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1972 Supreme(Pat) 205
PATNA HIGH COURT
Madan Mohan Prasad, J.
Jadav Gilua
Versus
Suraj Narain Jha
Civil Writ Jurisdiction Case No. 787 of 1972 ;
Decided On : NOVEMBER 11, 1972
The Election Tribunal has the power to order a recounting of ballot papers, but this power should be exercised only in appropriate cases where material facts are stated to justify such an order.
Headnote:
ELECTION LAW - PANCHAYAT ELECTION - VERIFICATION OF ELECTION PETITION - NON-COMPLIANCE WITH MANDATORY PROVISIONS - DISMISSAL OF PETITION - POWER OF ELECTION TRIBUNAL TO ORDER RECOUNTING - VAGUE ALLEGATIONS - NO MATERIAL FACTS STATED - NO PRIMA FACIE CASE - ORDER FOR RECOUNTING SET ASIDE.
Fact of the Case:
An election petition was filed challenging the election of the petitioner as Mukhiya of Kiriburu Gram Panchayat on the ground of improper counting of votes and rejection of ballot papers. The Election Tribunal ordered a recounting of ballot papers.
Finding of the Court:
The court held that the election petition was not properly verified as required by Rule 75 of the Bihar Panchayat Election Rules, read with Order 6, Rule 15 of the Code of Civil Procedure, and should have been dismissed under Rule 77 of the Rules. The court also held that the allegations made in the election petition were vague and no material facts were stated to justify an order for recounting.
Issues: 1. Whether the election petition was properly verified as required by law? 2. Whether the Election Tribunal had the power to order a recounting of ballot papers? 3. Whether the allegations made in the election petition were sufficient to justify an order for recounting?
Ratio Decidendi: 1. The court held that the election petition was not properly verified as required by Rule 75 of the Bihar Panchayat Election Rules, read with Order 6, Rule 15 of the Code of Civil Procedure, and should have been dismissed under Rule 77 of the Rules. The court relied on several decisions of the Patna High Court which held that non-compliance with the mandatory provisions of Rule 75 leads to the dismissal of the election petition under Rule 77. 2. The court held that the Election Tribunal had the power to order a recounting of ballot papers, but this power should be exercised only in appropriate cases. The court relied on the decision of a Full Bench of the Patna High Court in Rasik Lal Yadav V/s. Bhola Prasad Mandal, AIR 1971 Pat 10 (FB), which overruled an earlier decision of a Division Bench in Maksudan Ram V/s. Kamla Prasad, AIR 1967 Pat 305. 3. The court held that the allegations made in the election petition were vague and no material facts were stated to justify an order for recounting. The court relied on the decision of the Supreme Court in Dr. Jagjit Singh V/s. Giani Kartar Singh, AIR 1966 SC 773, which held that vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose of Section 83 (1) (a) of the Representation of the People Act, 1951.
Final Decision: The court allowed the application and set aside the order of the Election Tribunal ordering a recounting of ballot papers. The court directed the Tribunal to hear the election-petitioner on the question of verification of the election petition and act in accordance with law.
Madan Mohan Prasad, J.
1. This is an application under Article 227 of the Constitution for quashing an order dated the 17th May. 1972 (Annexure "4") passed by the Election Tribunal appointed for Panchayat Election in the district of Singhbhum, allowing a prayer of opposite party No. 1 for re-opening the result of an election and allowing re-counting of ballot papers.
2. It appears that an election took place for the office of Mukhiya of Kiriburu Gram Panchayat, in the district of Singhbhum. There were several candidates for this office. Polling was held on the 27th May. 1971. and as a result of counting it was found that the petitioner had secured 303 votes, opposite party No. 1 had sot 302 votes and opposite Party No. 2 had got 140 votes. Besides these, 53 ballot Papers had been rejected as invalid. The petitioner was, therefore, declared elected as the Mukhiya on the aforesaid date.
3. An application was then filed by opposite party No. 1 before the Election Tribunal (Annexure "1") on the 31st May, 1971, challenging the election of the petitioner on the ground that the counting had not been done properly, inasmuch as 53 ballot papers were illegally rejected, his agent was not allowed entrance in all the booths, and counting was done in a haphazard manner and in the presence of unauthorised person, which affected the decision that was taken for re-lection of ballot papers. The petitioner filed a rejoinder (Annexure "2") on the 6th July, 1971, controverting the allegations aforesaid and further alleged that the election petition was not maintainable in law. It was further stated that no irregularity or illegality had been pointed out by the election-petitioner at any earlier stage.
4. In the aforesaid election petition, the election-petitioner had impleaded the Block Development Officer of Noamundi Block, who was the Presiding Officer at the aforesaid election, as Opposite Party No. 3. and the aforesaid officer also filed a reioinder (Annex. "3") denying that the facts alleged in the. election petition and stating that the counting was done legally and properly. Evidence was led by the election-petitioner by examining four witnesses, and the present petitioner, the successful candidate, also examined two witnesses. The election-petitioner, however, did not examine himself in support of his allegations. The Election Tribunal came to the conclusion that from the evidence adduced in the case "a prima facie case appears to have been made out that large number of ballot papers had in fact been rejected in the course of counting and it also has been brought out that petitioners polling Agent was not present at booth No. 1." He found that in view of the prayer of the election-petitioner being merely for re-counting and in view of the fact that the election-petitioner had lost only by a margin of one vote, it was a case for ordering re-counting of ballot papers and, accordingly, passed that order (Annexure "4"). Hence this application.
5. Learned counsel for the petitioner hag urged two points before me; firstly that the election petition not being properly verified, as required by Rule 75 of the Bihar Panchavat Election Rules, hereinafter called the "Rules", read with Order 6, Rule 15 of the Code of Civil Procedure, the petition should have been dismissed under Rule 77 of the Rules aforesaid, instead of being allowed. Secondly he has urged that the allegations providing a basis for the prayer for recounting were much too vague, no material facts had been stated that there had either been illegal or improper rejection of ballot papers and the Tribunal had not even come to a finding that there was a prima facie evidence to that effect, and. as such the Tribunal had no jurisdiction to order re-counting in such circumstances. Both the contentions put forward have great force.
6. In the present case, admittedly the election petition had not been verified in the manner required by Order 6, Rule 15 of the Code of Civil Procedure, as
