Dhamsadin vs Sheo Bahadur Singh and Others

Pradeep Kant, J.—Supplementary affidavit filed, is taken on record.

This petition makes a challenge to the order dated 24.4.2002 passed by the Election Tribunal SubDivisional Officer, Sohawal, Faizabad by means of which, the application for recounting of ballot papers was allowed and recounting was ordered to take place on 30.1.2002.

Sri D.C. Mukherjee has taken notice and appears, for the respondent No.1 Sheo Bahadur Singh.

Learned counsel for the petitioner Sri S.K. Mehrotra stated that except respondent No.1, rest of the opposite parties namely, opposite party No.2 to 9 are proforma opposite parties for whom notice need not be sent.

Notice on behalf of the opposite party No.12 has been accepted by the learned Chief Standing Counsel. So far as the opposite party No.10 and 11 are concerned, they are district authorities in their individual name but the learned counsel for the petitioner has stated that since the petitioner was not claiming any relief against the opposite party No.10 and 11, they may be permitted to be deleted from the array of parties. Learned counsel for the respondents has no objection. I, therefore, order that the names of the opposite party No.10 and 11 be deleted from the array of the opposite parties.

An election petition was filed on 7.7.2000 before the Prescribed Authority Sohawal, Faizabad, challenging the election of the petitioner of the Office of Pradhan, the result of which was declared on 26.6.2000. Since then, the election petition is pending and for one reason or the other, it could not be decided.

Earlier one Writ Petition no.461 (M/S) of 2001 was filed by the petitioner against the order of the Election Tribunal which did not permit the petitioner to file the written statement after he failed to avail the last opportunity afforded by the Tribunal. This writ petition was allowed on 20th February, 2001 and the petitioner was allowed to file written statement. Again, Writ Petition No.263 (M/S) of 2002 was filed by the petitioner challenging the order of the Prescribed Authority by mneans of which the application for amendment moved by the contesting parties was allowed and recounting of votes were ordered. The High Court while rejecting the challenge to the amendment allowed by the Prescribed Authority, upheld the contention of the petitioner with respect to the challenge made to the order of recounting. The High Court ordered that the Prescribed Authority would decide the election petition in accordance with law positively within three months from the date a certified copy of this order is produced before it. This order is dated 22.1.2002. Thereafter, the election petition proceeded further.

A copy of the ordersheet has been brought on record by means of the supplementary affidavit which shows that after the order passed by this Court on 22.1.2002 in Writ Petition No.263 (M/S) of 2002, the date 24.1.2002 was fixed in the case before the Election Tribunal on which date the copy of the order passed by the High Court was made available to the Presiding Officer who took note of the fact that the matter be concluded within three months. The Election Tribunal, therefore, issued notices and directed that the date should be fixed in the matter on every third day. On 14.2.2002, the respondent No.1 and some of the other respondents to the election petition, filed additional written statement and written statement also. The matter was placed for 18.2.2002 for issues. Further, it appears that on 18.2.2002, 22.2.2002, 28.2.2002, 1.3.2002, 15.3.2002, 23.3.2002, and on 27.3.2002, the matter could not be taken up as on all these dates, the lawyers were on strike. The ordersheet shows that the general dates have been given but the learned counsel for the parties inform this Court that these dates were given on account of the lawyers strike. The Presiding Office, therefore, could not proceed with the case because of their own act of the petitioner''s counsel as well as the respondent''s counsel. But the Presiding Officer was fully conscious that the High Court has directed the conclusion of the proceedings within three months.

It is a matter of grave concern that the lawyers who appeared before this Court got a direction from this Court for concluding the hearing of the election petition before the Election Tribunal within three months, but their colleagues, who were conducting the case before the Election Tribunal, did not cooperate before the Election Tribunal in getting the trial concluded as per the directions of the High Court.

In these circumstances, on 1.4.2002, parties'' counsel appeared. Issues were framed and for evidence, the matter was fixed for 10.4.2002. On 10.4.2002, again, the Advocates went on strike. However, the Presiding Officer proceeded with the matter and fixed 15.4.2002 for adducing evidence. On 15.4.2002, the lawyers represented their parties, documentary evidence was also filed which were sealed and the election petitioner was examined for whose cross examination the next date i.e. 20.4.2002 was fixed. On 20.4.2002, though the parties appeared but application for adjournment was sent on behalf of the petitioner, the returned candidate which application was rejected by the trial court. One more witness on behalf of the election petitioner Vijay Bahadur Singh was examined and for his crossexamination, 24.4.2002 was fixed. On 24.4.2002, counsel for the petitioner did not appear and, therefore, the impugned order was passed.

In this writ petition, the learned counsel for the petitioner has vehemently urged that the action of the Presiding Officer was mala fide and stressed that because of this, an application for transfer has been moved on 22.4.2002 before the District Magistrate but even without waiting for outcome of that application, the order was passed on 24.4.2002. His further submission is that on 20.4.2002, an application for adjournment was moved by Sri Vireshwar Dwivedi Advocate on the ground of his illness with the prayer that the matter may be taken up either on 22.4.2002 or on 27.4.2002 as in between, he would be busy before a case in the High Court. The Presiding Officer with a mala fide intention, rejected application for adjournment and fixed for 24.4.2002 and did not agree even for 22.4.2002.

Obviously, none of these applications have been brought on record but it is stated by Sri S.K.Mehrotra that on the basis of instructions, he has made these averments which averments also find place in the application for transfer. The application for transfer has been filed as Annexure No.5 to the writ petition. The rejection of the application for adjournment moved on 20.4.2002, cannot be said to be arbitrary or illegal exercise of discretion. As per directions issued by the High Court, the election petition was to be concluded within three months from the date of receipt of order of the High Court i.e., by 24.4.2002. The witnesses were also to be examined. The lawyers previously boycotted the courts and did not permit the Presiding Officer to continue with the proceedings and to conclude the proceedings and thereafter adjournments were being asked for. The Presiding Officer in view of the order of the High Court was under an obligation to proceed with the case and to conclude it within the time prescribed. There was no occasion for the Presiding Officer not to conclude the case within the time schedule provided by the High Court. The counsel appearing for the parties, if were not available for any reason whatsoever, ought to have made alternative arrangement and the mandate of the High Court should have been honoured.

I, therefore, do not find any illegality in the orders passed by the Presiding Officer in so far it proceeded with the matter after rejecting the application for adjournment. However, once the application of the counsel for the petitioner for adjournment was rejected and opportunity to cross examine the witness was given for which 24th April, 2002 was fixed, then, if on that date, the opportunity of cross examination was not availed of by the petitioner or by his counsel, the only order which could have been passed, was either to grant further time for crossexamination or to close the right of crossexamination of the respondent namely, the election petitioner. In case the Tribunal had in its discretion, closed the right of crossexamination, then if there were any other witness to be examined by the election petitioner, he should have been examined and if the election petitioner had closed his evidence, then in that case, it would have been obligatory for the Presiding Officer to fix a date for adducing such evidence by the petitioner (returned candidate) as may be advised, in rebuttal of evidence which had been tendered by the election petitioner in the trial, or to tender any independent evidence in support of his case.

The right to close evidence with respect to cross examining a witness can only deprive the party from cross examining the witness but his independent right to lead the evidence in rebuttal or in support of his claim, cannot be taken away in such a manner.

In the instant case, the Presiding Officer on 24.4.2002 on which date, the matter was fixed for cross examination of the witness Vijay Kumar Singh, finding that the counsel for the petitioner has not appeared, and there was no request even for adjournment, proceeded to decide the application finally. The conduct of the counsel for the petitioner or the petitioner was a matter of concern because in case on 24.4.2002, for any reason whatsoever, he was not in a position to attend the court, at least, a request should have been made for adjournment on that date by moving an application. At this juncture Sri S.K. Mehrotra learned counsel stated that on 24.4.2002, an effort was made to move an application for adjournment but the Presiding Officer refused to take the same. This fact has been refuted by Sri D.C. Mukherjee learned counsel for the respondent No.1 and I also see no reason that if such application had actually been moved, it would not have been entertained by the Presiding Officer as the same could have been rejected in case the Presiding Officer would not be willing to accept the request of adjournment.

The Election Tribunal passed the order on 24.4.2002 itself on the application of recounting without giving any opportunity to the returned candidate to lead the evidence in rebuttal or independent evidence in support of his case and without fixing any date for hearing on the application for recount, the impugned order was passed, which cannot be sustained.

The impugned order dated 24.4.2002 contained in Annexure No.1 to the writ petition is thus, hereby quashed. The parties are directed to appear before the Presiding Officer on 10.5.2002. Learned counsel for the parties Sri S.K. Mehrotra appearing for the petitioner and Sri D.C. Mukherjee appearing for the respondent No.1 state and undertake that they have instructions to state on behalf of the parties before the Election Tribunal that the counsel will not take adjournment and shall cooperate in the conclusion of trial of the election petition. The Election Tribunal is directed to conclude the election petition by giving short dates not beyond three days at a time, within a further period of two months from the date of receipt of a certified copy of this order.

The writ petition is accordingly allowed.

No order as to costs.

(Petition allowed)