Patna High Court
Shanti Devi vs The State Of Bihar & Ors on 19 March, 2009
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.15982 OF 2006
SHANTI DEVI--------------------------------------(Petitioner)
Versus
THE STATE OF BIHAR & ORS-----------------------(Respondents)
For The Petitioner : Mr. Sidheshwari Pd. Singh, Sr. Adv. with
Mr. Ashok Kumnar, Advocate
For The Respondent no.3 : Mr. S.N.P. Sharma, Sr. Advocate with
Mr. Amarendra Kr. Singh, Advocate
For the State : Smt. Nivedita Nirvikar, Adv., G.P.-16
For the State Election
Commission : Mr. K.B. Nath, Advocate with
Mr. Sanjeev Nikesh, Advocate
P R E S E N T
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
************
Mihir Kr. Jha, J.Heard counsel for the petitioner, the State of Bihar, State Election Commission and the contesting respondent no.3.
This writ application is directed against an order dated 17.11.2006 passed by the Munsif, Danapur in Misc. Case No. 26/2006, whereby and whereunder an application filed by respondent no.3, the election petitioner, for calling certain records including ballot papers of Lala Bhadsara Gram Panchayat elections 2006 has been allowed with a consequential requisition to the Block Development Officer (B.D.O.), Dulhin Bazar for their production in the court.
Such an interlocutory order passed by the court below has been assailed by the writ petitioner on the ground that the court below while hearing on election petition ought to have not summoned documents pertaining to the election and especially 2 ballot papers at the behest of election petitioner in a routine manner unless a strong prima facie case was made out with regard to the requirement of such documents for its being used/ looked into for deciding the dispute in question. Expanding the said issue Mr. Sidheshwari Prasad Singh, learned Senior counsel in his usual simplistic flair had submitted that in terms of Rule 84 of the Bihar Panchayat Election Rules, 2006, the custodian of such documents being the Chief Election Officer, the court below had committed an error in directing the Block Development Officer to submit those documents as prayed for by respondent no.3, the election petitioner. Mr. Singh in this regard had expressed apprehension that if the documents were called for from the Block Development Officer there was every chance of such documents being spurious. He had further tried to distinguish the class of the documents which were prayed for by respondent no.3 to be produced and he was of the view that whereas the other documents could have been called for even at the initial stage of hearing of the election case, the ballot papers should have been only called for if the election petitioner, respondent no.3, was in a position to establish her prima facie case as with regard to need of looking into secrecy of ballot papers. It was in this regard that Mr. Singh had stressed that for constituting a prima facie case in respect of looking into the ballot papers it was necessary for the court to find 3 out as to whether the election petitioner, respondent no.3, had raised any such objection/ filed any application with regard to any irregularity in course of counting of the ballot papers because the court was required to call for ballot papers only when its production was absolutely necessary. Mr. Singh in fact had also taken a stand that respondent no.3, the election petitioner, as a matter of fact had never filed any application before the Returning Officer during the course of counting complaining any irregularity in the counting of ballot papers and as such, the prayer made by respondent no.3 at the initial stage of hearing of the election case was itself misconceived and ought to have been rejected. Counsel for the petitioner in this context had relied on the judgment of the Apex Court in the case of, Ram Sewak Yadav vs. Hussain Kamil Kidwai, reported in AIR 1964 S.C. 1249, in the case of Chandrika Prasad Yadav vs. The State of Bihar & ors., reported in AIR 2004 S.C. 2036, in the case of Banwari Yadav vs. the State of Bihar & ors., reported in 2007(4) PLJR 169 and in the case of Hoshila Tiwari vs. The State of Bihar & ors., reported in 2008(4) PLJR 62 (S.C.).
Mr. S.N.P.Sharma, learned senior counsel for the Respondent no. 3, the election petitioner on the other hand, in his poignant style had refuted each and every submission of the learned senior counsel for the petitioner by making a direct reference to the averments made in the election petition filed by 4 Respondent no. 3. He had submitted that as the case of the election petitioner, respondent no.3, was based only on the ground of illegal counting of void/ spurious votes, a prayer made on behalf of respondent no.3 and allowed by the court below for calling such relevant documents including ballot papers could not be even faulted much less assailed in a writ petition, inasmuch as the impugned order dated 17.11.2006 being a purely interlocutory order did not decide any issue. Mr. Sharma had further submitted that the power of the court to call for a document including ballot papers as was exercised by the court below in the present case was absolutely distinct and distinguishable from an order of the court of opening of the ballot papers and infringing the sanctity of the ballot papers by way of inspection and recounting. It was further sought to be explained by him that as respondent no.3 was aware of this fact that soonafter conclusion of electoral process the records were still lying in the custody of the Block Development Officer, Dulhin Bazar who was the Returning Officer of the aforesaid Lala Bhadsala Grama Panchayat and as such a prayer was made by and/or on behalf of Respondent no. 3, the election petitioner to call for such documents including ballot papers from his custody and if in the meantime the documents including ballot papers was already transmitted to the Chief Electoral Officer, the court could have issued a fresh order for production of 5 such documents including ballot papers even to the Chief Electoral Officer. The learned Senior counsel appearing on behalf of respondent no.3 in fact while defending the impugned order had also questioned the maintainability of the writ application by taking a stand that a writ application against an interlocutory order of Election Tribunal was itself not maintainable as the same had not decided any issue nor could be characterized as a final order adjudicating the rights of the parties. In this context he had relied on the judgment of the Apex Court in the case of Hanuman Prasad vs. 3rd Addl. District Judge & ors., reported in AIR 2000 S.C. 3603, Bhaiji vs. Sub-divisional Officer, Thandala & ors., reported in (2003) 1 SCC 692, Union of India & ors. Vs. Vidhya Vagaria, reported in AIR 2004 S.C. 2220 and Union of India & anor. Vs. Kunisetty Satyanarayana, reported in AIR 2007 S.C. 906.
Mr. Sharma had further placed reliance on the same judgment of Ram Sewak Sharma (supra) also relied by the counsel for the petitioner, namely, AIR 1964 SC 1249 and had further referred to the judgment of the Apex Court in the case of R.M. Seshadri vs. V.G.Vasantha Pal & ors., reported in AIR 1969 S.C. 692 and in the case of Martin Burn Ltd. Vs. R.N.Banerjee, reported in 1958 SC 79, to buttress his submission that not only the court has inherent power to call for documents and/or examine the same in the interest of justice but even concept of prima 6 facie case cannot be extended and expanded to mean a case beyond reasonable doubt or case to be driven to the hilt.
Counsel for the State as also the Election Commission had nothing more to offer in their submission save and except to adopt the submissions made by Mr. S.N.P.Sharma, learned Senior counsel appearing on behalf of respondent no.3.
Before this Court would proceed to decide this case in the background of the facts as stated in the writ application and/or counter affidavit on behalf of respondent no.3, it must record that pendency of this writ application for a period over 2 ½ years has literally taken away the essence of the election dispute, inasmuch as if the election petitioner now succeeds with her prayer made in the election petition she may not be able to reap the benefit as a period of nearly three years out of a possible tenure of five years has been lost only in deciding an issue arising out of an interlocutory order. This Court, therefore, in order to find out whether such writ petition ought to have been entertained in the first place by keeping this writ application pending from 22.11.2006 till date must note that the only person gainer out of such delay is the writ petitioner, the elected Mukhiya as she has continued in office from 15.6.2006 despite a serious challenge made to her election by respondent no.3. 7
All that in this regard has to be noted is that in the wake of 2006 general election for Gram Panchayat in this State the polling for the post of Mukhiya of Lala Bhadsara Gram Panchayat was held on 18.5.2006 and its result was pronounced by declaring the writ petitioner elected as Mukhiya by a margin of 279 votes. Respondent no.3 being the nearest rival candidate who had lost the election by 279 votes had filed an election petition on 14.7.2006 in which her case was confined only to the irregularity in counting of votes. From a reading of the election petition it would appear that she had alleged counting of 350 spurious votes in favour of the writ petitioner in booth nos. 90, 91, 92, 93, 94, 95, 96, 97, 98 and 99 and 150 votes of such voters whose name were included in the same voter list either at two places or at three places. To that extent the case of respondent no.3 in her election petition could be found from paragraph nos.11 and 12 of the election petition which reads as follows:
"11. That in the counting of the ballot papers various illegalities and irregularities were committed and the said illegalities and irregularities has materially affected the result of the election and the election of opposite party no. 1 is fit to be set aside. Only a few instances of such illegalities and irregularities are given below merely as illustrative and same is not exhaustive.
(i) That in counting room no. 3 when the ballot boxes of booth no. 96, 97, 98 8 and 99 were brought at the counting table, all the counting agents except the counting agents of opposite party no.1 protested vehemently and loudly at the serious and vital defect and illegality namely that all the ballot boxes of aforesaid polling booth were brought to the counting table in a precarious condition namely the upper cover of all the ballot boxes were opened and hurriedly ballot papers were poured on the counting table. This unfortunate condition coupled with the strong protest lodged by the counting agents created a comment.
However after some time the returning officer with the help of police asked the counting agents to keep quite and any how the situation was brought under control and the sorting out the ballot papers of different post commenced but in course of sorting out the ballot papers for the post of Mukhiya again protest was lodged that a large number of ballot papers not bearing the signature of presiding officer of the said booth besides the make and the paper of the ballot papers was also different so said ballot papers were spurious, the ink and colour of stamping on such papers was also different from general ballot papers. Stamping of ballot papers including the method and manner was different that a large number of ballot papers were stamped by one person and not by genuine and different voters. Over and above all such ballot papers were bearing stamping mark exclusively in favour of opposite party no.1. This unusual feature of stamping on spurious ballot papers in favour of the respondent no.1 makes the entire atmosphere tense and alarming. However, the returning 9 officer pacified the objections and counted all such spurious ballot papers in favour of opposite party no.1. Likewise when the boxes of both no. 90, 91, 92, 93, 94 and 95 were brought in counting room no.2 all the ballot boxes of aforesaid booths the upper cover of the ballot boxes were opened and same kind of spurious ballot papers without the signature of the presiding officer and without the distinguishing mark were detected in course of sorting out the ballot papers for the post of Mukhiya as such spurious ballot papers were different both in make and papers and were different from the other general papers and exactly of the same nature were found in counting room no.2. Objections were also raised in this like that of room no.2 but of no effect and all such spurious ballot papers were counted in favour of the opposite party no.1. In this way about 350 total spurious ballot papers counted in favour of opposite party no.1 in counting room no. 2 and 3 together. So, the first and foremost judicious duty has been cast upon the learned court to reject such about 350 spurious ballot papers counted in favour of opposite party no.1 and accordingly, it is also required to deduct 350 votes from the total votes counted in favour of the opposite party no.1.
(ii) Another vital illegality was committed in the counting of the ballot
papers was that 250 void votes were ought to have been treated as Zero votes by the returning officer have illegally and improperly counted in favour of opposite party no.1. In other words 75 persons were enrolled at two places in the same gram 10 panchayat. The details of which including the serial number of both the places and the names of the said voters as enrolled in the voter list of one gram panchayat are given by annexing the voter list of two places namely Lala Bhadsara, Bhalua and Laxmi Tola. It is suprising to indicate here that five persons have been enrolled from three places. The details of which is being furnished in this petition alongwith the voter list annexed with the petition.
It is relevant to state here that it is the admitted position in law that any person cannot be enrolled as a voter from more than one place. It is also admitted position in law that if a person has been enrolled as a voter from more than one place he is required to cast his vote from one place only and if he casts his vote at both the places his both votes are void. It is also relevant to state here that all such persons who have been enrolled as a voters from more than one place in this gram panchayat are the workers and supporters of opposite party no.1 and they had cast their votes in favour of opposite party no.1. Thus about 150 votes being void votes are required to be deducted from the total votes counted in favour of opposite party no.1.
12. That it has already been stated that the opposite party no.1 has already been declared elected by securing an artificial majority of 279 votes more than the petitioner. So the only two vital illegalities committed in the counting of the ballot papers as stated in paragraph 11(i)(ii) has materially affected the result of the election and also renders the 11 election of opposite party no.1 as illegal, bad and void and as such, in the interest of justice the election of opposite party no.1 is fit to be set aside and in her place the election petitioner is required to be declared as a duly elected Mukhiya of Lala Bhadsara gram Panchayat Block Dulhin Bazar District Patna after recounting, inspection and scrutiny of total votes counted in favour of all the contesting candidates and also the bundle of rejected ballot papers."
It was with this specific pleading in the election petition that respondent no.3, the election petitioner, had made a specific prayer for not only calling the records including ballot papers of the concerned election in question but also to declare her (respondent no.3) as duly elected Mukhiya of Lala Bhadsara Gram Panchayat in Dulhin Bazar Block in place of the writ petitioner after his inspection, scrutiny and recounting of the ballot papers counted in favour of all the contesting candidates and also bundle of rejected ballot papers by setting aside the election of the writ petitioner as Mukhiya of the said Gram Panchayat.
It is not in dispute that the writ petitioner whose result of election was questioned by respondent no.3 had appeared before the learned Munsif, the Election Tribunal, on 25.8.2006 and took time for filing of her written statement and while the same was yet to be filed respondent no.3 had moved an application on 16.9.2006 for calling the 12 relevant records of the election including ballot papers. The writ petitioner thereafter had filed her written statement on 22.9.2006 and on the same day she has also filed rejoinder to the application filed by respondent no.3 opposing the prayer for direction to call for the records of election petition. The court below after hearing the parties by the impugned order dated 17.11.2006 had allowed the prayer by directing the office to send a requisition to the Block Development Officer, Dulhin Bazar for production of such documents.
In the opinion of this Court such an order of the court below only to the extent of issuing a direction to produce the documents in no way can be said to be either in excess of the power of the court or ex facie bad in law so as to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India. Reference in this connection may be made to the judgment of Apex Court in the case of Industrial Credit & Investment Corporation of India Ltd. Vs. Grapeo Industries Ltd. & ors., reported in AIR 1999 SC 1975, laying down a law that the interim order passed by the Tribunal or subordinate court can be interfered by a writ court only if the same is without jurisdiction or ex facie bad in law. As a matter the scope of this court while exercising its power under Articles 226 and 227 of the Constitution of India against an interim order of Tribunal is also well settled, as may be found in the 13 following passage of judgment of Apex Court in the case of Central Bank of India Vs. Gokal Chand reported in AIR 1967 S.C. 799.
"All interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their cases in the pending proceedings.
They regulate the procedure only
and do not affect any right or
liability of the parties. The
expression 'interlocutory order'
should be construed liberally
including a number of steps taken
by the court, such as, orders
regarding summoning of witnesses,
discovery, production and
inspection of documents, issue of
commission for examination of
witnesses, inspection of premises,
fixing date of hearing,
admissibility of document or the
relevancy of question etc.
Ordinarily, a High Court in
the exercise of the powers under
Article 226 or Article 227 of the
Constitution will not interfere
with an interim or interlocutory
order passed by a subordinate court
or an inferior tribunal."
In the background of aforesaid law laid down by the Apex Court the submission of learned Senior 14 Counsel on the strength of Rule 84 of the Bihar Panchayat Election Rules (hereinafter referred to as „the Rules‟) is also wholly misconceived, inasmuch as all that Rule 84 prescribes is that the account of ballot papers and paper seal as also other documents enumerated in Rule 67/ 68 as well as ballot papers would be kept under the custody of the District Election Officer as prescribed. Rule 84, therefore, at best prescribes the mode and manner of preserving the documents and that by itself can not vitiate the impugned order if respondent no.3 had sought a relief of calling documents in question from the custody of the Block Development Officer, Dulhin Bazar, the returning Officer, inasmuch as if such documents by that time after holding of the elections had already been transmitted and kept under the custody of the District Election Officer, the Block Development Officer had nothing more to do but to send a report to the Election Tribunal i.e. the court of Munsif that such documents had already been sent to the District Election Officer. Rule 84, therefore, by itself cannot be an impediment in passing of the impugned order as the source of power for directing the production of such documents of election still lies with the Election Tribunal as would be evident from the perusal of Rule 85.
The moment Rule 85 gives power to the court of Munsif, the Election Tribunal, in the case of Panchayat election to pass an order both for 15 production and inspection of records relating to the election, it cannot be said that the impugned order passed by the court below in the present case was without jurisdiction. As noted above, the key question involved in the election petition filed by respondent no.3 was only revolving round the counting of votes and therefore, a simple order for production of such documents cannot be even faulted in law, especially when Rule 109 vests power in the court to conduct hearing of such election case by applying the provisions of Code of Civil Procedure. The power of a court under the provisions of the Code of Civil Procedure for calling for/ production of a document from any non-source cannot be doubted and in fact the said issue in respect of the election case itself is no longer resintegra, inasmuch as the Apex Court in the case of R.M. Seshadri (supra) has held that the power of the civil court to summon evidence including court witnesses in terms of Order 16 Rule 14 of C.P.C. could be exercised even suo moto without there being any formal application.
Expanding the said proposition of law, this Court would also find that when there is a clear provision under Order 16 Rule 15 C.P.C. empowering the court to issue summons for producing the document, it must hold that the objection of the petitioner to the impugned order was/is wholly filmsy and infact frivolous. It has to be noted that in paragraphs 12 and 13 of the election petition there 16 was a specific allegation made by respondent no.3 in her election petition against the returning Officer as with regard to counting of votes and therefore, such Block Development Officer, the returning Officer of the election, if called upon to produce those documents was well under obligation to do so in terms of the Order 16 Rule 15 C.P.C. read with Rule 85 of the Election Rules.
The apprehension of the petitioner that a mere direction of production of document in terms of the impugned order would also amount to inspection of such document and particularly the ballot paper to say the least is his misconceived notion, either innocent or deliberate. It does not stand to reason that when the legislature in Rule 85 has vested two separate power to the court conducting hearing of the election cases, namely, "Upasthapana" (production) and "Nirikshan" (inspection), of the relevant documents how could the petitioner assume that a mere order for the production of the documents would also amount to an order of the court for inspection of such documents. The emphasis of the learned Senior counsel for the petitioner that no inspection of ballot paper can be allowed in a routine manner in fact is a settled principle of law but then the question is as to whether the court below in the present case had passed such an order for inspection of documents and ballots papers. From the perusal of the impugned order, it would be clear that all that 17 the court below had done was that the Block Development Officer, Dulhin Bazar was directed to produce the document including ballot papers. Whether such documents upon production could still be allowed for inspection, having been not decided in the impugned order, the apprehension of the petitioner that such ballot papers once brought under the custody of the court could be looked into by any person and thereby sanctity of the ballot papers should be violated is not only a far fetched conclusion but seems to have been deliberately invented only to attract jurisdiction of this Court for circumventing expeditious hearing and disposal of the election case.
As a matter of fact there is no pleading in the writ application that the court below had in fact allowed the prayer for inspection of such documents in question, the ballot papers, at the instance of respondent no.3, the election petitioner and that by itself would make the conduct of the writ petitioner reprehensible because by questioning an innocent order well within the parameters of the power of the Election Tribunal she has been able to forestall the hearing of the election case for a period of nearly three years. The duration of the Panchayat being for a period of five years if more than half of the period has been successfully wasted by the petitioner by filing this frivolous writ petition against an innocuous interim impugned order enuring to her the 18 benefit of continuing in office in this period, she would definitely owe an explanation and be answerable not only to the election petitioner, respondent no.3 but to this court for indulging in filing of a vexatious and frivolous writ petition.
Infact the scope of production of a document including the ballot papers and its
inspection and the difference between production and inspection is also well settled in the judgment of the Apex Court in the case of Ram Sewak Yadav (supra), wherein the Apex Court in paragraph no.5 had held that mere production of sealed boxes of ballot papers was not to be equated for inspection of such ballot papers and an order for inspection of ballot papers cannot be granted as a matter of course. The reliance placed by Mr. Singh, learned Senior counsel for the petitioner, on paragraph 7 of the same judgment (Ram Sewak Yadav (supra) is also wholly uncalled for, inasmuch as the court below in the impugned order has not passed any order for inspection of the ballot papers for which in fact even a prayer was not made by respondent no.3, the election petitioner, on account of nascent stage of hearing of the election case. It has to be noted that an application for production of document with no prayer for its inspection for the time being as hearing of the election case had yet to commence, could not have been objected to in view of specific pleadings in the election petition read with 19 application filed by respondent no.3 for this purpose.
Once this issue becomes clear that there was no prayer for inspection of the ballot papers at the instance of the election petitioner, respondent no.3, the reliance placed by the learned Senior counsel for the petitioner on the judgment of the Apex Court in the case of Hoshila Tiwari (supra) is equally misplaced. In the case of Hoshila Tiwari the Apex Court had found that in absence of a prayer for recounting of votes in terms of Rule 79 of the Election Rules, the direction of the Election Tribunal for recounting was not sustainable. In the present case such a stage is yet to arrive because the Election Tribunal has not passed any order either for inspection much less recounting of the votes. Thus, the petitioner cannot be allowed to assume as to what the Tribunal would do when evidence would be led by both the parties either for inspection or for recounting of the votes.
At this stage one must also note that though in paragraph 11 the writ petitioner, the successful returned candidate on the post of Mukhiya, has asserted that the election petitioner/ respondent no.3 did not raise any objection regarding maintenance of the ballot boxes or the manner of counting of ballot boxes during the counting or immediately after announcement of the votes, the same has not only been controverted by respondent no.3 in 20 her counter affidavit but she has also enclosed Annexures „A series‟ containing the applications of respondent no.3 filed before the returning Officer at 3 P.M. and 3.30 P.M. with regard to the objections raised in the manner of counting on 15.6.2006 but has also enclosed her separate application filed before the Observer and the Election Commissioner on the same day i.e. 15.6.2006 as also a separate application before the District Election Officer on 16.6.2006. The facts stated at length supported with document in the counter affidavit have not at all been controverted by the writ petitioner by filing any reply/rejoinder to the counter affidavit of Respondent no. 3 though an adjournment for this very purpose was allowed by this Court by an order dated 3.2.2009. Thus, applying the doctrine of non-traverse of pleading in a writ petition/ counter affidavit when the writ petitioner has not chosen to deny the specific stand taken by respondent no.3 in paragraphs no. 10 and 13 of the counter affidavit read with Annexures „A series‟ the applications filed on the date of election and on the next day with regard to bungling in the counting, it cannot be said that Rule 79 of the Election Rules was not followed by respondent no.3 before claiming recounting in the election petition.
Thus, on the basis of the pleadings on record in the writ petition it cannot be said that respondent no.3 had failed to make out a prima facie 21 case for recounting in terms of the judgment of the Apex Court in the case of Hoshila Tiwari (supra). As a matter of fact the reliance placed by the learned Senior counsel for the petitioner on the judgment of this Court in the case of Banwari Yadav (Supra) is also wholly misconceived, inasmuch as neither the Election Tribunal in the case of the petitioner has passed an order for inspection or recounting of votes whereas in the case of Banwari Yadav the final result of the election having been set aside by the Election Tribunal upsetting the election of returned candidate by process of recounting even in absence of an application by the election petitioner of that case alleging irregularities in the counting was basis for laying down the law. This Court is therefore fully satisfied that the learned counsel for the petitioner by placing reliance on the aforesaid judgment has only tried to circumvent the provisions of the Act and the Rules but also cause panic in the mind of court below that it should not allow the inspection/ recounting of the ballot papers and that is how she has successfully preempted the court below from doing so for half of the term by only pursuing this writ application.
This Court, therefore, would find no merit even in that part of the submission of the learned counsel for the petitioner that the impugned order was a forerunner of opening secrecy and confidentially of the ballot papers and as such, this 22 Court should quash the impugned order because it may lead to an illegal order for inspection/ recounting. One can say that the law envisages grant of anticipatory bail but the law does not postitulate issuance of anticipatory writ as well. What would be the fate and future of an application seeking inspection of the ballot papers cannot be projected or prejudged by this Court nor this Court can at this stage exercise its supervisory power of superintendence of the Tribunals to circumvent/take away the powers vested in such Tribunals. This Court in fact would find sufficient force in the submission of the learned counsel for respondent no.3 that the concept of prima facie case for the purposes of inspection/ ordering recounting of ballot boxes is not to be governed by the strict requirement of proving the case by the election petitioner to the hilt or proving the case beyond reasonable doubt as in a criminal case but confined its jurisdiction to protection of purety of the election over secrecy of ballot paper as was held by the Apex Court in the case of A. Neelalohithadasan Nadar vs. George Mascrene & ors., reported in 1994 (suppl.) (2) SCC
619.
Thus, on an over all analysis of the materials on record, this Court is also in agreement with the preliminary objection raised by the learned senior counsel for respondent no.3 with regard to maintainability of the writ application, which in the 23 circumstances must be held to be wholly misconceived and thus not maintainable. The impugned interim order, directing only production of document, being any procedural part of the hearing of the election case and causing no discernible prejudice to the petitioner, does not suffer from any error.
As a matter of fact the petitioner should not have been assailed such impugned order in as much as the Court below had merely directed for production of those documents including ballot papers and had not even considered much less allowed their inspection by the parties and/or recounting. In view of the finding already recorded by this Court that such order for production of document was well within the powers of the Election Tribunal both in terms of Order 16 Rule 15 C.P.C. read with Rule 85 of the Election Rules, this Court has no hesitation in holding that this writ petition against an interlocutory order deciding no issue at all and causing no prejudice to the petitioner is wholly misconceived and fit to be dismissed.
A question still remains to be answered as to how the Election Tribunal can deal with the election cases when it would be consistent and persistent effort of the returned candidate to delay disposal of the election cases. It is not quite difficult to envisage that the returned candidate whose election is questioned in the election petition can successfully bid for his time for a period of 24 five years by contesting the litigation and keeping the matter pending for adjudication before the Election Tribunal whereafter the election cases would automatically become infructuous save and except in cases where the election is assailed on the ground of corrupt practices.
Taking this case, therefore, as a glaring example of inordinate delay in disposal of election case this Court by an order dated 3.2.2009 had directed all the District Judges of this State to submit a statement of disposal of election cases of 2001 Gram Panchayat election and 2006 Gram Panchayat election for finding out as to how many cases had become infructuous on account of its being not decided within a span of the tenure of five years of Gram Panchayat. The figures received through separate statements from all the Districts. Judges of this State in fact convey a very sorry and painful state of affairs and it becomes clear that at least half of the cases of the year 2001 election could not be disposed of in a span of five years and had become infructuous. The following complied statement of a district wise figure of yearly disposal of election cases is an eye opener in as much as 564 i.e. barely half of the total 1082 election cases filed all over the State could be disposed within three years and 327 i.e. one third of the aforesaid total number cases were allowed to became infructuous on account of completion of the tenure: -
25
Chart-I Statement showing disposal and pending of Gram Panchayat Election Petition (2001) district wise Sl. Name of district year of Total Total Total No. filing nos. of Disposed of Cases year wise disposed no. of cases of cases case instituted pending 2001 2002 2003 2004 2005 2006 2007 2008 2009 1 Aurangabad 2001 43 5 14 6 2 9 7 x x x 43 Nil 2 Begusarai 2001 23 1 4 3 2 x 1 4 5 x 20 3 3 Bhojpur 2001 32 1 1 2 2 2 6 5 x x 29 3 4 Bhabhua 2001 # 5 Bhagalpur 2001 30 1 2 2 10 5 4 x x x 24 6 6 Buxar 2001 10 x 1 3 1 4 x 2 x x 9 1 7 Darbhanga 2001 42 3 5 5 6 13 8 x 2 x 42 Nil 8 East Champ. 2001 34 4 10 6 2 5 6 x x x 33 1 9 Gaya 2001 50 6 5 4 7 16 8 2 x x 48 2 10 Gopalganj 2001 22 2 x 8 3 2 4 1 x x 20 2 11 Jamui 2001 41 x x 12 3 13 12 x x x 40 1 12 Jehanabad 2001 23 1 8 2 3 9 x x x x 23 Nil 13 Katihar 2001 35 3 10 5 4 2 7 x x x 31 4 14 Khagaria 2001 24 2 3 x 3 1 4 6 3 x 22 2 15 Madhepura 2001 26 2 3 x 5 10 16 x x x 26 Nil 16 Madhubani 2001 13 x 2 1 6 x x 3 x x 12 1 17 Munger 2001 32 1 8 7 2 5 5 2 1 x 31 1 18 Muzaffarpur 2001 68 6 12 10 24 6 2 2 2 x 64 4 19 Nalanda 2001 31 7 8 2 4 3 3 1 1 1 30 1 20 Nawada 2001 51 3 x 5 6 13 8 8 6 2 51 Nil 21 Patna 2001 7 x x 1 1 1 2 x x x 5 2 22 Purnia 2001 31 2 2 7 3 1 16 x x x 31 Nil 23 Rohtas 2001 29 1 2 6 2 6 3 5 x x 25 4 24 Saharsa 2001 96 2 28 24 13 9 12 4 2 x 94 ## 2 25 Samastipur 2001 48 7 7 3 5 9 15 1 x x 47 1 26 Saran 2001 21 x 2 2 3 7 1 3 x x 18 3 27 Sitamarhi 2001 53 8 2 10 8 8 15 1 x 1 53 Nil 28 Siwan 2001 18 1 3 1 4 3 5 x x x 17 1 29 Vaishali 2001 117 8 27 23 16 18 6 4 2 2 106 11 30 West Champ. 2001 32 1 2 5 x 2 1 5 2 x 29 3 Total 1082 78 171 165 150 182 177 59 26 6 1023 59 # No election cases of year 2001 Gram Panchayat Election was instituted as per report of District Judge, Bhabhua.
## 11 cases are disposed of but date of disposal not stated (18 + 11 = 29) Almost similar is the position as with regard to the present 2006 election because now when a period of more than half of the term of Panchayat even under 2006 election has already been completed only 857 number of election cases out of 1712 have been disposed of and 855 are still pending all 26 over Bihar. Another complied district wise statement of 2006 Gram Panchayat election cases as set out herein below would infact go to show that almost half of the cases are still pending even after completion of a period of 3 years.
Chart-II Statement showing disposal and pending of Gram Panchayat Election Petition (2006) district wise Sl. Name of Year of Total no. Disposed of cases year wise Total Total no. No. district filing of cases disposed of case instituted 2006 2007 2008 2009 of cases pending 1 Aurangabad 2006 16 3 4 1 x 8 8 2 Begusarai 2006 27 x 10 2 x 12 15 3 Bhojpur 2006 36 x 6 3 1 10 26 4 Bhabhua 2006 23 3 x 3 1 7 16 5 Bhagalpur 2006 37 x 3 7 2 12 25 6 Buxar 2006 15 2 x x x 2 13 7 Darbhanga 2006 40 6 3 11 2 22 18 8 East Champ. 2006 188 10 18 12 3 49 # 139 9 Gaya 2006 49 4 8 18 3 33 16 10 Gopalganj 2006 27 1 14 7 2 24 3 11 Jamui 2006 29 2 5 6 x 13 16 12 Jehanabad 2006 46 4 10 20 2 36 10 13 Katihar 2006 41 x 7 17 1 25 16 14 Khagaria 2006 16 2 x 10 x 12 4 15 Madhepura 2006 14 4 4 2 1 11 3 16 Madhubani 2006 42 5 10 7 x 22 20 17 Munger 2006 54 2 11 13 5 31 23 18 Muzaffarpur 2006 127 4 13 25 3 45 82 19 Nalanda 2006 31 1 5 8 1 15 16 20 Nawada 2006 31 4 6 5 3 18 13 21 Patna 2006 48 6 10 4 x 20 28 22 Purnia 2006 72 4 18 23 x 35 37 23 Rohtas 2006 51 6 3 4 2 15 36 24 Saharsa 2006 61 2 12 14 2 30 ## 31 25 Samastipur 2006 58 7 22 8 9 37 21 26 Saran 2006 93 13 13 23 2 51 42 27 Sitamarhi 2006 190 13 45 51 8 127 63 28 Siwan 2006 43 3 6 17 4 31 12 29 Vaishali 2006 95 5 9 14 2 30 65 30 West Champ. 2006 112 34 6 16 3 74 ### 38 Total 1712 150 281 351 62 857 855 # 7 cases are disposed of but date of disposal not stated in the statement (42 + 7 = 49) ## 1 case is disposed of but date of disposal not stated (30 + 1 = 31) ### 15 cases are disposed but date of disposal not stated (59 + 15 = 74) 27 A question would, therefore, arise as to why most of the election cases remain pending for entire tenure of five years and ultimately get disposed of only after having become infructuous on account of completion of tenure of Panchayat. Though there may not be a straight and simple answer but in most of the cases it is the delaying tactics adopted by the returned candidates which is largely responsible for delay in disposal of the election cases. The elected candidate whose election is challenged by the election petitioner is the only gainer of the delay and therefore, the courts in seisin of election cases have to deal with them with a firm hand so that the right of seeking remedy by filing an election petition does not become either illusory or academic.
This Court, therefore, without being exhaustive would definitely direct all the Election Tribunals i.e. the court of Munsif and the Sub Judge under exercising power of Election Tribunal to ensure that the election petition must be disposed of as expeditiously as possible and in any event within a maximum period of two years from the date of its filing so that a judicial review if required at the instance of unsuccessful party in the election petition can be effectively gone into and decided by this Court.
It has to be noted that in view of section 137 of the Act no other remedy has been specified to challenge the result of an election excepted by 28 filing an election petition cannot be decided within a period of two years, that would not only cause frustration among the litigants but also would put a question mark on the credibility of the whole judicial system. Taking this as an affront and a challenge to the judicial system, this Court would direct all the Election Tribunals under the Act i.e. Courts of Munsif and Sub-Judge to strictly abide by the time limit fixed in the Code of Civil Procedure for conducting concluding and delivering the judgment in each and every election case within a maximum time limit of two years. Since each of such election case may have its own special features, this court would not like to be exhaustive in laying down norms for expeditious disposal of the election cases but then it would only remind the Election Tribunals that there are sufficient safeguards not only for ensuring service of notice on the parties in the election petition but also to ensure filing of written statement as also framing of issues and leading of evidence within a prescribed time limit under the different provisions of Code of Civil Procedure which in terms of Rule 109 is fully applicable to election petitions under the Act. Each and every court while exercising power of Election Tribunal therefore, must evolve its own methods for speedy disposal of each and every election case within a maximum period of two years. The election Tribunals under the Act would henceforth be also under an obligation to spell out 29 the reasons in the judgment itself as to why that particular election case could not be disposed of in the aforesaid period of two years so that in suitable cases this Court may deal with the culprit erring party/court by passing appropriate order in judicial/administrative side. At the same time, it would hereinafter be the personal responsibility of the respective District Judge to monitor the progress and disposal of the election cases, on monthly basis. The concerned District Judge would also make necessary arrangement for distribution of election cases in more than one court so that the election cases are positively and punctually disposed of within the aforesaid time frame of two years of its being filed.
At the same time in order to stream line the expeditious final disposal of any writ petition questioning any interlocutory and/or final order in election cases arising under the Act, this Court would also direct the Registry of this Court to place the concerned writ petition for orders/ admission at the top of the list under a separate heading "election cases", whether in course of first listing or upon issuance of notice and return of the Rule so that no writ petition remains pending before this Court for unnecessary length of period and thus giving a scope to keep the election cases under the Act pending before the Election Tribunal i.e. the court of Munsif and/or Sub Judge.
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Adverting to the facts of the present case this Court would find that though by an interim order passed in this case on 28.3.2007 only the operation of the impugned order i.e. production of document from the custody of the Block Development Officer, Dulhin Bazar had been stayed, the concerned court, Munsif, Danapur has not proceeded at all as is evident in the report of the District Judge, Patna and has kept the matter pending only on the ground of pendency of this writ application. Such an approach of the Munsif, Danapur in not proceeding with hearing of the election case whether at the insistence of the petitioner or otherwise cannot be appreciated and therefore, this Court while dismissing this writ application would direct the court below, the Munsif, Danapur to take up hearing of the election case of the writ petitioner on day to day basis and conclude the hearing and deliver its judgment within a period of six months from the date of receipt/ production of a copy of this order.
As the election petition is still pending before the court of Munsif, Danapur and is to be heard and decided on merits, this court would make every manageable human effort to avoid any expression of opinion, which may even remotely interfere with the judicious adjudication of the issues before the court below. However this court would make it clear that even if there is any express or implied discernible in this order on the merits of the case 31 of either party, the same is to be wholly ignored by Munsif, Danapur while finally disposing of the pending election petition of the Respondent no. 3.
With such extra caution and subject to aforesaid observations and directions, this writ petition is dismissed with a cost of Rs. 10,000/- (Ten Thousand) to be paid by the petitioner to the Respondent no. 3 within one month from the date of receipt/production of this order in the court below.
Let a copy of this judgment be circulated to all the District Judges of this State as also to be Registrar General of this Court for the compliance of general directions given therein.
(Mihir Kumar Jha,J.) Patna High Court Dated, the 19th March, 2009 A.F.R./Surendra