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2001 DIGILAW 334 (JHR)

Paresh Nath Mitra v. Chandra Mohan Prasad

2001-05-11

DEOKI NANDAN PRASAD

body2001
JUDGMENT D.N. Prasad, J. 1. This is an application under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure for rejecting the election petition on the ground that the election-petition does not disclose any cause of action nor any fact has been stated for giving any right to the petitioner for filing this election- petition. 2. Nirbhay Kumar Sahabadi is not the person whose name is appearing in the list of candidate as mentioned in paragraph 5 of the election-petition, whereas the name of only Nirbhay Kumar is appearing in the list. Nirbhay Kumar was very much qualified under Section 5(c) of the Representations of People Act, 1951 and this fact also finds support from the true copy of the electrol roll from Giridih Constituency issued on 5.7.2000 by the competent-authority. The petitioner has proceeded only assumption. The acceptance of the nomination paper of Nirbhay Kumar by the returning officer has not at all affected the result of the election. Therefore, the election-petition is fit to be rejected. 3. No counter-affidavit has been filed on behalf of the election-petitioner. 4. Mr. Anil Kumar Sinha, senior counsel for the respondent submitted that Nirbhay Kumar was the real person who contested the election and the name of Nirbhay Kumar also finds mentioned in the voter list at serial No, 219 and there was no any objection raised against acceptance of nomination paper as well as no cause of action has been disclosed in the election-petition. It is further submitted that there is no voter list containing the name of Shri Nirbhay Kumar Sahabadi and, therefore, question of inclusion or withdrawal of the said name does not arise. The learned counsel also relied upon a case of Samar Singh v. Kedar Nath and Ors. reported in AIR 1987 SC 1926 and case of Tak Chand v. Dile Ram, reported in 2001 SOL Case No. 057. 5. On the other hand, Mr. The learned counsel also relied upon a case of Samar Singh v. Kedar Nath and Ors. reported in AIR 1987 SC 1926 and case of Tak Chand v. Dile Ram, reported in 2001 SOL Case No. 057. 5. On the other hand, Mr. V.R Singh, the learned counsel for the election- petitioner submitted that one Nirbhay Kumar Son of Bishwanath Prasad Sahabadi filed his nomination paper in the election claiming himself to be an electoral from 275 Giridih Assembly Constituency vide Serial No. 219 of the electoral roll and he accordingly presented his nomination paper but in fact, Shri Nirbhay Kumar was not an electrol on the relevant date of election or on the date of poll and his name was deleted from the said electrol roll which is apparent from the list of correction in which there is a name mentioned as Nirbhay Kumar Sahabadi. It is also argued that the returning officer should have rejected the nomination paper of Shri Nirbhay Kumar and if it was rejected, the vote acquired by Nirbhay Kumar would have gone in favour of Jyotlndra Prasad congress candidate as Nirbhay Kumar has got 23697 votes, whereas elected candidate Shri Chandra Mohan Prasad obtained 24722 vote and Nirbhay Kumar was not an voter from 275 Giridih Assembly Constituency and therefore he was not qualified under Section 5(2) of Representations of Peoples Act, 1951 as well as he was not entitled to present the nomination before the returning officer for the said election and the returning officer improperly accepted the nomination of Shri Nirbhay Kumar which has affected the result of the election. 6. At this stage, it may be mentioned that Annexure-1 attached with the election-petition is the correction list of voter for the year. 1996 in which name has been described as Nirbhay Kumar Sahabadi, whereas the voter list of the same serial number i.e. 219 (Annexure-A) is indicating as Nirbhay Kumar Son of Bishwanath Prasad Sahabadi for the same 275 Giridih Assembly Constituency. The election-petition has been filed on the ground that the Returning Officer improperly accepted the nomination paper of Shri Nirbhay Kumar, though Shri Nirbhay Kumar Son of Bishwanath Prasad Sahabadi was not an elector from 275 Giridih Assembly Constituency on the day of election. The election-petition has been filed on the ground that the Returning Officer improperly accepted the nomination paper of Shri Nirbhay Kumar, though Shri Nirbhay Kumar Son of Bishwanath Prasad Sahabadi was not an elector from 275 Giridih Assembly Constituency on the day of election. But, from Annexure-A, it is obvious that Nirbhay Kumar son of Bishwanath Prasad Sahabadi is the elector as indicated in voter list of the year, 1995 from the same constituency. 7. It is well settled that if an election-petition does not disclose the cause of action, the election-petition can be dismissed summarily at the threshold of the proceeding under Order VII. Rule 11 of the Code of Civil Procedure. 8. Admittedly Nirbhay Kumar contested the election being associated with National Party of RJD and valid symbol as lantern was allotted to him. The name of the candidates who contested the election and their affiliation to political party or independent as well as Symbol allotted to them are shown as under : __________________________________________________________________ Sl.No. Name of the candidate Their party affitiation independent Symbol allotted to them Vote retain by them __________________________________________________________________ 1. Chander Mohan Pd. BJP Lotus 24,722 2. Irshad Ahmad J.M.M. Bow and arrow 12,069 3. Omilal Azad C.P.I. Ears of Corn and Sickle 3,197 4. Nirbhay Kumar R.J.D. Lantern 23697 5. Jotinder Prasad N.C. Hand 14807 6. Sunil Kumar B.S.P. Elephant 1,506 7. Bhusan Das Jharkhand Party Axe 324 8. Jogeshwar Singh Ind. Hand pump 5,409 9. Narjun Ram Ind. Apple 165 10. Nageshwar Das Ind. Aeroplane 732 11. Mukteshwar Singh Ind. Lock and Key 1,413 12. Suresh Ram Ind. Bucket 1,192. __________________________________________________________________ 9. It is manifest that Nirbhay Kumar who contested the election under National Party i.e. RJD, obtained 23697 votes and maintained second position in the election which itself goes to conclude that Nirbhay Kumar was the genuine candidate as admittedly no any objection was ever raised by any person during the election period. 10. Electrol roll of 1996 (Annexure 1) said to be corrected list in which name has been described as Nirbhay Kumar Sahabadi which does not contain the name of father whereas in the electrol roll of 1995 (Annexure A) it is clearly mentioned as Nirbhay Kumar son of Bishwanath Prasad Sahabadi. 10. Electrol roll of 1996 (Annexure 1) said to be corrected list in which name has been described as Nirbhay Kumar Sahabadi which does not contain the name of father whereas in the electrol roll of 1995 (Annexure A) it is clearly mentioned as Nirbhay Kumar son of Bishwanath Prasad Sahabadi. It has also been specifically stated by the respondent that in the year, 2000 voter list was again revised on the basis of 1995 electrol roll and in both the electrol roll, the name of Nirbhay Kumar appeared. 11. There is nothing to show as to how the name of Nirbhay Kumar was deleted from the electrol roll as neither any copy of the proceeding was produced nor any application for the same has been brought on the record to substantiate the genuineness or correctness of delection of the name from the voter list. Any correction or deletion of name in the electrol roll is an important feature which must be done through proper act of proceeding and passing order on this score. But no such paper has been brought to corroborate this fact. In absence of valid and cogent document, it is difficult to accept the story of deletion. 12. Nirbhay Kumar had filed his nomination paper before the Returning Officer. It is also clear that the nomination paper of 12 candidates was found to be valid and after expiry of the period of withdrawal, the returning officer allotted symbol to all valid candidates after accepting the nomination paper by an order dated 27.1.2000. Till then, there was no objection raised from any corner to this effect. The election was held on 12.2.2000 and final result was declared on 25.2.2000. But curiously enough no body appeared to raise any objection. 13. In an election-petition where an election of a returned candidate is impeached under Section 100(1)(d)(i) of the RP Act. It is not enough only to establish that a nomination of a candidate was improperly accepted. , In addition it has to be further established that such wrong acceptance of nomination paper was materially affected the result of the election in so far it concerned the congress candidates. 14. Pleading in the election-petition is totally based on presumptions and conjectures that if nomination of Nirbhay Kumar was not accepted, the votes acquired by Nirbhay Kumar would have gone in favour of Jyotindra Prasad. 14. Pleading in the election-petition is totally based on presumptions and conjectures that if nomination of Nirbhay Kumar was not accepted, the votes acquired by Nirbhay Kumar would have gone in favour of Jyotindra Prasad. But it is not possible to say that certainly all the votes secured by Nirbhay Kumar i.e. 23697 would have gone in favour of Jyotindra Prasad. It is also not known as to how much votes would have gone in favour of Jyotindra Prasad. So it is only a guess work. The election-petition cannot be validly accepted only on presumption and conjectures. The whole pleadings are nothing but bundle of assumptions which cannot take the place of substantive proof. It is to be noted here that Jyotindra Prasad himself has not come forward to challenge the election. 15. The apex Court has taken the view in the case of Uma Bhallat Rath v. Maheshwar Mohanti and Ors., (1999) 3 SCC 357 , that election of an returned candidate cannot be set-aside on Presumptions surmises and conjectures. There must be clear and cogent proof in support of the allegations. 16. In a democratic setup an election of a returned candidate should not be easily vulnerable to vague allegations or to averments made in the election- petition not substantiated or supported by positive, cogent and reliable evidence. In the instant case, Annexure-1, which is in complete document can not be the basis for throwing electrol roll 1995 in which the name of Nirbhay Kumar appears with his fathers name. Burden of proof heavily lies on the election- petitioner who alleges about deletion of name but no any document obviously brought on the record about such deletion. By producing Annexure-1 only in the name of Nirbhay Kumar Sahabadi, the election of returned candidate cannot be impeached when admittedly Nirbhay Kumar contested the election under valid symbol of RJD, a National Party and he secured a large number of votes. Thus the said corrected electrol roll of 1996 (Annexure 1) cannot be relied upon in absence of cogent and positive documentary evidence. Name of Nirbhay Kumar son of Bishwanath Prasad Sahabadi had duly been recorded in the electrol roll of 1995 and in the year. 2000 the voter list was again revised on the basis of 1995 electrol roll and in both the electrol rolls the name of Nirbhay Kumar appeared. Name of Nirbhay Kumar son of Bishwanath Prasad Sahabadi had duly been recorded in the electrol roll of 1995 and in the year. 2000 the voter list was again revised on the basis of 1995 electrol roll and in both the electrol rolls the name of Nirbhay Kumar appeared. By comparing the name of Nirbhay Kumar and others the nomination paper was accepted and on scrutiny, it was found to be valid and thereafter the list of validly nominated candidates was also prepared in accordance with Section 36(8) of RP Act. 17. Thus, in my view, there was no wrong in accepting the nomination of Nirbhay Kumar who was the valid candidate for con testing the election. In the result, I do not find any merit in the election-petition which is dismissed in limine. 18. Petition dismissed.