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TMI Blog2004 (4) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUDGMENT S.B. SINHA, J: The extent of jurisdiction of election tribunal to direct recounting of votes is the primal question involved in this appeal which arises out of a judgment and order dated 18.11.2002 passed by a Division Bench of the High Court of Judicature at Patna in L.P.A. No. 1149/2002 dismissing the appeal arising out of an order dated 7.10.2002 passed in Writ Petition marked as CWJC No. 5004/2002 whereby and whereunder a learned Single Judge of the High Court allowed the writ petition filed by the respondent herein questioning an order of the election tribunal dated 20.10.2001. BACKGROUND FACTS: The private parties hereto contested an election for the post of Mukhiya of Raj Gamhariya, Gram Panchayat. The said election was held on 19.4.2001 and the votes polled therein were counted on 20.5.2001. The contention of the appellant was that the returning officer had informed him that he had secured 900 votes out of which 150 had been declared invalid and, thus, he got 670 valid votes whereas the respondent Mahendra Rai had secured only 622 votes. However, when the result was finally declared on 21.5.2001, the 4th respondent herein was declared elected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin his jurisdiction to direct recounting of votes upon satisfying itself the necessity therefor and in that view of the matter the High Court should not have interfered with the said judgment. Mr. Sharan would submit that the learned Munsif had assigned valid and cogent reasons in support of his order upon taking into consideration the pleadings of the parties and the evidences brought on records and in that view of the matter the High Court erred in setting aside the same. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the 4th respondent, on the other hand, would contend that the High Court has rightly proceeded on the premise that the pleadings of the appellant being vague and general in nature, no case was made out for recounting of votes. The learned counsel pointed out that prayer for recounting of votes made by the appellant was on the basis that he had filed a proper application before the returning officer but he failed to prove the said fact nor brought on the records of the case a copy thereof. As regard the findings of the learned Munsif to the effect that the Ex. A/20 contained cutting and over-writing, the learned counsel would submit that no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting. ANALYSIS OF REUIREMENTS OF LAW : The law relating to recounting of votes is now well- settled. The provisions of the Act and the rules framed thereunder provide that in relation to an election petition the provisions of the Code of Civil Procedure would apply. An election petition, therefore, must contain coincise statement of material facts. It is well-settled that the question as to what would constitute material facts would depend upon the facts and circumstances of each case. We have been taken through the averments made in the election petition. The learned Single Judge of the High Court in his judgment dated 7.10.2002 upon noticing paragraphs 6 to 11 and 17 of the election petition held: "10. From the pleadings of respondent No. 4, it is manifest that the allegations made by him were quite vague and did not come up to the stringent standards laid down by the Supreme Court." The appellant has not produced before us a copy of the affidavit affirmed in support of the Election Petition to show as to how the averments made in the Election Petition were verified. Our attention has also been drawn to paragraphs 19 to 21 by Mr. Sharan which read as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state as to what materials were brought on record to show that there had been illegal reception of votes in favour of the opposite party. Reference to Ex. 4/12 only shows certain interpolation but whether the same had materially affected the result or not had not been taken into consideration. Mr. Dwivedi is right in pointing out that whereas the appellant could have claimed 100 more votes on the basis thereof, 509 votes polled by the 4th respondent had been brought down to 122 votes. There is also nothing on record to show that as to how and in what manner D.W.-9 and D.W.-12 had supported the allegations made by the petitioner. The learned Munsif despite having opined that an order for inspection of ballot papers cannot be granted to support vague pleas and not supported by material facts but failed to point out as to which averments made by the appellant could be accepted as disclosing material facts, on the basis whereof an order for recounting could be passed. The said order dated 20.10.2001 being not supported by any cogent or valid reasons could not have been sustained. It is well-settled that an order of recounting of votes can be passed when the following conditions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory requirements. RULE 79 OF BIHAR PANCHAYAT ELECTION RULES, 1995 - WHETHER MANDATORY OR DIRECTORY Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for recounting of votes. Rule 79 unlike rules framed by other States does not say that such an application would not be maintainable after declarations of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time. The very fact that Sub-rule (3) of Rule 79 provides for amendment of the result relating to the votes polled by the respective candidates and as, such amended result is required to be announced in the prescribed form under Sub-rule (2) of Rule 79, the same itself is a pointer to the fact that even after announcement of result for recounting an application would be maintainable. It may be true that only because such an application had not been filed before the returning officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. Counting of ballot papers in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of evidence and consideration of the alleged irregularities in the counting..." A 3-Judge Bench, however in Sohan Lal (supra) while considering the provisions of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 and the Rule 80 of the Rules framed thereunder held: "13. In view of Section 122 and the rules, we are unable to agree with the ratio laid down in Ram Rati's case. It is not correct to hold that, in an election petition, after the declaration of the result, the Court or Tribunal cannot direct recounting of votes unless the party has first applied in writing for recounting of votes. There is no prohibition in the Act or under the rules prohibiting the Court or Tribunal to direct a recounting of the votes. Even otherwise a party may not know that the recounting is necessary till after result is declared. At this stage, it would not be possible for him to apply for recounting to the Returning Officer. His only remedy would be to file an Election Petition under Section 122. In such a case, the Court or the Tribunal is bound to consider the plea and where case is made out, it may direct recount depending upon the evidence led by the parties. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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