Sanjamaya Dukpa (Smt.) vs State of West Bengal

Dilip Kumar Seth, J.—The Petitioner alleges that on May 25, 1999, he had applied for recounting of votes before the Election Officer which is annex. ''D'' to this writ petition but the same has not been disposed of. Relying on Rule 49 Sub-rule 2 of the West Bengal Municipalities (Conduct of Election) Rules 1995 the counsel for the Petitioner contends that when such application is made it is incumbent on the Presiding Officer to decide the matter and allow the application by passing an appropriate order. This writ petition was moved on June 8, 1999, immediately after the election was held. The election was alleged to have been held on May 24, 1999, and the counting was over by May 25, 1999. In such circumstances the Petitioner is seeking appropriate relief as made in the writ petition as quoted below:

(a) A writ or writs in the nature of mandamus be issued thereby declaring the results dt. 25.5.99 in connection with Ward No. 2 as void and illegal;

(b) A writ or writs in the nature of mandamus be issued thereby directing the Respondent No. 4 to recount the votes in respect of Ward No. 2 of Darjeeling Municipality with regard to the Municipal Elections held on 23.5.99.

I have heard the Learned Counsel for the Petitioner.

It appears that since Rule 49 of the said Rules prescribes that after the completion of counting the Presiding Officer has to record the details in the counting sheet in Form 20 and announce the number of votes secured by each of the candidates at the polling station. Sub-rule 2 provides that after such announcement a candidate or his election agent or his counting agent may apply in writing to the Presiding Officer for recounting of votes either wholly or in part stating the grounds on which he demands recounting. Sub-rule 3 prescribes that on the application being made the Presiding Officer has to decide the matter and he may either allow the application in whole or in part or may reject if it appears to be frivolous. Sub-rule 4 provides that every such decision shall be in writing and should contain reasons. In case the Presiding Officer decides to allow recounting then in view of Sub-rule 5 he has to do the recounting and amend the counting sheet in Form 20 to the extent necessary after such recounting and announce the amendment so made. Sub-rule 6 provides that after the number of votes polled by each candidate has been announced either under Sub-rule 1 or under Sub-rule 5 the Presiding Officer has to complete and sign the counting sheet in Form 20 and no application for recounting shall be entertained thereafter. However, steps under Sub-rule 6 shall not be undertaken except until the candidates or their election agents or counting agents present, have been given a reasonable opportunity to exercise the right conferred under Sub-rule 2 as is provided in the proviso.

Thus the provision in Rule 49 is a provision related to the election at a particular point of time. In case the application is not decided and Rule 5 has been complied with without deciding any application made under Sub-rule 2 in that event no relief can be had by a person except by challenging the election itself before the appropriate forum. All these provisions are related to a situation at the spot before Sub-rule 5 and Rule 50 is complied with. As such no relief can be had on the basis of this writ petition after steps under Sub-rule 5 and Sub-rule 6 are completed.

It appears from Annex. ''D'' to the writ petition that the Presiding Officer had rejected the said application on the ground that there was no sufficient reason to satisfy him to order for recounting and as such he had rejected the same. Thus it is only the challenge with regard to the said decision as to whether the same is justified or not, that requires an examination.

After perusing the application for recounting made by the Petitioner, it appears that in the petition the ground that was made, was that there was great doubt. The demand for recounting is based on doubt. No cogent reason having been expressed, it is not possible to find out any reason from the said application for passing an order of recounting. The order of recounting can be passed only if there are reasonable grounds. Be that as it may, it the Petitioner could be able to make out a case that there was reasonable ground yet the same was rejected then only this Court can intervene. Having gone through the materials I do not find that any such ground has since been made out requiring this Court to intervene.

The election is a democratic process. It cannot be lightly interfered with. Unless there are sufficient ground to satisfy the Presiding Officer recounting cannot be ordered. Recounting cannot be ordered for the mere asking. A candidate or his agent cannot ask for recounting as of right. The right is a statutory right. Such statutory rights are available with the condition attached to it. If certain conditions are provided for then it is available only when such conditions exist or is satisfied to be existing. The burden to assert the existence of the required condition is on the person seeking to resort to such provision. If he does not specify or indicate the grounds to assert the existence of the condition he cannot assail the order of rejection on the ground of non-existence of any such conditions.

Once an election process starts Court is not supposed to interfere with the holding of the election. When election is over the same can be challenged in a Civil Court unless there is statutory Bar. If the statute provides for a mechanism for deciding election dispute, then it is that forum provided in the statute, which alone can go into the question. In view of existence of alternative remedy writ jurisdiction cannot be invoked. The question in such election dispute are necessarily question of fact which can best be decided either in Civil Court or in election forum as the case may be. Writ jurisdiction cannot be resorted to for determining such disputed question of fact.

By reason of the principle developed through various judgments of the Apex Court, not it is a settled law that election once started cannot be interfered with and the remedy is by an election petition vide Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . The aid of writ court cannot be sought for.

This writ petition therefore, fails and is accordingly dismissed. There will be no order as to costs.