IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.304 of 2010 1. GEETA DEVI W/O TRILOKI PRASAD R/O VILL- SIDHWALIA BAZAR, P.S. SIDHWALIA, DISTT. GOPALGANJ Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY RURAL DEVELOPMENT DEPTT., GOVT. OF BIHAR, PATNA 2. STATE ELECTION COMMISSION, BIHAR SONE BHAWAN, 3RD FLOOR, BIRCHAND PATEL MARG, PATNA THROUGH ITS SECRETARY 3. THE DISTRICT MAGISTRATE-CUM-DISTRICT ELECTION OFFICER (PANCHAYAT) GOPALGANJ 4. SUB-DIVISIONAL OFFICER-CUM-ELECTION OFFICER GOPALGANJ, DISTT. GOPALGANJ 5. VEENA RAI W/O MITHILESH RAI R/O VILL- SHER, P.S. SIDHWALIA, DISTT. GOPALGANJ 6. ASHA KHATOON W/O SERAJUDDIN R/O VILL- PAKARI, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 7. MURTI DEVI W/O LATE BIDYA SAH R/O VILL- BAHADURA, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 8. MAYA DEVI W/O SITARAM SAH R/O VILL- JHAJHAWA BAZAR (KUSHAR), P.S. MOHAMMADPUR, DISTT. GOPALGANJ 9. SUGANTI DEVI W/O MADAN PATEL R/O VILL- SUPAULI, P.S. SIDHWALIA, DISTT. GOPALGANJ 10. KIRAN DEVI W/O GAJENDRA PRATAP SINGH R/O VILL- KABIRPUR, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 11. DR. BABI W/O GHANSHYAM SINGH R/O VILL- GANGAWA, P.S. SIDHWALIA, DISTT. GOPALGANJ 12. DENANATH SAH S/O SHEOPUJAN SAH R/O VILL- RAMPURWA, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 13. RANI DEVI W/O DHARMENDRA MANJHI R/O VILL- KASHITENRAHI, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 14. MANJU DEVI W/O JITENDRA RAI R/O VILL- JALALPUR KALA, P.S. SIDHWALIA, DISTT. GOPALGANJ 15. RAMAYAN MAHTO S/O LATE MAHABIR MAHTO R/O VILL- SUPAULI KHURD, P.S. SIDHWALIA, DISTT. GOPALGANJ 16. MANJAR ALAM S/O ISLAMUDDIN MIAN R/O VILL- LOHIJARE, P.S. SIDHWALIA, DISTT. GOPALGANJ 17. JITENDRA PRASAD YADAV S/O LAL BAHADUR PRASAD YADAV R/O VILL- BISHUNPUR, P.S. SIDHWALIA, DISTT. GOPALGANJ 18. BRAJESH SINGH S/O LATE BINDA SINGH R/O VILL- CHANDPARNA, P.S. SIDHWALIA, DISTT. GOPALGANJ 19. BHAGNARAYAN RAM S/O LATE MOTI RAM R/O VILL- BUDHESI, P.S. MOHAMMADPUR, DISTT. GOPALGANJ 20. BINOD SAH S/O RAMNATH SAH R/O VILL- AMARPURA, P.S. MAHAMADPUR, DISTT. GOPALGANJ 21. SURENDRA RAM S/O DEWAKI RAM R/O VILL- SAHPUR, P.S. SIDHWALIA, DISTT. GOPALGANJ For the Petitioner : 1. Mr. Y.V. Giri, Sr. Adv. 2. Mr. Raju Giri, Adv. - 2 - For the State : Mr. Santosh Kumar Singh, SC.-22. For the Respondents : 1. Mr. Y.C. Verma, Sr. Adv. 2. Mr. Atul Kumar, Adv. For the Election Commission: Mr. R.S. Pradhan, Sr. Adv. Sanjeev Nikesh, Adv. --------------- 3/ 24.02.2010 The petitioner was elected Pramukh of Panchayat Samiti. His election is in controversy inasmuch as in course of voting by the Member of the Panchayat Samiti, the votes were equally divided. The Sub-Divisional Officer, who Chaired the meeting, was, then, required as per Rule 98 of the Panchayat Election Rules, 2006, was to draw a lottery. Lots were prepared but he called for a child from outside and in presence of all asked the child to draw the lot. The lots were drawn in favour of the petitioner. Respondent No. 5 who had earlier tied with the petitioner, filed an election petition before the learned Sub- Judge, Gopalganj, in terms of Section 137 of the Bihar Panchayati Raj Act. Two contentions were raised on behalf of respondent No. 5. Firstly, one vote was wrongly declared invalid which was substantially in favour of respondent No. 5. The second contention was that Rule 98 does not authorize the Sub- Divisional Officer to ask any other person to draw lot. Learned Sub-Judge-IV, Gopalganj, has rejected the first contention of respondent No. 5 by his order dated 22.12.2009 passed in Election Petition Case No. 6/2006/ 603/2009. Respondent No. 5 has not challenged the said order before any forum or any - 3 - authority. On the second issue the Election Tribunal held that calling the child girl for drawing lot, was contrary to the rules and as such ordered for fresh draw of lots. It is against that part of the order, on this writ petition has been filed. The draw of lot as ordered by learned Sub-Judge was stayed by interim order of this Court. Mr. Yogesh Chandra Verma appears for respondent No. 5 and submits that once a procedure has been prescribed by law to do and act must be done in accordance therewith and all other modes are prohibited. He is correct. But there is yet another principle dealing with election petitions and election relief. In an election petition it is established that relief is not to be granted merely for the asking unless it is established that substantial prejudice has been caused to the party seeking relief. In view of the admitted facts, as above, the Sub- Divisional Officer instead of being accused of manipulating the lots and becoming party chose to be more independent and transparent by calling a person not related to anybody and that too an innocent child to draw lot. The respondent No. 5 does not alleged anything as against the child or calling the child to draw lot. Thus, in draw of lot, in the manner, which was fair by all means no prejudice was caused to respondent No. 5. That being so, the learned Election Tribunal in absence of any prejudice being caused erred in ordering fresh draw lots. - 4 - In the result, that the order of Election Tribunal in this regard cannot be sustained and is set aside. The writ petition is allowed. Sanjeet/ (Navaniti Prasad Singh, J.)