accordance with the provisions of the Constitution relating to the removal of Judges of the Supreme Court and is intended by the framers of the Constitution to be kept completely free from any pulls and pressures that may be brought through political influence in a democracy run on party system. Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections -- of course in accordance with the existing laws. But where these are absent, and yet a situation has to be tackled, the Chief Election Commissioner has not to fold his hands and pray to God for divine inspiration to enable him to exercise his functions and to perform his duties or to look to any external authority for the grant of powers to deal with the situation. He must lawfully exercise his power independently, in all matters relating to the conduct of elections, and see that the election process is completed properly, in a free and fair manner. "An express statutory grant of power or the imposition of a definite duty carries with it by implication, in the absence of a limitation, authority to employ all the means that are usually employed and that are necessary to the exercise of the power or the performance of the duty .... That which is clearly implied is as much a part of a law as that which is expressed."
The Court is conscious of the limitation of the High Court under Article 226 of the Constitution of India to entertain a writ application in election matters, but the same is in case where the matters require full trial in an Election Petition where, the merits of Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 8/10 the controversy can be decided after recording evidence that may be led at the trial, which is reflected from paragraphs 127 and 128 of the aforesaid judgment which also are quoted hereinbelow:-
"127. In view of our conclusion that the High Court had no jurisdiction to entertain the writ application under Article 226 of the Constitution, it will not be correct for us, in an appeal against the order of the High Court in that proceeding, to enter into any other controversy, on the merits, either on law or on facts, and to pronounce finally on the same. The pre-eminent position conferred by the Constitution on this Court under Article 141 of the Constitution does not envisage that this Court should lay down the law, in an appeal like this, on any matter which is required to be decided by the Election Court on a full trial of the election petition, without the benefit of the opinion of the Punjab and Haryana High Court which has the exclusive jurisdiction under Section 80A of the Act to try the election petition. Moreover, a statutory right to appeal to this Court has been provided under Section 116A, on any question, whether of law or fact, from every order made by the High Court in the dispute.
128. So, in view of the scheme of Part VI of the Act, the Delhi High Court could not have embarked upon an enquiry on any part of the merits of the dispute. Thus it could not have examined the question whether the impugned order was made by the Election Commission in breach of a rule of natural justice. That is a matter relating to the merits of the controversy and it is appropriately for the Election Court to try and decide it after recording any evidence that may be led at the trial. It may be that if we pronounce on the question of the applicability of the rule of natural justice, the High Court will be relieved of its duty to that extent. But it has to be remembered that even for the purpose of deciding that question, the parties may choose to produce evidence, oral or documentary, in the trial court. We therefore refrain from expressing any opinion in this appeal on the question of the violation of any rule of natural justice by the Election Commission in passing the impugned order."
Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 9/10 Thus, in the present case, the reason why the Court is persuaded to hold that it had the jurisdiction to interfere, is that there is absolutely no issue of any fact being disputed and only an interpretation of the law which is also to be done on the basis of what has been written in the order impugned itself, without requiring any other supporting evidence, documents or even interpretation. The present being such a case where the Court could have gone and decided the issue in the light of the statutory provisions, without the aid and support of any other material, clearly in the considered opinion of the Court, would not oust the jurisdiction of the High Court to exercise the power of judicial review under Article 226 of the Constitution of India, moreso, when the act of the officer concerned is patently without jurisdiction, on the admitted facts.
However, having said that, since the petitioner has elected to move before the Tribunal-cum-Munsif, Darbhanga in Election Petition No. 04 of 2016, in which he has sought the relief for getting herself declared after recounting of the entire votes, such relief, but obviously shall depend on a full trial, after leading of evidence which only the original trial Court is competent to do. In such view of the matter, the Court finds it prudent not to interfere in the present matter, at this stage.
Accordingly, the writ petition stands disposed off. Patna High Court CWJC No.14936 of 2016 dt.02-12-2016 10/10 In view of the submission of learned counsel for the petitioner that notice in the Election Petition has been served on the parties, the Court deems it appropriate to direct the Election Tribunal- cum-Munsif, Darbhanga to decide the Election Petition No. 04 of 2016 expeditioulsy and in any case latest by 31st March, 2017.
It is made clear that the Court has not expressed any opinion on the merits of the case as far as the prayer of the writ petition with regard to recounting is concerned.
Before parting, the Court would like to observe that in view of the conduct of the Returning Officer, who has passed the impugned order dated 02.06.2016, the State Election Commission shall take proper notice of the same and appropriate action, if already not taken.
(Ahsanuddin Amanullah, J.) P. Kumar AFR/NAFR U