Patna High Court
Sugriw Ram vs The State Of Bihar And Ors. on 5 January, 2005
Equivalent citations: AIR2005PAT72, 2005(1)BLJR67, AIR 2005 PATNA 72, 2005 BLJR 1 67 (2005) 1 PAT LJR 413, (2005) 1 PAT LJR 413
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. Heard learned counsel for the parties.
2. The petitioner a returned candidate being aggrieved by the order dated 7.2.2004 passed by Sub-Judge 2, Bagaha, District-West Champaran in Election Petition No. 23 of 2001 wherein the learned Judge had directed production of the ballot papers and recount of the same is before this Court, submitting inter alia that the order passed by the learned Court below is patently illegal and deserves to be quashed.
3. The facts necessary for disposal of the present writ application are that the respondent No. 7 who was one of the contestants in the elections for the office of the Member, Zila Parishad after being declared not elected filed the election petition submitting inter alia that votes were not properly counted, he himself was declared elected and after the light went off, all of sudden with a dishonest intention the Returning Officer declared the present writ petitioner as elected candidate. It is submitted that because of the bungling in counting of the votes present was a fit case for direction of recount.
4. On an earlier occasion the learned Judge directed that the votes be recounted but immediately thereafter the present writ petitioner appeared before the said Court submitted his reply to the election petition and contested the matter. The parties were allowed to lead evidence. Before the matter could be finally heard and the issues be decided the election petitioner/private respondent made an application seeking indulgence of the Court to direct recount of the votes. The application was hotly contested but the same was allowed therefore, the returned candidate is before this Court.
5. Learned counsel for the writ petitioner submits that the procedure adopted and followed by the learned Election Tribunal is contrary to law and the decided cases of this Court. According to him unless all the issues are decided and the Court records a finding that the election petition is maintainable and present is a case for directing of recount only then a direction for recount could be issued. According to him from a bare perusal of the order passed by the Court below it would appear that question for non-joinder of the parties were also raised. According to him unless these questions are decided in favour of election petitioner and petition is held to be maintainable, order of recount could not be issued:
6. Learned counsel for the private respondent/election petitioner submitted that as oral evidence in support of recount and the bungling is always to some limit/extent and the substantial relief can be given to the parties after recount only therefore, the Court below was justified in taking up the matter relating to the recount only.
7. In the opinion of this Court the procedure followed by the learned Court below is patently illegal. When number of questions are raised by the either side, issues are cast and one of the issues relates to the maintainability of the proceedings before the Court then without deciding the said questions and without holding that the proceedings before the Court are maintainable a final relief in form of an interim order cannot be allowed. As a hypothetical case, I simply observe that what will happen to a matter where in a recount the election petitioner is declared won/ elected and at the time of final hearing and final judgment the Election Tribunal finds that the proceedings before it are not maintainable.
8. The endeavor of the Election Tribunal should always be that it decides all the issues simultaneously and if it finds that the proceedings before it are maintainable and the election petitioner is entitled to a relief of recount only then direct a recount. It is settled law that a recount can not be ordered just for the sake of asking. For a recount, an election petitioner will have to make out a case, the Court will have to record a finding, only then the secrecy of the franchise can be violated.
9. In the present matter the process followed by the learned Court below is illegal and the same can not be allowed to stand. The order dated 7.2.2004 deserves to and is accordingly quashed. The learned Court below is hereby directed that if there are no other impediments then to hear the parties in details, take up every, issue and decide the matter in accordance with law. If it finds that the petition before it is maintainable and present is a case for directing a recount then certainly it would be entitled to direct recount. In any case the learned Court below will have to decide the matter on its own merits. The petition is allowed to the extent indicated above. Petition allowed.