IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA Election Petition No. 38 of 2019 BETWEEN:-

KANTILAL BHURIYA S/O. LATE NANURAM BHURIYA, AGED ABOUT

68 YEARS, R/O. 107, GOPAL COLONY, DISTRICT JHABUA. (M.P.)

.....PETITIONER (SHRI ABHINAV DHANODKAR, LEARNED COUNSEL FOR THE PETITIONER.)

AND GUMAN SINGH DAMOR S/O. LATE SHRI NAHAR SINGH DAMOR, AGED : 62 YEARS, R/O. VILLAGE UMARKOT, TEHSIL RAMA, DISTRICT JHABUA (M.P.)

.....RESPONDENTS (SHRI VIVEK PATWA WITH SHRI BHUVAN GAUTAM AND SHRI RUSHIL SHUKLA, LEARNED COUNSEL FOR THE RESPONDENT.)

Reserved on : 31.01.2023. Pronounced on : 03.02.2023 This Election Petition having been heard and reserved for order, coming on for pronouncement this day, the Court pronounced the following :

ORDER

The petitioner has filed the present election petition to declare the election of the respondent / returned candidate as void.

The facts of the case as pleaded in the Election Petition are as under :

1. The President of India by notifications issued under sub- section (2) of Section 14 of the Representation of Peoples Act, 1951 (hereinafter referred to as “the R.P. Act of 1951” for short) published in Official Gazettes dated 2.4.2019, 10.4.2019, 16.4.2019 and 22.4.2019 vide Annexure P/1 to P/4 for conducting the election of the Lok Sabha Constituencies in the State of M.P. to elect the members to the House of the People (Lok Sabha). The election was to be held in four phases in the State of M.P. Accordingly, the Election Commission of India issued Press Note for the announcement of the schedule for General Elections, 2019 for the Lok Sabha on 10.3.2019 and according to which, the schedule of election in respect of different Parliamentary Constituencies in the State of M.P. was also issued vide Annexure P/5. The election program in respect of Parliamentary Constituency No.24 Ratlam was as under :

29.4.2019 Last date for filing of nomination.

30.4.2019 Scrutiny of nomination.

2.5.2019 Last date for withdrawing of candidature.

19.5.2019 Date of Polling.

23.5.2019 Counting of votes.

27.5.201 Date before which the election shall be completed.

2. Under the aforesaid election program the petitioner submitted his Nomination papers from the Indian National Congress to contest the election from Parliamentary Constituency No.24 Ratlam and likewise the respondent also submitted his Nomination paper as the candidate of the Bhartiya Janata Party. As per schedule, the election was held on 19.5.2019. Thereafter, the result of the said Parliamentary Constituency was declared on 23.5.2019 vide Annexure P/6. The final result was issued by the Election Commission of India in Form 20 vide Annexure P/9. The present petitioner secured 605467 votes and the respondent secured 694243 votes, thus, the respondent won the election by the margin of 88776 votes accordingly, and the result was notified by the Election Commission of India.

3. Being aggrieved by the aforesaid the petitioner has filed the present election petition challenging the election of the respondent solely on the ground enumerated under Section 100 (1)(d)(iv) of the R.P. Act of 1951.

4. According to the petitioner, voting in all the Parliamentary Constituencies in the entire country was held by Electronic Voting Machine (EVM) under Rule 49A of the Conduct of Election Rules, 1961. The apex Court in Civil Appeal No.9093/2013 (Dr. Subramanian Swamy V/s. Election Commission of India) has directed the Election Commission of India to introduce Voter Verifiable Paper Audit Trail (VVPAT) together with the existing system of EVM. Thereafter, Rule 56-D was introduced w.e.f. 14.8.2013 for the introduction of the system of VVPAT allowing any candidate or his agent to apply in writing to the Returning Officer to recount the printed paper slips in the drop box of the printer in respect of any polling station or polling stations.

5. It is further submitted that the Election Commission of India issued instruction/order dated 13.10.2017 vide Annexure P/11 for verifica