Pramila Devi Wife of Sri Rabindra Singh Vs. the State Election Commission Through the State Election Commissioner Through the State Election Commissioner and ors. - Court Judgment

Excerpt:
bihar panchayat election rules, 2006-rule 79-petitioner's election as mukhiya of gram panchayat set aside on recounting and respondent declared elected-no finding given by court with regard to necessity of recounting of votes-it was neither done in presence of parties nor is it mentioned that exhibits were being marked at instance of litigating parties-before recount is ordered, it is absolutely necessary for a party seeking recount to first file a proper application taking specific grounds to show that counting as done was vitiated-he has to make out a clear ground for interference-recounting was vitiated on ground of gross procedural impropriety causing grave prejudice to writ petitioner-impugned judgment and order set aside- petition allowed. indian evidence act, 1872-sections 74 to 78-bihar panchayat election rules, 2006-rule 79-recounting of votes-even if it is presumed that ballot papers are public documents it does not absolve parties from leading it in evidence and getting them marked as exhibits-only difference between a private document and a public document is with regard to proof thereof-a public document requires only a formal proof if it comes from government custody but, that does not authorise a court to impose leading them in evidence and marking them as exhibits-recounting by court is done in a totally different manner which does not mean that all others have to be excluded from process and to be mute spectators from outside room. - navaniti prasad singh, j.1. by this writ application, the petitioner has challenged the judgment and order passed by learned munsif ii, bhojpur at ara in election petition no. 6 of 2006 which was allowed on 15.04.2009 by which the petitioner's election as mukhiya of gram panchayat raj, hetampur in jagdishpur block of district - bhojpur has been set aside and on recounting, as done by the learned munsif, respondent no. 4 has been declared elected. the writ petition challenges the said judgment on grounds of grave procedural impropriety leading to wrong judgment.2. respondent no. 4, who had filed the election petition aforesaid and succeeded therein, has appeared and filed a counter affidavit, rejoinders have been filed. pleadings being complete, with consent of parties, the writ petition was heard for final disposal at this stage itself.3. the election having taken place for the post of mukhiya of the gram panchayat in question, the counting of votes was undertaken on 16.06.2006. upon counting, it was declared that petitioner having secured 796 valid votes and respondent no. 4 having obtained 792 votes, petitioner, by margin of 4 votes, was duly declared elected. it is alleged that no complaint against counting was made much less in writing. subsequently, respondent no. 4 challenged the election by way of election petition on grounds of irregularity in counting which vitiated the result as declared. petitioner states that for the purposes of requiring recount, there were only vague, general and uncertain allegations which should not have been entertained by the election tribunal. however issues, being framed, they were put to trial. in course of trial, while evidence was being recorded, the election petitioner moved application for calling for the ballot papers of certain wards for the purpose of recount alleging that initially on close of counting, respondent no. 4, the election petitioner, was declared elected winning by 4 votes but on the next day, when formal results were announced, petitioner was shown to have won by 4 votes and results accordingly declared. the election petitioner is said to have sent letters to the state election commission who subsequently sought explanations from the district election authorities but what happened thereafter, no one stated about that either in the written statement or in evidence. it appears while the evidence was being recorded, on 05.02.2009 noticing the facts aforesaid, the election tribunal called for the votes polled of certain wards as recorded in his order of the said date. in the said order, it is specifically noted that this is being done at this stage itself to save time at later stage if it was thought necessary to order a recount. in my view, with reference to the said order, it has rightly been submitted by the petitioner that the order was only tentative about recount and not a final verdict necessitating recount. this is moreso because, as evident from the order itself, the recording of evidence was still in progress. then we come to order dated 03.03.2009 from which it is clear that by that day, the evidence of the election petitioner had finished but no one was present on behalf of defendant and, as such, the court closed the evidence of defendant. it then records that pursuant to order dated 05.02.2009, records had been received which were public documents. they were, thus, directed to be exhibited and marked as such and the case was fixed for arguments. on 06.03.2009, on request of defendant, the order closing evidence was recalled and, thereafter, defendant witnesses were examined on several dates, virtually on day-to-day basis. on 25.03.2009, recording of evidence was completed and from 26.03.2009, the case was fixed for arguments on day-to-day basis. arguments were concluded on 02.04.2009 and on the same day, the case was fixed for judgment on 13.04.2009.4. thus seen, the events upto this date, disclose that the learned court had given no finding with regard to the necessity of recount of ballot papers/votes. he had delivered no judgment on this count. now what transpires on 13.04.2009 is what persuades this court to set aside all proceedings including the judgment thereafter.5. on 13.04.2009, which was the date fixed for judgment, parties filed their hazri (attendance) presumably awaiting judgment. instead of delivering judgment, the learned court proceeded with recount and itself marking various documents as exhibits on behalf of one party or the other. nowhere, it is mentioned that this was done in presence of the parties nor is it mentioned that the exhibits were being marked at the instance of the litigating parties. this has occasioned the writ petitioner to urge that in fact instead of delivering judgment, in absence of parties and without notice to parties, the court itself started counting the votes and retabulating the results which is not permissible and is contrary to all norms of free, fair and open trial. then, instead of delivering judgment, for lack of time, the judgment was then fixed for 15.04.2009 (14.04.2009 being a court's holiday). on 15.04.2009, judgment was delivered. in the said judgment, on basis of recount as done by the court itself, it was held that the writ petitioner had secured only 726 valid votes as against 792 votes by the election petitioner and the writ petitioner was in fact declared lost by 66 votes. consequentially, the election petition was allowed. the result in favour of the writ petitioner declaring him elected mukhiya was set aside and respondent no. 4 was declared elected as mukhiya.6. in response to the specific averment that the election tribunal, without notice, took upon itself to count the votes in absence of the parties on 13.04.2009. this is what has been said in paragraph-9 in the counter affidavit to the interlocutory application filed by the petitioner:9. that the present respondent has already filed counter affidavit in the instant writ wherein she has stated and again she is stating here that on 13.04.2009 both sides/parties were present and attendance was filed. the learned court of 02nd munsif, bhojpur expressed willingness to examine/tally the votes himself to maintain its secrecy and in order to reach a correct finding, however, he requested the parties to remain present. the ballots had already been called by earlier order. the learned 02nd munsif himself checked/examined and tallied the votes without any interference of parties. at the relevant time the counsel of present respondent and some others including the counsel of opposite party no. 3 (writ petitioner herein) were watching it from outside. it is important to mention that none of the parties raised any objection of any kind, whatsoever, when the learned court expressed willingness to himself examine and tally the votes and did it. as a lot of time was consumed in making a tally and verifying the votes with form 'kh' the judgment could not be delivered and the case was posted for judgment on 15.04.2009. from the order dated 13.04.2009 it would appear that judgment could not be passed due to paucity of time.7. this is an admission of what transpired in court on 13.04.2009 and clearly shows that petitioner's stand is correct. mere filing of hazri is not to be taken as presence of counsel or the party. hazris are filed before the court starts the day's business showing readiness to appear. the admission of respondent no. 4 in her counter affidavit, as quoted above, clearly shows that the learned election tribunal itself became a party to the litigation. that is not permissible.8. here, i may note an important aspect. in order dated 05.02.2009, a reference has been made by the learned munsif that the ballot papers, which have been called for, are public documents. again order dated 13.04.2009 would show that none of the parties led any of those documents in evidence or required them to be marked as exhibits yet the court, on its own, started marking them exhibits for one party or the other in absence of parties themselves. as per evidence act, even for the sake of argument, if he presumes that ballot papers are public documents, it does not absolve the parties from leading it in evidence and getting them marked as exhibits. the only difference between a private document and a public document is with regard to the proof thereof. a public document requires only a formal proof if it comes from government custody but that does not authorise a court to impose leading them in evidence and marking them as exhibits. recounting by court is done in a totally different manner which does not mean that all others have to be excluded from the process and to be mute spectators from outside the room. the counting, thus, done and the result declared on that basis in the judgment delivered on 15.04.2009 is, thus, clearly vitiated on grounds of gross procedural impropriety causing grave prejudice to the writ petitioner whose election has consequently been set aside. this itself, in my view, is sufficient to set aside the judgment impugned.9. there is yet another fallacy. before recount is ordered, it is absolutely necessary for a party seeking recount to first file a proper application taking specific grounds to show that counting, as done, was vitiated. he has to make out a clear ground for interference. then in course of trial, if such application is there and is permitted to be entertained, he is required to establish it by leading cogent evidence. then upon consideration of the evidence on record, the court has to give a finding first that on basis of the evidence on record, the counting is vitiated and recount is necessary. upon such a finding being given in course of the judgment, a recount can be taken up. the recount has to be in presence of the court and under the aegis of the court and the result of recount is to be declared by the court thereafter. regrettably, this entire procedure was not followed. initially, only to save time, the ballot papers were called for without there being a proper application in that regard and without there being evidence on record in support thereof as at that time evidence was still being recorded. then, instead of giving a finding that the counting stood vitiated in view of the evidence brought on record, straightway counting was done by the court to the exclusion of parties and court suo motu started marking the ballot papers etc as exhibits for one party or the other. this cannot be sustained.10. for the reasons aforesaid, the judgment and order impugned is set aside. considering the fact that the election tribunal had followed a wrong procedure, respondent no. 4 had nothing to do with it. as such, it would be inequitous to permit respondent no. 4 to suffer on that count alone. in my view, equities would balance if upon evidence on record, the case is reheard on the issues already formulated by the election tribunal and then it proceeds with judgment afresh. however, in the interest of justice, i direct that the learned munsif ii, who heard and delivered the judgment, would not now hear the matter. another munsif instead would take up the matter and conclude the matter within 2 months of production of a copy of this order before him.11. the writ petition is, accordingly, allowed.