Supreme Court Upholds Recount Order in Panchayat Election Dispute: Chandeshwar Saw vs. Brij Bhushan Prasad (2020)

Date of the Judgment: January 28, 2020
Citation: (2020) INSC 63
Judges: A.M. Khanwilkar, J., Dinesh Maheshwari, J.
Can an election tribunal order a recount of votes if there are allegations of irregularities in the initial counting, even if no formal request for a recount was made before the declaration of results? The Supreme Court of India addressed this issue in a case concerning a Panchayat election in Bihar. The Court examined whether the High Court was right in overturning the order of the Election Tribunal for recount of votes. The bench consisted of Justice A.M. Khanwilkar and Justice Dinesh Maheshwari, with the judgment authored by Justice A.M. Khanwilkar.

Case Background

The case revolves around the election for the post of Mukhia of Artyapur Gram Panchayat No. 8 in Bihar, held on May 6, 2016. The appellant, Chandeshwar Saw, and respondent No. 1, Brij Bhushan Prasad, were among the 13 candidates. After the counting of votes on June 4, 2016, Brij Bhushan Prasad was declared the winner by a margin of 154 votes. Chandeshwar Saw alleged that during the counting process, valid votes cast in his favor were rejected, while invalid votes for Brij Bhushan Prasad were accepted. Specifically, he claimed that votes marked with a light ink swastika symbol were not counted for him but were counted for the respondent. Despite raising objections with the Returning Officer, no action was taken. Consequently, Chandeshwar Saw filed an election case before the Election Tribunal, seeking a recount of votes, the setting aside of Brij Bhushan Prasad’s election, and a declaration that he himself was duly elected.

Timeline

Course of Proceedings

The Election Tribunal, after evaluating the evidence, found that the result sheet prepared by the election officer was improper and the counting of votes was not done as per the rules. The Tribunal noted that Chandeshwar Saw had raised objections during the counting process regarding the rejection of his valid votes and the acceptance of invalid votes for the respondent. The Election Tribunal declared the election result as null and void, set aside the certificate issued to Brij Bhushan Prasad, and ordered the District Magistrate to conduct a recount.

Brij Bhushan Prasad challenged this order before the High Court of Judicature at Patna. A single judge of the High Court upheld the findings of the Election Tribunal, stating that there was sufficient material to justify a recount. However, the single judge modified the order, directing the Election Tribunal to pass final orders after the recount results were available.

Subsequently, Brij Bhushan Prasad filed a Letters Patent Appeal (LPA) against the single judge’s decision. During the pendency of this appeal, the Election Tribunal, following the single judge’s directions, ordered the recount report to be placed before the District Election Officer for declaration of the result. This order was also challenged by Brij Bhushan Prasad in a separate writ petition. A Division Bench of the High Court disposed of both the LPA and the writ petition through a common judgment, setting aside the order of recount. This decision of the Division Bench is what was challenged before the Supreme Court.

Legal Framework

The judgment references the Bihar Panchayat Election Rules, 2006, particularly Rule 79, which pertains to the counting of votes. It also refers to Section 140 of the Bihar Panchayat Raj Act, 2006, which outlines the grounds on which a candidate other than the returned candidate may be declared elected.

Section 140 of the Bihar Panchayat Raj Act, 2006 states:

“140. Grounds on which a candidate other than the returned candidate may be declared to have been elected –
(1) If any person who has filed an election petition has, in addition to calling in question the election of the returned candidate, claims a declaration that he himself or any other candidate has been duly elected and the Prescribed Authority is of opinion-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have 142 obtained a majority of the valid votes, the Prescribed Authority shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.
(2) The decision of the Prescribed Authority shall be final.”

Arguments

Appellant’s Arguments (Chandeshwar Saw):

• The Division Bench of the High Court erred in reversing the well-considered decision of the Election Tribunal and the single judge, which had rightly ordered a recount of votes.
• The Division Bench failed to analyze the factual aspects of the case and the evidence presented by the appellant, which demonstrated irregularities in the counting process.
• The Election Tribunal and the single judge had correctly assessed the evidence and concluded that there were sufficient grounds for a recount.
• The appellant had specifically alleged that valid votes cast in his favor were rejected, while invalid votes for the respondent were accepted, and had provided witness testimony to support these claims.

Respondent’s Arguments (Brij Bhushan Prasad):

• The Election Tribunal’s order for a recount was not justified as the appellant did not make a case for recount.
• The appellant did not apply for a recount before the declaration of results.
• The Election Tribunal did not inspect the ballots or form a prima facie opinion based on the material produced by the appellant before ordering a recount.
• The decisions of the Supreme Court in Bhabhi vs. Sheo Govind & Ors. [(1976) 1 SCC 687] and Mahender Pratap vs. Krishan Pal & Ors. [(2003) 1 SCC 390], which were relied upon by the High Court, support the view that a recount should not be ordered without proper justification.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue before the court was:

1. Whether the Division Bench of the High Court was correct in reversing the order of the Election Tribunal and the single judge, which had directed a recount of votes.
2. Whether the Election Tribunal was justified in ordering a recount of votes based on the evidence presented by the appellant.
3. Whether the High Court should have modified the order of the Election Tribunal to declare the appellant as duly elected, instead of remanding the matter for a fresh decision.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court discussed and applied the principles laid down in Bhabhi vs. Sheo Govind & Ors. [(1976) 1 SCC 687], emphasizing the need for specific allegations supported by adequate material facts for ordering a recount.
• The Supreme Court distinguished the facts of Mahender Pratap vs. Krishan Pal & Ors. [(2003) 1 SCC 390], noting that in the present case, there was no attempt to mislead the court, and the recount application was not made after the results were declared.
• The Supreme Court followed the decision in Sohan Lal vs. Babu Gandhi & Ors. [(2003) 1 SCC 108], which held that a recount can be ordered even if no request was made during counting.
• The Supreme Court overruled the decision in Ram Rati (Smt) vs. Saroj Devi & Ors. [(1997) 6 SCC 66], which held that a written application for recount was necessary before the declaration of result.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• The Election Tribunal and the single judge of the High Court had correctly analyzed the evidence and found that there were sufficient grounds to order a recount of votes.
• The Division Bench of the High Court had reversed the recount order without properly analyzing the factual aspects and evidence presented by the appellant.
• The appellant had made specific allegations of irregularities in the counting process, supported by witness testimony.
• The recount of votes revealed that the appellant had secured 95 more valid votes than the respondent, reinforcing the appellant’s claim of irregularities during the initial counting.
• The Court emphasized that the secrecy of the ballot is sacrosanct, but it should not be used to shield irregularities in the counting process.

Logical Reasoning:

The Court considered alternative interpretations, such as the respondent’s argument that a recount should not be ordered without a formal application before the declaration of results. However, the Court rejected this argument, citing the decision in Sohan Lal vs. Babu Gandhi & Ors. [(2003) 1 SCC 108] and overruling Ram Rati (Smt) vs. Saroj Devi & Ors. [(1997) 6 SCC 66]. The Court also rejected the argument that the Election Tribunal should have inspected the ballots before ordering a recount, finding that the Tribunal had sufficient evidence to justify the order.

The Supreme Court’s final decision was to uphold the order of recount and declare the appellant as duly elected, based on the recount results and the evidence of irregularities in the initial counting process.

The Supreme Court stated the following reasons for their decision:

• The Division Bench of the High Court did not analyze the pleadings and evidence before reversing the recount order.
• The Election Tribunal and the single judge had correctly assessed the evidence and found sufficient grounds for a recount.
• The appellant had substantiated the allegations of irregularities in the counting process.
• The recount results confirmed the appellant’s claim of irregularities, as he secured 95 more valid votes than the respondent.

The Court did not have any minority opinion as the judgment was unanimous.

Key Takeaways

• An Election Tribunal can order a recount of votes if there are specific allegations of irregularities in the counting process, supported by adequate evidence, even if no formal request for a recount was made before the declaration of results.
• The secrecy of the ballot is important, but it should not be used to shield irregularities in the counting process.
• The High Court should not reverse a recount order if the Election Tribunal has properly analyzed the evidence and found sufficient grounds for a recount.
• In cases where a recount reveals that a candidate other than the returned candidate has secured a majority of valid votes, the court can declare that candidate as duly elected under Section 140 of the Bihar Panchayat Raj Act, 2006.
• The Supreme Court has overruled the requirement of a written application for recount before the declaration of result, as laid down in Ram Rati (Smt) vs. Saroj Devi & Ors. [(1997) 6 SCC 66].

Directions

The Supreme Court set aside the judgment of the Division Bench of the High Court, upheld the order of recount passed by the Election Tribunal, and declared the appellant, Chandeshwar Saw, as duly elected. The Court also directed that the election of respondent No. 1, Brij Bhushan Prasad, be set aside as invalid.

Development of Law

The ratio decidendi of this case is that an Election Tribunal can order a recount of votes if there are specific allegations of irregularities in the counting process, supported by adequate evidence, even if no formal request for a recount was made before the declaration of results. This case also overrules the previous position of law which required a written application for recount before the declaration of result, as laid down in Ram Rati (Smt) vs. Saroj Devi & Ors. [(1997) 6 SCC 66].

Conclusion

The Supreme Court’s judgment in Chandeshwar Saw vs. Brij Bhushan Prasad & Ors. reinforces the principle that election processes must be fair and transparent. The Court’s decision to uphold the recount order and declare the appellant as duly elected underscores the importance of addressing irregularities in the counting process and ensuring that the will of the people is accurately reflected in election results. The judgment also clarifies the circumstances under which a recount can be ordered and the powers of the court to declare a candidate other than the returned candidate as elected.