SAYED MUSTAFIZ AHMED Vs. SAMIR DEY

JUDGEMENT

(1.) In this election petition filed under S.81 of the Representation of the People Act, 1951 (hereinafter called the 'Act') the petitioner has prayed for inspection and recounting of all used ballots and to declare the election of the returned candidate, respondent No. 1 to be void and to declare the petitioner to have been elected. This petition relates to election to No. 44 Cuttack City Assembly Constituency which took place on 9-3-1995 and the counting took place on 11-31995 and 12-3-1995. Respondent No. 1, who was contesting as a candidate of Bharatiya Janata Party was declared elected having secured 61,299 votes, the petitioner who was contesting on behalf of Janata Dal, secured 40,496 votes, whereas the respondent No. 2 contesting as a candidate of Indian National Congress (I), secured 37,155 votes. The Eleven other candidates had contested but except respondent No. 1, all other respondents have been set ex parte, some after filing the written statement and others at the threshold.

(2.) The main ground of attack of the petitioner is on the basis that the result of the election has been materially affected due to improper acceptance of invalid rejected votes in favour of respondent No. 1 and improper rejection of valid votes in favour of the petitioner. The petitioner has asserted that at the place of counting the instruction regarding lay out of the counting hall as per the provisions contained in Annexure-XXXIV of the Hand Book has not been followed while placing the counting tables and because of irregular placing of tables the counting was not properly done and the counting agents of the petitioner faced difficulty in watching counting of votes. It is specifically alleged that barricades had not been provided around the counting tables, as a result of which counting agents of respondents Nos. 1 and 2 were very often handling the ballot papers which substantially affected fair and accurate process of counting. It is further alleged that in violation of Rule 53, many outsiders mostly the supporters of Bharatiya Janata Party and Indian National Congress (I) unauthorisedly entered inside the counting hall between 9 a.m. to 10 p.m. on 11-3-1995 and created chaotic situation which caused hindrance at the time of counting of votes. The counting started at 8 a.m. on 11-3-1995 and continued till 11.30 a.m. on 12-3-1995 and during such long hours of counting, the counting officials were overworked and tired and all of them carried on counting hastily and rapidly resulting is wrong counting of votes and the votes which should have been counted in favour of the petitioner were erroneously counted in favour of respondent No. 1 and the votes which should not have been counted in favour of respondent No. 1 were counted in his favour, materially affecting the result of the election. It is further alleged that on 12-3-1995 at about 6 a.m. the Assistant Returning Officer announced suspension of counting for two hours to enable the counting staff and counting agents to refresh themselves and though the counting was suspended, the Returning Officer did not comply with Rule 60 and did not keep the ballot paper boxes and other papers sealed and did not take sufficient precaution for safe custody. Moreover, though the counting was to recommence at 8 a.m., but when the counting agents come to the counting hall they found that the counting had been resumed one hour earlier at 7 a.m. and such counting of votes in the absence of the counting agents of the petitioner is improper and erroneous and has materially affected the result of the election. It is further stated that though Sri Pratap Satpathy, one of the counting agents of the petitioner is got written protest, the Assistant Returning Officer refused to receive the same. It is further alleged that as 261 polling booths had been established, ordinarily 261 ballot boxes were to be utilised, but it was found on the counting tables that in fact 267 ballot boxes were brought for the purpose of counting. The Asstt. Returning Officer told that six additional ballot boxes had been used. It is claimed that the provisions in Chapters VIII and XXII of the Hand Book containing the instructions and guidelines regarding the use of additional ballot boxes had not been followed, and while the additional boxes were opened, the ballot paper account in Form 16 in support of the additional boxes were available. It is further claimed that the Presiding Officers of the respective booths where additional boxes had been used did not give the polling agents of the petitioner, the copies of Form 16 in respect of such additional boxes and in the absence of such Form 16, the details regarding the number of ballot papers received and used in those ballot boxes could not be ascertained and the ballot papers found from such additional boxes could not be checked up to find out the correctness and accuracy of the number of votes really polled. This has marked the process of election. It is further asserted that in none of the additional boxes, genuine electors have voted and the additional boxes in fact contained spurious ballot papers which were improperly counted as valid votes, materially affecting the result of the election. It is further asserted that in respect of booths Nos. 42, 79 and 124, the corresponding ballot papers account contained in Form 16 were not found and the ballot papers found from the three boxes were improperly and illegally counted despite the protest of the counting agents of the petitioner. It is claimed that the copies of the ballot paper account in Form 16 relating to the aforesaid three polling booths had not been given by the respective Presiding Officers to the counting agents of the petitioner. In the absence of Form 16 it was not possible to ascertain about the genuineness of the ballot papers and ultimately the result of the election has been materially affected. It is further alleged that though an application was filed, the certified copies of the Diaries of the Presiding Officers were not granted, thus preventing the petitioner from ascertaining about the truth or otherwise of the use of additional ballot boxes and details relating to polling booths of 47, 79 and 124. The petitioner was also not supplied with the certified copy of Form 16 relating to the booths Nos. 47, 79 and 124, but he was supplied with the xerox certified copies of the notings of the Counting Supervisor in respect of the three polling booths. It is further claimed that on the date of polling the respective Presiding Officers did not give copies of Form 16 to any polling agents. It is claimed that counting of votes on the basis of the report of the Counting Supervisor which was subsequently prepared was illegal, improper and has materially affected the result of the election. It is claimed that at the time of actual counting of ballots candidate-wise, in many of the bundles of the petitioner instead of keeping 25 ballots in a bundle as per the instruction, in fact one or two ballots were kept and such illegality has occurred in 790 bundles of the petitioner wherein one or two extra ballots had been kept as a result of which the petitioner has lost 1099 votes and if such votes are counted in his favour, the petitioner would secure more votes than respondent No. 1. It is claimed that in spite of oral report of the agents of the petitioner, the counting officials did not rectify the mistakes and in the petition for recounting filed before the Returning Officer on 14-3-1995, such illegality was highlighted. It is further claimed that in order to make up the short fall which would have otherwise occurred by the aforesaid illegal counting, one or two less votes were kept in the bundles meant for respondent No. 1 and by such process the respondent No. 1 has been credited with 1099 extra votes. It is claimed that if recounting is done, 1099 votes should be credited to the petitioner and 1099 votes should be debited from the number counted in favour of respondent No. 1. It is further asserted that except in Table Nos. 6, 9 and 13, the trend of counting was in favour of the petitioner but due to manipulation and interference in the process of counting by the counting agents of respondent No. 1, there was improper, irregular and incorrect counting in Table Nos. 8, 9 and 13, materially affecting the result of the election. It is claimed that during 8th round of counting in Table No. 7, it was detected that one bundle of ballot papers containing 25 votes in favour of the petitioner was missing. When the matter was brought to the notice, the counting was stopped for sometime but the missing ballots could not be traced out and only the remaining 975 ballots in the said round of counting were counted. It is claimed that in view of such illegal and improper counting, the petitioner has lost 25 valid votes. It is claimed that counting agents of the petitioner offered a written application 12-3-1995 at about 8 p.m. before the result of election had been duly declared indicating some of the irregularities and illegalities committed during the counting. The Asstt. Returning Officer who was present, refused to accept the same. Subsequently, on 12-3-1995 the counting agents of the petitioner went to the office of the Returning Officer-cum-Sub-Collector at 10 a.m. and handed over the petition to the Returning Officer when the latter arrived at 12.20 p.m. It is claimed that without giving an opportunity of hearing, the said application was rejected. It is claimed that after the completion of polling, as per the opinion collected from the Presiding Officers by the Returning Officer, it was calculated and found that 1,20,340 voters had cast their vote and the said figure was released to the press by the Returning Officer and was published in local newspapers, but mysteriously after the completion of counting and declaration of result it was found that the total number of votes polled was 1,29,690 and not 1,28,148 as earlier reported. It is claimed that this anomalous position in the number of votes polled, clearly indicates about the illegal and improper counting. It is further claimed that the total number of ballot papers found in the ballot boxes did not tally with the total numbers as indicated in the ballot paper account is Form 16 thus vitiating the counting process. In view of all the aforesaid illegalities in the process of counting, it is claimed that the result of election has been materially affected.

(3.) Respondent No. 1, the successful candidate has filed written statement, denying the allegations made in the election petition. He has denied the allegations regarding the violation of the provisions relating to counting. His stand is that there was no error or illegality at the time of counting and the allegations in the election petition are after thoughts. He had also filed a recrimination petition under S. 97 of the Act which has been rejected by Hon'ble Mr. Justice D. P. Mohapatra (as his Lordship then was) by order dated 25-9-1995. It is no longer necessary to refer to the allegations made in the recrimination petition.Respondent No. 3 though filed written statement, has been set ex parte subsequently. It is unnecessary to refer to the averments made in the written statement. As already indicated all other respondents were set ex parte.