Aparna Mukherjee vs State of West Bengal

Satyabrata Sinha, J.—F.M.A.T. No. 3382 of 1995, F.M.A.T. No. 163 of 1995, F.M.A.T. No. 164 of 1995, F.M.A.T. No. 2409 of 1993, F.M.A.T. No. 2410 of 1993, CO. No. 24 of 1994 and CO. No. 25 of 1994 are being disposed of although F.M.A.T. No. 164 of 1995, F.M.A.T. No. 2409 of 1993 and F.M.A.T. No. 2410 of 1993 were not listed, they being inter-related with other appeals and the Civil Revision cases, with the consent of the parties are treated to be on day''s list for hearing and are being disposed of together with the other matters.

The fact of the matter is as follows:

General Panchayat Election was held in respect of Chekya Gram Panchayat-I and Chekya Gram Pancha-yat-11. The said election was held on May 30, 1993 Smt. Laxmi Mukherjee who was the candidate of Congress-I and Smt. Aparna Mukherjee who was the candidate of Left Front contested the Chekya Gram Panchayat-1 whereas Smt. Sundari Kalindi contested the Chekya-Il Gram Panchayat as a candidate of Congress-l and Smt. Sakuntala Das @ Ruhi Das contested the said election as a candidate of the Left Front.

Allegedly the votes were counted on May 31, 1993 on which date certificates were issued in Form No. 24 in favour of Smt. Laxmi Mukherjee and Smt. Sundari Kalindi. However, according to Smt. Laxmi Mukherjee and Smt. Sundari Kalindi although no application for recounting of votes was made by any of the candidates in terms of Rule 64 of the West Bengal Panchayat (Election) Rules 1974, recounting was allegedly done at the reception centre of the office of the Block Development Officer on June 1, 1993. Smt. Sundari Kalindi and Smt. Laxmi Mukherjee came to know the said fact on June 2, 1993.

Two certificates were also issued in favour of Smt. Aparna Mukherjee and Smt. Sakuntala Das @ Ruhi Das in Form No. 24.

Smt. Lakshmi Mukherjee ''and Sundari Kalindi filed two writ applications before this Court which were marked as CO. No. 13224 (W) of 1993 and CO. No. 13223 (W) of 1993. In the said writ application, Report of the prescribed authority was called for and after considering the said Report Ajit Kumar Sengupta, J. allowed the said writ applications, inter alia, declaring the certificates issued in favour of Smt. Aparna Mukherjee and Smt. Sakuntala Das @ Ruhidas as void and further declaring that the writ Petitioner should be held to be duly elected, consequently the concerned authority was directed to administer oath in favour of the said writ Petitioners. Two appeals had been preferred as against the said order by Smt. Aparna Mukherjee and Sakuntala Das @ Ruhidas on or about August 18, 1993 which have been marked as F.M.A.T. No. 2409 of 1993 and F.M.A.T. No. 2410 of 1993 respectively. On August 18, 1993 an interim order of status quo was passed by a Division Bench of this Court in the said two appeals. On September 14, 1993 further interim order was passed. However, by an order dated October 4, 1993 a Division Bench of this Court vacated all the interim orders.

In the meanwhile keeping in view the observations made by Ajit Kumar Sengupta, J. in the aforementioned CO. No. 13223 (W) of 1993 and CO. No. 23223 (W) of 1993, two Election petitions were filed by Aparna Mukherjee and Sukuntala Das @ Ruhi Das in the Court the learned Munsif, Purulia, which were registered as Election Misc. Case No. 141 of 1993 and Election Misc. Case No. 142 of 1993. Allegedly an application for injunction as well as recounting of votes were filed by the said two applicants. By an order dated December 16, 1993 the said prayer was rejected. Revisional Application being CO. No. 24 of 1993 and CO. No. 25 of 1993 have been filed by the applicants aforementioned in this Court under Article 227 of the Constitution of India on January -10, 1994 questioning the aforementioned order dated December 16, 1993 passed by the learned Munsif.

On January 2, 1995 Smt. Lakshmi Mukherjee moved an application for contempt for non-compliance of the order passed by Ajit Kumar Sengupta, J. on July 30, 1993 in CO. No. 13224 (W) of 1993 and by an order dated January 2, 1995 S.R. Misra, J. disposed of the said application directing the Respondents-authorities to comply with the said order within a period of four weeks. F.M.A.T. No. 3382 of 1995 has been preferred by Aparna Mukherjee against the said order. It is, however, stated that oath was administered to Smt. Lakshmi Mukherjee by the prescribed authority and she was allowed to function as a member of Chekya-I Gram Panchayat in compliance with the order dated July 30, 1993 passed in CO. No. 13224 (W) of 1993. Two appeals being F.M.A.T. No. 163 of 1995 and F.M.A.T. No. 164 of 1995 were filed against the order dated January 2, 1995. However, now it appears that two appeals were filed no misconception, inasmuch as, the learned Counsel for Smt. Lakshmi Mukherjee and Smt. Sukuntala Das @ Ruhidas issued a letter to the concerned authority communicating the aforementioned order dated January 2, 1995 passed by S.R. Misra, J. allegedly stating therein that the said order has been passed in favour of both the Appellants. However, now it transpires that the learned Counsel has stated that he had not issued any letter in respect of Sakuntala Das @ Ruhidas, inasmuch as, the aforementioned contempt application was filed by Smt. Lakshmi Mukherjee alone. In this view of the matter, the learned Counsel for the parties agreed that F.M.A.T. No. 164 of 1995 has become in fructuous.

By an order dated January 24, 1995 a Division Bench of this Court passed an order of status quo in the said F.M.A.T. No. 163 of 1995. On April 20, 1995 Smt. Sundari Kalindi moved an application for contempt for non-compliance of the order dated July 30, 1993 passed in CO. No. 13223 (W) of 1993 and G.R. Bhatlacharjee, J. by an order dated April 20, 1995 disposed of the contempt application as from the records produced before His Lordship it appeared that oath has already been administered on January 20, 1995 as per solemn order of this Court although it appears that no such order existed in her favour. Upon administration of oath in favour of Lakshmi Mukherjee and Sundari Kalindi they became members of the Chekya Gram Panchayat. An application was filed before the prescribed authority for holding election of Office bearers on September 13, 1995. As no action was taken thereupon, a writ application was filed by Jadupati Kumar and Ors. representing the majority members which was registered as CO. No. 17460 (W) of 1995 praying therein for a direction upon the Respondents to hold election of office bearers of Chekya Gram Panchayat. By an order dated September 26, 1995 Altamas Kabir, J. disposed of the said writ application with a direction upon the prescribed authority to arrange for conducting such election within a month from the date of communication of the order. F.M.A.T. No. 3382 of 1995 has been filed against the said order dated September 26, 1995 passed by Altamas Kabir, J. It appears that some interim orders have been passed in the appeals but this Court at this juncture is not concerned therewith.

Mr. Rabilal Maitra, learned Counsel appearing on behalf of the Appellants (Smt. Aparna Mukherjee and Smt. Sakuntala Das @ Ruhidas) in the aforementioned Mandamus appeal as well as in the Revisional Applications, inter alia, submitted that the order dated July 30, 1995 passed by Ajit Kumar Sengupta, J. was illegal, inasmuch as, valid certificates having been issued in favour of his clients the same could not have been directed to be cancelled in a writ application.

The learned Counsel submits that in the event the other two contestants having been granted certificates in their favour, they could have filed election petitions. The learned Counsel submits that in any event as the recounting has been done in terms of the provision of Section 64 of the West Bengal (Election) Act and the Rules framed thereunder, the learned Trial Judge must be held to have been misdirected himself in passing the impugned order.

The learned Counsel in support of the aforementioned contentions has relied upon a decision of the Supreme Court of India reported in Krishna Ballabh Prasad Singh Vs. Sub-divisional Officer Hilsa-cum-returning Officer and Others, As regards the order dated December 16, 1993 passed by the learned Munsif in the aforementioned election petition dismissing the Petitioner''s application for recounting of the votes, the learned Counsel submits that the said order is wholly illegal and without jurisdiction and in support of his aforementioned contention strong reliance has been placed upon a decision of a learned single Judge of this Court in case of Samarendra Nath Mall v. Asoke Chandra Prodhan 1980 (1) C.L.J. 334.

Mr. Bhattacharyya, learned Counsel appearing on behalf of the contesting Respondents raised three contentions in this appeal. The learned Counsel firstly, submitted that the provisions of the Act and the Rules read as a whole would clearly show that the order of recounting which was held in the reception office of the Block Development Officer was wholly illegal and thus certificates issued in favour of the Appellant in Form 24 must also be held to be illegal and thus the learned Trial Judge in passing the impugned order dated July 30, 1993 did not commit any illegality. Ass regards the maintainability of the contempt appeal, the learned Counsel submits that the said appeal is not maintainable at the instance of third party, particularly, in view of the fact that only authorities of the State Government were directed to carry out the order of this Court and no punishment had been imposed on anybody. As regards the order dated December 16, 1993 passed by the learned Munsif, Mr. Bhattacharyya, submits that the Court has no jurisdiction to direct recounting in an election petition. In any event, Mr. Bhattacharyya would contend that in the facts and circumstances of this case, no illegality has been committed by the learned Court below in passing the impugned order nor the said order suffers from any perversity or lack of jurisdiction. In support of his aforementioned contention, reliance�s have been placed in the case of P.K.K. Shamsudeen Vs. K.A.M. Mappillai Mohindeen and Others, Satyanarain Dudhani Vs. Uday Kumar Singh and Others, Charari Dass v. Surinder Kumar 1995 (Sup.) 3 S.C.C. 318 and Ajit Singh Vs. Bansi Singh and Others,

Two principal questions in our opinion, arise for consideration in this appeal: (1) whether a writ application was maintainable questioning the grant of certificate in Form 24 in favour of the Appellants ; (2) whether the order dated December 16, 1993 passed by the learned Munsif is liable to be set aside.

Re. Question No. 1:

The said question involves a pure question of law and its answer depends on the interpretation of the provisions of West Bengal Panchayat Act, 1973 (hereinafter referred to as the ''said Act'') and the West Bengal Panchayat Election Rules, 1974 (hereinafter referred to as the ''said Rules''). The said Act was enacted to reorganise Panchayat in Rural areas in West Bengal and provided for matters connection therewith. Section 203 of the said Act provides for election in a Gram Panchayat. In terms of the said provision a State Panchayat Election Officer is to be appointed by the State Government to supervise the conduct of election. The District Panchayat Officer is also to be appointed who shall subject to the supervision of the State Panchayat Election Officer supervise directly in connection with the conduct of such election. A Returning Officer is to be appointed by the State Panchayat Election Officer and the District Panchayat Election Officer is to appoint a Returning Officer for holding an election and bye-election of the members of the Gram Panchayat. The State Panchayat Election Officer or the District Panchayat Election Officer are empowered to appoint one or more Assistant Returning Officer. Sub-section (5) of Section 203 of the said Act provides for power of the Returning Officer to point Presiding Officers and Polling Officers. In terms of the said provisions the counting of votes has to be done by the Presiding Officers immediately after the polling and the result of counting is required to be declared forthwith. Powers and functions and duties of the Returning Officers, Presiding Officers and Polling Officers and the procedure for holding the election are to be done in such a manner as may be prescribed by the Rules. Section 204 of the said Act provides for disputes as to election. Rule 56, Rule 59, Rule 62(3), Rule 64 and Rule 65(5), which are material for the purpose of this appeal, read thus:

Preliminaries for counting of votes.- At every election immediately after the poll votes shall be counted at the polling station by the Presiding Officer with the assistance of the poling officers or officer appointed under Rule 5 for that polling station and each contesting candidate or his election agent and not more than (one of his counting agents at a time) shall have a right to be present at the time of counting.

Counting of votes received in sealed covers.- (1) The Presiding Officer shall first deal with the ballot papers received by him in sealed covers under Sub-rule (4) of Rule 41.

(2) The sealed covers shall be opened one after another in. the presence of candidates or their election agents and counting agents.

(3) The Presiding Officer shall count all the valid votes in the sealed covers and record the total number thereof in the counting sheets in Form 19 in respect of Gram Panchayat election and in Form 20 in respect of Panchayat Samiti or (Mahakuma Parishad/Zilla Parishad) election and announce the same.

(4) Thereafter all the valid ballot papers and all the rejected ballot paper shall be separately bundled and kept together in a packet which shall be sealed with the seal of the Presiding Officer and of such of the candidates and election agents or counting agents as may desire to affix their seal thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and the brief description of the contents.

(5) A ballot paper received in a sealed cover may be rejected on the grounds specified in Sub-rule (2) of Rule 61.

62(3) During the process of counting of votes in connection with -(a) a Gram Panchayat election, the Presiding Officer shall count all the valid votes in the ballot box and record the total number thereof in counting sheet in Form 19A ; and (b) (a Panchayat Samiti, a Mahakuma Parishad, or a Zilla Parishad) election, the Presiding Officer shall count all the valid votes in the ballot box and record the total number thereof in counting sheets in Forms 20A and 20B and announce the same.

64, Recount of Votes.- (1) After the completion of the counting the Presiding Officer shall record in the counting sheets in (Form 19, 19A, 20 and 20A) the total number of votes polled by each candidate and announce the same.

(2) After such announcement has been been made, a candidate or in his absence, his election agent or his counting agent may apply in writing to the Presiding Officer for a recount of the votes either wholly or in part stating the grounds on which he demands such recount.

(3) On such an application being made the Presiding Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto it if appears to him to be frivolous or unreasonable.

(4) Every decision of the Presiding Officer under Sub-rule (3) shall be in writing (containing the reasons thereof and shall be final).

(5) If the Presiding Officer decides under Sub-rule (3) to allow a recount of votes either wholly or in part, he shall -(a) do the recounting in accordance with Rule 62 ;

(b) amend the counting sheets in Forms 19, 19A, 20 and 20A, as the case may be, to the extent necessary after such recount; and (c) announce the amendments so made by him.

(6) After the total number of votes polled by each candidate has been announced under Sub-rule (1) or Sub-rule (5), the Presiding Officer shall complete and sign the counting sheets in Forms 19, 19A, 20 and 20A, as the case may be, and no application for a recount shall be entertained thereafter.

(Provided hat after an announcement under Sub-rule (3) of Rule 59 and Sub-rule (3) of Rule 62, a reasonable opportunity shall be given to a candidate, and in his absence, any election agent or his counting agent who makes an application in writing to the Presiding Officer for re-counting of vote, if any dispute is raised regarding the results of the counting.) 65.(5) As soon as may be after a candidate has been declared to be elected the Presiding Officer in respect of Gram Panchayat election shall grant to an elected candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgment to the Returning Officer and in respect of Panchayat Samiti or (Mahakuma Parishad/Zilla Parishad) election the Returning Officer shall grant to an elected candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgment of receipt duly signed by him.

Rule 56 aforementioned as noticed hereinbefore mandates the Presiding Officer to count the polled votes immediately after every election. It also provides that each contesting candidate or his election agent shall have a right to be present at the time of counting. Rule 59 aforementioned deals with the manner in which the votes received in sealed cover are to be counted. Rule 60 mandates the Presiding Officer to open the ballot box in presence of the candidate or their election agent or agents. Rule 61 aforementioned provides for scrutiny and rejection of ballot papers. Sub-rule (1) of Rule 62 provides for counting of valid votes meaning thereby the votes which have not been rejected. In a Gram Panchayat election, the Presiding Officer is required to count all the valid votes in the ballot box and record total number thereof in counting-sheets in Form 19A. Sub-rule (4) of Rule 62 provides that after the counting of all ballot papers containing in all the ballot box used in polling, the Presiding Officer shall make the entries-in result-sheet in Form No. 21 in respect of Gram Panchayat election and announce the particulars. Sub-rule (5) provides for the manner as to how the deal with the valid ballot papers thereafter Rule 63 mandates that the counting should be continuous. Rule 64 provides for recounting for the votes. Sub-rule (1) of Rule 64 provides that after the completion of counting the Presiding Officer shall record in the counting-sheet in Form 19, 19A, 20 and 20A the total number of votes polled by each candidate and announce the same. After such announcement a candidate or in his absence his election agent may apply in writing to the Presiding Officer for a recount of the votes either wholly or in part stating the grounds on which he demands such recount. Sub-rule (3) of Rule 64 provides that on such an application being made the Presiding Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. All such decisions of the Presiding Officer are to be in writing and shall contain reasons therefor which would be final. The recounting if so ordered by the Presiding Officer has to be done in terms of Sub-rule (5) of Rule 64 i.e. in the manner provided for in Rule 62. In terms of Sub-rule (6), once the total number of votes are announced and signature of the counting sheets in Form 19, 19A, 20 and 20A are completed by the Presiding Officer, no application for recount shall be entertained therefor. Rule 65 provides for declaration of results. In terms of Sub-rule (5) of Rule 65 as soon as a candidate may after he is elected, the Presiding Officer in respect of Gram Panchayat election is required to grant to an elected candidate certificate of election in Form 24 and obtain from the candidate acknowledgment of his receipt duly signed by him and immediately send the acknowledgment to the Returning Officer in respect of" the Panchayat election or Mahakuma Parishad or Zilla Parishad. The returning officer shall grant to an elected candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgment of receipt duly signed by him. The said Rules on a conjoined reading thus leave no manner of doubt that for the purpose of recounting an application has to be filed before the Presiding Officer and such application has to be disposed in the manner laid down under Sub-rule (4) of Rule 64 i.e. by passing an order in writing containing the reasons therefor, such order is also final. Sub-rule (6) of Rule 64 prohibits entertaining of an application for a recount after completion and signing of the counting-sheets in Form 19, 19A, 20 and 20A as the case may be. As noticed hereinbefore, Sub-rule (5) of Rule 65 provides for grant of a certificate in Form 24 whereafter the only other functions which are required to be performed by the Presiding Officers -are stated in Rules 66 and 67. The Presiding Officer in his report filed before the learned Judge, inter alia, stated that due to oversight counting sheets in Form 19, 19A, result-sheet in Form No. 21 and Declaration in Form 22 were not issued by him and stated that on that date some persons assembled at the polling station and became violent and in that melee, documents i.e. Form 19, 19A and 21 were lost whereafter he escaped from the polling station with all the election papers and reached at Block II Kot shills. At the reception centre it was detected that votes of such persons who were on election duty which is known as E.D. votes had not been counted and some persons insisted him on counting without informing the agent of the candidates issued certificates previously. Thereafter a counting was done and again certificates were issued in favour of the Appellants.

The learned Trial. Judge, in our opinion, did not commit any illegality inasmuch as it is evident from the said report that: (1) no application has been filed for recounting; (2). no reason had been recorded by the Presiding Officer; (3) recounting had not been done at the polling station and (4) the purported recounting was done behind the back of the Petitioner and/or his election agent on June 1, 1993, although the election was held on May 30, 1993 and the ballot papers were sent to the office of the Block Development Officer. The recounting, therefore, on the face of the report of the Presiding Officer must be held to be wholly illegal and without jurisdiction and in that view of the matter, we are of the opinion that a writ application was maintainable keeping in view the fact that the Presiding Officer acted wholly without jurisdiction in not only recounting the votes, but also granting the certificates in favour of the Appellants without cancelling the certificates granted in favour of Smt. Lakshmi Mukherjee and Smt. Sundari Kalindi. An election dispute was not in our considered opinion, in the peculiar facts and circumstances of this case, would have been a proper remedy inasmuch as in view of the conduct of the Presiding Officer, all the four concerned persons were declared elected. After grant of certificates in favour of the candidates, the returning officer become functus officio.

Krishna Ballabh Prasad Singh Vs. Sub-divisional Officer Hilsa-cum-returning Officer and Others, upon which strong reliance has been placed by Mr. Maitra, has no application in the facts and circumstances of this case. In that case election of the Petitioner was cancelled and the Respondent was declared as a successful candidate. It was in that situation, held that the writ application was not maintainable in view of the provisions contained under Article 329(B) of the Representation of People Act. In the instant case, as indicated hereinbefore, the order of the Returning Officer was wholly illegal and without jurisdiction and keeping in view the fact that he had issued two sets of certificates, the contesting Respondents have no other option but to file the said writ application. The said question, therefore, is answered against the Appellant and in favour of the contesting Respondents.

Re.: Question No. 2

The order passed by the learned Munsif is required to be considered in the aforementioned background. Before the learned Munsif it appears that the parties had adduced evidence and the order of this Court dated July 30, 1993 and the aforementioned special report dated June 1, 1993 were marked as Ext. B and C. It does not appear from the order as to whether the Presiding Officer was examined to prove his report. However, it appears that the Returning Offices was examined. The learned trial Court upon consideration of the submissions of the learned Counsel appearing on behalf of the parties before him, inter alia, held; (1) this Court had already declared that the present Petitioner has not elected in the constituency in question (2) from the evidence of the Returning Officer, it appears that all the papers have been found by him in disorder and thus the same were not as per election rules ; (3) statement in Form 19, 19A and 21 were lost as was evident from Ext. ''C. He, however, observed ''It further appears from the report, had the story of loss of Form No. 19, 19A and 21 been taken as true, what prevented the Presiding Officer being a highly responsible officer upon whom all the election powers and duties were vested, from informing the local police station in this regard''. It was further held that ''So it appears to me that the true picture of actual polled votes at the booth in respect of seat No. 1 after recounting may not be actual picture in the Tin Box lying deposited in the custody of the suit and whether the election papers lying deposited in this Court actually depict the true picture of the election proceeding or not''. The aforementioned findings clearly go to show that the learned trial Court has acted illegally and without jurisdiction in passing the impugned order. He failed to take into consideration the relevant fact and took into consideration irrelevant facts. The loss of forms and conduct of the Presiding Officer were not a relevant factor to be considered for rejecting the application. On the other hand, if he had doubts over the conduct of the Presiding Officer as regards his alleged story of loss of Form No. 19, 19A and 21, that was a relevant factor to take into consideration in favour of the Appellants and not against them. (3) The learned trial court failed to take into consideration the fact that even the Presiding Officer thought it fit and proper to order for recounting of votes albeit illegal. But the same did not prevent him from directing recounting of votes inasmuch as from the order dated July 30, 1993 passed by Ajit Kumar Sengupta, J. in the writ application filed by the contesting Respondent, it would be evident that the said learned trial Judge himself gave liberty to the Appellants to file election petition and further directed that the said ''election cases should be disposed of within one month from date of filing of such application. The order of this Court declaring the election in favour of the contesting Respondent as valid was thus wholly irrelevant inasmuch as the said writ application was allowed on a technical ground. Despite the said order, the learned trial Court was enjoined with a duty to consider the allegations made in the election petition on their proper perspective and come to an independent finding. We have no doubt in our mind that the learned trial Court was fully influenced by the order passed by this Court in the writ application which had got nothing to do with the subject matter of the election petition itself. From the findings recorded by the learned Trial Judge and as noticed hereinbefore it would be evident that the learned Trial Judge has proceeded on hypothesis and conjecture inasmuch as he has come to the conclusion that even after counting the true picture may not come out. Whether a true picture come out on recounting or not could have been found only after the ballot papers were directed to be produced for the purpose of recounting. In the case of Ajantha Transports (P) Ltd., Coimbatore Vs. T.V.K. Transports, Pulampatti, Coimbatore District, the Supreme Court has clearly held that where an order is passed by a Tribunal upon consideration of an irrelevant factor and upon refusing to consider the relevant fact, such order can be revised by this Court in exercise of its jurisdiction u/s 115 of the Code of Civil Procedure. Similar is the power of the Court under Articles 226 and 227 of the Constitution of India. In fact an error of law apparent on the face of record includes taking into consideration of irrelevant facts arid refusing to consider the relevant facts. As the impugned order suffers from an error apparent on the face of the record, the same cannot be sustained. At this juncture the submission of Mr. Bhattacharyya to the effect that such application is not maintainable may now be considered.

Section 204 of the said Act, inter alia, provides for power of the Court to hold an enquiry as he deems necessary. The said provision is of wide amplitude. Sub-Section Ajantha Transports (P) Ltd., Coimbatore Vs. T.V.K. Transports, Pulampatti, Coimbatore District, of Section 204 of the said Act provides that the Court shall have all the powers of a civil court for the purpose of receiving evidence administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. It was, therefore, competent for the Petitioner to file an application before the learned trial Court asking the Presiding Officer or the Returning Officer, as the case may be, to produce the votes polled in the said election. Apart from the aforementioned provisions, Sub-rule (3) of Rule 78 provides that an election to be void, inter alia, in the event the result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of nomination paper or vote or by any noncompliance with any of the provisions of the said Act or any of the Rules made thereunder. The learned trial Court while accepting the fact that illegalities have been committed by the Presiding Officer could not have shut out the applicant from producing his own evidence on merits. In Sarharendra Nath Mai v. Asoke Chandra Pradhan (Supra) upon taking into consideration the provision of Section 204 and Rule 78(3) of the Election Rules categorically held ''After considering the submissions made by the respective counsel appearing for the parties, it appears to me that Section 204 of the Panchayat Act is quite wide in its amplitude and all disputes relating to the election under the Panchayat Act can be raised under the said Section 204 of the Panchayat Act. In my view, the nature of dispute raised in the instant election dispute application comes under Rule 78(3) of the Election Rules and the learned Munsif is competent to adjudicate the said dispute u/s 204 of the Panchayat Act, read with Rule 78 of the Election Rules. It cannot be contended that the applicant is precluded from making the said application raising election dispute u/s 204 of the Panchayat Act simply because as the candidate he could have raised objection under a different provision at a particular stage. It may be noted that the applicant deposed that he had no opportunity to raise disputes before the concerned authorities and as aforesaid, his statements in this regard remained unchallenged in cross-examination. The power to raise the said dispute is there under the provisions of Section 204 of the Panchayat Act and in my view, such power is not excluded either expressly or by necessary implication by any of the provisions of the Panchayat Act and the Election Rules. In my view, the learned Munsif in proceeding with the election dispute case has power to ask for discovery and inspection and production of documents under Rule 75(2) (a) and (c) and in the facts and circumstances of the case for effective adjudication of the disputes raised, recounting of votes was essentially necessary''. Thus in view of the aforementioned decision, we reject the contention of Mr. Bhattacharyya that there exists no provision for recounting of votes. It is one thing to say as to whether the Court has jurisdiction or not and it is another thing to say as to whether in the facts and circumstances of this case such jurisdiction should be exercised or not.

Let us consider the decision relied upon by Mr. Bhattacharyya. In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen and Ors. (Supra) the Supreme Court merely stated that an order of recount of votes must stand or fall on the nature of averments made and the evidence adduced before the order of recounting is made. The learned trial Court has not rejected the application on the said ground and in fact has not considered such relevant facts at all before passing the impugned order. In Satyanarain Dudhani v. Uday Kumar Singh and Ors.( Supra) the Supreme Court held that in that facts and circumstances of that case the order of recounting was not justified. The Apex Court did not say that the Court had no power of recounting in that case the order of recounting passed by the High Court was reversed on the ground that in the application no details were given and no irregularity or illegality in the counting was brought to the notice of the Returning Officer. Further there was no contemporaneous evidence to show any illegality or irregularity in the counting. The said decision in the facts of that case, therefore, has no application. In Charan Dass v. Surinder Kumar and Ors. (Supra) the Supreme Court again on the basis of the materials available on record was not satisfied that a case of recounting of votes has been made out. it was held that the application was made on the vague ground. The Supreme Court itself had gone through the election petition but did not find any irregularity during the counting. As indicated hereinbefore the Court has not rejected the Petitioner''s application on that account. Similarly in Ajit Singh v. Bansi Singh and Ors. (Supra), the Supreme Court held that no case for interference with the order passed by the High Court has made out therein. The Apex Court also satisfied itself that no gross irregularity in counting the ballot papers in favour of the legitimate candidate was held. It is now well-known that a decision is an authoritative for what it decided and not what can logically be deduced there from. It is now also well settled principle of law that a little difference or additional fact may entail different results. In the facts and circumstances of this case, we are, therefore, satisfied that even in the terms of decisions of the Supreme Court relied upon by Mr. Bhattacharyya, the Court having failed to pause a right question so as to acquaint itself with the material facts required for the purpose of arriving at a correct decision, committed a self misdirection and thus the said orders cannot be sustained.

For the reasons aforementioned, F.M.A.T. 2049 of 1993 and F.M.A.T. 2410 of 1993 are dismissed; whereas CO. No. 24 of 1994 and CO. No. 95 of 1994 are allowed and the impugned orders December 16, 1993 are set aside and the matters are remitted to the learned Munsif for a fresh decision in accordance with law.

So far as F.M.A.T. 164 of 1995 is concerned, as indicated hereinbefore, the same has not been pressed owing to the reasons noticed hereinbefore. So far as F.M.A.T. No. 163 of 1995 is concerned, we are of the opinion that the learned Trial Judge having only directed compliance of the order passed by Ajit Kumar Sengupta, J. has not committed any illegality and in any event, the said order having been complied with in view of the fact that the contesting Respondents having been administered oath on January 21, 1995, no further order is required to be passed. The said appeal is also thus dismissed as having become in fructuous. So far as F.M.A.T. No. 3382 of 1995 arising out of CO. No. 17460 (W) of 1995 is concerned, in our opinion, in terms of the order passed by Ajit Kumar Sengupta, J. as the Petitioners thereof were contesting in the instant appeals having administered oath, the learned trial Judge cannot be said to have committed any illegality in directing the Block Development Officer to arrange for conducting such election. Such an order, in our opinion, is in accordance with law and therefore, requires no interference. However, it goes without saying that in the event, the election petitions of the Petitioners are allowed, it would be open to the learned Munsif to pass consequential orders. These orders have been passed keeping in view the order of A.K. Sengupta, J. which itself is subject to the result of the election petition filed by the applicant.

All the appeals are disposed of in the manner stated hereinbefore. However, in the facts and circumstances of this case, there will be no order as to costs.

Before parting with this case, we may notice that although Mr. Mahato, learned Counsel appearing on behalf of the contesting Respondents has denied and disputed that he had communicated the order dated January 2, 1995 as having been passed both in respect of Smt; Lakshmi Mukherjee and Smt. Sundari Kalindi and stated that the said letter was addressed on behalf of his client Smt. Mukherjee alone, from a copy of the said letter it appears that the name of Smt. Sundari Kalindi has been inserted therein. It is also evident that Smt. Kalindi was administered oath on January 1, 1995 only because authorities thought that they are required to do so in compliance of this Court''s order, as is evident from the report filed by the Block Development Officer before the learned trial Court. However, keeping in view the facts and circumstances of this case, we do not intend to make any further observation in the matter but hope and trust that orders of this Court would be correctly communicated by the lawyers concerned who are not only representing their clients but are also officers of this Court.

In the facts and circumstances of this case, the parties are directed to pay and bear their own costs of this appeals and application. The learned Munsif is hereby directed to conclude the hearing of the election petition in accordance with law at an early date and preferably within a period of two months from the date of communication of this order.

Satyanarayan Chakrabarty, J.

I agree.