The judgment emphasizes that in election matters governed by statutes, it is not permissible to resort to general principles of fairness to interfere with an election process or result.

Shiva Kirti Singh, J.

This Letters Patent Appeal is directed against judgment and order dated 10.2.2010 whereby the learned single Judge has allowed writ petition bearing CWJC No.9242 of 2008 preferred by Sandhya Devi, respondent no.4. As a result, while reversing the order dated 31.3.2008 of the Election Tribunal, Jehanabad whereby Election Case No.15 of 2006 preferred by respondent no.4, was dismissed, the election of the appellant (respondent no.4 in the writ petition) on the post of Mukhiya of Gram Panchayat Kochahasa in the district of Arwal has been set aside.

2. The relevant facts are not in dispute and find incorporated in the order under appeal. The writ petitioner (respondent no.4 herein) contested the election for the post of Mukhiya in question and lost to the appellant by a margin of 37 votes. The voting took place on 24.5.2006. Counting of votes was held on 5.6.2006. A grievance appears to have been raised by the writ petitioner before the District Election Officer-cum- District Magistrate, Arwal on 6.6.2006 that some valid votes of the writ petitioner had been discarded as invalid and her valid votes and that of some other candidates had been included in the bundle of votes of the appellant and, therefore, all the ballot papers at all the booths may be ordered to be recounted once again.

3. Election Petition No.15 of 2006 was preferred by the writ petitioner. A grievance was raised in the election petition that bungling has been committed by the Returning Officer in course of counting of votes. It was alleged that in course of counting of ballots of booth no.71, 13 votes of the writ petitioner had been made to disappear because as per diary of the Presiding Officer total votes polled were 236 but the total votes counted were only 223. It was further alleged that while counting ballots of booth no.72 the Returning Officer somehow managed 39 votes in favour of the appellant because according to diary of the Presiding Officer number of ballots/ votes was only 250 but the total number of votes counted was shown to be 289.

4. The Election Tribunal considered first the prayer of the writ petitioner for reopening of the ballots and recounting and by order passed on 15.6.2007 gave a finding that polled votes of booth no.71 where the election petitioner claimed to have been deprived of 13 valid votes, may require to be opened for verification and counting. But ultimately by the final judgment and order dated 31.3.2008 which was under challenge in the writ petition, the Election Tribunal accepted the argument advanced on behalf of the appellant that even if it is assumed that 13 votes missing from the total polled votes were wrongly included in the valid votes of the election petitioner, the exercise of recounting would not have any material effect on the outcome of the election because the margin of victory was admittedly 37 votes. On that basis, the election petition was dismissed.

5. The learned Writ Court has taken note of the fact that 13 votes of booth no.71 were allegedly found short but has further held, contrary to records that 13 votes were counted as votes of the appellant. There is no dispute that in both no.71 the appellant got only five votes and hence, there could be no question of 13 votes of election petitioner being counted in favour of the appellant. It further appears that the Writ Court decided to interfere with the election of the appellant on the basis of the fact that according to official records 250 votes were polled at booth no.72 but altogether 289 votes were counted as votes belonging to different candidates. The mystery of excess counting of 39 votes could not be explained by the parties or the officials and on that basis as well as on the basis of 13 votes alleged to be excess votes of booth no.71, the Writ Court gave a finding that the fairness of the election process and the election stood vitiated requiring its result to be set aside.

6. It was pointed out and submitted on behalf of