Chandeshwar Saw vs Brij Bhushan Prasad on 28 January, 2020


Supreme Court of India

Chandeshwar Saw vs Brij Bhushan Prasad on 28 January, 2020

Author: A.M. Khanwilkar

Bench: A.M. Khanwilkar, Hemant Gupta, Dinesh Maheshwari

                                               1

                                                                      REPORTABLE


                             IN THE SUPREME COURT OF INDIA
                              CIVIL APPELLATE JURISDICTION


                                CIVIL APPEAL NO. 780 OF 2020
                             (arising out of SLP(C) No. 22715/2019)

  Chandeshwar Saw                                                 … Appellant(s)

                                            Versus

  Brij Bhushan Prasad & Ors.                                      …Respondent(s)



                                       JUDGMENT

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
Signature Not Verified

Digitally signed by
CHARANJEET KAUR
Date: 2020.01.28
14:09:43 IST
Reason:

numbered election case filed by the appellant challenging the election

of respondent No. 1 as returned candidate for the post of Mukhia,
2

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
3

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
4

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
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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
6

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.

4. The respondent no. 1 assailed the decision of the learned single

Judge by way of Letters Patent Appeal (LPA) No. 382/2019. During

the pendency of the said appeal, in terms of the directions given by

the learned single Judge, the Election Tribunal proceeded to pass an

order on 11.4.2019. The Election Tribunal in reference to Rule 81 of
7

the Bihar Election Rules, 2006 (for short, ‘the 2006 Rules’), directed

to place the report kept in sealed envelope before the District Election

Officer­cum­District Magistrate, Patna for declaration of the election

result. The respondent no. 1, therefore, challenged the said order

dated 11.4.2019 passed by the Election Tribunal by way of CWJC No.

9655/2019. The Division Bench of the High Court proceeded to

dispose of the LPA, as well as, the writ petition (CWJC No.

9655/2019) together by a common judgment, which is subject matter

of challenge in the present appeal.

5. According to the appellant, the Division Bench of the High Court

committed manifest error in reversing the well­considered decision of

the Election Tribunal as rightly upheld by the learned single Judge

regarding necessity to direct recounting of votes in the fact situation

of the present case. The Division Bench did not even bother to deal

with the factual aspects of the matter as analysed by the Election

Tribunal and also by the learned single Judge of the High Court,

before setting aside the direction regarding recount of votes. It merely

referred to the decision of this Court in Bhabhi vs. Sheo Govind &

Ors.1 and Mahender Pratap vs. Krishan Pal & Ors. 2. As a matter

of fact, the Division Bench did not make any enquiry, much less

1 (1976) 1 SCC 687
2 (2003) 1 SCC 390
8

analysis of the pleadings and the evidence, but went on to observe

that the Election Tribunal without even inspecting the ballots or

forming the prima facie opinion on the basis of material produced by

the appellant/election petitioner, committed error in directing recount

of votes. The impugned judgment reproduces the interim order

passed by the Division Bench on 24.7.2019 recording its prima facie

view and proceeded to adopt the view expressed therein to reverse the

well­considered decision of the Election Tribunal as upheld by the

learned single Judge. Concededly, it is urged that the interim order

passed on 24.7.2019 has not analysed the pleadings and evidence

produced on behalf of the appellant/election petitioner, which had

commended to the Election Tribunal and the learned single Judge of

the High Court. All that is mentioned in the said order is that the

Election Tribunal proceeded to pass order of recount of votes in

complete ignorance of law on the subject, whereas the Election

Tribunal, as well as, the learned single Judge had duly analysed the

pleadings as well as the evidence produced by the appellant/election

petitioner to conclude that there was enough evidence to substantiate

the case made out by the appellant/election petitioner that the

officials committed serious irregularities during the counting of votes

and failed to adhere to the applicable rules in that regard. The
9

appellant would submit that the decisions adverted to by the Division

Bench can be of no avail and cannot be the basis to overturn the well­

considered decisions of the Election Tribunal and the learned single

Judge, directing the recount of votes in the peculiar facts of the

present case.

6. The respondent no. 1 who had filed the LPA challenging the

orders passed by the Election Tribunal, however, has supported the

decision of the Division Bench and would contend that no case for

recount was made out by the appellant/election petitioner either in

the election petition or by way of any evidence produced to

substantiate that relief. Relying on the decisions of this Court

referred to in the impugned judgment, it is contended that neither the

Election Tribunal nor the learned single Judge took note of the settled

legal principles before directing recount of votes. The

appellant/election petitioner did not apply for recount before the

declaration of the results and that without even inspecting the

ballots, the Election Tribunal proceeded to direct recount of votes,

which was impermissible. It is further submitted that no interference

with the impugned judgment is warranted.

10

7. We have heard Mr. Amit Pawan, learned counsel appearing for

the appellant and Mr. Abhay Kumar, learned counsel for the

respondents.

8. After considering the rival submissions, we have no hesitation in

accepting the argument of the appellant that the Division Bench vide

impugned judgment (dated 27.8.2019) has reversed the well­

considered decision of the Election Tribunal, which has justly been

upheld by the learned single Judge (vide order dated 6.3.2019),

without analysing the pleadings and the evidence adduced by the

appellant/election petitioner during the trial of the election case. The

impugned judgment merely adverts to the interim orders passed

during the pendency of the writ (CWJC No. 9655/2019) and the LPA

and goes on to observe that for the (prima facie) opinion recorded

therein, the matter in issue deserves to be answered against the

appellant/election petitioner and in favour of respondent No. 1. That

is evident from the following extract of the judgment under appeal: ­

““……………….

From a perusal of the orders extracted hereinabove, the moot
question that has to be determined by this Court is as to
whether the Tribunal had proceeded in accordance with law to
order a recount of the votes on the allegations made. Without
reiterating the facts and even the position of law which
stands extracted in our order dated 24 th July, 2019, we find
that the learned counsel for the respondent election­
petitioner could not successfully convince us to take a
different view from what was expressed by us in the interim
order quoted hereinabove. Keeping in view the law laid
11

down by the Apex Court in the case of Bhabhi Vs. Sheo
Gobind and others, reported in (1976) 1 SCC 687, we find
that the order of recount as upheld by the learned Single
Judge in the impugned judgment, therefore, is
unsustainable as it is not in conformity with law. The
Tribunal without even inspecting the ballots or forming a
prima facie opinion on the basis of such material that was
necessary to be gone into, proceeded to pass an order of
recount that cannot be sustained in law. The learned Single
Judge, therefore, could not have upheld the same.
From the narration of facts hereinabove, it appears that even
after the judgment dated 6th march, 2019, the Tribunal appears
to have acted in ample haste and in our opinion, any action in
proceeding to pass the order on 11th April, 1999 was in the
nature of an overreach so as to virtually circumvent the orders
passed by this Court. This fact has been noticed by the learned
Single Judge while passing the interim order dated 18 th June,
2019 extracted hereinabove in C.W.J.C. No.9655 of 2019 with
which we find ourselves in full agreement with.
The Tribunal, therefore, not only committed an error, but the
action of the Tribunal can be clearly described as one to be
malice in law. The Tribunal, therefore, ought not to have
proceeded for issuing any direction for declaration of results
without even complying with the observations made in the
judgment dated 6th of March, 2019. This manner of dealing with
the matter by the Tribunal, therefore, cannot be appreciated in
the background of the case, more particularly, in the light of the
arguments that have been advanced on the legal issue about
the procedure to be adopted by a Tribunal before ordering a
recount.

Shri Manglam, learned counsel for the appellant, however,
insisted that the matter should not be remitted even if the
appeal is allowed and the order dated 11th April, 2019 is
quashed. His submission is that the election petition itself was
not maintainable keeping in view the nature of the pleadings on
record which do not make out any case for either a recount or
even for trying the allegations levelled in the election petition.
Pointing out to the framing of Issue No.1 by the Tribunal and
the answer given to it on the strength of the findings arrived at,
he contends that election petition has been found to be
maintainable on the ground that there was a case made out for
recount. This, he submits was a converse procedure to record a
finding, inasmuch as, once there was evidence on record to the
effect that no application for recount had been filed, which is
evident from the deposition of the Returning Officer, then in
that event Issue No.1 has been wrongly decided. He further
submits that the incident relating to the transfer of the records
12

from the strong room to the Court under the private custody of
the sons of the election petitioner was also an additional ground
apart from the fact that the Court itself had entertained a
Miscellaneous Application for undertaking proceedings under
Section 340 Cr.P.C. his submission is that an intentional false
plea, therefore, clearly disentitled the election petitioner to
maintain the election petition and for which reliance has been
placed by the learned counsel on the judgment in the case of
Mahender Pratap Vs. Krishna Pal & Ors. reported in (2003) 1
SCC 390.

The contention, therefore, in short is that, this Court itself
should hold that the election petition was not maintainable and
consequently, there is no occasion for remitting the matter back
to the Tribunal concerned.

Responding to the aforesaid submissions, Shri P.K. Shahi,
learned Senior Counsel appearing for the election petitioner
submits that even assuming for the sake of argument that the
Tribunal committed error in proceeding to order a recount
without recording appropriate findings, even though not
admitting the same, yet the matter has to go back to the
Tribunal, inasmuch as, the issue of maintainability was not the
main issue, and it was the issue of recount which formed the
basis of the entire litigation. In order to determine as to whether
a recount would be permissible or not on the basis of the
evidence adduced will be a matter of enquiry by the Tribunal
itself and not by this Court in the exercise of jurisdiction under
Article 226 of the Constitution of India. He, therefore, submits
that the matter will have to be looked into keeping in view the
evidence on record and also the pleadings which do indicate
that there was sufficient material in order to attempt a recount
on the allegations made.

Learned counsel for the State of Bihar has also advanced his
submissions contending that the law as laid down by the Apex
Court in the case of Bhabhi Vs. Sheo Gobind and others (supra)
deserves to be followed.

Having heard learned counsel for the parties and having
perused the records and in view of what has been recorded
by us hereinabove, we find that the order of recount cannot
be sustained as the Tribunal acted in hot haste and the
action of the Tribunal even in subsequently passing an
order dated 11th April, 2019 clearly indicates that it is not
an order which can either be sustained in law or can be
described to be in conformity with the legal principles as
laid down in the case of Bhabhi Vs. Sheo Gobind and others
(supra).

13

The manner in which the proceedings have been conducted
by the Presiding Officer, therefore, cannot be appreciated and in
this background and having perused the material on record, we
find that upon the matter being remitted, the said Presiding
Officer who has passed the orders impugned, should not act as
the Presiding Officer to decide the present dispute.
Accordingly, the present appeal (L.P.A. No.382 of 2019) is
allowed. The impugned judgment dated of the learned Single
Judge dated 6th of March, 2019 is set aside.

The order of recount passed by the Tribunal dated
11.10.2018 is also quashed. The order passed by the Tribunal
on 11th April, 2019, therefore, also cannot be sustained and is
accordingly set aside. C.W.J.C. No.9655 of 2019 is also
accordingly allowed.

The matter shall now stand remitted to the Tribunal with a
direction to the learned District Judge, Patna, to nominate the
said election petition to an officer of the rank empowered to try
the election petition other than the officer who had dealt with
the matter earlier.

With the aforesaid directions, the appeal (L.P.A. No.382 of
2019) and the writ petition (C.W.J.C. No.9655 of 2019 are
accordingly allowed.”
(emphasis supplied)

Assuming that we were to take notice of the elaborate interim orders

dated 24.7.2019 and 18.6.2019, there is nothing to indicate that even

at that stage of the proceedings, the Division Bench has had occasion

to analyse the pleadings and evidence adverted to by the Election

Tribunal as commended to the learned single Judge. Without

reversing the finding of facts so recorded by the Election Tribunal,

merely by referring to decisions of this Court in Bhabhi (supra) and

Mahender Pratap (supra), the Division Bench could not have

disturbed the order of recount as directed by the Election Tribunal in

the peculiar facts of the present case. Inasmuch as, the
14

appellant/election petitioner had not only pleaded about the serious

irregularities committed by the officials during the counting of valid

votes cast in his favour and invalid votes taken into account in favour

of respondent No. 1, but had also examined witnesses to substantiate

that fact, as noted by the Election Tribunal and the learned single

Judge of the High Court.

9. Indeed, in the case of Bhabhi (supra), this Court has delineated

the contours for issuing direction of inspection or recount of votes in

the following words: ­

“15. Thus on a close and careful consideration of the various
authorities of this Court from time to time it is manifest that the
following conditions are imperative before a court can grant
inspection, or for that matter sample inspection, of the ballot
papers:

(1) That it is important to maintain the secrecy of the ballot
which is sacrosanct and should not be allowed to be violated
on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made
against the elected candidate must be clear and specific and
must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials
produced before the Court regarding the truth of the
allegations made for a recount;

(4) That the Court must come to the conclusion that in order
to grant prayer for inspection it is necessary and imperative
to do full justice between the parties;

(5) That the discretion conferred on the Court should not be
exercised in such a way so as to enable the applicant to
indulge in a roving inquiry with a view to fish materials for
declaring the election to be void; and
(6) That on the special facts of a given case sample
inspection may be ordered to lend further assurance to the
prima facie satisfaction of the Court regarding the truth of
15

the allegations made for a recount, and not for the purpose
of fishing out materials.”
If all these circumstances enter into the mind of the Judge and
he is satisfied that these conditions are fulfilled in a given case,
the exercise of the discretion would undoubtedly be proper.”

The question is: whether material facts to justify an order of recount

of votes has been clearly pleaded and the same have been proved by

the appellant/election petitioner in the present case? That issue has

been analysed by the Election Tribunal extensively, as is evident from

the analysis made by it, which commended to the learned single

Judge. Since the appellant had substantiated the allegation made in

the election petition and the Election Tribunal being convinced about

the said claim proceeded to issue order of recount. No fault can be

found with that approach of the Election Tribunal nor it is possible to

suggest that the Election Tribunal or the learned single Judge was

not conscious about the necessity to substantiate the allegation about

the serious irregularities committed by the officials during the

counting.

10. Similarly, in the case of Mahender Pratap (supra), the Court

went on to reject the election petition in the facts of that case, having

noted that incorrect statements were made in the pleadings, affidavits

or depositions being an attempt to mislead the Court and more so,

the recount application was made by the candidate (election
16

petitioner) to the Returning Officer after the results were declared,

which could not have been entertained by the Returning Officer. In

the case of Sohan Lal vs. Babu Gandhi & Ors.3, the three­Judge

Bench of this Court has opined that the fact that recount request was

not made by the candidate during the counting, does not preclude

filing of election petition or to direct recount in the election petition

questioning the election after results of the election are announced.

The decision in Ram Rati (Smt) vs. Saroj Devi & Ors. 4 came to be

overruled and instead the Court held that in an election petition, after

the declaration of result, the Court or Tribunal can direct recount of

votes even if the party had not applied in writing for recounting of

votes to the Returning Officer. There is no provision in the Act or in

the Rules prohibiting the Court or the Tribunal to direct recounting of

votes. The Court in paragraph 14 observed thus: ­

“14. In view of Section 122 and the Rules, we are unable to
agree with the ratio laid down in Ram Rati case (1997) 6 SCC

66. It is not correct to hold that, in an election petition, after
the declaration of the result, the court or tribunal cannot direct
re­counting of votes unless the party has first applied in writing
for re­counting of votes. There is no prohibition in the Act or
under the Rules prohibiting the court or tribunal to direct a re­
counting of the votes. Even otherwise, a party may not know
that the re­counting is necessary till after the result is declared.
At this stage, it would not be possible for him to apply for re­
counting to the Returning Officer. His only remedy would be to
file an election petition under Section 122. In such a case, the
court or the tribunal is bound to consider the plea and where a
case is made out, it may direct re­count depending upon the

3 (2003) 1 SCC 108
4 (1997) 6 SCC 66
17

evidence led by the parties. In the present case, there was
obvious error in declaring the result. We, therefore, hold that
the ratio laid down in Ram Rati case (1997) 6 SCC 66 is not
correct.”

11. A priori, we have no hesitation in concluding that the Division

Bench has interfered with the well­reasoned judgment and order

passed by the Election Tribunal, which was justly upheld by the

learned single Judge, directing recount of votes. It appears that after

the recount, the appellant/election petitioner has secured 95 excess

valid votes, more than the valid votes secured by respondent No. 1.

That has reinforced the challenge set up by the appellant that the

officials had committed serious irregularities bordering on intentional

manipulation of the valid votes secured by the appellant. As a result,

we have no hesitation in upholding the order of recount of votes, as

passed by the Election Tribunal (dated 11.10.2018) and justly upheld

by the learned single Judge (vide order dated 6.3.2019), in the facts of

the present case.

12. The next question is about the correctness of the direction

issued by the Election Tribunal vide order dated 11.4.2019 to place

the report contained in sealed envelope before the District Election

Officer­cum­District Magistrate, Patna for declaration of result. That

direction even if inappropriate, would not affect the order of recount

of votes. It was open to the High Court to mould the direction issued
18

by the Election Tribunal and instead issue declaration as envisaged

under Section 140 of the Bihar Panchayat Raj Act, 2006, which reads

thus: ­

“140. Grounds on which a candidate other than the
returned candidate may be declared to have been elected ­
(1) If any person who has filed an election petition has, in
addition to calling in question the election of the returned
candidate, claims a declaration that he himself or any other
candidate has been duly elected and the Prescribed Authority is
of opinion­

(a) that in fact the petitioner or such other candidate
received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate
by corrupt practices the petitioner or such other candidate
would have 142 obtained a majority of the valid votes, the
Prescribed Authority shall after declaring the election of the
returned candidate to be void declare the petitioner or such
other candidate, as the case may be, to have been duly
elected.

(2) The decision of the Prescribed Authority shall be final.”

In other words, the High Court ought to have moulded or modified the

operative order passed by the Election Tribunal, dated 11.4.2019 to

the effect that the election of the returned candidate (respondent No.

1) be and is set aside as invalid and the appellant (election petitioner)

is declared as having been duly elected having secured more valid

votes after recount. Resultantly, in this appeal, we proceed to issue

that declaration.

13. The order passed by the Election Tribunal, dated 11.4.2019,

which was subject matter of CWJC No. 9655/2019 also dealt with the

application filed before it alleging forgery of record/documents of the
19

Tribunal. The Tribunal has rightly observed that that is a separate

matter and would require independent enquiry, for which the petition

has been treated as a petition under Section 340 of the Criminal

Procedure Code (Cr.P.C.) to be dealt with as per law. As regards that

direction issued by the Election Tribunal vide order dated 11.4.2019,

the same is not the subject matter of this appeal. In other words, we

have only dealt with the issues emanating from the stated direction

issued by the Election Tribunal regarding recounting of votes and to

issue appropriate declaration in terms of Section 140 of the Bihar

Panchayat Raj Act, 2006. The respondent No. 1 by way of written

submissions filed after the matter was reserved for judgment, has

adverted to certain factual matters, so as to question the result of

recount of votes. Presumably, the alleged acts of commission or

omission are already subject matter of proceedings initiated under

Section 340 of the Cr.P.C. That need not detain us from disposing of

this matter having noticed that the respondent No. 1 had succeeded

before the Division Bench on grounds which we have already adverted

to hitherto and rejected. The new factual matters do not find mention

in the impugned judgment. It would be open to the respondent No. 1

to pursue proceedings under Section 340 of the Cr.P.C., which will

have to be decided on its own merits in accordance with law.

20

14. Accordingly, this appeal succeeds. The impugned judgment and

order is set aside. Instead, the election case being E.C. No. 08/2016

filed by the appellant before the Election Tribunal is allowed. A

declaration is issued under Section 140 of the Act that the election of

respondent No. 1 as returned candidate is set aside being invalid, and

instead we declare the appellant/election petitioner as having been

duly elected having secured highest votes amongst the contesting

candidates and 95 more valid votes than that of respondent No. 1 in

the subject election.

15. The appeal is disposed of in the above terms with no order as to

costs. Pending interlocutory applications, if any, shall stand disposed

of.

……………………………, J
(A.M. Khanwilkar)

……………………………, J
(Dinesh Maheshwari)
New Delhi;

January 28, 2020.



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