IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9840 of 2008 HEMAN RAI, son of late Paras Nath Rai, resident of Village – East Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra ------------------ Petitioner Versus 1. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner. 2. The District Election Officer (Panchayat), Saran at Chapra. 3. The Returning Officer (Panchayat), Sadar Block Chapra, District – Saran at Chapra. 4. The Assistant Returning Officer (Panchayat), Sadar Block, Chapra, District – Saran at Chapra. 5. Munna Kumar, son of Sri Sri Girija Prasad, resident of village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 6. Anil Singh, son of Ram Babu Singh, resident of Village & P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 7. Ashok Kumar, son of Jaleshwar Rai, resident of Village & P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 8. Kalika Rai, son of Ramuna Rai, resident of Village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 9. Gaya Rai, son of late Ramdewan Rai, resident of Village – East Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 10. Dinanath Rai, son of late Bhaw Sagar Rai, resident of Village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 11. Punam Devi, wife of Manoj Rai, resident of Village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 12. Raj Kishore Rai, son of late Surendra Rai, resident of Village – East Baluan, P.O. Kans Diyar, P. S. Doriganj, District – Saran at Chapra. 13. Raj Narain Singh, son of late Ram Lakhan Singh, resident of village – Musepur, P.O. Naraon, P.S. Doriganj, District – Saran at Chapra. 14. Ram Pukar Rai, son of late Triveni Rai, resident of village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 15. Bijay Kumar, son of Baleshwar Rai, resident of village – East Baluan, P.O. - 2 - Kans Diyar, P.S. Doriganj, District – Saran at Chapra. 16. Sadanand Singh, son of Satya Narayan Singh, resident of Village Musepur, P.O. Naraon, P.S. Dorignaj, District – Saran at Chapra. 17. Shailendra Kumar Rai, son of Banwari Kishore Rai, resident of Village – West Baluan, P.O. Kans Diyar, P.S. Doriganj, District – Saran at Chapra. ---------------------------------- Respondents For the petitioner: Mr. S B K Mangalam For respondent No.5: M/s. Ashok Kumar Mishra and Raj Kumar Mishra. For the Election Commission: Mr. K B Nath and Mr. Sanjeev Nikesh. -------- 09. 22/10/2008 The present writ application is directed against the judgment and order dated 25.6.2008 passed by the learned Civil Judge, Junior Division No.II, Chapra in Election Petition No. 21 of 2006. By virtue of the impugned order the Election Tribunal was pleased to direct holding of fresh polling on booth Nos. 249 and 250 of Gram Panchayat No. 18 of Musepur, in the district of Saran after setting aside the election of the petitioner. It also directed that the final result would be declared based on the fresh poll on the two booths. Based on a notification dated 31.5.2006 issued by the State Election Commission, election for filling up the post of Mukhiya was conducted in the State of Bihar. The present matter relates to Musepur Gram Panchayat which falls under Chapra Sadar Block, in the district of Saran. The election was held. The result declared which went in favour of the petitioner. Petitioner thereafter took over as a Mukhiya of the Gram Panchayat in question but it seems that the result of the election did not satisfy respondent No.5 namely, Munna - 3 - Kumar. During counting of votes he lodged complaint with the Returning Officer, District Magistrate, as well as the State Election Commission stating large scale irregularities in the process of counting itself. But then since nothing came out of it, he decided to file election petition before the court of competent jurisdiction which was registered as Election Petition No. 21 of 2006. The election petition has been brought on record as Annexure-1 to the writ application. The matter was duly contested by the present petitioner and the Election Tribunal formulated 9 issues to be decided. The trial of the election petition resulted in a decision dated 25.6.2008. The decisions of the Election Tribunal based on the finding that there was serious irregularity in so far as booth nos. 249 and 250 were concerned because as per the records though 261 votes were polled on booth no. 249, 310 ballot papers were counted by the Returning Officer. With regard to booth no. 250, 400 votes were polled but only 376 ballot papers were found and counted and there were no serious explanation on this issue. Based on the evidence and the material which came during the trial the Election Tribunal declared the result in question to be illegal and directed holding of fresh poll on the two booths namely, 249 and 250 and the Election Commission was directed to declare the result based on the outcome of the fresh poll on two booths. It is this basic decision against which the petitioner approached the High Court by filing the present writ application. Some of the submissions which have been made on behalf - 4 - of the petitioner is that the order in question is illegal and the Tribunal erred in coming to the conclusion and interfering with the election result itself. According to him no material facts have been either stated or pleaded by the respondents in the election petition. In absence of the same there was no occasion for the Tribunal to direct holding of repoll on two booths. There was no prayer for repelling made in the election petition and therefore the Tribunal has exceeded its jurisdiction. The mandatory requirements of Rule 79 of the Bihar Panchayat Rules have not been followed because there does not seem to be any material to show that a demand for recounting as envisaged under Rule 79 was actually made. Some other objection on the impugned decision is that there was no proper verification or affidavits in support of the pleadings in the election petition and this ought to have been good enough for the tribunal to reject the petition itself. Yet another submission on behalf of the petitioner is that even if the allegation of some wrong doing on the two booths is accepted then the discrepancy in the number of votes polled and the number of ballots counted adds up 72 votes only. The margin of the victory in question was 114 votes. Even for the sake of argument , if those 73 votes are presumed in favour of the respondent no.5 the petitioner is still the winner. Notices were issued to the respondents to the present writ application but it is basically respondent No.5 and State Election Commission have chosen to contest the matter. They have filed their counter affidavit and submissions have been made by the - 5 - respective counsels both on the facts and in law. Learned counsel appearing on behalf of respondent no.5 submits that there is no illegality or error committed by the Election Tribunal. The conclusions are based on evidence and the findings have been rendered on the issues which were formulated in the election petition after due deliberation and due agreement between the parties before the trial court. The issues are based on the averments made in the election petition and stand taken in the written statement. Learned counsel for respondent no.5 draws the attention of the Court to the specific pleadings and averments with regard to the wrong doing both in the election and during the course of counting after the poll. Attention has been specifically drawn to paragraphs 9, 10, 11 and 12 of the plaint where a detailed narration of the events and specific averments with regard to two booths namely, 249 and 250 have been stated. According to him, therefore, the stand of the petitioner that there are no proper averments with regard to the material facts is totally misplaced. With regard to the prayer it is stated and urged that necessary reliefs have been brought in the prayer portion of the plaint. There is a prayer for repoll besides praying for annulling the election itself. Even if for the sake of argument if it is accepted, which is not so, then it is always open to the court to pass appropriate orders granting relief based on the pleadings and findings which emerge from the trial of the election petition. If the Election Tribunal has come to a categorical finding that there is something amiss with regard to the number of votes - 6 - polled on the two booths and actual number of ballot papers found and counted then it has done no wrong by ordering repolling on the two booths. After all the purity of the election must be reflected by the will of the people. On the specific plea taken by the petitioner that the matter relates to only 73 votes and since the margin of victory of the petitioner was 114 votes, therefore there was no occasion to upset the election it is submitted that if there is no clear reflection on the tally of the votes polled and who got how many votes then all is not well with the election process. Evidence has come on record that the complaint made by the respondent no.5 in terms of Rule 79 both before the Returning Officer, the District Magistrate and the State Election Commission did not beget him the required relief. He has been able to satisfy the Election Tribunal with evidence in this regard that the counting of the votes was not done in a proper manner; it has given undue and illegal benefit to the petitioner. The Court has been taken through the decision taken by the Tribunal on the issues which came to be formulated in this case. The Tribunal has rendered its opinion after dealing with the evidence both oral and documentary on all the issues. The finding with issue Nos. V, Vi & IX have special consequence which have been dealt with in detail. The finding or reasoning rendered by the court is based on the evidence. The trial court has reached the conclusion after proper appreciation of evidence. No serious infirmity has been pointed out by the petitioner with the reasoning and finding. If the Election Tribunal was of the opinion that no - 7 - proper counting was done with regard to the two booths No. 249 and 250 which had an impact on the final declaration of the result, then instead of calling for re-election for the entire Gram Panchayat the Tribunal adopted a prudent view by asking for re-poll on the two booths and the declaration of the results based on the same. Based on this decision and direction repoll has been held now on the two booths which was conducted on 27.1.2008. The votes have been counted thereafter and the respondent has got the maximum number of votes on the two booths based on which a certificate dated 8.8.2008 has come to be issued in his favour and he has been sworn as Mukhiya of the Panchayat in question. This development has taken place during the pendency of the writ application as the High Court in its wisdom did not want the repoll on the two booths stayed despite an interlocutory application having been filed in this regard by the petitioner on 15.7.2008. The stand of the State Election Commission is that there was certain complaints received by them with regard to the election in question at the relevant time but there is nothing much which could be done in the matter since the Returning Officer had already declared the results. The only option which respondent no.5 therefore had was to file election petition and challenge the election. The stand is that merit of the judgment rendered by the Election Tribunal is not being questioned by them. Having gone by the direction of the Tribunal held re-poll on the two booths and the final result has been declared where respondent no.5 has 539 votes in all - 8 - and the writ petitioner has 494 votes. This is the final result after the re-poll and respondent no.5 has been sworn in as Mukhiya of the Gram Panchayat. Taking rival contention of the parties into consideration the question is whether the judgment rendered by the election tribunal needs interference. The Court is of the opinion that the objection raised by the petitioner both with regard to the maintainability of the election petition as well as so-called illegality to the tribunal’s decision are technical piece of objection not supported by the material or the evidence which has come during the trial. The Court need not delve into the details of the findings and the evidence which has been discussed in detail by the tribunal because the judgment has to be tested by the High Court while exercising power under Article 226 of the Constitution of India . From the point of view whether the Tribunal has committed any patent illegality in law while exercising its jurisdiction under the special statute, the High Court is not sitting in appeal in the manner that it has to render its own opinion by reappraisal of evidence and the material on record. The Court after having looked at the plaint, written statement, the issues formulated in the election petition and the findings rendered by the Tribunal did not find any material irregularity or illegality in the decision which has been rendered in the election case. The decision of the Tribunal may not be to the liking of the petitioner but Tribunal has rendered justice by allowing holding of fresh poll on the two booths which came to be the bone of contention in the final decision and the - 9 - declaration of the result for the post of Mukhiya in question. If the results or the will of the people have gone in favour of respondent no.5 who is prima facie able to establish before the Tribunal that the election more so counting had not been done in fair and proper manner then there is no occasion for this Court to upset the will of people by rendering a different opinion and reappraising the finding. In the totality therefore petitioner has not succeeded in making out a case for interference with the impugned decision of the Tribunal dated 25.6.2008 rendered in Election Petition No. 21 of 2006. The writ application has no merit and the same is dismissed. rkp (Ajay Kumar Tripathi, J)