IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16218 of 2007 RAJESHWARI DEVI, wife of Sri Rahunandan Prasad Yadav, resident of village- Jagatpur, P.O. Teyar, P.S. Akbarpur, District- Nawada. . . . . Petitioner. Versus 1. THE STATE ELECTION COMMISSION, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner. 2. The District Election Officer (Panchayat), Nawada, District- Nawada. 3. The Returning Officer (Panchayat), Akbarpur Block, District- Nawada. 4. Md. Anwar Khan, son of Shamshul Hoda Khan, Resident of village- Pithauri, Tole-Itkori, P.O. Pithauri, P.S. Akbarpur, District- Nawada. 5. Mahboob Alam, son of Md. Hanif, Resident of village- Pithauri, Tole- Itkori, P.O. Pithauri, P.S. Akbarpur, District- Nawada. 6. Ram Ratan Prasad, son of Baru Yadav, Resident of village- Jagatpur, P.O. Teyar, P.S. Akbarpur, District- Nawada. 7. Shanti Devi, wife of Late Kedar Nath Singh, Resident of villlage- Teyar, P.O. Teyar, P.S. Akbarpur, District- Nawada. . . . . . . Respondents. ----------- 7/ 04.02.2010 Heard learned counsel for the petitioner and the State. The petitioner prays for setting aside the judgment and order dated 22.09.2007 passed by Munsif, Nawada in Misc. Case (Election) No. 22 of 2006, whereby he dismissed the Election petition challenging the election of respondent no.4, Md. Anwar Khan. The petitioner and respondent nos. 4 to 7 contested for the post of Mukhiya of Gram Panchayat Raj, Teyar in the general election held in the year, 2006, for which polling was held on 18.05.2006 at Booth nos. 30 to 42. The case of petitioner is that respondent no.4 won election by capturing Booth nos. 33, 34 and 40 with the help of his group. The petitioner states that during counting on 09.06.2006 ballot papers in bundles were recovered from the ballot boxes in aforesaid booths. The petitioner states that the District Election Office was duly informed of - 2 - the bungling. He further contends that the fact that respondent no.4 secured almost cent percent of votes polled on 3 booths i.e. 33, 34 and 40 supports his case. To be specific respondent no.4 secured 375 votes out of 375 polled votes of booth no. 33; 279 out of 281 polled votes of booth no. 34; and 622 out of 625 polled votes of booth no. 40. Learned counsel submits that in fact two votes of booth no. 34 was declared invalid otherwise respondent no.4 would have secured cent percent votes polled on booth no.34. The petitioner polled 1020 votes in total whereas respondent no. 4 polled 1868 votes, out of which 1276 votes is alleged to be polled on the aforesaid three booths alone. If the votes polled on the three booths are discounted, the petitioner would be a clear winner over respondent no.4. Learned counsel submits that any one indulging in booth capturing would stand disqualified under the Panchayat Ordinance and Rules. The petitioner states that the State Election Commission has ample power under Section 123 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to Act, 2006) and Article 324 A of the Constitution of India for issuing necessary directions for the conduct of the elections to the Panchayat bodies in the State. Learned counsel submits that Section 139 of the Act, 2006 enumerates the grounds on which the election can be declared to be void. Further more, section 140 of the Act, 2006 states that if it is found that the votes have been obtained by returned candidate by adopting corrupt practices, then in such situation his / her election would be declared void and the next candidate can be declared to be elected. - 3 - Learned counsel has assailed the impugned judgment on the ground that it failed to take notice of the fact that there was no compliance of letter no. C 848 dated 21.05.2006, by which the Election Commission directed the District Magistrate- cum – District Returning Officer (Panchayat) to submit a report regarding illegality alleged in the complaint. Learned counsel submits that the respondents were bound to comply with the aforesaid direction of the State Election Commission. Further more, the Court misconstrued the report of the Block Development Officer, Akbarpur, the Returning Officer, contained in Ext. A and B to be a compliance report of direction of Election Commission. Learned counsel submits that Ext.-A, the forwarding letter of Block Development Officer would show that he made an enquiry in respect to letter no. 36/ Mu dated 22.07.2006 of Sub-Divisional Officer, Rajauli. Learned counsel submits that the enquiry made by the Block Development Officer, Akbarpur was in respect of recovery of ballots allegedly in bundles and absence of signature of the presiding officer on the ballot papers. There is no complaint that some people forcefully captured the booths and had stamped ballots. Thus, he submits that the election ought to have been declared null and void, as the respondents did not carry out the instructions of State Election Commission. Learned counsel appearing on behalf of respondent no.4 submits that total votes polled on booth nos. 33, 34 and 40 was about 85.4 %, 77 % and 84 % which is much less than 90 %. Further more, - 4 - the learned Magistrate noted that as the population of the community of respondent no.4 constituted more than 90 % in the area, it would not be surprising that if he received about 85 % of such votes being popular. He further submits that the learned election court noticed that no complaint was made by the writ petitioner. One Satish Prasad Sinha, who made complaint to the Election Commission, was not produced as a witness. The returning officer even stated that he did not receive any complaints of booth capturing. Further more, the Block Development Officer, Akbarpur made an enquiry in the light of the letter of Election Commission no. C 848 dated 21.05.2006 and found the allegations alleged to have been committed in course of election to be not well founded. There can be no dispute that if the returned candidate has obtained vote by adopting corrupt practice then in view of Section 139 and 140 of Act, 2006, his election would be declared void and the next candidate can be declared elected. Thus the vital issue is whether respondent no.4 resorted to corrupt practices including capturing of booth. It would appear from the impugned judgment that petitioner did not make any complaint much less one of booth capturing. A complaint was made by one Satish Prasad Sinha, who has not been examined as a witness. Respondent no.3, the Returning Officer stated that he had received letter no. C 848 dated 21.05.2006 of State Election Commission, which was also before him. He made due enquiry in respect of the allegations and did not find them - 5 - substantiated. He submitted his report to the Sub-Divisional Officer, Rajauli as directed by letter no. 36/Mu Rajauli dated 22.07.2006. The petitioner nowhere controverted before the Election judge that the allegations enquired by the Block Development Officer was any different than the allegations in respect of which a report was sought by the Election Commission in view of complaint made by Satish Prasad Sinha. So even if non-examination of Satish Prasad Sinha is ignored, the same would not improve the case of petitioner, as the enquiry report revealed that allegations contained therein were not correct. Further more, polling of 85.4 %, 77 % and 84 % of the total votes on three booths in favour of a candidate, wherein 90 % of the population belonged to the same community cannot be said to be all impossibility. In this view of the above, I do not find any illegality in the impugned judgment of the Election judge, as such this application is dismissed. Uday/ (Samarendra Pratap Singh, J.)