2007(4) ALL MR 2
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

S.J. VAZIFDAR AND P.R. BORKAR, JJ.

Sau. Dropadabai W/O. Murlidhar Thete & Anr.Vs.State Of Maharashtra & Ors.

Writ Petition No.1677 of 2007,Writ Petition No.1885 of 2007

25th April, 2007

Petitioner Counsel: Mr. S. S. THOMBRE,Mr. A. N. KAKADE
Respondent Counsel: Mr. S. K. KADAM,Mr. S. T. SHELKE,Mr. K. J. GHUTE-PATIL,Mr. V. D. HON
Other Counsel: Mr. S. G. RUDRAWAR

Constitution of India, Art.226 - Election - Challenge to - Election held by operating electronic voting machines - Assuming that a voter made an error in operating the electronic voting machine, the electoral officers cannot be held responsible for the same - Nor would there be any justification in setting aside the entire election for that reason - This would result in and be similar to a vote being invalidated just as in the conventional system involving ballot papers. (Para 10)

JUDGMENT

S. J. VAZIFDAR, J. :- Rule in both the Petitions. Rule made returnable and heard forthwith.

2. The facts in both the Writ Petitions are common and raise a common question and are therefore disposed of by this common judgment and order.

For convenience we will refer to the facts in Writ Petition No.1677 of 2007.

3. The petitioner has sought a Writ of Mandamus directing respondent nos.2 to 4 to hold fresh polling in the respective constituencies by setting aside the election results published on 12.3.2007.

4. Respondent nos.2, 3 and 4 are the State Election Commissioner, the District Collector and the Returning Officer for elections to Zilla Parishad respectively. Respondent nos.5 and 6 are the successful candidates.

5. As per the election programme the polling was held on 11.3.2007 and the counting was held on 12.3.2007.

6. The petitioners' grievance is that as per the chart prepared by the Returning Officer in respect of the Zilla Parishad constituency an aggregate 11443 votes were cast and in respect of the Panchayat Samiti elections an aggregate of 5791 votes were cast. However on counting it was found that the total votes were 11327 for the Zilla Parishad and only 5713 in respect of the Panchayat Samiti elections. There is therefore undoubtedly a discrepancy between the number of persons who cast their votes and the number of votes actually counted. In view of the aforesaid circumstances it is submitted that the entire electoral process is vitiated and ought to be set aside and fresh elections should be ordered.

7. The difficulty has arisen in view of the electronic voting machine not having been operated properly by some of the voters. There is nothing on record to even remotely suggest any tampering or mala fides against any of the electoral officers.

8. The explanation furnished by the Returning Officer appears to be correct and in any event plausible. The affidavit sets out in detail the manner in which the electronic voting machines are to be operated and the probable reason for the discrepancy in the total number of votes actually registered. It will be convenient to set out paragraph 2 of the affidavit filed by respondent no.4, the Returning Officer which speaks for itself and reads as under :-

"2. There are two Units of electronic voting machine used in the election. One is called Control Unit and the second is called Ballot Unit. The Control Unit is with the Polling Officer. In the Ballot Unit, the ballot is inserted and thereafter the Unit is sealed in the presence of the candidate or his election agent. The Control Unit is also sealed. In the presence of the polling agents of the candidates it is ensured that the machine displays zero. After identification of voter by the polling agents of the candidates, indelible ink is applied on the forefinger and signature or thumb impression in the register of voters is obtained, the voter is therefore allowed to record his vote with the help of Ballot Unit. For that purpose, the Polling Officer presses the 'Ballot' button on ballot section of the Control Unit which makes the Ballot Unit ready for recording of vote by that voter. Thereafter the voter goes in that compartment for voting purpose. Since the Zilla Parishad elections and Panchayat Samiti elections were taken together, the voter was required to cast his/her vote for both. However, if voter only casts his/her vote only for Zilla Parishad or only for Panchayat Samiti, then the 'End' button is required to be pressed, otherwise the vote is not registered/recorded in the machine. If a voter does not wish to cast any vote but only presses the 'End' button, the vote is not recorded in voting machine. The identification of voter, application of ink and obtaining signature/thumb impression in the register of voters are done manually. The difference in the number of total voters and the total votes cast is due to the fact that the said voters did not cast their votes but only pressed the 'End' button. After the polling is over, all agents and representatives of the contesting candidates are shown the total number of votes cast on the electronic voting machine. The memory chip is also preserved. I, therefore, say that the difference has, therefore, arisen."

9. The explanation furnished by respondent no.4 appears correct. The electoral officers can hardly be faulted for the discrepancy. It is pertinent to mention that the electronic voting machines have been used in the entire State and the difficulty has arisen only in two constituencies. It is also pertinent to note that the details of the electronic voting machine and the manner in which they are to be operated have been set out in large public announcements in the constituencies as well as in the polling booths.

10. Assuming that a voter made an error in operating the electronic voting machine the electoral officers cannot be held responsible for the same. Nor would there be any justification in setting aside the entire election for that reason. This would result in and be similar to a vote being invalidated just as in the conventional system involving ballot papers.

11. The reliance upon the letter dated 2.3.2007 addressed by the Secretary, State Election Commission to the Collectors does not carry the matter further. The letter sets out the difficulties in accepting certain suggestions regarding the operation of the electronic voting machine and in particular the "ENTER" button. For instance it was justifiably not considered advisable to permit any officers to be present while the voter was casting his vote as that would negate the concept of a secret ballot. Further the letter indicates that even if the "ENTER" button was covered by a black plastic cap an error in registering the vote could still arise if the same was pressed with some force.

12. In these circumstances the least that must be stated in favour of the respondents is that in these circumstances interference by exercise of jurisdiction under Article 226 in an election matter is not called for. In matters such as these the petitioners ought to be relegated to an Election Petition.

The Writ Petitions are therefore dismissed with no order as to costs.

Petitions dismissed.