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Judgment
Aftab Alam, J.—This writ petition has been filed against the judgment and order dated 15.2.2002 passed by Munsif II, Vaishali (Hajipur) in Election Petition No. 63 of 2001. By the impugned order the learned Munsif allowed the election petition filed by Respondent No. 4, set aside the election of the Petitioner as Mukhiya of Agral Gram Panchayat in the district of Vaishali and directed the Election Officer to declare Respondent No. 4 as the winning candidate, to issue in his favour the necessary certificate in that regard and to take steps for administering the oath of office to him.
The whole dispute in this case hinges on the question whether or not the votes polled at booth No. 152 were to be ten into account for determining the result of the election. The election authorities declared the result of the election on the basis that the Petitioner had polled 974 while Respondent No. 4 had got 857 votes. This score was arrived at by not taking into reckoning the votes polled at booth No. 152 The votes polled at that booth were cancelled and excluded from the count on the basis of the direction of the Election Commission as contained in its letter No. 4681, dated 26.5.2001. By this letter the Election Commission recalled its earlier direction for taking into account the votes polled at booth No. 152 for declaring e final result as contained in its letter No. 4461, dated 23.5.2001. The learned Munsif has found and held that the latter direction of the Election Commission to cancel the votes polled at booth No. 152 was the result of a mistake committed by the Returning Officer of the booth; that the Election Commission itself believed it to be a mistake and hence, the valid and operative direction of the Commission must to be held be its earlier direction as contained in the letter, dated 23.5.2001 to take into count the votes polled at booth No. 152.
At booth No. 152 the election applicant (Respondent No. 4) had got 250 votes and the returned candidate (the Petitioner) only 46. By addition of these votes in the final score the tally of Respondent No. 4 added upto 1107 while the Petitioner was left behind at 1020. The Munsif, accordingly, allowed the suit, set aside the election of the Petitioner and declared Respondent No. 4 as the winning candidate.
The whole controversy has arisen, as may be seen presently, due to the exceedingly high percentage of votes polled at booth No. 152 and the inconsistent reports submitted by the Returning Officer of the booth. The facts of the case, unlike the majority of election disputes are brief, simple and undisputed and the adjudication is to be made, as the learned Munsif has righlty observed, only on the basis of the documentary evidences.
The election for the post of Mukhiya of Agral Gram Panchayat No. 22 in the district of Vaishali took place in April, 2001. There were 9 contestants for the post, including the Petitioner and Respondent No. 4. The polling was held on 19.4.2001 on 13 booths, one of which was booth No. 152. The counting of the votes was held on 18.5.2001. The declaration of result remained withheld for sometime awaiting the direction from the Election Commission on the question whether or not the votes polled at. booth No. 152 were to be taken into account. Finally, on the basis of the direction of the Commission as contained in its letter, dated 26.5.2001 the votes polled at booth No. 152 were cancelled and excluded from the count as the result of which the Petitioner was found to have secured the highest number of votes. He was, accordingly, declared the winning candidate and was given the necessary certificate. He took oath of office and started working as the Mukhiya. Respondent No. 4 challenged his election by filing an election petition u/s 140 of the Bihar Panchayat Raj Act, 1993 before the Munsif, Vaishali (Hajipur). In the election petition, apart from the election authorities he impleaded only the Petitioner from amongst the eight other contestants. In the suit he made the prayer to take into account also the votes polled at a booth No. 152 and to declare the election result on that basis. The learned Munisif as noted above upheld the case of Respondent No. 4 and allowed the suit.
It is an admitted position that the total number of votes cast at booth No. 152 was 317 (out of which 05 votes were invalid). The number of votes cast at the booth was undeniably far in excess of 95% of the total number of votes on that booth. A direction issued by the Election Commission as contained in its circular letter No. 3730, dated 30.4.2001 required that in all cases where polling was more than 95% a report should be sent to the Commission and further action be taken only in the light of the direction issued by the Commission. In compliance with the Commission''s direction, the Returning Officer of booth No. 152 submitted his reports to the District Magistrate, the District Election Officer who duly forwarded the reports to the Election Commission. The Returning Officer in his first report dated 18.5.2001 stated that 99.37% votes were polled at the booth. He submitted a second report on 24.5.2001, stating that the polling on the booth was 102% and finally a third report on 25.512001 stating that the polling was 99.68%. The confusion had arisen evidently because the Returning Officer was finding difficulty in correctly ascertaining the number of voters on the booth. This was due to the fact that the voters'' list also contained the names of a number of dead persons and the number of valid live voters on that booth could only be ascertained after deleting the names of the voters who were dead. This difficulty was further compounded because the names of certain dead persons were printed In the voters'' list more than once. Hence while excluding the names of the dead persons, care was required to be taken that any one may not be excluded twice over on account of duplication of the names in the voters'' list.
It appears that the voters'' list of booth No. 152 contained a list of 341. names; 23 of them were dead and thus the number of valid live voters was 318. It was however, reported to the Returning Officer that in the list of dead persons there were 30 names and on that basis the number of effective voters would only be 311 as against which the number of valid votes cast was 312, i.e. 102% of the total number of voters. But it again came to light that out of the 30 names (of dead persons) seven names duplicated and, therefore, the number of dead persons was in reality only 23; the number of effective voters was thus 318 out of which 317 purportedly cast their votes. The percentage of votes cast would thus be 99.68%. This explains the confusion and the reason behind the second report submitted by the Returning Officer which was admittedly incorrect.
Let use now examine how the correspondence took place between the Returning Officer, the District Election Officer and the Election Commission and how the directions were issued by the Election Commission.
The Returning Officer submitted his first report by letter No. 260, dated 18.5.2001 (Annexure-F/1). In this report he gave the following break up of votes:
Total Number of voters: 319
Total Number of votes casts: 312
No. of invalid votes: 5
Per-centage of voting: 99.37%
The District Magistrate forwarded this report to the Election Commission vide his letter No. 1489, dated 19.5.2001 Annexure-E). The Election Commission gave its reply by letter No. 4467 dated 23.5.2001 (Annexure-F) directing that the votes polled at that booth may also be included in Form-21, that is to say, may also be taken into count (the direction of the Commission appears to be rather surprising to this Court. The polling of 99.37% votes though theoretically not impossible, does not seem to indicate a fair poll).
The Returning Officer next submitted letter No. 273, dated 23.5.2001
Annexure-H/1) giving the following break up:
Total Number of voters: 311
Total No. of votes casts: 317
No. of invalid votes: 5
Per-centage of voting: 102%
The District Election Officer Forwarded this report to the Election Commission vide his letter No. 47/IMP, dated 24.5.2001 (Annexure-G).
On the next date the Returning Officer submitted yet another report by his letter No. 275, dated 24.5.2001 giving the following break up:
Total No. of voters: 318
Total No. of votes casts: 312
No. of invalid votes: 5
Per-centage of voting: 99.68%
The District Election Officer forwarded this report to the Election Commission by letter No. 72/IMR dated 25.5.2001 (Annexure-I)
It may be noted here that though in response to the first report submitted the by Returning Officer the Commission''s direction had come, vide letter dated 23.5.2001, to take into count the votes polled at booth No. 152, that direction was" not acted upon because in the meanwhile the Returning Officer had submitted the report that the per-centage of polling was 102% and that report had been forwarded to the Commission. The Commissioner finally issued letter No. 4681, dated 26.5.2001 recalling its earlier direction contained in letter No. 4467, dated 23.5.2001 and directing to cancel the votes polled at booth No. 152. The election result was declared accordingly.
The learned Munsif has found and held that the Commission''s direction as contained in its latter- letter, dated 26.5.2001 was based on the second report submitted by the Returning Officer which was found to be admittedly. incorrect and hence, the Commission''s direction based on an incorrect report submit-, ted before it was not to be acted upon and the operative and enforceable direction of the Commission was its earlier direction to take the votes into count as contained in the letter, dated 23.5.2001. The learned Munsif has also relied heavily on a letter of the Commission bearing No. 4829, dated 18.6.2001 addressed to the Secretary, Administrative and Personnel Reforms Department, Government of Bihar in which a recommendation was made to take disciplinary action against the concerned Returning Officer for submitting inconsistent and incorrect reports.
The view taken by the learned Munsif would have been unexceptionable, if it could be shown that the latter letter of the Commission bearing No. 4681, dated 26.5.2001 was issued on the basis of and in reply to the second report of the Returning Officer stating that the percentage of votes cast at the booth was 102. But from the materials on record it becomes evident that before letter No. 4681, dated 26.5.2001 was issued the third report of the Returning Officer had already been received in the Commission and the Commission was also cognizant of the third report, stating that 99.68% votes were polled. The veracity and the correctness of the third report is not doubted or disputed by any one and the Commission''s latter direction having been issued after receiving the third report, it is difficult to hold that the direction of the Commission was based on an incorrect report and was, therefore, not to be given effect to.
In this regard, it may be rioted that in paragraph 6 of the counter affidavit and paragraph 8 of the supplementary counter affidavit filed on behalf of the Commission it is expressly stated that the third report from the District Election Officer, stating 99.68% polling, was received in the Commission''s office on May 26, 2001. This itself may not be conclusive because the letter from the Commission was also issued on the same date and it might be argued that the third report from the District Election Officer might have been received though on the same day but after the letter was issued by the Commission. That is not so is evident from the Commission''s letter. The Commission''s letter No. 4681, dated 26.5.2001 is at Annexure-H and it makes specific reference both to letter no 47, dated 24.5.2001 and letter No. 72 dated 24.5.2001 (sic 25.5.2001). It is noted above that the third report was sent by the District Election Officer vide his letter No. 72 dated 25.5.2001 The mention of this letter number in the Commission''s letter is a clear indicator that the Commission''s direction was issued not only on the basis of second report but on a consideration of the third report as well. I am, therefore, unable to uphold the view taken by the learned Munsif that the latter direction issued by the Commission was not to be given effect to because it was based on an incorrect report.
I further feel that the learned Munsif has misdirected himself in relying heavily upon the Commission''s letter No. 4829, dated 18.6.2001. By that letter the Commission recommended to the government to take disciplinary action against the Returning Officer for submitting inconsistent and incorrect reports. It is, therefore, quite misconceived to read that letter to mean that accordng to the Commission any injustice was caused to Respondent No. 4.
Further, on the facts of the case I am satisfied that the latter direction of the Commission was quite reasonable and justified . From a practical point of view there is not much difference between 99.68% and 102% polling. It can indeed be said that 102% is a theoretical impossibility while 99.8% is theoretically possible but having regard to the conditions in rural Bihar 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 voters would abstain. This to my mind cannot be indicator of a fair polling by any means.
Moreover, the judgment of the learned Munsif will lead to anomalous and, conflicting consequences. The polling on booth No. 152 had taken place not only for, the election of Mukhiya but also for elections of Ward Member of the Gram Panchayat, member of the blocks level Panchayat Samiti and member of Zila Parishad. By the Commission''s direction as contained in the letter, dated 26.5.2001 the polling for all the posts was cancelled. Later on, the election for the post of Ward Member was held on 21.2.2002 and the elections of members of the Panchayat Samiti and the Zila Parishad were also declared by cancelling the votes polled booth No. 152. In the election petition file by Respondent No. 4 there was no pray for setting aside the direction of the Election Commission as contained in the letter dated 26.5.2001 in its entirety. Therefore, result of the judgment and order passed the Munsif, would be to take into count (sic) votes polled at booth No. 152 in the (sic) held on 19.4.2001 for the election of (sic)khiya but not for elections of other posts, his would lead to an anomalous position.
Mr. S.N. P. Sharma, learned Sr. counsel appearing for the Petitioner also submitted that the election petition filed by Respondent No. 4 was not maintainable for (sic)joinder of the other contestants as party the suit. As I find the judgment of the learned Munsif unsustainable on merits, it not required to go into that question.
For the reasons discussed above, land hold that the judgment and order assed by the learned Munsif is not sustainable. It is accordingly, set aside and the election petition filed by Respondent No. 4 is dismissed.
In the result, this writ petition is allowed but with no order as to costs.