Sawna Lakra vs Duti Pahan and others

Loknath Prasad, J.—In this election petition filed under sections 80, 80A, of the Representation of the Peoples Act, 1951 the petitioner has prayed for declaring the election of respondent no. 1 as the member of Bihar Legislative Assembly from 305 Khijri Reserved Assembly Constituency in the district of Ranchi as illegal and, thus, to be set aside and further a prayer was made for a direction for recounting the entire ballot papers polled in this Assembly Constituency and then the petitioner be declared as elected Member. The petitioner claimed that in January, 1995, a notification was made for election of the Bihar Legislative Assembly Constituency including the disputed Constituency no. 305, Khijri Assembly Constituency which is a reserved Constituency in the district of Ranchi and the date of election was fixed for 7.3.95 which was extended to 11.3.95. For the aforesaid election, several persons including the petitioner filed their nomination and after scrutiny and withdrawal. 28 candidates remained in the field including the petitioner and different symbols were allotted to them. The petitioner was contesting the election on behalf of Indian National Congress and his symbol was ''hand''; whereas the elected candidate Duti Pahan was the candidate of B.J.P. with symbol Kamal. After election, counting was taken up on 29.3.95 in Agricultural Marketing Yard Office at Pandra and for counting there were 14 tables and table no. 15 was the central table to scrutinise the doubtful ballot papers.

It is the case of the election-petitioner that for table no. 15 he appointed Jugeswar Thakur as his counting Agent but he was not allowed to enter into the hall or sit near the table no. 15 inspite of the protest of the petitioner and so the Returning Officer in collution with the subordinate officers got a free hand in rejecting the valid ballot papers polled in favour of the petitioner and referred to table no. 15 as doubtful cases.

On the next date of the counting as many as 7 ladies who were unauthorised persons entered the counting hall and began to assist in the counting of the ballot papers and they were brought in the counting hall only to help the respondent no. 1. Surprisingly after 7th round, the Returning Officer was not announcing the total number of votes being secured by each of the candidates which was being done previously and upto 7th round of the counting, the petitioner was leading. In various tables as many as 1347 valid votes polled in favour of the petitioner were referred to Central table no. 15 and thus valid votes were rejected, though validly polled in favour of the petitioner without any valid reason. Details of the same had already been furnished in the election petition. Due to arbirtrary rejection, though the petitioner got 33713 after the final counting as announced by the Returning Officer and respondent no. 1 had got only 33806. So by illegal action of the Returning Officer, respondent no. 1 was declared elected only by narrow margin of 93 votes. The result of 8th and 9th rounds were not at all announced and all on sudden, the final result declaring respondent no. 1 be elected had been made. The petitioner should have been declared to have been elected at least by difference of 573 + 13 postal votes that is, in all 586 because these votes though polled in favour of the petitioner, were mixed with the ballot papers of respondent no. 1. The petitioner also filed his petition to the Returning Officer and also to the District Election Officer-cum-Deputy Commissioner, Ranchi, for recounting of the ballot papers and the FAX message was also sent to Election Commission, but recounting was not done. Hence the petitioner has prayed for setting aside the election of respondent no. 1 and for recounting of the entire ballot papers and after that result may be announced in favour of the petitioner.

Respondent no. 13 who also contested the election unsuccessfully also filed written statement and more or less supported the case of the petitioner, but this respondent has not contested this application at the time of actual hearing.

Respondent no. 1 the elected candidate, simply contested this application by filing a written statement and it was submitted that the election petition is not maintainable for non-compliance of Section 81 of the Act as the mandatory requirement such as the petition and the copies thereof had not been properly attested under the signature of the petitioner and even the copy of the election petition served to the petitioner is not a true copy of the petition. Moreover, the election petition does not contain the material facts which is in violation of Order VII. Rule 11 of C.P.C. Furthermore, the petition is also not accompanied by an affidavit in form 25 which is a prescribed form under the Act and so the election petition is liable to be dismissed being defective.

It was also submitted that the election petition does not disclose the material facts and the allegation of inter-change of votes, mixing of the petitioner''s votes with respondent''s votes and the improper rejection and reception of votes. Moreover, the prayer for recounting of vote is not to be allowed in any view of the matter unless the petitioner gives the figure of the votes which according to him were improperly rejected or accepted and the petitioner is required to supply the serial number of the ballot papers, names of the counting Agent, number of counting tables, names of the counting supervisor etc. and further the details of objection if any and all these facts have not been disclosed to show that some of the valid votes polled in favour of the petitioner was rejected or it was counted in favour of respondent no. 1. In fact, there was no table called table no. 15 and there was one table which was reserved only for the candidates or Returning Officer and for the election Agent of the candidates and that was meant for scrutinizing the doubtful ballot papers and no complaint was lodged before the Returning Officer to show that one Yogeswar Thakur who was appointed as Counting Agent was refused by the Returning Officer to sit in that table. Furthermore, under the instruction of the Election Commission of India, Counting Supervisors were deputed on behalf of the Commission and they were supervising the counting, but no complaint was lodged to him by the petitioner regarding any of the irregularities in the counting. In respect of doubtful ballot papers, from each table after sorting out the same, those were referred to the Returning Officer/Assistant Returning Officer on Central table and after hearing the candidates/election Agents, the authority used to decide as to whether any one of the doubtful ballot papers to be accepted as valid or rejected and at that time the election-petitioner himself or his Agent remained present in that table throughout.

It is also the case of this respondent no. 1 that in fact the Returning Officer tried to help Janta Dal candidate who was in power for that there was some allegation but it is totally false to say that any allegation was made as against Returning officer for helping respondent no. 1 who was contesting the election as a BJP candidate. In any view of the matter, no specific instance of irregularities in the counting was made in the election petition. In that view of the matter, the Court is not expected to make roving enquiry. Accordingly it was submitted that this election petition may be dismissed with costs.

On the pleadings of the parties, the following issues were framed for determination :�

A. Whether the Election Petition no. 8/95R is liable to be dismissed for non-compliance of Sections 81, 82, 83 and 117 of the Representation of People Act, 1951 and in view of Order 6 Rule 16 and Order 7 Rule 11 of the Civil Procedure Code?

B. Whether illegalities and irregularities were committed in counting of the ballot papers in the impugned election as alleged in the Election Petition? If so, has it materially affected the result of the election and if so is the election of respondent no. 1 void and in his place, the election-petitioner is entitled to be declared elected after inspection and recounting of the ballot papers?

FINDING

Issue no. B: In this election petition, the petitioner who unsuccessfully contested as a candidate of Bihar Legislative Assembly election from Khijri constituency no. 305 which is a reserved constituency which was held in March, 1995 by a narrow margin of 93 votes. Thus the petitioner has mainly prayed that due to irregularities in the counting of ballot papers, a recounting of the valid votes polled in the aforesaid election may be made and after that the petitioner may be declared as validly elected candidate for Khijri constituency. In order to substantiate his allegation of irregularities including favour to the elected candidate, that is, respondent no. 1 various allegations were made in the election petition and it is admitted position that nomination papers were filed for the aforesaid constituency in January, 1995 and election was validly held on 11.3.95 in which all the respondents including the petitioner contested the election and the counting took place admittedly from 29.3.91 and ultimately it was completed on 31.3.95 and the result was declared on that date thereby and thereunder respondent no. 1 who was a candidate of Bhartiya Janta Party was declared elected as he secured 93 votes more than the petitioner.

The first grievance of the petitioner as alleged in the application is that there was a central table which is known as table no. 15 and an important table and in this table itself all the doubtful ballots referred for decision if at all those are to be rejected or to be counted in favour of a candidate. Petitioner had appointed Yogeswar Thakur as his counting agent. But he was not allowed to sit near the table to watch the proceeding and the interest of the election-petitioner. On this point there is evidence of Yogeswar Thakur who has figured as P.W. 4 and that of the petitioner himself who has figured as P.W.5 and the protest petition, that is, Annexure 1 is on the record.

On the other hand, from the respondent-side, the evidence was adduced to show, which is now admitted fact, that so far Central table is concerned, only the candidates are allowed to sit and watch the proceeding and counting agents are not allowed to sit there and the petitioner himself was all along sitting there to safeguard his interest. There is nothing on the record and no evidence was adduced on behalf of the petitioner to show that any particular Counting Agent was also present in the Central table. Furthermore, no specific instance was cited nor any protest petition was filed before the Returning Officer to show that any irregularities were committed in rejection of the ballot papers in the Central table itself. In that view of the matter, practically there is no merit in the contention of the petitioner that as Yogeswar Thakur was not allowed to sit in the central table as counting agent, counting process was vitiated or resulted in rejection of some valid votes cast in favour of the petitioner.

The other allegation of the petitioner is that on the next day of the counting, some ladies entered in the counting hall and began to take part in the counting in order to help the elected candidate, but actually those ladies are the employees and they were deputed for counting purposes and so this allegation of the petitioner is without any foundation or basis that the seven ladies actually helped the elected candidate.

Now the main allegation of the petitioner is that as many as 1347 which were valid votes polled in favour of the petitioner were improperly and illegally rejected and declared to be rejected votes. Similarly 573 valid votes of the petitioner were mixed alongwith ballot papers of respondent no. 1 elected candidate and only for these two reasons, the elected candidate was declared elected by a margin of only 93 votes and, thus, recounting may be done and the petitioner may be declared as elected after recounting. In support of this contention, on behalf of the petitioner, P.W. 1 Jitendra Khanna, P.W. 2 Ashok Kumar Mishra, P.W. 3 Arun Kumar Singh and P.W. 5 who is himself the petitioner were examined. P.W. 1 claimed that he was the counting agent in table no. 1 whereas P.W.2 has claimed that he was in table no. 10 and similarly P.W. 3 claimed that he was the counting agent of the petitioner in table no. 14 and these witnesses have further claimed that in those tables several valid votes polled in favour of the petitioner were rejected and some valid votes were also mixed with the votes of the elected candidate, that is, respondent no. 1. P.W.5 claimed that on the basis of the information he could gather that about 1347 valid votes of the petitioner were illegally rejected and about 600 valid votes of the petitioner were counted for respondent no. 1. P.W.s. 1 to 3 have further claimed that they prepared notes about the valid votes illegally rejected and votes which were counted in favour of the elected candidate and handed over those notes to the petitioner himself, but surpriingly those notes containing the details of the alleged irregularities and containing ballot numbers etc. of each particular ballot paper were not filed as annexures with the election petition. So the details showing the irregularities committed in the counting or valid votes illegally rejected or counted in favour of the elected candidates had not been furnished and alongwith the election petition. Some protest petitions were filed, that is, annexures 4 and 5 by the petitioner to the Returning Officer showing only a general allegation that some of the employees engaged in counting work were helping the BJP candidate. So the allegations are vague and general in nature.

On the other hand, evidence was adduced on behalf of the contesting respondents, that is, respondent no. 1 and on his behalf R.W. 1 Krishna Kumar, R.W. 2 Mango Bhagat, R.W. 3 Muktinath Mishra, R.W. 4 Sukhdeo Mahto, R.W. 5 Dulal Choudhary, R.W. 6 Duti Pahan, that is, respondent no. 1, were examined. These witnesses had consistently stated that they were also present in various counting tables and practically no illegalities or irregularities were committed in any of the tables and not a single valid vote was rejected. It is also their evidence that all along Central Election Supervisor deputed by the Election Commission of India was present, but surprisingly no protest was raised to him by the petitioner or his counting agent.

Thus from the evidence on the record, it can be said that only there is a general allegation that about 1347 valid ballot papers cast in favour of the petitioner were illegally rejected and similarly about 600 ballot papers cast in favour of the petitioner were mixed with the ballot papers of respondent no. 1 and counted in favour of the petitioner. But the details as to in which of the particular table such irregularities were committed showing the ballot numbers or other details have not at all been furnished. In such a situation only on the ground of general allegation, recounting is definitely not permissible. The Supreme Court in a case reported in AIR 1993 SC page 367 (Satya Narain Dudhani vs. Udai Kumar Singh and others) and in another case reported in AIR 1984 SC 396 (Hariram vs. Hira Singh and others) has clearly held that recounting of votes is not permissible as a matter of routine as such recounting disturbs the secrecy of ballot papers and when no specific objection whatsoever was raised during the counting and no irregularities or illegality was brought to the notice of the Returning Officer, and further details about the illegality in counting and rejection of the ballot papers had not been furnished, then in such situation any recounting of the ballot papers are not permissible. So in the instant case also only there is a general allegation and details of irregularities and improper rejection of votes had not been furnished by the petitioner. In that view of the matter, I am of the opinion that no case is made out for recounting of the entire valid votes polled for Khijri constituency which is being challenged here and also no case is made out for setting aside the election of respondent no. 1 on this ground alone. Accordingly this issue is answered in favour of respondent no. 1 against the petitioners.

Issue no. A:

Respondents had taken various preliminary objections for non-compliance of Sections 81, 82, 83 and 117 of the Representation of Peoples Act, 1951 read with. Order 6 Rule 16 and Order 7 Rule 11 of the CPC and it has been alleged that election petition has not been properly framed and so it must be dismissed for non-compliance of the aforesaid provisions. Allegation was made that there was divergence between the contents of the election petition and the copies supplied to the respondent and non-disclosure of material facts and cause of action and non-attestation of the election petition in the original copy and also there is absence of endorsement of Notary or Oath Commissioner. But all these preliminary objections were taken up earlier at the instance of respondent no. 2 and by detailed order dated 20.12.95 this issue was disposed of in favour of the petitioner. Accordingly there is no further materials for reconsideration of this issue and so in view of the findings made earlier, this issue is answered in favour of the petitioner. So in view of the findings made in issue no. B as discussed above, I am of the opinion that there is no merit in this election petition. Accordingly this election petition is dismissed on contest without cost as against respondent no. 1 and without contest as against the rests. But both the parties will bear their own costs. Office to send a copy of the judgment to Election Commission as also to Speaker, Bihar Legislative Assembly