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2012 DIGILAW 292 (JHR)

Ramji Lal Sarda v. Gopal Sharan Nath Sahdeo

2012-02-24

R.K.MERATHIA

body2012
ORDER This Election Petition has been filed under sections 80-A & 81 of the Representation of People's Act, 1951 challenging the election held on 25.11.2009 in which Respondent No. 1-Gopal Sharan Nath Shahdeo (now deceased) was declared returned candidate from 64 Hatia Assembly Constituency in the State of Jharkhand. 2. By order dated 14.07.2011, on prima facie satisfaction, this court directed for recounting and for placing the report. On 6.1.2012 the report sent by the Deputy Commissioner in sealed cover was opened in the court in presence of the parties and they were given liberty to inspect and examine the same. Mr. Barnwal, learned senior counsel appearing for the petitioner, was given liberty to file his objection to the said report. The State was given liberty to file it's reply to the same. 3. I.A. No. 241 of 2012 has been filed by the petitioner by way of objection. The first objection is that the report is not an authenticated copy and it is not known whether it is true copy of the original or not; and it has not been filed on affidavit. 4. There was no order for filing report on affidavit. However, as prayed by Mr. Allam, appearing for the State, Mr. Shekhar Jamuar, learned Sub Divisional Officer, Ranchi is permitted to authenticate the report in court. 5. Mr. Barnwal then submitted that there has been manipulation by the authorities in order to match the result of recounting held in 2011 with the earlier result of 2009. He submitted that there are several examples. He referred to some of them. He also submitted that the Ballot Unit is blank in the report. He further submitted that there is no scope of clerical error and such plea has been taken to hide the manipulation. 6. On the other hand, Mr. Allam, assisted by Mr. Jamuar, tried to clarify the objections raised by Mr. Barnwal. It was submitted that Form-17C which is given to the Polling Agents of the parties after the counting is over and the calculations recorded in EVM (Control Unit) are only relevant and not the voters turnout which is based on rough estimation and is required to be sent to the Election Commissioner from time to time, only to show the percentage of voters turnout. Rule 66A of the Conduct of Election Rules, 1961 was referred. Rule 66A of the Conduct of Election Rules, 1961 was referred. It is further submitted that there is no difference in counting recorded in - EVM and Form-17C. It is further submitted that the total counting of votes of the returned candidate and the petitioner is exactly the same in the recounting. It is also submitted that some human error here or there not affecting the result of the returned candidate and the petitioner, are irrelevant and should be ignored. 7. I examined the examples shown by Mr. Barnwal in his objection. From perusal of page-505 of the report, it appears that in booth no. 359, 461 is mentioned in all the three columns i.e. “voter's turnout report”, “total vote as per P.O. Diary” as well as “total vote in EVM and Form 17C”. The alleged difference of 76 votes in the 'Total' column is inconsequential. Then it is said that in the case of Respondent No. 9-Nawin Jaiswal and Respondent No. 10-Rizwan Ahmad, there is difference of +- 100 votes in the counting held in 2009 and 2011. Similarly, there is difference of +- 01 vote in the case of Respondent No. 20-Ram Prakash Tiwary and Respondent No. 21-Bashishtha Tiwari. Such difference is inconsequential and cannot be said to be manipulation. Firstly, such difference is not affecting the result of the Returned Candidate and the petitioner, and secondly, these differences appear to be due to human error. Regarding the objection that the Ballot Unit is blank in the report, I am satisfied with the submissions made on behalf of the State that it was not required to be mentioned in the recounting report as the calculation in the EVM and Form-17C is mentioned in the report, which are the only relevant matters. The objection that in booth no. 276, in the diary of the Presiding Officer (Annexure-1 to the Objection Petition), there is difference, is also unacceptable. If the calculation of 217-male and 159- female is added, it comes to 376 which is the figure mentioned at page-476 of the recounting report, but it appears that by mistake, the figure of 367 has been written in place of 376. Further, the numbers mentioned against column 10(ii) & (iii) of Annexure-1, are inconsequential mistake, liable to be ignored. The counting recorded in EVM and recorded in Form 17C are only relevant. Further, the numbers mentioned against column 10(ii) & (iii) of Annexure-1, are inconsequential mistake, liable to be ignored. The counting recorded in EVM and recorded in Form 17C are only relevant. There is no allegation that there is any difference in the counting recorded in EVM with Form 17C. With regard to the objection that in booth no. 332, diary of the Presiding Officer indicates that the Control Unit (EVM) was not used as it was out of order, the learned SDO has produced the original records which shows that another Control Unit (EVM) was supplied from the reserve and was actually used in polling booth no. 332. 8. After hearing the parties at length and carefully going through the records, the recounting report, and the original records produced before me, I am satisfied that no objection to the recounting result is sustainable. The result of recounting confirms the earlier counting i.e. difference of 25 votes in returned candidate and the petitioner. 9. In view of such finding, it is not necessary to pass orders on the interlocutory applications filed on behalf of the father of the returned candidate and on behalf of respondent no. 9-Nawin Jaiswal. 10. No other issue was raised on behalf of the petitioner. 11. After the said order was dictated, Mr. Barnwal, appearing for the petitioner, submitted that the case may be adjourned for filing of issues, recording of evidences, etc. 12. On the other hand, it was submitted on behalf of the State and other respondents that now, nothing survives in this election petition and a fresh election is overdue due to the death of the returned candidate which may not be delayed. 13. In my view, keeping this case pending for further hearing will mean continuing a meaningless litigation. Based on records, it has been held that the result of recounting done in 2011 is the same with the result of 2009, i.e. difference of 25 votes between the returned candidate and the petitioner; and that the objection to the recounting report are not sustainable. The election in question was held on 25.11.2009. The State assembly seat is lying vacant after the death of the returned candidate on 28.6.2010. In Ram Sukh-vs-Dinesh Aggarwal (2009) 10 Supreme Court Cases 541 it was observed as follows: “18. The election in question was held on 25.11.2009. The State assembly seat is lying vacant after the death of the returned candidate on 28.6.2010. In Ram Sukh-vs-Dinesh Aggarwal (2009) 10 Supreme Court Cases 541 it was observed as follows: “18. Undoubtedly, by virtue of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the court trying an election petition can act in exercise of its power under the Code, including Order 6 Rule 16 and Order 7 Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail.” 14. In the result, this election petition is disposed of with the findings aforesaid. Consequently, all the interlocutory applications also stand disposed of.