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2015 DIGILAW 1155 (JHR)

Suraj Mandal v. Ravindra Kumar Ray

2015-09-22

H.C.MISHRA

body2015
ORDER : 1. Heard learned counsel for the election petitioner and learned counsels for both the respondents on the point, that even if the election petitioner succeeds in proving the only point involved in the case that the polling agents of the petitioner were not allowed to function by the Presiding Officers in four Assembly segments, whether that shall be a good ground for declaring the election of the returned candidate void under Section 100(1)(d)(iv) of the Representation of the People Act, 1950. 2. The election petitioner had contested the Parliamentary election for 05, Kodarma Parliamentary Constituency, held in the months of March, April and May, 2014 in which the respondent No. 1 was the returned candidate, who had contested the election on the ticket of Bhartiya Janata Party, whereas the petitioner was the official candidate of Jharkhand Vikas Dal. It is an admitted position that the winning candidate had got 3,65,410 votes, whereas the petitioner had bagged only 6,966 votes in the election. Between the winning candidate and the petitioner there were twelve other candidates who had bagged much more votes than the election petitioner. 3. On the basis of pleadings of the parties, as also on the basis of the proposed issues filed by the respective parties, it transpired that apart from the general issues of maintainability etc. the only main issue upon which the entire election petitioner rests, is the alleged appointment of one Ravi Kant Singh as his election agent by the petitioner, as the polling agents appointed by the said Ravi Kant Singh were not allowed to work as such at different polling booths by the Presiding Officers in four Assembly segments, as the Presiding Officers were provided with the specimen signature of one Jai Prakash Mandal, said to be appointed as election agent by the petitioner. 4. This being the only main issue in this election petition, learned counsels for both the sides were heard on the point whether even if the petitioner succeeds in proving his case that his election agent Ravi Kant Singh was not allowed to function as such, shall it be a good ground for declaring the election of the winning candidate to be void. In other words, whether such non-functioning of the election agent Ravi Kant Singh, or the polling agents appointed by him, had materially affected the election process so as to declare the election to be void under Section 100(1)(d)(iv) of the Representation of the People Act, 1950. 5. Learned counsel for the election petitioner has submitted that the election petitioner had appointed Ravi Kant Singh as his election agent on 31.3.2014 in Form-8, as required under Rule 12(1) of the Conduct of Elections Rules, 1961 and the appointment of said Ravi Kant Singh was also endorsed by the Returning Officer on 31.3.2014. It is submitted by learned counsel for the election petitioner that Jai Prakash Mandal, whose name was circulated to the Presiding Officers as the election agent of the petitioner, was never appointed by the petitioner as his election agent. It is accordingly, submitted that since the polling agents appointed by the election agent Ravi Kant Singh were not allowed to function by the Presiding Officers at different polling booths in the four Assembly segments of Gandey, Bagodar, Jamua and Dhanwar, large scale riggings were done at the polling booths, materially affecting the election process. It is the specific case of the election petitioner that Ravi Kant Singh was his election agent appointed under Section 40 of the Representation of the People Act and his appointment was never revoked by the petitioner by the procedure prescribed under Section 42 of the said Act. Learned counsel accordingly, submitted that the purity and piousness of the election, which was required to be maintained by the Returning Officer, was not at all maintained, thus, materially affecting the election process, and this is a fit ground for declaring the election of the returned candidate to be void under Section 100(1)(d)(iv) of the Representation of the People Act. 6. On the other hand learned counsel for respondent No. 1, who is the returned candidate in the said election, has submitted that actually Jai Prakash Mandal was appointed as the election agent by the petitioner, as the signature of Jai Prakash Mandal was endorsed by the petitioner in presence of the Returning Officer on 3.4.2014. 6. On the other hand learned counsel for respondent No. 1, who is the returned candidate in the said election, has submitted that actually Jai Prakash Mandal was appointed as the election agent by the petitioner, as the signature of Jai Prakash Mandal was endorsed by the petitioner in presence of the Returning Officer on 3.4.2014. It is submitted that by endorsement of the signature of Jai Prakash Mandal by the petitioner as his election agent, the earlier appointment, if any, of Ravi Kant Singh stood revoked under section 42 of the Representation of the People Act by implication. Learned counsel has submitted that since no polling agent was appointed by Jai Prakash Mandal, there was no occasion for allowing the polling agents appointed by any other person to work on the polling booths. Learned counsel has submitted that the respondent No. 1, who is the returned candidate had got 3,65,410 votes whereas the election petitioner had got only 6,966 votes and keeping in view the large gap in the number of votes, it cannot be said that the election process was in any way materially affected by non-functioning of the polling agents on behalf of the election petitioner. It is submitted by learned counsel for respondent No. 1, which was not controverted by learned counsel for election petitioner, that between the returned candidate and the petitioner, there were twelve more candidates who had bagged much more votes than the petitioner and there is no allegation by them that there was any rigging of votes on the polling booths. Learned counsel accordingly, submitted that there is no merit in this election petition and it is fit to be dismissed in-limine. 7. Learned counsel for respondent No. 2, the Returning Officer has drawn the attention of this Court towards the written statement filed on behalf of the respondent No. 2, in which it is stated that though Ravi Kant Singh was initially appointed as the election agent of the petitioner, but he never furnished his specimen signature to be notified to the Presiding Officers and other concerned authorities engaged with the conduct of the election, instead one Jai Prakash Mandal put his specimen signature as election agent of the petitioner along with the signature of the petitioner, in the proforma prescribed in Annexure-23 of Chapter-5, of the Hand Book of Returning Officer, 2014, which was duly circulated to the Presiding Officers. The copy of the specimen signatures of the election agents duly endorsed by the candidates, including the petitioner, has been brought on record as Annexure-A. Learned counsel has also drawn the attention of this Court towards the various paragraphs in the written statement, submitting that Jai Prakash Mandal did all the works connected with election on behalf of the petitioner, such as he received the election symbol of the petitioner, the notice of the penal provisions under the election laws was also communicated to him, he also attended the meeting held by the committee constituted by the District Election Officer as presided over by Dy. Commissioner, Giridih, as the election agent of the election petitioner and all along the process of election the same Jai Prakash Mandal represented the petitioner before the Returning Officer as his election agent. Learned counsel has also drawn the attention of this Court towards Section 51 of the Representation of the People Act, which provides that non-attendance of polling or counting agents in any act or thing which is required or authorised to be done in the presence of the polling or counting agents, shall not be invalidated simply because of their non-attendance. Learned counsel accordingly, submitted that no case is made out to show that the election process was in any way materially affected due to non-attendance of the polling agents of the petitioner and accordingly, no case is made for declaration of the election of the returned candidate to be void under section 100(1)(d)(iv) of the Representation of the People Act. 8. Having heard learned counsels for all the parties and upon going through the record, I find that at present this is not the stage to decide as to whether Ravi Kant Singh was appointed as the election agent of the petitioner or Jai Prakash Mandal was appointed as the election agent. If this question is required to be decided, certainly the issue shall be required to be framed and the issue has to be adjudicated in accordance with law, upon considering the evidences adduced by both the parties on the point. If this question is required to be decided, certainly the issue shall be required to be framed and the issue has to be adjudicated in accordance with law, upon considering the evidences adduced by both the parties on the point. The question that is required to be considered at this stage is, even if the petitioner succeeds in proving his case is that he had actually appointed Ravi Kant Singh as his election agent and the polling agents appointed by him were not allowed to function as such by the Presiding Officers in four Assembly segments, whether this can be a good ground to hold that the election process was materially affected rendering the election of the returned candidate liable to be declared void. 9. Section 51 of the Representation of the People Act, provides for the consequence of non-attendance of polling or the counting agents, which reads as follows:- "51. Non-attendance of polling or counting agents – Where any act or thing is required or authorised by or under this Act to be done in the presence of the polling or counting agents, the non-attendance of any such agent or agents at the time and place appointed for the purpose shall not, if the act or thing is otherwise duly done, invalidate the act or thing done." 10. Section 100 of the Representation of the People Act deals with the grounds for declaring the election to be void, which reads as follows:- "100. Grounds for declaring election to be void:- (1) Subject to the provisions of sub-section (2) if the High court is of opinion:- (a) That on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963). (b) That any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. (c) That any nomination has been improperly rejected. (d) That the result of the election, in so far as it concerns a returned candidate, has been materially affected:- (i) By the improper acceptance or any nomination. (ii) By any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. (c) That any nomination has been improperly rejected. (d) That the result of the election, in so far as it concerns a returned candidate, has been materially affected:- (i) By the improper acceptance or any nomination. (ii) By any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. (iii) By the improper reception, refusal or rejection of any vote or the reception of any vote which is void. (iv) By any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2)……………." 11. A bare reading of the aforesaid provisions clearly show that the non-attendance of the polling agents in the polling booths, shall not vitiate the election process only on that ground. Under Section 100(1)(d)(iv) of the aforesaid Act, though any non-compliance of any statutory provision, shall be a ground for declaring the election to be void, but it must be clearly shown that the said non-compliance had materially affected the election process of the returned candidate. 12. These provisions of the Act are required to be considered in the backdrop of the facts of this case, particularly the fact that the returned candidate had got 3,65,410 votes whereas the election petitioner had got only 6,966 votes. In between the election petitioner and the returned candidate, there were twelve more candidates who had bagged much more votes than the petitioner. There is a sea gap between the number of votes of the returned candidate and the election petitioner and there appears to be no allegation of rigging in the election process by the candidates who had bagged more votes than the petitioner and who had also lost the election. In any view of the matter, I am of the considered view that it cannot even be conceived that even if the polling agents appointed by the election agent appointed by this petitioner had been allowed to work on the polling stations, the petitioner would have been able to bridge the sea gap of 3,58,444 votes, which is the difference of the number of votes between the returned candidate and the election petitioner. 13. 13. In that view of the matter, I find and hold that the election process cannot be held to be materially affected due to non-attendance of the polling agents of the petitioner at the polling booths during the Parliamentary election of 05, Kodarma Parliamentary Constituency, held in the months of March, April and May, 2014, so as to declare the election of the returned candidate to be void under Section 100(1)(d)(iv) of the Representation of the People Act. 14. In view of the aforementioned discussions, even if the petitioner succeeds in proving the fact that the election agent appointed by him was not allowed to take part in the election process, no case can be made out for declaring the election of the returned candidate to be void under Section 100(1)(d)(iv) of the Representation of the People Act. Adjudicating the case after framing the issues, is not at all required in the present case, which shall only be a futile exercise. There is no merit in this election petition and the same is accordingly, dismissed in limine. 15. Consequently, all the interlocutory applications filed in the case by the respective parties, also stand disposed of.