JAY SHANKAR PATHAK Vs. ELECTION COMMISSION OF INDIA

JUDGEMENT

(1.) These two writ petitions have been preferred to challenge the action of the Election Commission of Indiarespondent no.1, whereby the Election Commission has issued a notification dated 30 th March, 2012, whereby counting the votes of the Biennial election to the Council of States from the State of Jharkhand scheduled to be taken at 5.00 p.m. on 30 th March, 2012 has been stayed until a specific written clearance is given by the Election Commission of India to the Returning Officer cumSecretary In-charge for Biennial election to the Council of States from Jharkhand and to the Chief Electoral Officer, Jharkhand, Ranchi. The Election Commission of India further directed that result of counting of votes shall also not be declared without the specific clearance of the Election Commission. By this notification dated 30 th March, 2012, the above authorities were directed to send the detail and comprehensive report about the conduct of poll with special reference to any untoward incident, so as to reach the Commission immediately after poll. The above authorities were also directed by the Commission that clearance for the counting and declaration of result will be given by the Commission after scrutiny of their reports in the proforma (Annexure-B) regarding difficulty in completion of counting and disposal of all objections in writing. The petitioners also challenged the Annexure-3 of the same date, i.e., 30 th March, 2012, the proceedings of the Election Commission by which the Election Commissioner under Article 324 of the Constitution of India read with Section 21 of General Clauses Act, 1897 and other enabling power recommended to the President of India to rescind the notification no. 318/ 1/2012 (1) dated 12 th March, 2012 calling upon the elected members of Jharkhand Legislative Assembly to elect two members of the Council of States.

(2.) W.P. (PIL) No. 1801 of 2012 has been preferred by Jay Shankar Pathak as Public Interest Litigation and gave his background that he has faith in democratic set up of the country, including the system of political party and he is a primary member of Indian National Congress, which is one of the oldest political party of the country. He is a permanent resident of State of Jharkhand and is involved in social activities, which he has performed in the capacity of either member of a political party or in individual capacity. The petitioner stated that this petition is public interest litigation, challenging the decision of the respondentElection Commission of India, whereby the respondent-Election Commission on allegation of use of money power and horse trading coming into play of the election of the two members of the Council of States (Rajya Sabha) from the State of Jharkhand has cancelled the entire election process itself. The petitioner in writ petition itself has admitted before schedule date of election i.e., 30 th March, 2012, certain letters were written by the Members of Parliament to the Commission brining to the notice of the commission the involvement of money power/horse trading coming into play in the aforesaid election and the Election Commission after taking note of the aforesaid letter has issued direction to the Chief Secretary of the State of Jharkhand and other concerned officer to keep strict vigilant watch over the situation. According to the writ petitioner, in view of the aforesaid direction, strict and vigilant watch was observed by the concerned officers of the State of Jharkhand. In the said process of strict and vigilant watch, it came to the notice of the Election Commission of India that certain money/cash are scheduled to be transferred/transported from Jamshedpur to Ranchi in connection with election of one R.K. Agarwal, who was contesting election as Independent candidate. In the writ petition, it is stated that pursuant to the aforesaid information, search and seizure operation was carried out in a car running from Jamshedpur to Ranchi and cash of Rs.2.15 Crores was recovered and on prima facie inquiry it was reported that the aforesaid cash was unaccounted and same was carried to be handed over to said R.K. Agarwal. However, on schedule date of poling, out of 81 Members of the Jharkhand State Legislative Assembly, 79 Members had cast their votes but they were not counted in view of the direction issued by the Election Commission, referred above. The petitioner further pleaded that pursuant to the direction of the Election Commission to furnish detailed comprehensive report about conduct of poll with special reference to any untoward incidence, report was furnished by the Chief Electoral Officerrespondent no.2 to the Election Commission and thereafter the Election Commission in their proceeding dated 30 th March, 2012 exercising power under Article 324 of the Constitution of India read with Section 21 of the General Clauses Act, 1897 has recommended for rescinding the entire election process. The petitioner pleaded that to best his knowledge , in view of the said recommendation made by the Election Commission, Her Excellency, President of India has rescinded its notification dated 12 th March, 2012, whereby and whereunder the election of two Members of the Council of States (Rajya Sabha) was notified. However, the notification rescinding the earlier Notification dated 12 th March, 2012 is not available with the petitioner and, therefore, petitioner prayed that respondent-Commission be directed to produce the Notification rescinding the election dated 30 th March, 2012. The petitioner alleged that action of the respondentCommission in canceling the entire process of election on the allegation of use of money and horse trading and on certain irregularity committed by the three voters during the process of casting their votes, as recommended for canceling of the election process itself, wholly without jurisdiction and is bad.

(3.) W.P.(C) No. 1802 of 2012 has been preferred by Shri Pradeep Kumar Balmuchu, who was one of the candidates to the election referred above, as he was a candidate set up by political party being Indian National Congress for the election of the Council of States (Rajya Sabha) from the State of Jharkhand . He after giving the facts relating to the schedule of the election and giving names of the candidates whose nominations were found valid, after withdrawal of the candidature by all others, submitted in the writ application that certain allegations were leveled and letters were written by one or other Members of Parliament to the Election Commission, mentioning therein about the apprehension regarding money power play/horse trading coming into play of the election process i.e., polling by the Members of the Jharkhand State Legislative Assembly and submitted the same facts which have been pleaded in W.P.(PIL) No.1801 of 2012 with submission that through newspaper, petitioner came to know that recommendation made by the respondent-Election Commission has been accepted by Her Excellency the President of India and notification has been issued, rescinding the earlier notification dated 12 th March, 2011, however copy of the said notification could not be obtained by the petitioner and, therefore, the petitioner-Pradeep Kumar Balmuchu also prayed for calling the aforesaid notification from the respondents for placing the same before this Court.