Letters Patent Appeal No.164 OF 2008 (Against the Judgment and Order passed in C.W.J.C. No. 15120 of 2006 and C.W.J.C. No. 8667 of 2006 on 4th February, 2008) THE BIHAR STATE ELECTION COMMISSION & ORS. --Appellants Versus MEERA DEVI & ORS. -----------------------------------Respondents --with— LPA No.165 OF 2008 THE STATE ELECTION COMMISSION & ORS.-------Appellants Versus RAJENDRA PRASAD SAH & ORS. -------------Respondents ----- For the Appellants : Mr. P.K. Shahi, Mr. R.S. Pradhan, Mr. Rajeev Lochan, Mr. Girijesh Kumar &, Mr. Sanjeev Nikesh. For the Respondent No.1 : Mr. S.B.K. Mangalam. (in both cases) P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE C.M.PRASAD Barin Ghosh & C.M. Prasad, J.J. In these two Appeals the facts are almost identical except that in the Appeal listed in the second position in the cause title the respondents-writ petitioners have filed an Election Petition. Since, in these appeals we are not concerned with any Election Petition, any 2 observation made by us in this judgment and order dealing with both the Appeals shall have no bearing in relation to the Election Petition referred to above. The writ petitioners-respondents in these appeals after having had lost elections, where they sought to be elected as Mukhias of Panchayats, approached this Court by filing writ petitions contending that while ballots were counted a large number of them, though contained marks identifying the person in whose favour the ballots have been used, but since those were not marked by the election stamps, have been rejected as invalid votes and not taken into account for declaring the result of the elections. Similar writ petitions were filed by many others. The grievance in all those writ petitions was almost identical. In the writ petitions it had been contended that in such a situation where the number of rejected ballots are large in number, a decision must be taken by the Election Commission as to what should be done in relation to those ballots. It has come on record of these appeals that in course of counting of votes, it transpired that a large number of ballots do not contain the election stamp, 3 but some other identical mark, and, accordingly, the District Magistrates concerned, wanted to know from the Election Commission as to what should be done in regard to those ballots. There is also no dispute that the Election Commission, in no uncertain terms informed the concerned District Magistrates that the ballots, which do not contain election stamps should be declared as invalid and should not be taken into account for the purpose of declaring the results of elections. Despite the said stand of the Election Commission, a learned Single Judge of this Court, while disposing of the said writ petitions, including the writ petitions of the appellants before us, by an order dated 21.11.2007 directed the Election Commission to take a final decision in respect of those ballots, which did not contain the election stamp, without any further delay, so that such matters can be uniformly decided by the authorities concerned. In terms of the said direction of this Court, the Election Commission decided that in view of the mandate contained in the Rules, in order to make a ballot valid for counting, the same requires the election stamp 4 and whenever a election stamp has not been used the same should be deemed to be invalid. This decision of the Election Commission was the subject matter of challenge in two writ petitions filed by the respondents. Those having been dealt with by a common judgment and order by which a learned Single Judge of this Court directed the Election Commission to issue a direction for taking into account those ballots too, which contain some marks, but do not contain the marks of the election stamps, for the purpose of declaring result of elected candidates, the appellant Election Commission is before us. The order as read would amply demonstrate that the same was not confined only to the elections pertaining to the respondents before us, but the same directed implementation of the directions contained therein in relation to all elections. Our attention has been drawn to the letters written by District Magistrates to the Election Commission, from which it appears that while counting of ballots was going on it transpired that some of the ballots contained marks signifying in whose favour the ballots 5 had been executed, but the marks so given are not by the stamp provided by the Election Commission. Our attention has also been drawn to the First Information Report lodged by the Election Commission with the appropriate police station against the supplier of election stamps alleging that he failed to supply the required election stamps. Learned counsel for the appellants submitted that the first information report so lodged has been investigated upon and a charge sheet has also been filed against the supplier. There is no dispute that the criminal case initiated on the basis of such charge sheet has not yet been concluded and the same is pending trial before an appropriate court. In the above back ground it was contended before us that there was no dispute that a large number of ballots used by the voters contained marks other than the mark to be given by the election stamp, which was to be provided by the Commission, and having regard to what has been stated it should be deemed to have been admitted by the Commission that it failed to supply appropriate election stamp and as a result many of the ballots used by 6 the voters ultimately do not contain the mark of the election stamp, but mark of some wooden part of the stamp. It was submitted that in such circumstances, there is no just reason to interfere with the order passed by the learned Single Judge in the writ petition since under Article 226 of the Constitution of India the Court is entitled to protect legal rights of the citizens. In the instant case, it was submitted that the legal right of the petitioners sought to be protect was the fair out come of the election in which the respondents-writ petitioners had participated. In other words, it was the contention of the respondents- writ petitioners that there was no just reason to reject such large number of votes which had been cast by the voters to express their freedom of choice. This exercise the writ petitioners-respondents did not want this Court to be done in futility. The whole object of the writ petition was, therefore, to obtain a direction which would have a direct bearing on the elections, which stand concluded. In other words, the petitioners-respondents called in question the concluded election of the panchayats where they sought to be elected as Mukhias. 7 It may be true that there was failure on the part of the Election Commission in providing appropriate stamps and as a result a large number of votes stand cancelled. The question is whether this question could at all be gone in a writ petition. Article 243 (O) makes it clear that no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided by law made by the Legislature of the States. Therefore, Article 243 (O) makes it abundantly clear that any right of any citizen pertaining to any election to any panchayat can be protected through an election petition to be presented before the prescribed authority. Learned counsel for the respondents-writ petitioners cited before us a judgment of the Hon’ble Supreme Court rendered in the case of K. Venkatachalam Vs. A. Swamickan and another reported in 1999 (4) SCC 526 and drew our attention to paragraph 27 of the reported judgment and submitted that the Hon’ble Supreme Court in the said judgment has expressed the view that the right conferred under Article 226 cannot be 8 denied even in relation to an election. A look at the said judgment would amply make it clear that the Hon’ble Supreme Court in that case was not concerned with election at all; it was concerned with disqualification of a person to seek election in the legislative assembly on the ground that the person concerned violated mandatory provisions contained in the Constitution. Although such challenge was after the election was over, the Supreme Court in paragraph 27 of the above judgment, as reported, stated that Article 226 of the Constitution is in widest terms and unless there is a clear bar to the jurisdiction of the High Court, its power under Article 226 of the Constitution can be exercised when there is an action violative of constitutional provisions or laws and when there is no forum to obtain appropriate relief. Therefore, there must not be a forum for redressing the grievance and the grievance is founded on violation of constitutional provisions or is against a thing done in violation of the provisions of law. In so far as election matters are concerned, there is an appropriate forum authorized by law to go into 9 all questions relating to election. The violation alleged to have been committed by the commission by supplying defective stamps does not violate any constitutional provision or law. Further more, it has not come on record in the form of evidence that the voters used stamps supplied by the commission which were incapable of producing appropriate marks. In the first mentioned appeal, it was the contention of the respondents-writ petitioners that out of 3375 votes cast in the constituency 1850 had been rejected and the difference between the winning candidate and the respondent-writ petitioner was 67 votes. It was well within the competence of the respondent-writ petitioner to prove before the prescribed authority on an election petition that rejection of 1850 votes in the facts and circumstances of the case was improper. Only upon obtaining such a favourable adjudication on the election petition, the writ- petitioner could avoid the lost election. Learned counsel for the writ petitioner-respondent submitted that having regard to the nature of disputes in the instant case, the remedy by way of 10 an election petition was not available. In order to impress us emphasis was given upon sub-section 2 of Section 139 of the Act. We think that having regard to the facts as above, sub-section 2 of Section 139 of the Act had no application in the instant cases. In the instant cases, Sub- clause III of Clause D of Sub-section 1 of Section 139 was relevant. In the event, the appellant could establish that rejection of such votes was improper; he could obtain a declaration that the election was void. In the writ jurisdiction, there was no scope of going into the question whether such rejection was improper, for the writ court, in absence of evidence, could not conclude that the voters were compelled to cast vote in the manner as projected by the writ petitioners. The letters issued by the District Magistrates to the Commission and the lodgment of F.I.R. by the Commission against the supplier do not prove that the votes were cast by faulty stamps provided by the Commission. Learned counsel for the respondents-writ petitioners submitted that in relation to the subject matter in dispute we must pronounce something so that on the 11 basis thereof the election petitions pending before the election tribunals may be decided. In absence of evidence that stamps supplied by the Commission were faulty, and it is the Commission who compelled the voters to vote in the manner they voted in the rejected ballets, we can only say that the Commission was right while holding out repeatedly that in view of the law made by the State, a ballet without the mark made by the election stamp should be rejected. We, accordingly, allow the appeals, set aside the judgment and order under appeal and dismiss the writ petitions. These two appeals are disposed of. Patna High Court, 29th July, 2008 D.K.S./N.A.F.R. (Barin Ghosh, J.) (C.M. Prasad, J.)