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2007 DIGILAW 1492 (PAT)

Seema Devi v. State Election Commission

2007-09-12

NAVANITI PRASAD SINGH

body2007
Judgment 1. By this writ application, the petitioner challenges the order of the State Election Commission dated 15.5.2006 by which it has reviewed its own earlier order dated 26.4.2006 in the matter of validity of rejection of petitioners candidature. The simple ground for challenge is that the Election Commission has no jurisdiction to review an order passed by it after due enquiry. 2. The Election Commission is duly represented and has filed its counter affidavit. This matter was earlier heard on 29.8.2007. This Court required certain documents to be brought on record by the Commission. They have been so brought on record pursuant to orders of this Court though the Commission was obliged to place those orders/reports on record by itself at the very initial stage itself but chose not to do so. 3. First, a preliminary objection has been raised on behalf of the Commission as to the jurisdiction of this Court to entertain the writ. It is submitted that once the election process had started, writ petition is not maintainable challenging any matter therein. I regret my inability to accept the contention on the simple ground that what is being challenged here is the jurisdiction of the Election Commission to review its orders. Whatever may be its consequence will not deter this Court from ruling the jurisdiction of the Commission. The power of judicial review under Article 226 of the Constitution of India cannot be whittled down in matters of jurisdiction of constitutional authorities. The objection taken is, thus, rejected. 4. Briefly stated, the question of jurisdiction has arisen because first the Election Commission after getting the matter enquired into and after due deliberation held that the petitioners candidature was wrongly rejected and directed the district authorities to act accordingly. Then acting on an unsolicited suo motu letter of the Collector who had already sent a report to the Commission in the first proceedings, the State Election Commission again acts suo motu and without anything further reviews its earlier order and recalls its order and this time holds that the candidature stood cancelled. The question is the Commission entitled to change its view on a matter which has already been adjudicated upon by it in a duly constituted proceedings? My answer to this is the Commission has no such authority. The question is the Commission entitled to change its view on a matter which has already been adjudicated upon by it in a duly constituted proceedings? My answer to this is the Commission has no such authority. Secondly, if it is found that the action of the Commission or the order of the Commission was bad what is the remedy available to a citizen. He is not challenging the election of the elected candidate and, as such, an election petition may not lie. If an election petition does not lie then what is the other forum in which such a decision of the Commission can be challenged, in my view, it could be by a suit or as it affects the rights of a party by a wrong State action it could be under Article 226 of the Constitution of India to this Court. Thus, even on this count, the writ is maintainable and this Court has the jurisdiction to decide the jurisdiction of the State Election Commission to review its orders. 5. The petitioner had filed two sets of nomination papers for the Gram Panchayat election. After scrutiny, both were accepted as valid. Petitioner allegedly under a misconception that two nomination papers having been accepted as valid could create confusion by her name being there twice, filed an application in Form-VIII. Form-VIII, as prescribed, is a form for withdrawal of candidature and not withdrawal of nomination. Petitioner specifically states that alongwith Form-VIII, she had appended an affidavit stating that by this application, she intends to withdraw her nomination filed on the 10th of March, 2006 and not her nomination filed on 13th of March, 2006. This affidavit has been annexed alongwith her applications to the writ application and it is not disputed by the Election Commission that while making her application to the Election Commission, this affidavit was also submitted to the Election Commission clearly stating that it is this affidavit that was appended to Form-VIII which was filed before the Returning Officer. The Returning Officer, acting mechanically and allegedly mala fide, treated her candidature as a whole to be withdrawn and, thus, threw her out of the running for the election. 6. The Returning Officer, acting mechanically and allegedly mala fide, treated her candidature as a whole to be withdrawn and, thus, threw her out of the running for the election. 6. On 20th of March 2006, the petitioner filed an application before the State Election Commission challenging the alleged wrongful action of the Returning Officer and clearly stated that while filing Form-VIII, she had annexed an affidavit, copy whereof was also filed before the Election Commission. This fact was also mentioned in her application. The Election Commission then sent this application of the petitioner and the affidavit to the District Election Officer, that is the Collector, Munger, for enquiring and reporting in the matter to enable the State Election Commission to take a decision in the matter. A report was sent after due enquiry by the Collector who was the District Election Officer (this report was initially not brought on record by the Election Commission but was placed on record pursuant to order dated 29.8.2007 of this Court). The Election Commission examined the report, the representation of the petitioner and after considering the matter by its order dated 26.4.2006 held that in the opinion of the Commission, the order of the Returning Officer cancelling her candidature as withdrawn could not be sustained. It directed the Returning Officer to accept the nomination dated 13.3.2006 of the petitioner and proceed accordingly. The said order was communicated to the Election Officer, the Collector for necessary compliance (Annexure-9). 7. It appears once this order was sent, the District Election Officer, the Collector suo motu sat down to re-examine the matter which had already been decided by the State Election Commission. Without anyone asking him to do so he himself again reopened the enquiry conducted by himself earlier and this time again suo motu informed the State Election Commission that on receipt of orders of the Election Commission, he got the matter re-enquired. It appears from the report of the Circle Officer dated 29.4.2006 (after the final order of the Election Commission) that the petitioner had not submitted any affidavit as claimed by her in her representation before the State Election Commission. Thus, her stand that she had filed an affidavit whereby she had specifically said that she was withdrawing one of her nominations only was forged, false and fabricated. Thus, her stand that she had filed an affidavit whereby she had specifically said that she was withdrawing one of her nominations only was forged, false and fabricated. It appears the Election Commission received this communication and then suo motu decided to review its earlier order ex parte and having done so, it passed an order recalling its earlier order which was passed after due enquiry and hearing the parties, thus, effectively holding that the action of the Returning Officer in cancelling the candidature of petitioner as withdrawn was correct. There was complete alter face by the authorities on an ex parte appraisal of facts. This order, which is under challenge, is dated 15.5.2006. It was not made available to the petitioner immediately but the petitioner filed the writ petition on 15.6.2006 and having received it subsequently has been appended to the writ proceedings by interlocutory application as Annexure-17. 8. Issues were joined in this Court as to whether petitioner had filed affidavit or not. Therefore, this Court required the Election Commission to bring on record the first report of the Collector-cum-District Election Officer on record because that report was in response to petitioners application to the State Election Commission in which she mentioned about filing of affidavit and a copy of the affidavit was also appended to the said application. This Court wanted to see as to what was the response of the Collector in respect of the said averments at the earliest stage. A supplementary affidavit on behalf of the Commission was filed annexing the said order as well as the communication of the Collector which is marked as Annexure-X. The said communication is dated 16.4.2006 and the order is appended thereto. A reference to the said order, on enquiry as passed by the Collector in respect of petitioner, clearly discloses that he was fully conscious that he was enquiring into the complaint as made by the petitioner to the State Election Commission and was considering her application before the Commission. In my view, this is sufficient to show that he was aware of the specific assertion with regard to the filing of affidavit. He does not say that on examination of records, he found that there was no such affidavit. He does not record any such finding nor does he record that the statement, as made by the petitioner, was wrong, false or unsubstantiated from records. He does not say that on examination of records, he found that there was no such affidavit. He does not record any such finding nor does he record that the statement, as made by the petitioner, was wrong, false or unsubstantiated from records. He examines the record and gives a legal advice to the Commission. He states that Form-VIII is for withdrawal of candidature and not withdrawal of nomination and, therefore, the prayer of petitioner for withdrawal of nomination dated 10.3.2006 was wholly inappropriate. Thus, the Collector himself was aware of the clear averments made by the petitioner that by the affidavit, she had requested for withdrawal of her nomination dated 10.3.2006 and not her candidature as such yet the Collector did not give any finding that there was no such affidavit on record. 9. This report of Collector having been brought on record now, one can examine the facts in correct perspective. The petitioner filed two nominations. She then filed an application in Form-VIII accompanied by affidavit that she wanted to withdraw one of her nominations and not the second nomination. Her candidature was rejected treating it to be withdrawn. She appealed to the State Election Commission pointing out the facts. State Election Commission forwarded her application to the District Election Officer-cum-Collector. The Collector, on receipt of her application with affidavit, made enquiries and examined records. He did not record any finding that the affidavit was not there on record though he also did not record a finding that affidavit was on record. In my view, this matters little for if there was a specific averment by the petitioner that certain facts were available on record, if they were not available on record, the Collector should have men tioned it. The general law of pleading clearly solves the situation. As there was no traverse by the Collector, it shall be deemed that the affidavit was on record at that time when he sent his first report, there being no adverse comment upon that. On basis of the report and considering the legal situation, the State Election Commission passed an order holding that the candidature of petitioner should not be rejected. He directed the authorities to act accordingly. It remains unexplained as to at whose instance and why the District Returning Officer-cum-Collector got inspiration to reopen the matter and re-enquire once the State Election Commission had decided the matter. He directed the authorities to act accordingly. It remains unexplained as to at whose instance and why the District Returning Officer-cum-Collector got inspiration to reopen the matter and re-enquire once the State Election Commission had decided the matter. It again remains unexplained at whose instance, he suo motu decided to send a fresh communication to the Election Commission and what is more regettable is the State Election Commission being a constitutional authority suo motu ex parte decides to review an order which it had passed after hearing parties as virtually an adjudicatory body. 10. In my view, this whole process after the first order of the Election Commission is wholly unwarranted in fact and in law. If such actions are permitted then authorities including constitutional authorities could play havoc on the rights of citizens. The law does not review the order passed after hearing parties. The matter had been enquired into, orders passed. The Collector being subordinate had no option but to accept the order because it was pursuant to his enquiry report and having considered it, the orders were passed. There is challenge more than what meets the eye. I have, therefore, no hesitation in holding that the Election Commission which had once enquired the matter, heard the parties and passed the order, had no jurisdiction to review the same and that too on basis of a communication from the same authority who had been entrusted enquiry on the earlier occasion who now becomes wiser and suddenly finds that there is no affidavit on record and reports that whereas when he was asked to enquire into and report, he did not pass any adverse order on that. This itself speaks volumes of the manner in which the District Election Officer-cum-Collector, Munger has acted. Surely, peoples faith in impartial elections would stand eroded by such conduct of such officers. This Court is indeed surprised as to why the" Election Commission chose not to take any action against the said District Returning Officer who erodes the confidence of the public. 11. In view of the findings above recorded, it is clear that the Election Commission erred in law in assailing jurisdiction to review its earlier order. This Court is indeed surprised as to why the" Election Commission chose not to take any action against the said District Returning Officer who erodes the confidence of the public. 11. In view of the findings above recorded, it is clear that the Election Commission erred in law in assailing jurisdiction to review its earlier order. It exercised jurisdiction which was not vested in it and, as such, I have no option but to quash Annexure-17, the order dated 15.5.2006 of the State Election Commission as being wholly without jurisdiction with all consequential reliefs. This writ application is, accordingly, allowed.