Patna High Court
Bibi Rukhsana Khatoon @ Roksana Khatoon vs The State Election Commission & Ors on 3 July, 2015
Equivalent citations: AIR 2015 PATNA 167, (2016) 1 PAT LJR 109
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1678 of 2015
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Bibi Rukhsana Khatoon @ Roksana Khatoon, wife of Md. Safi Ahmad @ Gonar,
resident of village and P.O. Saraunja, P.S. Birpur, District- Begusarai.
.... .... Petitioner/s
Versus
1. The State Election Commission (Panchayat), Sone Bhawan, Birchand Patel
Path, Patna through the Secretary.
2. The State Election Commissioner, the State Election Commission (Panchayat),
Sone Bhawan, Birchand Patel Path, Patna.
3. The District Election Officer (Panchayat), Begusarai, District- Begusarai.
4. Janki Devi, wife of Sri Lal Bahadur Sharma, resident of village and P.O.
Saraunhja, P.S. Birpur, District- Begusarai.
5. Pushpa Devi, wife of Sri Janardan Mahto, resident of village- Parra, P.O.
Saraunja, P.S. Birpur, District- Begusarai.
6. Raj Kumari Devi, wife of Sri Jai Jai Ram Paswan, resident of village-
Laxmipur, P.O. Saraunja, P.S. Birpur, District- Begusarai.
7. Sabitri Devi, wife of Sri Ramprit Tanti, resident of village and P.O. Saraunja,
P.S. Birpur, District- Begusarai.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. S.B.K. Manglam
Mr. Ravi Ranjan
Mr. Chandan
For State Election Commission : Mr. Amit Shrivastava
Mr.Girish Pandey
For the private Respondent No.4: Mr.Jitendra Kumar Roy
Mr. Rajesh Kumar
Ms. Nikki Singh
For private Respondent Nos.5 to 7: Mr. Shashi Bhushan Singh
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
C.A.V. JUDGMENT
Date: 03-07-2015
The writ petitioner by invoking the extraordinary
jurisdiction under Article 226 of the Constitution of India has
questioned the judgment and order dated 12.1.2015 passed by the
Civil Judge (Junior Division)-II -cum- Election Tribunal, Begusarai
in Election Petition No.23 of 2011, whereby the court below has
been pleased to set aside the election of the writ petitioner to the
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 2
post of Mukhiya, Gram Panchayat Raj, Para under Birpur Block in
the district of Begusarai.
Facts of the case are in very narrow compass. The
election to the post of Mukhiya, Gram Panchayat Raj, Para in the
district of Begusarai was held on 3.5.2011 in which the petitioner
was declared elected. An election petition was filed on behalf of the
respondent no.4 and which has been allowed, inter alia, on grounds
that 75 votes polled at booth no.102 was invalid and thus on
grounds of improper reception of votes/reception of void votes, the
result drawn in favour of the writ petitioner was materially affected
and stood vitiated. The returned candidate being aggrieved is before
this Court.
Mr. S.B.K. Manglam, learned counsel has appeared
for the returned candidate who is the writ petitioner before this
Court. While the State Election Commission is represented through
its counsel, the election petitioner is represented by Mr. Jitendra
Kumar Roy and respondent nos.5 to 7 have appeared through
counsel Mr. Shashi Bhushan Singh.
Mr. Manglam, learned counsel appearing for the writ
petitioner submitted that the election to the post of Mukhiya was
held on 3.5.2011 and the counting was carried out on 23.5.2011 in
which the writ petitioner was declared elected by a margin of 53
votes. He submits that the election was free and fair and at no stage
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 3
did the election petitioner raise any objection as to the illegal
reception of votes. He thus submits that in absence of any objection
filed by the election petitioner on the issue of improper reception of
votes, the election petition itself was not maintainable on the
principles of waiver. He submits that the election petitioner filed the
election petition complaining of improper reception of votes at
booth no.102, inter alia, on grounds that (1) dead persons had
voted; (2) the voters whose names appear in two wards had voted;
and (3) some of the persons had cast their votes twice and since the
total number of improper reception of votes was 75 and the winning
margin of the returned candidate was only 53 hence the results were
declared materially affected by such improper reception of votes.
Mr. Manglam straightaway invited the attention of
the Court towards the provisions underlying section 137 of the
Bihar Panchayat Raj Act, 2006 (hereinafter referred to as „the Act‟)
which enables a person aggrieved to question any elected office of a
Panchayat by way of an election petition which is to be filed before
the Munsif. With reference to section 139 of „the Act‟ he submits
that the circumstances under which an election can be declared void
has been enumerated thereunder. With reference to section 139(1)
(d) (iii) of „the Act‟ it was submitted that in so far as the present
contest is concerned, it is taken care of by the said provision but
any such declaration in such circumstances has to be with due care
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 4
and caution and not routinely exercised. It was submitted that until
such time that the Election Tribunal was satisfied that 75 votes
polled at booth no.102 which were held invalid in its entirety had
been cast in favour of the returned candidate, there was no occasion
for declaring the entire election void since there were no complaint
in respect of the other booths. It was contended that the admitted
position is that 75 votes were cast by persons whose names did not
figure in the voter list available with the Polling Officer. It is also
an admitted position that a winning margin of the writ petitioner
was 53. He submits that unless the Election Tribunal recorded
satisfaction that the entire election had been materially affected by
such improper reception of votes, there was no occasion to declare
the election void. He submits that the proper exercise for the
election Tribunal in the circumstances existing where no corrupt
practice has been alleged by the election petitioner and there are no
complaint regarding the polling held at other booths, was that
before declaring the election void on grounds of improper reception
of votes at booth no.102, the Election Tribunal ought to have
extricated 75 votes from the poll count and ought to have satisfied
himself that upon such exercise being carried out the result of the
election stands materially affected. He submits that it is only in
these circumstances that the election tribunal could have declared
the election void and not on account of mere invalid poling at a
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 5
single booth no.102.
The sum and substance of the argument of Mr.
Manglam is that in absence of any charge of corrupt practice
against the returned candidate, a mere reception of improper votes
at a particular booth on its own would not be sufficient to declare
the entire election void and in such circumstance there should be an
extrication of such invalid votes to ascertain whether after
extrication of these votes from the poll count, the result of the
returned candidate stood affected for in circumstances where even
after such extrication the result does not get materially affected than
there would be no occasion to declare the entire election void in
absence of any specific charge of corrupt practice by the returned
candidate.
Mr. Manglam in support of his submission has relied
upon a judgment of the Supreme Court reported in (1985) SCC 61
(Bhag Mal vs. Ch. Prabhu Ram), more particularly paragraph 20
thereof to submit that the Supreme Court in consideration of the
provisions underlying section 100(1)(d) (iii) of Representation of
People Act, 1951 which is pari materia to section 139 (1)(d) (iii) of
„the Act‟ has held that improper reception of any vote which is void
can relate only to improper reception of any vote or reception of
any vote which is void in regard to a returned candidate and refusal
and rejection of any valid vote cast in favour of any candidate other
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 6
than the returned candidate.
The arguments of Mr. Manglam has been seriously
contested by Mr. Roy, learned counsel appearing for the election
petitioner to submit that since there is no confusion that 75 votes at
Booth no.102 had been cast by persons whose name did not figure
in the voter list available with the Polling Officer and the winning
margin of the returned candidate was only 53, this by itself
constituted sufficient reason to declare the election void inasmuch
as should the 75 votes be taken out of the count, the result stands
affected. Mr. Roy in support of his submission has referred to the
decision of the State Election Commission on the issue of improper
reception of votes arising from Misc. Case No.15 of 2011 filed by
the election petitioner which was also led as Exhibit-1 before the
Election Tribunal and in which the improper reception of 75 votes
at booth no.102 stood confirmed and the Commission was of the
opinion that the election on the said booth no.102 was not impartial.
The Election Commission further recommended for initiation of
departmental proceeding against the defaulting officers. With
specific reference to the finding of the Election Tribunal on the
issue whether the result of the election stood materially affected by
improper reception of votes/reception of void votes at booth no.102
he submits that the finding of the Tribunal is that not only the voter-
list at booth no.102 was not correctly prepared rather the persons
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 7
whose names had been deleted in the final published voter list had
been allowed to cast their votes and thus the election stood
materially affected. He thus submits that in view of the conclusive
evidence on record on the issue of improper reception of 75 votes at
booth no.102 the declaration by the Tribunal suffers from no
infirmity warranting interference.
Counsel for the State Election Commission also
stood up to support the impugned judgment, inter alia on grounds
that once there is no dispute that 75 voters whose names stand
deleted from the voter list were allowed to vote, there could not
have been any other declaration than as made by the Election
Tribunal by the impugned judgment.
I have heard learned counsel for the parties and I
have perused the materials on record.
On consideration of the pleadings and documents on
record, the following issues were framed by the court below:
(1) Is the Election Petition is maintainable?
(2) Has the election petitioner got any valid cause
of action to file this election petition?
(3) Whether the result of the election for the post
of Mukhiya of Gram Panchayat Raj- Parra
held on 03.05.2011 has been materially
affected by improper reception of votes or
reception of void votes at booth no.102 at
Ward no.3?"
(4) Whether there was any double voting by
same persons at different booth or at the
same booth in the impugned election?
(5) Whether votes were cast in the name of dead
persons at booths of ward no.2 & 3?
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 8
(6) Whether the result of the election for the
post of Mukhiya of gram Panchayat Raj-
Parra held on 3.5.2011 is fit to be set aside
or cancelled or fit to be declared void?"
Issue nos.1 and 2 relatable to maintainability of the
election petition and cause of action are formal in nature and have
been decided in favour of the election petitioner which suffers from
no infirmity.
Although the election petitioner had also raised the
issue of improper reception of votes even at booth nos.101 and 103
and had also raised issues regarding casting of two votes by 25
voters, casting of votes by dead persons etc. but in absence of any
evidence led by the election petitioner, the issues so raised were
rejected by the court below as is manifest from the findings given in
paragraph 13 of the judgment relatable to issue nos.4 and 5 so
framed on this aspect and which suffers no infirmity.
The only issue thus that remained and which led to
the fall of the returned candidate is the issue of improper reception
of 75 votes at booth no.102 and which stood covered by issue nos.3
and 6. The finding of the tribunal regarding such improper reception
is based upon evidence and stands admitted even by the returned
candidate as is manifest from the impugned judgment. In fact there
is no dispute between the parties that 75 voters at booth no.102
whose names stood deleted from the voter list had forced their way
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 9
into casting of votes. The issue thus which falls for consideration
before this Court is whether the finding of the tribunal on issue nos.
3 and 6 that the improper reception of 75 votes at booth no.102 on
its own was sufficient to declare the entire election void in the
backdrop of the fact that the winning margin in between the election
petitioner and the returned candidate was only 53 is correct or there
is substance in the argument advanced by Mr. S.B.K. Manglam that
even in view of the admitted position regarding casting of 75 invalid
votes at booth no.102, this on its own was not sufficient to declare
the entire election void until such time that the election tribunal also
recorded a satisfaction that these 75 invalid votes had contributed to
the result of the returned candidate.
Section 139 of „the Act‟ enumerates the
circumstances in which an election can be declared void and the
relevant provisions in so far as the present case is concerned would
be section 139(1)(d)(iii) which runs as follows:
"139. Grounds for declaring election to be void.-
(1) Subject to the provisions of sub-section (2) if
the prescribed authority is of opinion-
(a) xxx xxx xxx xxx
(b) xxx xxx xxx xxx
(c) xxx xxx xxx xxx
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected-
(i) xxx xxx xxx xxx
(ii) xxx xxx xxx xxx
(iii) by the improper reception, refusal or rejection
of any vote or reception of any vote which is
void; or
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 10
(iv) xxx xxx xxx xxx;
the prescribed authority shall declare the
election of the returned candidate to be void."
It is manifest from the provisions itself that until such
time that the election tribunal is satisfied that the entire election is
marred with improper reception of votes or reception of void votes,
there would not be any occasion to countermand the entire election
where a challenge has been made on this ground in respect of a lone
booth.
Indisputably the challenge to the election is made on
the sole count of improper reception of vote/reception of void vote
at booth no.102 and on no other ground. There is no charge by the
election petitioner that the returned candidate had indulged in
corrupt practice or has facilitated casting of invalid votes nor any
evidence was led by him. On the contrary the evidence on record
makes it manifestly clear that these 75 voters have forced their way
into casting of votes and the poling officials facilitated the same.
There is also no evidence regarding unfair poling on any other
booth. Meaning thereby it was exclusively the poling at booth
no.102 which is the centre of attention on the issue raised.
The term „improper reception of vote‟ or „reception
of void vote‟ or „rejection of valid vote‟ has been explained by the
Supreme Court in the judgment rendered in the case of Bhag Mal
(supra) in paragraph 20 with reference to identical provisions at
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 11
section 100(1)(d)(iii) of the Representation of Peoples Act, 1951 in
the following manner:
"20. ... ... ... ... ... ... ...
... ... ... ... ... ... ...
The improper reception or the reception of any
vote which is void, referred to in Section 100(1)
(d) (iii) can relate to only to the improper
reception of any vote or reception of any vote
which is void in regard to the returned candidate
and the refusal or rejection of any vote referred to
in that sub-clause could relate only to refusal or
rejection of any vote cast in favour of any
candidate other than the returned candidate."
The explanation aforementioned is eloquent of the
fact that it is not simply on confirmation of improper reception of
void vote or refusal of valid vote that can lead to countermanding of
an election until such time that it is proven beyond any shadow of
doubt that such reception of void vote in favour of the returned
candidate and refusal of valid vote in favour of the candidate other
than the returned candidate has contributed to the success of the
returned candidate. Since in the present case there is no issue
regarding refusal of valid vote in favour of the election petitioner or
any other candidate we are only concerned with the reception of 75
invalid votes at booth no.102. Definitely if these 75 votes in its
entirety were cast in favour of the returned candidate obviously the
election was void but in case a physical verification of these 75
votes would reflect that less than 53 votes were cast in favour of the
returned candidate, then there would be no alteration in the result
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 12
since the winning margin is 53 votes.
In my opinion, although the election tribunal has
proceeded well in course for deciding the issue raised by the
election petitioner but unfortunately the tribunal has missed to take
the contest to its last step regarding physical verification of the 75
votes so as to confirm as to how many of these invalid votes were
cast in favour of the returned candidate and the election petitioner
and whether if these votes are taken out from the vote count of the
returned candidate and the election petitioner, the result would be
otherwise. In my opinion, the failure of the tribunal to undertake
such exercise has resulted in a presumptuous finding where the
election of the returned candidate has been set aside on a
presumption that the 75 invalid votes cast at booth no.102 had
materially affected the election. This finding of the tribunal suffers
from manifest error of law and fact inasmuch as a mere reception of
75 invalid votes at booth no.102 on its own cannot be a basis for
declaring the entire election void until it was confirmed that these
invalid votes had contributed to the success of the returned
candidate upon its physical verification.
In my considered opinion unless there is evidence of
improper reception of invalid votes or rejection of valid votes at
each of the poling booths; that there are evidence to support that the
returned candidate has indulged into corrupt practice to garner such
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 13
votes and that these invalid votes or rejection of valid votes have
contributed to the success of the returned candidate, an election
cannot be set aside under section 139(1)(d)(iii) of „the Act‟.
Countermanding an election is an extreme step and the election
tribunal has to be fully satisfied that there are evidence on record
for such declaration. An election cannot be set aside as void merely
on assumptions and presumptions rather its void character should
be clear as a crystal and be staring at the returned candidate.
In the present case there is no evidence on corrupt
practices nor is there any issue of rejection of valid votes or
improper reception of votes on other booths. In fact of the issues
raised, the only issue that stands upheld is the reception of 75
invalid votes at booth no.102. Now this admitted circumstance on
its own means nothing until upon physical verification of the 75
invalid votes cast at booth no.102, the number of votes secured by
each of the candidate at the said booth is ascertained. Once the 75
invalid votes cast at booth no.102 are extricated and physically
verified to determine the exact number of votes polled in respect of
each of the candidates, then the next step would be to confirm
whether by reducing these invalid votes from the votes secured by
the returned candidate and the election petitioner in case he also is a
beneficiary of such votes, the result stands materially affected for in
case this exercise does not alter the final result then there would be
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 14
no occasion to countermand the election.
Unfortunately the election tribunal even while
expressing its opinion on issue nos.3 and 6 and upholding the
improper reception of 75 votes at booth no.102, has failed to
appreciate that the responsibility of the tribunal did not end at that
and yet a satisfaction of the tribunal had to be recorded that these 75
invalid votes had contributed in the success of the returned
candidate. The learned tribunal has faltered in discharging this
obligation.
In the circumstances discussed, this Court without
interfering with the findings of the election tribunal as regarding
other issues i.e. issue nos.1, 2, 4 and 5 would set aside the finding
recorded by the tribunal in respect of issue nos.3 and 6 in so far as it
proceeds to declare the election void and would remit the matter
back to the election tribunal to record his finding afresh on the issue
nos.3 and 6 after carrying out the exercise in the manner discussed
above. The tribunal should carry out a physical verification of the
75 invalid votes cast at booth no.102 and thereafter record its
finding whether the election petitioner as well as the returned
candidate are beneficiary of these invalid votes and that if these
invalid votes are taken out from the respective total vote count of
the two contesting candidates, it would materially affect the result
of the election.
Patna High Court CWJC No.1678 of 2015 dt. 03-07-2015 15
For the reasons aforementioned the judgment and
order passed by the Civil Judge (Junior Division) II -cum- Election
Tribunal, Begusarai in Election Petition No.23 of 2011 dated
12.1.2015is set aside and the matter is remitted to the court below for its disposal afresh in the light of the observations/directions of this Court but after opportunity of hearing to the contesting parties.
The writ petition is allowed with the observations and direction aforementioned and as a consequence the petitioner stands restored to the post of Mukhiya, Gram Panchayat Raj, Parra in the district of Begusarai.
(Jyoti Saran, J) SKPathak/-
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