IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9153 of 2011 MD.GHEYAS & ANR . Versus THE STATE OF BIHAR & ORS . ----------- For the Petitioners: Mr. Yogendra Mishra, Advocate with Mr. Shahnawaz Ali, Advocate For the Election Commission: Mr.R.S.Pradhan, Sr.Advocate Mr. Sanjeev Nikesh, Advocate --------- 2. 20.05.2011 Heard the learned Counsel for the petitioners and the learned Counsel for the State Election Commission. The petitioners are stated to be contesting candidates for the post of Mukhiya and Sarpanch in the Ohari Gram Panchayat, District Nawadah. They seek quashing of the order of the Commission dated 13.5.2011 directing repoll at Booth Nos. 16 and 16(Ka). Learned Counsel for the petitioners submits that no disturbance has taken place at the two booths. The poll was peaceful. The allegations are instigated. The order does not state what was the nature of the acts by which the Commission was satisfied that the poll process was vitiated. There was no occasion to exercise the power under Rule 71 of the Bihar Panchayat Election Rules, 2006, which in any event is a very serious matter affecting sanctity of the poll. Strong reliance has been placed on the communication dated 2.5.2011 of the District Land Acquisition Officer on which the impugned order is based to submit that even that does not reflect any disturbance at the poll booths vitiating the poll process justifying a repoll. In support of the submission reliance has been placed on two news paper reports at Annexures 2 and 5 to the application. It was lastly submitted that there has been no report from the Presiding Officer or the Returning Officer or the District Election Officer who were alone statutorily competent to do so. 2 Counsel for the Commission points out from the news paper report itself that the Presiding officer acted in connivance with the concerned for capturing the booths making the poll process captive. The news paper reports on which reliance has been placed themselves talk of process of poll vitiated at the two booths. The Commission has acted on the report of the District Land Acquisition Officer. Whether there has been any obstruction/interruption or there is any other sufficient cause vitiating the poll process is a matter for the subjective satisfaction of the State Election Commission while exercising its statutory powers under Rule 71.The Court cannot substitute its opinion for the subjective satisfaction of the Commission which is an expert body entrusted with the responsibility to conduct elections. All that the Court can examine is whether there was material before the Commission to satisfy a subjective decision under Rule 71. It shall not be the jurisdiction of this Court under Article 226 to examine sufficiency of the materials. The reliance by the petitioners on the news paper report at Annexure 5 that the District Magistrate had allegedly stated that there was no disturbance at the booths necessitating a repoll can at best be classified as a hearsay evidence, the law with regard to which can appropriately be quoted from AIR 1993 SC 1348 (State of Haryana and others, v. Ch. Bhajan Lal and another, in the relevant extract at paragraph 21 as follows:- “21…..The dictum reads thus: "We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S. 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under 3 S. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein. It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported." No credence can therefore be given to the same in the writ jurisdiction. For the reasons as discussed by the Supreme Court that perhaps may appropriately be a matter for an election petition when ballots during both the poll processes shall be available. The materials on which the petitioners rely themselves suggest that the poll personnel at the booths were allegedly involved. If the poll personnel at the booth were allegedly involved the Court finds no reason in the Commission relying on a report of the District Land Acquisition officer in the circumstances. In any event of the matter the factual foundation of the report of the District Land Acquisition officer has not been challenged or denied, but what has been urged is that even that report does not make out a case for repoll. The District Land Acquisition Officer after examining the cross section of the voters came to the conclusion that poll irregularities had taken place. That these irregularities were committed silently suppressing the dissent is more than apparent from the language of the report in so far as this Court exercising powers under Article 226 is concerned. The Court finds no merit in the application. It is accordingly dismissed. Snkumar/- (Navin Sinha,J.) 4