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2007 DIGILAW 1694 (PAT)

Manju Devi v. State Election Commission

2007-10-31

NAVANITI PRASAD SINGH

body2007
Judgment 1. Heard. 2. The writ petitioner was declared elected as member of the Bhojpur Zila Parishad in respect of its constituency no. 27. The same was challenged before the Vith Sub-Judge, Bhojpur at Arrah by Election Petition No. 6 of 2006 by respondent no. 7, who came second in the votes tally. All contesting candidates were made parties. It was, inter alia, alleged in the election petition that there had been efforts to restrain the voters at several booths and that there was inordinate delay and bunglings in the counting process. The relief that was claimed for setting aside the election of the writ petitioner declaring the applicant (respondent no. 7) as elected. 3. Pursuant to notices issued by the Election Tribunal various persons appeared. The writ petitioner chose not to appear in spite of substituted service of notice. Parties present before the tribunal, led their evidences and after considering the same the election tribunal set aside the election of the writ petitioner and further declared respondent no. 7 elected. The writ petitioner challenges the said judgment and order of the election tribunal. 4. On behalf of the writ petitioner it is submitted that in view of Sec. 139 of the Gram Panchayat Act and the plaint/ application before the election tribunal it would be seen that the pleadings were general and vague lacking material particulars. That being so, the election of writ petitioner could not be set aside, even though, the writ petitioner did not participate in the proceedings before the election tribunal. 5. In this respect reliance has been placed in the case of Banwari Yadav & Ors. vs. State of Bihar & Ors. since reported in 2007 (Vol. 4) PLJR 169. It is further submitted that there being no finding of any corrupt practice by the writ petitioner, the election of writ petitioner could not be set aside while simultaneously declaring respondent no. 7 to be elected. Lastly, it has been submitted that even if the court below was right in holding that there was any bungling in counting it had further to give a finding that such bungling would materially affect the result and even in such a case he could only order a recount. 6. In sum and substance the submission is that whatever the finding in the present case, respondent no. 6. In sum and substance the submission is that whatever the finding in the present case, respondent no. 7 could not be declared elected without either a repoll or a recount. On the other hand, respondent no. 7, who has appeared and filed counter affidavit has submitted that the court having found irregularity in the election, in the interest of justice cancelled the result in favour of the writ petitioner and as a consequence thereof had no option but to declare the election petitioner elected. It was submitted that the judgment of the tribunal has to be seen as a whole and on technicality the interest of justice should not suffer. 7. Having heard the parties and considered the matter, in my view, the writ petition is liable to succeed. Firstly, a reference to the election petition would disclose that so far as corrupt practice is concerned, the allegations are much too vague lacking material facts and as such the tribunal itself ought to have shut out the election petition from bringing any evidence in support of such a vague pleading. It is well established that evidence in support of the pleadings can only be permitted but if the pleadings are vague, uncertain and general that cannot be made specific and material particular supplied by evidence either documentary or oral. Such evidence would be beyond the pleading and thus cannot be accepted or acted upon. 8. From the impugned judgment, learned counsel for the respondents could not point out any specific finding with regard to any corrupt or wrongful practice adopted by the writ petitioner, which would entail cancellation of the result in his favour. There is no specific finding of any corrupt practice. The findings are equally vague and general and cannot form basis for declaring the election of the writ petitioner as null and void. 9. Now, coming to the question of irregularity in counting, here again the evidence that has been brought on record which is vague, general and lacking in material particular. The courts finding in this regard is also the same. No evidence has been brought on record to show that if proper counting was done, i.e. reversing irregularity that would have materially affected the election result. Specific averments of any such malpractice at the stage of counting are lacking nor there are finding in support thereof. The courts finding in this regard is also the same. No evidence has been brought on record to show that if proper counting was done, i.e. reversing irregularity that would have materially affected the election result. Specific averments of any such malpractice at the stage of counting are lacking nor there are finding in support thereof. In such a situation where there is no evidence to suggest much less lead to a finding that the result would materially be affected there could not be possibility of recount. 10. I may here refer Ext. 5, which is the final result-sheet. In that there are addition to the votes of different candidates. This is taken by the election tribunal as one of the facts which shows that there was irregularity in counting. For the sake of arguments even if this argument is assumed to be correct then if the votes added to different candidates are ignored in entirety, the result does not change as still the writ petitioner has a lead over 1300 votes over respondent no. 7. Thus, there is no evidence to suggest that the result would be materially affected if counting was properly done. 11. In view of the aforesaid facts, I am of the view that the election tribunal has totally misdirected itself in declaring the election of the writ petitioner as null and void and erred in facts and in law to declare respondent no. 7 to be the elected member. The judgment and order of the election tribunal dated 7.6.2007 passed in Election Petition No. 6 of 2006 by Vlth Sub-Judge, Bhojpur at Arrah, is thus set aside in entirety. 12. The writ petition is accordingly allowed.