| SooperKanoon Citation | sooperkanoon.com/876193 |
| Subject | Election |
| Court | Kolkata High Court |
| Decided On | Aug-02-2002 |
| Case Number | E.P. No. 2 of 2001 |
| Judge | Asit Kumar Bisi, J. |
| Reported in | (2003)2CALLT491(HC) |
| Acts | Representation of the People Act, 1951 - Sections 82, 86(4) and 100(1); ;Conduct of Election Rules, 1961 - Rule 49B |
| Appellant | Baburam Tudu |
| Respondent | Shambhunath Mandi and ors. |
| Appellant Advocate | Sadhan Roychowdhury and ;Sujoy Mondal, Advs. |
| Respondent Advocate | Abhijit Gangapadhya and ;Jyotirmoy Adhikary, Advs. for Respondent No. 1, ;Chandreyi Alam, ;Sahasrangshu Bhattacharjee and ;Rumu Mukherjee, Advs. for Respondent No. 3 and ;Debashis Kar Gupta and ;Somna |
| Disposition | Petition dismissed |
| Cases Referred | Hari Shankar Jain v. Sonia Gandhi |
Asit Kumar Bisi, J.
1. The petitioner Baburam Tudu has filed the instant election petition seeking declaration that the election of the returned candidate being respondent No. 1 of 232 Binpur (S.T.) Assembly Constituency is void in terms of Section 100(1)(d)(iv) of the Representation of the People Act, 1951, further declaration that the petitioner has been duly elected from the said 232 Binpur (ST) Assembly Constituency held on 10-5-2001, injunction restraining respondent No. 1 from attending any session of 13th West Bengal Legislative Assembly as a validly elected candidate and other reliefs.
2. The petitioner's case in brief is that the petitioner was a contesting candidate in 232 Binpur (ST) Assembly Constituency in the last Assembly election held on 10th May, 2001. After filing of the nomination paper by the petitioner as an independent candidate the Returning Officer published a listof contesting candidates in respect of 232 Binpur (ST) Assembly Constituency and such list was published on 26-4-2001. The name of the petitioner appeared under serial number 4 of the said list wherein in the column meant for showing allotment of symbol, the 'JUG' was allotted as symbol to the petitioner. On the date of election i.e. on 10th May, 2001 Ajoy Dutta who was the election agent of the petitioner could detect that in the voting machine there was no symbol of 'JUG' allotted to the petitioner. It was further detected that there was another symbol looking like a 'Bottle' against the name of the petitioner in the voting machine. After detection of the fact that the symbol of the petitioner had not been reflected in the voting machine the agent of the petitioner Ajoy Dutta lodged a complaint with the Returning Officer on 10-5-2001 at 10-30 A.M. demanding holding of spot enquiry to stop the polling process, to give punishment to the guilty person and to arrange re-polling of the whole constituency. The said complaint was duly received by the Returning Officer, 232 Binpur (ST) Assembly Constituency on 10-5-2001 at 10-30 A.M. The complaint dated 10-5-2001 of the election agent of the petitioner was duly sent to the Chief Election Commissioner by a fax message. In spite of that no step was taken by the authority to stop the election. On the contrary the election machinery and the administration continued with the voting process even by applying physical force to curb agitation of the mob against illegality/ anomaly/ discrepancy appearing in the voting machine where the symbol allotted to the petitioner was not reflected. On 12-5-2001 the petitioner himself sent a complaint to the Chief Election Commissioner clearly spelling out that in the voting machine the allotted symbol of the petitioner was not shown. The petitioner made a representation to the Returning Officer to the effect that the election had been held on 10-5-2001 without symbol of 'JUG', which was allotted to the petitioner and as a mark of protest the petitioner declined to send his counting agent to the counting hall. The final result sheet reveals that out of total valid vote of 100041 (including postal papers numbering 444). Shambhu Nath Mandi got 47.132 votes, Singh Sahadev got 2740 votes, Chunibala Hansda got 37,680 votes, Baburam Tudu (Petitioner) got 9021 votes, Baidyanath Tudugot 1260 votes and Somay Kisku got 2308 votes. The result of the election in so far as it concerned the returned candidate had been materially affected by non-compliance with the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder. As contended by the petitioner, the final result published by the authority declaring respondent No, 1 as a returned candidate is liable to be set aside by this Court on the following grounds enumerated in Paragraph 11 of the election petition :--
I. that the Symbol allotted to the petitioner under Rule 10(1) was not there in the voting machine;
II. that against the name of the petitioner in the voting machine a different Symbol looking like 'bottle' was printed whereas the petitioner was allotted the approved Symbol of 'JUG';
III. that due to non-printing of the allotted Symbol of the petitioner in the voting machine the electors had been misled and thereby the result of the returned candidate had been materially affected;
IV. that the agent of the petitioner viz. Ajoy Dutta on 10-5-2001 at the first opportune moment lodged a complaint with the authorities pointing out that the Symbol allotted to the petitioner had not been printed in the voting machine, but some other Symbol looking like a bottle had been printed but the authorities did not take step whatsoever for postponing the polling and holding re-polling;
V. that on 12-5-2001 the petitioner made a representation to the authorities categorically narrating the fact that in the voting machine the approved Symbol of the petitioner was not printed and thereby the electors had been misled and that thereby the result of the election was materially affected, but even in spite of making such representation dated 12-5-2001 no step was taken by the authorities either for stopping the counting of votes and/or directing re-polling;
VI. that the acts and activities of the authorities in not printing the allotted Symbol of the petitioner in the voting machine are violation of the Rules and Regulations of the Representation of t he People Act, 1951 and that due to the reason of committing such wilful, conscious and deliberate violation of the Rules and Regulations the result of the election had been materially affected;
VII. that the people in general wanted to lodge protest against the non-inclusion of the approved symbol of the petitioner in the voting machine but the authorities refused to give any credence to such protest on the day of election and thereafter on the day of counting and so the election should be declared to be void;
3. The respondent No. 1 Shambhu Nath Mandi being the returned candidate has contested the instant election petition by filing the written statement wherein it has been averred inter alia that the said election petition does not disclose any cause of action for which the election of the returned candidate being respondent No. 1 can be set aside. Nothing has been admitted by this respondent about the allotment of symbol to the election petitioner. As stated by this respondent, he does not know whether any person named as Ajoy Dutta detected that in the voting machine there was no symbol of 'JUG' allotted to the petitioner nor the respondent knows whether any symbol looking like a 'bottle' was in the voting machine against the name of the election petitioner. As per the case of respondent No. 1 the election process started from 8 A.M. on 19th May, 2001 and it was not understood why two and a half hours' time had been taken by the Agent of the election petitioner to detect the mistake, if any. It is not within the knowledge of this respondent whether the said Agent of the election petitioner lodged any complaint with the Returning Officer as alleged. Further case of respondent No. 1 is that if there is any discrepancy it is not of such a serious nature for which the election process could be stopped. The respondent has no knowledge whether the election petitioner himself lodged a complaint with the Chief Election Commissioner and whether any representation to the Returning Officer was made by the petitioner in the manner as alleged. No case has been made out by the petitioner to show that the result of election in so far as it concerned the returned candidate had been materially affected by non-compliance with the provisions of the Representation of the People Act, 1951 and the Rules framed thereunder. No particulars have been given in the election petition from which it can be held that the result of the election in so far as it concerned the returned candidate had been materially affected. Even in the election petition it has not been pleaded that if the symbol allotted to the petitioner allegedly the 'JUG' was printed on the voting machine how many valid votes could have been secured by the election petitioner nor it has been pleaded by the petitioner in the election petition in how many voting machines the symbol allotted to him, allegedly the 'JUG', was not printed and whether any of the polling Agents of the petitioner present in the polling booths reported any such discrepancy. It has been further alleged by respondent No. 1 that the final result published by the authority declaring this respondent as the returned candidate cannot be set aside by this Court on the basis of a baseless and frivolous election petition and the grounds set out in paragraph 11 of the election petition are not at all cogent grounds and do not come within the purview of Section 100 of the Representation of the People Act, 1951.
4. Respondent No. 3 Chunibala Hansda one of the contesting candidates has filed the written statement stating inter alia that the petitioner campaigned for his election showing the people the symbol of a Jug filled with water and on the date of election when respondent No. 3 visited polling booth No. 232/146 to cast her vote she noticed the change in the symbol allotted to the petitioner. As alleged by respondent No. 3, other voters who were present also searched for a picture of a jug filled with water but to no avail and the voters were confused at the change in the symbol and the supporters of the petitioner were agitated as a result of which the large section of genuine voters failed to exercise their franchise.
5. Respondent No. 6 Mobaswer All Baidya being the Returning Officer has contested the election petitioner by filing the written statement alleging inter alia that the said election petition is not maintainable in its present form and in the eye of the law and that the same is not maintainable for misjoinder of parties. As per the case of respondent No. 6 by Memo bearing No. 281(20)/Elec. dated 26-4-2001 issued by him all contesting candidates were informed that setting of ballot papers in electronic voting machines and sealing thereon would be held at Iswar Chandra Vidyasagar Polytechnic Sevayatan, Jhargram from May 3. 2001 to May 6, 2001 and it was further mentioned that the said programme would start at 10-30 A.M. and continued upto to 5 P.M. each day and a candidate, his election agent and not more than two representatives authorised by the candidate would be allowed to remain present at such time in the above mentioned venue. On April 26. 2001 the above memo was received by one Ajit Saha on behalf of the petitioner. It has been further alleged by respondent No. 6 that between May 3, 2001 to May 6, 2001 neither the petitioner nor his election agent/ his authorised representatives turned up at the above mentioned venue. On receiving object from the petitioner regarding the symbol allotted to the petitioner relating to 232 Binpur (ST) Assembly Constituency respondent No. 6 by his memo No. 436/Elec. dated 11-5-2001 informed the District Election Officer, Midnapore about such objection. It has been also alleged by respondent No. 6 that the petitioner has been unable to make out a case showing that the result of the said election relating to 232 Binpur (ST) Assembly Constituency was materially affected.
6. On perusal of the pleadings of the parties and the documents, the following issues have been framed for the purpose of trial of the instant election petition :--
1. Is the suit maintainable in its present form and frame?
2. Is the Returning Officer a necessary party in this suit?
3. Was the allotted symbol 'Jug' (Sl. No. 54) 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 (ST) Assembly Constituency void in terms of Section 100(1)(d)(iv) of the Representative 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 reliefs is the petitioner entitled?
Issues Nos. 1 and 2 :
7. Both the issues are taken up together for consideration for the sake of convenience and brevity.
8. Mr. Debashis Kar Gupta the learned Advocate for respondent No. 6 has assailed maintainability of the instant election petition because of misjoinder of party. He has argued that respondent No. 6 Mobaswer All Baidya who was the Returning Officer cannot be made party to the election petition since the relevant provisions under the Representation of the People Act (hereinafter referred to as the Act) do not permit joining of persons, as parties, other than those mentioned in Section 82 and Section 86(4) of the Act. Section 82 of the Act is quoted below ;
'Parties of the petition
A petitioner shall join as respondents to his petition -
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.'
9. Section 86(4) of the Act provides that any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
10. Mr. Kar Gupta has contended that the Returning Officer who is respondent No. 6 cannot come within the category of persons referred to in Section 82 and Section 86(4) of the Act and so he cannot be made party to the election petition. He has cited the case of Jyoti Basu v. Debi Ghosal reported in : [1982]3SCR318 and the case of Michael B. Fernandes v. C.K. Jaffar Sharief reported in : [2002]1SCR1053 in this regard.
11. In the case of Jyoti Basu : [1982]3SCR318 (supra) it has been specifically laid down by the Supreme Court at page 987 (para 9) that the contest of election petition is designed to be confined to the candidates at the election and all others are excluded and the ring is closed to all except the petitioner and the candidates at the election. Ithas been further held that only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) of the Act and no others. It has been specifically observed by the Supreme Court in the said case that however, desirable and expedient as it may appear to be. none else shall be joined as respondents. The said decision was followed in B. Sundara Rami Reddy v. Election Commission of India reported in 1991 AIR SCW 772 wherein it was reiterated that the concept of 'proper party' is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who are mentioned in Section 82 and Section 86(4) of the Act and no others.
12. Both the above noted two decisions of the Supreme Court had been followed in the case of Michael B. Fernandes : [2002]1SCR1053 (supra) where it was held that the public policy and legislative wisdom both point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4) and if persons other than those mentioned in Section 82 are permitted to be added as parties the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act. In the case of Michael B. Fernandes (supra) the Supreme Court did not interfere with the order of the High Court deleting party respondents, the Election Commissioner, the Returning Officer and the Chief Electoral Officer from the array of parties.
13. Relying on the above noted decisions of the Supreme Court Mr. Kar Gupta the learned Advocate for respondent No. 6 has submitted that the instant election petition must fail for misjoinder of the Returning Officer being respondent No. 6 as party to the election petition. He has cited the decision of the Supreme Court in Mohan Raj v. Surendra Kumar Taparia, reported in : [1969]1SCR630 wherein at page 681 (para 10) the Supreme Court observed as follows ;--
'It is argued that the Civil Procedure Code applies and Order 6, Rule 17 and Order 1, Rule 19 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this caseby ordering deletion of references to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the Court and OIR 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or Order 1. Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code appears subject to the provisions of the Representation of the People Act and any rules made thereunder (See Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.'
14. Mr. Sadhan Roychowdhury the learned advocate appearing for the petitioner has contended on the other hand that the objection raised by Mr. Kar Gupta as to maintainability of the election petition is wholly misconceived since Order 1, Rule 9 of the Code of Civil Procedure specifically lays down that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Mr. Roychowdhury has further pointed out Section 87(1) of the Act which provides that subject to the provisions of the Act and of any rules made thereunder, every petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suit. It has been argued by Mr. Roychowdhury that there is specific allegation in the election petition that statutory rules have been violated by the Returning Officer being respondent No. 6 and under Section 99 of the Act this Court at the time of making an order under Section 98 is bound to record the names of all persons who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice and in view of the proviso to Sub-section (1) of Section 99 of the Act, no such order fixing up responsibility upon the Returning Officer can be passed by thisCourt unless the said Returning Officer is before the Court and no fresh notice is necessary where such person is already a party to the election petition. Mr. Roychowdhury has further contended that the above noted decisions of the Supreme Court in the respective cases of Jyoti Basu : [1982]3SCR318 and Michael B. Fernandes (AIR 2002 SC 1941) (supra) are not applicable to the facts and circumstances of the present case and if the name of the Returning Officer is deleted at this stage it will create further complication and the deposition of the said Returning Officer already recorded in the instant proceeding cannot be relied on by this Court.
15. On hearing the rival contentions raised by Mr. Kar Gupta and Mr. Roychowdhury and considering the materials on record I am clearly of the view that the principles of law enunciated by the Supreme Court in the above noted decisions cited by Mr. Kar Gupta apply with full force to the case in hand. It is manifestly clear that the provisions under the Act do not permit joining of persons as parties to the election petition other than those mentioned in Section 82 and Section 86(4) of the Act and since the Returning Officer who is respondent No. 6 does not come within the ambit of Section 82 and Section 86(4) of the Act, he cannot be made party to the instant election petition which evidently suffers from the defect of misjoinder of respondent No. 6 as party thereto.
16. Now the question that crops up for consideration is whether or not the instant election petition as a whole is maintainable because of misjoinder of respondent No. 6 as party thereto. Relying on the decision of the Supreme Court in Mohan Raj : [1969]1SCR630 (supra) Mr. Kar Gupta has argued that since the special provisions as to addition of party to the election petition have been laid down in the Act itself the Court cannot use Order 6 Rule 17 or Order 1, Rule 10 of the Code of Civil Procedure to avoid any consequence because of non-joinder or mis-joinder of party to the election petition and for that reason the present election petition as a whole is not maintainable because of mis-joinder of respondent No. 6 as party to the election petition. Considering the points in controversy raised by Mr. Kar Gupta and Mr. Roychowdhury with regard to maintainability of the election petitioncarefully and judging the matter in the light of the principles of law enunciated by the Supreme Court in the above noted decisions cited by Mr. Kar Gupta I am of the view that had it been the case of non-joinder of necessary party to the election petition, the election petition as a whole would be not maintainable. The decision in Mohan Raj (supra) relates to non-joinder of a party which had no curative means to save the petition. But the same does not apply in case of misjoinder of parry. Since the present matter relates to mis-joinder of the Returning Officer being respondent No. 6 as party to the election petition such defect cannot entail dismissal of the election petition as a whole being not maintainable. It is noteworthy in this context that in the case of Jyoti Basu : [1982]3SCR318 (supra) the names of the appellants and the seventh respondent in the appeal were directed to be struck out from the array of parties in the election petition. Likewise in Michael B. Fernandes : [2002]1SCR1053 (supra), as already referred to, the Supreme Court did not interfere with the order of the High Court deleting the party respondents, the Election Commissioner, the Returning Officer and the Chief Electoral Officer from the array of parties.
17. For the reasons as aforesaid I am of the view that the respondent No. 6 being the Returning Officer cannot be made party to the instant election petition in view of the provisions of the Act as noted above and for that reason his name is directed to be struck out from the array of parties in the instant election petition. This election petition suffers from the obvious defect of misjoinder of party but the same as a whole cannot be said to be not maintainable because of such defect. Both issue Nos. 1 and 2 are thus disposed of.
18. Issue Nos. 3 to 6 :
All these issues being interlinked are taken up together for consideration for the sake of convenience and brevity.
19. By filing the election petition, the election petitioner Baburam Tudu has sought declaration that the election of the returned candidate being respondent No. 1 Shambhu Nath Mandi of 232 Binpur (ST) Assembly Constituency is void in terms of Section 100(1)(d)(iv) of the Act. He has sought other consequential relief as well. The grievance of the election petitioner is that thesymbol 'JUG' was allotted to him but on the date of election it was detected that the said allotted symbol 'JUG' did not appear in the voting machine and another symbol looking like a 'bottle' against the name of the election petitioner appeared there.
2O. The materials on record point out in unambiguous terms that the symbol 'JUG' was allotted to the petitioner Baburam Tudu who was one of the contesting candidates in the election in question. This fact has been admitted by the Returning Officer being respondent No. 6 who has been examined as R.W. 3. The answer given by respondent No. 6 (R.W. 3) to question No. 122 put in cross-examination by the learned advocate for the petitioner clearly reveals that. It is also an admitted fact that the symbol 'JUG' which was admittedly allotted to the petitioner Baburam Tudu is an authorised symbol being symbol No. 54 on page 36 of the booklet containing the election symbol 2001 issued by the Election Commission of India which is marked Ext. 4. It is not In dispute as well that the said allotted symbol 'JUG' of the petitioner Baburam Tudu was not reflected In the ballot paper marked Ext. 10. It is quite evident from Ext. 10 that another 'bottle' like symbol instead of the authorised and allotted symbol 'JUG' had been printed against the name of the petitioner in the ballot paper. It is the case of the petitioner that on the date of the election i.e. 10-5-2001 just after detection of the fact that the allotted symbol against the name of the petitioner was not in the voting machine the complaint was sent to the authorities.
20-A. Ex. B is the letter of complaint copy of which was admittedly received by the Returning Officer on 10-5-2001 at 11 a.m. In answer to question No. 110 put in cross-examination the Returning Officer Mobaswer All Baidya has admitted the same. It further transpires from the evidence of the Returning Officer that he informed his higher authority that the symbol was changed. This part of his evidence finds place in his answer to question No. 113 put in cross-examination.
21. Ext. 7 is Memo No. 436/Elec. Dated11-5-2001 addressed by the Returning Officer Mobeswer Ali Baidya to the District Election Officer, Midnapore intimating the latter that Baburam Tudu one of the contesting candidates in the said election hadraised an objection at about 10.30 A.M. on the date of poll that the Symbol 'Jug' allotted in his favour did not appear in the ballot papers on E.V.M. By the same memo the Returning Officer intimated to the District Election Officer, Midnapore that all the contesting candidates were asked to attend the sealing programme of E.V.Ms with ballot papers that continued from 3-5-2001 to 6-5-2001 but Sri Tudu did not attend the said programme even after notice. However, the bottle like symbol which appeared against the name of the petitioner Baburam Tudu in the ballot papers was reproduced by the Returning Officer in the said letter (Ext. 7) addressed to the District Election Officer, Midnapore.
22. From the above materials on record there can hardly be any room for scepticism that the symbol 'JUG' which was an authorised symbol and allotted to the petitioner Baburam Tudu was not reflected in the ballot paper nor the same did find place in the voting machine. Mr. Roychowdhury the learned advocate for the petitioner has pointed out paragraph 4 and paragraph 12(2) of the Election Symbols (Reservation and Allotment) Order, 1968. As per paragraph 4 of the said order in every contested election a symbol shall be allotted to a contesting candidate in accordance with the provisions of the said order and different symbol shall be allotted to different contesting candidates at an election in the same Constituency. Paragraph 12(2) of the said order authorises the Returning Officer to allot that symbol to the candidate convened. Mr. Roychowdhury the learned Advocate for the petitioner has contended that soon after knowledge of the fact that the allotted symbol against the name of the petitioner was not in the voting machine the Returning Officer was bound to postpone the election but the same was not done by him and the Election Commissioner was bound to declare the fresh election but the same had not been done by the Election Commissioner. He has further contended that in terms of Rule 49-B of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) it was incumbent upon the Returning Officer to check up whether the allotted symbol had been affixed in the voting machine or not but the Returning Officer in the present case had not performed this part of his duty. Mrs. Chandreyi Alam the learned Advocate for respondent No. 3 Chunibala Hansda who was also one of the contesting candidates in the said election has supported the above contention raised by Mr. Roychowdhury on behalf of the petitioner and argued that concept of symbol is very important in an election in democratic country like India since the symbol is the pictorial representation of a particular candidate and unless the said symbol is properly reflected in the ballot paper of a particular candidate the illiterate voters who intend to cast their vote in favour of that candidate cannot properly exercise their franchise. She has further argued that absence of a particular candidate or his election agent during the sealing programme of E.V.Ms, with ballot papers cannot exonerate the Returning Officer from his liability to verify whether the allotted symbol of a particular candidate was there in the voting machine or not since it was the statutory duty of the Returning Officer to do so.
23. Mr. Abhijit Gangapadhya the learned Advocate for the returned candidate respondent No. 1 has drawn my attention to the fact that the election petitioner has prayed for declaring the election to be void in terms of Section 100(1)(d)(iv) of the Act and the onus in such case heavily lies on the election petitioner to prove : (i) that there is any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act and (ii) that the result of the election, in so far as it concerns the returned candidate has been materially affected thereby. He has further argued that no particulars have been given in the election petition from which it can be held that the result of the election in so far as it concerned the returned candidate had been materially affected and even in the election petition it has not been pleaded that if the symbol allotted to the petitioner which was the 'Jug' was reflected in the voting machine how many valid votes could have been secured by the election petitioner nor it has been pleaded by the petitioner in the election petition in how many voting machines the symbol 'Judge' was not printed and whether any of the Polling Agents of the petitioner present in the polling booth reported any such discrepancy. He has drawn my attention to the relevant part of the evidence of the petitioner (PW 1) in answer to question Nos. 62 and 63 wherefrom it appears that the petitioner (PW 1) could not say how many Polling Agents were appointed by him nor could he recall the name of any of the Polling Agents. Mr. Gangapadhya has further pointed out that the petitioner himself contested the election and also cast his vote and immediately before commencement of the poll the Polling Agents of the election petitioner did not raise any objection when the Presiding Officers of the Polling Stations showed the voting machine to them according to Rule 49-E (2) of the Rules.
24. Now the crucial question which crops up for decision is whether or not there are convincing materials to indicate that the result of the election in so far as it concerned the returned candidates being respondent No. 1 had been materially affected by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act so as to attract the provisions of Section 100(1)(d)(iv) of the Act. From the materials on record I find that the returned candidate respondent No. 1 Shambhu Nath Mandi got 47,132 votes, Singh Sahadav got 2740 votes, respondent No. 3 Chunibala Hansda got 37,680 votes, the petitioner Baburam Tudu got 9021 votes, Baidyanath Tudu got 1260 votes and Somay Kisku got 2308 votes in the said election. This is an admitted fact which none can dispute. It is quite evident therefrom that the difference in number of votes between the return candidate respondent No. 1 and the petitioner was quite large. Even the difference in number of votes between the returned candidate who secured the largest number of votes and respondent No. 3 Chunibala Hansda who was the nearest candidate was more than nine thousand. It is gathered from the evidence of respondent No. 1 Shambhu Nath Mandi (RW 2) that he contested the election in 1977, 1982 and 2001 and won the same on those three occasions. This fact is not disputed by the petitioner. The petitioner has taken a plea that had he been allotted his original symbol 'Jug' he would definitely have won the election. Mr. Roychowdhury the learned Advocate for the petitioner has drawn my attention to the answers given by the petitioner (PW 1) to question Nos. 31, 32 and 33 in the course of his evidence wherefrom it appears that the petitioner has stated that when it was detected that the symbol allotted to him was not found in the voting ma-chine a complaint was immediately lodged and the process of election was stopped at several places and some machines were also broken by the affected members and being agitated for the reason that the symbol could not be found in the voting machine, the members did not cast their vote, made protest, and felt deeply aggrieved and the process was thwarted following such discovery. PW. 1 has further stated that he was badly affected by this discrepancy and the election could not be carried or smoothly although the administration continued with the election process. It is curious to note that such material facts introduced in the evidence have not been stated in the election petition. Respondent No. 3 Chunibala Hansda (RW 1) who was one of the contesting candidates and could not win the election has stated in answer to question Nos. 17 and 18 in the course of her evidence that as a result of the change of symbol there were disturbances and confusion and some people were going away saying that the process of voting was stopped and the people could not cast their votes. But it is significant to note in this context that both the petitioner Baburam Tudu (PW. 1) and respondent No. 3 (RW 1) cast their own vote in the said election. Respondent No. 6 Mobaswer Ali Baidya (RW 3) has proved the relevant document marked Ext. 8 and specifically stated in answer to question No. 19 that Baburam Tudu did cast his vote. Serial No. 867 in the list of voters marked Ext. 8 as pointed out by respondent No. 6 in his evidence bears testimony to that.
25. Mr. Gangapadhya the learned Advocate for respondent No. 1 has cited the decision of the Supreme Court in Jabar Singh v. Genda Lal reported in : [1964]6SCR54 , it has been laid down by the Supreme Court that in dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d). it would be noticed that what the election petition has to prove is not only the existence of one or the other of the grounds specified in Clauses (1) to (iv) of Section 100(1)(d) but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns the returned candidate has been materially affected. It has been further held by the Supreme Court in the said case that what the Tribunal has to find is whether or notthe election in so far as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is : has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case.
26. The words 'the result of the election has been materially affected' were interpreted by the Supreme Court in Vashist Narain Sharma v. Dev Chandra. : [1955]1SCR509 the Supreme Court held that those words indicated that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. At page 516 (para 11) of the said case the Supreme Court observed as follows :--
'It is impossible to accept the 'ipse dixit' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the Legislature to consider.'
27. The decision of the Supreme Court in Vashist Narain Sharma's case : [1955]1SCR509 (supra) was followed in Paokai Haokip v. Rishang. reported in : [1969]1SCR637 the Supreme Court observed as follows :--
The evidence in this case which has been brought by the election petitioner is the kind of evidence which was criticised by this Court. Witnesses have been brought forward to state that a number of voters did not vote because of the change of venue or because of firing and that they had decided to voteen bloc for the election petitioner. This kind of evidence is merely an assertion on the part of a witness, who cannot speak for 500 voters for the simple reason that as this Court said the casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates.'
28. In the case of Paokai Haokip : [1969]1SCR637 (supra) the question arose if witnesses could not be relied upon, in what manner the election petitioner could discharge the burden. Referring to the decision in Vashist Narain Sharma's case (supra) the Supreme Court made the following observation in the concluding paragraph 12 at page 667 :--
'In. our opinion, the decision of the learned Judicial Commissioner that the election was in contravention of the Act and the Rules was correct in the circumstances of this case; but that does not alter the position with regard to Section 100(1)(d)(iv) of the Act. That section requires that the election petitioner must go a little further and prove that the result of the election had been materially affected. How he has to prove it has already been stated by this Court and applying that test, we find that he has significantly failed in his attempt and therefore the election of the returned candidate could not be avoided. It is no doubt true that the burden which is placed by law is very strict; even if It is strict it is for the Courts to apply it. It is for the Legislature to consider whether it should be altered. If there is another way for determining the burden, the law should say it and not the Courts. It is only in given instances that, taking the law as it is, the Courts can reach the conclusion whether the burden of proof has been successfully discharged by the election petitioner or not. We are satisfied that in this case this burden has not been discharged. The result is that the appeal must succeed and it is allowed.'
29. In Shiv Charan Singh v. Chandra Bhan Singh reported in : [1988]2SCR713 the Supreme Court observed that it was not possible to forecast how many and in what proportion the votes would have gone to one or the other remaining candidates and in what manner the wasted votes would have been distributed among the remaining contesting candidates and in this view the result of the returned candidate could not be declared void on the basis of surmises and conjectures.
30. Mr. Gangapadhya the learned Advocate for respondent No. 1 has pertinently cited the decision of the Supreme Court in S.N. Balakrishna v. Fernandez reported in : [1969]3SCR603 the Supreme Court held as follows :--
'In our opinion the matter cannot be considered on possibility. Vashist Narain's case insists on proof. If the margin of votes were small something might be made of the point mentioned by Mr. Jethamalani. But the margin is large and the number of votes earned by the remaining candidates also sufficiently huge. There is no room, therefore, for a reasonable judicial guess. The law requires proof. How far that proof should go or what is should contain is not provided by the legislature. In Bashist's case, : [1955]1SCR509 and in Inayatullah v. Diwanchand Mahajan, (1958) 15 Ele LR 219 at pp. 235-236 (Madh Pra) the provision was held to prescribe an impossible burden. The law has however remained as before. We are bound by the rulings of this Court and must say that the burden has not been successfully discharged.'
31. Applying the principles of law laid down by the Supreme Court in the above noted decisions to the facts and circumstances of the present case I am clearly of the view that the present petitioner has failed to discharge the onus of proving that the result of the election in so far as it concerned the returned candidate being respondent No. 1 was materially affected.
32. Mr. Roychowdhury the learned Advocate for the petitioner has argued that improper rejection of nomination paper is itself a ground for declaring the election to be invalid and consequently void. He has cited the case of Mahadeo v. Babu Udai Partap Singh reported in : [1966]2SCR564 and the case of Viveka Nand Giri v. Nawal Kishore Sahi reported in : [1984]2SCR558 in this regard.
33. No doubt the principles of law enunciated by the Supreme Court in the above noted two cases cited by Mr. Roychowdhury are well settled. In my view the said two decisions of the Supreme Court cannot helpthe case of the petitioner in any manner whatsoever. In the case of Mahadeo (supra) the election petitioner failed to prove that non-compliance with the rule materially affected the election and so the election was not set aside. In the case of Viveka Nand Giri (supra) the rejection of the nomination paper of the candidate for election on the ground of difference in the age in the electoral roll and the nomination paper had been declared to be improper as the defect was not of a substantial character and consequently the election of the returned candidate concerned was declared to be void under Section 100(1)(c). It has been rightly argued . by Mr. Gangapadhya the learned advocate j for the returned candidate that in the ! present case it cannot be said by any stretch of imagination that the nomination paper of the petitioner was improperly rejected nor any such case was pleaded by the petitioner and so there was no question of proving the same. This contention raised by Mr. Gangapadhya has got considerable force. Since no case of improper rejection of the nomination paper was pleaded by the petitioner who has prayed for declaring the election to be void under Section 100(1)(d)(iv) of the Act, no question of implied rejection of the nomination paper of the petitioner as argued by Mr. Roychowdhury can arise in such case.
34. Mr. Roychowdhury has contended that in the case in hand the petitioner has been deprived of his right to contest the election in accordance with the provisions of the Act and the Rules and thereby Art. 14 of the Constitution of India has been violated. He has cited the case of Hari Shankar Jain v. Sonia Gandhi reported in : AIR2001SC3689 the Supreme Court held that a plea as to constitutional validity of any law could in appropriate cases, also be raised and heard in an election petition where it was necessary to decide the election dispute. Since no plea as to constitutional validity of any law has been raised by the election petitioner and no violation of Article 14 of the Constitution of India is discernible in the case in hand, I find that the contention raised by Mr. Roychowdhury has got no basis at all.
35. For the foregoing reasons I hold that the election petitioner has failed to discharge the onus of proving that the result of theelection of 232 Binpur (ST) Assembly Constituency in so far as it concerned the returned candidate being respondent No. 1 had been materially affected. So the election of the returned candidate cannot declared to be void.
36. All these issues are accordingly disposed of.
The election petition filed by the petitioner Baburam Tudu is accordingly dismissed.
There will be no order as to costs.
Xerox certified copy of the judgment, if applied for, be given to the parties after observing the required formalities as expeditiously as possible.