IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10687 of 2010 1. KULDIP SINGH S/O TIRTH NAND SINGH R/O VILLAGE AND P.O.- BELSARA, P.S. RANIGANJ, DISTT.- ARARIA Versus 1. THE STATE ELECTION COMMISSION THROUGH THE STATE ELECTION COMMISSIONER SONE BHAWAN, BIRCHAND PATEL PATH, PATNA 2. THE SECRETARY, THE STATE ELECTION COMMISSION SONE BHAWAN, BIRCHAND PATEL PATH, PATNA 3. THE DISTRICT ELECTION OFFICER (PANCHAYAT) ARARIA, DISTT.- ARARIA 4. THE BLOCK DEVELOPMENT OFFICER-CUM-RETURNING OFFICER (PANCHAYAT) RANIGANJ BLOCK, DISTT.- ARARIA 5. BIRBAL YADAV S/O LATE MAHABIR YADAV R/O VILLAGE AND P.O.- BELSARA, P.S. RANIGANJ, DISTT.- ARARIA ----------- For the Petitioner:- Mr. S.B.K. Manglam, Sr. Adv. M/s Anita Kumari, Adv. For the State Election Commission:- Mr. Sanjeev Nikesh, Adv. For the Respondent No. 5:- Mr. Mehandra Thakur, Adv. -------------- 10. 27.01.2011 Heard learned counsel for the petitioner, the official respondents and for private respondent no. 5. The petitioner is the Mukhiya who successfully contested the elections from Gram Panchayat Raj, Belsara under Raniganj Block, District-Araria. It was questioned by respondent no. 5 in Election Petition No. 6 of 2006 before the Munsif at Araria. By judgment and order dated 25.6.2010, the suit preferred by respondent no. 5 has been allowed and the petitioner has been unseated. Learned counsel for the petitioner submits that being a voter in two wards of the same 2 constituency, even if the allegations be correct, was no disqualification to hold that his nomination should have been rejected or that the proposer was invalidated on the same ground. Reliance is placed on Sections 135 and 136 of the Bihar Panchayat Raj Act (hereinafter referred to as the „Act‟) and Rules 39 and 41 of the Bihar Panchayat Election Rules, 2006 (hereinafter referred to as the „Rules‟). It is next submitted that the trial Court has erred in relying upon oral evidence alone to arrive at a conclusion that the petitioner allegedly voted from both wards. Reliance has been placed on (2007) 11 SCC 1 (Pothula Rama Rao Vs. Pendyala Venakata Krishna Rao & Ors.) more particularly Paragraph-10 in support of the first proposition. Learned counsel for the respondent no. 5 contended that oral evidence was led that the petitioner and his proposer had in fact voted from both wards. Though the petitioner may have denied the same, a finding has been arrived at to the contrary. Section 135 of the Act provides that every person whose name is in the list of voters of any Panchayat constituency is qualified to be elected as a member or office bearer unless he is disqualified 3 under the Act or any other law for the time being in force. The petitioner undoubtedly was a voter in a ward of a constituency. The Court shall subsequently deal with the effect of his name being in two wards of the same constituency as alleged. Section 136 of the Act provides for disqualifications none of which has been attributed to the petitioner. In so far as Section 136(j) is concerned, the Court shall deal subsequently in the order with regard to the allegation that he voted from both the wards along with his proposer. Rule 39(a) provides that a person enrolled in the voter list of the concerned constituency and not disqualified under Section 136 of the Act may be proposer. It has rightly been pointed out on behalf of the petitioner that under Rule 39(f)(i) his nomination was rightly accepted after he gave a statement in the prescribed form along with the proposer. Their names were entered as electors in the concerned ward. It is nobody‟s case that the petitioner had filed more than one nomination paper consequent to his name figuring in two wards of the same constituency when the applicability of Rule 39(2) may have arisen for consideration. Rule 41 dealing with scrutiny of nomination paper prescribed that the production of a 4 certified copy of an entry in the relevant electoral roll shall be the conclusive evidence for the right of an elector to stand for election, unless it is proved that the candidate is disqualified. It is not in controversy that the respondent no. 5 had not filed any objections at the time of scrutiny of nominations. The trial Court holds the name of the petitioner and his proposer figured in more than one ward was alone sufficient to invalidate his nomination and the election. There is no discussion in the judgment of the provisions of the Act or Rules which the nomination or election is said to have violated. The statute only requires name of the candidate and the proposer should be in electoral roll of the constituency. In the case of Pothula Rama Rao (supra) relied upon by the petitioner, it has been held at Paragraph 10 as follows:- “10. The second ground urged by the appellant was that the Returning Officer ought to have rejected the nomination of the first respondent, as his name was entered twice in the General Electoral Roll for “No. 72, Kovvur Assembly Constituency” at Sl. No. 797 and also at Sl. No. 802 of Part 50. Section 18 of Representation of the People Act, 1950 (“the 1950 Act”, for short), no doubt, provides that no person shall be entitled to be registered in the electoral roll for any constituency, 5 more than once. But the question is whether the nomination of a candidate is liable to be rejected, if his name is entered in more than one place in the electoral roll. If the name of a voter is entered more than once, the consequence is that it can be corrected by the Electoral Registration Officer under Section 22 of the 1950 Act either on an application or suo motu. Section 2(1)(e) of the Act defines “elector” in relation to a constituency as a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act. Double entry of the name of a citizen in the electoral roll of a constituency is not a ground of disqualification (for registration in an electoral roll) under Section 16 of the 1950 Act. Nor is it a ground for rejecting the nomination under Section 36(2) of the Act.” The contention on behalf of the respondent no. 5 that he had led oral evidence to demonstrate that the petitioner and his proposer had voted from both wards has been considered in (2011) 1 SCC 503 (Joseph M. Puthussery Vs. T.S. John & Ors.) holding at Paragraph 21 that in election matters, undue credence or emphasis should not be given to oral evidence when documentary evidence may have been available but was not produced. “21. The finding that there is overwhelming and satisfactory oral evidence on that point that the distribution had taken place on 8.5.2001 and 9.5.2001, to say the least is contrary to the evidence on 6 record. What is the value of oral evidence while deciding the issue of corrupt practice within the meaning of Section 123(4) of the Act will have to be considered. So far as election law is concerned by now it is well settled that it would be unsafe to accept the oral evidence on its face value without seeking assurance from other circumstances or unimpeachable document. It is very difficult to prove a charge of corrupt practice merely on the basis of oral evidence because in election cases, it is very easy to get the help of interested witnesses.” Learned counsel for the petitioner has rightly submitted that if this was the allegation, respondent no. 5 should have asked for production of the 17A register. No such steps was taken by him in Election Petition No. 6 of 2006. The finding is therefore not sustainable. The judgment is set aside. The application is allowed. P. Kumar ( Navin Sinha, J.)