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2002 DIGILAW 358 (JHR)

Chuni Lal Giri v. Reeta Verma

2002-03-14

D.N.PRASAD

body2002
ORDER Deoki Nandan Prasad, J. 1. This is an application filed on behalf of the respondent No. 1 (Smt. Reeta Verma) raising preliminary objection that the election petition as framed is not maintainable as it has got no valid cause of action and does not speak of any violation of the Rules and also contains vague allegations. The sources of information are unknown counting agents. The election petitioner has no where stated that he himself was in fact connected with the process of election in any manner as well as he does not claim to have cast his vote. It is further stated that no any request at all was made by respondent No. 2 to the Observer of the Election Commission to intervene in the matter during the course of counting, though the counting was held for two days and the counting of ballot papers continued uninterruptedly under the full view of the candidates and their authorised counting agents. The petitioner or other candidates who was/were contesting the election had never raised any objection in respect of counting of 5 per cent of the accepted ballot papers and, as such, no cause of action arose to the election petitioner to file this application (election petition) which is vague and without cogent or reasoned basis. No counting agent had made any written complaint of mis-counting at any stage of counting as required by law. Even respondent No. 2 has never demanded any sort of re-counting of the ballot papers and, as such, the election petitioner has got no locus standi to make such a grievance after the final result was published and notified. The election petition does not contain the statement of material facts on which the petitioner is supposed to rely as well as it does not state the full particulars of any corrupt practice as alleged. Moreover, the alleged corrupt practice as regard to one Kapildeo Pandey is not accompanied by the affidavit in the prescribed form in support of the allegation thereof. It is further stated that Mr. B.N. Moria is though a relevant person to certify the authenticity or otherwise of the statement is not a party respondent. On this score, as being a ground of non-joinder of the party, this election petition is fit to be rejected. It is further stated that Mr. B.N. Moria is though a relevant person to certify the authenticity or otherwise of the statement is not a party respondent. On this score, as being a ground of non-joinder of the party, this election petition is fit to be rejected. The statements contain in the entire election petition taken together do not make out a prima facie case which is vague and there is no cause of action and, as such, the election petition is fit to be dismissed. 2. On the other hand, the election petitioner filed rejoinder claiming therein that the application raising preliminary objection is vague and misconceived. In fact the election petition has got valid cause of action as the election petitioner has furnished adequate statement of material facts in his election petition. The petitioner has already stated in paragraph 2 of his election petition that he was neither a candidate nor the election agent or counting agent of any of the contesting candidates, but whatever information he got regarding several illegalities and irregularities in the counting of the ballot was through various Newspapers and also from the counting agents, contesting candidates and also from the counting agents, contesting candidates and also from the voters. It is further stated that protest was made by some of the candidates including the respondent No. 2 and a request was made to the Returning Officer, Assistant Returning Officer (A.R.O.) and to the Observer of the Election Commission in respect of the accepted ballot papers of candidates, at least of 5 per cent of the accepted ballot papers which has been provided specifically in the order/direction of the Election Commission of India exercising their power under Article 324 of the Constitution of India which is mandatory in Character but this was not done despite several reminders. The election petitioner has not made allegation of corrupt practice in his election petition. The application filed on behalf of respondent No. 1 raising preliminary objection is mala fide, frivolous and it is fit to be dismissed. 3. The election petitioner has not made allegation of corrupt practice in his election petition. The application filed on behalf of respondent No. 1 raising preliminary objection is mala fide, frivolous and it is fit to be dismissed. 3. The learned Counsel appearing on behalf of the election petitioner submitted that there was clear order/direction issued by the Election Commission of India exercising the power under Article 324 of the Constitution of India and the Observer of the Election Commission was to apply the Test Check in respect of the accepted ballot papers of the candidates at least 5% of the accepted ballot papers as has been incorporated in the Hand Book of the Returning Officer but the request which was made by some of the candidates including the respondent No. 2 could not be complied with. It is further argued that the counting process without recounting five percent of the random samples of the counted and sorted votes of all candidates remained incomplete when the announcement of the result was made 4. The Counsel for the petitioner also relied upon the cases in Jai Nandan Singh v. Shankar Dayal Singh and Ors., AIR 1999 Patna 231, V.S. Achuthanandan v. P.J. Francis and Anr., AIR 2001 SC 837 and Mahendra Pal v. Ram Dass Malanger and Ors., AIR 2000 SC 16 . 5. On the other hand, learned Counsel appearing on behalf of Respondent No. 1 contended before me that the election petition as framed is not maintainable and it has got no valid cause of action. The election petitioner was not in fact connected with the process of the election in any manner nor he was present even outside the premises of the Casting Station or counting of the ballot papers as the counting of ballot papers continued for two days without any interruption and not any protest whatsoever was ever made by any of the contesting candidates. It is further argued that no Counting Agent made any written complaint of miscounting nor the contesting candidates including the respondent No. 2 ever demanded any sort of recounting and thus the allegation made in the election petition is vague and without any basis. It is also argued that Mr. It is further argued that no Counting Agent made any written complaint of miscounting nor the contesting candidates including the respondent No. 2 ever demanded any sort of recounting and thus the allegation made in the election petition is vague and without any basis. It is also argued that Mr. B.N. Moria the Observer, becomes a necessary party in this election petition in view of the fact that the election petitioner put serious allegation against him and, on this score also, this election petition is fit to be dismissed. 6. At the very outset it may be noted here that the election petitioner is neither the contesting candidate nor he had been appointed or authorised as being Agent to have worked on behalf of any other candidates. It is also very clear that the Returning Officer after withdrawal of the candidature of the validly nominated candidates, a list of the contesting candidates was prepared and different election symbols were allotted which are as under : __________________________________________________________________ Name of candidates. Affiliated to Political Parties Symbols allotted __________________________________________________________________ Smt. Rita Verma Bhartiya Janta Party Lotus Sri A.K. Roy Marxist Co-ordination Book Sri Kahsari Mandal J.M.M. Bow & Arrow. Sri Dhan Prasad Bahujan Samaj Party Elephant. Sri S.K. Verma Janta Dal (Secular) Farmer Driving Tractor Sri Upendra Singh Communist Party of India (Marxist Leninist) Liberation Sri Sharat Das Akhil Bhartiya Jan Sangh Bhutta Sri Saroj Kumar Choudhary Ajey Bharat Party Ghanti (Bell). Sri Munsi Hembram Independent Aeroplane (Bayuyan). Sri Moti Lal Rajwar Independent Apple. __________________________________________________________________ It is also apparent that the declaration of result was made immediately after the counting declaring respondent No. 1 as elected candidate. 7. The votes secured by the different contesting candidates as per the result sheet is noted below : FINAL RESULT SHEET 47 Dhanbad Parliamentary Election, 1999. __________________________________________________________________ 1. Sri Moti Lal Rajwar Independent Apple. __________________________________________________________________ It is also apparent that the declaration of result was made immediately after the counting declaring respondent No. 1 as elected candidate. 7. The votes secured by the different contesting candidates as per the result sheet is noted below : FINAL RESULT SHEET 47 Dhanbad Parliamentary Election, 1999. __________________________________________________________________ 1. Number and name of Assembly Segment Kansari Mandal Dhan Prasad Rita Verma S.K. Verma __________________________________________________________________ 279-BOKARO 1293 569 90,112 978 282-SINDRI 4165 402 44,443 959 283-NIRSA 78 702 46,530 1178 284-DHANBAD 2515 1168 82,889 994 285-JHARIA 803 1234 70,119 931 286-CHANDAN KIYARI 1980 485 31,968 1187 __________________________________________________________________ Total: 18,617 45,60 3,66,061 6227 __________________________________________________________________ __________________________________________________________________ Number and Name of the Assembly Segment Upendra Narain Singh A.K. Roy Sarat Das Saroj Kumar Choudhary Munshi Hemorum __________________________________________________________________ 279-BOKARO 618 80,516 263 463 192 282-SINDRI 1536 61,959 237 247 207 283-NIRSA 4689 53 985 342 314 284-DHANBAD 556 59 621 309 252 285-JHARIA 190 55,837 229 282 153 286-CHANDAN KIYARI 234 39 941 234 306 __________________________________________________________________ Total: 7823 3,51,839 1613 1664 1173 __________________________________________________________________ __________________________________________________________________ Number and Name of the Assembly Segment Motilal Rajwar Valid Votes Total No. of Rejected ballot Papers Valid and Rejected Votes Total __________________________________________________________________ 279-BOKARO 267 1,75,271 1564 1,76,635 282-SINDRI 293 1,14,448 1453 1,15,901 283-NIRSA 313 1,16,154 2096 1,18,250 284-DHANBAD 240 1,48,746 1660 1,50,406 285-JHARIA 241 1,30,019 1544 1,31,563 286-CHANDAN KIYARI 326 76,819 1266 78,085 __________________________________________________________________ Total: 1680 7,61,457 9583 7,71,044 __________________________________________________________________ Sd/- Pradeep Kumar Returning Officer 47-Dhanbad P.C. Dhanbad. 8. Counting of the ballots admittedly continued for two days continuously and uninterruptedly without any objection raised from any of the candidates or authorised counting agents. The election petitioner himself admitted in paragraph 6 of the rejoinder stating therein that protest was made by some of the candidates including respondent No. 2 and a request was made to the Returning Officer. Assistant Returning Officer and to the Observer of the Election Commission also to apply the test check in respect of accepted ballot papers of the candidates at least of 5% of the accepted ballot papers which has been provided specifically in the order/direction of the Election Commission of India but that was not done despite several reminders. Neither any of the contesting candidates including Respondent No. 2 have challenged to this effect nor any document if actually such protest was made has been produced to substantiate the said story. Neither any of the contesting candidates including Respondent No. 2 have challenged to this effect nor any document if actually such protest was made has been produced to substantiate the said story. The election petitioner also admitted in his rejoinder that he has not made any allegation of corrupt practice against Mr. B.N. Moira. Observer of the Election Commission of India. 9. From going through the election petition the reliefs as sought for also appear to be vague as the election petitioner demands that the result should be declared incomplete and invalid on the ground that 5% counted bundles of all candidates selected at random samples should be rechecked and recounted and in the aforesaid rechecking process, if any tangible defect is detected materially affecting the result of the election then total votes are required to be scrutinised and recounted. Thus the reliefs as sought for are apparently vague. 10. It has been mentioned in the election petition that the petitioner had gathered information from the Counting Agents of the contesting candidates particularly from the counting agent of Shri A.K. Roy, respondent No. 2, that the process of counting of ballot papers candidate wise and counting the same in their favour was left at the mercy of the counting staff but he has not described any name of the counting agents of the contesting candidates from whom such information was gathered. Moreover, there is no reason why the counting agents who were present at the site could not protest or object about any irregularities, if any, done in their presence. 11. The following conditions have been laid down by the Apex Court for recount and/or inspection of the ballot papers : 1. That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous vague and indefinite allegations: 2. That before inspection is allowed the allegations made, against the elected candidate, must be clear and specific and must be supported by adequate statement of material facts : 3. That the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount : 4. That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties : 5. That the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount : 4. That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties : 5. That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void: and 6. That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of rising out materials. 12. On the above back-drop, it may be noted here that the petitioner is neither the contesting candidate nor the authorised agent of the contesting candidates rather he himself admitted in clear terms that he had learnt about the material facts either from the agents of the contesting candidates or from the contesting candidates, particularly respondent No. 2. Admittedly neither the contesting candidates even the respondent No. 2 nor any authorised agents who had worked on behalf of the contesting candidates at the relevant time, filed any petition to this effect nor any documents putting any objection or protest have been produced to substantiate the allegation in the manner as alleged. Simply by saying that the counting process was not done in accordance with the rules/law is not sufficient for the purpose of recounting of the ballot papers when there is no cogent material fact to substantiate such allegation. The allegation must be clear and specific and must be supported by adequate statement of the material facts which are quite lacking in the election petition in the instant case. 13. The Supreme Court in a case reported in AIR 1993 Supreme Court 367. AIR 1992 SCW 3449 , Satya Narain Ludhani v. Uday Kumar Singh, and in another case reported in AIR 1984 SC 396 . 13. The Supreme Court in a case reported in AIR 1993 Supreme Court 367. AIR 1992 SCW 3449 , Satya Narain Ludhani v. Uday Kumar Singh, and in another case reported in AIR 1984 SC 396 . Hart Ram v. Hira Singh, has clearly held that recounting of votes is not permissible as a matter of routine and as such recounting disturbs the secrecy of ballot papers and even no specific objection whatsoever was raised during the counting and no irregularity or illegality was brought to the notice of the Returning Officer and further details about illegality in counting and rejection of the ballot papers had not been furnished then, in such a situation, any recounting of ballot papers are not permissible. In the instant case also, there is general allegation, of which the election petitioner is also not acquainted as admittedly he has not worked as an Agent of the contesting candidates and he was not present at the site of the counting. In that view of the matter, J am of the opinion that no case is made out for counting of 5% of accepted ballot papers. 14. It may be noted here that the election petitioner filed a copy of complain (Annexure-2) which is without signature and it is on the plain paper showing only the number of ballot papers found at the different booths. This paper obviously would not help in any way to the election petitioner in this respect. It is stated that the test check of 5% of ballot papers counted in favour of the candidate concerned which has been incorporated in the Hand Book of the Returning Officer, but surprising to note that no copy of the said Hand Book, if there is such direction or order is made, has been produced or filed by the election petitioner in support of his contention. The election petitioner is himself ignorant and not acquainted with the full facts and circumstances leading to the counting nor ever he was present at the spot as well as the allegations made are quite vague and, as such, the reliefs as sought for by the election petitioner cannot be allowed. 15. Having regard to the above facts and circumstances, the election petition is dismissed as it is not maintainable.