Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.318 of 2013 ====================================================== Smita Sharma, Wife Of Sri Awadhesh Sharma, Resident Of Village + P.O. - Morwa, P.S. - Mushrigharari, District - Samastipur Versus .... .... Petitioner/s 1. The State Of Bihar through District Magistrate, Samastipur 2. The State Election Commissioner, State Election Commission (Panchayat) Bihar Sone Bhawan, 3rd Floor, Patna - 1 3. The Sub-Divisional Officer, Samastipur, District - Samastipur 4. The Block Development Officer Morwa, District - Samastipur 5. Mira Devi W/O Sri Dinesh Rai R/O Village + P.O. - Nikaspur, P.S. - Tajpur, District - Samastipur .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajesh Kumar For the Commission : Mr.Amit Shrivastava, Adv. Mr.Girish Pandey, Adv. For the State : Mr. Kumar Vikram, AC to SC-10. For respondent no.5 : Mr. S.B.K.Mangalam, Adv. Mr.Ravi Ranjan, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH CAV ORDER 8 22-10-2013 Petitioner has filed this writ application for quashing the order of the respondent State Election Commissioner dated 31.10.2012 (Annexure-8), whereby he has set aside the order dated 30.12.2011 (Annexure-3) of the District Magistrate, Samastipur, and has declared the respondent no.5 as validly elected on the post of Pramukh of Block Panchayat Samiti, Morwa in the district of Samastipur. Prayer is also for a direction to the respondents to hold fresh election on the post of Pramukh and for any other consequential orders. Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 2 Facts of the case, as appearing from the records, are that, after the election of members of the Panchayat Samiti of the Block was complete, a meeting of the elected members was convened by the S.D.O. on 29.6.2011 for election of Pramukh and Up-Pramukh and nominations were invited simultaneously. Accordingly the aspiring candidates filed their nomination for the two posts. Petitioner and respondent no.5 filed their nomination for the post of Pramukh. Scrutiny and other steps in the election for both the posts were held simultaneously, vide proceeding of the election, as contained in Annexure-1. Thereafter, voting for the post of Pramukh was held and completed by 12.30 in the afternoon and result was declared in which both petitioner and respondent no.5 were found to have secured 11 votes each with two votes rejected. Hence, the Returning Officer held lottery by getting the lot drawn by a boy of 14 years which was drawn in favour of respondent no.5. Accordingly, she was declared elected. Thereafter election of Up-Pramukh was held and, on completion of the same, its result was also declared by draw of lot, since the contesting candidates in this case also were found to have secured equal votes. Petitioner was not satisfied with counting of votes. Hence, on that very day at 1.35 pm, she filed a written request to the Returning Officer for recounting of votes and thereafter filed a complaint to the
Facts
Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 3 Collector, who, after considering the same, found that the grounds in the complaint were not substantiated. Hence, he referred the matter, by order dated 10.8.2011 (Annexure-R/1), to the State Election Commission. However, the State Election Commissioner, by his order dated 10.11.2011, remitted the matter back to the Collector for taking decision in the matter at his own level. Accordingly, matter was heard and the District Magistrate, vide his order dated 30.12.2011 (Annexure-3), allowed petitioner’s complaint and set aside the election of respondent no. 5 for the post of Pramukh. In the circumstances, respondent no.5, through her husband, preferred a revision before the State Election Commission against the said order of the District Magistrate. The revision was heard and the Commissioner, vide order dated 25.1.2012 (Annexure-4) rejected the revision application. Respondent no.5, therefore, preferred a writ application in this Court challenging the same, which was numbered as CWJC No.2424 of 2012. Petitioner was noticed and she also appeared. The application was finally heard and disposed of on 6.5.2012 (Annexure-5) remand the matter back to the Commissioner. By the said order, the order of Commissioner dated 25.1.2012 was set aside, noticing the fact that the Commission had not considered the import of subsequent circular bearing no.6685 dated 31.5.2011 Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 4 while deciding the issue as to whether lottery was to be conducted by an officer nominated by the returning officer or by a child authorized by him. After the order of remand petitioner filed an application dated 25.9.2012 (Annexure-6) before the Commissioner explaining about the earlier circular no.639 dated 31.08.2010 and subsequent circular no.6685 dated 31.5.2011. She also filed a supplementary petition before the Commissioner in the case through her advocate on 9.10.2012 (part of Annexure-6) and written argument on 30.10.2012 (Annexure-7). The matter was finally heard by the State Election Commissioner, who, vide his impugned order dated 31.10.2012 (Annexure-8), allowed the revision, set aside the order of the District Magistrate and declared respondent no.5 validly elected on the post of Pramukh. In the background of the facts noticed above, opening his arguments on behalf of the petitioner, learned counsel first submitted that by the earlier order, as contained in Annxure-5, this Court had remanded the matter to the State Election Commissioner only for a limited purpose. Clearly the order of the Election Commissioner was set aside by this Court only noticing that the “Commission has not considered the import of subsequent circular bearing no.6685 dated 31.5.2011 while deciding the issue as to whether lottery is to be conducted by an Officer nominated Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 5 by the Returning Officer or by a child authorized by him.” Earlier in the order, this Court had noticed that the Commissioner had only noticed the guidelines contained in letter no.639 dated 31.8.2010 (by mistake typed in the order as letter no.863). The Court had noticed the submission of learned counsel for the petitioner that another circular dated 31.5.2011 had been issued by the Commission by which the earlier circular dated 31.8.2010 stood superseded. Hence, the matter was remanded back by this Court only to consider the effect and import of the subsequent circular no.6685 dated 31.5.2011 and nothing else. He further submitted that since the circular no.639 dated 31.8.2010 and 6685 dated 31.5.2011 were almost identical, and particularly in respect of procedure and steps to be taken for draw of lot in the event of equality of votes, nothing remained for the Election Commissioner to decide afresh after the remand. He also submitted that admitted position in the case was that the Returning Officer had held election of Pramukh and Up-Pramukh simultaneously; scrutiny was also held simultaneously; voters were not educated on blackboard about the manner of voting, as prescribed in the Rules and lottery was held through a child and not by an officer nominated from before, as prescribed. Hence, there was infraction of law in holding election of Pramukh. He also submitted that the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 6 petitioner had filed petition for recounting on that very day at 1.35 pm as the petitioner had firm belief that her one vote had been wrongly rejected. But this petition was not allowed and recounting was not held by the Returning Officer. In the circumstances, the entire election process got vitiated. He further submitted that, accordingly, after declaration of result, petitioner filed her complaint before the District Election Officer (Panchayat)-cum- District Magistrate on various grounds which was allowed by him by order, as contained in Annexure-3. This order was affirmed by the Election Commissioner, vide Annexure-4. The challenge to the order of the Election Commissioner before this Court by respondent no.5 was on the limited ground that the effect and import of circular no.6685 dated 31.5.2011 had not been considered by the Election Commissioner. Hence, the findings of the Collector on other grounds affirmed by the Election Commissioner were not under challenge before this Court. He further submitted that the steps taken by the Election Commissioner, after remand, of calling for the ballots, getting it recounted and declaring the respondent no.5 as elected was without consent of the petitioner. He submitted that the Election Commissioner has wrongly recorded in the order that this petitioner had no objection to recounting of the ballots. Hence, the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 7 remand being a limited remand, the Election Commissioner had exceeded his jurisdiction by calling for the ballots and getting them recounted in his presence. In reply learned counsel for the State Election Commission submitted that the earlier order of this Court, as contained in Annexure-5, was an open remand of the matter. He submitted that whenever a court considers it appropriate to remand a matter for limited purpose, established practice is that the issue is formulated and in the operative part of the order it is made clear that the matter is limited only for the issue to be considered by the court/authorities and nothing else. He submitted that the Apex Court has clearly held that in such situation, it is appropriate for the High Court to keep the matter pending before it and call for the findings from the lower court only on the issue framed. In support of this submission, learned counsel for the Commission placed reliance on the judgments of the Apex Court in the case of Jai Prakash Gupta Vs. Riyaz Ahamad & Anr. [(2009) 10 SCC 197]; Gopalankutty Nair & Ors. Vs. Kunhirama Tharakan & Ors. [(2000) 3 SCC 569] and Kanchusthabam Satyanarayana & Ors. Vs. Namuduri Atchutaramayya & Ors. [AIR 2005 SC 2010]. He submitted that there was no limitation in the operative part of the order of this Court, as contained in Annexure-5, that the matter Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 8 was being remanded back only for consideration of the limited issue and nothing else. He further submitted that the initial grievance of the petitioner, as apparent from Annexure-2, was only in respect of irregularity in counting of the votes. Though the petitioner filed her complaint before the District Election Officer on other grounds also, which were considered, but this grievance was not considered by the District Election Officer. Hence, with her consent, the Election Commissioner went to the core of the issue and rightly got the ballots re-examined and counted in his presence. He submitted that the stand of the petitioner, that she had not consented to calling and counting of ballots, is only a submission before this Court through her counsel, without any supporting pleading in the writ application or any evidence that prior to the hearing of the case, she had raised her objection at any level in any manner. He submitted that except for technical plea that the remand was limited and the petitioner had not consented to calling for and counting of votes, the findings of facts recorded in the impugned order by the Election Commissioner, after the recounting of votes, has not been challenged by the petitioner. Hence, it remains an admitted position that, adding the one vote in favour of respondent, which the Election Commissioner found to have been wrongly rejected, she had secured one vote more than Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 9 the petitioner. Hence the process of lottery adopted by the Returning Officer, in irregular manner or otherwise, became redundant. Referring to the records, learned counsel for the Commission pointed out that, in the earlier order of the Commissioner dated 25.9.2012 itself, it was recorded that the petitioner was not objecting to the request of learned counsel for the respondent no.5, the revisionist, to call for the ballots and get them examined and counted in his presence. In view of this, by the said order, the Election Commissioner had called for all the 24 ballots papers in a sealed cover for being scrutinized in his presence. He further submitted that though the clubbing of the election process, for election on the posts of Pramukh and Up- Pramukh, was indeed an infraction of the guidelines issued by the Commission, but the petitioner never raised any ground of prejudice having suffered on that account. Referring to a judgment
Legal Reasoning
of a learned Single Judge of this Court in the case of Rameshwar Prasad Yadav Vs. Sri Awadhesh Kumar Singh [2007 (3) PLJR 427], he submitted that the guidelines was not mandatory and in absence of any prejudice shown to have been caused, its infraction in every case cannot cause upsetting of the entire election process. He further submitted that even if clubbing of the election process of the two posts was to be taken as ground for setting aside the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 10 election process, the election process for the post of Up-Pramukh could only be set aside. He submitted that the proceeding of the meeting, as contained in Annexure-1, shows that though the nominations were accepted for election on both the posts simultaneously, but election for the post of Pramukh was held earlier and the result was declared, and then only voting for the post of Up-pramukh began. He submitted that no prospective candidate for the post of Up-pramukh has come forward to raise a grievance in this respect. Petitioner has nowhere pleaded that, had the nomination for the post of Up-pramukh been held after declaration of result of Pramukh, she would have filed her nomination for the post of Up-Pramukh, in case of her defeat in the election for the post of Pramukh. Hence, he submitted that, it is not open to the petitioner to advance a plea that by notifying, nomination and their scrutiny simultaneously, for both the posts, she was in any way prejudiced. Mr. Mangalam appeared for the private respondent. He supported the submissions of learned counsel for the Commission and further submitted that only objection of the petitioner at the initial stage was in respect of counting of the votes. Hence, it was not open for her to challenge the election process on any other ground. He submitted that the principles of waiver and estoppel Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 11 will apply against the petitioner and the sanctity of the election cannot be disturbed so lightly at the instance of a defaulting party failing to set-up grounds for challenge to it at the very initial stage itself. In support of this submission, he placed reliance on judgments of this Court in the case of Smt. Shamshad Khatun Vs. The State of Bihar & Ors. [2010 (1) PLJR 929[; Banwari Yadav Vs. The State of Bihar & Ors. [2007 (4) PLJR 169] and a judgment of the Apex Court in the case of Chandrika Prasad Yadav Vs. State of Bihar & Ors. [(2004)6 SCC 331]. He submitted that the stand of the petitioner, from the very beginning, had been that her one vote was wrongly rejected. Hence, to get to the core of the issue, the Election Commissioner had rightly called for the ballots and got it examined in his presence. Since after scrutiny he found that, out of the two rejected votes, one vote in favour of this respondent had wrongly been rejected and hence she had secured one vote more, obviously there was no need for any lottery. Learned counsel for the petitioner in reply submitted that the Commissioner in his order has accepted that the remand by this Court was on limited ground. He submitted that the learned counsel for the petitioner had in fact raised his objections, before the Commissioner, on different dates, against calling for the ballot Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 12 papers and their recounting, in view of the limited remand. Hence, there is no question of application of principles of waiver or estoppel against the petitioner. He submitted that the procedural irregularity committed by the Returning Officer in the election process was substantial, as against a technical irregularity, and hence, the election process stood vitiated. In support of this, he referred to a judgment of the Apex Court in the case of Shri Baru Ram Vs. Smt.Prasanni & Ors. AIR 1959 SC 93. He submitted that in view of the judgment of this Court in the case of Vijay Kapari vs. State (CWJC No. 9830/2006 – 15.04.2009), the Election Commission issued letter no.861 dated 03.06.2009, laying down a detailed procedure & guidelines for deciding any dispute in connection with election to the post of Pramukh and Up-Pramukh in terms of Section 40(4) of the Bihar Panchayat Raj Act, 2006. In paragraph 19 the Commission laid down guidelines for deciding the disputes by the District Magistrate of the district in respect of election of Pramukh and Up-Pramukh of a Panchayat Samiti, and by the Divisional Commissioner in respect of disputes in respect of election of Chairman and Deputy Chairman of a Zila Parishad. Learned counsel submitted that in sub-clause (v) of clause (19) of the said paragraph, the Election Commission laid down the grounds on which the election of a Pramukh/Up-Pramukh and Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 13 Chairman/Dy.Chairman could be set aside, which included violation or adopting a procedure, different than laid down, for holding election or, in case of equality of votes, not holding lottery according to establish procedure and acting arbitrarily. He submitted that, in view of these guidelines, the compliance of circular no.639 followed by circular no.6685 became mandatory, infraction of which was sufficient to hold the entire election process as vitiated. In this case, learned counsels have advanced elaborate arguments with either of the view and also relied upon some precedents with regard to true import of the earlier order of this Court as contained in Annexure-5 on the proceeding before the Election Commission. But this Court finds that the issue does not need detailed consideration in view of the fact that the Election Commissioner, in his order dated 25.9.2012, passed after the earlier order of this Court dated 6.08.2012, by which the matter was remanded back, has himself noticed and accepted that, in view of the order of this Court, scope of consideration by the Commission in the matter was limited. Hence, in spite of submissions of learned counsel for respondent no.5 before him, the Commissioner did not consider it appropriate to hear the matter on that day beyond any issue than as to whether the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 14 procedure for holding lottery in the matter was in any way different than laid down in the said circular no.6685 dated 31.5.2011. But the Election Commissioner, in view of the stand of the respondent, and not objected by the petitioner upon being consulted by him, thought it fit and called for the 24 ballots papers, in respect of the election of Pramukh, in a sealed cover. Matter was thereafter fixed for 9.10.2012. On 09.10.2012, the sealed envelopes containing the ballot papers were produced by the District Administration. Both the parties and their learned counsels were also present. With the signature of the parties, the envelopes were opened and the ballots were examined in presence of all of them and the votes counted in their favour were found correct, which the parties also agreed. Then the two rejected ballots were examined and it was found that one was rightly rejected, as it had cross marks below all the names and not against any name, but the other was found clearly polled in favour of respondent no. 5, as there was a single clear cross mark against her name. Therefore the Election Commissioner took a decision to count this vote in favour of the respondent no.5. However, it appears that the learned counsel for the petitioner sought an adjournment and accordingly the matter was posted for 31.10.2012. A written argument was filed on behalf of the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 15 petitioner on 30.10.2012 and the matter was heard on 31.10.2012. The Election Commissioner found that, since in the counting of votes on the previous day, in presence of the parties, respondent no.5 had got one more votes because of which her vote tally came to 12, whereas the vote tally of petitioner remained 11, the procedure for lottery held by the Returning Officer, in regular or irregular manner, became redundant. He, therefore, disposed of the revision application of respondent no.5, allowing the same, and set aside the order of the District Magistrate and held the respondent no.5 elected as Pramukh. This Court finds that this scrutiny and counting of votes, got held by the Election Commissioner in his presence, has not been challenged by the petitioner on merits. Thus it becomes admitted position that one vote of respondent no.5 had been wrongly rejected, and the 24th vote had been rightly rejected. The obvious result is that the respondent no.5 had secured 12 valid votes out of 24 polled, whereas petitioner’s tally of valid votes remained at 11. Learned counsel for the petitioner had submitted that the petitioner had never consented to calling of the ballot papers for their scrutiny in presence of the Election Commissioner. But this Court finds that there is no pleading in the writ petition to this effect. As against this, this Court finds that, in her supplementary Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 16 petition filed before the Election Commissioner in the matter on 9.10.2012, after remand order of this Court, she had taken a stand in paragraph 6 that her one valid ballot paper had been improperly rejected and that was why she had filed a petition for recounting before the Returning Officer at 1.35 pm on day of counting itself, on which the Returning Officer was legally obliged to hold recounting. The consent on her behalf was recorded by the Election Commissioner in his order dated 25.9.2012, but there is no whisper in the supplementary petition filed on 9.10.2012 that the same had been wrongly recorded in the order. Moreover Annexure-7 is the written argument filed on behalf of the petitioner before the Election Commissioner on 30.10.2012. In this written argument also, this Court finds that there is no whisper that the Election Commissioner had committed an error of record on 25.9.2012, by recording that the petitioner had no objection to calling for the ballot papers and their scrutiny and recounting. On the other hand, this Court finds that the petitioner had taken a specific plea in this written argument also that if any candidate demands for recounting, the Returning Officer was obliged to get the votes recounted in the presence of the parties. Thus, it is apparent that, after the order dated 25.9.2012 was recorded by the Election Commissioner, and in view of the agreement of the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 17 parties, he called for the ballot papers, petitioner never objected to it. On the other hand, the consistent case of the petitioner was, till the passing of the impugned order, that her initial demand for recounting of the ballots papers had been illegally not accepted by the Returning Officer. It is true that in the present case there has been infraction of procedure laid down for holding election for the post of Pramukh, but the question is as to how far the same is mandatory or not. In the opinion of this Court, this issue does not require to be decided in this case, as now admitted position is that out of 2 invalid votes, one vote has been found clearly to have been polled validly in favour of respondent no.5, whereas the other vote was clearly invalid. The impugned order shows that on 9.10.2012 in presence of the parties, the sealed envelopes were opened and examined. After having found that one invalid vote polled in favour of respondent no.5 had been wrongly held invalid, the Election Commissioner was on that very day in a position to dispose of the matter, but learned counsel for the petitioner prayed for some time to make further submissions in the matter. Accordingly, the matter was fixed for 31.10.2012, before which the said written argument was filed on her behalf. As noticed earlier, in the written argument also, no ground was taken that the Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 18 Election Commissioner had exceeded his jurisdiction, in view of the earlier order of this Court, in calling for the ballot papers and examining the same. Hence, this Court finds that entire proceeding held by the Election Commissioner, after the orders of this Court remitting the matter back to him was received, and till he passed the impugned order on 31.10.2012, was with the consent and agreement of the petitioner. This Court also finds that, the finding of fact arrived at by the Election Commissioner after recounting of ballots, that out of the two invalid votes, one was validly polled in favour of respondent no.5, whereas the other was rightly rejected as having no cross marks against any name, has not been challenged by the petitioner before this Court. Thus, it stands established that out of the 24 votes polled for election of Pramukh, respondent no.5 had secured 12 valid votes, whereas petitioner had secured only 11 valid votes and one ballot paper had been rightly rejected. The entire jurisprudence of election law revolves around respecting the opinion of majority which was clearly and admittedly in favour of respondent no.5. In the circumstances, this Court does not find this a fit case to exercise its extraordinary discretionary jurisdiction in favour of the petitioner on the ground of irregularity committed by the Returning Officer in the process Patna High Court CWJC No.318 of 2013 (8) dt.22-10-2013 19 of election for the post of Pramukh, which apparently did not cause any prejudice to the petitioner. The writ application is accordingly dismissed. The interim order passed in the case shall stand vacated. Arvind/- (Jayanandan Singh, J)