Calcutta High Court Upholds Initial Vote Count For Panchayat Samiti Seat, Says BDO Favoured Candidates Of Ruling Party In Recount

The Calcutta High Court has negated the results of recounting for a Panchayat Samiti seat, which took place during the recently concluded Panchayat General Elections in West Bengal.

Petitioner argued that he had been informed of being the winning candidate by six votes on 11^th July, but when he went to collect his winning certificate the next day, he was informed that the votes had been recounted and he had lost.

In directing that the petitioner be reinstated as the elected member of the Panchayat Samiti, and negating the erroneous recount conducted by the Block Development Officer (“BDO”) a single-bench of Justice Amrita Sinha held:

There is absolutely no sanctity in the process of recounting. The same does not appear to have been conducted in accordance with the prescribed law. Neither the counting sequence nor the prayer for recounting was in conformity with the statute. The conduct of the BDO does not appear to be fair, rather it appears that the said officer instead of acting in an unbiased manner, took up the cudgel to bat in favour of the candidate supported by the ruling dispensation. Valid votes ought not to be rejected and the invalid ones ought not to be counted. The result of initial counting ought to be treated as final declaration of result.

These observations came in a plea by the petitioner, who claimed that there was no scope for a recount, since the counting officer in respect of the Panchayat Samiti votes had already left, and that the recounting initiative was solely undertaken by the BDO.

Petitioner alleged that none of the provisions of the WB Panchayat Election Rules 2006 pertaining to recounting had been complied with.

State Election Commission submitted that after the initial count, the petitioner had emerged as the winning candidate.

It was submitted that a prayer had been made for recounting by a private respondent, but that when the prayer was made, the counting for the next tier of elections- the Zilla Parishad had already started, in spite of which the Panchayat Returning Officer took the decision to recount.

SEC submitted that the BDO in presence of the respondent and his representatives recounted the votes of the panchayat samiti, and that members of other political parties had absented themselves despite being informed of the recount.

It was submitted that during recounting it was found that aside from the 127 ballots which had already been rejected, another 192 ballot papers had to be rejected due to non-signature of presiding officer.

Upon hearing the submissions of all parties, the Court was of the opinion that even if the private respondent had a genuine grievance, they were out of time in demanding for a recount when counting for the Zilla parishad had already begun.

The moment counting for the next tire started it implies that the counting process of the Panchayat Samity stood closed and concluded. It does not appear that the prayer for recounting was made in proper time, during the pause, and as such, it was improper for the Panchayat Returning Officer to accept such prayer which was filed at a belated stage it held.

Court further observed that it was “very strange” to note that 192 ballots stood rejected after recount, even though 127 had been rejected during the initial count. It was noted that the additional ballots were rejected in the absence of the counting agent of the petitioner, and that the same implied that a good number of votes which were initially found to have been polled in favour of the petitioner later stood rejected.

It further opined that recounting in the absence of the petitioner or their agents was a violation of the principles of natural justice, which subsequently led to the unanimous ruling out of 192 ballot papers.

Recounting the votes in the absence of the winning candidate, amounts to violation of the principles of natural justice embedded in the guidelines. Manipulation of result, as alleged by the candidate, cannot be ruled out. Transparency and fairness in the process of counting/recounting ought not to be compromised in any manner whatsoever, it was observed.

It was held that on account of recounting there had been a massive shift in the number of rejected votes, and that the Court would not be in a position to ascertain which the correct outcome was. It noted:

It is the duty of the counting officers to count the polled votes properly. The votes polled cannot be counted over and over again. There has to be an end; a finality has to be reached.

Accordingly, the Court held that, even though the election was concluded in July 2023, such a situation where non-interference of the Court would perpetrate gross injustice to the candidate as well as the electors, merited its intervention.

There can be no alternative to a free, fair and transparent election process, starting from the first to the last step. For the sole purpose of upholding the laws relating to elections, the result of recounting ought not to be given effect to. The result of initial counting ought to be treated as final declaration of result, it concluded.

Citation: 2023 LiveLaw (Cal) 317

Case: Tijendranath Mahato Vs. The West Bengal State Election Commission & Ors.

Case No: WPA 16670/2023

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