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2003 DIGILAW 470 (PAT)

Pramod Kumar Singh v. State Election Commission

2003-04-23

R.N.PRASAD, RAVI S.DHAVAN

body2003
Judgment R.N.Prasad, J. 1. This Letters Patent Appeal has been filed against the judgment and order dated 23-9-2002 passed in C.W.J.C. No. 2884/2002. By the impugned order the writ petition was allowed and the judgment and order dated 15-2-2002 passed by the Munsif 2nd, Vaishali at Hajipur in Election Case No. 63/2001, whereby Election petition was allowed and election of respondent No. 4 as Mukhia of Agrail gram panchayat, district Vaishali was set aside and direction was given to the Election Officer to declare the petitioner as winning candidate and issue certificate to the aforesaid effect, was set aside. 2. The election of Agrail Gram Panchayat No. 22, district Vaishali for different posts was held on 19-4-2001. The petitioner, respondent No. 4 and others were candidates for the post of Mukhia. The counting of votes was held on 18-5-2001 but result of the election was withheld awaiting direction of the Election Commission with respect to votes polled at Booth No. 152. On 19-5-2001 a letter was sent to the State Election Commission stating therein that at Booth No. 152 polling has been reported more than 95% and as such requested for necessary direction. The State Election Commission by its letter dated 23-5-2001 directed to include the votes polled at Booth No. 152 and declare the result. However, result was not declared and again a report dated 23-5-2001 was sent to the State Election Commission that polling at Booth No. 152 was 102% and accordingly requested for direction. Again on 24-5-2001 a report was submitted to the Election Commission that polling at Booth No. 152 was 99.68%. The Election Commission, thereafter, on 26-5-2001 directed not to include the vote polled at Booth No. 152 for the purpose of declaration of result of ward member of the Panchayat, Mukhiya of the Panchayat, Panchayat Samiti and Zila Parishad and declare the result accordingly. On receipt of the aforesaid direction result was declared declaring respondent No. 4 as winning candidate for the post of Mukhia. Respondent No. 4 obtained 974 votes while the petitioner obtained 857 votes excluding the votes polled at Booth No. 152. 3. On receipt of the aforesaid direction result was declared declaring respondent No. 4 as winning candidate for the post of Mukhia. Respondent No. 4 obtained 974 votes while the petitioner obtained 857 votes excluding the votes polled at Booth No. 152. 3. The petitioner filed Election petition bearing No. 63/2001 before the Munsif, II, Vaishali at Hajipur, challenging the declaration of respondent No. 4 as Mukhia of the said Gram Panchayat on the ground that cancellation of votes polled at Booth No. 152 was illegal and against the provision of law. The respondents appeared in the election case pursuant to the notice, filed theirwritten statements and adduced oral and documentry evidence. The learned Munsif after hearing the parties held that cancellation of votes polled at Booth No. 152 was illegal and result should have been published including the votes polled at Booth No. 152 as directed by the State Election Commission vide letter dated 23-5-2001. It was also held that the appellant after inclusion of votes polled at Booth No. 152 obtained 1107 votes and respondent No. 4 obtained 1020 votes and accordingly directed to declare the appellant as winning candidate for the post of Mukhiya and issue certificate to the aforesaid effect 4. Respondent No. 4 challenged the aforesaid judgment and order of the learned Munsif in C.W. J.C. No. 2884/2002 before the High Court. A Bench of this Court after hearing the parties allowed the writ petition and set aside the judgment and order of the learned Munsif dated 15-2-2002 in Election Petition No. 63/2001 mainly on that the ground that it is impossible to imagine a fair and honest poll in which 99.68% voters would cast their votes and only one out of a total 318 votes would abstain. It was further held that direction vide letter dated 23-5-2001 to include the voters polled at Booth No. 152 and publish the result was not carried out and the direction of the Commission vide letter dated 26-5-2001 not to include the votes polled at Booth No. 152 on the basis of report that 99.68% votes were polled at Booth No. 152 was justified and legal. 5. Controversy in this appeal between the parties is with respect to votes polled at Booth No. 152 of Agrail Gram panchayat, district Vaishali. 5. Controversy in this appeal between the parties is with respect to votes polled at Booth No. 152 of Agrail Gram panchayat, district Vaishali. Total number of votes at the said booth was 341, out of which 30 were said to be dead and amongst them names of of seven are said to have been duplicated, meaning thereby their names have been mentioned twice in the voter list. Thus it was reported that 23 voters were dead. After excluding 23 persons the total number of votes at Booth No. 152 comes to 318. The Returning Officer submitted three reports quite different from one another to the Commission. By the first report it was reported that total number of votes polled was 312 and 5 votes were invalid and as such votes polled at Booth No. 152 were 99.37%. By the second report it was reported that total number of votes was 311, total number of votes polled was 317 and 5 were invalid votes and as such votes polled at Booth No. 152 were 102%. By the third report it was reported that total number of votes was 318, total number of votes polled was 312 and 5 of them were invalid and as such 99.68% votes were polled. 6. On receipt of first report the State Election Commission directed to include the votes polled at Booth No. 152 for the purpose of declaring result but subsequently vide letter dated 26-5-2001 the Commission directed not to include the votes polled at Booth No. 152 for the purpose of declaring result of ward member, Mukhia of the Gram Panchayat, Panchayat Samiti and Zila Parishad and directed to declare the result after its exclusion and on the basis of said direction result was published declaring respondent No. 4 as the winning candidate for the post of Mukhia excluding the votes polled at Booth No. 152. It is to be noted that respondent No. 4 obtained 974 votes and the appellant got 857 votes i.e. the appellant obtained 117 votes less than respondent No. 4 when the total number of votes at Booth No. 152 even if accepted was 318. It is to be noted that respondent No. 4 obtained 974 votes and the appellant got 857 votes i.e. the appellant obtained 117 votes less than respondent No. 4 when the total number of votes at Booth No. 152 even if accepted was 318. The learned Munsif as well as a Bench of this Court considered the aspect as to whether the Commission was justified in issuing direction to include the votes polled at Booth No. 152 vide letter dated 23-5-2001 or in issuing the direction not to include the votes polled at Booth No. 152 vide letter dated 26-5-2001, The learned Munsif held that direction to include the votes polled at Booth No. 152 vide letter dated 23-5-2001 was valid and subsequent direction not to include the votes polled at Booth No. 152 was illegal and accordingly decided the Election case which was set aside by the impugned judgment and order. 7. Learned Counsel for the appellant contended that cancellation of votes polled at Booth No. 152 for declaring result of the post of Mukhia was illegal, whereas learned Counsel for the respondent contended that rejection of votes polled at Booth No. 152 by the Commission was legal. However, both the parties agreed that declaration of result excluding the votes polled at Booth No. 152 and without holding fresh polling at the said booth has materially affected the election for the post of Mukhia. However, learned Counsel for the respondents pointed out that no such question was raised either before the Munsif or before this Court earlier and as such no such question can be raised in appeal. 8. In this regard it would not be out of place to mention herein that the question as to whether election was materially affected or not is no doubt a question of fact but if, in the proceeding from the material on record and admitted facts, it becomes clear that result of election materially affected the election, there would not be a bar in raising such question at the appellate stage. It is well established rule of law that law is applied on the established facts. If from the material on record it appears that the facts have been established, there is no bar in applying the law. Moreover, the Court cannot shut its eyes if the facts are so obvious and established. It is well established rule of law that law is applied on the established facts. If from the material on record it appears that the facts have been established, there is no bar in applying the law. Moreover, the Court cannot shut its eyes if the facts are so obvious and established. The Court in such a situation is not debarred from taking decision in accordance with law. 9. In the instant case facts are so obvious and established that the Court would not hesitate in deciding the case in accordance with law even though no such question was raised earlier. The admitted facts, are that at Booth No. 152 there were 341 votes, out of whom 23 are said to be dead. After excluding 23 votes it comes to 318. The result was published as per direction of the State Election Commission after excluding votes polled at Booth No. 152. Respondent No. 4 obtained 974 votes and the appellant obtained 857 votes i.e. the appellant obtained 117 votes less than respondent No. 4. The margin of votes obtained by respondent No. 4 and the appellant was only 117 when the total number of votes as admitted by the parties on Booth No. 152 was 318. It is evident that publication of result excluding the votes polled at Booth No. 152 and without holding a fresh election at the said booth has materially affected the election as the votes at Booth No. 152 was much more than two times of the margin of the votes obtained by the parties. It was a pious obligation on the part of the Commission to consider the aforesaid aspect of the matter before issuing the direction to exclude the votes polled at the said booth but it appears this Election Commission without considering the aforesaid aspect of the matter issued direction to exclude the votes polled at the said booth and declare result which has materially affected election of post of Mukhiya and has caused unnecessary litigation and harassment to the parties. It is true that this issue was not raised either before the leaned Munsif or before the High Court earlier but it becomes clear from the admitted and established facts on the record that declaration of result for the post of Mukhiya excluding the votes polled at Booth No. 152 without holding fresh poll at Booth No. 152 has materially affected election or the post of Mukhiya and as such I do not find any substance in the objection raised by respondent No. 4. 10. On consideration as discussed above, I am of the view that declaration of result excluding the votes polled at Booth No. 152 and without holding fresh election at this said booth has materially affected the election for the post of Mukhiya. This Court is not required to go into election of other posts as nothing has been brought on the record to the aforesaid effect. 11. Thus the appeal is allowed. The declaration of result in favour of respondent No. 4, the judgment and order of the learned Munsif, the impugned judgment and order passed in C.W.J.C. No. 2884/2002 are hereby set aside and the Election Commission is directed to hold fresh election of the post of Mukhia of Agrail Gram Panchayat District Vaishali without making unnecessary delay.