(1.) IN both these writ petitions the petitioners challenged the decision of the state Election Commission, dated 31st October, 2006 (Annexure 8) whereby the Commission held that ballot papers, which were stamped by wooden portion of the stamping instrument supplied by the Commission after the rubber cross mark got broken or defaced would be treated as invalid votes.
(2.) STATE Election Commission and the state have appeared. Counter affidavits have been filed and with consent of the learned counsels the matter is heard at this stage for final disposal.
(3.) LEARNED Advocate General appears for the State Election Commission and the State officials concerned with the election works and defends the decision of the State Election Commission.
(4.) IN my view, the facts are not in dispute. I am noting the facts only in so far as cwjc No. 15120 of 2006 is concerned as relevant facts of both the writ petitions are similar.
(5.) PURSUANT to notification issued for gram Panchayat Election, petitioner filed his nomination paper in respect of Constituency no. 10 of Thumma Gram Panchayat territorial Constituency in runisaidpur Subdivision of district. Sitamarhi. His nomination as found valid and election was notified to be held on 21-5-2006. Gram Panchayat election was held on 21-5-2006. For the petitioner's constituency altogether 3357 votes were polled. While the voting process was on, it was noticed that the stamp that was supplied by the Election Commission being a wooden stud with rubber Swastik mark at their ends, for marking the ballot papers was found to be defective. After sometime on the day of voting the rubber portion got defaced and detached. Thus some voters stamped their ballot papers with Swastik mark and some with the wooden stud itself in absence of rubber Swastik mark. The fact remains undisputed and also that the stamps used were those which were supplied by the Election Commission itself. The consequence was that out of total votes polled being 3357 only 1472 were held to be valid at the time of counting and the rest which were majority of 1885 votes were rejected as they did not bear the Swastik mark but only wooden stud mark. Nevertheless in spite of protest, the result was declared and petitioner lost the election by 67 votes as she secured 288 valid votes and the winning candidate secured 355 valid votes while 1885 votes were rejected. In spite of petitioner's protest the result was declared. This problem did not occur only in petitioner's constituency but occurred in several constituencies spread over several districts. In some of the districts the officials accepted the wooden stud stamping as valid and in some districts Returning Officer sought clarification from the State Election Commission, who merely referred to the guidelines circulated earlier and asked them to decide accordingly.
(6.) AS these defects were wide spread, a large number of writ petitions were filed be-fore this Court. It was, inter alia, argued before this Court that neither the voters nor the candidates were at fault and the votes could not be rejected for the aforesaid defects. The defects were in the stamps, as supplied by the State Election Commission. It was admitted that the Commission was satisfied that rubber mark got detached from the wooden portion in course of voting due to it being sub-standard material which prompted the Commission to institute criminal cases against the supplier company. In those writ petitions grievance was made that in such a situation it was incumbent upon the Election Commission to issue direction to all the authorities under powers conferred on it by Rule 116 of the Bihar Panchayat election Rules, 1995 (hereinafter referred to as 'the Rules') which would have uniform application to the entire State instead of leaving it to be decided by the Returning Officer of individual area concerned, who unfortunately treated such important matters indifferently while some rejecting the same and some accepting the same. It was also submitted that where such substantial majority of votes are not counted, as in the case of petitioner, the election results are not true reflection of the electoral mandate and where margins were low, as in the present case, the results stood vitiated as it was not known as to who would actually have succeeded if all votes validly polled were counted. All those writ petitions being CWJC No. 7128 of 2006 (Suresh Kumar v. The State of Bihar and Ors.) and analogous cases were heard and disposed of by order dated 4-7-2006 (which is Annexure C to the supplementary counter affidavit of the Commission, since reported in 2006 (3) PLJR 382. In para 7 of the order aforesaid this Court held thus :-
"furthermore, Rule 75 (l) (chh) of the rules prescribes that ballot papers in the ballot box will be rejected if the mark put thereon is by an instrument other than the instrument provided, but in the instant case, the marks put on the ballot papers are not by any other instrument rather they are by the same instrument provided by the Commission, although the rubber marks were detached. Hence, the Commission should have come out with a specific stand with respect to the matter and if they have not yet taken any stand thereon, it is high time that they realise the gravity of the situation and take a final decision in respect thereof without any further delay so that such mat-ters can be validly and uniformly decided by the authorities concerned. "
(7.) THIS was obviously with reference to the power conferred on the Commission in terms of Rule 116 of the Rules. Various objections were also raised by the respondents as to the maintainability of the writ petition but having thus held the writ petitions were disposed of with liberty to the petitioners of those writ petitions to move before the authorities concerned in accordance with the provisions of law. There is no dispute that petitioner was not a party to any of the said writ petitions.
(8.) THOUGH the writ petitions aforesaid were disposed of on 4-7-2006, the State election Commission did not take any step to issue any clarification in this matter. As would be seen from para 7 of the said order, as quoted above, in my view, there was hardly anything left for the Commission to do because this Court in the said paragraph had already given a finding that the ballot paper marked by an instrument supplied by the Commission with or without the Swastik was still a ballot paper marked by an instrument supplied for the purposes of the election by the State Election Commission. This clearly, in my view, had set the position to rest. The Commission could not distinguish any more between ballot paper marked with Swastik or with mere wooden stud /stamp. Yet the Commission did not take a decision in the matter v/hich forced people, like, petitioner and others also to move this Court. This Court then disposed of those matters including petitioner's writ applications being CWJC No. 8066 of 2006 with CWJC No. 8318 of 2006, Nikhat perween v. The State of Bihar and Ors. and analogous cases, (Annexure 7 to the writ petition) by order dated 11-10-2006, noticing the earlier judgment as referred to above and directing that the Commission should come out with a specific stand with respect to the matter and if they have not yet taken any stand thereon, it is high time that they realise the gravity of the situation and take a final decision in respect thereof without any further delay so that such matters can be validly and uniformly decided by the authorities concerned. On 31st October, 2006, the State Election Commission came up with the impugned decision, which is appended as Annexure 8 to the writ petition.
(9.) THE impugned decision (Annexure 8)clearly states that it is being passed pursuant to the direction given in CWJC No. 8318 of 2006, which was disposed of on 11-10-2006 (Annexure 7) in relation to dispute with regard to stamping of ballot papers with cross rubber stamp or stamping of ballot papers with other marks. In the opinion of the Commission the validity of which has been challenged in the present writ petition. Rule 62 (3) (II) (III) and (IV) provides for use of an instrument as supplied by the Commission and rule 75 (10) (chh) provides that if any other instrument was used to stamp the ballot papers other than one supplied by the Commission, such ballot papers are liable to be rejected. In that view of the matter, the Commission opined that where cross mark got detached and ballot papers were marked only with wooden portion of the stud, such marking would be treated as illegal on the ground that it was a stamp not authorized to be used. This was consistent with the clarifications that were issued in june, 2006 itself by the Commission. The clarifications, which were issued in June, 2006 by the Commission have been appended as annexure-B series to the counter affidavit, which only says that wherever ballot papers are marked by a different instrument, then they are liable to be rejected.
(10.) PETITIONERS's submission is short and concise. They submit that the stamp that was used with or without rubber Swastik (cross) was an instrument supplied by the state Election Commission. If the rubber swastik (cross) fell off or broke off then either the voting process should have been stopped then and there and stamp replaced or if the voting process was allowed to continue with such defaced stamp then it cannot be said that a different instrument other than one supplied by the Commission was used because whether defaced or not the instrument remains to be an instrument supplied by the Commission. Thus, the impugned order is clearly incorrect specially when in para 7 of the first judgment by this court on this controversy, as referred to above, this Court had held it could not be said that the instrument was different if it got defaced. Thus, the direction to reject the ballot papers in the said circumstances could not be said to be a valid decision and/ or direction. Secondly, and importantly, it was Submitted as the voting pattern in the petitioner's case would show that petitioner lost by 67 votes and the total votes rejected were 1885 and valid votes only 1472 out of total polled votes 3357, which shows that, in fact, the election result was not the true and correct reflection of people wish. The results were inherently incorrect results on the face of it vitiating the process.
(11.) LEARNED Advocate General has raised three pleas challenging the maintainability of the writ petition. First he submitted that this issue about validity of votes or otherwise in such a situation had been subject matter of earlier writ petition and that would operate as res judicata and the writ petition was thus not maintainable. His second objection was that the ultimate effect of this writ petition would be on the election result, for if the order of the Commission (Annexure 8) is varied by this Court in any manner, the votes would then be liable to be recounted and result declared afresh. For this the proper remedy was an election petition before the Election Tribunal and not the writ petition before this Court. His third objection was that as a consequence of the decision of the State Election Commission being challenged, various candidates, who were declared elected in the entire State in such a situation and the officers concerned with those elections all over the State would be necessary party to this writ petition and in absence thereof the writ petition cannot be heard and must fail. As to the correctness or otherwise of the views of the State election Commission, learned Advocate general submitted that the State Election commission had the jurisdiction to issue direction in terms of Rule 116, it issued the direction and those directions being issued by a constitutional authority in exercise of its exclusive jurisdiction could not be challenged before this Court. Feebly it was submitted that the legality or correctness of the opinion/decision of the Commission could be challenged before the Election Tribunals in election petitions.
(12.) FIRST, I may note two judgments of the Apex Court in relation to the stamping instrument. In the case of T. H. Musthaffa v. M. P. Varghese and others, since reported in AIR 2000 SC 153, in para 14 of the report relying on an earlier judgment of the apex Court itself in the case Era Sezhivan v. T. R. Balu, AIR 1990 SC 838. The Apex court 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 and such marked ballot papers could not be held to invalidate the ballot papers. Similarly in the case of Hari shankar Prasad v. Shahid Ali Khan and others, since reported in AIR 2003 SC 1302, in para 16 the Apex Court referred to the decision of T. H. Musthaffa (supra) and in para 17 of the report their conclusion is that they found 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 person. This decision over ruled the Patna high Court decision from which the said case arose. The view taken by this Court in the case of Suresh Kumar v. The State of Bihar and Ors. and analogous cases, 2006 (3) PLJR 382, and in particular para 7 thereof, which has been quoted above is consistent with the said judgment of the Apex Court. In my view this legal proposition is sufficient to hold that the view/decision of the State Election Commission (Annexure 8) is incorrect in law and cannot be sustained.
(13.) IN my view there is yet another principle that could apply. Here, admittedly, the state Election Commission supplied defective stamping instrument not only in one polling booth of one constituency but this malady admitting spread over a large number of constituencies in many districts. This clearly was a fault or a default committed by the State Election Commission, yet it chooses for its own default to punish both the voters and the contestants. By holding votes stamped by defective stamping equipment, as supplied by the Commission itself to be invalid they have prevented valid exercise of election/voting and by excluding them from counting they have deprived candidates of their legitimate votes polled vitiating the result. As often I am remind by chief Justice Chagla had to say about such conduct in the case of all India Groundnut syndicate Ltd. Assessee v. Commissioner of income-tax in AIR 1954 Bombay 232.
"but the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S. 24. In other words, the department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "i have committed a default and the right is lost because of that default. "
(14.) SUCH a situation by the Commission cannot be countenance. Now coming to the objection, with regard to the maintainability, as raised by the learned Advocate General. His first submission is with regard to the applicability of principle of res judicata. In his submission this Court in Suresh kumar's case (supra) had decided all the issues and the same cannot be re-opened by the writ petitioner in the present writ petition. I am unable to persuade myself to accept the submission. Principle of res judicata applies as between the parties to a decision, so that parties bound by the decision cannot assail the same in any subsequent or collateral proceeding. Here Suresh kumar's case (supra) did not decide finally the issue but indicated the consequence in para 7 of its order, as quoted above but left it to the Commission to decide the matter and issue a general directive (in terms of rule 116 of the Rules). The decision of the commission came much later in time. In that view of the matter the decision of the election Commission (Annexure 8) not being the subject matter on which any decision was given by this Court, principle of res judicata would not apply.
(15.) THE second objection of the learned advocate General is that as varying the order of state Election Commission could ultimately alter the result declared, the proper remedy was an election petition and not the writ petition before this Court. With this I take up the last issue also with regard to the order of State Election Commission being an order passed in terms of Rule 116 under constitutional authority having exclusive jurisdiction in conduct of election matter it could not be challenged before this court. Again I am afraid I am unable to persuade myself to accept this submission. Firstly, it must be noted that this is a general direction issued by the State Election commission on which Returning Officer of various constituencies in various districts of the State in the said panchayat election have acted treating it to be valid. Therefore, if the submission of the learned Advocate general is to be accepted. then there would be the necessity of filing several election etitions may be several hundreds before ifferent Courts in the State, which Courts would decide the matter differently giving ise to large number of writ petitions at a ater point of time (no appeal or revision laving been provided in the Act). The situa-ion would only amount to delaying the judicial remedy process and lead to chaotic condition in the State. Then again State Election commission being a statutory functionary, if it passes an order, which is incorrect and/or illegal, his order per se is amenable to judicial review by this Court under article 226 of the Constitution, which cannot be barred whatever be the consequence of varying the said order of the State Election commission by this Court. A wrong order of a statutory authority cannot be permitted to operate and that too to the detriment of large number of people. As has been pointed out above, the decision/direction of the State election Commission was clearly contrary to the law of the land (judgments of the Apex court and this Court noted earlier) it cannot be allowed to perpetuate illegality and then ask a large number of persons to litigate over it, over a long period of time. Lastly, i have my serious doubt as to whether the statutory direction issued by the State Election commission, a statutory functionary, can at all be made subject matter of collateral attack in an election petition and whether the election tribunal would have the jurisdiction to deal with the validity and/or legality of such a direction/decision.
(16.) THE third objection with regard to maintainability is the alleged absence of necessary party to the writ petition. Learned advocate General submits that if the decision of the state Election Commission is varied or set aside, a large number of winning candidates would be affected and action of various officers connected with the election process would be called, in question, making both sets of persons necessary party in absence whereof the writ petition is not maintainable. Again I am unable to accept this submission. The Apex Court in the case of The General Manager, South Central Railway, secunderabad and another v. A. V. R. Siddhanti and others, since reported in AIR 1974 SC 1755 held in para 20 of the report that the respondents therein were im-peaching the validity of the policy decision. In such a proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court. The employees who were likely to be affected as a result of the re-adjustment of the petitioner's seniority as a consequence of the policy being impeached were at the most proper parties and not necessary parties and therefore non-joinder could not be fatal to the writ petition. Then Apex Court in the case of State of Uttar Pradesh and another v. Ram Gopal Shukla, since reported in (1981) 3 SCC 1 : AIR 1981 SC 1041, the discussion in this respect is to be found in paras 16 and 17 of the report, wherein validity of certain rules was challenged, which challenge, if upheld, would affect large number of persons in service. The Apex Court referring to various judgments held that state, whose rules were challenged, was the only necessary party and that at the most other persons who were likely to be affected in case rules were declared ultra vires may be proper party but not necessary party. Then again is the judgment in the case of sri Ananta Narayan Mokhopadhyay and Anr. v. Union of India and others, since reported in 1982 BBCJ 277 of which I may quote :
"preliminary objections were raised on behalf of respondent Nos. 1 to 3 regarding the maintainability of the applications. It was contended that on the basis of the resolution of the Board which is Annexure '8' in sinha's case a number of persons other than prakash have been granted exchange certificate under metalliferous Mines Regulations 1961 (1961 Regulations). It was urged that if it is held that the resolution was ultra vires of the Board, the exchange certificates granted to all such persons shall also become bad in law. Since those persons are not before the Court, no order can be passed declaring the resolution ultra vires. In my opinion, this contention has no merit, for giving a declaration whether an appropriate action of a statutory authority is ultra vires the powers vested in its persons who may be adversely affected by such declaration cannot be said to be necessary parties. "
(17.) IT would thus be seen that all questions of maintainability, as raised by the learned Advocate General have not found favour by this Court and the general direction/decision of the Election Commission, as impugned (Annexure 8) having been found legally unsustainable and consequently is declared so. The question is what is the affect.
(18.) IN this connection I may refer to the judgment of the Apex Court in the case of azhar Hussain v. Rajiv Gandhi, since reported in air 1986 SC 1253, and in particular para 4 of the report :
"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 Constit
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ution 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. And the Courts would, therefore, it stands to reason, be justified in setting aside the election in accordance with law if the corrupt practices are established. " (19.) IN my view, as the voting pattern noted above, would show in the present case, because of the wrong stand generally taken by the State Election Commission and held to be wrong by this Court herein one cannot say with any amount of certainty as to whether the result reflect the true will of the people. The margin of the defeat is only 67 votes whereas over 1800 votes were declared invalid. Such situations in large number of constituencies where such a defect has taken place cannot but be ruled out. If by virtue of a wrong decision of the State Election commission, the election process does not reflect the true will of the people then what good is the election for are we to be governed by people whom we have not been elected but got elected because of default of the Election Commission. I do not think this can be countenance in any society, which has faith in democratic values and is based on democratic principle. (20.) IN my view, justice would be done if wherever the policy decision of the Election commission or the principle contained therein has been applied and the same is questioned, then the authority would act holding the views of Election Commission, as impugned, to be wrong and the correct view to be taken as enunciated by the Apex court as this Court noticed above and act accordingly. The Election Commission would be well advised to withdraw its decision and direct that wherever votes have been rejected consistent with the view of the State Election commission or the principle contained therein, which has been held to be erroneous by this Court, the action have to be re versed after scrutiny. (21.) IN other words the State Election commission would be obliged to undo the effects of its wrong decision. (22.) IN the result, with the observations and directions, as aforesaid, Annexure 8 is quashed and the writ petitions are allowed. Petitions allowed.