AIJ-PT 1716281 KAILASH BIHARI THAKUR Vs. BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION PATNA HIGH COURT

JUDGEMENT

(1.) 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 ah Election Petition. Since, in these appeals we are not concerned with any Election Petition, any 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, 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.

(3.) IN terms of the said direction of this Court, the Election Commission decided that in view of the mandate contained in the Qs, in order to make a ballot valid for counting, the same requires the election stamp 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.

(4.) 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 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 background 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 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 protected was the fair outcome 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 petitions 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.