NARENDRA CHANDRA PRADHAN Vs. RAGHU ROUT

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution seeking to revise the order of an Election Tribunal refusing to set aside the election of opposite party No. 1. The petitioner and 4 others were candidates tor election as Commissioner of the Cuttack Municipality from Ward No. XVII. Opposite party No. 1 was declared elected having secured the largest number of votes. The petitioner's case is that opposite party No. 2 Bishnu Charan Mukherji was disqualified for standing as a Councillor and that the Election Officer improperly accepted his nomination paper. It is contended that if this irregularity had not been committed by the Returning Officer, the petitioner would have secured the largest number of votes and would have been elected. The petitioner, therefore, prayed that the election of the opposite party No. 1 may be set aside and that he himself be declared elected.

(2.) THE Election Tribunal held that opposite party No. 2 was disqualified on the date f his nomination as a candidate but also held that the improper acceptance of his nomination paper did not materially affect the result of the election. The petition of the unsuccessful candidate Shri Narendra Chandra Pradhan was accordingly dismissed.

(3.) THE petitioner's contention is that if the non -compliance with the Act has been established, it is for the successful candidate to prove that the result of the election has not been materially affected thereby while the stand taken by the successful candidate is that the petitioner must show not only that there was a non -compliance with provision of the Act but that there was no real electing at all. In other words, the Tribunal should be satisfied that the constituency had not in fact had a fair and free opportunity of electing a candidate by a majority vote. If the Tribunal is satisfied that notwithstanding the irregularity in the election proceedings there was a free and fair election and that every candidate was allowed to take his chance, the existence of any irregularity would not entitle the Tribunal to declare the election void. The question, therefore, is what is the true statement of the rule under which an election may be avoided. The Tribunal after recording evidence held that the petitioner would not have secured a majority of votes even if opposite party No. 2 had not entered the field. It also held that the onus of proving that the election had been materially affected by the improper acceptance of the nomination of opposite patty No. 2 rested upon the petitioner which he had failed, to discharge.