BABURAM TUDU Vs. SHAMBHUNATH MANDI

JUDGEMENT

(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' 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 list of 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 votes 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 Tadu (Petitioner) got 9021 votes, Baidyanath Tudu got 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:

(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 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 10th 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 may 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 by 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.