SALMA JESMIN Vs. MAZIBUR RAHMAN

JUDGEMENT

(1.) The petitioner, who was a candidate nominated by Indian National Congress (INC) to contest the election from No.85 Rupahihat Legislative Assembly Constituency (LAC), has filed the present petition under Section 80 and 80A of the Representation of People Act, 1951 (in short the 1951 Act), presented under Section 81 of the said Act, questioning the legality and/or validity of the election of the respondent No.1, who was nominated by All India United Democratic Front (AIUDF) and has been declared elected on 13.05.2011. The election petitioner has prayed for declaring the election of the returned candidate as void and to direct recount of votes, to declare the result on the basis of such recount, apart from the direction for fresh poll in polling station No.43 of the said LAC.

(2.) Pursuant to the notification issued by the Election Commission of India declaring the schedule of general election to the Legislative Assembly of Assam, the election petitioner, the respondent No.1 and 5(five) other candidates (respondent Nos.2 to 6) have filed their nomination papers for No.85 Rupahihat LAC within stipulated time. While the election petitioner was nominated by the INC, the respondent No.1 was nominated by AIUDF, the respondent No.2 was nominated by Nationalist Congress Party, the respondent No.3 was nominated by Bharatiya Janata Party, the respondent No.4 was nominated by Assam Gana Parishad, the respondent No.5 was nominated by All India Trinamul Congress and the respondent No.6 was an independent candidate. The nomination papers of all these candidates, on scrutiny, were found to be valid and accordingly they contested the election, polling of which was held on 11.04.2011. The votes polled by the candidates were counted on 13.05.2011 and the result of the election was declared on the same day. The respondent No.1/returned candidate having secured 44441 nos. of valid votes polled, as against 44208 votes polled by the election petitioner, was declared elected from the said constituency with a margin of 233 votes.

(3.) The election petitioner though filed the election petition challenging the result of the returned candidate on the ground that the result of the election, in so far as it concerns the returned candidate, has been vitiated - (i) by discrepancies; (ii) incorrect totaling at the time of counting of votes; (iii) malfunctioning of control units of Electronic Voting Machines (EVMs) of polling station No.6; (iv) non -closure of control units of the EVMs in respect of polling station No.43 after completion of poll and (v) improper rejection of 18 ballots, this Court, based on the application filed by the respondent No.1/returned candidate under Order 6 Rule 16 CPC read with Order 7 Rule 11 CPC for striking out the pleadings in the election petition as well as for rejection of the same for want of cause of action, which has been registered and numbered as Misc. Case No.3012/2011, vide order dated 07.05.2012 strike out the pleadings relating to the malfunctioning of control units of the EVMs of polling station No.6 and non -closure of the control units of the EVMs in respect of polling station No.43 after completion of poll, no material facts having been pleaded and also for non -disclosure of the cause of action. Thus the election petition has been reduced to the grounds of incorrect totaling at the time of counting of votes and non -compliance of the provisions of 1951 Act and conduct of Election Rules, 1961 (in short the 1961 Rules).