Back
1996 Supreme(Ori) 167
High Court Of Orissa
P. K. MISRA
SAYED MUSTAFIZ AHMED - Appellant
Versus
SAMIR DEY - Respondent
ELECTION PETITION 4 Of 1995
Decided On : 10/15/1996
A.BOSE, A.K.JENA, A.K.MOHANTY, B.K.NAYAK, B.PUJARI, B.ROUT, BIBHUDHENDRA MISHRA, BIPIN BEHARI MOHANTY, D.K.BISWAS, D.K.Mohanty, DURGA CHARAN MOHANTY, G.N.PADHI, J.S.MISHRA, M.KHATUA, N.BEHURIA, N.Pradhan, P.C.DAS, P.C.SINGH, R.K.DAS, S.C.Dash, S.K.MOHANTY, S.MOHANTY, S.N.MOHAPATRA, T.PARIDA, U.K.Lenka
Headnote:
ELECTION LAW - ELECTION PETITION - GROUNDS - IMPROPER ACCEPTANCE OF INVALID REJECTED VOTES IN FAVOUR OF RESPONDENT - IMPROPER REJECTION OF VALID VOTES IN FAVOUR OF PETITIONER - IRREGULARITIES IN COUNTING - NON-COMPLIANCE WITH RULES - MATERIAL AFFECTING RESULT OF ELECTION - ELECTION OF RETURNED CANDIDATE VOID - INSPECTION AND RECOUNTING OF BALLOTS - NOT ORDERED.
Fact of the Case:
Election petition filed under S. 81 of the Representation of the People Act, 1951, praying for inspection and recounting of all used ballots and to declare the election of the returned candidate, respondent No. 1 to be void and to declare the petitioner to have been elected.
Finding of the Court:
1. Non-availability of ballot paper accounts in Form 16 in respect of three polling booths and six additional ballot boxes used in six other polling booths, by itself, cannot be said to have materially affected the result of the election. 2. Absence of any allegation in the election petition and in the absence of any concrete evidence, it cannot be assumed that the election, so far as it concerns the returned candidate has been materially affected for the so-called non-counting of the missing ballot box. 3. Non-signing of Part II of Form 16 amounts to an irregularity. However, since there is no evidence on record to indicate that such infraction of the rule has materially affected the result of the election so far as the returned candidate is concerned, the election cannot be set aside on this ground. 4. Discrepancy in evidence of counting agents regarding irregular counting of ballots, absence of contemporaneous protest in writing, makes it difficult to accept the contention of the petitioner. 5. Even if the missing bundle of 25 ballots is counted in favor of the petitioner, the same will not make any difference in the ultimate result, keeping in view the margin of difference between the votes secured by the petitioner and the successful candidate. 6. Allegation that the Assistant Returning Officer refused to receive the petition for recounting is not supported by evidence.
Issues: 1. Whether the election petition filed by the petitioner is maintainable? 2. Whether the election petition has been presented in compliance with the provision of S. 81 of the Representation of the People Act? 3. Whether the election of the returned candidate i. e. respondent No. 1 is void? 4. Whether the election of the returned candidate has been materially affected due to improper reception, refusal or rejection of any vote of recetion of any vote which is void? 5. Whether the counting of ballot papers was made in accordance with the provisions of sales 55-B, 56-B and 57-B of the conduct of Election Rules, 1961? 6. Whether counting of ballot papers is the six additional ballot boxes used during the polls and in respect of booth Nos. 42, 79 and 124 is legal and valid in the absence or non-use of Form No. 16? 7. Whether the election has been materially affected due to wrong bundling of ballot papers of the petitioner and the respondents? 8. Whether the petitioner shall be declared to have been duly elected?
Ratio Decidendi: 1. In the trial of election dispute, the Court is put in a straitjacket. The principles of common law and equity remain strangers. 2. When a statute provides that a particular Act has to be done in a particular manner, it has to be done in the manner prescribed, or not at all. 3. Infraction of the provisions of the Act or the Rules has materially affected the result of election relating to the returned candidate, only then the election of a returned candidate can be declared void. 4. Ballot paper account is not required to be prepared in respect of each used ballot box rather than in respect of each polling booth. 5. Right to challenge the election of a candidate flows only from the provisions contained in the Act and the Rules and not from any principle of common law. 6. Mere non-compliance of the provisions of the Act or the Rules cannot be a ground to declare the election of the returned candidate to be void. 7. Inspection of ballot boxes and recounting should not be ordered for the mere asking.
Final Decision: Election petition dismissed with token cost of Re. 1/- to respondent No. 1 alone.
P. K. MISRA, J.
( 1 ) IN this election petition filed under S. 81 of the Representation of the People Act, 1951 (hereinafter called the 'act') the petitioner has prayed for inspection and recounting of all used ballots and to declare the election of the returned candidate, respondent No. 1 to be void and to declare the petitioner to have been elected. This petition relates to election to No. 44 Cuttack City Assembly Constituency which took place on 9-3-1995 and the counting took place on 11-31995 and 12-3-1995. Respondent No. 1, who was contesting as a candidate of Bharatiya Janata Party was declared elected having secured 61,299 votes, the petitioner who was contesting on behalf of Janata Dal, secured 40,496 votes, whereas the respondent No. 2 contesting as a candidate of Indian National Congress (I), secured 37,155 votes. The Eleven other candidates had contested but except respondent No. 1, all other respondents have been set ex parte, some after filing the written statement and others at the threshold.
( 2 ) THE main ground of attack of the petitioner is on the basis that the result of the election has been materially affected due to improper acceptance of invalid rejected votes in favour of respondent No. 1 and improper rejection of valid votes in favour of the petitioner. The petitioner has asserted that at the place of counting the instruction regarding lay out of the counting hall as per the provisions contained in Annexure-XXXIV of the Hand Book has not been followed while placing the counting tables and because of irregular placing of tables the counting was not properly done and the counting agents of the petitioner faced difficulty in watching counting of votes. It is specifically alleged that barricades had not been provided around the counting tables, as a result of which counting agents of respondents Nos. 1 and 2 were very often handling the ballot papers which substantially affected fair and accurate process of counting. It is further alleged that in violation of Rule 53, many outsiders mostly the supporters of Bharatiya Janata Party and Indian National Congress (I) unauthorisedly entered inside the counting hall between 9 a. m. to 10 p. m. on 11-3-1995 and created chaotic situation which caused hindrance at the time of counting of votes. The counting started at 8 a. m. on 11-3-1995 and continued till 11. 30 a. m. on 12-3-1995 and during such long hours of counting, the counting officials were overworked and tired and all of them carried on counting hastily and rapidly resulting is wrong counting of votes and the votes which should have been counted in favour of the petitioner were erroneously counted in favour of respondent No. 1 and the votes which should not have been counted in favour of respondent No. 1 were counted in his favour, materially affecting the result of the election. It is further alleged that on 12-3-1995 at about 6 a. m. the Assistant Returning Officer announced suspension of counting for two hours to enable the counting staff and counting agents to refresh themselves and though the counting was suspended, the Returning Officer did not comply with Rule 60 and did not keep the ballot paper boxes and other papers sealed and did not take sufficient precaution for safe custody. Moreover, though the counting was to recommence at 8 a. m. , but when the counting agents come to the counting hall they found that the counting had been resumed one hour earlier at 7 a. m. and such counting of votes in the absence of the counting agents of the petitioner is improper and erroneous and has materially affected the result of the election. It is further stated that though Sri Pratap Satpathy, one of the counting agents of the petitioner is got written protest, the Assistant Returning Officer refused to receive the same. It is further alleged that as 261 polling booths had been established, ordinarily 261 ballot boxes were to be utilised, but it was found on the counting tables that in fact 267 ballot boxes w
