Usha Devi v. The State Of Bihar

5. Sri Kundan Kumar Block Development Officer, Cum-Gram Panchayat (G.P.) Election Officer, Gopalganj

6. Shambhu Nath Pandey, Block Development Officer-Cum-Gram Panchayat Election Officer, Gopalganj

7. Sri Vijay Pratap Singh Dy. Collector-Cum-Returning Officer (G.P.) Gopalganj

8. Rita Kumari Sharma W/O Rakesh Kumar Sharma At + P.O. + P.S. Yadopur, District - Gopalganj

9. Manorma Devi W/O Rajendra Sah At + P.O. + P.S. Yadopur, District - Gopalganj

10. Manju Kumari S/O Ambika Mahto Resident of Tirvirwa P.S. + District - Gopalganj

11. Rita Devi W/O Hari Shankar Mahto Resident of Tirvirwa P.S. + District - Gopalganj

12. Sanju Devi W/O Laxman Chauhan Resident of Tirvirwa P.S. + District - Gopalganj

13. Sunaina Devi W/O Ramagya Mahto Resident of Tirvirwa P.S. + District - Gopalganj

14. Runa Devi W/O Harendra Sah Resident of Harpur, P.O. Manikpur, P.S. Gopalganj, District - Gopalganj

15. Sharda W/O Jata Shankar Sah Resident Of Harpur, P.O. Manikpur, P.S. Gopalganj, District - Gopalganj .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Umesh Kumar Singh Mr. Shambhu Sharan Singh & Mr. Shagir Ahmad, Advocates For the Commission : Mr. Amit Shrivastava & For Respondent No. 8 : Mr. Girish Pandey, Advocates Mr. Y.V. Giri, Sr. Advocate with Mr. Raju Giri & Mr. Ajay Mishra, Advocates Mr. Ranjan Kumar, AC to AAG 4 For the State ====================================================== : Patna High Court CWJC No.23350 of 2012 (4) dt.16-01-2013 CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER 4 16-01-2013 A supplementary affidavit is filed on behalf of the petitioner. Heard learned counsels for the petitioner, the State Election Commission, the State and private respondent no. 8. The challenge is to the judgement/order dated 3rd December, 2012 passed by the Munsif-Cum-Election Tribunal, Gopalganj in Election Petition No. 11 of 2011 with respect to election of Mukhiya of Tirvirwa Gram Panchayat, District- Gopalganj. The Tribunal upon hearing the election petition on basis of the evidence on the record set aside the election of the petitioner and further directed for repolling on Booth Nos. 136, 140, 141, 141”Ka” & 142. Mr. Shashi Shekhar Dwivedi, learned Senior Counsel appearing for the petitioner submits that the Tribunal while passing the order has travelled beyond the scope of election petition for the reason that while setting aside the election of the writ petitioner Tribunal further directed for re- polling on the Booths as referred to the above. Learned counsel has drawn the attention of the Court to the prayer of the respondent no. 8, who was the petitioner and had filed the election petition whereof relief prayed for was basically for recounting of votes of all the booths, and as such, the first relief prayer for by the petitioner for declaring the result of the elected candidate was only consequential relief. As such, the Patna High Court CWJC No.23350 of 2012 (4) dt.16-01-2013 Tribunal had exceeded its jurisdiction in setting aside the election of the writ petitioner and further directing for re-polling on certain booth from were the evidence revealed that the ballot papers were found in excess/lesser than the number of votes polled. It was further submitted that the election of the writ petitioner could not have been set aside on the grounds which are not available as mentioned in section 139 of the Bihar Panchayat Raj Act, 2006. It is accordingly submitted that the order of the Tribunal deserves to be set aside. On the other hand, learned counsel appearing on behalf of the State Election Commission submits that the Tribunal has passed the order on basis of the findings arrived at on considering the evidence on record, and as such, the order does not call for any interference by this Court. Mr. Y.V. Giri, learned Senior Counsel appearing on behalf of the respondent no. 8 submits that evidence was on record that in the booths as referred to the above the number of ballot papers taken out from the boxes were more/less than the number of votes polled and for that there was absolutely no evidence on record explaining such serious discrepancy. Besides, on the question of merits, it was submitted that primarily the election petition was filed to declare the result of the writ petitioner being illegal as the election was declared in favour of the writ petitioner while counting the votes illegally. In other words, the votes on the booths in question where the Patna High Court CWJC No.23350 of 2012 (4) dt.16-01-2013 number of ballot papers were more/less than the number of votes polled could not be explained by the elected candidate by any evidence brought on the record, and as such, this being the position the Tribunal rightly declared the result of the writ petitioner illegal. Learned counsel submits that on perusal of election petition it would appear that in view of the averments made in the election petition the relief prayed for was for declaring the result of the writ petitioner being illegal, and as such, having declared so it was a legal consequence to direct for re-polling on the booths in question for the reason that evidence is on the record to suggest that recounting could not be done on the above booths as many of the votes polled were available counting different reasons. Notwithstanding the above, it is submitted that petitioner through the election petition on stating various averments further prayed for relief which the petitioner could be entitled in law, as such, the submission is that the Tribunal did not commit any error warranting interference of this Court in its writ jurisdiction. Considering the rival submissions of the parties and their respective pleadings, it would appear that the submission advanced on behalf of the petitioner that the election of the writ petitioner could not have been set aside in absence of any specific relief to that effect. On perusal of the relief prayed for in the election petition in light of the averments Patna High Court CWJC No.23350 of 2012 (4) dt.16-01-2013 made therein, it would appear that petitioner of the election petition had specifically sought for a declaration that the certificate granted in favour of the writ petitioner declaring her to be elected as Mukhiya is absolutely illegal and deserves to be set aside as the same was obtained by illegally counting all the votes. The Tribunal having declared the result of the elected candidate being illegal set aside the certificate of the writ petitioner with further direction for re-polling on booth nos. 136, 140, 141, 141 “Ka” & 142. In my opinion, the order of the Tribuanl cannot be faulted in directing for re-polling on the booths in question. There is no controversy with respect to the polling on other booths, and as such, the directing for re- polling on booths where irregularities were detected could not be said to be a direction not supported by law. In the result, for the reasons and discussions made above, I do not find any merit in this writ application warranting interference of this Court on a petition under Article 226 of the Constitution of India. The writ application accordingly stands dismissed. Manish/- (Shailesh Kumar Sinha, J)