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Election result made without the counting of votes, opposing relevant Rules and Instructions cannot be sustained: Patna High Court

If the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained upheld by the High Court of Patna through the learned bench led by HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR in the case of Santosh Kumar Vs. The State of Bihar (Civil Writ Jurisdiction Case No. 237 of 2022)

Brief facts of the case are that petitioners have asked for the issuance of a MANDAMUS writ compelling and instructing the Respondent State Election Commission to call for the C.C. TV footage of election. Footage relating to the counting of votes in Gram Panchayat Raj Jagdishpur Dharmu, Nirvachan Constituency for the post of Ward Member and Mukhiya of Gram Panchayat Raj Jagdishpur Dharmu from the respondent and pass necessary orders in exercise of its power under Section 123 of the Bihar Panchayat Raj Act, 2006, if after C.C. TV’s scrutiny of counting video footage found the fact that no counting took place in the constituency in the presence of the candidates or their Counting Agents, including the petitioner, the election result was declared and a certificate of election was issued in favour of a candidate contesting the election.

Petitioners have prayed for a declaration that, if the result of an election must be declared only after the counting of votes in the manner prescribed by the relevant Rules and Instructions issued by the State Election Commission, any declaration of result made without the counting of votes in the manner prescribed is not a declaration in the eyes of law, and thus cannot be sustained. Petitioners have further asked for the issuance of an appropriate writ in the form of MANDAMUS, requiring and instructing the Respondent State Election Commission to annul the election in the above-mentioned constituency if the C.C. TV investigation finds that the election based on footage of the counting process, it was discovered that no votes were counted in the above-mentioned Constituency in the presence of the candidates or their Counting Agents, particularly petitioner, and that a new election should be held in accordance with the law, but only after appropriate amendments to the Bihar Panchayat Election Rules, 2006 were made regarding the appointment of a sufficient number of Counting Agents to keep watch over the counting process proportionate to the Counting Tab.

After scrutiny by C.C. TV, petitioners have requested that action be taken against the erring officers tasked with the responsibility of counting the votes in constituency.  It has come to light that the election result was declared without counting of votes in the presence of the candidates or their Counting Agents, particularly petitioner , in violation of the provisions of the Bihar Panchayat Election Rules, 2006, and the detailed instructions issued by the State” Election Commission through its Hand Book for Instructions Regarding Counting, 2021, soft copy of which was sent to all the District Election Officers (Panchayat) -cum- District Magistrate.

Learned counsel for the petitioner’s states that the petitioners will be satisfied if a direction is issued to the authority concerned, i.e., respondent no.4, The State Election Commissioner, the State Election Commission (Panchayat), Patna, or any other statutory authority, to consider and decide the representation that the petitioners will be filing within four weeks from today for redress of the grievance. According to learned counsel for the respondents, if the petitioners file such a representation, the authority concerned must consider and dispose of it promptly, preferably within four months of its filing, along with a copy of this ruling.

The petition and Interlocutory Application stands dismissed and since the court did not reach a decision on the merits, all issues are unresolved. When a petitioner seeks such remedies as are ordinarily available in law before the appropriate venue, the matter will be handled in conformity with the law and in a timely manner. The authority concerned shall consider and dispose of it expeditiously by a reasoned and speaking order, preferably within four months of the date of its filing, along with a copy of this order, and while considering such representation, natural justice principles shall be followed and the parties shall be afforded due opportunity of hearing.

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Judgement reviewed by – Pooja Lakshmi

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