Anisur Rahaman vs Md. Hefjur Ali And Others

Sabyasachi Bhattacharyya, J

The petitioner as well as the contesting opposite party no. 1 is represented through their learned counsel.

Service on the opposite party nos. 2 to 9 is dispensed with in view of the nature of dispute involved.

The present challenge is directed at the instance of a successful candidate, as per the result declared by the authorities, in the general election held in 2018 for the Malda Zilla Parishad.

By virtue of the impugned judgment and order, the court below allowed an application filed by the plaintiff-opposite party no. 1 under Section 79 of the West Bengal Panchayat Elections Act, 2003 (hereinafter referred to as the 'Act of 2003'), thereby directing a recounting of the votes pertaining to the said election.

Learned senior counsel for the petitioner argues that Rule 91 of the West Bengal Panchayat Election Rules, 2006 (hereinafter referred to as the 'Rules of 2006') categorically provides that any objection as to counting of votes has to be taken after the completion of the counting, during the pause statutorily to be given by the presiding officer immediately after such counting. In the event there is no demand for recounting from anybody present during such pause, the presiding officer shall sign the completed counting sheets and no demand for recounting shall be entertained thereafter.

Learned senior counsel places the provisions of Rule 91 of the said Rules in this context.

It is next argued that the application under Section 79 of the Act of 2003 did not contain any of the criteria as mandated under Sections 93 and 94 of the Act of 2003, which are the only grounds on which a proceeding can be initiated under Section 79 of the Act of 2003.

It is argued that no allegation regarding the counting of votes and/or election process has been categorically made by the plaintiff-opposite party no. 1 in the election petition and, as such, the trial court acted without jurisdiction in allowing the same.

Learned senior counsel cites in this context a judgment reported at AIR 2010 SC 24 (Kattinokkula Mural Krishna Vs. Veeramalla Koteswara Rao and others). It was held therein, inter alia, that a strong prima facie case has to be made out for recounting to question the validity, purity, legality and propriety of the election process and merely a narrow margin of victory would not be a relevant factor in directing a recounting.

Learned senior counsel next places reliance on a judgment reported at (2016) 3 CHN 459 (Rama Chandra Mahato Vs. Smt. Anjana Mahato) for the proposition that recounting is rarely directed, that too, if specific allegations as to irregularities in such counting are pleaded, proved and a finding thereon is rendered by the court. Unless there is a specific allegation, proved before the court, as to improper rejection of valid votes or the like, the court does not have jurisdiction to reopen the counting process. The co-ordinate Bench relied on the principle that secrecy of ballots is sacrosanct in a democracy unless serious irregularities in the election process are pointed out.

Learned senior counsel next cites a judgment reported at AIR 1989 SC 640 (P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and others) for the proposition that no roving or fishing enquiry can be directed on mere frivolous allegations as regards the election process. Hindsight could not be a justification for directing a recounting and an objection, if any, regarding the counting process has to be taken at the time of counting itself.

In all the said three judgments, the secrecy of the ballot was held to be sacrosanct in a democracy and it was held universally that such counting process cannot be upset on mere allegations, unless serious proof thereof was furnished.

Learned counsel appearing for the contesting plaintiff-opposite party no. 1 argues that specific allegations were made in the application under Section 79 of the Act of 2003 as regards the irregularities committed in the electoral process.

Learned counsel places particular reliance on paragraph nos. 12 and 13 of the said application and submits that the plaintiff-opposite party no. 1 categorically pointed out the gross discrepancy between two results, both published by the authorities at different junctures.

It is argued that since two different certificates showing two different totals of votes secured by the candidates respectively were published, there was an ex facie irregularity in the election process and the trial court was justified in directing a recounting, which could be the only mode to ascertain the veracity of the results-in-question.

Learned counsel places an order of the concerned returning officer dated May 19, 2018, from which it is evident that an objection was taken by the plaintiff-opposite party no. 1, demanding a recounting, which was turned down by the Panchayat Returning Officer by the said order.

As such, learned counsel refutes the argument of the petitioner that the plaintiff-opposite party no. 1 did not point out the discrepancies at the relevant juncture.

It is seen from the impugned judgment and order that the court below directed a recounting of the votes merely on the finding that two different results have come out from the documents of the government authority. Despite having found that it was very difficult to ascertain what party actually got what number of votes, the trial court proceeded to direct a recounting of the votes.

The trial court also relied on an erroneous yardstick in cross referencing exhibits 7 and 9 to compare the votes secured respectively by the present contesting parties, by comparing the votes secured as per one of the said documents by the opposite party no. 1 with that obtained by the petitioner in the other exhibit and vice versa. As such, the cross referencing could not be a valid basis for holding that there was a discrepancy in the election process, more so since as per both the results declared, it is the present petitioner, who won the election.

That apart, the petitioner is justified in arguing that Rule 91 of the Rules of 2006 provides a specific bar to a demand for recounting after the presiding officer signs the completed counting sheets in Forms 19, 19A and 20.

It is evident from the records that the plaintiff-opposite party no. 1 did not object to the counting at any point of time during the counting process itself, let alone the pause, as contemplated in Rule 91(2) of the Rules of 2006.

The opposite party no. 1 bases his case merely on the discrepancy of two certificates issued by the authorities, one of which must have been an erroneous one.

It is clear from the application under Section 79 of the Act of 2003 itself that the entire allegations of the opposite party no. 1 hinge on the discrepancy between the certificates of election issued by the relevant authorities. No specific allegation has been levelled in the entire application as regards there being any irregularity or illegality either in the counting process or in the electoral process itself as a whole, as contemplated in Section 93 and/or 94 of the Act of 2003.

As such, the basic mandate of Section 79 of the Act of 2003, which envisages the stipulations in Sections 93 and 94 as the only grounds for preferring such an application, are not satisfied in the instant case.

In such view of the matter, the trial court acted patently without jurisdiction in directing a recounting of votes merely at the drop of a hat, without any allegation being levelled within the contemplation of Sections 79, 93 and 94 of the Act of 2003 and in spite of the plaintiff-opposite party no. 1 having lost his chance of demanding a recounting, as contemplated in Rule 91 of the Rules of 2006.

As held consistently in the judgments cited by the petitioners, the secrecy of the ballot has to be sacrosanct in a democracy and cannot be unravelled or exposed merely on some allegations being taken out by a candidate to the election.

In such view of the matter, the trial court acted without jurisdiction in passing the impugned judgment and order and the same ought to be set aside.

Accordingly, C. O. No. 2524 of 2019 is allowed, thereby setting aside the impugned judgment and order.

There will be no order as to costs.

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.