Kashi Nath Prasad Sah and Others vs The State of Bihar and Others

Navaniti Pd. Singh, J.—The petitioners have filed this writ application challenging the election of respondent no. 8 to the post of Up-Sabhapati of the Nagar Parishad, Raxaul. Upon votes being taken, the votes were equally divided. There were only two contesting candidates. Thus, in terms of Rule 96(2)(b) of the Bihar Municipal Election Rules, 2007, the Returning Officer was obliged to decide the fate in accordance with lots, following the manner as prescribed by the State Election Commission.

Petitioners challenge is that one Jaganath Kumar Sharma, who is an Assistant working in the office of Returning Officer, and who was assisting the Returning Officer in conduct of the said election, was asked to draw lots, even though he was present right through the proceedings and the lots were not properly folded and were identifiable. The result is, petitioner no. 9, namely, Subhra Devi unfairly defeated. Paragraph-12 of the writ application contains categorical statements of facts in this regard.

A counter affidavit'' has been filed on behalf of the State, the Returning Officer and respondent nos. 2 & 5 respectively. The Returning Officer''s stand is again in categorical terms that Jaganath Kumar Sharma was a staff in the office of the Returning Officer. As per the procedure prescribed by the State Election Commission, as contained in Annexure-C to the counter affidavit, a staff of the Returning Officer had to be the person to draw the lot and, as such, the said Sri Sharma had been nominated before the election. He was assisting in the election process. When it came to tie, he was asked to step out of the room. Lots were made and put in the box. He was asked to come back and draw a lot. The Returning Officer proceeded strictly in accordance with the procedures prescribed by the Commission.

In view of these two diametrically opposite factual statements, the question is, what is the option left for this Court. First thing to be noticed is that the Returning Officer has pleaded that he has followed the law strictly and contradicted the statement as made by the petitioners. The procedure adopted by the Returning Officer, as indicated above, this Court finds is in accordance with law, if, it was so actually done, which is contradicted by petitioners.

In my view, the solution to this problem is to be found in Section 114(e) of the Indian Evidence Act, 1872, which is quoted hereunder:-

Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case......................

(e) that judicial and official acts have been regularly performed.........

In view of the aforesaid provisions of the Evidence Act, a presumption is raised. Thus, the onus to prove shifts from the Returning Officer to the writ petitioner to establish the fact, except for the averment there is nothing more. That, in my view, is not sufficient to displace presumption of law in regards to the facts, in question. That being so, no irregularity much less illegality can be found with the action of the Returning Officer.

The writ application merits no consideration and is dismissed accordingly.