MAHENDER PRATAP Vs. KRISHAN PAL

JUDGEMENT

(1.) BY this order I dispose of issues No. 6 to 10, which were framed by this order on 7.12.2000 in Election Petition No. 6 of 2000 titled Mahender Pratap v. Shri Kishan Pal and others, as these issues are ordered to be treated as preliminary. In order to appreciate the contentions of the parties on these issues, it has become necessary for this Court to give the background and the facts of the case.

(2.) SHRI Mahender Pratap petitioner filed election petition under Sections 80, 81, 100, 101 and 123 of the Representation of the People Act, 1951 (hereinafter referred to as the Act') against Shri Krishan Pal, respondent No. 1, the returned candidate, and 12 others vide which the election of respondent No. 1 to the Legislative Assembly, Haryana - 52 Mewla Maharajpur Constituency was challenged. The last date for filing of the nomination papers was 3.2.2000 and the date of scrutiny was 4.2.2000. The last date for withdrawal of candidatures was 7.2.2000 and the date of polling was 22.2.2000. The counting took place on 25.2.2000. The petitioner was the candidate of Bahujan Samaj Party having a symbol of elephant. Respondent No. 1 Shri Krishan Pal was the candidate of Bharatiya Janta Party and he was allotted the symbol of lotus. Other candidates were also allotted symbols and they hailed from Janta Dal Secular, Indian National Congress, Haryana Vikas Party, Samjwadi Party and independents. The election in this constituency took place through Electronic Voting Machines (in short 'EVMs') and these machines were introduced for the first time in this constituency. It is averred by the petitioner that since the voting was to take place with the help of EVMs, therefore, it was the bounden duty of the Returning Officer and the assisting staff to educate and make familiar the electors, candidates and their agents with regard to the procedure and working of these EVMs. But this was not undertaken by the Returning Officer and his supporting staff and this has resulted to a lot of confusion. Before the start of the election process it was widely published through media and other ways by the Election Commission that the voters will be properly educated about the use of EVMs but this has not been done. Resultantly, large scale defective and irregular voting took place. The voters pressed wrong buttons on the machines. It is further averred that total number of votes polled were 1,29,574 and the petitioner was polled 50,751 votes, whereas respondent No. 1 had been shown to have been polled 50,952 votes. Other candidates have also been polled votes as enumerated in para No. 14 of the election petition. In para No. 15 of the petition, it is alleged by the petitioner that Shri Inder Singh, Sub Divisional Magistrate, Faridabad, who was the Returning Officer, remained posted as General Manager in Haryana Roadways during the period when respondent No. 1 was the Transport Minister in the Haryana Government headed by Ch. Bansi Lal, i.e. prior to the present election when Ch. Om Parkash Chautala came in power with the support of Bharatiya Janta Party. Respondent No. 1 was having his influence and ensured the posting of the said Returning Officer as Sub Divisional Magistrate, Faridabad and in this manner respondent No. 1 misused his official status as Transport Minister and also his influence in the Government of Ch. Om Parkash Chautala. Thus, respondent No. 1 has violated the Model Code of Conduct for the conduct of free and fair elections. Since the aforesaid Returning Officer was posted in the constituency, he in order to ensure the victory of respondent No. 1 right from the day one started adopting various means and tactics for the benefit of returned candidate. Further, it has been pleaded by the petitioner that the election of respondent No. 1 is illegal, void and deserves to be set aside mainly on the following grounds:-

(3.) THAT in the case of the constituency in question, the counting tables were required to be arranged in such manner that when voting machine is brought at a particular table pertaining to a particular booth, the counting agents of the candidates should have been able to check the paper seal put on the buttons of the voting machine to ensure that there is no tampering. Apart from the above, they ought to have also been arranged in a manner that the figures appearing in the digital counter/display of the machine are clearly visible to the counting agents, so that they are able to note down the same and are further able to safeguard the interest of their respective candidates.