IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.515 of 2010 KANTI DEVI W/O SHRI DULARCHAND SINGH R/O VILLAGE & P.O.- KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL RESPONDENT / APPELLANT VERSUS 1. THE STATE ELECTION COMMISSIONER BIHAR, OFFICE AT SONE BHAWAN, BIRCHAND MARG, PATNA-800001 2. THE RETURNING OFFICER-CUM-DISTRICT MAGISTRATE, ARWAL 3. THE ELECTION OFFICER-CUM-BLOCK DEVELOPMENT OFFICER KARPI, BLOCK, P.O. & P.S.- KARPI, DISTT.- ARWAL RESPONDENTS/ RESPONDENTS 4. SANDHYA DEVI W/O SHRI KRISHNA SINGH R/O VILL.- KOCHAHASA, P.O. KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL PETITIONER/ RESPONDENT 5. ASHA DEVI W/O SHRI RAKESH KUMAR R/O VILL.- CHIRARI BIGHA, P.O.- KOCHAHASA, P.S.- KINJAR, DISTT.- ARWAL 6. ASHA DEVI W/O CHANDRA BHUSHAN SINGH R/O VILL.- ANGARI, P.O.- SHANKARPUR, IMAMGANJ, P.S. KINJAR, DISTT.- ARWAL 7. MANJU DEVI W/O SHRI SUNIL KUMAR R/O VILL.- BANDHU BIGHA, P.O.- KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL 8. MITA DEVI W/O ABHIN KUMAR R/O VILL.- CHIRARI BIGHA, P.O.- KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL 9. MINA DEVI W/O SHRI ANIL KUMAR R/O VILL. & P.O.- SHANKARPUR IMAMGANJ, P.S.- KINJAR, DISTT.- ARWAL 10. RITA DEVI W/O SIKANDAR SINGH R/O VILL. & P.O.- KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL 11. REKHA DEVI W/O SHRI DINESH SINGH R/O VILL. & P.O.- KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL 12. LALITA DEVI W/O SHRI ANIL KUMAR R/O VILL.- ANGARI, P.O.- SHANKARPUR, IMAMGANJ, P.S. KINJAR, DISTT.- ARWAL 2 13. SHILA DEVI W/O SHRI SOMAR SINGH R/O VILL.- MAKHMILPUR, P.O.- SHANKARPUR IMAMGANJ, P.S. KINJAR, DISTT.- ARWAL 14. SANGEETA DEVI W/O SHRI JITENDRA KUMAR R/O VILL.- BAJITPUR, P.O. KOCHAHASA, P.S. KINJAR, DISTT.- ARWAL RESPONDENTS/ RESPONDENTS ----------- For the Appellant : Mr Dinu Kumar, Advocate For the Respondent No.4 : Mr Shri Prakash Srivastava, Advocate For the State : Mr Ranjeet Kumar Pandey,AC to GP 19 For the Commission : Mr Sanjeev Nikesh, Advocate -------- P R E S E N T THE HON‟BLE THE CHIEF JUSTICE THE HON‟BLE MR JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh, J. This Letters Patent Appeal is directed against judgment and order dated 10.2.2010 whereby the learned single Judge has allowed writ petition bearing CWJC No.9242 of 2008 preferred by Sandhya Devi, respondent no.4. As a result, while reversing the order dated 31.3.2008 of the Election Tribunal, Jehanabad whereby Election Case No.15 of 2006 preferred by respondent no.4, was dismissed, the election of the appellant (respondent no.4 in the writ petition) on the post of Mukhiya of Gram Panchayat Kochahasa in the district of Arwal has been set aside. 2. The relevant facts are not in dispute and find incorporated in the order under appeal. The writ petitioner (respondent no.4 herein) contested the election for the post of 3 Mukhiya in question and lost to the appellant by a margin of 37 votes. The voting took place on 24.5.2006. Counting of votes was held on 5.6.2006. A grievance appears to have been raised by the writ petitioner before the District Election Officer-cum- District Magistrate, Arwal on 6.6.2006 that some valid votes of the writ petitioner had been discarded as invalid and her valid votes and that of some other candidates had been included in the bundle of votes of the appellant and, therefore, all the ballot papers at all the booths may be ordered to be recounted once again. 3. Election Petition No.15 of 2006 was preferred by the writ petitioner. A grievance was raised in the election petition that bungling has been committed by the Returning Officer in course of counting of votes. It was alleged that in course of counting of ballots of booth no.71, 13 votes of the writ petitioner had been made to disappear because as per diary of the Presiding Officer total votes polled were 236 but the total votes counted were only 223. It was further alleged that while counting ballots of booth no.72 the Returning Officer somehow managed 39 votes in favour of the appellant because according to diary of the Presiding Officer number of ballots/ votes was only 250 but the total number of votes counted was shown to be 289. 4 4. The Election Tribunal considered first the prayer of the writ petitioner for reopening of the ballots and recounting and by order passed on 15.6.2007 gave a finding that polled votes of booth no.71 where the election petitioner claimed to have been deprived of 13 valid votes, may require to be opened for verification and counting. But ultimately by the final judgment and order dated 31.3.2008 which was under challenge in the writ petition, the Election Tribunal accepted the argument advanced on behalf of the appellant that even if it is assumed that 13 votes missing from the total polled votes were wrongly included in the valid votes of the election petitioner, the exercise of recounting would not have any material effect on the outcome of the election because the margin of victory was admittedly 37 votes. On that basis, the election petition was dismissed. 5. The learned Writ Court has taken note of the fact that 13 votes of booth no.71 were allegedly found short but has further held, contrary to records that 13 votes were counted as votes of the appellant. There is no dispute that in both no.71 the appellant got only five votes and hence, there could be no question of 13 votes of election petitioner being counted in favour of the appellant. It further appears that the Writ Court decided to interfere with the election of the appellant on the basis of the fact that according to official records 250 votes were polled at booth no.72 but altogether 289 votes were 5 counted as votes belonging to different candidates. The mystery of excess counting of 39 votes could not be explained by the parties or the officials and on that basis as well as on the basis of 13 votes alleged to be excess votes of booth no.71, the Writ Court gave a finding that the fairness of the election process and the election stood vitiated requiring its result to be set aside. 6. It was pointed out and submitted on behalf of the appellant that neither the Election Tribunal nor the Writ Court could succeed in giving any finding that the appellant had been benefitted in any manner from the discrepancies in respect of number of votes polled in booths no.71 and 72 and the number of votes counted. As an issue of law, it was submitted that the Writ Court failed to appreciate the relevance of its own finding in the penultimate paragraph that “it cannot be predicated as which are 39 fictitious votes and where all such problems arose”. According to learned counsel for the appellant, the discrepancies in the figures of votes polled and counted can be on account of unintentional mistakes or clerical errors and unless it can be shown that such discrepancy has benefitted the appellant to the extent of materially affecting the election result in her favour, no interference with her election is permissible in the light of limited grounds for setting aside election of a returned candidate which find 6 mention in Section 139 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟). 7. On the other hand, learned counsel for respondent no.4 (writ petitioner) has submitted that purity of election has to be maintained at all costs and once this Court finds that purity of the election or counting process is doubtful, an election under the Act must be declared void. In the alternative, it has been further submitted on behalf of the writ petitioner that this Court should interfere with the findings of the Election Tribunal in respect of recounting of ballots only in booth no.71 and in the interest of justice, this Court should direct for opening all the ballot boxes and for fresh and total recounting to find out the correct factual position with a view to solve the mystery of missing ballots from booths no.71 and 72. In reply to this alternative submission, learned counsel for the appellant has relied upon a recent Division Bench judgment of this Court reported in 2010 (2) PLJR 829 (Bal Mukund Roy v. the State of Bihar & ors.) to submit that sanctity of secrecy of the ballots is of paramount concern and recounting of ballots cannot be directed in a routine manner. In view of the aforesaid judgment, no merit is found in the alternative submission advanced on behalf of respondent no.4. 7 8. In order to appreciate the legal submission advanced on behalf of the appellant, it is relevant to notice the provisions in Section 139 of the Act which runs as follows :- “139. Grounds for declaring election to be void – (1) Subject to the provisions of sub section (2) if the prescribed authority is of opinion – (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the prescribed authority shall declare the election of the returned candidate to be void. (2) If in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- (a) that no such corrupt practice was committed at the election by the candidate and every such 8 corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent; then the Prescribed Authority may decide that the election of the returned candidate is not void. 9. According to learned counsel for the appellant only clause (d) of sub-section (1) of Section 139 may be stretched to apply to the case of the appellant but even on such exercise in the facts of the case, none of the four sub-clauses of clause (d) is applicable or is attracted to the case of the appellant because for application of any of the four sub-clauses it is a sine qua non that a finding must be recorded that the result of the election, insofar as it concern the returned candidate has been materially affected either by improper acceptance of the nomination or by any corrupt practice or by the improper reception, refusal or rejection of any vote or reception of any vote which is void. Admittedly, the finding of the Election Tribunal was to the contrary that even if it be assumed that 13 votes of booth no.71 were wrongly counted as that of the appellant, it would not materially affect her result. So far as discrepancy of votes polled and counted in respect of booth no.72 is concerned, admittedly, the 9 mystery could not be resolved as to where those votes have gone. Certainly, there is no finding that any of those 39 votes has been improperly received, refused or rejected so as to materially affect the election of the appellant. 10. In view of aforesaid legal and factual position, the argument advanced on behalf of the appellant is found to have substance. It must be held that the findings in respect of alleged discrepancies relating to booths no.71 and 72 are not sufficient so as to attract any of the grounds permissible under Section 139 of the Act for declaring election of the appellant to be void or bad. 11. In the matters of election governed by statutes such as the Act, it is not permissible for a Tribunal created by the Act to travel beyond the provisions of the Act and statutory provisions to interfere with the election of a returned candidate. Statutes dealing with election have to be treated as a complete Code and it is not permissible to resort to general principles of fairness etc. to interfere with an election process or with the result of an election already held. No doubt, there have been some judgments to the effect that if an election is held totally dehors the statutory provisions, it would be no election in the eyes of law and a Writ Court may interfere with such election. But that is not the case at hand. 10 12. In view of aforesaid discussions and findings, we have no option but to set aside the judgment and order under appeal and to dismiss the writ petition as without merits. There shall be no order as to costs. (Shiva Kirti Singh, J.) R. M. Doshit, CJ I agree. (R.M. Doshit, CJ ) The 13th July, 2010 AFR S.Kumar