Kanhaiya Chand Son of Late Paras Chand Vs. the Bihar State Election Commission and ors. - Court Judgment

Excerpt:
- ajay kumar tripathi, j.1. heard counsel for the parties.2. petitioner is aggrieved by the order dated 29.1.2009 (annexure-7), which has been passed by the learned iind munsif, buxar in election petition no. 8/2006. by virtue of the said decision the election petition filed by the petitioner has been dismissed as being devoid of any merit. it is alleged by learned counsel for the petitioner that even the ballot papers which were called for inspection were not properly inspected and 97 ballot papers which were properly stamped in favour of the petitioner were illegally kept out or rejected by respondent no. 3, the returning officer-cum-block development officer of dumraon block in the district of buxar.3. the petitioner has not only sought interference with the impugned decision contained in annexure-7 but has also prayed for a direction upon the election tribunal to inspect and count 97 ballot papers to ascertain whether the same were validly rejected or not. one of the serious challenge to the impugned order is based on the submission that the learned munsif could not frame an issue during the course of writing the judgment and render its opinion without giving an opportunity to lead evidence on that issue. further the reasoning assigned and the conclusion reached is perverse and erroneous and fit to be rejected.4. several issues based on the allegation made in the election petition came to be formulated by the election tribunal. from a reading of the decision it is apparent that one of the bone of contention was 97 votes which the petitioner alleges accrued in his favour but had been illegally rejected because the petitioner's stand is that if those 97 votes are counted in favour of the petitioner he would have been declared winner. the court has gone through the discussion relating to issue no. 3 with regard to illegal rejection of 97 votes. after taking into consideration the various evidence and witnesses what has emerged is that those 97 votes were rejected on the ground that they did not have the swastika mark which was mandatory. even before the counting of votes the state election commission had issued clear guidelines that al those ballot papers which did not have a swastika mark indicating the voters preference for a particular candidate would not be treated to be valid vote and had to be kept out of counting. though there was a controversy at the relevant time that the instrument by which the marking had to be made provided by the state election commission were defective in quite a number of cases and, therefore, the same instrument had been used by the voter provided to them by the election authorities for casting the votes. in the present case since those 97 votes did not bear the swastika mark, they were declared as invalid and the resuit was declared on the basis of valid votes. the learned munsif, therefore, not only on that issue but on other issues also came to a conclusion that the petitioner has not succeeded in establishing any illegality in the counting and declaration of result.5. on the question of whether a court could formulate an issue at the time of rendering its decision without giving an opportunity to the petitioner to lead evidence or making submission the court has no hesitation in recording that the power is vested in the trial court to formulate an issue to do complete justice in the case moreso when adequate evidence was available on record to formulate the said issue and answer the same. there is no legal bar in this regard.6. the court also further records that in view of the division bench decision which has been rendered in the case of bihar state election commission v. meera devi 2008 (4) pljr 114, the issue stands settled by a division bench of this court that in absence of swastika mark even though the voter has expressed his preference for a particular candidate by putting a mark on the ballot paper but the same cannot be counted as a valid exercise of vote in favour of any candidate. if 97 votes which is the bone of contention did not carry the swastika mark and that was the reason for declaring it invalid then the learned munsif has rightly held that no case for interference or recounting of those 97 ballot papers is made out or is required.7. the writ application has no merit. it is dismissed.