SUSHILA BALRAJ Vs. ARDHENDU BHUSHAN

JUDGEMENT

(1.) This appeal by special leave arises out of an election petition filed by the Respondent Ardhendu Bhushan challenging the validity of the Appellant's election on behalf of the Nagpur Constituency for the State Assembly of Maharashtra. The election in question was held on February 25, 1962. Besides the Respondent, six other candidates had offered themselves for election. The counting of votes began on February 26, 1962 and the results were declared the next day. The Appellant was declared elected by a margin of 158 votes over the Respondent's. Thereafter, the Respondent filed the present election petition on the 9th April, 1962. He alleged that the Appellant had been guilty of corrupt practices and, therefore, claimed that her election should be declared void. In support of this claim, the Respondent made several allegations. He also alleged that some ballot-papers had been improperly received; in some cases, minors were allowed to vote and there were cases of impersonation as well. At the time of the actual counting of the votes, several irregularities are alleged to have been committed and that, according to the Respondent, vitiated the final declaration about the Appellant's election. In this connection, the Respondent averred that during the period that the counting of votes continued, electric lights had failed for about an hour and that introduced confusion in counting. On these allegations, the Respondent urged that if a proper count was made, he would be entitled to a declaration that he was duly elected on behalf of the said constituency. Thus, the petition filed by the Respondent claimed a declaration that the Appellant's election was invalid and asked for a further declaration that he was duly and validly elected.

(2.) To this petition, the Respondent imp leaded the Appellant and the other candidates who had offered their candidature at the said election. The Appellant disputed all the allegations made by the Respondent and urged that the election had been properly conducted, that she was not guilty of any corrupt practice, that the counting of votes had been properly made and no other irregularity had crept in that behalf. Two of the candidates who had been imp leaded as Respondents to the petition, Waman Narayan Chavan and Govind Gopal Bhamburkar supported the Respondent's case in so far as it challenged the validity of the Appellant's election. They, however, disputed the Respondent's contention that he should be declared to be duly elected. The other candidates who had been imp leaded did not support the Respondent in respect of either of the claims made by him. In regard to the corrupt practices alleged by the Respondent, they denied all knowledge.

(3.) It appears that the present petition had unfortunately a somewhat chequered career. The Election Commission before which the petition was filed by the Respondent, first appointed Mr. Bhupali, the District Judge of Nagpur, as the Election Tribunal under Section 86 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). Under Section 88 of the Act, the Election Commission fixed Nagpur as the place where the election petition had to be tried. This order was passed on June 5, 1962. Mr. Bhupali held the first hearing of the petition on June 16, 1962. Thereafter, Mr. Bhupali was transferred from Nagpur and, in consequence, the Election Commission appointed Mr. Hadole, the District Judge at Nagpur, to try this petition. The first hearing of the petition took place before Mr. Hadole on August 9, 1962. Later, Mr. Hadole for reasons which are not apparent on the record, resigned his commission, and so, the Election Commission appointed Mr. Hussain, District Judge, Bhandara, to fill the vacancy under Section 86(4) of the Act. The notification in that behalf was issued on the 25th August, 1962. This notification notified Bhandara as the place where the trial of the petition was to take place. Before Mr. Hussain several hearings took place, and while the Election Petition was making progress, the Respondent was detained by the State Government under the Defence of India Rules on November 7, 1962. On January 25, 1963, the case became ripe for settling the date for recording evidence, and February 18, 1963, was accordingly fixed in that behalf. Thereafter, the Respondent asked for several adjournments and they were granted by the Tribunal in order to accommodate him and afford facilities for leading his evidence. This became necessary, because the Respondent suffered from the handicap that he had been detained under the Defense of India Rules, 1962. Ultimately, when the case was finally fixed for hearing on the 23rd September, 1963, the Respondent applied for another adjournment. The Tribunal, however, felt that it would be improper to allow another adjournment when on the earlier occasion, the Tribunal had fixed the date of hearing as 23rd September, 1963 on the distinct understanding that on that date the Respondent would lead his evidence. After the application for adjournment was thus rejected by the Tribunal, the Respondent moved the Tribunal again on September 24, 1963 for reconsidering its decision and when that was rejected, the Respondent did not proceed to give evidence, and, ultimately, the application had to be dismissed for non-prosecution on the same date. That is how the Respondent's election petition came to be dismissed.