IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1860 of 2009 Ramchandra Paswan, son of Kamal Paswan, Resident of village – Nainaghat, Anchal and P.S. Sadar, District- Darbhanga Versus 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2. The District Election Officer-cum-District Magistrate, Darbhanga, District- Darbhanga 3. The Block Development Officer-cum-Returning Officer, Nainaghat Gram Panchayat, Block- Sadar, District- Darbhanga 4. Anil Kumar Paswan, son of Tula Ram Paswan, Resident of village- Nainaghat, P.S. Sadar, Anchal- Sadar, District- Darbhanga 5. Ram Prasad Paswan, son of Rameshwar Paswan, Resident of village- Majhiam, P.O. Telhan, P.S. Sadar, Anchal- Sadar, District- Darbhanga 6. Suresh Sada, son of Baun Sada, Resident of village- Aami, P.O. Telhan, P.S. Sadar, Anchal- Sadar, District- Darbhanga with CWJC No.1861 of 2009 Usha Devi, wife of Arun Kumar Mandal, Resident of village – Ranna, P.O. Telhar, P.S. Sadar, District- Darbhanga Versus 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2. The District Election Officer-cum-District Magistrate, Darbhanga, District- Darbhanga 3. The Block Development Officer-cum-Returning Officer, Nainaghat Gram Panchayat, Block- Sadar, District- Darbhanga 4. Shila Devi, wife of Dilip Mandal, Resident of village- Ranna, P.O. Telhar, P.S. Sadar, DistrictDarbhanga with CWJC No.1779 of 2009 Brij Lal Paswan, son of Sital Paswan, Resident of village- Aami, Via- Sakri, P.S. Sadar, District- Darbhanga Versus 2 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2. The District Election Officer-cum-District Magistrate, Darbhanga, District- Darbhanga 3. The Returning Officer –cum- Block Development Officer- Darbhanga Sadar, District- Darbhanga 4. Kusheshwar Paswan, son of Gulachhi Paswan, Resident of Village – Majhyama, P.S. Sadar, District- Darbhanga with CWJC No.9302 of 2008 Madhurendra Pandey, son of Late Vikrama Pandey, Resident of village – Mangalpur Kala, P.O. Mangalpur, P.S. Nautan, District- West Champaran at Bettiah Versus 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2. The District Election Officer-, West Champaran at Bettiah 3. The Returning Officer, (Panchayat), Nautan Block, District West Champaran at Bettiah 4. Yogendra Singh, son of Late Raghuraj Singh 5. Umesh Pandey, son of Sri Asesar Pandey 6. Chandeshwar Raut, son of Sri Banhu Raut, 7. Chandra Prakash Srivastava, son of Late Dharnidhar Prasad Srivastava 8. Chhotelal Singh, son of Late Bachchan Singh 9. Prahalad Prasad Sah, son of Late Nathuni Prasad Sah 10. Sanjay Singh, son of Late Thag Singh, All resident of village- Mangalpur Kala, P.O. Mangalpur, P.S. and Anchal – Nautan, District- West Champaran at Bettiah 11. Prabhu Mukhiya, son of Raj Nandan Mukhiya, Resident of village- Nautan (Parsan Yadav Tola) P.S. and Anchal Nautan, District West Champaran at Bettiah 12. Harendra Mukhiya, son of Late Budhan Mukhiya, Resident of village Bintoli, P.O. Mangalpur, Gudgaria, P.S. and Anchal- Nautan, District- West Champaran at Bettiah with CWJC No.16202 of 2007 Phooldeo Mahto, son of Late Jaleshwar Mahto, Resident of village- Parsa Sadan, P.O. Parsa Patti, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division-Muzaffarpur West, District-Muzaffarpur. Versus 3 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner 2. The District Election Officer-cum-District Magistrate, Muzaffarpur, District- Muzaffarpur 3. The Returning Officer-cum-Sub-Divisional Officer, West Muzaffarpur, District- Muzaffarpur 4. The Assistant Returning Officer-cum-Block Development Officer, Sahebganj, District- Muzaffarpur 5. The Assistant Returning Officer-cum- Plant Protection Officer, Sahebganj, District- Muzaffarpur 6. The Assistant Returning Officer-cum- Block Welfare Officer, Sahebganj, District-Muzaffarpur 7. Ram Sakal Singh, son of Late Mahesh Singh, Resident of village and PO Tarwara, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 8. Chandreshwar Singh, son of Late Ganga Prasad Singh, Resident of village and PO Tarwara, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 9. Jailal Prasad Yadav, son of Sri Ram Bahadur Rai, Resident of village Madarpur, PO Rajepur P.S. Baruraj Anchal and Block- Motipur, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 10. Jeetendra Kumar, son of Sri Shiv Shankar Kumar, Resident of village- Daha Chhapra, P.O. Dhanaiya, P.S., Anchal and Block -Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 11. Dinesh Prasad Chauhan, son of Sri Yogendra Prasad Singh, Resident of village Pratapatti, PO Karnaul, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 12. Nand Kishore Mishra, son of Sri Basudeo Mishra, Resident of village and PO Balthi Narhar, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 13. Pradyuman Prasad Singh, son of Late Bhuwaneshwar Singh, Resident of village and PO Saraiya, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 14. Bachchi Devi, wife of Sri Gopal Krishna Rai, Resident of village- Pakari Basarat, P.O. Pakari Basarat, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 4 15. Baleshwar Paswan, son of Sri Durga Hazara Paswan,Resident of village- Moguraha Asali, P.O. Rajepur, P.S., Anchal and Block- Sahebganj, Munsif and Sub- Division- Muzaffarpur West, District- Muzaffarpur 16. Braj Kishore Singh, son of late Dhuman Singh, Resident of village and P.O. Dhanaiya, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 17. Bharat Kumar, son of late Kapildeo Kumar, Resident of village – Daha Chapra, P.O. Dhanaiya, P.S., Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur 18. Ramashray Paswan, son of Late Deonandan Paswan, Resident of village- Bishambharpur, P.O. Madhubani, P.S. Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District Muzaffarpur 19. Shailendra Kumar Mahto, son of Late Indradeo Mahto, Resident of village- Rampur Asali, P.O. Karnaul, P.S. Anchal and Block- Sahebganj, Munsif and Sub-Division- Muzaffarpur West, District- Muzaffarpur. ----------- For the petitioners: Mr. S.B.K.Mangalam, Advocate ( in all the cases) For the Election Commission: M/s. K.B.Nath and Sanjeev Nikesh, Advocates ( in all the cases) For the private respondents: M/s. Uma Kant Shukla and Rajesh Ranjan-1, Advocates (In CWJC Nos. 1860/2009, 1861/2009 and 1779/2009) ----------- O R D E R 6. 04.08.2010 All the five writ petitions have been filed by the election-petitioners whose election petitions have been dismissed by the Election Tribunal and they raise a common issue that since a large number of ballot papers were rejected at the time of counting by the Returning 5 Officer on the ground that Swastik mark was not available on the aforesaid ballot papers, the Tribunal ought to have directed for production and counting of the said ballot papers as they had been improperly rejected by the Returning Officer. In CWJC No. 1860/2009 the petitioner had contested for the post of Mukhiya of Naina Ghat Gram Panchayat for which election was held on 2.6.2006. The petitioner had obtained 1190 valid votes whereas the respondent no. 4 had obtained 1222 valid votes and respondent no. 4 was accordingly declared elected. The petitioner‟s grievance is that as many as 229 ballot papers of booth no. 326 were not counted on the ground that they did not bear the Swastik mark and thus were rejected under Rule 75(1)(g) of the Bihar Panchayat Election Rules, 2006. In CWJC No. 1861/2009 the petitioner was a contestant of Ward Member of Naina Ghat Gram Panchayat in which he obtained 36 votes whereas the winning candidate respondent no. 4 obtained 38 votes and as many as 234 ballot papers were rejected on the same ground as above, all of them being of both no. 326. 6 In CWJC No. 1779/2009 the petitioner was a contestant for the post of Sarpanch of Naina Ghat Gram Panchayat in which he obtained 1221 valid votes whereas the winning candidate, respondent no. 4 obtained 1320 valid votes and as many as 238 ballot papers of booth no. 326 were rejected on the aforesaid ground. In CWJC No. 16202 of 2007 the petitioner was a candidate for the post of Member of Muzaffarpur Zila Parishad from territorial constituency no. 3 in which he obtained 1773 votes whereas the respondent no. 7 was declared elected having obtained 1935 votes and as many as 1700 ballot papers were rejected on the ground of not containing Swastik mark. In CWJC No. 9302/2008 the petitioner secured 303 votes whereas the winning candidate, respondent no. 4 had obtained 306 votes and as many as 882 ballot papers had been rejected on the aforesaid ground. Learned counsel for the petitioners has confined the challenge to the different orders passed in the several election petitions by the Election Tribunals concerned to the sole question that the rejection of a large number of 7 ballot papers on the ground of not containing the Swastik mark is not a valid ground of rejection as the voters had exercised their franchise on the basis of the instrument supplied by the State Election Commission and thus it is a good case for inspection and recounting of the said invalid votes and the declaration of election on the basis of the results obtained on recounting of the said invalid votes and they do not insist on recounting of valid votes in any of the cases. It is pointed out by learned counsel for the petitioners that so far as CWJC Nos. 1860/2009, 1861/2009 and 1779/2009 are concerned in all the three cases the same polling booth no. 326 is involved in which the votes have been cast by the defective instrument supplied. The learned Tribunals in the different orders have come to a finding that no written objection was filed before the Returning Officer under Rule 79 of the Bihar Panchayat Election Rules, 2006 by the election petitioners or their counting agent. They have also come to the conclusion that neither the election petitioners nor their agents nor any of the voters had raised any 8 objection before the Presiding Officers of the polling stations regarding the instrument for marking the ballot papers being defective. They have also come to a finding that invalid votes were not counted not only in favour of the petitioners rather no such invalid votes were counted with respect to any of the parties. They have also come to the conclusion that it cannot be said that the invalid votes had been rejected on the ground that they did not contain the Swastik mark. It is also the conclusion of the Tribunal that all the candidates were equally affected on the non-counting of the invalid votes and thus the election petitioners cannot claim any injury on that count. Learned counsel for the petitioners, on the other hand, submits that there is no allegation of booth capturing or use of instrument not supplied by the State Election Commission by the voters in any of the concerned elections. Thus, according to him, inevitably the conclusion is that the votes were cast by the instrument supplied. In the said circumstances, the very fact that a large percentage of votes have been found to be invalid itself becomes sufficient ground for 9 recounting of the votes. It is submitted by learned counsel that the issue had been clearly raised by the election petitioners regarding the election having taken place and the ballot papers having been marked with defective instrument in which the Swastik rubber stamp had fallen after some time and the same stands corroborated by the fact that a very large percentage of the votes have been declared invalid which is much above the norm in the elections which itself probablises the fact that the statements made on behalf of the petitioners is correct even if it is presumed that the petitioners had not made a complaint in writing at the stage of counting or at the time of election. In the face of the extent of a large number of invalid votes, according to learned counsel, the learned Tribunal ought to have directed an inspection upon which it would have been evident that the sole cause for rejection was the absence of Swastik mark and thus they ought to have been recounted. The main contention of learned counsel for the petitioners is that since the wrong stamp was made available to the voters by the polling officers, therefore, 10 the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they ought to be recounted. In support of the aforesaid stand, learned counsel relies upon several decisions of the Supreme Court. In the case of Hari Shankar Prasad Vs. Shahid Ali Khan and others : AIR 2003 SC 1302, it has been held by the Supreme Court in paras 14 and 17 as follows:- “14. The Returning Officer himself has come to the conclusion that only 90 ballot papers were marked by a wrong stamp and since all other ballot papers were not wrongly stamped would not lead to inference that it was not due to mistake of the polling staff, which inference has been wrongly drawn by the Returning Officer. It rather goes to show that as soon as the mistake was detected the wrong stamp was withdrawn as a result of which after the withdrawal of the wrong stamp rest of the ballot papers were stamped by a correct stamp. At the risk of repetition we may again mention that the theory of booth capturing which could perhaps explain this kind of wrong seal on the ballot papers, has been discarded by the High Court. The circumstances indicated by PW 5 in his evidence provides a plausible reason, as to how only 90 ballot papers were stamped by distinguishing mark and not the rest of them. It is also incorrect on the part of the High Court to say that in the petition no such case was pleaded. 11 We have referred to the averments made in para 17 of the election petition that by mistake polling staff had supplied a wrong stamp. The case of supply of wrong stamp was very much pleaded right from the initial stage. 17. On consideration of all the material available on the record, we find that the wrong stamp was made available to the voters by the polling officer. That being the position, such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner-appellant also as per the directions of the Election Commission. The margin of vote between two contenders is only 35 votes, counting 90 votes in favour of the appellant would provide a lead of 55 votes to the petitioner-appellant who would be entitled for being declared elected.” In the case of T.H. Musthaffa Vs. M.P.Varghese and others : AIR 2000 SC 153, it was held by the Apex Court in para-14 of the judgment as follows:- “On the question whether the stamping instrument with which the ballot papers are marked in the two polling stations was given by the Polling Officer or any member of his staff, the answer is given by the learned Judge in the affirmative, on analysis of the evidence and particularly from what has been stated by the Returning Officer who was 12 examined in the case. Therefore, the learned Judge proceeded to consider the next question whether such instrument could have been deemed to have been supplied for the purpose of marking ballot papers. The learned Judge took the view on the admission made by the Returning Officer that the said instrument was supplied to the electors for that purpose by the officers by mistake. This question again arose for consideration in the decision of this Court in Era Sezhiyan V. T.R. Balu: 1990 Supp SCC 22 in which this Court again took the view that if the instrument supplied to the voters, though mistakenly, was other than the one intended for marking the ballot papers, the instrument must be deemed to have been supplied by the officers concerned for the purpose of marking the ballot papers. If we read the relevant Rules 39 and 56(2)(b) of the rules with the instructions given at clause 10-F in the Handbook for Candidates it will be clear that the voter will record his vote by stamping a mark on the ballot paper with the rubber stamp supplied to him by one of the Polling Officers. In this case, admittedly, it is the Polling Officer who had supplied the instrument for marking the ballot paper. It is thus clear that the appellant cannot take advantage of the mistake, if any, in supplying the instrument for marking the ballot papers.” Learned counsel also submits that while secrecy of ballot is an important consideration but the same must 13 give way to purity of the elections, as laid down by the Apex Court in the case of A.Neelalohithadasan Nadar Vs. George Mascrene and others: 1994 Supp.(2) SCC 619, in paras 10 and 11 of which it has been held as follows: “10. The existence of the principle of “secrecy of ballot” cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips. See in this connection Raghbir Singh Gill V. Gurcharan Singh Tohra: 1980 Supp SCC 53: (1980) 3 SCR 1302. But this right of the voter is not absolute. It must yield to the principle of “purity of election” in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. “Secrecy of ballot” principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the “secrecy of ballot” as an allied vital principle. It was observed by this Court in Raghbir Singh case as follows: (SCR p. 1320: SCC p. 68, 14 para 23) “Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can coexist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.” 11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process.” He also relies upon the observations of the Supreme Court in the case of Azhar Hussain Vs Rajiv 15 Gandhi: AIR 1986 SC 1253 in the relevant part of para-4 of which it has been held as follows:- “In a democratic polity „election‟ is the mechanism devised to mirror the true wishes and the will of the people in the matter of choosing their political managers and their representatives who are supposed to echo their views and represent their interest in the legislature. The results of the election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the „true‟ will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the “true will” is ascertained the courts will step in to protect and safeguard the purity of elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not the „free‟ and „true‟ will exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all.” Learned counsel for the contesting respondents, winning candidates, on the other hand, submits that the crucial aspect is that whether there is any evidence to show that Swastik stamp supplied by the polling staff 16 was defective. It is contended that a clear finding has been recorded by the Tribunal that there is no evidence that the stamp supplied was defective. It is urged that it has been found that there was no written application for recount as is the mandatory requirement of Rule 79 of the Panchayat Election Rules. It is also urged that it was the duty of the petitioners to have examined the polling officers in support of the plea of the stamp being defective but no such step was taken by the petitioners for their examination and thus the decision of the Supreme Court can have no application in the facts of the present cases since before the Supreme Court the evidence of the polling officers supported the stand taken. Learned counsel further submits that the findings recorded by the Tribunal on the basis of the materials on the record cannot be challenged in the writ petition as though this Court were sitting in appeal and scrutiny of the evidence afresh is not permissible unless the judgment of the Tribunal is perverse which the petitioners have failed to show. It is urged that simply because another view is possible, the order cannot be 17 challenged in the writ jurisdiction. Learned counsel also points out that even if the submission of the petitioners that the stamps supplied were defective, was to be accepted for the sake of argument, even then in terms of Rule 79(1)(g) of the Rules, the rejection of any ballot paper, not bearing prescribed mark, would be lawful. It is pointed out that the vires of Rule 75 (1) has been upheld by this Court in the case of Meena Devi and another Vs. The State of Bihar & others: 2008(4) PLJR 261. Learned counsel for the State Election Commission has also, while adopting the submissions of learned counsel for the contesting respondents, reiterates that there is no evidence on the record to show that defective instrument was provided by the State Election Commission. On a consideration of the materials on the record, the orders passed by the Election Tribunal and the rival submissions of the parties, this Court is inclined to accept the conclusions reached by the Tribunal regarding the failure of the petitioners to prove the pleas raised by them on the basis of the evidence led before the 18 Tribunal. However, one aspect of the matter remains that an unusual large number of votes have been declared invalid by the Returning Officer at the time of counting of the votes. While some of the said invalid votes must have been so declared for reasons to be found in all elections but such an unusual percentage of invalid votes definitely be a matter of concern for the Tribunal deciding the election dispute. It must always be kept in mind that the function of the Tribunal deciding the election dispute is to ascertain that the true will of the people is reflected in the results of the election and if an unusually large number of votes cast are declared invalid then the same should itself alert the Tribunal about something being amiss in the matter. In the said circumstances, if any plea is taken by the election petitioners alleging the rejection on a particular ground then the legality of