IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO. 13939 OF 2008 Sri Bhagwan Singh, son of Late Shiv Shankar Singh, resident of village- Turti, P.O. Munji, P.S Bikramganj, Dist. Rohtas at Sasaram …………………... Petitioner Versus 1. The State of Bihar 2. The State Election Commission through its Secretary 3. The State Election Commissioner, Bihar, Patna 4. The District Magistrate-cum-District Election Officer (Panchayat) Rohtas at Sasaram 5. The Sub-Divisional Officer-cum-Returning Officer, (Nirwachan Padadhikari), Bikramganj, Rohtas 6. The Deputy Development Commissioner-cum-Observer, Dinara Counting centre 7. The Circle Officer-cum- Assistant Returning Officer, Zila Parisad Constituency No. 20(1), Bikramganj, Rohtas 8. The Director, Panchayat Raj, Bihar,Patna 9. The Deputy Director, Panchayat Raj-cum-Observer, Patna Pramandal, Patna 10.Aruna Devi, wife of Arun Kumar Singh, resident of village- Dhawan, P.S. Bikramganj, Dist. Rohtas at Sasaram 11. Gupteshwar Mishra, son of Sheodip Mishra, resident of village and Post Office Durgadih, Police Station Bikramganj, District Rohtas at Sasaram 12. Gajendra Bahadur, son of Veer Bahadure Singh, resident of village and Post Office Jamaurhi, P.S. Bikramganj, Dist. Rohtas at Sasaram 13. Prem Chand Singh son of Jaggu Singh, resident of village and Post Office Nonhar, P.S. Bikramganj, Dist. Rohtas at Sasaram 14. Binod Singh, son of Ram Nathun Singh, resident of Village Mohanpur, Post Office, Karakat, P.S. Karakat, District- Rohtas at Sasaram 15. Veer Bahadur Singh, son of Sri Shipahi Rai, resident of village and P.O. Jamurahi, P.S. Bikramganj, Dist. Rohtas at Sasaram 16. Amrendra Pandey, son of Hridyanand Pandey, resident of village Kailani, Police Station Suryapura, District- Rohtas at Sasaram 17. Raj Kumar Ram, son of Dasai Ram, resident of Village Maharajganj, P.O. Nuawn, P.S. Bikramganj, Dist. Rohtas at Sasaram 18. Raj Mani Singh, son of Sukhdeo Singh, resident of village Turiti, 2 Post Office Munji P.S. Bikramganj, Dist. Rohtas at Sasaram 19. Ram Chandra Kumar, son of Mahesh Prasad, resident of village Indrath Khurd, Post Office Kastar Mahadev, P.S. Bikramganj, Dist. Rohtas at Sasaram 20. Sushma Devi, son of Vijay Kumar, resident of Village and Post Office- Shivpur, Police Station-Bikramganj, District- Rohtas at Sasaram ……………………… Respondents. ------------ For the petitioner: M/S. Vijendra Nath, Ram Chandra Singh, Satish Kumar, Jitendra Kr. Singh, Mahendra Pd. Roy, Radha Mohan Pandey & Ashok Kumar, Advocates. For the State : Mr. G.K.Agrawal, GP 1. For Resp. No.10: M/S Shashi Anugrah Narain, Sr. Advocate and P.N.Shahi, Advocate For Resp. Nos. 16,17 & 19 : Mr. Basant Kumar Choudhary, Sr. Advocate, S.K.Ranjan and Suresh Kumar, Advocates For Resp. No. 15 :- M/S. Y.V. Giri, Sri Advocate and Ashis Giri, Advocate For Resp. No. 11:- M/S. Asutosh Ranjan Pandey, Nand Lal Singh and Ramanuj Tiwari, Advocates For Resp. No. 20: M/S. Yogesh Chandra Verma, Sr. Advocate, Javed Aslam and Shankar Kumar, Advocates For the Election Commission: M/S K.B.Nath, and Samjeev Nikesh, Advocates. ---------- 7. 28.4.2010 O R D E R The main writ application was heard at length for final disposal at the stage of admission itself with the consent of learned counsels for the parties on different dates and thereafter the order was reserved. 3 Subsequently, I.A. No. 3872 of 2010 has been filed by respondent no. 10 in which it is stated that in the meantime the writ petitioner has died, and, once the writ petitioner is dead, the writ application has abated and, in the eye of law, it stands dismissed. On the matter being mentioned by Mr. Y. V.Giri, learned senior counsel appearing for respondent no. 10 in the interlocutory application, who had earlier appeared for respondent no. 15 during the hearing of the main writ application opposing the stand of the petitioner, he was informed by the Court that the judgment has already been dictated and likely to be pronounced on any date and in view of the principles laid down in Rule 6 of Order 22 of the Code of Civil Procedure, the writ application would not abate but learned counsel insisted upon the interlocutory application being taken up and accordingly, the matter was taken up under the heading “To Be Mentioned” and he was heard. The submission of Mr. Giri is essentially that the word “abatement” is the term used in the Code of Civil Procedure and loosely mentioned in the interlocutory application also but as a matter of fact, his 4 basic contention is that since no relief in favour of or against a dead person can be granted, hence, the writ application should be dismissed. It is urged by him that the Code of Civil Procedure does not apply to writ proceedings and thus there can be no application of Order 22 Rule 6 CPC to the matter. In support of his said stand learned counsel relies upon a decision of the Supreme Court in the case of Babu Bhai Muljibhai Patel Vs. Nandlal Khodidas Barot and ors: AIR 1974 SC 2105, in the first part of para-9 of which it has been held as follows: “It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under Article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words “as far as it can be made applicable” make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power 5 has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasized, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226……” Learned counsel further relies upon another decision of the Supreme Court in the case of Puran Singh and others Vs. State of Punjab and others: (1996) 2 SCC 205, in para-7 of which it was held as follows: “When the High Court exercises extraordinary jurisdiction under Article 226 of the Constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by the 6 different courts, Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression „proceedings‟ does not include “any proceedings under Article 226 of the Constitution” and statutorily recognized the views expressed by some of the courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable “in all proceedings in any court of civil jurisdiction”, it shall not include a proceeding under Article 226 of the Constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai V. Nandlal had said that (SCC Headnote p. 707) the words “as far as it can be made applicable” occurring in Section 141 of the Code made it clear that, in applying the various provisions of the Code to the proceedings other than those of a suit, the Court has to take into consideration the nature of those proceedings and the reliefs sought for after introduction of the explanation the writ proceedings have to be excluded from the expression „proceedings‟ occurring in Section 141 of the Code. If because of the 7 explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code “as far as it can be made applicable” to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extraordinary powers by the High Court under Articles 226 and 227 of the Constitution.” On the strength of the aforesaid submissions learned counsel submits that the provisions of Order 22 Rule 6 ought not to be applied in the present matter and the writ application should be dismissed applying the salutary rule that no relief should be granted either in favour or against a dead person. There can hardly be any doubt that the provisions of the Code of Civil Procedure per se do not apply to writ proceedings and whatever doubt or difference may have existed in the different High Courts with respect to the said issue, the same was finally laid to rest by the introduction of explanation to Section 141 of the Code of Civil Procedure, by the Code of Civil Procedure (Amendment) Act, 1976 under which the 8 proceedings under Article 226 of the Constitution have been expressly excluded so far as the following of procedure provided in the Code of Civil Procedure is concerned. That issue being now well settled, the same has not prevented the Courts from applying the well recognized principles of law enshrined in the Code of Civil Procedure to writ proceedings and other proceedings even when the Code of Civil Procedure does not directly apply. The Apex Court and the High Courts have recognized that many of the provisions and procedures under the Code of Civil Procedure simply enshrine the well recognized principles of exercise of power by the Courts and those principles are based on good reasons and sound rationale derived from centuries of experience governing the practice and procedure of Courts and they cannot be thrown out merely because the Code of Civil Procedure, of its own force, does not apply to the writ or other proceedings. To cite an example, in the Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior and others: AIR 1987 SC 88, the Supreme Court applied the principles of Order 23 9 of the Code of Civil Procedure in the matter of withdrawal of suits to writ petitions. Similarly, the principles of res judicata enshrined in Section 11 CPC are now very much accepted principles in writ proceedings. In Puran Singh‟s case (supra) relied upon by learned Senior counsel for respondent no. 10, in the relevant part of para-11 it has been stated as follows: “…… When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. ……..” 10 Similarly in para-8 of the said decision the Apex Court has stated regarding the applicability of the principles enshrined in Order 22 of the Code to writ proceedings in the following terms: “But then can it be said that as the provisions of Order 22 of the Code are not applicable to writ petitions, the party who has invoked the jurisdiction of the High Court by filing such writ petition under Articles 226 and 227 of the Constitution is at liberty to proceed with such writ petitions against a dead respondent? Can the High Court pass an order without hearing the legal representative of such deceased respondent even in cases where right to sue survives against the legal representative of such deceased respondent? If such legal representative is not brought on the record, any order passed against the original respondent after his death shall not be binding on them because they have not been heard. The order of the High Court shall be deemed to have been passed against a dead person. If the right of the petitioner to pursue the remedy survives even after the death of the original respondent to the writ petition, then on the same principle even the right to contest that claim survives on the part of the legal representative of the deceased respondent. In such a situation, after the death of the respondent if the right to sue survives against the legal representative of such respondent, 11 then the petitioner has to substitute the legal representative of such respondent before the writ petition can proceed and can be heard and disposed of.” The reason for applying the principles of substitution as laid down in Order 22 CPC even to writ proceedings has been based on the principle that except a personal action such as action, for damages for defamation or other personal injuries not leading to death, which dies with the death of the person who received the injury, in practically all other cases the right to sue survives after the death of the person and such right continues in the legal representative of the deceased. For the said reason Order 22 of the Code deals with that aspect of the matter relating to substitution of the heirs and legal representatives of the deceased who was a party to the proceedings. The proposition was explained in para-4 of Puran Singh‟s case (supra) in the following words:- “A personal action dies with the death of the person on the maxim actio personalis moritur cum persona. But this operates only in a limited class of actions ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the 12 death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory. (Girija Nandini Devi Vs. Bijendra Narain Choudhary: (1967) 1 SCR 93: AIR 1967 SC 1124) But there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter.” It is thus evident that Puran Singh‟s case (supra) relied upon by Mr. Giri does not in substance support his case rather it clearly lays down that wherever a salutary principle of law has been laid down in the CPC that may be applied even in writ proceedings, although per se they are not applicable to the writ petition. The principles laid down in Order 22 of the CPC are based on the basic premise that the death of the plaintiff or defendant shall not cause the suit to abate if the right to sue survives as laid down in Rule 1 thereof and thereafter the several provisions provide for substitution of the plaintiff or defendant before the suit 13 or other proceedings can be proceeded with. Rule 6 of Order 22, however, goes a step further when it states that irrespective of the fact whether cause of action survives or not, after the hearing has concluded and before pronouncing the judgment the death of either party shall not cause abatement of the suit and judgment in such case will be pronounced notwithstanding the death and have the same effect and force as if it had been pronounced before the death took place. Rule 6 of Order 22 is quoted below: “Order XXII Rule 6: 6. No abatement by reason of death after hearing.- Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.” It is evident from the aforesaid rule that it is not a mere procedural technicality but a basic principle of law keeping in view the principles of natural justice, 14 which has been considered the heart and soul of the procedure to be applied to writ proceedings also. Under the rules of natural justice no person should be condemned unheard which is expressed in the principle of audi alteram partem . If after the party has been heard and the matter is merely awaiting the pronouncement of the judgment by the Court and the party dies then it cannot be said that any prejudice has been caused by such judgment on the mere death of the party, since before the party died he had been fully heard by the Court and for the said reason it has been laid down as a salutary principle in Rule 6 that such judgment pronounced even after the death of the party shall have the same force and effect as before the death took place. That is the reason why Rule 6 begins with the non-obstante clause and holds that whether the cause of action survives or not there shall be no abatement by the reason of the death of either party after the matter has been heard. Mr. Giri sought to argue that the present writ petition arising out of an election petition, was a personal action of the petitioner and with his death the 15 same would come to an end. I am afraid, the said submissions are totally contrary to what is now the established proposition on the said point with respect to proceedings relating to an election. In this regard one can do no better than to quote the observation of Lawson J. in Tipperary case: 3 O. M. & H. 19(23) which are often quoted on the point of abatement in an election case: “The entire fallacy of the arguments used rests upon considering this proceeding as an ordinary lis, or action between individuals. It is said that you cannot present petition against a dead man. This is not a proceeding of a personal nature against a dead man; it is the assertion of a right in rem, a right to set aside and undue return, and in no sense falls within the maxim actio personalis moritur cum persona.” It has been repeatedly held that an election case relates to the rights of the entire electorate who are unquestionably interested in the proceedings. In the present matter, the respondent no. 10 was the election-petitioner before the Tribunal and apart from seeking the relief of setting aside the election of the winning candidate, namely, the writ petitioner, she had also sought a further declaration that she herself has been 16 duly elected and the said relief was granted to her by the Tribunal. Thus in such a matter, if the Court finds that the Tribunal had illegally granted her the said relief the same would still remain a subject of interest for the electorate, irrespective of the death of the writ petitioner. This ground all the more makes it necessary to apply the salutary principle contained in Rule 6 of Order 22 to writ proceedings arising out of an election petition. That the said rule is not a mere matter of procedure but a sound principle of law is evident from the fact that it was applied by the Apex Court in proceedings under the Administration of Evacuee Property Ordinance, 1949 which was under challenge in a writ petition for writs of certiorari, prohibition and mandamus in the case of Ebrahim Aboobakar and another Vs. Custodian General of Evacuee Property, New Delhi: AIR 1952 SC 319. For all the aforesaid reasons this Court does not find any merit in the submissions of learned Senior counsel for respondent no. 10 on this point. I.A. No. 3872/2010 is accordingly dismissed. 17 Heard learned counsels for the petitioner, the several respondents, the Election Commission and the State of Bihar in the main writ petition. The petitioner has come to this Court seeking quashing of the judgment and order dated 27.8.2008 passed by Sub Judge-I, Rohtas at Sasaram in Election Petition (Case) No. 3/2006 by which he has allowed the election petition filed by respondent no. 10 and declared as illegal, null and void and accordingly set aside the election of Opposite Party no. 9-petitioner Shri Bhagwan Singh as a returned candidate to the post of Member, Zila Parishad, 20 Bikramganj territorial constituency and further declared the election-petitioner- respondent no. 10, Aruna Devi to be successfully elected for the post. Briefly stated, the petitioner Shri Bhagwan Singh and the respondent no. 10, Aruna Devi along with other candidates were contestants on the post of Member, Zila Parishad, Bikramganj 20 Territorial Constituency. The elections having been held on 21.5.2008, the counting of votes started on 15.6.2006 in the presence of the candidates and/or their agents and continued till the 18 morning of 16.6.2006. At the end of the counting the result sheet was prepared in Form-20 as per the Bihar Panchayat Election Rules, 2006, in which the respondent no. 10, Aruna Devi had secured 4516 votes and the petitioner secured 4375 votes and thus the respondent no. 10 was the winning candidate by a margin of 141 votes. On an application for recount filed on behalf of the petitioner a recount was subsequently ordered by the Returning Officer, the Sub-Divisional Officer, and recount commenced in the evening of 16.6.2006 at around 6.30 P.M. and in the recount as many as 911 votes polled in favour of respondent no. 10 were declared invalid and similarly 417 votes earlier counted in favour of the petitioner were also declared invalid. The net result was that the petitioner and respondent no. 10 were shown to have secured 3957 and 3605 valid votes respectively, as a result of which the petitioner was declared elected by a margin of 352 votes. The result sheet was accordingly corrected and the petitioner was finally declared validly elected. Aggrieved by the same, the respondent no. 10 filed the Election Petition in which the aforesaid impugned order was passed. 19 The case of the election petitioner- respondent No. 10 was that the counting of votes had concluded at 9 A.M. on 16.6.2006 in which she was declared elected by a margin of 141 votes and accordingly, the Assistant Returning Officer asked her to come at 2.00 p.m. for collecting the certificate. However, when she went to collect the certificate of winning candidate on the same date, she was surprised to see that