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Chandrika Prasad Yadav v. State Of Bihar And Others
Factual and Procedural Background
The appeal concerns the validity of an Election Tribunal’s order directing a re-count of votes cast for the post of Mukhiya of Raj Gamhariya Gram Panchayat, Bihar. The election was held on 19-04-2001 and counted on 20-05-2001. Initial information allegedly showed the appellant leading, yet the official result declared on 21-05-2001 returned the 4th respondent as elected by 32 votes (702 to 670).
The appellant’s application for re-count before the Returning Officer was purportedly ignored, prompting an election petition before the Munsif-cum-Election Tribunal at Raxaul. On 20-10-2001 the Tribunal ordered inspection and re-count. When the 4th respondent’s writ petition against that direction was withdrawn, re-count was conducted on 23-03-2002, reversing the result (671 to 667 in favour of the appellant). The Tribunal consequently allowed the election petition on 06-04-2002.
The 4th respondent challenged this in CWJC No. 5004/2002; a Single Judge of the Patna High Court set aside the Tribunal’s decision on 07-10-2002, holding that the order for re-count was unsustainable. The appellant’s Letters Patent Appeal failed on 18-11-2002. The present appeal is by special leave against that dismissal.
Legal Issues Presented
- Whether, and to what extent, an Election Tribunal may direct re-counting of votes in the absence of a prior written application for re-count before the Returning Officer under Rule 79 of the Bihar Panchayat Election Rules, 1995.
- Whether the pleadings and evidence placed before the Tribunal satisfied the established legal standards for ordering a re-count.
Arguments of the Parties
Appellant’s Arguments
- The High Court wrongly relied on Ram Rati v. Saroj Devi (1997) 6 SCC 66, a decision overruled by Sohan Lal v. Babu Gandhi (2003) 1 SCC 108, which clarifies that a prior application to the Returning Officer is not mandatory.
- In a democracy the majority must prevail; hence, once the Tribunal was satisfied about irregularities, it was competent to direct re-count.
- The Munsif’s order was supported by cogent reasons derived from pleadings and evidence, and judicial interference with that discretionary order was unwarranted.
Respondent’s Arguments
- The appellant’s pleadings were vague and lacked the specific material facts required for a re-count; no copy of the alleged application to the Returning Officer was produced.
- Allegations such as overwriting in Form 20 and other documents were never pleaded in the election petition.
- Even if 100 additional votes were credited to the appellant, over 400 votes for the respondent were treated as invalid; hence no prejudice was shown.
- Though not strictly mandatory, an application under Rule 79 assists the Tribunal; its absence is a strong factor against granting a re-count.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Rati v. Saroj Devi, (1997) 6 SCC 66 | Held it mandatory for an election petitioner to seek re-count before the Returning Officer. | Referenced as the basis on which the High Court proceeded; Supreme Court notes it has been overruled. |
| Sohan Lal v. Babu Gandhi, (2003) 1 SCC 108 | Overruled Ram Rati; recognised that courts/tribunals may order re-count even without prior application to RO. | Cited by appellant; Court discussed but found that, notwithstanding this ruling, other statutory and evidentiary deficiencies invalidated the re-count order. |
| M. Chinnasamy v. K.C. Palanisamy, (2004) 6 SCC 341 | Tribunal must record positive findings and cannot allow evidence beyond pleadings; high standard for re-count. | Relied on to emphasise need for explicit, material pleadings and stringent proof before ordering re-count. |
| Mahender Pratap v. Krishan Pal, (2003) 1 SCC 390 | Degree of proof for re-count must be “very high”. | Cited to underline the strict evidentiary threshold not met by the appellant. |
| Mukand Ltd. v. Mukand Staff & Officers Assn., (2004) 10 SCC 460 | Reaffirmed principles on admissibility of evidence vis-à-vis pleadings. | Referenced in support of rejecting evidence inconsistent with pleadings. |
| Vadivelu v. Sundaram, (2000) 8 SCC 355 | Re-count should not be ordered when pleadings are vague and no material impact on result is shown. | High Court relied on this case; Supreme Court agreed that its ratio applies to present facts. |
| P.T. Rajan v. T.P.M. Sahir, (2003) 8 SCC 498 | Determination of whether a statutory provision is mandatory or directory depends on legislative purpose. | Quoted to explain that Rule 79’s character must be assessed contextually. |
Court's Reasoning and Analysis
The Supreme Court scrutinised the election petition and found the pleadings “vague and general,” lacking specific material facts on how valid votes were wrongly rejected or invalid votes accepted. The appellant’s alleged prior request for re-count before the Returning Officer was neither produced nor proved, undermining a key factual premise.
Reviewing the Munsif’s order dated 20-10-2001, the Court observed that it failed to:
- Analyse evidence booth-wise or indicate how alleged interpolations affected the election result.
- Identify which pleadings met the threshold of “material facts.”
- Satisfy the four recognised pre-conditions for re-count: a prima facie case, detailed pleadings, avoidance of roving inquiry, and substantiated objection.
The Court reiterated that while Rule 79 is not an inflexible bar, it serves a “salutary purpose.” Where a statutory mechanism for re-count exists, failure to invoke it—without a cogent explanation—is a significant factor against later judicial interference.
By applying the principles distilled in Chinnasamy, Mahender Pratap, and Vadivelu, the Court held that the Tribunal’s direction amounted to an impermissible fishing expedition that compromised ballot secrecy and ignored the high evidentiary standard required for re-counting.
Holding and Implications
APPEAL DISMISSED. The Supreme Court affirmed the Patna High Court’s judgment, thereby restoring the original election result in favour of the 4th respondent and dismissing the accompanying contempt petition.
Implications: The decision reinforces stringent pleading and evidentiary requirements for re-counts in Panchayat elections and underscores that, although a prior application under Rule 79 may not be legally mandatory, failure to use this statutory remedy can weigh heavily against granting re-count relief. No new legal principle was created, but existing standards were reaffirmed and applied.
S.B Sinha, J. The extent of jurisdiction of Election Tribunal to direct re-counting of votes is the primary 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 LPA No. 1149 of 2002 dismissing the appeal arising out of an order dated 7-10-2002 passed in writ petition marked as CWJC No. 5004 of 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
2. 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 securing allegedly 32 more votes than the appellant herein. The total votes polled by the appellant was shown as 670 and votes polled by the 4th respondent was shown as 702.
3. The appellant allegedly moved an application for re-counting of votes before the Returning Officer but the same was not entertained. The appellant thereafter filed an election petition questioning the election of the 4th respondent herein before the learned Munsif, Raxoul, East Champaran primarily on the ground of irregularities in counting of votes. Before the Election Tribunal, the parties adduced their respective evidence whereafter the learned Munsif by an order dated 20-10-2001 directed inspection and re-counting of ballot papers; pursuant to or in furtherance whereof the Returning Officer, East Champaran was directed to produce the ballot papers.
4. Aggrieved thereby and dissatisfied therewith, a writ petition was filed by the 4th respondent herein which was, however, withdrawn. Re-counting of the ballot papers was held on 23-3-2002 as a result whereof the appellant was said to have secured 671 votes; whereas the 4th respondent secured 667 votes. The election petition, therefore, thereafter was allowed by a judgment and order dated 6-4-2002. The 4th respondent being aggrieved by and dissatisfied therewith filed a writ petition before the Patna High Court which was marked as CWJC No. 5004 of 2002. By an order dated 7-10-2002, the said writ petition was allowed whereagainst a letters patent appeal was filed by the appellant herein which was dismissed by a Division Bench of the High Court. Hence this appeal by special leave.
Submissions
5. Mr Amarendera Sharan, learned Senior Counsel appearing on behalf of the appellant would submit that the High Court committed a manifest error in passing the impugned judgment purporting to rely upon or on the basis of the decision of this Court in Ram Rati v. Saroj Devi (1997) 6 SCC 66 wherein it has been held that it is mandatory for the election petitioner to file an application for re-counting of votes before the Returning Officer in terms of the Election Rules, although the same has since been overruled by a three-Judge Bench of this Court in Sohan Lal v. Babu Gandhi (2003) 1 SCC 108, JT (2002) 9 SC 474.
6. The learned counsel would urge that as in a democracy the rule of majority should prevail, the learned Munsif was within his jurisdiction to direct re-counting of votes upon satisfying itself of the necessity therefor and in that view of the matter the High Court should not have interfered with the said judgment.
7. 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 evidence brought on record and in that view of the matter the High Court erred in setting aside the same.
8. 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 re-counting of votes. The learned counsel pointed out that prayer for re-counting 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 regards the findings of the learned Munsif to the effect that Ext. A-20 contained cutting and overwriting, the learned counsel would submit that no such case had been made out in the election petition. It was pointed out that in any event having regard to the fact that 100 valid votes had not been counted so far as the appellant is concerned, and in fact more than 400 votes polled by the 4th respondent herein were held to be not valid and, thus, the appellant herein was not prejudiced at all.
9. Drawing our attention to the judgment of the learned Single Judge as also the Division Bench of the High Court, the learned counsel would urge that the High Court analysed the pleadings of the appellant made in his election petition and came to the conclusion that the same are absolutely vague and general in nature and no reliance thereupon could have been placed by the learned Munsif. Filing of an application before the Returning Officer for re-counting of votes may not be mandatory but Mr Dwivedi would argue that the same goes a long way to show as to on what basis the re-counting was sought for. The order of the Returning Officer allowing or rejecting the same, the learned counsel would contend, be of great assistance to the Election Tribunal to judge the correctness thereof.
Statutory provisions
10. Section 140 of the Bihar Panchayat Raj Act, 1993 mandates that the election of Mukhiya shall not be called in question before any forum except by way of an election petition. The State of Bihar in exercise of its power conferred upon it under Section 121 of the said Act framed rules known as the Bihar Panchayat Election Rules. It is not in dispute that various provisions exist as regards rejection or acceptance of votes and the right of a candidate or his authorised agent to question the same by filing an appropriate application therefor before the prescribed authority. Rule 79 of the Rules provides that the candidate or in his absence his agent or his counting agent can file an application to the election officer or the officer(s) authorised by him praying for re-counting and the basis therefor. On receipt of such an application, the election officer can accept either in whole or in part the same or reject the same wherefor reasons are required to be assigned. In the event of the election officer accepting either in whole or in part such a prayer of the candidate, he would re-count the votes whereafter the result or the number of votes polled may be amended. However, no application would be accepted for further re-counting.
Analysis of requirements of law
11. The law relating to re-counting 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 concise 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.
12. 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 paras 6 to 11 and 17 of the election petition held:
“10. From the pleadings of Respondent 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.”
13. 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.
14. Our attention has also been drawn to paras 19 to 21 by Mr Sharan which read as under:
“19. That, in all 16 booths were in the electoral area of Gram Panchayat, Raj Gamhariya Kala, vide Booths 106 to 121.
20. That, Defendant 1 has wrongly been declared elected, by a margin of 32 votes, as against the plaintiff.
21. That, as a matter of fact, the plaintiff has got, nearabout 200 excess valid votes than Defendant 1.”
15. The averments made in the said paragraphs do not improve the appellant's case inasmuch as therein also no material fact has been averred as to how and in what manner the so-called valid votes were kept out of consideration or invalid votes had been taken into consideration. The appellant in para 11 of the election petition categorically stated that a request was made to the Returning Officer for re-counting of the votes but he did not pay any heed thereto. In the aforementioned situation, it was obligatory on the part of the appellant to prove the said fact. The averments made in the election petition clearly go to show that the appellant was aware of his right to file an appropriate application before the Returning Officer praying for a re-counting. If the said application was not entertained, he should have proved the said fact by bringing on record the original application which was refused to be accepted or a copy thereof. He should have also adduced evidence in that behalf before the learned Munsif.
16. In his order dated 20-10-2001, the learned Munsif held:
“In view of documentary as well as oral evidence I find that there are sufficient materials available on record to show that allegation of the petitioner, about illegal reception of votes in favour of opposite party and mischief in preparation of result are clearly evidence and euitch (sic) about something hidden. In Pvt (sic) 4/12 G.P Mahendra Rai was shown to have got 81 votes but on the very first look Form 20(A/12) shows that 31 was made 81 and in Ext. A-13 total votes 237 was changed into figure 287. There is no initial in any cutting likewise in Ext. A-20 Mahendra Rai was shown to have got 509 votes but it was out (sic) and 122 votes have been shown in favour of Mahendra Rai. There is no initial of any officer on this cutting too. In oral evidence DW 9 and DW 12 have supported the petitioner's allegations.”
17. The learned Munsif in his order dated 20-10-2001 failed to analyse the evidence adduced by the parties. He also did not 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 Ext. A-12 only shows certain interpolation but whether the same had materially affected the result or not had not been taken into consideration.
18. 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 DW 9 and DW 12 had supported the allegations made by the petitioner.
19. 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 re-counting could be passed. The said order dated 20-10-2001 being not supported by any cogent or valid reasons could not have been sustained.
20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled:
(i) a prima facie case;
(ii) pleading of material facts stating irregularities in counting of votes;
(iii) a roving and fishing inquiry shall not be made while directing re-counting of votes; and
(iv) an objection to the said effect has been taken recourse to.
21. The requirement of maintaining the secrecy of ballot papers must also be kept in view before a re-counting can be directed. Narrow margin of votes between the returned candidate and the election petitioner by itself would not be sufficient for issuing a direction for re-counting.
22. In M. Chinnasamy v. K.C Palanisamy (2004) 6 SCC 341, (2003) 10 Scale 103 (2) this Court upon noticing a large number of decisions held that it is obligatory on the part of the Election Tribunal to arrive at a positive finding as to how a prima facie case has been made out for issuing a direction for re-counting holding:
“Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only because a re-counting has been directed, it would not be held to be sacrosanct to the effect that although in a given case the court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well-settled principle of law that evidence adduced beyond the pleadings would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The court at a later stage of the trial as also the appellate court having regard to the rule of pleadings would be entitled to reject the evidence wherefor there does not exist any pleading.”
23. It was further held that for the said purpose the Tribunal must arrive at a finding that the errors are of such magnitude which would materially affect the result of the election. As regards standard of proof, this Court held:
“44. The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of re-counting of votes must be of a very high standard and is required to be discharged. (See Mahender Pratap v. Krishan Pal (2003) 1 SCC 390.)”
(See also Mukand Ltd. v. Mukand Staff & Officers Assn. (2004) 10 SCC 460, JT (2004) 3 SC 116)
24. The order of the learned Munsif did not satisfy the statutory requirements.
Rule 79 of the Bihar Panchayat Election Rules, 1995 — whether mandatory or directory
25. Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for re-counting of votes. Rule 79 unlike rules framed by other States does not say that such an application would not be maintainable after declaration 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 an application for re-counting 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 re-counting but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. Counting of ballot papers in terms of the rules takes place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. As noticed hereinbefore, in a given case, an application for re-counting either before announcement of the result or thereafter, would be maintainable. Once an application is filed by an agent or a counting agent or the candidate himself pointing out the irregularities committed by the officers appointed for counting the ballot papers, immediate redressal of grievances would be possible. As indicated hereinbefore, while filing such an application the basis for making a request for re-counting of votes is required to be disclosed. The Returning Officer is statutorily enjoined with a duty to entertain such an application, make an inquiry and pass an appropriate order in terms of sub-rule (2) of Rule 79 either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient or cogent reasons. In the event such an application is allowed either in whole or in part, he is statutorily empowered to amend the results also.
26*. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for re-counting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for re-counting has been made out.
27. In Ram Rati (1997) 6 SCC 66 a two-Judge Bench of this Court while interpreting Rule 76 of the M.P Panchayat Elections Rules, 1994 held:
“In the light of the mandatory language of Rule 76 of the Rules, it is incumbent upon a candidate or an agent, if the candidate was not present, to make an application in writing and give reasons in support thereof, while seeking re-counting. If it is not done, then the tribunal or the court is not empowered to direct re-counting even after adduction of evidence and consideration of the alleged irregularities in the counting.”
28. A three-Judge Bench, however in Sohan Lal (2003) 1 SCC 108, JT (2002) 9 SC 474 while considering the provisions of the M.P Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 and Rule 80 of the Rules framed thereunder, held:
“It is not correct to hold that, in an election petition, after the declaration of the result, the court or tribunal cannot direct re-counting of votes unless the party has first applied in writing for re-counting of votes. There is no prohibition in the Act or under the Rules prohibiting the court or tribunal to direct a re-counting of the votes. Even otherwise, a party may not know that the re-counting is necessary till after the result is declared. At this stage, it would not be possible for him to apply for re-counting 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 a case is made out, it may direct re-count depending upon the evidence led by the parties. In the present case, there was obvious error in declaring the result. We, therefore, hold that the ratio laid down in Ram Rati case (1997) 6 SCC 66 is not correct.”
29. In Vadivelu v. Sundaram (2000) 8 SCC 355, AIR 2000 SC 3230 wherein this Court while considering a pari materia provision contained in the T.N Panchayats Act, 1994 as also upon noticing a large number of decisions observed:
“26. The appellant election petitioner could not make out a case for re-count of votes. He filed the application for re-count before the Returning Officer only after the declaration of result and that was rightly rejected by the Returning Officer. The appellant had no case that the illegality or irregularity, if any, committed had materially affected the result of the election. Taking all the aspects into consideration, we are of the view that the learned Single Judge was perfectly justified in holding that the Election Tribunal erred in appointing a Commissioner and ordering the re-count of votes. The counsel for the appellant contended that the powers of the revisional court are not as wide as the powers of the appellate court and, therefore, the learned Single Judge should not have set aside the order passed by the Election Tribunal. We do not find any force in this contention. When there is error of jurisdiction or flagrant violation of the law laid down by this Court, by exercising the revisional powers, the court can set aside the order passed by the Tribunal to do justice between the parties. The illegality committed by the Election Tribunal has been corrected by the revisional order. We find no merit in the present appeal and the same is dismissed.”
30. Vadivelu (2000) 8 SCC 355, AIR 2000 SC 3230 was relied upon by the High Court and in our opinion having regard to the averments made by the appellant in his election petition, the ratio of the said decision applies to the fact of the present case also.
31. The question as to whether a statute is directory or mandatory would not depend upon the phraseology used therein. The principle as regards the nature of the statute must be determined having regard to the purpose and object the statute seeks to achieve. (See P.T Rajan v. T.P.M Sahir (2003) 8 SCC 498, (2003) 8 Scale 165.)
Conclusion
32. For the reasons aforementioned, we are of the opinion that the judgment of the High Court does not call for any interference. The appeal as also the contempt petition are accordingly dismissed. No costs.
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