IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14905 of 2009 1. SANJAY KUMAR S/O MAHENDRA SINGH VILL ISMILEPUR,P.S. KHIZARSARAI, DISTT- GAYA Versus 1. THE STATE OF BIHAR 2. CHIEF ELECTION OFFICER, BIHAR STATE ELECTION AUTHORITY BARRACK NO- 11. OLD SECRETARIAT, PATNA 3. DISTRICT MAGISTRATE CUM DISTRICT ELECTION OFFICER (PACS) DISTT- GAYA 4. DISTRICT CO- OPERATIVE OFFICER CUM DEPUTY ELECTION OFFICER GAYA(PACS) 5. BLOCK DEVELOPMENT OFFICER CUM ELECTION OFFICER KHIZAR SARAI, BLOCK, DISTT- GAYA *** For the petitioner : M/s Purnendu Singh, Pronoti Singh, Rakesh Kumar Sharma, Advocates For the Election Authority : M/s K B Nath, S C Jha, Advocates For the intervener respondent : Mr Sanjeev Kumar, Advocate For the S t a t e : Mr Satish Narain Singh, AC to GA 3 *** 3 26.03.2010 The petitioner had contested for the elections to Kutlupur PACS, Block – Khizersarai in the district of Gaya. Elections were held on 16.10.2009. After counting was completed, without any protest from any side and allegedly results were declared in which petitioner succeeded but before formal certificate was granted, the Returning Officer, vide Annexure-6, sought views from the District Election Officer who in turn forwarded the same to the State Election Authority whether he could formally declare the result and grant certificate. The State Election Authority directed for fresh elections altogether. Petitioner has challenged this direction of the State Election 2 Authority and consequential declaration of result of the elections so held. During pendency of the writ petition, fresh elections were held and by interim order of this Court, it was directed that the votes would not be counted nor results declared of the fresh elections. State Election Authority has filed a detailed counter affidavit. Several interveners have appeared and have been heard. With consent of parties, the writ petition is being disposed of at the stage of admission itself. The challenge is to the direction of the State Election Authority to hold elections afresh. The only ground for so ordering is that the Returning Officer reported that upon counting all the ballot papers, it was found that the Polling Officer had, due to inadvertence, failed to initial any of the ballot papers. That was an inadvertent mistake of the Polling Officer in respect of all the ballot papers. The Election Authority took the view that as the Rules provide that ballot papers must be initialled by the Polling Officer and that not having been signed, vitiated the entire election. None of the parties have argued that elections were vitiated in any other manner. The stand is consistent that otherwise the election was peaceful, fair and impartial. It is only on this solitary technicality with which the candidates had nothing to do that the entire election has been set aside by the Election Authority. A preliminary objection has been raised by the Election Authority that this Court should not interfere in this matter as 3 petitioner has remedy by way of election petition before Election Tribunal. He has sought to rely on several decisions of the Apex Court that High Court under Article 226 of the Constitution should not interfere in election matters. To the straight question put to the learned counsel for the State Election Authority whether the Election Tribunal would be competent to hold that the State Election Authority wrongly issued the direction, the straight answer was that the Election Tribunal could not sit in appeal over direction which is correct because the Election Tribunal is a Court of limited jurisdiction. What learned counsel for the State Election Authority submits that it was open to the petitioner to challenge the election results. Unfortunately, the stage for declaration of results never reached as the whole election was declared void by the State Election Authority. No one was unfairly declared elected nor anyone was unfairly left out. Learned counsel for the petitioner has rightly relied on Section 12 of the Bihar State Election Authority Act, 2008 under which the Election Authority has been created. Section 12 lays down the grounds on which elections can be declared to be void. It reads thus: “12. Grounds for declaring election to be void.- (1) Subject to the provisions of sub- section (2) if the prescribed authority is of opinion- (a) that on the date of his election, a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent 4 or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected, or (d) that the result of the election, in so far as it concerns a returned candidate has been materially affected. (i) by the improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent; or (iii) by the improper reception, refusal or rejection of any vote or reception of any vote which is void; or (iv) by any non-compliance with the provision of this Act or of any rules or orders made thereunder; the prescribed authority shall declare the election of the returned candidate to be void. (2) if in the opinion of the Prescribed Authority, any agent of a returned candidate has been guilty of any corrupt practice, but the prescribed authority is satisfied- (a) that no such corrupt practice was committed at the election by the candidate and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all reasonable measures for preventing the commission of corrupt practices at the election; and (c) that in all other respects the election was free from any corrupt practice on the part of the candidate or an’ of his agent; then the Prescribed Authority may decide that the election of the returned candidates is not void.” A reference to the section quoted above would show that 5 there being no allegation with regard to qualification/disqualification, corrupt practices, improper rejection of nomination, results being materially effected, improper acceptance of nomination paper, improper or refusal to reject votes and that being so how results could be declared to be void. Learned counsel for the State Election Authority relies on Section 12 (1) (iv), referred to above, but forgets that it is not Section 12 (1) (iv) but it is Section 12 (1) (d) (4) which again relates to results of a candidate being vitiated because of certain defects and not election as a whole. Thus found, there being no allegation that the election was unfair or vitiated by any other legal impediment, in my view, the State Election Authority had no jurisdiction to issue such a blanket direction. Here, I may refer to judgment of the Apex Court in the case of S Baldev Singh –Versus- Teja Singh Swatantra (Dead) and Others since reported in AIR 1975 Supreme Court 693 wherein their Lordships, under similar circumstances, had observed thus : “10. The main ground which appealed to the High Court in making this order for a fresh inspection, scrutiny and recount of the Sherpur segment was the alleged illegal rejection of votes on the score that the signature of the Presiding Officer was absent on the ballot paper. The Court construed R 56 of the Rules in the light of Rule 38 and took the view that the ballot paper shall not be rejected merely on the ground of such a formal defect as the accidental omission of the signature of the Presiding Officer, without the Returning Officer proceeding to consider if such defect was occasioned by the inadvertence or lapse of the Presiding Officer or the Polling Officer. This 6 approach is sound in law and a recount was rightly undertaken. … … … … … …” In the above case, it would be seen that a plea was taken before the High Court that the ballot papers which did not bear the signature of the Presiding Officer was wrongly rejected by the Returning Officer on the ground that they were not signed by the Presiding Officer and, as such, could not be counted as valid votes. The High Court took the view that this was an accidental omission of the signature of the Presiding Officer being missing and ordered for recount so that these votes would be included in count as valid votes. This was not interfered with by the Apex Court. Here the situation is same. The State Election Authority is of the view that non-signing of the ballot papers by the Polling Officer renders the entire polling as illegal. It vitiates the entire election. But fortunately, the Apex Court is of the view to the contrary. It was not a mistake where a few ballot papers were found unsigned. To the contrary, the letter of the Returning Officer to the Election Authority clearly shows that the Polling Officer mistakenly did not sign any of the ballot papers. He in fact did not sign a single ballot paper. I fail to understand how the entire election process can be held to be not fair, free and fearless for this technical breach on part of the Polling Officer across the board. In my view and in view of Section 12 of the Act as aforesaid, the State Election Authority has no jurisdiction to cancel the whole election. That being so, the order of the State Election Authority is set aside. The consequence would be that the Election authorities are 7 directed to declare the formal results of the first election, counting of which had been completed. Consequently, the second election held but the counting whereof and the declaration of results whereof stayed by this Court is of no effect. The writ petition is, thus, allowed. M.E.H./ (Navaniti Prasad Singh)