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2002 DIGILAW 1203 (PAT)

Sunita Devi v. State Of Bihar

2002-11-13

R.S.GARG

body2002
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the State, learned counsel for the State Election Commission and counsel for Smt. Radha Devi. 2. The grievance of the petitioner in nutshell is that instead of declaring her as elected candidate the Election Commission illegally ordered a fresh date for submission of the nomination papers. The petitioner says that if the nomination papers were rightly or wrongly rejected then too the Election Commission could not interfere in the matter. According to the petitioner, the Election Commission was obliged and duty-bound to require the Returning Officer to declare the petitioner as elected candidate as the petitioner was the only candidate who had filed a valid nomination paper. 3. The Election Commission so also the private respondent no. 5 submit before the Court that certain threats were extended and the proposed candidates were intimidated by one Vinod Yadav who happens to be the brother-in-law of the present petitioner. According to them, the said Vinod Yadav was threatening the public of their life and limb, therefore, the candidates could not submit their nomination papers. They also submitted that in a complaint dated 12.3.2002 serious allegations were made against Vinod Yadav and it was also said that respondent no. 5 was kidnapped but because of immediate action taken by the police she could be freed from the clutches of the kidnappers. The Election Commission says that on the complaint, they called for a report from the District Magistrate, who alongwith covering letter of the District Magistrate-cum Returning Officer and the report of the Deputy Development Officer have been filed before this Court to contend that an enquiry was made in the matter and the Returning Officer-cum-District Magistrate found that the people were intimidated, therefore, they could not submit their nomination papers. It also appears that the Election Commission on the basis of the material available before it formed the opinion that there was no possibility of free and fair election, therefore it cancelled the entire process and started it afresh with a fresh date of submission of the nomination papers. 4. The private respondent in return has submitted that the private respondent was kidnapped by some miscreants but because of intervention of the police and others she was freed. In the entire counter affidavit the respondent no. 4. The private respondent in return has submitted that the private respondent was kidnapped by some miscreants but because of intervention of the police and others she was freed. In the entire counter affidavit the respondent no. 5 has not stated even a single word that before 12.3.2001 (sic) i.e. the date of public petition, she ever made any complaint either to the police, Election Officer, Returning Officer or the State Election Commission that she was threatened or intimidated. It is, however, submitted during the course of the argument that a Senha was registered by the police but unfortunately the copy of the said Senha has also not been filed before this Court for its perusal. Be that as it may, the fact remains that after receiving the public petition-cum -complaint on 12.3.2002 the Election Commission referred the complaint to the District Magistrate to submit his report. 5. In the opinion of this Court, after receiving the public petition-cum-complaint the Election Commission could pass an order or in alternative could make an enquiry and after hearing the parties pass an order or could call for an enquiry report and pass final order. In the present matter the Election Commission found that an enquiry into the matter was a must. It referred the matter to the District Magistrate. The District Magistrate in his turn required the Deputy Development Commissioner to make an inquiry into the matter. The report of the Deputy Development Commissioner dated 15.3.2002 is available on the record at Annexure-C. Despite repeated reading of the report, I could not find even a single word in the said report that the Elections were not going to be fair election or Vinod Yadav or anybody at the behest of the present petitioner threatened or intimidated the proposed candidates. The report dated 15.3.2002 simply refers to the order of rejection of the nomination papers. The said order of rejection is available on the record at Annexure-2. Annexure- 2 is in two parts. It records two proceedings dated 9.3.2002 and 11.3.2002. On 9.3.2002 certain affidavits were filed by the proposer and seconder of the respondent no. 5 saying that they did not affix the thumb impression on the nomination papers because they ordinarily put their signatures. They also stated on oath that they did not know Radha Devi. It records two proceedings dated 9.3.2002 and 11.3.2002. On 9.3.2002 certain affidavits were filed by the proposer and seconder of the respondent no. 5 saying that they did not affix the thumb impression on the nomination papers because they ordinarily put their signatures. They also stated on oath that they did not know Radha Devi. On 11.3.2002 the Returning Officer heard the parties, took the thumb impression of the proposer Kunj Bihah Singh and one Rajesh Singh, compared the same with the thumb impression affixed on the nomination papers and recorded a finding that the thumb impressions were different. He also discussed the matter with the representative of the Election Commission and in accordance with the rules, rejected the nomination papers. The nomination paper was not rejected in a cue. It was rejected on a factual foundation. The dispute relating to rejection of nomination papers referred to in Annexure-C in fact was a personal dispute between the petitioner and respondent no. 5. It had nothing to do with the public complaint which was filed on 12.3.2002 after rejection of the nomination papers. 6. Annexure-D is the letter by the District Magistrate-Cum-Returning Officer. In his entire order he did not write even a single word that anybody ever submitted before him that any proposed candidate or a person aspiring to contest the election said before him that he was threatened by the petitioner, Vinod Yadav or anybody, not to file the nomination papers. Annexure-D refers to the report of the Deputy Development Commissioner and says that both sides submitted their arguments before him. Relating to the complaint dated 12.3.2002 the District Magistrate observed in his letter that according to the complaint the propdser and the seconder were threatened. Now these words that according to the complaint proposer and seconder were threatened are sought to be made the sheet-anchor for fixing the date for fresh election. Annexure-A unfortunately does not say that the proposer and seconder were threatened. The complaint (Annexure-A) says that because of the threats extended by Vinod Yadav number of the persons could not submit their candidature. Radha Devi who had filed her nomination was kidnapped, she was intimidated and because of the intervention of the police she could be freed. The complaint also says that number of the persons wanted to contest the election from ward no. Radha Devi who had filed her nomination was kidnapped, she was intimidated and because of the intervention of the police she could be freed. The complaint also says that number of the persons wanted to contest the election from ward no. 3 but because of the intimidation and threats they could not submit their nomination papers. The complaint, even for the sake of repetition does not say that the proposer and the seconder of respondent Radha Devi was intimidated of dire consequences or were threatened. The complaint simply say that others who wanted to submit their nomination papers could not submit the same. 7. Either in Annexure-C or Annexure- D annexed to the counter of the Election Commission not even a single word is stated that public was intimidated or threatened, therefore, they could not submit their nomination or candidature or there was no possibility of free and fair election. If on 12.3.2002 the Election Commission thought that the enquiry into the matter/allegations is must then it cannot turn round and say that it would rely upon the allegations mads in the complaint. After calling for the report from the concerned Election Officer/Returning Officer the Election Commission now was required to pass an order on the basis of the said report. The report, as l have already observed did not speak even a single word about the intimidation, threats or the realm of terror alleged to be caused by the said Vinod Yadav. If there was no material before the Election Commission to observe, hold or find anybody was intimidating others therefore, the public or the persons who wanted to contest the election could not submit their candidature then the Election Commission could not interfere or intervene in the matter. l repeatedly asked the learned counsei for the Election Commission to produce the material before me which persuaded the Election Commission to countermand the election, but the learned counsel for the Election Commission barring placing reliance upon Annexures-A, C and D did not and could not produce any further materials. 8. The allegations were of serious nature but the findings were not there to support the allegations. Neither from Annexure-C or Annexure-D it appears that any evidence was submitted before the said officers or their attention were invited towards the allegations or they were required to make any observation in relation to the complaint. 8. The allegations were of serious nature but the findings were not there to support the allegations. Neither from Annexure-C or Annexure-D it appears that any evidence was submitted before the said officers or their attention were invited towards the allegations or they were required to make any observation in relation to the complaint. If the Election Commission was of the opinion that a report should be called for in a particular matter then it should have required the District Magistrate to submit his report. If the report of the District Magistrate was in-complete then the Election Commission was obliged to call for a further report but instead of taking a legal action it could not revert back to the complain, rely upon the allegations and say that there was no possibility of free and fair election. 9. In view of the discussion aforesaid, the Election Commission had no jurisdiction to interfere or intervene in the matter. The notification dated 18.3.2002 is hereby quashed. The Election Commission is hereby directed to require the Returning Officer to declare the results of the Election. 10. It is, however, made clear that the observations made in this writ application are for disposal of this writ only. After declaration of the results if any person is aggrieved by the declaration of the results then he shall be entitled to challenge the results in a duly constituted election petition in accordance with law. 11. The petition is allowed.