Case Background
The dispute arose from the 2021 Panchayat elections for the post of Mukhiya of Gram Panchayat Raj, Gangwara Bujurg, under Runnisaidpur Block in Sitamarhi district.
Polling was held on 12.12.2021 at 13 booths, including Booth No. 213. According to the petitioner, after counting on that day he was declared the returned candidate with 1073 votes against 1048 votes polled in favour of respondent no. 7. No candidate, including respondent no. 7, raised any objection about the Electronic Voting Machines (EVMs) at the time of polling or counting.
Later, on 14.12.2021, the District Election Officer (Panchayat)-cum-District Magistrate, Sitamarhi, on the recommendation of the Returning Officer (Panchayat)-cum-Block Development Officer, Runnisaidpur, wrote to the State Election Commission recommending a re-poll in Booth No. 213. This was said to be based on a report of a Bharat Electronics Limited (BEL) engineer about a “technical defect” in the control unit CU(H63448).
Re-polling at Booth No. 213 was then held on 15.12.2021. In this re-poll the petitioner secured 190 votes and respondent no. 7 secured 77 votes. However, it was also stated that on the earlier count of 12.12.2021 from the EVM, before the re-poll, the petitioner had 218 votes and respondent no. 7 had only 18 from that booth.
After the re-poll, the overall result was declared in favour of respondent no. 7, showing a winning margin of 62 votes, and he was declared the returned candidate.
The petitioner filed a complaint on 18.12.2021 before the State Election Commission alleging biased and illegal action by the District Election Officer and Returning Officer in ordering re-polling and recounting. Not satisfied with the response, he approached the Patna High Court in Civil Writ Jurisdiction Case No. 5501 of 2022.
What the Court Examined and Decided
The petitioner sought multiple reliefs under Article 226 of the Constitution. He asked the Court to declare the election of respondent no. 7 as Mukhiya void, to direct strong action against the District Election Officer and Returning Officer for allegedly committing fraud on democracy, and to record that the State Election Commission failed to ensure a free and fair election at his Gram Panchayat.
The core grievance was that the officers ordered a re-poll in Booth No. 213 after counting was over on 12.12.2021, without any objection from candidates and without any reliable technical basis. According to the petitioner, this repoll changed the final result and wrongly displaced him from the post of Mukhiya.
On the other side, the District Election Officer and Returning Officer filed a counter affidavit. They claimed that during the counting of votes for Booth No. 213 it was reported by a BEL Engineer that there was a technical defect in control unit CU(H63448). Acting on the Returning Officer’s recommendation, the District Election Officer reviewed the matter in Form “Kh” and, by letter dated 14.12.2021, recommended a re-poll for Booth No. 213 to the Secretary, State Election Commission.
The State took the stand that once an election is over, any dispute must be raised by way of an election petition before the Election Tribunal. They argued that the writ petition was not maintainable in view of settled law on election matters.
The State Election Commission, though not filing a counter affidavit, supported this line through its counsel. It was submitted that the Commission has no role after the election process is over and that the petitioner’s proper remedy lay before the Election Tribunal.
During the hearing it was admitted that no technical expert report of BEL about non-functioning or malfunctioning of the EVM had been placed on record. Only a general statement was available that a technical defect was “reported” by a BEL Engineer.
The Court treated this omission very seriously. It noted that respondent no. 7 had not made any complaint about malfunctioning of the EVM on the date of voting or counting on 12.12.2021. Yet, the Block Development Officer-cum-Returning Officer acted suo motu on some engineer’s report to declare the machine defective and to recommend a re-poll.
Importantly, the Court pointed out that the BEL expert’s report itself was not produced before it. The District Magistrate had written to the State Election Commission for re-polling without any such expert report being on record. This raised questions of fairness and legality in the decision-making process.
Before addressing the facts, the Court surveyed the legal framework on judicial interference in elections.
It referred to Article 243-O of the Constitution and Section 138 of the Bihar Panchayat Act, 2006, which bar courts from interfering in Panchayat elections except through an election petition. The Court cited the Supreme Court’s decision in Election Commission of India v. Ashok Kumar (2000) 8 SCC 216, which held that challenges that interrupt or obstruct the election process must mostly wait until after the election, and that orders of the Election Commission are open to judicial review only on limited grounds like mala fides, arbitrariness, or breach of law.
The Court also referred to several other Supreme Court decisions on election law, including:
- Nanhoo Mal v. Hira Mal (AIR 1975 SC 2140) – holding that the right to vote and to stand in an election is a creature of statute, and elections must be challenged only by the procedure laid down in the statute, usually through an election petition.
- Suresh Prasad Yadav v. Jai Prakash Mishra (1975) 4 SCC 822 – emphasising that recounting of ballot papers cannot be ordered as a matter of course, given the importance of ballot secrecy and the safeguards in the counting process.
- Jyoti Basu v. Debi Ghosal (1982) 1 SCC 691 – reiterating that election petitions are statutory proceedings strictly governed by the statute.
- Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310 – clarifying that all “material facts” must be pleaded in an election petition, and failure to state even a single material fact can lead to dismissal.
- Sarvepalli Ramaiah v. District Collector, Chittoor (2019) 4 SCC 500 – explaining that administrative decisions are open to judicial review only on grounds such as perversity, patent illegality, want of power, or procedural irregularity, and that judicial review is directed at the decision-making process.
The Patna High Court accepted that, as a rule, election disputes must go to the Election Tribunal. However, it recognised that courts can intervene in exceptional cases to correct arbitrary or mala fide actions, especially when they affect the integrity of the election process itself.
In this case, the Court held that the District Magistrate’s recommendation for re-poll without a scientific expert report from BEL, and only on an engineer’s recommendation, showed a defective decision-making process. Such action was described as “unsubstantive and pervasive” and as based on “mere suspicion”.
The Court also stressed that there was no evidence of tampering with the ballot box, and no complaint from any candidate about the EVM on 12.12.2021. It found the Collector’s observation that the EVM was tampered with or non-functional to be a mere suspicion, not supported by reliable material.
At the same time, the Court did not directly declare the petitioner the winner or cancel the election. Instead, it crafted a remedial path that combined judicial review with the statutory election mechanism.
First, it held that the objection filed by the petitioner on 18.12.2021 needed to be examined on the basis of a proper technical report from BEL on the EVM used at Booth No. 213 on 12.12.2021. Only after such scientific examination would it be appropriate to conclude whether the initial voting could stand or not.
Second, the Court held that the bar of alternative remedy (i.e., availability of election petition) would not prevent it from giving directions in this exceptional case, since the decision for re-poll appeared to be taken without jurisdiction and contrary to Supreme Court guidelines.
The Court then directed that the dispute be decided by the competent Election Tribunal, but with clear instructions:
- The petitioner is at liberty to file an election petition before the Tribunal. The question of limitation (time bar) will not stand in his way.
- Bharat Electronics Limited (BEL) must submit a scientific report to the Tribunal regarding the EVM which recorded votes on 12.12.2021 for Booth No. 213, within six weeks from the date of communication of the Court’s order.
- The State Election Commission is duty-bound to produce the expert team’s report of BEL before the Tribunal within one week from communication of the order, so that no manipulation can occur at any level.
- The Tribunal is to proceed on the basis of materials, including the petitioner’s objection dated 18.12.2021 and the BEL technical report, and decide the dispute in accordance with law.
- If the State Election Commission is unable to produce the expert report of BEL, then the Tribunal must declare that the subsequent election held on 15.12.2021 at Booth No. 213 was not in accordance with the Zila Panchayat Raj Act, 2006, for not following the mandate of Article 243-O of the Constitution.
- This entire exercise must be completed by the Tribunal within one month from the date of the High Court’s order.
- The petitioner and the returned candidate (respondent no. 7) must appear before the Election Tribunal within one week, and the State must ensure that respondent no. 7 is duly informed.
Through these directions, the High Court ensured that the question of who was lawfully elected Mukhiya of Gram Panchayat Raj, Gangwara Bujurg will be finally decided by the specialised election forum, but on the basis of proper technical evidence and without being blocked by limitation or procedural hurdles.
Why This Judgment Matters
This judgment is important for villagers, candidates, and election officials involved in Panchayat elections in Bihar.
First, it shows that officers cannot lightly order re-polling on vague or oral claims of EVM defects. There must be clear technical evidence from the authorised expert agency, like BEL, before cancelling earlier voting.
Second, it reminds everyone that the normal route to challenge a Panchayat election is an election petition before the Tribunal. However, if there is a clear problem in the way officials took a decision – such as lack of jurisdiction, absence of expert report, or violation of law – the High Court may step in to correct the process and then send the dispute to the Tribunal.
Third, the Court has protected the petitioner from being shut out by limitation. It has allowed him to file an election petition even at this stage and directed the Tribunal to decide the matter on merits.
Finally, the judgment underlines that the State Election Commission has a duty to act transparently and place expert reports before the Tribunal quickly. This helps maintain public confidence that Panchayat elections in Bihar are free, fair, and technically sound.
Legal Issues and Answers
Issue: Can the Patna High Court interfere under Article 226 with a Panchayat election result where re-polling was ordered in one booth without a scientific EVM report, despite the availability of an election petition remedy?
Answer: Yes, in exceptional circumstances the High Court can exercise judicial review to correct arbitrary or jurisdictionally defective actions, and here it directed that the dispute be decided by the Election Tribunal on the basis of a scientific report from BEL while keeping limitation from operating against the petitioner.
Issue: Was the District Magistrate’s recommendation for re-poll at Booth No. 213, based only on an engineer’s suggestion without an expert report from BEL, legally sustainable?
Answer: No, the Court held that acting merely on suspicion and without a proper expert report was unsubstantive, pervasive, and contrary to Supreme Court precedents, and therefore required correction through judicial review and Tribunal proceedings.
Issue: What should happen if the State Election Commission cannot produce a BEL expert report on the alleged malfunctioning of the EVM used on 12.12.2021?
Answer: The Tribunal must then proceed to declare that the subsequent election held on 15.12.2021 in Booth No. 213 was not held in accordance with the Zila Panchayat Raj Act, 2006, for failure to follow the mandate of Article 243-O of the Constitution of India.
Cases Cited by the Court
- Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216
- Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310
- Nanhoo Mal and others v. Hira Mal and others, AIR 1975 SC 2140
- Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822
- Chanda Singh v. Shiv Ram Verma, (1975) 4 SCC 393
- Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691
- N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, AIR 1952 SC 64
- Sarvepalli Ramaiah v. District Collector, Chittoor, (2019) 4 SCC 500
- Digvijay Mote v. Union of India, (1993) 4 SCC 175
Case Details
Case Number: Civil Writ Jurisdiction Case No. 5501 of 2022
Case Title: Dev Narayan Sahu @ Dev Narayan Sah v. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Purnendu Singh
Citation: 2024 (1) PLJR 880
Advocates:
- For the Petitioner: Mr. S.B.K. Manglam, Advocate; Mr. Awnish Kumar, Advocate
- For the State of Bihar: Mr. Kumar Alok, SC 7
- For the State Election Commission: Mr. Ravi Ranjan, Advocate
Nature of the Case: Writ petition under Article 226 of the Constitution challenging Panchayat election process and repoll decision; directions issued for adjudication by Election Tribunal.
Date of Judgment: 29.01.2024
Link to Judgment: Patna High Court Judgment
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