NARENDRA SHARMA Vs. STATE OF BIHAR WITH

JUDGEMENT

(1.) BOTH the writ applications challenge a common order dated 5.05.2007 passed by the learned Civil Judge (Junior Division) -cum -Election Tribunal, Jehanabad in Election Case No.24/06. By virtue of this order the concerned election petition has been dismissed which was filed by the petitioner of C.W.J.C. No. 7928 of 2007, namely, Narendra Sharma. The second writ application C.W.J.C. No. 10100 of 2007 is by Manzoor Alam, who has been held to be the returned candidate or Mukhiya of Teri Gram Panchayat under Kaler Block in the district of Arwal. The challenge to the said orders is varied by the two parties since none are satisfied with the final decision rendered by the Election Tribunal. Election Case No. 24/06 was filed by Narendra Sharma the defeated candidate after the Panchayat election was held in State of Bihar in the year 2006. On completion of the election process the result was announced and respondent no.5 Manzoor Alam of C.W.J.C. No. 7928 of 2007 was declared the elected candidate. This result was challenged in the election case on varied grounds. The primary ground for challenge was that the respondent Manzoor Alam and his family had managed to keep itself registered in two different Wards as voters. The Wards in question are Ward No.5 and 7. It is further alleged that the said Manzoor Alam with his family also voted twice over in both the Wards and this has materially affected the result of the case. It was urged based on decisions in this regard that if there has been voting twice over in the same constituency by the same set of persons then the second set of votes had to be considered to be invalid votes. The two booths where the said votes were casted are booth no.136 and 138 of the said Gram Panchayat. Since the margin of victory between the two contestants was very very narrow, a prayer for recounting was also made in this regard.

(2.) THE Election Tribunal formulated 11 issues for decision of the election petition. Written statement was also filed on behalf of the main contesting party, namely, Manzoor Alam. Many objections including objection with regard to maintainability of the election petition in the given form was also raised. The Court below took up issue No. (v), (viii) and (ix) which primarily related to whether the contesting respondent and his family had exercised right of voting twice over? Whether there were rejection of valid votes casted in favour of the petitioner? and Whether the petitioner was entitled to declaration of result in his favour after annulling the result of Manzoor Alam? Learned counsel for the petitioner of the case of Narendra Sharma submits that the verification of ballot papers on the two booths was not done fully even though prima facie the petitioner had succeeded in establishing that there were voting in the two Wards on identical names in the same Gram Panchayat. His contention is that the Court below for a misplaced kind of reason only carried out the exercise limited in its form. This has caused a serious prejudice because the votes of the petitioner and the respondent Manzoor Alam turned to be equal alter deleting some second time voting. The Court below applied the maxim of "Where equity are equal time shall prevail". The trial Court held that in case of equal votes Rule 98 of the Gram Panchayat Rules mandated drawing of lots but since respondent no.5 was already the elected Mukhiya and was functioning as such he was allowed to continue.

(3.) THIS Court may clarify that the maxim applied by the trial Court is not totally off the mark though the actual maxim is, "Between equal equities the first in order of time shall prevail".