Election result made without the counting of votes, opposing relevant Rules and Instructions cannot be sustained: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2322 Santosh Kumar S o Rajeshwar Prasad Singh Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District Jaganath Paswan S o Bunilal Paswan Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District Rekha Devi W o Amrendra Kumar Resident of Village Jagdishpur Dharamu Gram Panchayat Raj Jagdishpur Dharmu P.S. Paroo District ... Petitioner s The State of Bihar Through the Chief Secretary Government of Bihar The Additional Chief Secretary Panchayati Department Government of Bihar Patna The State Election Commission 3rd Floor Sone Bhawan Birchand Patel Path Patna through the State Election Commissioner The State Election Commissioner The State Election Commission Panchayat) 3rd Floor Sone Bhawan Birchand Patel Path Patna The Secretary The State Election Commission3rd Floor Sone Bhawan Birchand Patel Path Patna The District Magistrate cum District Election Officer Date : 13 01 2022 Heard learned counsel for the parties Patna High Court CWJC No.2322 dt.13 01 2022 Petitioners have prayed for the following relief(s): Patna High Court CWJC No.2322 dt.13 01 2022 Patna High Court CWJC No.2322 dt.13 01 2022 After the matter was heard for some time learned counsel for the petitioners under instructions states that Patna High Court CWJC No.2322 dt.13 01 2022 petitioners shall be content if a direction is issued to the authority concerned i.e. respondent no.4 The State Election Commissioner the State Election Commission3rd Floor Sone Bhawan Birchand Patel Path Patna or any of the statutory authority to consider and decide the representation which the petitioners shall be filing within a period of four weeks from today for redressal of the Learned counsel for the respondents states that if such a representation is filed by the petitioners the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order. Statement accepted and taken on record. As such petition stands disposed of in the following terms: a) Petitioners shall approach the authority concerned within a period of four weeks from today by filing a representation for redressal of the grievance(s) b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the Patna High Court CWJC No.2322 dt.13 01 2022 date of its filing along with a copy of this order c) Needless to add while considering such representation principles of natural justice shall be followed and due opportunity of hearing afforded to the d) Equally liberty is reserved to the petitioners to take recourse to such alternative remedies as are otherwise available in accordance with law e) We are hopeful that as and when petitioners take recourse to such remedies as are otherwise available in law before the appropriate forum the same shall be dealt with in accordance with law and with reasonable dispatch Liberty reserved to the petitioners to approach the Court if the need so arises subsequently on the same and subsequent cause of action g) Liberty also reserved to the petitioners to make a mention for listing of the petition on priority basis. As and when any such mention is made Registry shall take steps for listing the petition at the earliest. h) We have not expressed any opinion on merits Patna High Court CWJC No.2322 dt.13 01 2022 All issues are left open i) The proceedings during the time of current Pandemic Covid 19 shall be conducted through digital mode unless the parties otherwise mutually agree to meet in person i.e. physical mode The petition stands disposed of in the aforesaid Interlocutory Application(s) if any stands disposed of. Sanjay Karol CJ) ( S. Kumar J

Summary: If the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Santosh Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 237 of 2022) Brief facts of the case are that petitioners have asked for the issuance of a MANDAMUS writ compelling and instructing the Respondent State Election Commission to call for the C.C. TV footage of election. Footage relating to the counting of votes in Gram Panchayat Raj Jagdishpur Dharmu, Nirvachan Constituency for the post of Ward Member and Mukhiya of Gram Panchayat Raj Jagdishpur Dharmu from the respondent and pass necessary orders in exercise of its power under Section 123 of the Bihar Panchayat Raj Act, 2006, if after C.C. TV’s scrutiny of counting video footage found the fact that no counting took place in the constituency in the presence of the candidates or their Counting Agents, including the petitioner, the election result was declared and a certificate of election was issued in favour of a candidate contesting the election. Petitioners have prayed for a declaration that, if the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained. Petitioners have further asked for the issuance of an appropriate writ in the form of MANDAMUS, requiring and instructing the Respondent State Election Commission to annul the election in the above-mentioned constituency if the C.C. TV investigation finds that the election based on footage of the counting process, it was discovered that no votes were counted in the above-mentioned Constituency in the presence of the candidates or their Counting Agents, particularly petitioner, and that a new election should be held in accordance with the law, but only after appropriate amendments to the Bihar Panchayat Election Rules, 2006 were made regarding the appointment of a sufficient number of Counting Agents to keep watch over the counting process proportionate to the Counting Tab. After scrutiny by C.C. TV, petitioners have requested that action be taken against the erring officers tasked with the responsibility of counting the votes in constituency.  It has come to light that the election result was declared without counting of votes in the presence of the candidates or their Counting Agents, particularly petitioner , in violation of the provisions of the Bihar Panchayat Election Rules, 2006, and the detailed instructions issued by the State” Election Commission through its Hand Book for Instructions Regarding Counting, 2021, soft copy of which was sent to all the District Election Officers (Panchayat) -cum- District Magistrate. Learned counsel for the petitioner’s states that the petitioners will be satisfied if a direction is issued to the authority concerned, i.e., respondent no.4, The State Election Commissioner, the State Election Commission (Panchayat), Patna, or any other statutory authority, to consider and decide the representation that the petitioners will be filing within four weeks from today for redress of the grievance. According to learned counsel for the respondents, if the petitioners file such a representation, the authority concerned must consider and dispose of it promptly, preferably within four months of its filing, along with a copy of this ruling. The petition and Interlocutory Application stands dismissed and since the court did not reach a decision on the merits, all issues are unresolved. When a petitioner seeks such remedies as are ordinarily available in law before the appropriate venue, the matter will be handled in conformity with the law and in a timely manner. The authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within four months of the date of its filing, along with a copy of this order, and while considering such representation, natural justice principles shall be followed and the parties shall be afforded due opportunity of hearing. Click here to read the judgment