SIMANCHALDIGAL Vs. GUNIN HAZARIKA

JUDGEMENT

(1.) Defeated at the hustings, by what the petitioner perceives to be a narrow margin of 536 votes, the instant election petition has been filed for a declaration that the election of the respondent No.1 from No.89 Kaliabor Legislative Assembly Constituency (herein after referred to as the Constituency) is void and illegal. A further declaration that the petitioner is the duly elected candidate having secured the majority of valid votes polled has also been prayed for in the present election petition.

(2.) The pleadings of the respective parties may be set out at the first instance. According to the election petitioner as per the schedule of the election notified by the Election Commission of India, polling for the constituency was held on 10.5.2001. Counting of votes commenced at about 8/9 AM. on 13.5.2001 in the premises of Kaliabor College, counting was completed at about 8.30 PM and the result was formally announced at about 0015 Hrs of 14.5.2001. According to the election petitioner while he secured a total of 31757 valid votes polled, the respondent No.1 secured 32293 votes thereby defeating the election petitioner by a margin of 536 votes. According to the election petitioner the result of the election was materially affected by the improper reception of votes in favour of the respondent No.1 though such votes were cast in favour of the election petitioner. Furthermore, according to the election petitioner the result of the election has also been materially affected by the rejection of valid votes cast in favour of the election petitioner. The case of the election petitioner, therefore, is that the result of the returned candidate is void under the provisions . of section 100(1) (d) (iii) of the Representation of the Peoples Act, 1951. The specific pleadings of the election petitioner, as contained in the election petition, is that counting of votes was held in two Halls, i.e. Hall No.1 and Hall No.2. Hall No.1 measured 20 x 25 feet whereas Hall No.2 measured about 20 x 50 feet. A eight feet high wire fencing was erected separating the actual counting arena carving out a narrow four feet corridor which was meant for the Counting Agents of the respective candidates. While there were six counting tables and two additional tables meant for the ARO and the Returning Officer in Hall No.1 there were fourteen counting tables with two additional tables meant for the ARO and the Returning Officer in Hall No.2. According to the election petitioner the arena/corridor earmarked for Counting Agents was small and congested. While the election petitioner was allowed to appoint only one Counting Agent for each table, the returned candidate had appointed a total of sixty Counting Agents. Alongwiththe Counting Agents of the other candidates, a huge number of Counting Agents made effective supervision of the counting process by the Counting Agents of the petitioner difficult. Due to congestion and the small area allotted to the Counting Agents, the Counting Agents of the election petitioner could not effectively oversee the counting and perform their duties.

(3.) Insofar as the actual process of counting is concerned it has been pleaded by the election petitioner that in Hall No.1 in Table No.3, in the first round of counting, the ballot papers of No.3 Darigaji Nimna Buniadi School were taken up for counting. One Abu Sidik was the Counting Agent of the election petitioner on the said table No.3. According to the election petitioner, a total of 570 votes were cast in his favour. Fifteen ballot papers clearly marked in his favour were treated as rejected ballots by the Returning Officer. The election petitioner has further alleged that 10/12 bundles of 50 ballot papers each marked in his favour were put in the compartment of the counting tray meant for the returned candidate. Furthermore, according to the election petitioner 556 votes shown to have been cast in favour of the returned candidate were actually received by the election petitioner and ought to have been counted in his favour. Similarly 144 votes shown in the final result to have been secured by the election petitioner were actually received by the returned candidate and ought to have been counted in favour of the returned candidate. On the aforesaid basis the election petitioner has contended that 427 valid votes cast in his favour were excluded whereas 412 votes were illegally counted in favour of the returned candidate. In the pleadings contained in the election petition it has been averred that similar attempts had been made by the Counting Agents of the returned candidate in connivance with the Counting Staff on duty to count bundles of 50 ballot papers each cast in favour of the election petitioner, in the name of the returned candidate but such attempts did not materialize due to the vigilance of the Counting Agents of the election petitioner and the aforesaid attempted process was stopped by timely intervention.