Quashed

Sunita Kumari v. The State Election Commission and Ors.

Patna HC1 Nov 2013CWJC/10159/2013

Case brief

AI extract

What is this about?

The High Court quashed an election judgment declaring the petitioner void and respondent elected due to mathematical errors in vote tallies. The matter was remanded for a supervised recount of ballots to determine the true vote count.

What did the court decide?

The judgment declaring petitioner elected void and respondent elected is quashed; matter remitted for supervised recount and final disposal within three months.

Sunita Kumari Vs The State Election Commission… — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10159 of 2013

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====================================================== Sunita Kumari, wife of Dharmendra Kumar, Resident of villageNarayanpur, P.S.- Sandesh, District- Bhojpur at Ara

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.... .... Petitioner Versus 1. The State Election Commission (Panchayat) through the Secretary, Sone Bhawan, Birchand Patel Path, Patna 2. The Secretary, the State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna 3. The District Magistrate-cum-District Election Officer (Panchayat) Bhojpur at Ara, District- Bhojpur at Ara 4. Kamlesh Kumar Singh, son of not known to the petitioner, the Returning Officer, Sandesh Block, Panchayat Election, 2011, District- Bhojpur at Ara 5. The Assistant Returning Officer, Sandesh Block, Panchayat Election, 2011, District- Bhojpur at Ara 6. Sushila Devi, wife of Sri Banshi Chaudhary, Resident of VillageSaripur, P.O.- Akhgaon, P.S. Sandesh, District- Bhojpur at Ara 7. Prabha Devi, wife of Sri Nandji Chaudhary, resident of Village- Saripur, P.O.- Akhgaon, P.S. Sandesh, District- Bhojpur at Ara 8. Baby Devi, wife of Sri Sinod Singh, resident of Village and P.O. - Akhgaon, P.S. - Sandesh, District- Bhojpur at Ara 9. Babya Devi, wife of Bhushan Sao , resident of Village and P.O.Pratappur, P.S. Sandesh, District- Bhojpur at Ara 10. Manti Devi, wife of Sri Raghunath Sao, resident of Village and P.O.Akhgaon, P.S.- Sandesh, District- Bhojpur at Ara 11. Rachna Devi, wife of Santosh Sah, resident of Village- Narayanpur, P.O.- Nasrathpur, P.S. Sandesh, District- Bhojpur at Ara 12. Raj Kumari Devi, wife of Gupteshwar Prasad, resident of VillageNarayanpur, P.O.- Nasrathpur, P.S.- Sandesh, District- Bhojpur at Ara 13. Laxminia Devi, wife of Sri Niwas Chaudhary, resident of VillageSaripur, P.O.- Akhgaon, P.S.- Sandesh, District- Bhojpur at Ara 14. Lalita Devi, wife of Raj Kumar Prasad, resident of Village- Bachri, P.O.- Akhgaon, P.S. Sandesh, District- Bhojpur at Ara 15. Shobha Devi, wife of Shivji Sao, resident of Village- Narayanpur, P.O.Nasrathpur, P.S.- Sandesh, District- Bhojpur at Ara 16. Shardha Devi, wife of Saroj Thakur resident of Village and P.O.Akhgaon, P.S. Sandesh, District- Bhojpur at Ara 17. Salma Begum, wife of Gafoor Ansari, resident of Village- Bachri, P.O.Akhgaon, P.S. Sandesh, District- Bhojpur at Ara .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. S.B.K. Manglam, Advocate For the Commission: Mr. Amit Shrivastava, Mr. Girish Pandey, Advocates For Respondent No.6: Mr. Shivanand Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH CAV ORDER

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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In the panchayat elections held in 2011 petitioner was elected as Mukhiya of Gram Panchyat Raj, Akhgaon, of Sandesh block in the district of Bhojpur. Her election was challenged by respondent no. 6 before the learned Munsif-II, Bhojpur at Ara in Election Petition No.3 of 2011, which has been allowed by the learned Munsif-II by his judgment dated 18.04.2013 (Annexure6), setting aside her election and declaring respondent no.6 as elected on the said post of Mukhiya. Hence this writ application by the petitioner before this Court.

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9 01-11-2013

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In her election petition (Annexure-2), respondent no.6 took the grounds that the writ petitioner (O.P. No. 5 in the election petition) had obtained more than 25 votes of dead persons as well as absentia votes on booth nos. 62, 63, 66 and 67; that counting of booths were finally declared at 2.15 PM in which she was found elected by 4 votes over writ petitioner, form 21 was prepared, sealed and signed by the Returning Officer, election certificate was also sealed and signed, but election was not declared for 3 hours, and, under political pressure, and on an application of the writ petitioner for recounting of votes, without any knowledge to her, result was manipulated in form 20(i) and 20(ii) by tampering, cutting and overwriting and the writ petitioner was illegally declared elected by margin of one vote by enhancing her votes

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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from 686 to 687 and reducing her (respondent no.6) votes from 690 to 686; and that her four votes of Table Nos. 60, 61 and 71 were wrongly declared invalid. Respondent no.6 also stated in her election petition that she had filed petition for recounting which was not entertained by the Returning Officer. Thereafter she had filed petitions before the District Magistrate Bhojpur and the State Election Commission. She also stated in the election petition that recounting was required by the court and result was required to be declared as counting done by the Returning Officer was vitiated and against the law.

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The writ petitioner and the official respondents appeared in the Election Case and filed their separate written statements (Annexures-3 & 4). Apart from the usual technical objections to the maintainability of the election petition, their defence, in a nut shell, was that the writ petitioner had not obtained any vote of any dead person or any absentia vote and the respondent no. 6 had not furnished any details in this respect in the election petition. They also denied all allegations of irregularities in the counting and stated that the counting was completed by 6 PM and writ petitioner was given the certificate of her election at 8 PM. It was denied that respondent no. 6 (election petitioner) had secured 4 votes more and it was asserted that there was an equality of votes

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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(690 each) between them and hence both parties applied for recounting of votes. Recounting was accordingly done in which writ petitioner was found having one vote more than the respondent no. 6. It is stated in the written statement of the official respondents that, as both the parties had secured equal number of votes (690), it became a matter of toss. However both parties filed separate petitions for recounting in terms of Rule 79 of the Rules. The matter was considered in presence of Observer and then recounting was ordered and held in presence of both the parties and their authorized agents, in which, finally, the writ petitioner was found to have secured 687 votes whereas the respondent no. 6 was found to have secured 686 votes.

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In view of the pleadings of the parties, the learned Munsif

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II, framed the following issues for determination in the case:-

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(i) Whether the election petition is maintainable ?

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(ii) Whether the election petitioner has valid cause of action and right to sue to file the election petition ?

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(iii) Whether there is improper acceptance of nomination paper of the parties is made in violation of Bihar Panchayat Act and Rule by R.O. ?

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(iv) Whether is interpolation in Para 20 (1) and 20(2) was done by R.O. in favour of OP. No.5 for declaration her for the post of mukhia Akhgaon Gram Panchayat and whether the declaration by

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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R.O. by margin of one vote of O.P. against the petitioner for the post of Mukhia and whether the declaration of O.P. No.5 for the post of mukhia, of the said Panchayat is void ?

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(v) Whether the valid votes of petitioner were wrongly declared invalid in recounting by R.O. ? (vi) Whether the election petitioner received majority of votes and entitled to be declared as elected mukhia of said gram Panchayat ? (vii) Whether the petitioner and O.P. No.5 received call number of valid votes and whether R.O. has jurisdiction not to adopt the process of toss and on the request of parties, whether he has jurisdiction of recounting in case of toss?

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(viii) Whether the petitioner is entitled to any other relief?

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In the hearing, the parties produced a large number of documentary evidences and examined a number of witnesses. Learned Munsif took up the issue nos. III, IV, V, VI and VII together for consideration and noticed the documentary evidences of the parties, the relevant legal provisions and the respective oral evidence in detail. He rejected the stand of the opposite parties (the writ petitioner and ors.) that the In-charge Munsif had no jurisdiction to hear the dispute and decide it. He also rejected their stand that since no relief of recounting was sought for in the election petition, this relief could not be granted. He also found

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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that the respondent no. 6 (the election petitioner) had not proved her case of writ petitioner having obtained votes of dead persons and absentia votes. Thereafter the learned Munsif took up the cases of the parties in respect of counting and recounting of the votes of the parties. After noticing their cases, learned Munsif, in paragraph 52 of the judgment, took note of the votes secured by the two parties at different stages in tabular form. He then held the respondent no. 6 (election petitioner) to have secured majority of votes and hence decided the issues in her favour. Learned Munsif, thereafter, decided issue no.III also in her favour and held her also entitled for being declared as elected Mukhiya. Issue nos. I, II and III were thus decided in favour of respondent no. 6 and orders were issued accordingly.

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Before proceeding with the hearing of the case further, this Court enquired from the counsels for the parties appearing in the case, whether they would require this Court to issue notice to the other non-appearing respondents also and then take up the matter for hearing after service of notices on them. Their stand, in response to the query of the Court, was that, since the other private respondents had not appeared before the Court below in the election dispute and had never contested, they were not required to be noticed and the appearing parties will not raise any objection in

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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this regard in future. In the circumstances, this Court proceeded with the hearing of the matter without issuing notice to the other non-appearing private respondents.

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Opening his arguments, in challenge to the judgment of the learned Court below, learned counsel for the writ petitioner submitted that the entire basis for the Court below, to set aside the election of the writ petitioner, was the table of votes contained in paragraph 52 of the judgment. He submitted that in this table of votes, the learned Court below has committed a blunder. He submitted that, in the first table of votes, as secured by the writ petitioner and the respondent no. 6 in the first round of counting, he has shown the writ petitioner to have secured 689 votes and the respondent no. 6 to have secured 690 votes and hence has come to the conclusion that the writ petitioner had secured less votes than the respondent no. 6 in the first round itself. He submitted that, by a mere mathematical calculation, the sum total of all the votes of the writ petitioner of all the booths secured in the first round comes to 690 and not 689, as wrongly shown in the said table by the learned Munsif. Thus in the first round of counting, both writ petitioner and respondent no. 6 secured 690 votes each. This necessitated draw of lot in terms of Rule 80 of the Bihar Gram Panchayat Election Rules, 2006. But before that step could be

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taken, the Returning Officer received separate applications on behalf of the petitioner as well as the respondent no. 6 for recounting of votes in terms of Rule 79 itself. Hence recounting was held, with the approval of the Observer, and, as shown in the second table in paragraph 52 of the impugned judgment itself, writ petitioner’s total votes polled in her favour came to 687 whereas the total votes polled in favour of respondent no. 6 came to 686 only. Hence writ petitioner was rightly declared elected. He submits that, thus, the entire premise and findings of the Court below was on the basis of an error of record committed by the Court itself. He submitted that the respondent no. 6 totally failed to prove before the Court below that earlier she had been found to have secured 4 votes more than the petitioner. In the circumstances, the fact that both had secured equal number of votes stands proved. He submitted that in any case, in view of the applications by both the parties for recounting, in terms of Rule 79, the same was rightly held. He submitted that Rule 79 precedes Rule 80. Hence, if an application for recounting is received by the Returning Officer, the draw of lot, in terms of Rule 80, has to necessarily wait. He submitted that since, respondent no. 6 herself, through her agent, had applied for recounting, it was not open to her to complain about it subsequently. He submitted that in the

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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circumstances, the principles of waiver and estoppel were applicable against respondent no 6.

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Learned Counsel for respondent no. 6, in reply, submitted that the votes secured by the parties have been noticed by the learned Court below in detail in paragraph 50 of the judgment. On the basis of the same, the Court below has rightly come to the conclusion that this respondent had secured more votes and her valid votes were illegally rejected. He submitted that this respondent had not applied for recounting before, and only when manipulation was done, after obtaining application from the writ petitioner for recounting, this respondent requested from different authorities for another recounting which was not accepted. He submitted that the application of the petitioner for recounting was not in accordance with Rule 79, as it did not disclose any ground for such a request. Hence the same was illegally accepted by the Returning Officer. He submitted that Rule 80 is mandatory, and the moment the Returning Officer found that both the candidates had secured equal number of highest votes, he had no option than to go for draw of lot in terms of the said Rule. In support of this submission he placed reliance on a judgment of the Apex Court in the case of Mandir Sita Ramji vs. Governor of Delhi (AIR 1974 SC 1868) and on an order of this Court in the case of Narendra

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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Sharma vs. State of Bihar [2008(3)PLJR691]. He submitted that, in the circumstances, the learned Court below has rightly found the election of the petitioner void on account of the election having become materially affected in terms of Section 139(1)(d)(iii)&(iv) of the Bihar Gram Panchayat Raj Act, 2006. He submitted that this respondent, in her election petition, had taken the stand that she was ready for recounting under the supervision of the Court and she is ready for it even today.

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To cross-check the submissions of learned counsel for the petitioner, this Court calculated and summed up the votes received by the petitioner in the first counting booth-wise and found that, indeed, the total of it comes to 690 and not 689. Thus, it is obvious that, in the first counting, both, writ petitioner and respondent no.6, had equal votes. Hence the learned Munsif apparently proceeded on wrong premise that in the first round of counting itself writ petitioner had less votes than respondent no. 6. Besides, this Court fails to appreciate as to how he has held in paragraph 53 that in the second round of counting also petitioner had less votes, when his second table in the preceding paragraph itself showed that petitioner’s tally came to 687 whereas the tally of respondent no. 6 came to 686. Booth-wise votes in the second counting shows that on six booths, the votes of petitioner came down by one, but

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Patna High Court CWJC No.10159 of 2013 (9) dt.01-11-2013

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on three booths her votes increased by one, thus bringing her tally to 687. On the other hand, in the recounting, the votes of respondent no. 6 came down by two votes on one booth and one each on two other booths, thus bringing down her tally to 686. In the third table, learned Munsif has mentioned the vote of respondent no. 6 on booth no. 71 as 93 whereas in second table it has been mentioned as 92. It is obvious that in the recounting, her one vote on this booth was found invalid, hence her tally on this booth came down to 92 from 93. Then how did learned Munsif mention her votes on this booth as 93 in the third table ? From the judgment it does not appear that he had looked to the ballots himself and had got a fresh recounting done in his presence and supervision. Then how did he add the one vote of respondent no.6 on booth no. 71 in the third table, when it was shown to have been rejected in the second counting ? Paragraph 53, the next paragraph to the paragraph of the judgment of learned Munsif containing the tables, does not make these things clear. In paragraph 53, learned Munsif begins with the observations, “That even in first counting the votes received by the petitioner and O.P. no. 5 without minusing and without adding further votes the petitioner got 690 votes and O.P.no.5 got 689 votes and in recounting without minusing and adding of further votes the votes received by the

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petitioner has got 743 votes whereas O.P.no.5 got 690 votes.” As shown earlier, the writ petitioner – O.P.no.5 of the election petition – had got 690 votes in the first counting and not 689. Then, from where respondent no. 6 – the election petitioner – got 743 votes in the second counting, as mentioned by the learned Munsif in paragraph 53 of his judgment, is not at all clear from his discussions in the paragraph.

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From the pleadings of the parties it is apparent that the main issue in dispute is fairness of counting of votes of the writ petitioner and of respondent no.6. Respondent No.6 had set up a case in her election petition that earlier she was found having 4 votes more than the writ petitioner and thus, elected for the post of Mukhiya. However, though the result was prepared, certificate was not handed over to her. Later on, with mala fide design, an application from the writ petitioner was obtained for recounting in which her 4 votes were wrongly rejected and the writ petitioner was declared elected by one vote. It is pleaded by her that this was done without any knowledge to her. As against this, the case of the writ petitioner before the learned Court below was that in the first round of counting itself it was found that both the parties were having equal votes. Thereafter both applied for recounting which was held and final tally of votes of the writ petitioner came down

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to 887 whereas that of respondent no.6 came down to 886. Hence writ petitioner was finally declared elected. In view of this rival stand, it was proper for the learned Court below to get votes of both the parties counted in its presence or under its supervision. Respondent no.6 had made specific pleadings in paragraph 23 of the election petition for the purpose. In this Court also her learned counsel has offered such a course. The writ petitioner in paragraph 25 of her written statement has opposed to it on the ground that it can be done only in respect of rarest of rare cases and not on merely asking of a party for it and that it must be pleaded in the election petition containing material facts and material particulars. Thus, it is clear that the writ petitioner has not denied and has also not challenged the power of the learned Munsif trying election petition to get recounting of votes done in his presence or under his supervision. Since the entire dispute revolves around the recounting of ballots and rejection of votes in the recounting, in the opinion of this Court, it was proper for the learned Munsif to call for the ballots and get them rechecked and counted in his presence or under his supervision. This Court is of the opinion that this is all the more necessary in view of the lack of clear finding of the learned Munsif in paragraph 53 of the judgment in respect of the votes secured by the two parties.

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In the circumstances, this Court considers it a fit case to be remitted back to the learned Court below for the limited purpose of calling for the ballots of the election, rechecking the same and for recounting in accordance with law in his presence and under his supervision.

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This writ application is, accordingly, disposed of. The judgment of the learned court below to the extent that election of writ petitioner has been held void and respondent no.6 has been held elected, is quashed and the matter is remitted back to the learned Court below for limited purpose of calling for the ballots of writ petitioner and respondent no.6 and get them rechecked and counted in his presence and supervision in accordance with law and thereafter dispose of the election petition positively within three months. It is made clear that other findings of the learned court below are not being interfered with since learned counsels for the parties have not challenged the same independently during course of their arguments before this Court.

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(Jayanandan Singh, J)

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B.T/-

Sunita Kumari v. The State Election Commission and Ors.

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Sunita Kumari v. The State Election Commission and Ors.

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