2002 Supreme(Cal) 514

High Court Of Calcutta
Asit Kumar Bisi
BABURAM TUDU - Appellant
Versus
SHAMBHUNATH MANDI - Respondent
E. P.  2  Of  2001
Decided On : 08/02/2002

Headnote:

ELECTION - Void Election - Symbol not reflected in the voting machine - Petitioner's allotted symbol was not reflected in the voting machine - Non-compliance with the provisions of the Act and Rules - Result of the election materially affected - Election declared void.

Fact of the Case:

The petitioner, Baburam Tudu, filed an election petition seeking a declaration that the election of the returned candidate, respondent No. 1, of the 232 Binpur (S. T.) Assembly Constituency was void under section 100 (1) (d) (iv) of the Representation of the People Act, 1951. The petitioner's case was that his allotted symbol, 'jug', was not reflected in the voting machine and a different symbol, resembling a 'bottle', was printed against his name. The petitioner alleged that due to this error, electors were misled, and the result of the election was materially affected. Respondent No. 1 contested the petition, denying the allegations and claiming that the election process was conducted properly. Respondent No. 3, another contesting candidate, supported the petitioner's contention, stating that the change in the symbol caused confusion among voters.

Finding of the Court:

The court framed six issues for trial, including the maintainability of the petition, the necessity of joining the Returning Officer as a party, the proper affixation of the allotted symbol in the voting machine, and whether the election was void under section 100 (1) (d) (iv) of the Act. The court first addressed the issue of maintainability and held that the Returning Officer, respondent No. 6, could not be joined as a party to the election petition as per the provisions of the Act. However, the court clarified that this did not render the entire petition void, and the remaining issues could still be adjudicated upon.

Issues: 1. Maintainability of the petition in its present form and frame. 2. Whether the Returning Officer is a necessary party in this suit. 3. Whether the allotted symbol 'jug' (Sl. No. 54) was properly fixed in the electronic voting machine against the name of the present petitioner in accordance with the rules. 4. Did the petitioner waive his right to raise objection as regards the alleged error with regard to the symbol after final setting up of the symbols in the electronic voting machine and in the balloting units? 5. Is the election of the returned candidate of 232 Binpur (S. T.) Assembly Constituency void in terms of section 100 (1) (d) (iv) of the Representation of the People Act, 1951 as alleged in the petition? If yes, is the result to be set aside as prayed for in the petition? 6. To what other relief or reliefs is the petitioner entitled?

Ratio Decidendi: The court examined the evidence and materials on record and found that the petitioner's allotted symbol, 'jug', was indeed not reflected in the voting machine, while a different 'bottle'-like symbol appeared against his name. The court noted that this error was admitted by the Returning Officer and was corroborated by documentary evidence. The court also considered the contention that the petitioner had failed to prove that the result of the election was materially affected by this error, as required under section 100 (1) (d) (iv) of the Act. The court reviewed relevant case law and held that the petitioner had the burden of proving that the result of the election was materially affected, but had failed to discharge this burden. The court noted that the margin of votes between the returned candidate and the petitioner was large, and that the number of votes earned by the remaining candidates was also significant. The court concluded that it was not possible to speculate or make reasonable judicial guesses about how the votes would have been distributed if the error had not occurred.

Final Decision: The court dismissed the election petition, holding that the petitioner had failed to prove that the result of the election was materially affected by the error in the voting machine. The court found that the election of the returned candidate was not void under section 100 (1) (d) (iv) of the Act and dismissed the petition with no order as to costs.