SOM PARKASH Vs. SANTOSH CHAUDHARY

JUDGEMENT

(1.) The present election petition has been filed by the petitioner challenging the election of respondent, under Section 80 read with Sections 81 , 100 and 101 of the Representation of People Act, 1951 (for short 'the Act'), from 05-Hoshiarpur (SC) Parliamentary Constituency.

(2.) In pursuance of notification dated 17.4.2009 issued by the Election Commission of India, the general elections to Lok Sabha of 05-Hoshiarpur (SC) Parliamentary Constituency along with 8 other Parliamentary Constituencies in the State of Punjab, were to be held. The date of polling was 13.5.2009 and the date of counting and declaration of the results was 16.5.2009. The petitioner, respondent and 10 other candidates, were the candidates from 05-Hoshiarpur (SC) Parliamentary Constituency, after the last date fixed for withdrawal of nomination papers. The petitioner contested the election on the symbol of Bhartiya Janta Party (BJP), whereas the respondent contested the election on the symbol of the Indian National Congress (INC). In the counting held on 16.5.2009, the total number of votes polled were 843375 including 167 rejected votes. The petitioner polled 358446 votes whereas the elected candidate (respondent) polled 358812 votes.

(3.) The controversy between the parties lies in a narrow compass i.e. in respect of the malfunctioning of Electronic Voting Machine (for short hereinafter referred to as 'the EVM'), at polling station 114 of village Kaloya of 41 Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency. On the date of polling, the EVM installed in the aforesaid polling booth malfunctioned and stopped recording votes after recording 574 votes, which led to stopping of polling. After sometime, the EVM was changed on the orders of the District Election Officer/Returning Officer. The defective EVM was sealed and packed and a new EVM was installed. In the new EVM, 110 votes were recorded as polled. It is alleged that such change of the EVM is not in terms of Section 58 of the Act and Instruction No. 54.1 of Chapter XIII of the Handbook for Returning Officers. It is pleaded that if an EVM develops a mechanical snag, the Presiding Officer is required to bring the matter to the notice of the Returning Officer. The Returning Officer is to refer the matter to the Election Commission of India, which is to take a decision in respect of the fresh polling at that polling station. Since the matter was not brought to the notice of the Election Commission of India, therefore, change of the EVM was said to be violation of the statutory provisions and, thus, a ground for challenge of the election. It is also pointed out that at the time of counting on 16.5.2009, during the 9th round of counting, the defective EVM control unit No. 28865, pertaining to polling station 114 of village Kaloya of 41 Urmar Assembly Segment of 05-Hoshiarpur (SC) Parliamentary Constituency, could not show any result. The result of the said assembly segment of the Parliamentary Constituency was tabulated by excluding 574 votes not retrieved from the EVM. The result in Annexure P.4 shows that the margin between the leading and runners up is 1842 and that 574 votes have not been counted.