IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5126 of 2009 Munni Devi Sharma, wife of Sri Prabhat Kumar Sharma, resident of village- Dhokraha, Tola-Shikarpur, P.O.-Shikarpur, Block & P.S.-Manjhaulia, District-West Champaran at Bettiah. -Petitioner. VERSUS 1. The State Election Commission, Sone Bhawan, Birchand Patel Path, Patna through the State Election Commissioner. 2. The District Election Officer (Panchayat), District-West Champaran at Bettiah. 3. The Returning Officer (Panchayat)-cum-Block Development Officer, Manjhauli Block, District-West Champaran at Bettiah. 4. Pappi Singh, wife of Sri Shambhu Singh @ Shambhu Sharan Singh, 5. Punam, Devi, wife of Gauri Shankar Paswan, Both resident of village-Dhokraha, P.O.-Dhokraha, Block & P.S.- Manjhaulia, District-West Chamaparan at Bettiah. -Respondents. ----------- Counsel for the Petitioner : Mr. S.B.K. Mangalam, Adv. Counsel for the Pvt. Respondent : Mr. Devendra Pd. Sinha, Sr. Adv. Mr. Sachidanand Sharma, Adv. Counsel for the Election Commission : Mr. Sanjeev Nikesh, Adv. ------------ 06 23.12.2009 Mr. S.B.K. Mangalam, learned counsel appearing in support of the writ petition challenges the order of the Election Tribunal dismissing his application challenging the election of respondent no.4 and draws attention of this Court to the fact that in view of the evidences it is stand established that the stamp used for marking ballot papers, as supplied by the State Election Commission, was defective for which Election Commission itself has taken effective action against the supplier thereof. These are matters of record in the election petition itself. Rejecting the ballot papers accordingly on ground of defective marking was not correct and in view of those facts Election Commission should have directed for recount of ballot papers to arrive at true and - 2 - correct result of the process of election. The petitioner had contested the election for the post of Mukhiya of Gram Panchayat Raj, Dhokraha. She filed an election petition before the Munsif, Bettiah, West Champaran being Election Petition No.25 of 2006. Various issues were framed in the matter in course of trial. It is not in dispute that petitioner led evidence to show that the stamp supplied by the State Election Commission for marking the ballot papers was defective. It lost its rubber shape. As evidence, he brought on record the first information report lodged by the State Election Commission itself against the supplier. She contended that large numbers of ballot papers were rejected as invalid only on ground of this defective marking which was solely because of the defective marker provided. The learned Munsif has considered this aspect of the matter in paragraph-20 of the judgment, which is impugned herein. He has noticed the contention of the petitioner but rejected it merely on the ground that petitioner could not specify exact number of such invalid votes though he notices that the total invalid votes which were in fact cast in favour of petitioner was 958. It is submitted that from this finding, it is clear that there were votes which were declared invalid because of faulty marking, which was solely attributable to the marker supplied by the Commission. He submits that in view of the - 3 - aforesaid, it was the duty of the Election Tribunal to get those invalid votes are scrutinized and counted and those votes which were declared invalid solely because of defective marking should have been counted as valid and then result declared. He relied upon the various judgments of the Supreme Court in the case of T.H. Musthaffa Vs. M.P. Varghese & Ors. since report in AIR 2000 SC 153, Era Sezhiyan Vs. T.R. Balu & Ors. since reported in AIR 1990 Supreme Court 838,Hari Shankar Prasad Vs. Shahid Ali Khan & Ors. since reported in AIR 2003 Supreme Court 1302 and of this Court in the case of Babita Devi & Ors Vs. The State of Bihar & Ors. with analogous cases since reported in 2006(3) PLJR 382. In all these cases, it has been consistently held that where a different marker was intended to use as supplied and votes were declared invalid because of that such declaration was wrong because what the law required was that the votes have to be marked by the marker supplied by the Election Commission. From the averments, it is clear that votes were declared invalid. In the present case not because they were not marked by the marker as supplied in course of election by the Election Commission but they were rejected because the Swastika Mark as got defaced and were marked with defaced Swastika Mark. Why Swastika Mark defaced is not in dispute. It was because of poor quality of marker supplied - 4 - for which Election Commission itself has taken serious actions. Thus, if on this ground without counting such votes petitioner is permitted to be defeated it would be adding insult to injury. It is like saying that I have committed mistake for which you must pay the price that surely cannot be permitted in any civilized society dealing with democratic rights. Learned counsel for the respondent no.4, who has been declared elected and whose election was in challenge submits that this Court had taken similar view in the case of Meera Devi Vs. the Bihar State Election Commission in C.W.J.C. No.15120 of 2006 and analogous cases which has since been overruled in L.P.A. No.164 of 2008 and the Letters Patent Appeal clearly provides that no such plea is available to a person for getting such votes which were declared invalid recounted as valid votes. I have perused both the judgments. In my view, the judgment of the Single Judge proceeded to decide the validity of the direction of the State election Commission which thereby had the direct effect on the result. This was clearly disapproved by the Division Bench which held that any decision which would affect the result could only be taken by way of an election petition where facts had to be proved. The Division Bench further observed that “in absence of evidence that the stamp supplied by the - 5 - Commission were faulty and it is the Commission who compelled the voters to vote in the manner they voted in the rejected ballot where we can only say that the Commission was rightly in holding election that in view of the law made by the State Government a ballot without the mark made by the election stamp should be rejected”. To me, this is clear observation to show that these matters of evidence to be laid in course of trial of the election petition. This judgment does not say or cannot be taken to be seen that such evidence cannot be laid or considered in an election petition. In my view, this judgment only strengthens the case of the writ petitioner. It clearly holds that these are questions to be decided before the Election Tribunal. From the order of the Election Tribunal, as contained in para-20, it is clear that these questions were specifically raised and there was not controversy in relation thereto but has been set aside by the Tribunal mere holding that petitioner failed to prove number of such invalid votes though votes invalid is not in dispute. In my considered opinion, once the Election Tribunal came to the finding that votes were indeed declared as invalid, on ground of defective Swastika Mark, which was because of the defective marker, as supplied by the Commission, which compelled the voters to use those defective markers, then those votes could not be declared to - 6 - be invalid that is the series of judgment of the Apex Court, as noted above. It was thus incumbent upon the Election Tribunal to get the invalid votes scrutinized and if they were declared invalid solely because of defective marker being used and they had to be declared valid in whose favour they were caste this the recount was a necessary corollary finding that have not been done, I have no option but to set aside the order of the Election Tribunal and remand the matter to the Tribunal for recount in accordance with the observations made and for a judgment thereafter in accordance with the recount. The aforesaid exercise must be done within two months from today. As this matter relates to the year 2006 which term is to end. With this observations and directions, the writ petition is disposed of. Trivedi/ (Navaniti Prasad Singh, J.)