MAZIBUR RAHMAN Vs. SALMA JESMIN

JUDGEMENT

(1.) By this application, the applicant, under Order 6 Rule 16 of the Code of Civil Procedure (CPC), has prayed for striking out the pleadings in the election petition as well as for rejection of the same for want of cause of action, under Order 7 Rule 11 CPC. The opposite party No.1 (herein after referred to as the election petitioner) has filed the election petition under Section 80, 80A read with Section 81 of the Representation of People Act, 1951 (in short the 1951 Act) calling in question the election of the applicant (herein after referred to as the returned candidate) to the Legislative Assembly of the State of Assam from No.85 Rupahihat Legislative Assembly Constituency, result of which was declared on 31.05.2011, on the ground that the result of the election, in so far as it concerns the returned candidate, has been vitiated by discrepancies, incorrect totaling at the time of counting of votes, malfunctioning of control unit of electronic voting machines (EVM) of Polling Station No.6, non-closure of control unit of the EVM of Polling Station No.43 after completion of poll, amounting to noncompliance of the provisions of 1951 Act and the Conduct of Election Rules, 1961 (in short the 1961 Rules) and improper rejection of 18 postal ballots, thereby constituting the grounds for declaring the election of a returned candidate void within the meaning of Section 100(1)(d)(iii) & (iv) of the 1951 Act.

(2.) The election petitioner has pleaded the aforesaid grounds in paragraph No.5 of the election petition, elaborating the same in the other paragraphs of the election petition. In paragraph 6 the election petitioner has pleaded the violation of the provisions of 1951 Act as well as the 1961 Rules in the matter of counting of postal ballots contending that at the time of counting the rejected postal ballots were not separately bundled for sealing and neither the election petitioner nor her election agent or any of the counting agent of the election petitioner was asked to put their seal in the rejected postal ballots, thereby violating the provisions in Rule 54A of the 1961 Rules. It has also been pleaded that though at the end of the counting of the postal ballots, only 1(one) postal ballot was declared to have been rejected by the Returning Officer, while preparing the Form No.20, prior to declaration of the result, the election petitioner was told by the Returning Officer that 19 postal ballots were rejected and those were found to be recorded as tender votes in final Form 20 issued by the Returning Officer, thereby violating the Rule 42 of the 1961 Rules. The election petitioner, therefore, has pleaded that though only 1(one) postal ballot was declared to have been rejected, 19 postal ballots eventually found to be rejected by the Returning Officer as reflected in the Form 20.

(3.) In paragraph 7 of the election petition it has been pleaded that while the first round of counting was going on in table No.6, the EVM of Polling Station No.6 failed to display any result when the result button was pressed and thereafter for about 20 minutes the control unit of the said EVM could not display the result in spite of various efforts, which results in suspension of the counting without sealing the control unit of the EVM and keeping the same in an unsealed condition for about 25 minutes during the period of suspension of the counting, thereby violating the provisions of 1961 Rules requiring sealing of the control unit of the EVM during the period of suspension of the counting.