SAMSUL HAQUE Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner who was declared as returned candidate, was candemned in the election petition as a law breaker and a person who committed misconduct during the course of counting of votes. THE election petition filed by the present Respondent No. 4 was basically based upon the material pleading that there were some bunglings in counting of the votes, some votes which were cast in favour of the election petitioner were mixed in the lots of the returned candidate and despite his application for recount the Returning Officer, for the reasons best known to him, did not order for recount. THE present petitioner/returned candidate contested the election petition on all possible grounds and inter alia pleaded that there were no illegalities in counting votes and as the application for recount of the vote did not provide any substance or material to persuade the Returning Officer for recount, the application was rightly not considered.

(2.) AS the parties joined sales, certain issues were cast, the parties were granted proper opportunity to lead evidence. After hearing both the parties the Election Tribunal came to the conclusion that large scale mismanagement took place at the time of counting of the votes, number of the votes cast in favour of the election petitioner were mixed in the lots of the votes of the returned candidate and as the Returning Officer was not justified in not passing the order on application for recount the counting process stood contaminated and as the agents or friends of the present petitioner created a situation of pandemonium at the time of counting, the misconduct committed by the returning candidate was writ large, therefore, the election deserved to be set aside. The Tribunal accordingly allowed the Election petition and set aside the election. Being aggrieved by the said order passed by the Election Tribunal the returned candidate has come to this Court.

(3.) SUB-clause (iv) of Clause (d) of Section 144(1) of the Act provides that the election can be set aside in so far as it concerns a returned candidate, if it has been materially affected by any non-compliance with the provisions of the Act or of any rules or orders made therein. In fact, Clause (iv) is a subsidiary or residuary clause. If the Election Tribunal comes to a conclusion that because of non-compliance of the provisions of the Act or rules or orders made under the Act, the election was materially affected then on such a finding it can set aside the election. Clause (iv) of Clause (d) of SUB-section (1) of Section 144 is couched in different language. SUB-clause (iii) relates to the improper reception, refusal or rejection of any vote or reception of any vote which is void while Clause (iv) relates to non-observance of the provisions of relevant Act or rules or orders made thereunder. In the present case undisputedly the case of the present election petitioner would fall under SUB-clause (iii) and not SUB-clause (iv). The Election Tribunal under misconception of law has recorded the finding that the case of the election petitioner would fail under SUB-clause (iv), while coming to this finding it has ignored the mandate of law in relation to SUB-clause (iii) which in fact covers the dispute in relation to the reception of void or refusal of valid votes.