IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7434 of 2009 RAM MURTI PRASAD, S/O LATE KAPILDEO CHOUDHARY, RESIDING OF VILLAGE-MOHANPUR, P.O. KANCHANPUR, P.S. & BLOCK- BIDDUPUR, DISTRICT – VAISHALI. …….PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT ELECTORAL OFFICER-CUM-DISTRICT MAGISTRATE, VAISHALI, HAZIPUR. 3. THE RETURNING OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DISTRICT-VAISHALI. 4. THE BIHAR STATE ELECTION COMMISSION, THROUGH THE STATE ELECTORAL OFFICER, SONE BHAWAN, PATNA, BIHAR. 5. BHADAI PASWAN, S/O GANGA SAGAR PASWAN, 6. LAXMI RAI, S/0- MAHAVIR RAI. 7. LAL BABU DEVI, S/O LATE KULDEEP SINGH. 8. KALI DASI DEVI, W/O RAMJEE SINGH. 9. VIJAY KUMAR SINGH, S/O SHRI SINGHESHWAR SINGH. 10. GAUTAM KUMAR SINGH, S/O SARYUG PRASAD SINGH. 11. CHOUDHARY VIRCHAND BAHADUR, S/O LATE RAMANAND PRASAD CHOUDHARY. 12. DHARAMVEER KUMAR, S/O SURENDRA RAI. 13. SUNIL KUMAR, S/O RAM KISUN RAI. 14. RAMESH PRASAD CHOUDHARY, S/O RAM NARAYAN CHOUDHARY. 15. BINDU DEVI, W/O RAJ KUMAR SINGH. 16. VISHWANATH RAI, S/O RAM NARAYAN GURUJEE. 17. BRAJNANDAN RAI, S/O SUKKHU RAI. 18. SATYENDRA KUMAR, SAMPRABHU PRASAD. CHOUDHARY, RESPONDENT NO. 5 TO 18 ARE RESIDENT OF GRAM & P.O.-KANCHANPUR, P.S. & BLOCK-BIDUPUR, DISTRICT-VAISHALI. ………..RESPONDENTS. For the petitioner : Mr. Satya Prakash Sinha, Advocate. For the State : Mr. Shankar Kumar, A.C to A.A.G -V For the Election Commission: Mr. Sanjeev Nikesh, Advocate. For respondent no.5 : Mr. Surendra Kishore Thakur, Advocate. WITH CWJC No.14304 of 2009 LAL BABU SINGH S/O LATE KULDEEP SINGH, RESIDENT OF VILLAGE & P.O. KANCHANPUR, P.S. & BLOCK- BIDDUPUR, DISTRICT – VAISHALI. …….PETITIONER Versus 1. THE STATE OF BIHAR. 2 2. THE DISTRICT ELECTORAL OFFICER-CUM-DISTRICT MAGISTRATE, VAISHALI. 3. THE RETURNING OFFICER-CUM-BLOCK DEVELOPMENT OFFICER, DISTRICT-VAISHALI. 4. THE BIHAR STATE ELECTION COMMISSION, THROUGH THE STATE ELECTORAL OFFICER, SONE BHAWAN, PATNA, BIHAR. 5. RAM MURTI PRASAD, S/O LATE KAPILDEO CHOUDHARY, RESIDENT OF VILLAGE-MOHANPUR, P.0.KANCHANPUR, P.S. & BLOCK-BIDHUPUR, DISTRICT-VAISHALI., 6. BHADAI PASWAN, SON OF GANGA SAGAR PASWAN. 7 LAKSHMI RAI, S/O MAHABIR RAI 8. KALI DASI DEVI, W/O RAMJEE SINGH 9. VIJAY KUMAR SINGH, S/O SHRI SINGHESHWAR SINGH 10. GAUTAM KUMAR SINGH, S/O SARYUG PRASAD SINGH 11. CHOUDHARY VIRCHAND BAHADUR, S/O LATE RAMANAND PRASAD CHOUDHARY 12. DHARAMVEER KUMAR, S/O SURENDRA RAI 13. SUNIL KUMAR, S/O RAM KISUN RAI 14. RAMESH PRASAD CHOUDHARY, S/O RAM NARAYAN CHOUDHARY 15. BINDU DEVI, W/O RAJ KUMAR SINGH 16. VISHWANATH RAI, S/O RAM NARAYAN GURUJEE 17. BRAJNANDAN RAI, S/O SUKKHU RAI 18. SATYENDRA KUMAR, SAMPRABHU PRASAD CHOUDHARY, RESPONDENT NO. 6 TO 18 ARE RESIDENT OF VILLAGE & P.O.-KANCHANPUR, P.S. & BLOCK-BIDUPUR, DISTRICT-VAISHALI. ………..RESPONDENTS For the petitioner : M/s. Mahesh Prasad No.2, Mukesh Kumar & Rewati Kant Raman, Advocates. For the State : Mr. Lal Babu Singh, A.C. to A.A.G-II For the Election Commission: Mr. Sanjeev Nikesh, Advocate. ----------- 13. 29.10.2010 Heard learned counsel for the petitioner in both the writ petitions, also heard learned counsel for the State of Bihar and its authorities as well as Bihar State Election Commission and its authorities and learned counsel appearing for the private respondents. 2. Both the aforesaid writ petitions have been heard 3 together and are being decided by this common order as petitioner of both the writ petitions challenges judgment dated 19.6.2009 (Annexure-5) by which Civil Judge, Junior Division (Munsif-I), Vaishali allowed Election Case No.69 of 2006 filed by Bhadai Paswan and declared the result of the election of Mukhiya of Panchayat Raj, Kanchanpur, Vaishali to be void directing fresh polling on Booth No. 41. 3. It is not in dispute that election was held for the post of Mukhiya of the aforementioned Panchayat on 21.5.2006 after observing the due process of law and counting was done on 15.6.2006. However, due to murder of a lady named Parwatia Devi re-poll was held on Booth No. 39 and recounting was done on 17.6.2006 whereafter petitioner of first writ petition Ram Murti Prasad was elected on the post of Mukhiya and certificate to that effect was granted to him on 18.7.2006. It further transpires that one of the candidates for the post of Mukhiya Bhadai Paswan (respondent no.5 in the first writ petition and respondent no. 6 in the second writ petition) challenged the said declaration vide Election Petition No. 69 of 2006. After considering the pleadings and evidence of the parties, the Civil Judge (Junior Division) Vaishali allowed the said election petition vide the impugned order dated 19.06.2009 (Annexure-5) and declared the result of the said election as void directing fresh polling on Booth No. 41 as per the existing voter list. 4. Writ petitioners of both the aforesaid cases have challenged the said order of the Election Tribunal on the same 4 ground, namely that Both Nos. 39 and 41 were not situated in the same room, rather Booth Nos.41 and 42 were situated in one room, whereas Booth No.39 and other booths were situated in the adjacent room. They further claimed that the murder of the lady named Parwati Devi affected other booths more which would be apparent from the votes polled in the said booths which showed 30% votes on the other booths. Learned counsel for the petitioners of both the cases further state that the Election Tribunal did not consider the matter in its correct perspective and if re-poll was found to be necessary the re-polling should have been ordered for all the polling booths, namely 36, 37, 38, 39, 40 and 41 as partial re-poll will cause undue prejudice against the seriously contesting candidates. 5. From the aforesaid facts and circumstances of the case, it is quite apparent that after the murder of the aforesaid lady re-poll was held on Booth no.39 but that was not challenged by any of the parties and after recounting held on 17.6.2006 it was found that the candidate was declared elected, namely Ram Murti Prasad had secured 463 votes whereas the second highest votes i.e. 456 votes, was secured by Sunil Kumar, and the petitioner of the second writ petition namely Lal Babu Rai was the third who secured 339 votes and the election petitioner Bhadai Paswan had secured only 91 votes. In the said circumstances, between the first and second candidates, namely Ram Murti Prasad and Sunil Kumar, there was difference of only about 7 votes. 5 6. The Election Tribunal had considered the pleadings and evidence of the parties in detail and thereafter it had found that Ext.-2/A produced by the election petitioner showed that total votes polled were 2385, whereas Ext. C and D showed that the total votes polled were 2376. All the aforesaid three exhibits were certified copies of the relevant documents, but they recorded varied numbers and the difference of the said numbers was 9 votes. Hence the court below was justified in raising the question as to where had these 9 votes gone. From the pleading and evidence on record the court below has also found that the most affected booths due to murder of the lady were booth nos. 39 and 41 out of which re-polling was held for booth No. 39, but surprisingly enough the election authorities did not consider re-polling of Both no. 41 which was also found to be necessary. These are matters of fact and the court below was quite justified in coming to the conclusion that the election authorities had committed irregularities while considering and deciding the said matters with regard to re-poll. Accordingly the court below was quite justified in allowing the election petition and directing re-poll on Booth No. 41. This Court does not find any illegality in the impugned order of the Election Tribunal. 7. Furthermore, in compliance of the order of the Election Tribunal re-polling has been held on booth no. 41 and Sunil Kumar has already been declared elected. This declaration has also not been challenged by any of the parties before the Election Tribunal which was the appropriate authority to 6 consider the matter. However, these facts were merely brought on record in the first writ petition by way of supplementary affidavit. 8. In the aforesaid facts and circumstances of this case, this court does not find any requirement to interfere in the impugned judgment of the court below nor does it find any merit in any of the aforesaid two writ petitions which are, accordingly, dismissed. Amit (S.N. Hushain, J.)