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PATNA HIGH COURT
Mungeshwar Sahoo, J.
State Of Haryana
Versus
M/s Deep Mayank & Associates
First Appeal No. 594 of 1993 662 of 1993
Decided On : AUGUST 2, 2010
(Paras 6, 7 & 13)
Constitution of India-Article 226-Writ petition arising out of election petition-Death of writ petitioner after the hearing has been concluded and judgment waiting pronouncement-It is a settled law that an election case relates to the rights of the entire electorate who are unquestionably interested in the proceeding-In the present case, the Tribunal set aside the election of winning candidate, namely, the writ petitioner and declared respondent No. 10 elected-Thus in such a matter, if the court finds that the Tribunal illegally granted the relief to the respondent No. 10, the same would still remain a subject of interest for the electorate, irrespective of the death of the writ petitioner. (Paras 15 & 16)
Bihar Panchayat Raj Act, 2006 r/w Bihar Panchayat Election Rules, 2006-Rule 79-Recounting of votes-At the end of counting the result sheet prepared in Form-20 and the respondent No.10 was a winning candidate-Subsequently, on the application of petitioner, recount was done and petitioner was declared elected-Respondent No.10 filed the election petition wherein election of petitioner was set aside and respondent No.10 declared elected-In view of the decision of the Apex Court in Hoshila Tiwaris case [2008 (4) PLJR 62 (SC)] it cannot be absolutely said that an application for recount cannot be made after the preparation of result in Form 20 as the Apex Court has in the case of Chandrika Prasad Yadav (2004 (6) SCC 331) held that the very provision in Rule 79 directing the Returning officer to amend the result of counting in the Form prescribed in sub-rule (3) of Rule 76, i.e., Form 20, clearly goes to show that the mere writing down the results of the counting in Form 20 does not necessarily preclude the filing of an application for recount under Rule 79-The conclusion of the Election Tribunal that the moment Form 20 has been duly filled up and prepared and signed by the Returning officer, no recount can be ordered, is not legally supportable-An application for just and reasonable grounds would be maintainable even after the filling up of Form 20.
(Paras 42 to 44)
Bihar Panchayat Election Rules, 2006-Rule 79 r/w Form 20-Recounting-An application for recount must be made with promptitude and the greater the delay in filing the same, the more it would be open to suspicion and liable to rejection-In the present case, the Election Tribunal found the petition filed at the belated stage which goes against the petitioner-The petition has also been found containing only bold and vague statements-Neither any reasons metioned therein for recount nor they are found in the order of the Returning officer and the Tribunal rightly held that the same fall in the category of roving and fishing enquiry which is not permissible in law-Such a recount is contrary to law and invalid-Order of Tribunal upheld.
(Paras 45, 46 & 51)
Constitution of India-Article 226 r/w Bihar Panchayat Raj Act-Section 137-Election petition-Scope of judicial review-The High Court is not sitting in appeal over the decision of the Election Tribunal but merely exercising power of judicial review under Article 226 and it would not like to reappraise the evidence in order to Come to a different conclusion than that arrived at by the Election Tribunal-The findings recorded by the Election Tribunal have to be accepted unless it can be shown that they are perverse in the sense that they are based on no material or are contrary to the evidence on the record-Writ petition dismissed.
(Para 41)
AIR 1974 SC 2105; (1996) 2 SCC 205; AIR 1987 SC 88; 30 M. & H. 19 (23); AIR 1952 SC 319; (2004) 6 SCC 331; AIR 1975 SC 693; AIR 2004 SC 1067; 2008(4) PLJR 62 (SC); AIR 1993 SC 367; AIR 1975 SC 283; 2007 (4) PLJR 169; AIR 1975 SC 403 Para 4; AIR 1999 SC 768 Para 19 & 20- Referred to.
Mungeshwar Sahoo, J.
1. Both these first appeals have been filed against the judgment dated 23.6.1993 and the decree following thereupon signed on 15.7.1995 by Sri Narendra Mishra, the learned Sub-Judge, 1st, Patna in Title Suit No. 603 of 1992. Since both these first appeals arise out of the same judgment and decree, these are heard together and are being disposed of by this common judgment.
2. The defendant No. 1 i.e. State of Haryana and defendant No. 2 i.e. the Director of Lottery, have filed First Appeal No. 594 of 1993. The defendant No. 3 Dena Bank has filed other First Appeal No. 662 of 1993.
3. The plaintiff-respondent i.e. M/s Deep Mayank and Associates filed the aforesaid Title Suit No. 603 of 1992 for a declaration that the agreement dated 29.6.1992 entered into between the plaintiffs and defendant Nos. 1 and 2 is illegal, void, arbitrary and not enforceable in law and the bank guarantee dated 28.7.1992 furnished by defendant No. 3 in favour of defendant No. 1 is void and not enforceable in law. The plaintiffs futher prayed that the defendant No. 3 Dena Bank be directed to forthwith release the margin money and collateral securities to the plaintiffs. The plaintiffs also prayed for declaration that the plaintiffs did not commit any default and are not liable for damages and the defendants are not entitled to encash the bank guarantee G.T./100/92 dated 28.7.1992 given in favour of defendant No. 1. The plaintiffs further prayed to restrain the defendants by an order of injunction from encashing the aforesaid bank guarantee and also prayed for cost of the suit.
4. The plaintiffs prayed the aforesaid reliefs on the facts which may be stated in brief that, the plaintiff No. 1 M/s Deep Mayank and Associates is a registered partnership firm and the plaintiffs are engaged in the business of marketing of lottery tickets in different States and have acquired sufficient experience in the said trade. They have their registered office at Calcutta, a branch office at New Delhi and the principal office at Patna. The defendant No. 1 i.e. State of Haryana was doing lottery business and invited tenders for appointing stockist of lottery tickets of Rs. 2/- for the entire country. The plaintiffs tender was accepted and were made main stockist and an agreement was executed between the parties on 29.6.1992.
5. The plaintiffs further case is that because of the agreement the plaintiffs became the sole stockist for a period of one year from 1st July, 1992. The plaintiffs in good faith signed the agreement. At least 10 days time was needed to organize effecting sales in the country but the plaintiffs were not given any time. The plaintiffs were required to pay the royalty money of Rs. 1,97,280/- per draw and the draw was to be held everyday. The further case is that the defendants had to pay a sum of Rs. 81,00,000/- to the price winners out of the tickets sold by them prior to 1.7.1992 but the entire liability was put on to the plaintiffs just after the agreement. The defendants promised to adjust the amount but still 10% of that amount has not been adjusted.
6. The further case of the plaintiffs is that the plaintiffs had to give bank guarantee for Rs. 3,71,00,000/- in favour of defendant Nos. 1 and 2 and on the request of Patna office of the plaintiffs, the defendant No. 3 Dena Bank offered bank guarantee No. G.T./100/92 dated 23.6.1992. It was stipulated in the bank guarantee that on default by the said main stockist the bank shall on demand pay the said sum to the Government of Haryana as per the agreement. According to the agreement, the plaintiffs were required to pay to the price winning tickets provided that it was claimed within 30 days from the date of draw which the plaintiffs complied. The further case is that recently the defendant No. 1 issued public notice to the effect that all such claims would be paid by them directly. The defendants action is mala fide and the defendants started violating the terms of the agreem
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