===================================================== 1. Girindra Kumar Mandal S/o- Late Kanak Lal Mandal Resident of Village- Pipra v. 1. The State Election Commission
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1123 of 2013 In Civil Writ Jurisdiction Case No. 10555 of 2012 ===================================================== 1. Girindra Kumar Mandal S/o- Late Kanak Lal Mandal Resident of Village- Pipra, P.O.- Pipra, P.S.- Banmankhi, District- Purnia .... .... Appellant/s Versus 1. The State Election Commission (Panchayat), through The State Election Commission, Sone Bhawan, 3rd Veer Chand Patel Path, Patna-800001, 2. The State Election Commissioner, The State Election Commission (Panchayat) Sone Bhawan, 3rd Veer Chand Patel Path, Patna-800001, 3. The District Election Officer (Panchayat), Purnia, District- Purnia 4. The Returning Officer (Panchayat), Block- Banmankhi, District- Purnia 5. Shri Prem Kumar Sah S/o- Late Bindeshwari Prasad Sah Resident of Village- Pipra, P.O.- Pipra, P.S.- Banmankhi, District- Purnia 6. Shri Aftab Alam S/o- Md. Nazrul Hasan Resident Of Village- Bela Badan, P.O.- Pipra, P.S.- Banmankhi, District- Purnia 7. Shri Chandra Bhushan Chand S/o- Shri Raghunandan Yadav Resident of Village- Pipra, P.O.- Pipra, P.S.- Banmankhi, District- Purnia 8. Shri Chhedi Lal Rishideo S/o Late Gonar Rishideo Resident Of Village- Pipra, P.O.- Pipra, P.S.- Banmankhi, District- Purnia 9. Smt. Rubi Kumari W/o- Shri Chandra Bhushan Chand, Resident of Village- Pipra, P.O.- Pipra, P.S.- Banmankhi, District- Purnia .... .... Respondent/s ===================================================== Appearance : For the Appellant/s : Mr. Prakash Srivastav, Adv. Mr. Dr. Bidhu Ranjan For the Respondent No. 5 : Mr. S.B.K. Manglam, Adv. For the State Election Commission: Mr. Amit Shrivastava, Adv. Mr. Girish Pandey, Adv. ===================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3 13-09-2013 We have heard counsel for the Appellant, the State Election Commission and contesting respondent no. 5. The present Appeal arises from order dated 11.7.2013 disposing C.W.J.C. No. 10555 of 2012 preferred by 2
Legal Reasoning
Patna High Court LPA No.1123 of 2013 (3) dt.13-09-2013 2 / 5 respondent number 5. Accepting the submission on behalf of the respondent that he would only press the solitary issue for casting of duplicate votes by 31 voters it was directed to be framed as the solitary issue and thereafter take steps to examine the counter foils of the votes and, if required, after taking out the ballot papers cast by the said voters and declaring them as illegal recast the result without looking into any other ballot paper polled by any other person. Election Petition No. 13 of 2011 was filed by respondent no. 5 questioning the election of the Appellant as Mukhia inter alia on the ground that 31 persons had double voted in his favour. The Learned Munsif by order dated 3.4.2012 held that double voting by 31 voters was the main issue. The Suit was pending at the stage for framing of issues. Without going into material evidence and deciding the merits of the case, it was premature to order inspection/recounting of any number of votes as the secrecy and the confidentiality of the ballot was required to be maintained unless and until the merit of the case demands any such inspection/recounting. Respondent no. 5 then preferred the Appeal in question. Before the learned Single Judge, it was contended on behalf of respondent no. 5 that the Election Petition shall be confined to the sole issue for double voting by 31 voters in view of the fact that the Appellant also did not deny the fact of double voting. However, the plea of 3 Patna High Court LPA No.1123 of 2013 (3) dt.13-09-2013 3 / 5 respondent no. 5 for judgment based on admission under Order-12 Rule 6, in view of the written statement was not accepted by the Learned Single Judge. Respondent no. 5 has not preferred any Appeal against that part of the order. Directions were therefore given to first frame the solitary issue and “thereafter” take steps to examine the counter foils of the votes. Learned counsel for the Appellant submitted that unless and until evidence is led on the issue framed, the question of examining the counter foils of the votes alleged to have been cast double does not arise. The persons had cast double votes in favour of Respondent no.5 Counsel for respondent no. 5 contended that once the fact that double voting at Ward Nos. 1 and 2, corresponding to Booth Nos. 185 and 186 is not in dispute, there is nothing to prove by leading evidence and the learned Single Judge has therefore rightly directed for examining of counter foils of the votes after taking out all the ballot papers cast by the said voters. Reliance was placed on 1994 Supp(2) SCC 619 (A. Neelalohithadasan Nadar Vs. George Mascrene). Counsel for the Commission submitted that the learned Single Judge did not accept the plea of respondent no. 5 for a judgment on admission. Referring to Order-14 Rule 1, it was submitted that after issue is framed with regard to double voting by 31 persons, evidence would have to be led in 4 Patna High Court LPA No.1123 of 2013 (3) dt.13-09-2013 4 / 5 respect to the same to the satisfaction of the Tribunal only thereafter further direction for examining of poll Register/ballot etc. could be given if satisfied. We have considered the submissions on behalf of the parties. In our opinion, the Appeal itself is misconceived. The learned Single Judge has only noticed the submission on behalf of respondent no. 5 that he shall not be pressing any other issue except for double voting. Declining to accept the plea for a judgment on admission, in view of the written statement ordering framing of solitary issue, there was no occasion for the learned Single Judge to observe that the Tribunal after framing the issue shall take steps to examine the counter foil of the votes. The question of an issue being proved without evidence and that too in a matter involving purity of election is incomprehensible in the facts of the case and simply does not arise. If the learned Single Judge was of the opinion, as urged on behalf of respondent no. 5 that the stage had arrived for calling of the original Register/ballots and examining the counter foils straightway without leading any evidence, nothing prevented him from giving appropriate directions in that regard. Quite obviously, the Learned Single Judge was never of the opinion as suggested on behalf of respondent number 5. Reliance on A. Neelalohithadasan Nadar Vs. 5 Patna High Court LPA No.1123 of 2013 (3) dt.13-09-2013 5 / 5 George Mascrene (supra) is misconceived. While the solitary issue framed therein may have been the same, the direction of the Court to call for the Register/ballots etc. came to be passed after examining the evidence led by the parties on the issue. The Tribunal shall therefore after framing the solitary issue, proceed to take evidence on the issue and then proceed with the election petition in accordance with law. All election petitions have an urgency. In the present case since the controversy has boiled down to a single issue, we expect the learned Munsif to endeavor expeditious disposal. This direction to the Munsif is however subject to adequate cooperation by the counsel for the parties. We expect the parties not to seek unnecessary adjournment. The Appeal stands disposed. (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-