1985 Supreme(Gau) 43

GAUHATI HIGH COURT
B.L.Hansaria, J.
Mazibur Rahman -Appellant
Versus
Khonehedur Rahman Khan & Others -Respondent
Election Petition No. 14 of 1983
Decided On : 19-11-1985

Headnote:

The battle of ballots won in the 6eld is not to be lightly undone by a Court when it is approached by a defeated candidate, or by any other competent and interested person. This principle is so well woven in the fabric of evectional law that no citation of authority is needed to justify it. Despite this, the Court has to rise to the occasion when it finds that the purity of the election has been defiled by indulgence incorrupt practice, or when it is satisfied about the existence of any other ground mentioned in section 100 of the Representation of the People Act, 1951, herein–after called the Act. Here also, the Court would be justified in reversing the verdict of the people on its being fully satisfied about the allegations made by the election petitioner.

Fact of the Case:

The petitioner in the present case having lost in the fettled of hosting, which took place on 17.2.83, has approached this Court not only for a declaration that the election of respondent No. 1(hereinafter, the respondent) was void, but for a further declaration that it was he who was duly elected to the Meghalaya Legislative Assembly from No. 49 Rajabala Consti–tuency. It may be pointed out here that the respondent had secured 3126 votes as against 2568 votes obtained by the petitio–ner who was the recipient of the next highest number of votes. The returned candidate had thus polled 558 votes more than the petitioner. There were four other candidates in the fray, but we are not concerned with them.

Finding of the Court:

Because of all the above, I would conclude by saying that the petitioner has failed to establish his case that respondent was not a citizen of India at the relevant time. This issue, therefore, stands answered against the petitioner.

Issues: 1. (a). Whether the change of allotment of symbol from 'Boat1 to "Hand" to Respondent No. 1 Shri Khorshedur Rahman Khan was in breach of paragraph 13 of the Election Symbols (Reservation and Allotment) Order, 1968 or was in breach of any order made under the Representation of the People Act, 1951, or the Rules, framed there under ? (b) Whether Respondent No. 1 made the declaration as required under Rule 10 (4) and (5) of the Conduct of Election Rules, 1961 ? If not, whether his nomination paper was liable to be rejected ? (c) Whether Respondent No. 1 made the requisite dec–larations in his nomination paper as required under para–graph 13 of the Election Symbol (Reservation and Allot–ment) Order, 1968 to the effect that he was set up by Congress (I) ? (d) Whether due notice, in writing that Respondent No. 1 was set up by Congress (I) were delivered to the Returning Officer of the constituency by 3 PM on the last date of withdrawal of the candidature and whether one of those said notices was duly signed by the Presi–dent, Secretary, or any other Office bearer of the party competent to set up Respondent No. 1 ? (e) Did the Secretary to the Election Commission of India, New Delhi send the Telex Message to the Deputy Commissioner, West Garo Hills, Tura and the Chief Elec–tion Officer of Meghalaya intimating that if an indepen–dent candidate was subsequently adopted by any recognised party he could be allotted the symbol reserved for that party on receipt of requests made by the said recognised party ? If the Telex Message was an order made by the Secretary was it a valid order of the Election Commi–ssion ? Whether the Telex Message conveyed an order or decision or direction of the Election Commission ? (f) Whether the Returning Officer could allot the reser–ved symbol "Hand'' to Respondent No.1 after the date of withdrawal of candidature was over, 1A. Whether any of the allegations contained in Cla–uses (a) to (f) of Issue No. 1 amounted to non compli–ance with the provisions of the Constitution, Represen–tation of the People Act, 1951 or of any Rules or Orders made under the Representation of the People Act and whether the result of the election in so far it concerned " the returned candidate'' was materially affected ? 2. Whether on 14.2.83 at about 6.30 PM, with the consent and knowledge of respondent No. 1 his supporters and workers named in Annexure-'F' obstructed the peti–tioner and his supporters and workers in front of the house of Ahmed Ali Bepari from 6.30 PM of 14.2.83 to 7 PM of 16..83, as alleged in para 25 (A) of the elec–tion petition and amplified in Annexure 'F' to the Elec–tion petition ? 3. If so, whether the acts amounted to corrupt prac–tice as contemplated U/s 123 of the Representation of the People Act, 1951 ? 4. (a). Whether the agents, workers and supporters of Respondent No. 1 (in para 25 (c) were agents, workers and supporters of Respondent No. 1 ? If so, did they) distribute cash, clothes etc to the voters of Sidakandi, Bowabaii. Fersha Kandi, Narasati and Magurmar as averred in para 25 (c) of the election petition ? (b) Whether Dr. Dilwar Hussain Khan was a Gazetted Government Officer and he canvassed on behalf of respondent No. 1 on 10.2.83 till 16.2.83 at the places mentioned in para of the petition ? (c) Whether respondent No.1 appointed Shri Safiur Rah–man Biswas as his counting agent ? (d) Whether Shri Safiur Rahman Biswas was a Govt. L. P. Teacher at the relevant time ? 4A. If the allegations contained in Issue 4(a) to (d) are proved did they amount to corrupt practice as con–templated under section 123 of the Representation of the People Act ? 5. Did Respondent No. 1 or any of his agents, suppor–ters and workers canvassed till 17.2.83 morning as alleged in the election petition ? If so, whether the result of the election has been materially affected thereby ? 6. Did Respondent No. 1 display his party banner within the radius of 25 metres from Baldamgiri 12 and Rajabala Polling Station till 10 AM on 17.2.83 to mislead the voters and whether complaint for removal of the ba–nner was made by some candidate to the Presiding Officer on 17.2 83 at 10 A. M. ? If so what the Presiding Officer did ? Whether these amounted to corrupt practice u/s 12 of the Representation of the People Act ? 7. Whether Respondent No. 1 was disqualified to be a candidate for the election on the ground that he is not a citizen of India ? 8. Whether the election of the returned candidate is lia–ble to be set aside on any of the grounds ?

Ratio Decidendi: The Commission cannot be allowed to convert itself into "an absolute despot in the field of election so as to give direction regarding mode and manner of election by-passing the pro–visions of the Act and the Rules purporting to exercise power under Articles 324''.

Final Decision: The petition stands dismissed with cost, which I assess at Rs. 1,000/-.