Patna High Court
Dev Narayan Sahu @ Dev Narayan Sah vs The State Of Bihar on 29 January, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5501 of 2022
======================================================
Dev Narayan Sahu @ Dev Narayan Sah, Son of Late Ram Vriksh Shah,
Resident of Village - Mehsaul, Ward No. 7, P.O. - Mehsaul, P.S. -
Runnisaidpur, District - Sitamarhi. ... ... Petitioner/s
Versus
1.
The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.
2.
The State Election Commission (Panchayat), Sone Bhawan, Bir Chand Patel
Path, Patna through the State Election Commissioner.
3.
The State Election Commissioner, The State Election Commission
(Panchayat), Sone Bhawan, Bir Chand Patel Path, Patna.
4.
The Secretary, The State Election Commission (Panchayat), Sone Bhawan,
Bir Chand Patel Path, Patna.
5.
The District Election Officer (Panchayat), Sitamarhi, District - Sitamarhi.
6.
The Returning Officer, Panchayat Election, 2021, Runnisaidpur Block,
District - Sitamarhi.
7.
Saji Ahmad, Son of Safi Ahmad, Resident of Village and P.O. Mehsaul, P.S.
Runnisaidpur, District - Sitamarhi.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.B.K. Manglam, Advocate
Mr.Awnish Kumar, Advocate
For the State : Mr. Kumar Alok (Sc7)
For the SEC : Mr. Ravi Ranjan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 29-01-2024
Heard Mr. S.B.K. Manglam, along with Mr. Awnish
Kumar, learned counsels appearing on behalf of the petitioner;
Mr. Kumar Alok, learned SC7 for the State and Mr. Ravi
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
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Ranjan, learned counsel for the SEC.
2. Petitioner has filed the writ petition inter alia for
following relief(s):-
(I) For issuance of an appropriate writ in
the nature of mandamus commanding and directing
the respondent authorities to declare the election of the
respondent no.7 as the Mukhiya of Gram Panchayat
Raj, Gangwara Bujurg under Runnisaidpur Block of
Sitamarhi District, void on the ground that for the
election of respondent no.7, the respondent nos.5 and
6 had crossed all their limits when they had
undertaken a re-poll in Booth No.213 of Gram
Panchayat Raj, Gangwara Bujurg after the counting of
votes already polled in the said booth on 12.12.2021
by altogether a different Presiding Officers and based
upon said re-poll, there was a re-counting and in the
said recounting, the respondent no.7 was declared
elected though in view of the votes polled in all 13
booths of the said Gram Panchayat, the petitioner was
winning the election by a margin of 25 votes.
(II) For issuance of an appropriate writ in
the nature of mandamus, commanding and directing
the respondent nos.1,2 and 3 to deal with respondent
nos.5 and 6 with iron hands since they have committed
a fraud upon the democracy and the electorates
residing in Gram Panchayat Raj, Gangwara Bujurg by
holding a re-poll in Booth No.213 of the said Gram
Panchayat and declaring the respondent no.7 as a
returned candidate from the post of Mukhiya of said
Gram Panchayat, otherwise, it will difficult to sustain
the democracy and the democratic institution in the
State of Bihar.
(III) For a declaration that though the
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State Election Commission has been constituted to
ensure the constitution of grass root democracy by
holding a free and fair election but it has miserably
failed to conduct a free and fair Panchayat Election,
2021 at least in the petitioner's gram Panchayat when
it remained a silent spectator even when the fraud
committed by the respondent nos.5 and 6 was duly
communicated to the State Election Commission by the
petitioner.
(IV) For issuance of any other appropriate
writ/writs, order/orders, direction/directions for which
the writ petitioner would be found entitled under the
facts and circumstances of the case."
3. Learned counsel appearing on behalf of the
petitioner submitted that the petitioner had been declared as a
returned candidate in the poll held on 12.12.2021 for the post of
Mukhiya of Gram Panchayat Raj Gangwara Bujurg, having
received the largest number of total votes in favour of the
petitioner is 1073 in all 13 booths, as would appear from
Annexure P1, to which no objection was made by any of the
participating candidates, including respondent No.7. In favour
of respondent no.7, altogether 1048 votes were cast and a
specific statement has been made in this regard in paragraph 9
of the writ petition.
4. Learned counsel submitted that in absence of any
objection alleging that the EVM machine was malfunctioning
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4/24
from the candidates to the office on duty who were present at
the time of casting of the vote on 12.12.2021 or its counting,
the action of the respondent no. 6, who is the Returning Officer,
directing for holding re-poll of booth No.213 on 15.12.2021 is
illegal and biased in favor of respondent no. 7, who had secured
less votes than the petitioner. On the basis of re-poll dated
15.12.2021
in booth no. 213, respondent no. 7 has been
declared as returned candidate by a margin of 62 votes, which is
an illegal action in absence of any objection raised and
application filed by respondent no.7 for recounting of votes on
12.12.2021. Learned counsel further submitted that the
petitioner has raised specific objection in his complaint dated
18.12.2021 before the State Election Commission, Gangwara
Bujurg, Gram Panchayat Sitamarhi regarding the biased actions
of the respondents concerned favoring respondent no. 7.
5. A counter affidavit has been filed on behalf of the
District Election Officer and the Returning Officer-cum-Block
Development Officer, Runnisaidpur, Sitamarhi stating that
during counting of votes polled for booth No.213 Gram
Panchayat, Gangwara Bujurg under Runnisaidpur block of
Sitamarhi district on 15.12.2021, a technical defect in the
CU(H63448) was reported by the BEL Engineer, and so, on the
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
recommendation of the returning officer, (Panchayat)-cum-
Block Development Officer, Runnisaidpur, the District Election
Officer, Panchayat-cum- District Magistrate, Sitamarhi by letter
dated 14.12.2021 after due review in Form 'Kh',
recommended for re-poll for Booth No.213 and forwarded the
same to the Secretary, the State Election Commission, Bihar,
Patna. Learned counsel submitted that the petitioner cannot
take benefit of the counting which was held on 12.12.2021 due
to malfunctioning of the EVM machine. The result-sheet of re-
counting of Booth No. 213 dated 15.12.2021 (Annexure P/3)
shows that the petitioner, namely, Dev Narayan Sahu @ Dev
Narayn Sah got 190 votes whereas respondent no.7, namely,
Saji Ahmad got 77. It is to be noted that, on the date of voting
dated 12.12.2021, i.e before recounting of Booth No. 213, on
the basis of the EVM machine, the petitioner had received total
218 votes and respondent no.7 had received only 18 votes.
Learned counsel appearing on behalf of the State on these
grounds, submitted that law is well settled that any dispute
arising out of election, the remedy lies before the Election
Tribunal by filing election petition and as such the writ petition
is not maintainable.
6. The State Election Commission has not filed their
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
counter affidavit. However, Mr. Ravi Ranjan, learned counsel
appearing on behalf of State Election Commission, submitted
that the State Election Commission has no role after the election
process is over and he submitted that petitioner has remedy
before the Election Tribunal by filing an election petition.
7. Learned counsel admits that there is no statement
with respect to the technical expert report with respect to the
non-functioning of the EVM machine which calls for re-polling
at booth No.213 on 15.12.2021 and counting based on the other
EVM machine have not been brought on record.
8. Having heard the rival submissions made on behalf
of the parties, the admitted fact is that the respondent no.7 has
not made any objection with respect to non-functioning of the
EVM machine, and the Block Development Officer-cum-
Returning Officer suo motu assumed that there is technical
defect in the EVM machine in CU(H63448) on a report from
the Engineer of the BEL. The report of BEL has not been
brought on record. Without any report of BEL report of engineer
with respect to the defect in the EVM machine, the District
Election Officer(Panchayat)-cum-District Magistrate informed
the Secretary, State Election Commission for re-poll of Booth
No.213.
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
9. Having heard the rival submission of the rival
parties and materials available on records, the question with
respect to any interference by this Court that it can enter into
the question, as to whether, on mere statement made in counter
affidavit that the District Election Officer has acted within his
jurisdiction and the State Election Commission on the
recommendation of the District Magistrate can be held to have
acted in all fairness in cancelling the election held on
12.12.2021 and in announcing the date of re-polling on
15.12.2021 in which the respondent No.7 was declared returned
candidate in facts and circumstances that the EVM Machines
containing votes cast on 12.12.2021 was malfunctioned and on
which basis the petitioner was declared returned candidate and
on the basis of voting held on 15.12.2021, the respondent no. 7
was held winning candidate.
10. Before proceeding to analyze the facts, the law
with respect to interference by the Court in executing power
under 226 in election matter, is no more res integra. The power
of judicial review in election matter is a concept which is no
longer in issue.
11. The High Court in exercise of its power of
judicial review under Article 226, may look into the material on
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
record to determine any illegality in decision making process
coupled with irrationality and perversity. The Hon'ble Supreme
Court in the case of Election Commission of India v. Ashok
Kumar, reported in (2000) 8 SCC 216, has held as follows:-
"18. Is there any conflict between the
jurisdiction conferred on the High Courts by
Article 226 of the Constitution and the
embargoes created by Article 329 and if so how
would they coexist came up for the consideration
of a Constitution Bench of this Court in N.P.
Ponnuswami v. Returning Officer, Namakkal
Constituency [(1952) 1 SCC 94 : AIR 1952 SC
64] . The law enunciated in Ponnuswami [(1952)
1 SCC 94 : AIR 1952 SC 64] was extensively
dealt with, also amplified, by another
Constitution Bench in Mohinder Singh Gill v.
Chief Election Commr. [(1978) 1 SCC 405 : AIR
1978 SC 851] The plenary power of Article 329
has been stated by the Constitution Bench to be
founded on two principles:
(1) the peremptory urgency of prompt
engineering of the whole election process without
intermediate interruptions by way of legal
proceedings challenging the steps and stages in
between the commencement and the conclusion;
(2) the provision of a special jurisdiction which
can be invoked by an aggrieved party at the end
of the election excludes other form, the right and
remedy being creatures of statutes and controlled
by the Constitution.
On these principles the conclusions arrived at in
Ponnuswami case [(1952) 1 SCC 94 : AIR 1952
SC 64] were so stated in Mohinder Singh Gill
case [(1978) 1 SCC 405 : AIR 1978 SC 851] :
(SCC p. 426, para 26)
"(1) Having regard to the important functions
which the legislatures have to perform in
democratic countries, it has always been
recognised to be a matter of first importance that
elections should be concluded as early as
possible according to time schedule and all
controversial matters and all disputes arising out
of elections should be postponed till after the
elections are over, so that the election
proceedings may not be unduly retarded or
protracted.
(2) In conformity with this principle, the
scheme of the election law in this country as
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
well as in England is that no significance
should be attached to anything which does
not affect the 'election'; and, if any
irregularities are committed while it is in
progress and they belong to the category or
class which, under the law by which elections
are governed, would have the effect of
vitiating the 'election' and enable the person
affected to call it in question, they should be
brought up before a special tribunal by means
of an election petition and not be made the
subject of a dispute before any court while
the election is in progress."
19. However, the Constitution Bench in
Mohinder Singh Gill case [(1978) 1 SCC 405
: AIR 1978 SC 851] could not resist
commenting on Ponnuswami case [(1952) 1
SCC 94 : AIR 1952 SC 64] by observing
(vide para 25) that the non obstante clause in
Article 329 pushes out Article 226 where the
dispute takes the form of calling in question
an election, except in special situations
pointed out at, but left unexplored in
Ponnuswami case [(1952) 1 SCC 94 : AIR
1952 SC 64] .
24. In Digvijay Mote v. Union of India
[(1993) 4 SCC 175] this Court has held that
the powers conferred on the Election
Commission are not unbridled; judicial
review will be permissible over the statutory
body, i.e., the Election Commission
exercising its functions affecting public law
rights though the review will depend upon
the facts and circumstances of each case; the
power conferred on the Election Commission
by Article 324 has to be exercised not
mindlessly nor mala fide nor arbitrarily nor
with partiality but in keeping with the
guidelines of the rule of law and not
stultifying the presidential notification nor
existing legislation.
32. For convenience sake we would now
generally sum up our conclusions by partly
restating what the two Constitution Benches have
already said and then adding by clarifying what
follows therefrom in view of the analysis made
by us hereinabove:
(1) If an election, (the term election being widely
interpreted so as to include all steps and entire
proceedings commencing from the date of
notification of election till the date of declaration
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
of result) is to be called in question and which
questioning may have the effect of interrupting,
obstructing or protracting the election
proceedings in any manner, the invoking of
judicial remedy has to be postponed till after the
completing of proceedings in elections.
(2) Any decision sought and rendered will not
amount to "calling in question an election" if it
subserves the progress of the election and
facilitates the completion of the election.
Anything done towards completing or in
furtherance of the election proceedings cannot be
described as questioning the election.
(3) Subject to the above, the action taken or
orders issued by Election Commission are open
to judicial review on the well-settled parameters
which enable judicial review of decisions of
statutory bodies such as on a case of mala fide or
arbitrary exercise of power being made out or the
statutory body being shown to have acted in
breach of law.
(4) Without interrupting, obstructing or delaying
the progress of the election proceedings, judicial
intervention is available if assistance of the court
has been sought for merely to correct or
smoothen the progress of the election
proceedings, to remove the obstacles therein, or
to preserve a vital piece of evidence if the same
would be lost or destroyed or rendered
irretrievable by the time the results are declared
and stage is set for invoking the jurisdiction of
the court.
(5) The court must be very circumspect and
act with caution while entertaining any
election dispute though not hit by the bar of
Article 329(b) but brought to it during the
pendency of election proceedings. The court
must guard against any attempt at retarding,
interrupting, protracting or stalling of the
election proceedings. Care has to be taken to
see that there is no attempt to utilise the
court's indulgence by filing a petition
outwardly innocuous but essentially a
subterfuge or pretext for achieving an ulterior
or hidden end. Needless to say that in the
very nature of the things the court would act
with reluctance and shall not act, except on a
clear and strong case for its intervention
having been made out by raising the pleas
with particulars and precision and supporting
the same by necessary material."
(emphasis supplied)
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
12. The material facts as a cause of action in an
election petition has been considered in (2009) 9 SCC 310 (Anil
Vasudev Salgaonkar v. Naresh Kushali Shigaonkar) holding
as follows :
"57. It is settled legal position that all "material
facts" must be pleaded by the party in support of the case
set up by him within the period of limitation. Since the
object and purpose is to enable the opposite party to know
the case he has to meet with, in the absence of pleading, a
party cannot be allowed tolead evidence. Failure to state
even a single material fact will entail dismissal of the
election petition. The election petition must contain a
concise statement of "material facts" on which the
petitioner relies."
13. It is relevant to take note of provisions of the
Bihar Panchayat Act, 2006, for proper adjudication of the
present writ petition:--
"138. Bar to interference by Courts in electoral
matters. - Not withstanding anything contained in
this Act-
(a) The validity of any law relating to the
delimitation of constituencies or the allotment of
seats to such constituencies, made or purporting to
be made under Article 243 K of the Constitution of
India shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in
question except by an election petition presented to
the prescribed authority under this Act."
14. Rules 72 , 73, 74, 76 and 79 of the Bihar
Panchayat Election Rules, 2006 are reproduced hereinafter:-
72. Selection of place of counting of
votes.- The section of place for counting of votes
shall be made by the District Election Officer
under the directions of the Commission.
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
73. Supervision of counting of votes.-
The counting of votes shall be done under the
direction, supervision and control of the
Commission.
" 74. Entry into the place fixed for Counting. - (1)
The Returning Officer or the Officer authorised by
him shall remove from the place of counting all
other persons except -
(a) Such persons to whom he/she appoints to assist
the counting;
(b) Persons authorised by the Commission or
District Election Officer;
(c) Public servants on duty in connection with the
election; and
(d) The candidate, Election Agent and Counting
Agent.
(2) Before opening the ballot box on the table of
counting, the Counting Agents present there shall be
allowed to inspect the ballot boxes and their seals
for satisfying themselves that they are not tampered.
(3) If the Returning Officer or the Officer authorised
by him/her is satisfied that a ballot box has been
tampered with, he/she shall adopt the following
procedure with regard to that ballot box-
(a) The ballot papers contained in that ballot box
shall not be counted;
(b) A report in connection with the clause (a) above
shall be sent to the Commission immediately
through the District Election Officer.
(4) On receiving information under sub-rule 3(b)
and taking into consideration the material
circumstances the Commission shall give necessary
direction to the District Election Officer. The
District Election Officer shall take further action
according to the direction of the Commission."
" 79. Recounting of votes. - The candidate
or in his/her absence his/her election agent
or counting agent may make a written
application to the Returning Officer or the
Officer authorised by him/her for recounting
of votes stating therein the grounds for the
same.
(2) The Returning Officer or the Officer
authorised by him/her may, fully or partially,
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
accept or reject the application stating the
reasons for the same.
(3) If the Returning Officer or the Officer
authorised by him/her accepts fully or
partially the application under sub-rule (2),
he/she shall get the ballot papers recounted
and amend the result of the counting in the
form prescribed in sub-rule (2) of Rule 76
and declare the result.
(4) After that, any application for further re-
counting shall not be entertained."
15. To ensure impartiality and transparency, as envisaged
under Rule 76 which mandates recording of result of counting
candidate wise in Form- 19 by the Returning Officer. It is
gainful to reproduce Rule 76:
" 76. Counting of votes. - (1) Except the 'rejected'
votes, each ballot paper shall be counted.
(2) On completion of the counting of votes the
Returning Officer or the Officer authorised by him
shall record the result of counting candidate wise in
Form -19 in case of Member of Gram
Panchayat/Panch of Gram Katchahry and in Form -
20 in the case of Mukhiya/Sarpanch/Member of
Panchayat Samiti/Member of Zila Parishad.
(3) Thereafter, the valid votes will be sealed in a
separate packet be bundled together along with the
rejected votes and the following particulars to be
recorded on that, viz.-
(a) the name of the Gram Panchayat and the
number of the territorial constituency concerned in
case of the election of Member of the Gram
Panchayat/Panch of Gram Katchahry, the name and
number of the Gram Panchayat in case of the
election of Mukhiya/Sarpanch and the name of the
Panchayat Samiti/Zila Parishad and number of the
concerned territorial constituency in case of the
election of Member of Panchayat Samiti/Zila
Parishad,
(b) the name and serial number of the polling
station to which the ballot papers belong; and
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
(c) the date of counting."
16. Upon close consideration of the Act, 2006 the
definition of corrupt practice is to be found in section 141 and
which entails a disqualification under section 142. Rule 106
requires allegations to be made of corrupt practices. Rule 108
requires that the election petition shall contain statement of
material facts and details signed and verified by the petitioner in
the manner prescribed under Order 6 Code of Civil Procedure.
Rule 53 provides for votes to be cast through ballot papers. Rule
54 provides for ballot box. Rule 58 provides for the presiding
officer to regulate number of voters who may enter the polling
station at a time and remove other persons. Rule 59 provides for
closing and sealing of the ballot box prior to commencement of
the poll. Rule 60 provides for the Presiding officer to be
satisfied of the identity of the voter. The identity of a voter can
be challenged under Rule 61. Ballot papers are issued under
Rule 62. Rule 66 provides for sealing of ballot boxes after close
of the polls. Rule 70 and 71 provides for adjournment of poll
during the period of poll and in case of emergencies. Rule 74 (d)
permits the candidate, the election agent and the counting agent
to be present at the place of counting. Rule 74 (2) provides that
before opening the ballot box the counting agent present there
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
shall be allowed to inspect the ballot boxes and their seals for
satisfying themselves that they are not tampered. Rule 75
provides for scrutiny of ballot papers and their rejection. Rule
79 provides for recounting of votes on a written application
made to the returning officer by the candidate/election
agent/counting agent. Rule 81 and 82 provides for declaration of
results and issuance of the election certificate. Rule 97 provides
for counting of votes in presence of the members present at the
meeting.
17. The burden of proof by virtue of Rule 111 of Bihar
Panchayat Rules, 2006, the provisions of Indian Evidence Act,
1872 have been made applicable to election petitions, as well.
As per Section 102 of the Indian Evidence Act the burden of
proof in a suit or proceeding lies on that person who would fail
if no evidence at all were given on either side. Also, Section 106
provides that when any fact is especially within the knowledge
of any person, the burden of proving that fact is upon him.
18. In Nanhoo Mal and others v. Hira Mal and
others, AIR 1975 SC 2140, a three-Judge Bench of the Apex
Court placed reliance on the law laid down in the case of N.P.
Punnuswami v. Returning Officer, Namakkal and others, AIR
1952 SC 64 that right to vote and to stand in election is
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
creature of statute. Relevant paragraph No.5 is reproduced
hereinafter:
"5. It follows that the right to vote or stand for
election to the office of the President of the
Municipal Board is a creature of the statute, that
is, the U.P. Municipalities Act and it must be
subject to the limitations imposed by it.
Therefore, the election to the office of the
President could be challenged only according to
the procedure prescribed by that Act and that
is by means of an election petition presented in
accordance with the provisions of the Act and in
no other way. The Act provides only for one
remedy, that remedy being an election petition to
be presented after of the election is over and
there is no remedy provided at any intermediate
stage. These conclusions follow from the decision
of this Court in Ponnuswami's case (AIR 1952 SC
64) (supra) in its application to the facts of this
case. But the conclusions above stated were
arrived at without taking the provisions of article
329 into account. The provisions of Article 329
are relevant only to the extent that even the
remedy under Article 226 of the Constitution is
barred as a result of the provisions. But once the
legal effect above set forth of the provision of
law which we are concerned with is taken into
account there is no room for the High Courts to
interfere in exercise of their powers under Article
226 of the Constitution. Whether there can be any
extraordinary circumstances in which the High
Courts could exercise their power under Article
226 in relation to elections it is not now necessary
to consider."
19. The Apex Court in catena of judgments has
cautioned the Courts from venturing into frivolous election
petitions which fail to disclose material grounds for taking
action and from refraining to pass order for inspection and
recount of the ballot papers as a matter of course.
20. Hon'ble Supreme Court in the case of Suresh
Prasad Yadav v. Jai Prakash Mishra [(1975) 4 SCC 822], has held
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
that recount of ballot papers cannot be matter of course and has laid
down conditions for interference as follows:-
"Before dealing with these contentions, we may
recall, what this Court has repeatedly said, that an
order for inspection and recount of the ballot papers
cannot be made as a matter of course. The reason is
twofold. Firstly such an order affects the secrecy of
the ballot which under the law is not to be lightly
disturbed. Secondly, the Rules provide an elaborate
procedure for counting of ballot papers. This
procedure contains so many statutory checks and
effective safeguards against trickery, mistakes and
fraud in counting, that it can be called almost
foolproof. Although no hard and fast rule can be
laid down, yet the broad guidelines, as discernible
from the decisions of this Court, may be indicated
thus:
The Court would be justified in ordering a recount
of the ballot papers, only where:
(1) The election petition contains an adequate
statement of all the material facts on which the
allegations of irregularity or illegality in counting
are founded,
(2) On the basis of evidence adduced such
allegations are prima facie established, affording a
good ground for believing that there has been a
mistake in counting; and
(3) The Court trying the petition is prima facie
satisfied that the making of such an order is
imperatively necessary to decide the dispute and to
do complete and effectual justice between the
parties."
These principles were reiterated in Chanda Singh v.
Chapter Shiv Ram Verma [(1975) 4 SCC 393] where
speaking for this Court, Krishna Iyer, J. observed
thus: (SCC p. 399, para 8)
"On all hands, it is now agreed that the importance
of the secrecy of the ballot must not be lost sight of,
material facts to back the prayer for inspection must
be bona fide, clear and cogent and must be
supported by good evidence. We would only like to
stress that in the whole process, the secrecy is
sacrosanct and inviolable except where strong
prima facie circumstances to suspect the purity,
propriety and legality in the counting is made out by
definite factual averments, credible probative
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
material and good faith in the very prayer. We may
even say that no winning candidate should be afraid
of recount and, conditions as they are, a sceptical
attitude expecting the unexpected may be correct,
informed of course by the broad legal guidelines
already set out."
21. The Apex Court in Jyoti Basu v. Debi Ghosal,
(1982) 1 SCC 691 has held that an election petition is statutory
proceeding which is regulated by those rules which statute
makes and applies, therefore, the election of an elected
representative must be challenged only in manner provided in
relevant statue. Relevant paragraph of the said judgment is
reproduced hereinafter:-
"A right to elect, fundamental though it is to
democracy, is, anomalously enough neither a
fundamental right nor a common law right. It is
pure and simple, a statutory right. So is the right
to be elected. So is the right to dispute an election.
Outside of statute, there is no right to elect, no
right to be elected, and no right to dispute an
election. Statutory creations they are, and
therefore, subject to statutory limitation. An
election petition is not an action at common law,
nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of
equity apply but only those rules which the statute
makes and applies. It is a special jurisdiction, and
a special jurisdiction has always to be exercised in
accordance with the statute creating it. Concepts
familiar to common law and equity must remain
strangers to election law unless statutorily
embodied. A court has no right to resort to
them on considerations of alleged policy
because policy in such matters, as those,
relating to the trial of election disputes, is what
the statute lays down. In the trial of election
disputes, court is put in a strait-jacket. ........"
22. It is to be noticed that the Article 243-O of the
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
Constitution of India is in pari materia to Article 329(b) so far
as the bar to interference by the courts in electoral matters is
concerned. Thus, in view of the bar contained in Article 243-
O(b) of the Constitution of India and the position of law settled
by the Hon'ble Supreme Court as stated above, the validity of
any election under the provisions of the Act of 2006 can be
called in question only by way of election petition under the
provisions of Section 137 of the Act of 2006 and the Rules
made thereunder. It must be borne in mind that Article 243-O(b)
bars the interference by Courts in matters of election to any
Panchayats called in question except by way of an election
petition presented to such authority and in such manner as is
provided for by or under any law made by the Legislature of a
State. In light of this provision, a distinction needs to be drawn
between " an election petition presented to such authority and
in such manner as is provided for by or under any law made by
the Legislature of a State" and other incidental matters not
provided for in the relevant Acts and Rules made by the State
Legislature. The bar is specifically with respect to the former
but the latter is not to be read as barred from any interference by
the Courts where the exceptional circumstances so require. If
such circumstances exist, the alternative remedy can be by-
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
passed.
23. In the present case, the petitioner has questioned
the action of the Block Development Officer-cum-Returning
Officer, as well as the District Election Officer-cum-District
Magistrate, who without there being any report submitted by the
expert team of Bharat Electronic Limited and only on the basis
of the recommendation of an engineer has recommended for
holding of fresh election at Booth No.213 of the concerned
village. This Court in exercise of power of judicial review to
correct the action of the District Magistrate who has in mala fide
and without jurisdiction and without obtaining expert report of
Bharat Electronic Limited with respect to working of EVM
machine simply on the recommendation of an engineer has
declared for re-polling assessing the machine has found the
machine to be defective.
24. Of recent, the Apex Court in the case of Sarvepalli
Ramaiah v. District Collector, Chittoor, reported in (2019) 4
SCC 500 has held as follows:-
"40. Administrative decisions
are subject to judicial review under Article
226 of the Constitution, only on grounds of
perversity, patent illegality, irrationality,
want of power to take the decision and
procedural irregularity. Except on these
grounds administrative decisions are not
interfered with, in exercise of the
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
extraordinary power of judicial review.
43. Judicial review under Article
226 is directed, not against the decision,
but the decision-making process. Of
course, a patent illegality and/or error
apparent on the face of the decision, which
goes to the root of the decision, may vitiate
the decision-making process..."
25. The "material facts" required in an election petition
has been considered in (2009) 9 SCC 310 (Anil Vasudev
Salgaonkar v. Naresh Kushali Shigaonkar) holding as follows
:
"57. It is settled legal position that all
"material facts" must be pleaded by the party in
support of the case set up by him within the period
of limitation. Since the object and purpose is to
enable the opposite party to know the case he has
to meet with, in the absence of pleading, a party
cannot be allowed tolead evidence. Failure to state
even a single material fact will entail dismissal of
the election petition. The election petition must
contain a concise statement of "material facts" on
which the petitioner relies."
26. Considering the facts that the petitioner has filed
objection dated 18.12.2021( Annexure 4), the matter is required
to be examined on the basis of the expert scientific report of the
Bharat Electronic Limited, whether, the EVM machine
containing the votes cast by the voters at Booth No. 213 on
which the petitioner was declared returned candidate has to be
scientifically examined by the Bharat Electronic Limited and
report that the same was not operating and till the report is
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
submitted it will be too early to draw any conclusion by this
Court on the basis of allegation made by the respondent no.7
and so found by the District Magistrate.
27. There was no evidence before the Munsif that the
ballot box had been tempered with and acting on the
recommendation of the Engineer without scientific report of
malfunctioning of EVM is unsubstantive and pervasive.
28. The action of the Collector in observing that the
EVM has been either tempered or is non-functional is a mere
suspicion and reconsidering for re-poling is in defiance of the
direction of the Apex Court in Suresh Prasad Yadav (Supra)
and contrary to the decision of the Apex Court held in Anil
Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar (supra)
and requires interference by this Court in absence of the expert
scientific report which was not available before him or provided
to the petitioner. The bar of alternative remedy will not come in
a way to the petitioner. However, considering the disputed
question, the Tribunal is directed to proceed on the basis of the
materials, including the objection filed by the petitioner dated
18.12.2021 before the Election Commission and on the basis of
the technical report of Bharat Electronic Limited to decide the
dispute in accordance with law. Petitioner is at liberty to file
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
election petition before the Tribunal.
29.The BEL is directed to submit scientific report
before the Tribunal relating to EVM machine which has
recorded votes of election held on 12.12.2021 with respect to
Booth No.213 within a period of six weeks from the date of
communication of this order.
30.The action of the District Magistrate being against
the law laid down by the Apex Court, as referred above,
inasmuch as, recommending for holding and conducting a
fresh election on booth No.213 can only be sustained unless the
defects are confirmed by the expert report about the alleged
malfunctioning of the EVM machines.
31. The petitioner and returned candidate must appear
before the Election Tribunal within one week. The State is
directed to ensure to communicate the respondent no.7, who is
the declared returned candidate.
32. The Tribunal is further directed that in case the
State Election Commission is not in a position to bring the
expert report relating to the EVM machine from the team of
engineer of Bharat Electronic Limited, then in that case, the
Tribunal must proceed to declare the subsequent election,
which was held on 15.12.2021 with respect to Booth No.213 to
Patna High Court CWJC No.5501 of 2022 dt.29-01-2024
be not held in accordance with the provision of Zila Panchayat
Raj Act, 2006, having not followed the mandate of Article
243(o) of the Constitution of India. The above exercise in any
case must be concluded by the Tribunal within a period of one
month from the date of passing of this order.
33. As the question with respect to the fairness of the
State authority has been questioned, the State Election
Commission is duty bound to produce the report of expert team
of engineer of Bharat Electronic Limited before the Tribunal
within a period of one week from the date of communication of
this order, so that no further manipulation can be done at any
level.
34. The question of limitation shall not come in a way
of the petitioner. The Tribunal is required to judge the fairness
of the State authorities, as well as, the commission in deciding
the election petition on merits.
35. The writ petition stands disposed of.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 06.02.2024
Transmission Date NA
