Back
1993 Supreme(Cal) 342
High Court of Calcutta
Ajoy Nath Ray, J.
Pankaj Banerjee
Vs.
Prasanta Kumar Sur & Ors.
ELECTION PETITION CASE No. 4 of 1991
Decided on : 20th July, 1993
R.K. Lala, U.R. Banerjee for the petitioner
Salil Kumar Ganguli, Nirmal Kanti Chatterjee, Saibal Ganguli, Mrs. Anuradha Mukherjee for the respondents
A recount petition cannot be rejected unless the returning officer finds that the said petition is either unreasonable or frivolous. The court must itself transport its own mind to the time and day when the recount petition was presented and come to its own decision on a balance of all the circumstances and facts available to it at the time of final disposal of the recount petition.
Headnote:
ELECTION PETITION - Recounting Petition - Grounds - Unreasonable and Frivolous - Rejection by Returning Officer - Judicial Review - Standard of Proof - Slender Margin of Win.
Fact of the Case:
The petitioner, Mr. Pankoj Banerjee, filed an election petition challenging the results of the 11th Assembly elections in the State of West Bengal for 150-Tallygunge Assembly constituency. The petitioner lost the election by a slender margin of 322 votes to the returned candidate, Mr. Prosanta Kr. Sur, the first respondent. The petitioner pressed the election petition as a recounting petition, alleging various grounds for recounting, including improper bundling of votes, irregular counting of votes in certain booths, wet ballots, and chaos during counting.
Finding of the Court:
The court held that the Returning Officer's rejection of the recounting petition was bad in law as he applied a stricter test than the law allowed and failed to determine whether the petition was unreasonable or frivolous. However, the court also held that it could not automatically grant a recount order merely because the Returning Officer's decision was set aside.
Issues: 1. Whether the Returning Officer's rejection of the recounting petition was bad in law? 2. Whether the court could automatically grant a recount order merely because the Returning Officer's decision was set aside? 3. Whether the grounds raised in the recounting petition were unreasonable or frivolous?
Ratio Decidendi: 1. The court held that the Returning Officer's rejection of the recounting petition was bad in law because he applied a stricter test than the law allowed and failed to determine whether the petition was unreasonable or frivolous. The court relied on the Supreme Court cases of Chanda Singh vs. Ch. Shiv Ram Varma & Ors. and S. Baldev Singh vs. Teja Singh Swatantra (Dead) & Ors. to hold that a recount petition cannot be rejected unless the returning officer finds that the said petition is either unreasonable or frivolous. 2. The court held that it could not automatically grant a recount order merely because the Returning Officer's decision was set aside. The court held that it must itself transport its own mind to the time and day when the recount petition was presented and come to its own decision on a balance of all the circumstances and facts available to it at the time of final disposal of the recount petition. 3. The court held that the grounds raised in the recounting petition were unreasonable or frivolous. The court held that the petitioner failed to provide any contemporaneous evidence to support his allegations of improper bundling of votes, irregular counting of votes, wet ballots, and chaos during counting.
Final Decision: The court dismissed the election petition, holding that the grounds raised in the recounting petition were unreasonable or frivolous and that there was no basis for ordering a recount.
This is an election petition filed by Mr. Pankoj Banerjee, who was the Congress (I) candidate in the 11th Assembly elections in the State of West Bengal for 150-Tallygunge Assembly constituency.
2. The returned candidate in the said assembly election was Mr. Prosanta Kr. Sur, the present health minister, who is the first respondent in the instant application.
3. The total number of votes cast was above 95,000. The number of votes by which the first respondent won over the petitioner, according to the declared result, is 322. By all standards this is a slender lead by which to win an election where the number of votes cast is as large as mentioned above.
4. The present election petition is and has been pressed and argued as a recounting petition. Mr. Lala, the learned Advocate appearing for the petitioner, has pressed various grounds why according to him the entire votes cast need to be recounted and why, according to him the said slender lead of the first respondent needs again to be rechecked.
5. I shall give below cases upon which Mr. Lala relied, as well as the cases upon which Mr. Ganguli, the learned Advocate, appearing for the first respondent, relied. However, this is an appropriate point, even at the beginning of the judgment, to mention that a recounting petition is not bound to succeed, merely because the winning margin of the returned candidate is a slender one (See Satyanarain Dudhani, AIR 1993 SC 367). It is also, in my opinion equally settled law that' the winning margin being a slender one, is a material consideration in determining a recounting application (see S. Baldev Singh, AIR 1975 SC 693, para 18).
6. Some facts have now to be stated so that the law can be discussed in the light of these facts. The Returning Officer of the election in question was one Mr. Rajendra Kumar who came to give evidence under a subpoena served upon him by or on behalf of the first respondent. He was the Returning Officer not only of the present election in question but also of certain other elections.
7. The voting took place in the latter part of May, 1991, but the counting had to be postponed from 27th May to the 17th June, because of certain troubles that had unfortunately occurred at that time in Southern India.
8. The counting was carried on in two halls in a building at Tollygunge. The area for which the present election was conducted was also a portion of the Parliamentary constituency, for which the said same two halls were also used. Miss Mamata Banerjee, previously the Sports Minister of the Congress (I) at the Centre, was returned by the said Constituency to Parliament by a margin of about 9,000 votes.
9. The two counting halls had ten tables each for the assembly and parliamentary counting. The number of tables for the assembly election, therefore, aggregated 20.
10. The number of assembly booths was 153. The results have been published in respect of all 153 booths and these are in the possession of the parties before me.
11. The counting was carried on by turning the votes cast in favour of the individual candidates in bundles of 50. The total number of votes secured were thereafter, totalled on the basis of such bundles.
12. The case of the petitioner is that the entire facts and circumstances of the case relating to the counting call for a recount. After the counting was over, and the result was about to be declared, the petitioner approached the Returning Officer with a request for recounting. The Returning Officer gave the petitioner a short time, which in the evidence has emerged to be about ten minutes or so, during which the petitioner was asked to make out a recounting petition in writing. This was done. The said recounting petition, or more accurately, a copy thereof, is annexed to the written statement of the respondent no. 1.
13. Four grounds were made out in the said recounting petition for substantiating the petitioner's case for recounting. Roughly speaking these are:-
(i) Bundles of 50 were not properly ma
