Judgment:
Navin Sinha, J.
1. The petitioner was a contesting candidate for the post of Sarpanch., Gram Kutchery under Dharmdiha Gram Panchayat. The elections were notified on 25.2.2006. Polling was held and the votes counted on 16.6.2006. The petitioner was declared elected and the declaration certificate of her being elected as the winning candidate in Form 22 under Rule 82 of the Bihar Panchayat Election Rules 2006 (hereinafter referred to as 'the Rules') was issued in her name on 16.6.2006 itself.
2. The respondent No. 5 who lost to the petitioner filed an application on 16.6.2006 before the District Magistrate, Madhubani, complaining that she had secured more votes than the petitioner but that the petitioner had wrongly been declared elected. She prayed for recounting of votes. Recounting then followed leading to cancellation of the declaration certificate issued in the name of the petitioner under the Rules and the issuance of a fresh declaration certificate in favour of respondent No. 5.
3. Learned Senior Counsel Shri Birendra Prasad Verma appearing on behalf of the petitioner submitted that the process of election commenced from the issuance of the notification and ends with the declaration of the results. Thereafter the remedy of an aggrieved person lies in an election petition except in specified circumstances where a writ petition may also lie. Reliance is placed on a Division Bench decision of this Court in the case of Bhagwan Singh v. State of Bihar and Ors. 2004 (4) PLJR 482. After the declaration of the results the Returning Officer becomes functus officio and any order passed by him under the Rules will be without jurisdiction making it amenable to the orders of the writ Court. The petitioner cannot be relegated to the onerous remedy of an Election Petition which in the circumstances can never be an efficacious and expeditious remedy. In any event, recounting is a serious matter and is not to be lightly ordered. More so, without statutory authority and cannot be done in violation of the statutory procedure for the same. Learned Counsel relies upon Rule 76 to submit that after counting of votes the tabulations are to be entered in Form 20 candidate wise, with other details, and sealed. Thereafter Rule 79 provides for recounting on a written application by the candidate, his Election Agent or Counting Agent. Respondent No. 5 admittedly gave such an application not before the Returning Officer under Rule 79 but before the District Magistrate who was not empowered or authorised under the Rules to receive the same. Annexure A to the counter affidavit on behalf of Respondents 3 and 4 puts it beyond controversy that the application for recount was received after counting was complete and declaration certificate issued as apparent from the language of the document itself. There is no order of the Returning Officer under Rule 79(2) of his satisfaction for reasons in writing for recounting. The Returning Officer was empowered to order recounting before declaration under Rule 82 and make necessary correction in Form 20 accordingly. Thereafter no application for recounting can be entertained. The submission thus was that Rule 76 and 79 contemplate a situation where the election process is still on, counting being a part of the process. Objections and recounting were permissible till this stage. Rule 81 follows thereafter when the necessary declaration of the candidate having received highest votes is issued under Form 21 signed by the Returning Officer, with copies to the authorities concerned under Rule 81(2). Then followed the declaration of the result certifying the winning candidate in Form 22 under Rule 82 followed by its publication in the Gazette. Rules 76 and 79 operate at a different stage and different sphere than Rule 81 and 82. After a declaration is made of a candidate having been elected under Rule 82, there is no scope for recounting and the only remedy available to respondent No. 5 was to file an election petition under Section 137 read with 138(b) of the Bihar Panchayat Raj Act (hereinafter called 'the Act') in view of the provisions of Sections 139(1)(d)(iii) which deals with improper reception, refusal, rejection of any votes or reception of any vote which is void as one of the grounds for declaring an election to be void. This was akin to the provisions of Section 100(1)(d)(iii) of the Representation of Peoples Act 1951. The number of votes polled by a candidate were basically matter of evidence which could be better scrutinised in an election petition.
4. The counter affidavit on behalf of the respondents 3 and 4 is candid in its admission that the winning certificate under Rule 82 in Form 22 was issued in favour of the petitioner. It then goes on to admit that the Returning Officer on the directions of the District Magistrate ordered recounting. The counter affidavit is silent with regard to the satisfaction in writing of the Returning Officer under Rule 79(2) for recounting. It is asserted that notwithstanding the declaration certificate issued in favour of the petitioner under Rule 82, the election process was still on in view of the directions of the District Magistrate.
5. Learned Counsel for Respondent No. 5 urged that the Returning Officer did not receive her complaint at the time of counting and therefore she had to petition the District Magistrate. No counter affidavit has been filed on her behalf. There is no material before this Court to accept the submission except a bald verbal assertion to which this Court does not consider proper and necessary to lend much credence, which in any event is inconsequential in the circumstances.
6. The word 'election' has been succinctly defined by the Apex Court in Election Commission of India v. Ashok Kumar : AIR2000SC2979 , at paragraph 14 to mean and include the entire process from the issuance of notification to the declaration of the result. Section 137 of the Act provides that the election to a Gram Panchayat under the Act can be questioned only before the Munsif of competent jurisdiction. Section 138(b) bars challenge to an election except by an election petition in view of the mandate of Article 243(O) of the Constitution. Section 139(1)(b)(iii) which specifies the grounds for declaring an election to be void, inter alia includes the improper reception, refusal or rejection of any vote or reception of any vote which is void, as a ground. The question that arises for consideration by this Court is, that notwithstanding the aforesaid provisions of law was the Returning Officer justified in ordering a recount after issuance of the winning declaration under Rule 82 and setting aside the same with regard to the petitioner which otherwise could be a subject matter of a suit under Section 139(1)(d)(iii) of the Act. It has rightly been submitted on behalf of the petitioner that Rule 76 and 79 operate at a different stage and at a different sphere vis a vis Rule 81 and 82. The counting of votes results in recording the same in Form 20 inter alia for the post of Sarpanch, candidate wise along with other details which is then sealed. Rule 77 provides that the counting has to be continuous. If it is interrupted the papers have to be sealed at the intermediate stage also when the candidate or his agent can also put their seal. Rule 79(1) vests the power of recounting in the Returning Officer on an application by the contesting candidate or his agent. The Returning Officer under Rule 79(2) is required to record his reasons in writing of his satisfaction on the application made for recount.
7 It is settled law that recounting of votes is a serious matter and is not to be resorted to lightly and hence the aforesaid statutory restriction prescribing the procedure for exercise of the power. The conditions pre-requisite for recounting as noticed in Baldev Singh v. Shinder Pal Singh : (2007)1SCC341 are;
(1) If there is a prima facie case;
(2) Material facts thereof are pleaded;
(3) Recounting cannot be directed by way of a fishing or roving enquiry and that
(4) Such an objection had been taken recourse to. The application of Respondent No. 5 at Annexure 'A' to the counter affidavit does not meet the requirements as it makes a bald assertion of the respondent having allegedly secured more votes without anything further regarding any illegality. The fact that this application and the order therefore is to be made at a stage prior to the issuance of winning certificate under Rule 82 is apparent from a reading of Rule 79(iii) which states that after such recounting the declaration candidate wise made in Form 20 under Rule 76(2) shall be amended accordingly. Thereafter Rule 79(4) stipulates no application for recounting shall be entertained. It is apparent that at this stage the issue of counting attains finality. What follows thereafter is the next stage of the declaration of result of the winning candidate in Form 21 under Rule 81 followed by the Declaration Certificate in Form 22 under Rule 82. The latter action can be questioned only in an election petition in view of the provisions of the Act as noticed above.
8. In the case of Krishna Ballabh Prasad Singh v. SDO Hilsa cum Returning Officer : AIR1985SC1746 , the Returning Officer cancelled the declaration certificate of election issued in Form 22 under Rule 66 of the Conduct of Election Rules, 1961, under the Representation of Peoples Act, 1951, granted to the petitioner on discovering that ballot papers of one booth had not been counted. A declaration in Form 21C was then prepared declaring the 4th respondent to be the elected candidate and a fresh certificate in Form 22 was then issued in his favour. This was challenged. The aforesaid provisions are similar to that presently under consideration. The question that fell for consideration was if Article 329(b) of the Constitution barred the writ petition. The High Court thought so. The argument was that the process of election was over when the certificate of election in Form 22 was granted to the petitioner certifying that he was elected and therefore the question of the petitioner filing an election petition did not arise. Repelling the argument the Apex Court observed that the result of the election has to be declared in the manner prescribed and in no other manner. The Supreme Court rejected the challenge on the ground that before issuance of the certificate under Form 22 the declaration in Form 21C had not been made and therefore the process of election could not be stated to have come to an end. Form 21C was to be issued under Rule 64 of the Conduct of Election Rules which is similar to Rule 81 presently under consideration. It is not in controversy that in the present case the statutory procedure before issuance of Form 22 has been fully complied with.
9. In the facts of the present case, this Court cannot but help notice to additional features. Admittedly recounting has been done by the Returning Officer, who is the statutory authority, not on his own satisfaction for reasons in writing but on the directions of the District Magistrate. The law is well settled that where a statutory authority exercises his statutory powers at the dictates of his superiors the action is vitiated in law. Reference may be made to paragraph 26 of judgment of the Apex Court in Bahadur Singh Lakhubhai Gohil v. Jagdishbhai Kamalia and Ors. : (2004)2SCC65 . It is also not in controversy that there is no order of the Returning Officer under Rule 79(2) recording his satisfaction of a recount.
10. This Court on the aforesaid discussions arrives at the conclusion that the cancellation of the declaration certificate of winning issued in favour of the petitioner in Form 22 under Rule 82, in any event of the matter, looked at from either point of view, is illegal. For the same reason the consequent issuance of a declaration certificate under Rule 82 in favour of respondent No. 5 is likewise vitiated. The remedy if any of respondent No. 5 against the declaration made in favour of the petitioner lay only in an election petition. The certificate in Form 22 in favour of respondent No. 5 was therefore without jurisdiction, void and is none est in law.
11. The next questions which arises for consideration as urged by the State is that the petitioner has in the meantime filed an election petition No. 19/2006 for setting aside the winning declaration certificate of respondent No. 5 issued under Rule 82 before the Court of the Competent Munsif. Shri Verma on behalf of the petitioner retorts to submit that the suit was filed after the institution of the writ petition with the leave of the Court as granted by order dated 12.7.2006. In view of the admitted facts in the case no useful purpose will now be served in pursuing the suit as that will only lead to multiplicity of proceedings lending an advantage to respondent No. 5 to perpetuate an illegality. The suit was filed as an abundant caution before the appearance and filing of counter affidavit of the respondents. There are no disputed facts and hence the petitioner may well withdraw the suit in which in any event is at a very nascent stage.
12. The Hon'ble Supreme Court in the case of S.J.S. Business Enterprises (P) Ltd v. State of Bihar in : AIR2004SC2421 was considering the maintainability of a writ petition in view of the pendency of a suit. The Apex Court held;
the existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition....
Even when an alternative remedy has been availed of by the parties but not pursued that the party could prosecute proceedings under 226 for the same relief's.
13. The present writ petition was instituted earlier in time to the suit. There are no disputed facts requiring evidence. The powers of the writ court are plenary as held in the case of K. Venkatchalam v. A. Swamickan : [1999]2SCR857 , when repelling the objection to the maintainability of as writ petition in place of an election petition, the Apex Court held at para 27;. Article 226 of the Constitution is couched in the widest possible term and unless there is a clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of Constitutional provisions and when recourse can be had to the provisions of the act for appropriate relief.
14. The reluctance of the writ court is to interfere with the election process impeding the smooth flow and completion of the Elections. Such is not the case presently.
15. The writ application is therefore allowed. The cancellation of the winning certificate issued in favour of the petitioner under Form 22C is accordingly set aside. The certificate issued subsequently in Form 2 in favour of Respondent No. 5 is also set aside. The petitioner is declared to be the winning candidate in whose favour the certificate under Form 22C had been issued for the post of Sarpanch, Gram Kutchery, Dharamdiha Gram Panchayat. The petitioner is reinstated to her position as the elected Sarpanch. Let it be so done forth with.
No costs.