Patna High Court
Meena Devi vs The State Of Bihar & Ors on 27 August, 2009
Equivalent citations: AIR 2010 (NOC) 204 (PAT.)
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh, Anjana Prakash
Letters Patent Appeal No.640 OF 2008
Appeal against the judgment and order dated 17-7-2008
passed in C.W.J,.C.,No. 9402 of 2007 passed by the writ court
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MEENA DEVI- WIFE OF SRI SIVJEE YADAV, RESIDENT OF
VILLAGE- GOTHI, P.O. BANDHU SRIRAM,
P.S. ANDAR, DISTRICT SIWAN ----------------Appellant
Versus
1. THE STATE OF BIHAR THROUGH COLLECTOR, SIWAN
2 THE BLOCK DEVELOPMENT OFFICER-CUM- RETURNING
OFFICER, BLOCK ANDAR, P.S. ANDAR, DISTRICT-SIWAN
3. GEETA DEVI, WIFE OF SRI SANJAY YADAV, RESIDENT OF
VILLAGE- BANDHU SALONA, P.O. BANDHU SRIRAM,
P.S. ANDAR, DISTRICT-SIWAN.
4. RAJ KUMARI DEVI, WIFE OF SRI RAJESH KUMAR YADAV,
RESIDENT OF VILLAGE- BANDHU SALONA,
P.O. BANDHU SRIRAM, P.S. ANDAR, DISTRICT -SIWAN.
5. BEBI SINGH, WIFE3 OF BIRENDRA SINGH, RESIDENT OF
VILLAGE- SEKIYA, P.O. SANJALPUR, P.S. ANDAR, DISTRICT-
SIWAN
6. SOBHA DEVI, WIFE OF SHIVJEE BAITHA, RESIDENT OF
VILLAGE AND P.O. SANJALPUR, P.S. ANDAR,
DISTRICT- SIWAN
7. SUSHILA DEVI, WIFE OF PARAS YADAV, RESIDENT OF
VILLAGE- MIYAN-KE-BHATKAN, P.S.ANDAR,
DISTRICT- SIWAN.
8. HIRA DEVI, WIFE OF SHAILESH SHARMA, RESIDENT OF
VILLAGE- MIYAN-KE-BHATKAN,
P.S. ANDAR,DISTRICT- SIWAN
9. HAMIDA KHATOON, WIFE OF ALI HASSAN ANSARI,
RESIDENT OF VILLAGE- MIYAN-KE-BHATKAN,
P.S. ANDAR, DISTT.- SIWAN
10. SUNAINA DEVI, WIFE OF SURENDRA BHAGAT, RESIDENT
OF VILLAGE- GOTHI, P.O. BANDHU SRIRAM,
P.S. ANDAR, DISTT. SIWAN ............. RESPONDENTS.
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ADVOCATE FOR THE APPELLANT :- Mr.S.B.K.Mangalam
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ADVOCATE FOR RESPONDENTS :-
MR. Y.V.GIRI, SR. ADVOCATE , SR. ADVOCATE
MR. AJAY KUMR PANDEY, ADVOCATE
ADVOCATE FOR THE STATE ;-
MR. BIJAY KUMAR PANDEY, ADVOCATE
-----------
PRESENT
THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON'BLE JUSTICE SMT. ANJANA PRAKASH
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Shiva Kirti Singh,J This Letters Patent Appeal has been preferred against Judgment and
Order dated 17-7-2008 passed by the Writ Court whereby Writ Petition bearing
C.W.J.C. No. 9402 of 2007 was allowed and the order dated 21st. July, 2007 as
well as the order dated 30th October, 2007 passed in Election Petition No. 72 of
2006 by learned Munsif- I, Siwan were quashed.
2. The facts leading to this appeal and necessary for deciding the
issues may first be noticed in brief. For the post of Mukhia of Gram Panchayat
Raj Miyan- Ke - Bhatkan the appellant as well as respondent no.10, Sunaina
Devi filed nomination papers along with respondent nos. 3 to 9. The election
was conducted on 27th May,2006. The counting was held on 15-6-2006 and
respondent no.11 ( writ petitioner ) Sunaina Devi was declared elected as a
result of counting which shows that respondent no.11 had secured 944 votes
whereas the appellant had secured 886 votes. Thus, the winning margin of
respondent no.11 was 58 votes.
3. The appellant filed election petition no. 72 of 2006 before learned
Munsif-I, Siwan challenging the election of respondent no.11 and also seeking
declaration in favour of herself that she be declared the duly elected candidate.
In course of hearing the election petition, by order dated 21-7-2007 the learned
Munsif ordered for recounting of votes in open court. The Returning Officer
was directed to bring the relevant materials so that the recounting may be done
on 7th August,2007. The writ petition bearing C.W.J.C. No. 9402 of 2007 was
filed on 30th July, 2007, initially against the order directing for recounting of
votes but when recounting was completed during the pendency of the writ
petition, on the basis of recounting, final order was passed in the election
petition on 30-10-2007 whereby the election of respondent no.11 was set aside
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and the appellant (respondent no.10 to the writ petition) was declared elected.
The final judgment was also challenged in the same writ petition through I.A.
No. 6087/2007. By an order passed in the writ case on 7-11-2007 not only the
I.A. was allowed permitting challenge to final judgment dated 30-10-2007 but
the said judgment was also stayed.
4. The other relevant facts worth noticing are that on recount the writ
petitioner/ respondent no.10 herein was found to have secured 886 votes instead
of 944 votes and the appellant was found to have obtained 894 votes in place of
892 votes. But what is most significant is the undisputed fact which has been
noticed by the Munsif and the writ court also that in respect of Booth No. 131
it was found that 38 ballot papers were missing and similarly from Booth No.
136 six ballot papers were missing at the time of recounting. Paragraph-14 of
the judgment of learned Munsif discloses that when the big steel box containing
the election materials was produced in Court, one of the brackets of lock was
found up-rooted and only the other one was in right condition with seal on the
lock. The stand of the Returning Officer was that he had brought the box in the
same condition in which it was kept in strong room. In paragraph-16 of the
judgment the learned Munsif has noticed that on the bundle- check slip of the
elected candidate relating to booth no. 131 the total number written was 188
but on counting only 150 votes were found therein and on comparing it with the
counter-foils 38 ballot papers appeared to be missing. Similarly, six ballot
papers of the elected candidate were missing out of votes of booth no. 136 and
the votes from the bundle of the elected candidate were found less in view of
figures mentioned on the bundle- check slip of that booth.
5. For the purpose of issue relating to Rule 79 of Bihar Panchayat
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Election Rules 2006 ( hereinafter referred to as the Rules"), it is necessary to
notice that in paragraph-11 of the election petition allegations have been made
regarding various kinds of irregularities in course of counting of votes and in
paragraph 12 it has been alleged that during counting the husband of the
election petitioner/appellant gave a written complaint petition to the Returning
Officer but the same was not accepted and arbitrarily one of the candidates was
declared elected and proposal for recounting was also turned down. In view of
such irregularities and bunglings at the time of counting of votes, the husband
of the election petitioner sent through registered post the information to the
Returning Officer with a prayer for recounting. Such application was
forwarded to higher officials but they did not take any action and hence election
petition had to be filed.
6. By the judgment and order under appeal the writ court has
considered the submissions in respect of two issues;- (i) Whether in view of 44
ballot papers found missing, the learned Munsif could have held and declared
that the election petitioner had secured more votes than the candidate declared
elected and (ii) whether the order of the learned Munsif dated 21-7-2007
directing for recounting of votes was proper and legal when according to the
writ petitioner the mandatory requirements of Rule 79 of the Rules was not
proved to have been followed.
7. It is not in dispute that if issue no.1 is decided in favour of the writ
petitioner/ respondent no.10 herein, the other issue becomes superfluous and
academic. In respect of issue no.1 the objective analysis of admitted facts
reveals that on recount while the number of votes of the election petitioner
showed an increase of two votes, from 892 to 894 and the votes of writ
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petitioner/elected candidate showed decrease of 58 votes i.e. from 944 to 886
votes, it is however, also clear that 44 votes relating to booth no. 131 and booth
no. 136 earlier shown to be in favour of the elected candidate were found
missing. This number of ballot papers were found actually missing because in
paragraph-16 of its judgment the learned Munsif has clearly indicated that the
number of missing ballot papers was found out on comparing the relevant
numbers from the counter-foils. In such a situation there can be no basis for a
presumption, as drawn by the learned Munsif, sub- silentio, that the missing 44
votes could not have been votes cast in favour of the writ petitioner/elected
candidate. In fact there is always a presumption of regularity of official acts
unless such presumption is dis-placed by cogent materials. Hence, in absence
of any cogent material to displace the presumption of correctness of total
number of votes of the elected candidate mentioned on bundle-check slip, the
said numbers must be presumed to be correct. In that eventuality, the
conclusion would be that 44 ballot papers/ votes of the elected candidate/writ
petitioner have been mis-placed/ stolen/removed by some one. In such
circumstances number of votes after recounting would be 894 in favour of the
election petitioner and 886+ 44 = 930 in favour of the writ petitioner/elected
candidate. The margin of victory of the electede candidate would thus, stand
reduced from 52 votes to 36 votes but it cannot be held and declared on the
basis of materials available after recount that the election petitioner/appellant
had proved that she had secured more votes than the candidate declared elected
.
8. Even if there be any difficulty in drawing presumption in favour of
earlier official writings and declaration relating to votes polled by the
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concerned candidate, once it was found on recounting that 44 ballot papers
relating to booth no. 131 and 136 are missing, it was not possible for the
learned Munsif to hold that the election petitioner had succeeded in establishing
her claim that she had secured more votes than the candidate declared elected.
There could be no way of ascertaining as to how many of the missing ballot
papers could be votes in favour of election petitioner or the rival candidate
declared elected. The burden of proving relevant facts such as number of votes
actually polled in favour of the concerned candidate lay upon the election
petitioner. Had the election petitioner, on recount secured more than 44 votes
than the elected candidate, the learned Munsif would have been justified in
giving a finding that the election petitioner had secured more votes than the
candidate declared elected. But in the present case this margin, after recount
was only of 8 votes and hence the 44 ballot papers found missing could not
have been ignored by the learned Munsif as insignificant or immaterial.
9. In view of aforesaid findings this appeal must fail. However,
since, the parties have addressed this Court at length on the law relating to Rule
79 of the Rues and issue no.2 has been decided in favour of the writ petitioner
by writ court holding that the order for recounting was in dis-regard of
mandatory requirement of Rule 79, it is deemed necessary to express our
opinion on this issue also though in brief. Rule 79 is contained in Chapter X of
the Rules which is titled as "Counting of Votes". Rules 72 to 78 relate to
selection of place for counting of votes, supervision of counting of votes, Entry
into the place fixed for counting, Scrutiny of the ballot papers and their
rejection and then Rule 79 provides for- Recounting of votes. This Rule reads
as follows:-
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Recounting of votes:-
"The candidate or in his/her absence his/her election
agent or counting agent may make a written
application to the Returning Officer or the Officer
authorized by him/her for recounting of votes
stating therein the grounds for the same.
(2) The Returning Officer or the Officer authorized by
him/her may, fully or partially, accept or reject the
application stating the reasons for the same.
(3) If the Returning Officer or the Officer authorized
by him/her accepts fully or partially the application
under sub-rule (2), he/she shall get the ballot-
papers recounted and amend the result of the
counting in the form prescribed in sub-rule(2) of
Rule 76 and declare the result.
(4) After that, any application for further re-counting
shall not be entertained."
10. The writ court has extracted relevant part of judgment of the
Supreme Court in the case of Chandrika Prasad Yadav Vrs. The State of Bihar,
( 2004 ) 6 SCC 331. That judgment as well as a subsequent judgment in the
case of Hoshila Tiwari Vrs. State of Bihar, 2008 (8) PLJR (SC) 62 were
considered by a Division Bench of this Court recently in the case of Anita Devi
Vrs. State of Bihar and others (LPA 373 of 2008) disposed of on 21-4-2009.To
that judgment one of us (Shiva Kirti Singh,J) was a party. The Division Bench
held that the law is well settled by the Apex Court that ordinarily, the statutory
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remedy to seek recounting provided under Rule 79 should be availed of and if it
is not done by the election petitioner, he has to state the reasons and furnish
sufficient explanation as to why such statutory remedy was not availed of . In
that judgment it was held by the Division Bench of this Court that the reasons
for seeking recounting of ballot papers are required to be mentioned in the
application under Rule 79. If such application could not be filed for any
reason, the burden is upon the election petitioner to give reasons and sufficient
explanation which should be based upon clear and specific pleadings which the
Court may accept or may not accept depending upon the materials on record.
11. Learned counsel for the appellant persuaded us to look into
relevant rules such as Rule-52 and Rule 63 of the Conduct of Election Rules,
1961, relating to assembly election, only to highlight that whereas under Rule
48 of the Rules only one counting agent is permitted in case of election for the
post of Mukhia, 16 counting agents are permitted under 1961 rules relating to
assembly election. On that basis a strong attempt was made to persuade this
Court to hold that although Rule 79 of the Rules and Rule 63 of the 1961 Rules
are in para materia, Rule 79 could not be applied with same rigour because the
un-successful candidate in a Panchayat election may not have full details of
irregularities in counting on account of availability of only one counting agent.
On that ground, it was submitted that under Rule 79 a prayer for recounting
should be held proper and permissible even if the reasons mentioned for
recounting are not very specific or explicit.
12. The aforesaid submission, in effect means that when an
application under Rule 79 is filed along with grounds for recounting, the
grounds may at times be general in nature and yet they may deserve to be
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considered for allowing recounting.
13. The submission, on the face of it looks attractive but cannot be
accepted. Recounting of votes by the courts after declaration of result is a
matter which involves disturbing the secrecy of the ballot papers and hence the
Hon'ble Supreme Court in the judgments noticed above has held that order for
recounting of votes can be passed only when the required conditions are
fulfilled including-(i) pleading of all material facts stating irregularities in
counting of votes (ii) a roving and fishing enquiry shall not be made while
directing recounting of votes and (iii) objection to the said effect has been
taken recourse to. If the submission of learned counsel for the appellant is
accepted, it would amount to waiving the requirement of pleadings of material
facts stating irregularities in counting of votes and it will encourage a roving
and fishing enquiry by directing recounting of votes. Hence, we find no merit
in the aforesaid submission. There is no good reason for us to take a different
view than the view already taken by the Apex Court as noticed by the writ court
and also in a recent judgment dated 21-4-2009 by the Division Bench in L.P.A.
No. 373 of 2008 (Anita Devi Vrs. State of Bihar).
14. As a result, this Court finds that both the issues have been rightly
decided by the writ court. In respect of issue no.2 it would be sufficient to
point out that the writ court failed to be persuaded to accept the explanation
that petition under Rule 79 was actually filed, on account of the election
petitioner failing to bring on record the petition or copy thereof which was said
to have been submitted to the Returning Officer through registered post. We are
in agreement with the view taken by the writ court, since it is a well established
rule of evidence that documentary evidence when claimed to be in existence
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should be produced as the best evidence so as to prevail over oral evidence. His
plea of filing application under Rule 79 as well as the alleged grounds for
recounting could have been established by election petitioner by calling for or
producing even the subsequent petition allegedly sent by Registered post but
the same was not done for the reasons best known to the election
petitioner/appellant. We find no good reasons to interfere with the judgment
and order of the writ court and find no merit in this appeal. It is accordingly
dismissed but without costs.
( Shiva Kirti Singh,J)
I agree
( Anjana Prakash,J)
( Anjana Prakash, J)
Patna High Court
Dated the 27th August,2009
NAFR Naresh