BORGARAM DEURI Vs. PREMODHAR BORA

JUDGEMENT

(1.) The election of the respondent No. 1 to the Legislative Assembly of the State of Assam from the No. 109 Bihpuria Legislative Assembly Constituency in the election held on 10-5-2001 has been called into question by means of the present election petition. The notification calling upon the electors of all the Assembly Constituencies of the State including the No. 109 Bihpuria Legislative Constituency was issued on 16-4-2001 pursuant whereto as many as 9 (nine) candidates including the election petitioner and the respondent No. 1 filed their nominations from the constituency in question. The poll was held on 10-5-2001 and the counting of votes commenced from 13-5-2001. At the end of the counting, the petitioner having secured 1272 votes less than the respondent No. 1, the Returning Officer declared the respondent No. 1 to be duly elected from the said constituency. Aggrieved, the instant election petition has been filed.

(2.) The case of the election petitioner as unfolded by the pleadings on record would go to show that the election of the returned candidate has been challenged on a number of grounds. The commission of corrupt practice under Section 123 (3) and (3A) of the Representation of the People Act, 1951 by the returned candidate as well as his agents with the knowledge and consent of the returned candidate has been alleged by the election petitioner. The commission of corrupt practice of bribery within the meaning of Section 123 (1) of the Act by the respondent No. 2, another candidate in the fray, as well as the commission of corrupt practice of Booth Capturing within the meaning of Section 123(8) of the Act has also been alleged. Anomalies in the counting of votes resulting in improper reception of votes in favour of the returned candidate thereby materially affecting the result of the election is another ground of challenge in the present election petition. Coming to the specific pleadings advanced by the election petitioner, it is noticed that in so far as the commission of corrupt practice under Section 123 (3) and (3A) of the Act is concerned, three specific instances have been cited in the election petition. In a meeting held on 25-4-2001 at the Rang-Manch at Santapur Panch-Ali, the election petitioner as also two of his agents Sri Monoranjan Sarma and Sri Ghana Kanta Baruah, are alleged to have delivered speeches urging the voters not to vote for the election petitioner and the other tribal candidates and instead, to vote for the returned candidate on the ground that as the constituency had been represented on two earlier occasions by tribal candidates, if a tribal candidate is to be returned once again, the constituency will become a tribal/reserved constituency and the general category people would come under the subjugation of the tribals. The two agents of the returned candidate i.e. Sri Monoranjan Sarma and Sri Ghana Kanta Baruah are alleged to be the office bearers of an organisation called "Sadharan Jati Bikash Parishad", which was dedicated to the anti-tribal cause. The said organisation represented by the said two agents as aforesaid, openly declared its support for the returned candidate. Similar speeches urging the voters not to vote for the election petitioner and other tribal candidate were alleged to have been made by the election petitioner along with the aforesaid two agents in a meeting held at Raidangia Namghar on 1-5-2001 at about 1.00 p.m. as well as in a meeting held in the bazar area of the Bihpuria town on 7-5-2001. In the election petition, it is further alleged and pleaded that Yarn and Spray Machines were distributed by the agents and workers of the respondent No. 2 who was sponsored in the election by the Asom Gana Parishad so as to induce the voters to vote for the Asom Gana Parishad. It is further alleged that on 10-5-2001 at about 10.30 a.m., one Jagannath Doley, a leader of the Asom Gana Parishad, assaulted and intimidated the voters who had assembled in front of Polling Station No. 87 (Dikrongmukh L.P. School) to cast their votes as a result of which assault and intimidation, one Bapuram Tayeng, a Congress worker, was seriously injured and the said person along with many others could not cast their votes. The commission of corrupt practice within the meaning of Section 123(8) of the Act has been pleaded on the aforesaid basis. The election petitioner has further pleaded that on the date of counting of votes i.e. 13-5-2001, large scale anomalies had taken place as a result of which many ballot papers marked in favour of the election petitioner, were counted in favour of the returned candidate. Complaints were lodged in this regard before the Returning Officer which were enclosed to the election petition and subsequently, exhibited in the course of the trial of the case as Ext. P/4 and Ext.P/5.

(3.) The respondent No. 1 i.e. the returned candidate has contested the claims made in the election petition by filing a written statement. According to the respondent No. 1, the allegations made in the election petition are false and incorrect and none of the incidents as alleged, had occurred. The returned candidate, therefore, contended that his election is valid and no declaration to the effect that the said election is void, as prayed for, is liable to be issued by this Court. The respondent No. 2 in spite of receipt of notice has chosen not to contest the proceedings.