BARKATULLAH Vs. RABINDRANATH MALAKAR AND ORS.

JUDGEMENT

(1.) FOR all intents and purposes the Election Petition is over and the order to follow is just a formality to comply with the requirements of law (The Representation of the People Act, 1951) and to put the records straight.

(2.) SHRI Barkat Ullah, one of the contesting candidates of 55 Haja Assam Legislative Assembly Constituency (hereinafter referred as "the constituency)", filed an application under Sections 80A and 81 of the Representation of the People Act, 1951 (as amended) (hereinafter referred to as "the Act"). The petitioner and six others including Shri Rabindra Nath Malakar, Respondent No. 1, contested for the Assembly Seat from "the constituency." Poll was held on 25 -2 -1978 and the counting of votes commenced and concluded on 27 -2 -1978. The Respondent No, 1 was declared elected having secured the highest number of votes, and the petitioner polled the second highest votes. The difference of votes between the petitioner and the Respondent No, 1 according to the Final Result Sheet (Form No. 20) was shown as 695 but according to the Check Memo the said difference came to 309 votes only. It may be stated here that during the course of the trial of the election proceedings the parties and the witnesses conceded that there were errors in reflecting the correct votes in Form No. 20. All hands agreed that the correct reflection was made in the Check Memos, and the difference between the petitioner and the Respondent No. I was 309 votes and not 695 votes (as reflected in Form No. 20), After completion of the counting and announcement of the result recorded in Form No. 20 the petitioner applied in writing to the Returning Officer for recount of the votes in respect of Tables Nos. 3, 4 and 7 of the 4th round and also in respect of Table No. 3 of the 2nd round, setting fourth the grounds on which the petitioner had demanded such recount The prayer was turned down by the Returning Officer. Thereafter, the petitioner filed this election petition praying inter alia "for a recount of the ballot papers and to declare the result of the election on that basis", The election petition was contested by the returned candidate Shri Rabindra Nath Malakar, who filed his written statement; issues were framed (it is needless to set forth the issues for the reasons to follow), petitioner examined himself and 7 other witnesses and the contesting respondent examined himself as R. W, 1 and also examined 3 other witnesses. In due course the matter came up for hearing arguments and during the course of the argument the parties filed a joint application which reads as under: "The petitioner and the respondent No. 1 hereby state that in view of various manifest errors in calculation and the preparation of the check Memos (Ext. P -3 series) and also in view of the fact, admitted by both the parties, that the respondent No. 1 appears to have won the election by a margin of 309 votes only as per check Memos (Ext. P -3 series) and not by 695 votes as shown in Form No. 20 (Ext. P -4) both the parties agree as follows: - -

(3.) WHILE allowing the application I took into consideration the decision of the Supreme Court reported in : AIR 1977 SC 681 (Sukhad Raj Singh v. Ram Harsh Misra), In that case the parties agreed that all the disputed votes should be recounted and the re -milt of the election might be declared on the basis of such recounting; the recounting of the undisputed votes done by the High Court under its order dated Nov. 5, 1974 should stand undisturbed; all undisputed votes, and the votes secured by the respective candidates as a result of recounting of disputed votes to be done under the order of the Supreme Court, should both be taken into account for the purpose of determining as to which candidate had polled a largest number of votes. The Supreme Court ordered for a recount in the manner agreed by the parties. The Supreme Court issued direction for recount to be done by or under the personal supervision of the Joint Registrar of the High Court of Allahabad (Lucknow Bench) as the parties agreed that the result of recount and scrutiny as declared by the Joint Registrar would be final. It was held that the agreement entered into between the parties was not violative of any of the provisions of the Representation of the People Act, 1951 including Section 97 thereof.