Patna High Court
Surendra Yadav vs The State Of Bihar on 2 July, 2025
Author: Alok Kumar Sinha
Bench: Alok Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3937 of 2024
======================================================
Anita Devi wife of Dilip Prasad Yadav, resident of village Bhetaura, P.O.
Bahasa Pipra, P.S. Fatehpur, District - Gaya.
... ... Petitioner/s
Versus
1. The State Election Commission (Panchayat ), Sone Bhawan, Birchand Patel
Path, Patna through the State Election Commissioner.
2. The Secretary, the State Election Commission (Panchayat), Sone Bhawan,
Birchand Patel Path, Patna.
3. The District Election Officer-cum-District Magistrate, Gaya, District- Gaya.
4. The Returning Officer, Tankuppa- cum- Block Development Officer,
Tankuppa, P.O. and P.S. Tankuppa, District - Gaya.
5. Sri Surendra Yadav, son of Late Sheobarat Yadav, Resident of village-
Bhetaura, P.O. Bahasa Pipra, P.S. Fatehpur, District - Gaya.
6. Smt. Ankita Singh, wife of Sri Karu Singh, Resident of village- Bhetaura,
P.O. Bahasa Pipra, P.S. Fatehpur, District - Gaya.
7. Smt. Anita Devi, wife of Sri Indrajeet Yadav, Resident of village- Tetariya,
Tola- Karmatar, P.O. Dhibar, P.S. Fatehpur, District - Gaya.
8. Sri Gauri Shankar Yadav, son of Sri Kripa Yadav, Resident of village-
Babhnima, P.O. Bahasa Pipra, P.S. Fatehpur, District - Gaya.
9. Smt. Champa Devi, wife of Sri Pappu Paswan, Resident of village-
Bhetaura, P.O. Bahasa Pipra, P.S. Fatehpur, District - Gaya.
10. Sri Satyendra Yadav, son of Sri Chhatradhari Yadav, Resident of village-
Tetariya, P.O. Dhibar, P.S. Fatehpur, District - Gaya.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3410 of 2024
======================================================
Surendra Yadav S/o Late Sheobarat Yadav, R/o Village - Bhetaura, P.O-
Bahasapipara, P.S- Fatehpur, District- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through District Election Officer cum District Magistrate
Gaya, District Collectorate, Gaya 823001.
2. The State Election Commissioner, Bihar, Sone Bhawan Beerchand Patel
Marg, Patna.
3. The Returning Officer, Tankuppa cum Block Development Officer,
Tankuppa P.O. and P.S- Tankuppa, District Gaya 824232.
4. Smt. Anita Devi, W/o- Dillip Prasad Yadav, R/o Village Bhetaura, P.O.-
Bahasapipara, P.S.- Fatehpur, District Gaya 824232.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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5. Smt. Ankita Singh, W/o- Karu Singh, R/o Village Bhetaura, P.O-
Bahasapipara, P.S- Fatehpur, District- Gaya 824232.
6. Smt. Anita Devi, W/o- Indrajeet Yadav, R/o village- Tetariya, Tola-
Karmatar, P.O.- Dhibar, P.S.- Fatehpur, District- Gaya, Bihar 824232.
7. Sri Gauri Shankar Yadav, S/o- Shri Kripqa Yadav, R/o Village - Bhetaura,
P.O.- Bahasapipara, P.S.- Fatehpur, District- Gaya 824232.
8. Smt. Champa Devi, W/o- Papu Paswan, R/o Village Bhetaura, P.O-
Bahasapipara, P.S- Fatehpur, District- Gaya 824232.
9. Sri Satyendra Yadav, S/o- Sri Chatradhari Yadav, R/o village- Tetariya, Tola-
Karmatar, P.O.- Dhibar, P.S.- Fatehpur, District- Gaya, Bihar 824232.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 3937 of 2024)
For the Petitioner/s : Mr. S.B.K. Mangalam, Advocate
Mr. Awnish Kumar, Advocate
For the Respondent/s : Mr. Additional Advocate General-12
Mr. Ravi Ranjan, Advocate
(In Civil Writ Jurisdiction Case No. 3410 of 2024)
For the Petitioner/s : Mr. P.K. Verma, Sr. Advocate
Mr. Praveen Kumar, Advocate
For the Respondent/s : Mr. Government Pleader- 27
Mr. Ravi Ranjan, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
CAV JUDGMENT
Date : 07-07-2025
CWJC NO.3937 OF 2024
Heard the parties.
2. The petitioner in the present writ application has
prayed for the grant of following reliefs:
"(I) For issuance of an appropriate writ in
the nature of CERTIORARI for quashing the
judgment and order dated 08.01.2024 passed by the
learned Civil Judge (Junior Division)-1, Gaya as
Election Tribunal in Election Petition No. 01 of 2023
whereby and where under the learned Civil Judge has
been pleased to allow the election petition on contest
against the writ petitioner and other Opposite-parties,
the election of writ petitioner has been set aside and
has also been pleased to set aside the entire process
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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of election of Mukhiya of Gram Panchayat Raj,
Bhetaura under Tankuppa Block of Gaya District
with a direction for re-election without any undue
delay.
(II) For reinstatement of the petitioner to
the post of Mukhiya which he was holding before the
impugned judgment and order passed by the learned
Civil Judge (Junior Division)-1, Gaya and to pay all
consequential benefits for which the petitioner would
have been entitled if his election would not have been
set aside by the learned Civil Judge (Junior
Division)-1, Gaya.
(III) For issuance of any other appropriate
writ/writs, order/orders, direction/directions for
which the writ petitioner would be found entitled
under the facts and circumstances of the case."
3. Learned counsel for the petitioner submits that
Respondent State Election Commission had notified Panchayat
Election, 2021 for the post of Mukhiya of Gram Panchayat Raj,
Bhetaura under Tankuppa Block of Gaya district. The petitioner
and respondent no.5 to 10 had filed their nominations to contest
for the post of Mukhiya of the said Gram Panchayat. As per the
notification issued by the Respondent Commission, the following
was the schedule for holding Gram Panchayat Election in the
Gram Panchayat, Bhetaura under Tankuppa Block of Gaya district:
Date of filing of nomination : 09.10.2021 to 25.10.2021.
Date of scrutiny of nomination paper : 28.10.2021.
Last date for withdrawal of candidature : 29.10.2021 to 30.10.2021
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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Date of Poll : 15.11.2021
Date of Counting : 17.11.2021
4. After the last date of withdrawal of candidature, none
of the nominated candidates had withdrawn his/her candidature
and all the candidates finally contested the election which was held
on 13 booths on 15.11.2021.
5. It is further submitted by learned counsel for the
petitioner that after the votes were polled on 15.11.2021, they were
counted on 17.11.2021 and after counting of votes the petitioner
got the highest number of valid votes polled in her favour i.e. 2224
and the respondent no.5 had secured only 2212 votes, hence the
petitioner was declared elected for the post of Mukhiya of the said
Gram Panchayat and accordingly the certificate of election was
given to her. The result sheet prepared in Form-21 has been
brought on record as Annexure-P/1.
6. It is further submitted by the petitioner that after the
petitioner was declared elected for the post of Mukhiya, the
respondent no.5, Surendra Yadav challenged the election by filing
an election petition under Section 137 of the Bihar Panchayat Raj
Act, 2006, in the court of learned Munsif, IInd, Gaya, which was
numbered as Election Petition No.01 of 2023.
7. In the said election petition prayer was made to set
aside the election of the petitioner (returned candidate) as Mukhiya
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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of the Bhetaura Gram Panchayat under Tankuppa Block, Gaya and
upon setting aside of election of the petitioner (returned
candidate), prayer was also made to declare the respondent no.5 as
Mukhiya on account of the respondent no.5 having received
majority of valid votes. The election petition filed by respondent
no.5 has been brought on record by way of Annexure-P/2.
8. In the election petition, the case of respondent no.5 in
brief was that he was a contestant for the post of Mukhiya of the
Bhetaura Gram Panchayat under Tankuppa Block, Gaya
(Nirvachan Kshetra No.3) in Bihar Gram Panchayat Election,
2021. The petitioner was also a contestant and so were others.
Election was held on 15.11.2021 and on 17.11.2021 counting of
votes was done. It was further stated by respondent no.5 in the
election petition that to conduct election for Tankuppa Block a
total of 155 booths were created, and out of these 155 booths,
booth no.31 to 43 were created for polling for Bhetaura Gram
Panchayat, and after polling of votes on 15.11.2021, a total of
6047 votes were polled for election of Mukhiya in the aforesaid
booths pertaining to Bhetaura Gram Panchayat and the same was
also reported by election agent, Ramashish Kumar.
9. It was further stated in the election petition by
respondent no.5 that the Returning Officer, (respondent no.4),
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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Tankuppa -cum- Block Development Officer, Tankuppa, Gaya,
rightly and correctly prepared the "Voter Turn Report" (for brevity
referred to as 'VTR'), which was contained in memo no.228 dated
15.11.2021
whereunder it was reported that on booths no.31 to 43
total 6047 votes were polled by the voters and its booth wise
details was as under:
BOOTH NO. TOTAL VOTERS TOTAL VOTES POLLED 31 524 395 32 735 550 33 448 333 34 470 356 35 755 571 36 452 324 36(Ka) 453 355 37 678 496 38 620 482 39 424 298 40 716 547 41 583 452 42 428 298 43 779 590 TOTAL 8065 6047
10. In the election petition, it was further stated by the
respondent no.5 that the Returning Officer was the counting
authority and Incharge of counting process. Upon completion of
counting, maximum valid votes of 2212 was secured by
respondent no.5 and 2200 votes were secured by the petitioner and
therefore, as per the respondent no.5, it was incumbent upon the
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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Returning Officer to declare the respondent no.5 as elected
Mukhiya for Bheteura Gram Panchayat, but the Returning Officer
in collusion with the petitioner by adopting corrupt practices
manipulated the votes and illegally showed that 2224 votes were
polled in favour of the petitioner and therefore, on the basis of
illegally added 24 votes the petitioner was declared Mukhiya of
Gram Panchayat, Bheteura. Thereafter, it was stated by respondent
no.5 that he had made a written application to the Returning
Officer for recounting of votes but the same was not entertained by
the Returning Officer. Respondent no.5 also stated in the election
petition that he had also made representation in this regard before
the District Election Commission and State Election
Commissioner, but it was to no avail. The respondent no.5 further
contended in the election petition that the total voters turned out in
Bhetaura Gram Panchayat was 6047 and the total votes polled by
the voters was 6047 which as per respondent no.5 was evident
from VTR prepared by the Returning Officer, but the Returning
Officer illegally added 24 votes in favour of the petitioner and
thereafter prepared Form-21 illegally showing therein that the
petitioner had secured maximum votes of 2224 and in the column
of total valid votes, total votes polled was illegally shown to be
6071 and thereby illegally declaring petitioner as the Mukhiya of
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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Gram Panchayat, Bheteura. As per the respondent no.5, as averred
in paragraph-8 of the election petition, the matter which arose for
consideration was that how total votes of 6071 were polled as
shown in Form-21, when only 6047 voters had turned out to poll
their votes in Bheteura Gram Panchayat. Both VTR and Form-21
were prepared by the Returning Officer then the discrepancy of 24
votes between the two documents, as alleged, was only possible
because of Returning Officer acting in collusion with the petitioner
with the object of declaring the petitioner as a winner and
therefore, the Returning Officer illegally added 24 votes in favour
of the petitioner and on the basis of illegal votes the Returning
Officer declared the petitioner as elected Mukhiya, even though it
was respondent no.5 who was legally entitled to be declared as
Mukhiya of Gram Panchayat, Bheteura. Therefore, the respondent
no.5 had prayed in the election petition, for setting aside the
election of the petitioner and declaring the respondent no.5 as
elected Mukhiya of Bheteura Gram Panchayat because of having
secured maximum valid votes.
11. In the election petition Smt. Anita Devi (petitioner)
was arrayed as O.P. No.1, Smt. Ankita Singh (contestant) was
arrayed as O.P. No.2, Smt. Anita Devi (contestant) was arrayed as
O.P. No.3, Sri Gauri Shankar Yadav (contestant) was arrayed as
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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O.P. No.4, Smt. Champa Devi (contestant) was arrayed as O.P.
No.5, Sri Satyendra Yadav (contestant) was arrayed as O.P. No.6,
State Election Commissioner, Bihar, District Election Officer-cum-
District Magistrate, Gaya and Returning Officer, Tankuppa were
arrayed as O.P. No.7,8 and 9 respectively.
12. During the course of adjudication following issues
were framed by the Election Tribunal:
“I. Is the election petition as framed
maintainable?
II. Has the petitioner got any valid cause
of action for this petition?
III. Is the petition barred by provisions
of Bihar Panchayat Raj Act, 2006?
IV. Whether the election of returned
candidate, O.P. No.1 Smt. Anita Devi
declaring her elected as Mukhiya of
Bhetaura Gram Panchayat, is to be set
aside?
V. Whether petitioner is to be declared
Mukhiya of Bhetaura Gram Panchayat
after setting aside the election of
Opposite Party No.1?
VI. Whether the petitioner is entitled for
any other reliefs?”
13. Following evidences were adduced by the
respondent no.5 before the Election Tribunal:
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
10/44EVIDENCE ADDUCED BY THE ELECTION PETITIONER.
(1) Oral Evidence
AW 1 – Surendra Yadav (Election Petitioner)
AW 2 – Umesh Kumar
(2) Documentary Evidence
Exhibit 1 – Letter No.276 dated 14.03.2022 issued
by B.D.O., Tankuppa, Gaya
Exhibit 2 – Prapatra 21 (Form-21)
Exhibit 2/A – Voter Turn Out Report (VTR)
Exhibit 3 – Signature of the B.D.O. over Prapatra 21
Exhibit 4 to 4/M – Recorded Vote in EVM Part-1 (Annexure XII)
Exhibit 5 to 5/L – Voter Register of Booth No.31, 32, 33, 34, 35,
36(d), 37, 38, 39, 41, 42, 43.
Following evidences were adduced by the opposite
parties:
EVIDENCE ADDUCED BY THE OPPOSITE PARTIES
(1) Evidence by Opposite Party 1
(Oral Evidence)
OP1/W1 – Sanjeev Kumar
OP1/W2 – Vijay Singh
OP1/W3 – Umesh Das
OP1/W4 – Vinod Kumar
OP1/W5 – Dhirendra Kumar
OP1/W6 – Nagendra Paswan
OP1/W7 – Ajit Kumar
OP1/W8 – Vinod Kumar
OP1/W9 – Rajendra Prasad Yadav
OP1/W10 – Shravan Kumar
OP1/W11 – Sujit Singh
OP1/W12 – Dilip Prasad Yadav
OP1/W13 – Anil Kumar
OP1/W14 – Anita Devi (opposite party No.1, Returned Candidate)
(Documentary Evidence for O.P. No.1)
Exhibit A – Counting Report Form 20 (Part-1) (fourteen pages)
Exhibit B – Counting Report Form 20 (Part-2) (one page)
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
11/44(2) Evidence by Opposite Party 3 to 5
(Oral Evidence)
OP3-5/W1 – Indrajit Kumar
OP3-5/W2 – Dilip Kumar
OP3-5/W3 – Gauri Shankar Yadav
(Documentary Evidence for O.P. No.3 to 5)
(None)
(3) Evidence by Opposite Party 6
(Oral Evidence)
OP6/W1 – Satyendra Yadav
(Documentary Evidence for O.P. No.6)
(None)(4) Evidence by O.P. No.7 to 9 (opposite party 2nd Set)
(Oral Evidence)
OP7-9/W1 – Indrani Kumari (O.P. No.9)
(Documentary Evidence for O.P. No.6)
(None)
14. In addition to the above, the Election Tribunal had of
its own called for the following documents which is recorded in
paragraph 26 of the impugned judgment and order dated
08.01.2024. Paragraph-26 of the impugned order is quoted herein
below for needful:
“26. Documents called by the Court/Tribunal: (i) Original
of Form 20 (Part 1) for Booth No. 31 to 43 (in fourteen
pages), (ii) Original of Form 20 (Part 18/03/20/92) for Booth
No. 31 to 43 (in one page) whose Xerox copies, later on, were
compared and substituted in place of original vide order dated
19.04.2023, (iii) Hard Copy of Data of Mukhiya Elections for
Booth No. 31 to 43 which is Annexure XII (in fourteen pages)
(iv) Original Statutory Packet which are Envelopes containing
several documents pertaining to Booth No 31 to 43 (in
fourteen envelopes) has been sent by Block Development
Officer, Tankuppa, Gaya vide letter No. 276 dated
14.03.2021.”
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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15. After appraising all the oral and documentary
evidences and the pleadings of all the parties, the Election Tribunal
gave elaborate findings of fact which is recorded in paragraph-28
to 95 of the impugned judgment and order and based on those
findings, in paragraph-96, the Election Tribunal has ordered as
follows:
“96. In the result it is therefore
ORDERED
That(1) The Election petition is allowed on contest against O.P.
No 1. O.P No. 3 to 5, O. P. No. 6. O. P. No. 7 to 9, & ex-parte
against O.P. No. 2 to the extent of setting aside the Election of
O.P. No.1 Smt. Anita Devi as Mukhiya for Gram Panchayat
Bhetaura, Nirvachan Chetra Sankhya -3, under Tankuppa
Prakhand of District Gaya.
(2) The entire election process of Mukhiya for Gram
Panchayat Bhetaura, Nirvachan Chetra Sankhya-3, under
Tankuppa Prakhand, District Gaya held in Bihar Gram
Panchayat Elections 2021 is hereby set aside.
(3) Re-election be conducted without undue delay for the post
of Mukhiya for Gram Panchayat Bhetaura, Nirvachan Chetra
Sankhya-3, under Tankuppa Prakhand, District Gaya, and
Authorities concerned are accordingly directed to conduct the
re-election of Mukhiya of Gram Panchayat Bhetaura,
Nirvachan Chetra Sankhya-3, under Tankuppa Prakhand,
District Gaya in the prescribed manner.
(4) One copy of this Final-Order/Judgement be immediately
transmitted to District Election Officer cum District
Magistrate, Gaya (O.P. No 8) and the State Election
Commission, Bihar, Patna (O.P. No. 7) as mandated vide rule
113 of Bihar Panchayat Election Rules 2006.
(5) No Cost
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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16. Being aggrieved with the findings of fact and the
final order given by the Election Tribunal, the petitioner has filed
the present writ application challenging the same and while
advancing argument the learned counsel appearing for the
petitioner confined the challenge to the impugned judgment and
order dated 08.01.2024 on the following counts:
(a) As per the learned counsel for the petitioner, Form-
20 (Part-I) which was marked as Exhibit-A before the Election
Tribunal was not considered in respect of booth no.37 and
therefore, the impugned judgment and order was perverse on
account of non-consideration of material evidence available on
record.
(b) The finding given by the Election Tribunal in
paragraph-92 of the impugned judgment and order dated
08.01.2024 to the extent that there was improper reception of 24
votes which has “materially affected” the result of the election in
favour of the petitioner, is without any evidence and therefore, the
said finding is perverse.
(c) The statement made by the respondent no.5 in
paragraph-11 of election petition to the extent that the respondent
no.5 had requested for recounting but the Returning Officer did not
do recounting, is a false statement and therefore, the respondent
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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no.5 had not approached the Election Tribunal with clean hands as
he had suppressed the relevant facts which was in his knowledge.
As per the petitioner, the recounting was done which was in the
knowledge of the respondent no.5.
(d) While deciding the dispute the Election Tribunal
should have framed the issue “Whether the discrepancy in the total
number of votes polled as per the VTR and the total votes counted
‘materially affected’ the outcome of the election, as per the strict
requirement of Section 139(1)(d)(iii) of the Bihar Panchayat Raj
Act, 2006? By not framing this issue, the Election Tribunal could
not have answered this issue in the impugned judgment and order
dated 08.01.2024.
(e) The evidence of the Returning Officer was
incorrectly appraised which has led to the Election Tribunal
recording wrong finding of fact.
Further, based on the pleadings made in the
Interlocutory Application No.01 of 2025 and Form-20 (Part-I)
annexed with the said interlocutory application, the learned
counsel for the petitioner made two additional submissions which
were as follows:
(f) Form No.20 (Part-I) as annexed with the
Interlocutory Application No.01 of 2025, as per the petitioner,
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
15/44showed that respondent no.5 had put his signature on the said form
and therefore, based on the principle of waiver, the respondent
no.5 could not have questioned the correctness of the said Form
qua booth no.37 in the election petition. By allowing him to do so,
the Tribunal has committed an error and for fortifying this
submission, the learned counsel for the petitioner relied upon
(1999) 9 SCC 420, paragraph-15 and 2004 (2) PLJR 581,
paragraph-29.
(g) The second additional argument advanced by learned
counsel for the petitioner was that since VTR was prepared on the
basis of Presiding Officers ballot paper account (Statutory Form
No.17), the same can have discrepancy and therefore, it is Form-
20 (Part-I) which is to be taken as correct and not the VTR. For
fortifying this submission, learned counsel for the petitioner has
relied upon para-30 of decision of this Court reported in 2004 (2)
PLJR 581.
17. Learned counsel appearing for respondent no.5
submits that none of the above grounds on which the petitioner has
challenged the judgment and order dated 08.01.2024 is sustainable
in law and in fact the said impugned judgment is perfectly legal
and justified to the extent that it has set aside the election of the
petitioner from the post of Mukhiya of Bheteura Gram Panchayat.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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18. The learned counsel appearing for respondent
commission in his argument has explained in detail as to how the
process of election is carried out and what are the documents
which are prepared as per these statutory rules.
19. Before I get down to examining each of the grounds
on which the learned counsel for the petitioner has
questioned/challenged the impugned judgment and order dated
08.01.2024 passed by the Election Tribunal, I deem it appropriate
to recall some of the judicial pronouncements which have dealt
with the scope of judicial review against decision of Election
Tribunal in writ jurisdiction. Some of the these judgments are as
follows:
(i) Hari Vishnu Kamath v. Syed Ahmad Ishaque,
reported in (1954) 2 SCC 881.
“24. Then the question is whether there are proper grounds for
the issue of certiorari in the present case. There was
considerable argument before us as to the character and scope
of the writ of certiorari and the conditions under which it
could be issued. The question has been considered by this
Court in Parry & Co. Ltd. v. Commercial Employees Assn.
[Parry & Co. Ltd. v. Commercial Employees Assn., (1952) 1
SCC 449 : 1952 SCR 519] , G. Veerappa Pillai v. Raman &
Raman Ltd. [G. Veerappa Pillai v. Raman & Raman Ltd.,
(1952) 1 SCC 334 : 1952 SCR 583] , Ebrahim Aboobakar v.
Custodian General [Ebrahim Aboobakar v. Custodian
General, (1952) 1 SCC 798 : 1952 SCR 696] and quite
recently in T.C. Basappa v. T. Nagappa [T.C. Basappa v. T.
Nagappa, (1954) 1 SCC 905 : AIR 1954 SC 440] . On these
authorities, the following propositions may be taken as
established:
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
17/4424.1. Certiorari will be issued for correcting errors of
jurisdiction, as when an inferior court or tribunal acts without
jurisdiction or in excess of it, or fails to exercise it.
24.2. Certiorari will also be issued when the court or tribunal
acts illegally in the exercise of its undoubted jurisdiction, as
when it decides without giving an opportunity to the parties to
be heard, or violates the principles of natural justice.
24.3. The court issuing a writ of certiorari acts in exercise of a
supervisory and not appellate jurisdiction. One consequence of
this is that the Court will not review findings of fact reached
by the inferior court or tribunal, even if they be erroneous.
This is on the principle that a court which has jurisdiction over
a subject-matter has jurisdiction to decide wrong as well as
right, and when the legislature does not choose to confer a
right of appeal against that decision, it would be defeating its
purpose and policy, if a superior court were to rehear the case
on the evidence, and substitute its own findings in certiorari.
These propositions are well settled and are not in dispute.
25. The further question on which there has been some
controversy is whether a writ can be issued, when the decision
of the inferior court or tribunal is erroneous in law. This
question came up for consideration in R. v. Northumberland
Compensation Appeal Tribunal, ex p Shaw [R. v.
Northumberland Compensation Appeal Tribunal, ex p Shaw,
(1951) 1 KB 711] , and it was held that when a tribunal made
a “speaking order” and the reasons given in that order in
support of the decision were bad in law, certiorari could be
granted. It was pointed out by Lord Goddard, C.J. that that had
always been understood to be the true scope of the power.
Walsall Overseers v. London & North Western Railway Co.
[Walsall Overseers v. London & North Western Railway Co.,
(1878) LR 4 AC 30 at p. 39 (HL)] and R. v. Nat Bell Liquors
Ltd. [R. v. Nat Bell Liquors Ltd., (1922) 2 AC 128] were
quoted in support of this view. In Walsall Overseers v. London
& North Western Railway Co. [Walsall Overseers v. London
& North Western Railway Co., (1878) LR 4 AC 30 at p. 39
(HL)] , Lord Cairns, L.C. observed as follows : (AC p. 39)
“… if there was upon the face of the order of the court of
quarter sessions anything which showed that that order was
erroneous, the Court of Queen’s Bench might be asked to have
the order brought into it, and to look at the order, and view it
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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upon the face of it, and if the court found error upon the face
of it, to put an end to its existence by quashing it….”
In R. v. Nat Bell Liquors Ltd. [R. v. Nat Bell Liquors Ltd.,
(1922) 2 AC 128] Lord Sumner said : (AC p. 156)
“… That supervision goes to two points : one is the area of the
inferior jurisdiction and the qualifications and conditions of its
exercise; the other is the observance of the law in the course of
its exercise.”
26. The decision in R. v. Northumberland Compensation
Appeal Tribunal, ex p Shaw [R. v. Northumberland
Compensation Appeal Tribunal, ex p Shaw, (1951) 1 KB 711]
was taken in appeal, and was affirmed by the Court of Appeal
in R. v. Northumberland Compensation Appeal Tribunal, ex p
Shaw [R. v. Northumberland Compensation Appeal Tribunal,
ex p Shaw, (1952) 1 KB 338] . In laying down that an error of
law was a ground for granting certiorari, the learned Judges
emphasised that it must be apparent on the face of the record.
Denning, L.J. who stated the power in broad and general terms
observed : (KB p. 351)
“It will have been seen that throughout all the cases there is
one governing rule : Certiorari is only available to quash a
decision for error of law if the error appears on the face of the
record.”
(emphasis supplied)
The position was thus summed up by Morris, L.J. :
(Northumberland Compensation Appeal Tribunal case [R. v.
Northumberland Compensation Appeal Tribunal, ex p Shaw,
(1952) 1 KB 338] , KB p. 357)“It is plain that certiorari will not issue as the cloak of an
appeal in disguise. It does not lie in order to bring up an order
or decision for rehearing of the issue raised in the proceedings.
It exists to correct error of law where revealed on the face of
an order or decision, or irregularity, or absence of, or excess
of, jurisdiction where shown.”
(emphasis supplied)
27. In G. Veerappa Pillai v. Raman & Raman Ltd. [G.
Veerappa Pillai v. Raman & Raman Ltd., (1952) 1 SCC 334 :
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
19/441952 SCR 583] , it was observed by this Court that under
Article 226 the writ should be issued : (SCC p. 341, para 26)“26. … in grave cases where the subordinate tribunals or
bodies or officers act wholly without jurisdiction, or in excess
of it, or in violation of the principles of natural justice, or
refuse to exercise a jurisdiction vested in them, or there is an
error apparent on the face of the record,…” (AIR pp. 195-96,
para 20)(emphasis supplied)
In T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa,
(1954) 1 SCC 905 : AIR 1954 SC 440] the law was thus stated
: (SCC p. 914, para 11)“11. … An error in the decision or determination itself may
also be amenable to a writ of “certiorari” but it must be a
manifest error apparent on the face of the proceedings e.g.
when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can
be corrected by “certiorari” but not a mere wrong decision.”
(emphasis supplied)
28. It may therefore be taken as settled that a writ of certiorari
could be issued to correct an error of law. But it is essential
that it should be something more than a mere error; it must be
one which must be manifest on the face of the record. The real
difficulty with reference to this matter, however, is not so
much in the statement of the principle as in its application to
the facts of a particular case. When does an error cease to be
mere error, and become an error apparent on the face of the
record? The learned counsel on either side were unable to
suggest any clear-cut rule by which the boundary between the
two classes of errors could be demarcated. Mr Pathak for the
first respondent contended on the strength of certain
observations of Chagla, C.J. in Batuk K. Vyas v. Surat
Borough Municipality [Batuk K. Vyas v. Surat Borough
Municipality, 1952 SCC OnLine Bom 46 : AIR 1953 Bom
133] that no error could be said to be apparent on the face of
the record if it was not self-evident, and if it required an
examination or argument to establish it. This test might afford
a satisfactory basis for decision in the majority of cases. But
there must be cases in which even this test might break down,
because judicial opinions also differ, and an error that might
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
20/44
be considered by one Judge as self-evident might not be so
considered by another. The fact is that what is an error
apparent on the face of the record cannot be defined precisely
or exhaustively, there being an element of indefiniteness
inherent in its very nature, and it must be left to be determined
judicially on the facts of each case.”
(ii) Syed Yakoob vs K. S. Radhakrishnan and others,
reported in AIR 1964 (SC) 477.
“7.The question about the limits of the jurisdiction
of High Courts in issuing a writ of certiorari under Art. 226
has been frequently considered by this Court and the true legal
position in that behalf is no longer in doubt. A writ of
certiorari can be issued for correcting errors of jurisdiction
committed by inferior courts or tribunals : these are cases
where orders are passed by inferior courts or tribunals without
jurisdiction, or is in excess of it, or as a result of failure to
exercise jurisdiction. A writ can similarly be issued where in
exercise of jurisdiction conferred on it, the Court or Tribunal
acts illegally or improperly, as for instance, it decides a
question without giving an opportunity to be heard to the party
affected by the order, or where the procedure adopted in
dealing with the dispute is opposed to principles of natural
justice. There is, however, no doubt that the jurisdiction to
issue a writ of certiorari is a supervisory jurisdiction and the
Court exercising it is not entitled to act as an appellate Court.
This limitation necessarily means that findings of fact reached
by the inferior Court or Tribunal as result of the appreciation
of evidence cannot be reopened or questioned in writ
proceedings. An error of law which is apparent on the face of
the record can be corrected by a writ, but not an error of fact,
however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued
if it is shown that in recording the said finding, the Tribunal
had erroneously refused to admit admissible and material
evidence, or had erroneously admitted inadmissible evidence
which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded
as an error of law which can be corrected by a writ of
certiorari. In dealing with this category of cases, however, we
must always bear in mind that a finding of fact recorded by the
Tribunal cannot be challenged in proceedings for a writ of
certiorari on the ground that the relevant and material
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
21/44evidence adduced before the Tribunal was insufficient or
inadequate to sustain the impugned finding. The adequacy or
sufficiency of evidence led on a point and the inference of fact
to be drawn from the said finding are within the exclusive
jurisdiction of the Tribunal, and the said points cannot be
agitated before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Art. 226 to
issue a writ of certiorari can be legitimately exercised (vide
Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104:
((S) AIR 1955 SC 233): Nagendra Nath v. Commr. of Hills
Division, 1958 SCR 1240: (AIR 1958 SC 398) and Kaushalya
Devi v. Bachittar Singh, AIR 1960 SC 1168.”
(iii) Sugarbai M. Siddiq and Others v. Ramesh S. Hankare
(Dead) by LRS reported in (2001) 8 SCC 477
“6. There can be little doubt that in an application
under Article 227 of the Constitution, the High Court has to
see whether the lower court/tribunal has jurisdiction to deal
with the matter and if so, whether the impugned order is
vitiated by procedural irregularity; in other words, the Court is
concerned not with the decision but with the decision-making
process. On this ground alone the order of the High Court is
liable to be set aside.”
(iv) Central Council for Research in Ayurvedic
Sciences & Anr. vs Bikartan Das, reported in 2023 LAB IC 3697.
“50.The first cardinal principle of law that governs
the exercise of extraordinary jurisdiction under Article 226 of
the Constitution, more particularly when it comes to the issue
of a writ of certiorari is that in granting such a writ, the High
Court does not exercise the powers of Appellate Tribunal. It
does not review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without
jurisdiction or palpably erroneous but does not substitute its
own views for those of the inferior tribunal. The writ of
certiorari can be issued if an error of law is apparent on the
face of the record. A writ of certiorari, being a high
prerogative writ, should not be issued on mere asking.”
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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(v) Lily Thomos vs. Union of India, reported in (2000)
6 SCC 224.
In this case the, Hon’ble Supreme Court has held that
High Court jurisdiction in election matters is supervisory and does
not extent to reviewing or reassessing factual findings of the
election tribunal unless there is a legal or procedural error.
(vi) R. Ramaswami vs. V. Ramaswami, reported in
(1995) 6 SCC 8.
It has been held that the High Court’s jurisdiction under
Article 226 or 227 is to supervise the legality of the election
tribunal’s decision and not to review factual findings or evidence.
The Court can interfere only if tribunals order is contrary to law or
principle of natural justice. This case further outlines that factual
errors or incorrect appreciation of evidence by the election tribunal
do not constitute grounds for interference by the High Court under
judicial review.
(vii) Pratap Singh vs. State of Punjab, reported in AIR
1954 SC 631.
This case reinforces the idea that a High Court cannot
exercise powers of appellate review over factual matters or
reevaluate the merits of the case.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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(viii) Dr. Suresh Chandra Sharma vs. Union of India
reported in (2011) 10 SCC 382.
In this case, the Hon’ble Supreme Court observed that
review powers of the High Court are available when there is a
manifest error of law or justice in the decision of the election
tribunal. However, the High Court cannot substitute its judgment
for that all the election tribunal on factual aspects. This case
underscores the restricted nature of High Court’s review
jurisdiction in election matters, with emphasis on legal errors
rather than factual mistakes.
20. Based on some of the aforesaid judicial
pronouncements on the scope of judicial review in election
matters, it can be safely summarized that in writ jurisdiction, the
High Court should only interfere against the actions of Election
Tribunal:
(i) when there is violation of natural justice;
(ii) when there is error of law apparent on the face of the
record;
(iii) when the tribunal has acted without jurisdiction;
(iv) when the tribunal has acted in a arbitrary or perverse
manner by giving finding which is unsupported by evidence and;
(v) when there is violation of constitutional or statutory
provisions;
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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21. In light of the limited scope of judicial review
available to this Court against a judgment and order of the Election
Tribunal, I propose to examine each of the grounds which has been
advanced by the learned counsel for the petitioner for challenging
the decision of the Election Tribunal in the present case.
GROUND NO.A
Form-20 (Part-I) which was marked as Exhibit-A
before the Election Tribunal was not considered in respect of
Booth No.37 and therefore, the impugned judgment and order
is perverse on account of non-consideration of material
evidence available on record.
(i) This ground has not been taken in the writ petition. In
absence of any pleading to this effect, learned counsel for the
petitioner should not have raised this as a ground for challenging
the impugned order during the course of his argument.
(ii) The ground taken is also misconceived for the reason
that in paragraph-38 to 44 of the impugned order dated
08.01.2024, the Election Tribunal has discussed in detail about
Form-20 (Part-I) as a vital piece of evidence in respect of Booth
No.37, therefore, the contention on part of learned counsel for the
petitioner that Form-20 (Part-I) has not been considered is not
correct. The impugned order, therefore, cannot be held to be bad or
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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perverse on account of alleged non-consideration of material
evidence available on record.
(iii) At the most, the learned counsel for the petitioner
could have contended that upon consideration of Form-20(Part-I),
the finding of fact recorded by the Election Tribunal was not
correct but even if such an argument had been advanced, the same
being a finding of fact would not have been amenable to judicial
review under Article 226 and 227 of the Constitution of India.
GROUND NO.B
The finding given by the Election Tribunal in
paragraph-92 of the impugned judgment and order dated
08.01.2024 to the extent that there was improper reception of
24 votes which ‘materially affected’ the result of the election in
favour of the petitioner, is without any evidence and therefore
the said finding is not only perverse but also amounts to an
error of law.
(i) In paragraph-38 to 44, 73, 75 and 76 of impugned
judgment, oral and documentary evidences adduced by the parties
before the Election Tribunal have been discussed in detail on the
issue of improper reception of 24 votes. Finally on the appraisal of
oral and documentary evidences, finding of fact has been recorded
in paragraph-87 and 92 about the election having been ‘materially
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
26/44
affected’ due to improper reception of 24 votes. In this regard, it is
pertinent to quote paragraph nos.38 to 44, 73, 75, 76, 87 and 92 of
the impugned judgment and order dated 08.01.2024, which are as
follows:
“38. The relevant documents brought on
record by the Opposite Party in this regard are also to
considered. First being, fourteen pages of Counting
Report of votes (One page for each booth) bearing the
title “ननरररचन के मतो की गणनर कर पनरणरम-i=” which is
basically Form 20 (Part-1) (Exhibit A). In other words,
Exhibit A comprises of fourteen sheets of Form 20 (Part
-1) ie one Form 20 (part-1) for each Polling Booth and
this form also bears the signature of the Returning Officer
(O.P. No. 9).
Of these fourteen pages, one of them pertain to Booth No.
37 for the Election of Mukhiya for Bhetaura Gram
Panchayat. This Form 20 (Part -1) for Booth No. 37
contains in tabular form votes polled in favour of each of
the seven candidates contesting the Election for the Post
of Mukhiva of Bhetaura Gram Panchayat. The
summation of all these votes come out to be 520.
Furthermore, following entries are distinctly contained in
the said Form 20 (Part-1) for Booth No. 37 which are as
follows:
(क) नरनधमरनय मतो की कुल सं खयर – 520
(ख) प्रनतके नपत मतो की कुल सं खयर- NIL
(ग) डरले गये मतो की कुल सं खयर- 520
And, even from perusal of these entries it is apparent that
the total number of votes polled for the Election of
Mukhiya of Bhetaura Gram Panchayat under Tankuppa
Prakhand of Gaya at Booth Number 37 is 520.
39. The second document exhibited by the O.P. No. 1 is
Counting Report Form 20 (Part-2) (Exhibit -B) which is
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
27/44a one page document bearing the booth-wise votes polled
at each of the fourteen polling booths in favour of each of
the seven contesting candidates. Form 20 (Part-2) has
also been prepared on the date of counting of votes ie.
17.11.2021. It also contains the total number of votes
polled in favour of each of the candidates and also the
total votes polled on all the fourteen booths for the
election of Mukhiya for Bhetaura Gram Panchayat. On
perusal of the Exhibit-B, it is apparent that the total
number of votes polled at Booth No. 37 is 520, and also,
the total number of votes polled in favour of O.P. No. 1
(ie. the Returned candidate) is 2224 and in favour
Election Petitioner is 2212 and the total number of votes
polled for Election of Mukhiya of Bhetaura Gram
Panchayat is 6071. This figure of 6071 is 24 more than
the total Number of Votes polled as per VTR (Exhibit
2/A) which is 6047 votes.
40. Another relevant document in this regard is Exhibit 2
that is Form-21 which has also been issued by the
Returning Officer/BDO, Tankuppa (who is also O.P. No.
9 in this casej. In this regards reference maybe had of
Rule 81 of Bihar Panchayat Election Rules 2006 which
reads as follows:
81. Declaration of results: (1) After recording the
particulars of the election result in Form-21,the
Returning Officer or the Officer authorised shall
declare that candidate elected as Member of Gram
Panchayat/ Panch of Gram Katchahry /Mukhiya
/Sarpanch/Member of Panchayat Samiti/Member of
Zila Parishad, as the case may be, who has secured
the largest number of valid votes and shall certify it
in the same Form
(2) One copy each duly signed of Form 21 shall be
sent to the District Election Officer and through
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
28/44him/her to the Commission and the Director of
Panchayat Raj.
On perusal of the afore-stated Rule 81, it becomes clear
that Form 21 includes the particular of Election Result.
As per Form-21 Total number of votes polled in favour
of Returned Candidate is 2224 and total number of votes
polled in favour of Election Petitioner is 2212
41 For the purposes of description, it may also be
pertinent to mention about the total no. of votes polled in
light of a ‘plausible’ recounting. Although the Election
Petitioner in his petition has stated that he made
application for recounting but the same was not
entertained by the Returning Officer. However, both O.P.
No. 1 and O.P. No. 9 have nevertheless admitted to
recounting being done at the application of Election
Petitioner on the date of Counting. And O.P. No. 9 in her
Objection has stated that it was only after recounting
being done according to EVM that O.P.1 was declared as
the Mukhiya of Bhetaura Gram Panchayat. Therefore, as
per O.P. No. 1 and O.P. No. 9 the final outcome of the
election has also stood the test of recounting.
42. Furthermore, on conjoint reading of Exhibit 4/G. 5/G,
2/A and Exhibit A, B, and Exhibit-2 as discussed above,
it is quite apparent that there is discrepancy of 24 votes in
the total number of votes polled on Booth No. 37 for
Election of Mukhiya for Bhetaura Gram Panchayat.
While Exhibit 4/G and Exhibit 5/G clearly indicate that
only 496 votes were cast on Booth No. 37 on the date of
polling (15.11.2021). However, as per Exhibit A and B
the total number of votes polled at Booth No. 37 is 520 as
on the date of counting (17.11.2021).
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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43. As per the Voter Turnout Report (Exhibit 2/A) which
was prepared by Returning Officer cum B.D.O.,
Tankuppa on 15.11.2021 (the date of polling). on Booth
No 37 a total of 496 votes were cast. It also shows that
total votes polled on all fourteen polling booths for
Bhetaura Gram Panchayat Election was 6047. However,
Form – 21 which was also prepared by Returning Officer
cum B.D.O.. Tankuppa on the date of counting
(17.11.2021) shows that summation of all votes received
by each of the seven contesting candidates turn out to be
6071. Hence it will not be wrong to state that total votes
polled as per Form-21 on the all fourteen Polling Booths
for Bhetaura Gram Panchayat Election was 6071.
Moreover, the Exhibit A and Exhibit B (which have also
been issued at the instance of Returning Officer and both
the documents also bear the signature of Returning
Officer) suggest that total number of votes polled on
Booth No. 37 was 520.
44. Hence the documentary evidence, as discussed above,
invariably suggests that there has been improper
reception of 24 votes.
73. Moreover, from bare perusal of the oral evidence
adduced by all the parties, it is apparent that most of the
witnesses produced by O.P. No. 1, except OP1/W12 have
nothing to say on the Exhibited Documents which have
highlighted the discrepancy of 24 votes as has been
discussed earlier. Where as OP1/W12 has disputed the
genuineness of VTR.
75. Reverting to the issue of improperly received 24
votes, on the basis of discussions held in the preceding
paragraphs above, it is clear that the documentary
evidence in this case invariably suggests that that there
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
30/44
has been improper reception of 24 votes in the Election of
Mukhiya of Bhetaura Gram Panchayat, Tankuppa, Gaya.
76. Furthremore, O.P. No. 1 and O.P. No. 6 in their
objection have also suggested that the discrepancy of 24
votes must have happened due to possible human error on
the part of Presiding Officer of Polling Booth No. 37 in
preparing the Exhibit 4/G which contained details of
votes polled as on the date of polling on Booth No 37.
This proposition is not tenable because the details of
votes for polling booth no. 37 have also been accepted by
the Returning Officer (O.P. No. 9) in the VTR Exhibit-
2/A which was also prepared on the date of polling.
Moreover, none of the witnesses discussed above have
stated of any irregularity on polling Booth No. 37 on the
date of polling. Further AW2 has also categorically stated
about preparation of Exhibit 4/G by the presiding officer
at polling booth no. 37 on the date of polling. Moreover,
the total number of votes as per Exhibit 4/G matches
completely with the another vital document of the
election process ie. Voters’ Register for polling Booth No.
37 (Exhibit 5/G) which contains entries of 496 voters
only. All these factors suggest that Presiding Officer of
polling Booth No. 37 has not erred. In such a scenario,
the Presiding Officer cannot be held liable for
discrepancy of 24 votes.
87. The documentary evidence invariably suggests that
there has been improper reception of 24 votes. It must
also be noted here that the exhibited documents which
have been referred in this case are not the private
documents of parties but these are document of Election
Authorities and were duly brought on record.
The most incredible aspect of the matter here is that
number of votes recorded in the EVM at the time of
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
31/44
counting is found to be 24 more than the total number of
votes polled as on the date of polling. Also, these extra
unaccounted 24 votes find no corroboration with the
Voter’s Register (Exhibit 5/G) or with Annexure XII
which pertains to Votes Recorded in EVM (Part -1)
(Exhibit 4/G). This increment of 24 votes by no means
appears to be an outcome of an inadvertent human error,
and, the possibility of error on the part of Presiding
Officer of Polling Booth No. 37 has already been ruled
out in the discussions held above (in para 76). Rather it is
manifestly a fault on the part of Authorities responsible
for conducting of free and fair election and counting of
votes which has resulted in a possible undue advantage in
favour of the O.P. No. 1. and a possible undue
disadvantage for the Election Petitioner as these 24 votes
had the potential of swinging the final outcome of the
election either in favour of Election Petitioner or in
favour of O.P. No. 1. In view of aforesaid discussion, it
cannot be said the elections for the post Mukhiya of
Bhetaura Gram Panchayat, Tankuppa Prakhand, Gaya
were conducted in free and fair manner and therefore the
whole process of election of Mukhiya for Bhetaura Gram
Panchayat stands vitiated. And it goes without saying that
the faults and serious lapses on the part of Returning
Officer should not result in benefitting any of the
contesting candidates. And therefore, it unerringly
suggests that the Returning Officer did not act fairly and
that there has been serious faults and error on part of
Returning Officer in conducting the elections in a fair
manner and its counting process. Also, the faults on the
part of authorities responsible for conduction of free and
fair elections which has had the effect of benefitting the
Returned Candidate would fly in the face of fairness of
election process from the standpoint of Election
Petitioner who is standing at the margin of only 12 votes
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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when the total number of improperly received votes are
24.
92. One of the grounds under Section 139 which is
relevant to this case is Section 139 (1) (d) (iii) which
pertains to improper reception of any vote which has the
possibility of materially affecting the result of election as
far as it concerns a returned candidate. As discussed
above in the previous paragraphs, the faults and serious
lapses on the part of Returning Officer has certainly
resulted in improper reception of votes by the different
candidates including the Returned Candidate. In such a
scenario, one of the grounds specified in Section 137 is
attracted and also the whole process of election comes
under question. Furthermore, since there has been
improper reception of 24 votes where as the margin
between total no. of votes secured by O.P. No. 1 and
returned candidate is of 12 votes only. So it can definitely
be said that improper reception of these 24 votes has the
possibility of materially affecting the result of election as
far as it concerns a returned candidate. Furthermore, the
discussions held in previous paragraphs sufficiently
suggests that there were faults on the part of Returning
Officer in fair conduction of election process beyond a
shadow of reasonable doubt and that the Returned
Candidate was necessarily in collusion with the
Returning Officer in getting the desired result.”
Therefore, it is not correct on part of learned counsel for
the petitioner to contend that the finding of fact recorded by the
Election Tribunal about improper reception of 24 votes having
‘materially affected’ the election in favour of the petitioner is not
based on any evidence. The impugned judgment and order dated
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
33/44
08.01.2024 therefore cannot be said to be perverse or suffering
from any error of law on this account.
GROUND NO.C
The statement made by respondent no.5 in
paragraph-11 of the election petition to the extent that the
respondent no.5 had requested for recounting but the
Returning Officer did not do the recounting, is a false
statement and therefore the respondent no.5 had not
approached the Election Tribunal with clean hands as he had
supressed the relevant facts which was in his knowledge. As
per the petitioner, the recounting was done which was in the
knowledge of the respondent no.5.
(i) During the course of argument, the petitioner
completely failed to show any material which could establish that
recounting was carried out by the Returning Officer on the request
of the respondent no.5. The learned counsel for the petitioner
simply referred to paragraph-41 of the impugned order which only
depicts/records the stand of the parties taken before the Election
Tribunal. Having failed to show any material to support the
contention that recounting was done by the Returning Officer, the
allegation levelled by the learned counsel for the petitioner that the
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
34/44
respondent no.5 had made a false statement is not proper and
correct.
(ii) It is also pertinent to point out that this ground has
also not been pleaded in the writ application.
GROUND NO.D
While deciding the dispute the Election Tribunal
should have framed the issue “whether the discrepancy in the
total number of votes polled as the VTR and the total votes
counted ‘materially affected’ the outcome of the election as per
the strict requirement of Section 139(1)(d)(iii) of the Bihar
Panchayat Raj Act, 2006? By not framing this issue, the
Election Tribunal could not have answered this issue in the
impugned judgment and order dated 08.01.2024.
(i) Even this ground on which the learned counsel for
the petitioner is wanting to assail the impugned order and
judgment dated 08.01.2024 has not been pleaded in the writ
application.
(ii) Further, there was no need to separately frame this
issue because this issue has been substantially and elaborately
answered in paragraph nos.38 to 44, 73, 75, 76, 87 and 92 of the
impugned judgment and order dated 08.01.2024, while deciding
issue no.(iv) framed by the Election Tribunal. These relevant
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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paragraph have already been quoted above, which clearly
demonstrate that the Election Tribunal has given a plausible
finding of fact as to how the total number of votes polled as per the
VTR and the total votes finally counted ‘materially affected’ the
outcome of the election.
GROUND NO.E
The evidence of the Returning Officer was not
properly apprised which has led the Election Tribunal to
record wrong findings of fact.
(i) It is not correct at all on part of learned counsel for
the petitioner to contend that the evidence of the Returning Officer
has not been properly apprised. A detailed appraisal of the
evidence of the Returning Officer as well as of all other witnesses
has been done by the Election Tribunal which has led to Tribunal
giving findings of fact. All the findings of fact given by the
Election Tribunal are based on appraisal of oral and documentary
evidence.
(ii) Even assuming, that the findings of fact recorded by
the Election Tribunal are not correct, as per the petitioner, the fact
that they are findings of fact based on appraisal of oral and
documentary evidence, that itself would not make the impugned
judgment and order dated 08.01.2024 amenable to judicial
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
36/44
scrutiny, given the limited scope available under Article 226 and
227 of the Constitution of India.
GROUND NO.F
Form-20 (Part-I) annexed with the Interlocutory
Application No.01 of 2025 shows that the respondent no.5 had
put his signature on the said form and therefore based on the
principle of waiver, the respondent no.5 could not have
questioned the correctness of the said form qua Booth No.37 in
the election petition.
(i) It is important to observe that this objections was
neither taken before the Election Tribunal nor has been
taken/pleaded in the writ application. Without any foundational
pleading, the petitioner cannot be permitted to raise this ground at
the stage of argument.
(ii) Further, this ground has been taken based on the
pleadings made in the Interlocutory Application No.01 of 2025.
However, during the course of argument it was discovered that
Interlocutory Application No.01 of 2025 had already been
withdrawn by the petitioner on 16.06.2025 which is recorded in
the order sheet. Having withdrawn the Interlocutory Application
No.01 of 2025, the petitioner ought not to have raised this
contentions at the time of argument.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
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GROUND NO.G
Since VTR was prepared on the basis of Presiding
Officer’s ballot paper account (Statutory Form No.17), the
same can have discrepancy and therefore, the Election
Tribunal should have considered Form No.20 (Part-I) to be
correct instead of the VTR.
(i) Even this ground was taken at the time of argument
based on the pleadings made in the Interlocutory Application
No.01 of 2025, which was already withdrawn by the petitioner on
16.06.2025. Having withdrawn the Interlocutory Application
No.01 of 2025, the learned counsel for the petitioner should not
have raised this contention at the time of final argument.
(ii) Further, this ground taken by learned counsel for the
petitioner is also devoid of merit in light of the finding of fact
already recorded by the Election Tribunal in paragraph-76 and 87
of the impugned judgment and order dated 08.01.2024. Paragraph
76 and 87 are quoted herein below for needful.
“76. Furthermore, O.P. No. 1 and O.P. No. 6 in
their objection their objection have also suggested that the
discrepancy of 24 votes must have happened due to possible
human error on the part of Presiding Officer of Polling Booth
No. 37 in preparing the Exhibit 4/G which contained details
of votes polled as on the date of polling on Booth No 37. This
proposition is not tenable because the details of votes for
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
38/44polling booth no. 37 have also been accepted by the Returning
Officer (O.P. No. 9) in the VTR Exhibit-2/A which was also
prepared on the date of polling. Moreover, none of the
witnesses discussed above have stated of any irregularity on
polling Booth No. 37 on the date of polling. Further AW2 has
also categorically stated about preparation of Exhibit 4/G by
the presiding officer at polling booth no. 37 on the date of
polling. Moreover, the total number of votes as per Exhibit
4/G matches completely with the another vital document of
the election process ie. Voters’ Register for polling Booth No.
37 (Exhibit 5/G) which contains entries of 496 voters only.
All these factors suggest that Presiding Officer of polling
Booth No. 37 has not erred. In such a scenario, the Presiding
Officer cannot be held liable for discrepancy of 24 votes.
87. The documentary evidence invariably suggests
that there has been improper reception of 24 votes. It must
also be noted here that the exhibited documents which have
been referred in this case are not the private documents of
parties but these are document of Election Authorities and
were duly brought on record.
The most incredible aspect of the matter here is
that number of votes recorded in the EVM at the time of
counting is found to be 24 more than the total number of votes
polled as on the date of polling. Also, these extra unaccounted
24 votes find no corroboration with the Voter’s Register
(Exhibit 5/G) or with Annexure XII which pertains to Votes
Recorded in EVM (Part -1) (Exhibit 4/G). This increment of
24 votes by no means appears to be an outcome of an
inadvertent human error, and, the possibility of error on the
part of Presiding Officer of Polling Booth No. 37 has already
been ruled out in the discussions held above (in para 76).
Rather it is manifestly a fault on the part of Authorities
responsible for conducting of free and fair election and
counting of votes which has resulted in a possible undue
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
39/44advantage in favour of the O.P. No. 1. and a possible undue
disadvantage for the Election Petitioner as these 24 votes had
the potential of swinging the final outcome of the election
either in favour of Election Petitioner or in favour of O.P. No.
1. In view of aforesaid discussion, it cannot be said the
elections for the post Mukhiya of Bhetaura Gram Panchayat,
Tankuppa Prakhand, Gaya were conducted in free and fair
manner and therefore the whole process of election of
Mukhiya for Bhetaura Gram Panchayat stands vitiated. And it
goes without saying that the faults and serious lapses on the
part of Returning Officer should not result in benefitting any
of the contesting candidates. And therefore, it unerringly
suggests that the Returning Officer did not act fairly and that
there has been serious faults and error on part of Returning
Officer in conducting the elections in a fair manner and its
counting process. Also, the faults on the part of authorities
responsible for conduction of free and fair elections which has
had the effect of benefitting the Returned Candidate would fly
in the face of fairness of election process from the standpoint
of Election Petitioner who is standing at the margin of only 12
votes when the total number of improperly received votes are
24.”
22. Under the aforesaid facts and circumstances and for
the reasons given above, this Court is not inclined to interfere with
the judgment and order dated 08.01.2024 passed by the learned
Civil Judge (Junior Division-I, Gaya) in Election Petition No.01 of
2023. Consequently the prayer made in the writ application is
rejected and the writ application is dismissed.
23. All pending I.A.s, if any shall be deemed to have
been disposed of.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
40/44
CWJC NO.3410 OF 2024
Heard the parties.
2. In the present writ application the petitioner has
prayed for the following reliefs:
“I. For issuance of writ in the nature of
certiorari or any other appropriate writ or direction to
set aside part of the order dated 08/01/2024 passed in
election petition No.05/2021/11/2021/1/2023 by Civil
Judge Junior Division I, Gaya filed U/s 137 and 140
of Bihar panchayat Raj Act whereby and where under
it has been ordered to set aside, the entire election
process of Mukhiya, for Gram Panchayat Bhetaura,
Nirvachan Chetra Sankhaya-3 under Tankuppa
Prakhand of Gaya district and further set aside the
direction to conduct re-election for the post of
Mukhiya for Gram Panchayat Bhetaura, Nirvachan
Chetra Sankhaya-3 under Tankuppa Prakhand of
Gaya, though election petition of petitioner has been
allowed thus the order is non-consequential and also
against the mandate of section 140 of the Bihar
Panchayat Raj Act 2006.
II. For issuance of writ in the nature
mandamus or any other appropriate writ to declare
the petitioner being the successful for the post of
Mukhiya having received majority of the valid 2212
votes.
III. For issuance of writ in the nature of
mandamus or any other appropriate
writ/order/direction to the respondent No.2 not to
proceed in this matter for re-election in election
process of Mukhiya, for Gram Panchayat Bhetaura,
Nirvachan Chetra Sankhaya-3 Tankuppa Prakhand of
Gaya.
IV. For issuance of any other appropriate
writ or direction for which the petitioner is otherwise
entitled in the eye of law.”
3. Learned Senior Counsel appearing for the petitioner
submits that after setting aside the election of Smt. Anita Devi
(respondent no.4) from the post of Mukhiya of Gram Panchayat,
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
41/44
Bhetaura, the Election Tribunal ought to have declared the
petitioner as successful for the post of Mukhiya of Gram
Panchayat, Bhetaura, having received majority of the valid 2212
votes and therefore the direction of the Election Tribunal to
conduct reelection is improper and to that extent it should be set
aside.
4. Learned counsel appearing for respondent no.4, Smt.
Anita Devi and learned counsel appearing for respondent
Commission have strongly opposed the prayer made in this writ
application.
5. Section 140 of Bihar Panchayat Raj Act, 2006 lays
down the ground on which a candidate other than returned
candidate may be declared to have been elected. For ready
reference Section 140 of Bihar Panchayat Raj Act, 2006 is quoted
herein below for needful.
“140. Grounds on which a candidate other than the
returned candidate may be declared to have been
elected.- (1) If any person who has filed an election
petition has, in addition to calling in question the
election of the returned candidate, claims a declaration
that he himself or any other candidate has been duly
elected and the Prescribed Authority is of opinion-
(a) that in fact the petitioner or such other
candidate received a majority of the valid
votes; or
(b) that but for the votes obtained by the
returned candidate by corrupt practices the
petitioner or such other candidate would have
obtained a majority of the valid votes, the
Prescribed Authority shall after declaring the
election of the returned candidate to be void
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
42/44declare the petitioner or such other candidate,
as the case may be, to have been duly elected.
(2) The decision of the Prescribed Authority shall be
final.”
6. From a careful reading of the judgment and order
dated 08.01.2024 passed in Election Petition No.01 of 2023, it is
manifest that the Election Tribunal has given a finding that there
was improper reception of 24 votes which ‘materially affected’ the
election of the respondent no.4 to the post of Mukhiya of Gram
Panchayat, Bhetaura. In fact in paragraph nos.89 and 92 of the
judgment and order dated 08.01.2024, the Election Tribunal has
given elaborate reasons as to why no candidate can be declared
winner and that reelection is only outcome. Paragraph-89 and 92
of the judgment is quoted herein below for needful.
“89. Furthermore, enough/sufficient material
is not available on record to show candidate-wise
reception of these unaccounted 24 votes which
nevertheless have been improperly received by the
candidates. Therefore, when the Election Petitioner is at
the margin of 12 votes from the Returned Candidate and
there is a discrepancy of 24 votes as discussed above,
then it goes without saying that these 24 votes would be
decisively vital for determining the real winner of the
election for the post of Mukhiya. Entire elections process
has to be based on the principle of sanctity of votes,
however, in this case the sanctity 24 votes has been
compromised. And due to this, none of candidates can be
effectively declared as the winner in the Election and
therefore whole process of election stands vitiated.
Also, in these circumstances, the conduction
of re-election remains the only way out to elect a winning
candidate in fair manner to the post of Mukhiya of
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
43/44Bhetaura Gram Panchayat which has also been
contemplated under Rule 112 of Bihar Panchayat
Election Rules 2006.
92. One of the grounds under Section 139
which is relevant to this case is Section 139 (1) (d) (iii)
which pertains to improper reception of any vote which
has the possibility of materially affecting the result of
election as far as it concerns a returned candidate. As
discussed above in the previous paragraphs, the faults and
serious lapses on the part of Returning Officer has
certainly resulted in improper reception of votes by the
different candidates including the Returned Candidate. In
such a scenario, one of the grounds specified in Section
137 is attracted and also the whole process of election
comes under question. Furthermore, since there has been
improper reception of 24 votes where as the margin
between total no. of votes secured by O.P. No. 1 and
returned candidate is of 12 votes only. So it can definitely
be said that improper reception of these 24 votes has the
possibility of materially affecting the result of election as
far as it concerns a returned candidate. Furthermore, the
discussions held in previous paragraphs sufficiently
suggests that there were faults on the part of Returning
Officer in fair conduction of election process beyond a
shadow of reasonable doubt and that the Returned
Candidate was necessarily in collusion with the
Returning Officer in getting the desired result.”
7. Learned Senior Counsel appearing for the petitioner is
unable to find fault with the reasoning given in paragraph-89 and
92 of the judgment and order dated 08.01.2024 as quoted above.
Consequently, the petitioner has failed to make out a case of either
clause (a) or (b) of sub-section (1) of Section 140 of the Bihar
Panchayat Raj Act, 2006.
Patna High Court CWJC No.3937 of 2024 dt.07-07-2025
44/44
8. In the aforesaid facts and circumstances, finding no
reason to interfere with the judgment and order dated 08.01.2024
passed by the learned Civil Judge (Junior Division-I, Gaya) in
Election Petition No.01 of 2023, the same is upheld and even this
writ application is dismissed.
9. All pending I.As, if any, shall be deemed to have been
disposed of.
(Alok Kumar Sinha, J)
Prakash Narayan
AFR/NAFR AFR
CAV DATE 01.07.2025
Uploading Date 07.07.2025
Transmission Date NA
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