SANJAY KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) 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 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.

(2.) 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.

(3.) A preliminary objection has been raised by the Election Authority that this Court should not interfere in this matter as 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: