झारखड गजट
असाधारण अंक
झारखड सरकार वारा काशत
19 जेठ, 1942 (श०)
सं" या– 249 राँची, मंगलवार, 9 जून, 2020 (ई०)
मंमंडल ( नवा
चन) वभाग
----------
अ/धसूचना
20 माच0, 2020
संया-02/ न0 या0वा0-17-12/20-07-- भारत 2नवा0चन आयोग क5 अ/धसूचना सं"या-82/पूव0
अनु०-1/झार०-:व०स०/ई.पी.(04/2015)/2020 =दनांक-11 फरवर@, 2020 वारा 2नवा0चन अजA सं०-
04/2015 मB =दये गये उDच Eयायालय, झारखंड, राँची क5 तार@ख 18 =दसF बर, 2019 के आदेश से
संबं/धत अ/धसूचना को राजक5य गजट के असाधारण अंक मB काशनाथ0।
झारखड राJयपाल के आदेश से,
राहुल कुमार पुरवार,
मु" य 2नवा0चन पदा/धकार@-सह स/चव
नोट:- कृपया यहाँ से मु=Nत करB।
2
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
भारत नवा
चन आयोग
------------
अ/धसूचना
11 फरवर@, 2020/22 माघ, 1941 (शक)
संया- 82/पूव
अनु०-1/झार०-व०स०/ई.पी.(04/2015)/2020 - - लोक 2त2न/धQव अ/ध2नयम
1951 (1951 का 43) क5 धारा 106 के अनुसरण मB, 2नवा0चन आयोग एतदवारा 2नवा0चन अजA सं०
04/2015 मB =दये गये झारख ड उD च E यायालय के तार@ख 18 =दसF बर, 2019 के आदेश को
काशत करता है।
(यहाँ संलUन आदेश छापB)
आदेश से,
अरव द आन द,
स/चव
भारत 2नवा0चन आयोग
----------------
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
3
ELECTION COMMISSION OF INDIA
-------------
NOTIFICATION
11th February, 2020/22 Magha, 1941 (Saka)
No. 82/ES-1/JKD-LA/EP/(04/2015)/2020 - - In pursuance of Section 106 of the
Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby publishes
the Order dated 18th December, 2019 of the Jharkhand High Court in Election Petition No. 04 of
2015.
(Here print the order attached)
By order,
ARVIND ANAND,
SECRETARY
4
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
Election Petition No. 04 of 2015
[In the matter of and Election Petition under Sections 80(A)(2) and 81 of the Representation of
the People Act, 1951]
Birendra Mandal
…… Petitioner
Versus
Irfan Ansari
…… Respondent
---------
For the Petitioner
:
Mr. V.P. Singh, Sr. Advocate
Mr. K.K. Mishra, Advocate
Mr. Mukesh Kr. Dubey, Advocate
For the Respondent :
Mrs. J. Mazumdar, Advocate.
Mr. Rahul Kamlesh , Advocate
---------
PRESENT
HON'BLE MR. JUSTICE ANANT BIJAY SINGH
---------
JUDGMENT
Reserved On : 05/12/2019
Pronounced On : 18/12/2019
1.
The instant election petition has been filed on behalf of Birendra Mandal (election
petitioner) in terms of provisions of Section 80 (A)(2) and Section 81 of the Representation of
People Act, 1951 challenging the election of the sole respondent Irfan Ansari, who has been
declared elected from 09, Jamtara Assembly Constituency as a member of the Jharkhand
Legislative Assembly for which the election was held on 20.12.2014 and result was declared on
23.12.2014.
2.
Election petition was filed on 29.01.2015 and on 01.05.2015, the election petition was
admitted for hearing and notices were issued to sole respondent and requisites were directed to
be filed under registered cover and rule was made returnable on 26.06.2015.
3.
On 18.12.2015, sole respondent appeared through his counsel and time was given to
file written statement.
4.
The case of the election petitioner in his plaint is as follows:-
(i)
That in view of the notification issued by the Election Commission of India
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
5
for holding General Assembly Election for the constitution of Jharkhand State
Legislative Assembly, for holding election in 09, Jamtara Assembly Constituency different
dates were also notified as given below.
(ii)
That according to the notification issued by the Returning Officer,
following was the detailed program for holding the election:
I. Last date for filing of nomination
03-12-2014
II. Date of Scrutiny of nomination papers
04-12-2014
III. Last date for withdrawal of nomination paper
06-12-2014
IV. Date of Election
20-12-2014
V.
Date of counting of votes
23-12-2014
VI. Date of declaration of election result
23-12-2014
(iii)
That until the last date for filing of nomination, altogether 17 (Seventeen)
candidates filed their nomination papers to contest the said election. The details of
such candidates with their party affiliation is being given hereunder:-
I. Birendra Mandal (Petitioner herein) – Bhartiya Janata Party,
II. Irfan Ansari (Sole Respondent) – Indian National Congress.
III. Bishnu Prasad Bhaiya – Jharkhand Mukti Morcha.
IV. Md. Nazrul Alam – Independent
V. Sukhdeo Rai – Bahujan Samaj Party
VI. Anand Lal Marandi – Independent
VII. Kamal Yadav – Independent.
VIII. Nand Gopal Singh – Trinmool Congress
IX. Man Bharan Pandit – Forward Block.
X. Md. Rizaul Haque – Independent.
XI. Munna Mistry – Independent.
XII. Md. Mushtaq – Independent.
XIII. Rakesh Kumar Lal – Independent.
XIV. Govindo Sen – CPI (ML)
XV. Paresh Marandi – Independent.
XVI. Dhaneshwar Mandal.
XVII. Madhusudan Tapadar.
(iv)
That at the time of scrutiny of nomination papers, the Returning Officer had
rejected the nomination papers of Shri Govindo Sen and Paresh Marandi, whereas
the nomination papers of other candidates were accepted by the Returning Officer.
(v)
That since two independent candidates namely Dhaneshwar Mandal and
Madhusudan Tapadar had withdrawn their candidature until the last date for withdrawal
of nomination, therefore only 13 (thirteen) candidates did contest the election for which
after the last date for candidates did contest the election for which after the last date for
withdrawal of candidature, the Returning Officer had published the list of contesting
candidates.
(vi)
That the election was held on 20-12-2014, counting of votes was done on
6
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
23-12-2014 and on the same day, result of election was declared.
(vii)
That according to the result sheet prepared by the Returning Officer, the
Respondent has secured 67,335 votes whereas the Election Petitioner was stated to have
secured 58,074 votes and therefore the Returning Officer had declared the sole
Respondent as the Returned Candidate from 09, Jamtara Assembly Constituency.
(viii)
That the election of the sole Respondent is void on the ground that his
nomination paper was improperly accepted by the Returning Officer whereas the
nomination paper of Shri Govindo Sen, a candidate set up by the CPI(ML) Liberation
was improperly rejected by the Returning Officer.
(ix)
That the election of the sole Respondent is further fit to be declared void on
the ground of illegalities committed during the course of counting when the Returning
Officer had allowed the counting of votes recorded in those electronic voting machines
(hereinafter referred to as EVMs) which was never used at the polling booths and also
that the Returning Officer did allow the counting of votes of those EVMs where the
number of votes recorded in the EVMs were at variance with the number of votes
polled in the polling stations notwithstanding that objection in this regard was filed by
the petitioner and other contesting candidates.
(x)
That the sole Respondent Irfan Ansari had filed his nomination paper in
two sets. But where and before whom it was filed, is not traceable from the nomination
paper.
(xi)
That the petitioner has obtained the certified copies of both sets of the
nomination papers filed by the sole Respondent wherein all the columns in Form IV are
blank which were required to be filled up by the Returning Officer at the time of
presentation of the nomination paper. According to the endorsement made at the first page
of the two sets of nomination papers, the sole Respondent had filed his nomination
paper on 01-12-2014 at 12 PM and 12:15 PM respectively.
(xii)
That along with his nomination paper, the sole Respondent had filed
Form 26 on affidavit as required by Rule 4(a) of the Conduct of Election Rules 1961
which was sworn by the sole Respondent before the Notary Public on 01-12-2014
(xiii)
That from a perusal of the aforesaid affidavit filed by the sole Respondent
in Form 26 along with his nomination paper, it is evidently clear that the columns meant
for the information regarding dependents, has been completely left blank in all the
columns of the affidavit and therefore the affidavit filed by the sole Respondent along
with his nomination paper was not in consonance with the law declared by the Hon'ble
Supreme Court in the case of Resurgence India Vs. The Election Commission of India &
others since reported in AIR 2014 SC 344.
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
7
Be it noted that on similar situation the nomination paper Sl. No. 35 of Nazrul Alam,
Nomination Paper Sl. No. 38 of Govindo Sen and nomination paper Sl. No. 10 of Paresh
Marandi has been rejected by the Returning Officer.
It clearly shows that the Returning Officer has applied different standard for
accepting and rejecting the nomination paper of different candidates.
(xiv)
That in Paragraph 26 of the aforesaid Judgment, the Hon'ble Supreme Court
has been pleased to hold that if the Election Commission accepts the nomination papers
inspite of blank particulars in affidavit, it will directly violate the fundamental rights of
the citizen to know the assets and liabilities of the candidate which would have the
effect of rescinding the verdict of the Hon'ble Supreme Court in Association for
Democratic Reforms Case.
(xv)
That their Lordships therefore cast a duty upon the Returning Officer to
reject a nomination paper if any column of the affidavit is blank.
(xvi)
That the Deponent would state that it is not that the Returned Candidate,
the Sole Respondent had also concealed information about his dependents.
(xvii)
That similarly the sole Respondent who has declared his age as 41 years
has living children and they are still minor and therefore dependent upon the sole
Respondent but about them also, information has been suppressed/ concealed and the
columns has been left blank.
(xviii)
That it is stated that one Govindo Sen was also a candidate in the said
election and had filed his nomination paper before the Returning Officer as an
independent candidate on 03-12-2014 at 02:48 PM. The serial Number on his
nomination paper was marked as Sl. No. 38.
(xix)
That along with his nomination paper, Shri Govindo Sen had also filed an
Affidavit in Form 26 but only because he had mentioned his name above the column
meant for mentioning the name of the candidate, at the time of scrutiny, the Returning
Officer rejected his nomination paper.
(xx)
That it is important to mention here that while holding the scrutiny of the
nomination paper of Shri Govindo Sen, the Returning Officer became too technical
and did not overlook or ignored a minor mistake in respect of nomination of Govindo
Sen, whereas while holding the scrutiny of nomination paper of the sole Respondent,
the Returning Officer ignored the direction of the Election Commission of India pursuant
to the law declared by the Hon'ble Supreme Court, which was also mentioned at the
foot of Form 26 that if any column of the Affidavit has been left blank, the Nomination
paper would be liable to be rejected by the Returning Officer at the time of scrutiny of
nomination papers.
(xxi)
That thus if the decision of the Returning Officer while rejecting the
nomination paper of Sri Govindo Sen was proper and in accordance with law, the
8
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
Returning Officer had improperly accepted the nomination paper of the sole
Respondent in gross violation of the law declared by the Hon'ble Supreme Court. And
if the decision of the Returning Officer accepting the nomination of the Sole Respondent
was a valid decision, in accordance with law, the rejection of nomination paper of
Govindo Sen was improper.
(xxii)
That improper rejection of a nomination or improper acceptance of a
nomination both are the grounds available under section 100 (1)(c) of the Representation of
the people Act 1951 to challenge the election of the Returned candidate.
(xxiii)
That another candidate Bishnu Prasad Bhaiya had also filed his
nomination paper to contest the said election. Along with his nomination paper, Bishnu
Prasad Bhaiya had also filed his Affidavit in Form 26. In the said affidavit, though
the information required in column II (b) of para 8 of Paragraph 9 of the said affidavit
were/are blank, yet the Returning Officer accepted the nomination paper of Sri Bishnu
Prasad Bhaiya, whereas the Returning Officer had rejected the nomination paper of
another candidate Sri Paresh Marandi on the ground that information required in certain
columns of the affidavit in Form 26 were blank.
(xxiv)
That if the decision of the Returning Officer in the case of Paresh
Marandi was a lawful decision, the decision of the Returning Officer accepting the
nomination paper of Sri Bishnu Prasad Bhaiya has to be held illegal and in case the
decision of the Returning Officer while accepting the nomination paper of Bishnu
Prasad Bhaiya was a lawful decision, the decision of the Retuning Officer while
rejecting the nomination paper of Paresh Marandi cannot be sustained in the eye of law
and the election of the sole Respondent is fit to be set aside on this ground along.
(xxv)
That Bishnu Prasad Bhaiya had received altogether 51775 votes and
therefore, if his nomination paper was improperly accepted, his presence in the fray
had since materially affected the result of election, election of the sole Respondent is fit to
be set aside. In contrast to the above, if the nomination paper of Bishnu Prasad Bhaiya was
properly accepted, it would be evident that the nomination papers of Paresh Marandi was
improperly rejected and on the ground of improper rejection of nomination paper of
Sri Paresh Marandi itself, the election of the sole Respondent is fit to be declared void.
(xxvi)
The Returning Officer tried his best to reject those nomination papers
which could have gone against the interest of the sole Respondent and at the same
time, he had accepted those nominations with similar defects for which other
nominations were rejected since their presence in the fray would have been for the benefit
of the Returned candidate.
(xxvii)
That after the scrutiny, during the course of election also, the role of the
Returning Officer was not fair so was at the time of counting of votes.
(xxviii)
That since the Returning Officer was committed for the success of the sole
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
9
Respondent; therefore it is not that at the time of scrutiny of nomination paper alone, the
Returning Officer did help the sole Respondent. Even at the time of counting of votes, the
Returning Officer went out of way in order to help the sole Respondent.
(xxix)
That Sri Nilambar Mandal, the election agent of the petitioner had
obtained certified copy of the voter's slip distribution list of all 327 booths of 09,
Jamtara Assembly Constituency.
(xxx)
That accordingly to the voters slip distribution report, in respect of Booth
No. 16 only 763 slips were distributed but from the final result sheet of Booth No. 16, it
would be evidently clear that 779 votes were counted.
(xxxi)
That in respect of Booth No. 56, 394 slips were distributed whereas
according to the final result sheet, 402 votes were counted.
(xxxii)
That the petitioner would further state that out of 779 votes polled in
Booth No. 16, 654 were polled in favour of the sole Respondent and in Booth No. 56,
out of 402 votes polled, 263 votes were polled in favour of the sole Respondent.
(xxxiii)
That the petitioner would further state that when EVM of Booth No. 245
was brought for counting, it was not the same EVM used at the polling station.
On behalf of the Petitioner, his election agent did file an objection in writing
to the counting of EVM of Booth No. 145.
During the course of enquiry though it was established that the EVM no.
of Booth No. 245 which was brought up for counting do not match from the number
mentioned by the Presiding Officer in From 17(c) Part 1, yet the Returning Officer permitted
its counting, on the ground that it finds mention in the 2nd copy of Part 1 of Form 17 (c)
maintained by the Presiding Officer, objection was overruled. The same will be
established from the video recording of the election commission.
(xxxiv)
That similarly in respect of EVMs of Booth No.256 and 136 also, written
objection was filed by the election agent of the petitioner before the Observer of the
constituency but it was rejected by the Returning Officer on being forwarded to him by the
observer to report on factual conditions.
(xxxv)
That similar objections, were raised by the petitioner in respect of counting
of votes polled at Booth No. 230 before the Returning Officer but it was again
rejected on the ground that the total votes polled do tally with the second copy of
Form 17 (c) prepared by the Presiding Officer.
Be it noted that similar defects were found in several EVMs which was
objected by the petitioner and his election agent but the same was not entertained by the
Returning Officer rather they were pushed out, out of the counting Hall and ultimately
the petitioner had to sit on "DHARNA" () against the illegal attitude of returning
Officer.
10
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
(xxxvi)
That in all the three Booths, maximum number of votes were polled in
favour of the sole Respondent and therefore deliberately the Returning Officer rejected
the objections.
(xxxvii)
That even after the counting was complete, but before the declaration of
result, the petitioner had filed an application before the Returning Officer to declare the
final result only after the verification of the complaints but it again rejected by the
Returning Office on 23-12-2014 at 03:05 PM and result was declared.
(xxxviii)
That in view of the facts stated hereinabove the election of the sole
Respondent is fit to be declared void for the improper acceptance of his nomination paper
and the nomination paper of another candidate Sri Bishnu Prasad Bhaiya and in
converse if this Hon'ble Court comes to the conclusion that there was no illegality
committed by the Returning Officer while accepting the nomination paper of the sole
Respondent and Bishnu Prasad Bhaiya, then for the improper rejection of nomination paper
of Nazrul Alam, Sri Paresh Marandi and Sri Govindo Sen, the election of the sole
Respondent is fit to be set aside.
(xxxix)
That in respect of the rejection of nomination papers of Nazrul Alam,
Govindo Sen and Paresh Marandi, the Returning Officer had placed reliance upon the
provisions contained in Paragraph No. 6.10.1 (11) of the handbook for the Returning
Officer which inter-alia provides that incomplete affidavits are liable to be rejected leading
to the rejection of nomination papers on the ground of not filling up of all the columns in the
affidavit.
(xl)
That the petitioner has already brought on record the nomination paper filed
by Sri Bishnu Prasad Bhaiya as well as the sole Respondent wherein also, the columns are
blank yet it was accepted.
5.
The sole respondent appeared and filed his written statement on 07.04.2016 taking the
following grounds, which are being reproduced below:
(i)
That Election Petition as framed is not maintainable and the same is fit to
be dismissed under Order 1 Rule 9 for non-joinder of necessary party and Order 7,
Rule 11 of the C.P.C. for suppression of material facts which have not been stated in the
Election Petition thus no complete cause of action arises out of such vague pleading without
adequate statement of material facts as omission of a single material facts leads to an
incomplete cause of action and it is not an election petition in the eye of law.
(ii)
That the statement made in paragraph 1-9 of Election petition does not
require any reply as the same are statement of fact.
(iii)
That in reply to the statement made in paragraph 10 of Election petition, it
is stated that the nomination paper of the Respondent was filled up properly in
accordance with the provisions of law as also in accordance with provisions as
prescribed under the Representation of the People Act, as also under the guidelines issued
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
11
by the Hon'ble Supreme Court, as well as Election Commission of India, whereas,
the nomination paper of Sri Govindo Sen, prima facie, from the perusal of the same
appears to be defective as many columns in Form 26 of the nomination paper have been
left blank though the Returning Officer has noticed only the blank portion of the Column
4 of Part B, at Sl. No.7 under Part A of Form 26 which requires disclosure / information
with the built an area / total respect measurement in sq. feet of the residential buildings.
But from the perusal of the entire Form 26 of Govindo Sen, it also appears
that there is a defect in Para-B also at Column 9 and 10 SI. No. 8 of Part B
relating to disclosure with respect to liabilities has also been left blank, whereas each
and every column is required to contain the necessary information at the time of filing of
the nomination paper in order to supply the information to the citizens/voters as also
mandated by the Hon'ble Supreme Court.
(iv)
That in reply to the statement made in paragraph 11 of Election petition, it
is stated on behalf of the Respondent, that the petitioner has no right / jurisdiction to raise
this issue without making the Returning Officer a Party in this case as any discrepancy
in the matter of counting of votes can be answered/clarified only by the Returning
Officer and it is he alone who can satisfy/ answer this Hon'ble Court with respect to the
objections raised by the petitioner regarding any illegalities committed during the course
of counting by the Returning Officer.
(v)
That in reply to the statement made in paragraph 12, 13 and 14 of Election
petition, it is stated on behalf of the Respondent that the Petitioner has deliberately
suppressed the first part of the nomination paper with respect to the other candidates
which may have clarified the issues raised in this paragraph. Secondly, from the perusal
of the nomination paper, it appears that Part 4 is required to be filed up by the Returning
Officer and without making the Returning Officer a party in this Election Petition this
objection is not sustainable because it is the Returning Officer who can answer this
contention raised by the Petitioner.
(vi)
That in reply to the statement made in paragraph 15 of Election petition, it
is stated on behalf of the Respondent that from a perusal of the nomination paper itself it
is apparent and clear that every column of Form 26 relating to the Department has been
filed up by the Respondent and no columns in the entire nomination paper is vacant
because the Hon'ble Supreme Court in the Judgment referred in paragraph-15 itself has
categorically held that "the candidate must take the minimum effort to explicitly remarks
as NIL or not applicable or not known in the columns and not to leave the particulars
blank”.
(vii)
That each and every columns relating to the deponents has been filled up
by appropriate information or there has been a remark of "Nil".
(viii)
That the defects prevailing in the nomination paper of Govindo Sen and
12
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
Paresh Marandi is very much apparent and against the guidelines issued by the
Election Commission of India as well as the principles laid down by the Hon'ble
Supreme Court as in the nomination paper of Govindo Sen many columns in Form- 26 of
the nomination paper have been left blank though the Returning Officer has noticed only
the blank portion of the Column 4 of Part B, at Sl. No.7 under Part A of Form-26
which requires disclosure / information with respect the built area / total measurement in
sq. feet of the residential buildings.
Furthermore, there is a defect in Part B also at Column 9 and 10 of Sl.
No. 8 of Part B relating to disclosure with respect to liabilities has also been left blank.
In so far the nomination paper of Paresh Marandi is concerned, it is stated that
the Returning Officer during scrutiny has found that Sl. No.5 (i) of Part A column no.
(cha) has been left blank and similarly at Sl. No.7 (ix) the columns with respect to the
dependents have been left blank apart from Sl. No.8 (ka) relating to the declaration with
respect to the liabilities of dependents have also been left vacant apart from the
columns relating to the other liabilities.
(ix)
That in so far as the nomination paper of Nazrul Alam is concerned no
deficiency as pointed out by the Returning Officer is enclosed with the Election
Petition and as such the Respondent is not is a position to reply anything about Nazrul
Alam.
(x)
That it will not be out of place to mention here in this context that the
Returning Officer under his written letter to Govindo Sen and Paresh Marandi requested
them to remove the defects in affidavit before the last date and time of nomination but
the same was not done as a result the Returning Office has no option but to reject
the nomination of both the candidates namely Govindo Sen and Paresh Marandi under
the extant guideline.
(xi)
That in reply to the statement made in paragraph 16 and 17 of Election
petition, it is stated on behalf of the respondent that no column in the nomination paper
of the respondent is blank and particulars in every columns of the affidavit has been given
by the respondent and as such the nomination paper of the respondent has rightly been
accepted by the Returning Officer.
(xii)
That in reply to the statement made in paragraph 18 of Election petition, it
is stated on behalf of the respondent that no information with respect to the any
dependents has been concealed by the respondent and to the best of this knowledge the
respondent has disclosed the information in every column of the nomination paper.
(xiii)
That in reply to the statement made in paragraph 19 of Election petition, it
is stated on behalf of the respondent that it is absolutely baseless and misleading to state
that a man aged 41 years cannot have minor children.
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
13
Secondly, all information with respect to the dependents has been given by
the respondent and no information with respect to the dependents has been suppressed or
concealed rather every information with respect to the dependents has been supplied
and moreover no column in the entire nomination paper has been left blank.
(xiv)
That in reply to the statement made in paragraph 20 and 21 of Election
petition, it is stated on behalf of the respondent that the nomination paper of Govindo
Sen has been rejected because of the reasons mentioned in Annexure-10 Page 92 as
many columns which were relevant for the information such as Column 4 of Part B, at
Sl. No.7 under Part A of Form 26 which requires disclosure / information with respect to
the built up area/total measurement in sq. feet of the residential buildings, Part B also at
Column 9 and 10 of Sl. No.8 of part B relating to disclosure with respect to liabilities
were left blank and as such the Returning Officer has rightly rejected the nomination
paper of Govindo Sen.
(xv)
That in reply to the statement made in paragraph 23 of Election petition, it
is stated on behalf of the respondent that the Returning Officer finding the vacant columns
of the nomination paper suppressing material facts as stated above had rejected the
nomination paper of Govindo Sen but since the respondent has given every information
and no column of his nomination is found blank as such the nomination paper of
the respondent was rightly accepted by the Returning Officer.
(xvi)
That in reply to the statement made in paragraph 24 of Election petition, it
is stated on behalf of the Respondent that the nomination paper of the three candidates
has been rejected by Returning Officer after due consideration as also after considering
each and every aspect of the matter and above all after giving due mater information/notice
to the candidates to rectify the mistakes in the affidavit and as such no ground is
available to the petitioner to challenge the election of the respondent.
(xvii)
That in reply to the statement made in paragraph 25,26 and 43 of Election
petition, it is stated on behalf of the respondent that it was the matter to be decided by
the Returning Officer because Bishnu Kumar Bhaiya may have filed the supplementary
affidavit before the Returning Officer prior to the last date and time of nomination
because the orders relating to the Bishnu Kumar Bhaiya has not be attached and brought
on record by the Petition and as such the 15 objection raised with respect to Bishnu
Kumar Bhaiya is not at all sustainable in the eye of law.
(xviii)
That in reply to the statement made in paragraph 27 of Election petition, it is
stated on behalf of the Respondent that it is absolutely false baseless and misleading to
say that the nomination paper of Bishnu Kumar Bhaiya was improperly accepted
rather the Returning Officer has accepted the nomination paper of Bishnu Kumar Bhaiya
after considering each and every aspect of the matter and as such this issue cannot be
adjudicated upon in the absence of the Returning Officer.
14
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
(xix)
That in reply to the statement made in paragraph 28,29 and 30 of Election
petition, it is stated on behalf of the respondent that if there is any allegation against the
Returning Officer with respect to using any corrupt method or practice he become a
necessary party in this election petition and in the absence of the Returning Officer
and without him being impleaded in this Election Petition as a party all such allegation are
not sustainable in the eye of law and the same is fit to be rejected.
(xx)
That in reply to the statement made in paragraph 31 of Election petition, it
is stated on behalf of the respondent that the Returning Officer has accepted the
nomination paper of the Respondent finding it in proper order and so far as the allegation
against the Returning Officer is concerned it cannot be adjudicated in the absence of the
Returning Officer or without impleading him as a party respondent.
(xxi)
That in reply to the statement made in paragraph 32,33,34,35,36,37,38,39 of
Election petition, it is stated on behalf of the respondent that the same are beyond the
scope and ambit of Sections 100 and 101 of the Representation of Peoples Act as
aforesaid allegation deals with the as commission / omissions of irregularities in the
maintenance of EVM machines and counting of votes which are not justifiable in the
trial of an election petition and this principle of law has been decide categorically and
elaborately by the Hon'ble Supreme Court in several decisions including a judgment
rendered by Constitutional Bench of Hon’ble Supreme Court.
(xxii)
That the entire statement/statement made in the election petition is
absolutely incorrect and the same is a hypothetical and highly imaginary and contrary to
the provision of the Representation of People Act. 1951. It is further added that it is only
the wishful thinking of the Petitioner.
(xxiii)
That in reply to the statement made in paragraph 40 of Election petition, it is
stated on behalf of the respondent that the final result was declared strictly in accordance
with the directions of the Election Commission of India and also in presence of the
observers appointed by the Election Commission of India.
The concerned observer of Election Commission of India and the Returning
Officer have both put their signature on the final result and any statement made by the
petitioner is contrary to law and is emphatically denied by the respondent.
(xxiv)
That in reply to the statement made in paragraph 41 and 42 of Election
Petition, it is stated on behalf of the respondent that from the facts and circumstance
stated herein before and as also from the materials available on record it is apparent and
clear that the respondents who has been elected by the electorate in an election and
there was no error in the entire election process and as such he has been rightly
declared elected.
Secondly in so far as the nomination paper of 07 another candidates such
as Binshu Bhaiya, Nazrul Alam, Paresh Marandi and Govindo Sen is concerned the same
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
15
have been decided by the Returning Officer in accordance with the provisions of law,
in the fact and circumstances existing in their nomination paper and as such there is
nothing wrong as no material has been brought on record to prove the fact that there
was any error in the entire election process.
And moreover whatever has been stated by the petitioner is on the basis
of speculation, guess work and forecast and without any strict material or proof and
there is no scope of interference by this Hon'ble Court.
6.
Based on the pleadings of the election petitioner and written statement filed by the
respondent, under order dated 26.04.2017, following issues were framed:
(i)
Whether the election petition in its present form is maintainable?
(ii)
Whether the election petitioner has the valid cause of action for filing the
election petition?
(iii)
Whether the election petition is fit to be dismissed for non-joinder of the
necessary parties?
(iv)
Whether the nomination paper of the sole respondent was properly filled
up in accordance with law, and if not filled up properly, the same was illegally accepted
by the Returning Officer?
(v)
Whether the nomination papers of another candidates, viz., Sri Nazrul
Alam, Sri Govindo Sen and Sri Paresh Marandi were illegally rejected by the
Returning Officer?
(vi)
Whether the nomination paper of the candidate, Sri Bishnu Prasad
Bhaiya was illegally accepted by the Returning Officer?
(vii)
Whether the Returning Officer allowed counting of votes in the EVMs which
were never used at the time of polling?
(viii)
Whether the Returning Officer allowed counting of votes in the EVMs with
damaged / tampered seal?
(ix)
Whether the result of the sole respondent is liable to be set aside?
(x)
Whether the election petition is entitled to any relief(s)?
7.
Thereafter, the evidences, both oral and documentary, were led on behalf of the
parties and arguments have been advanced on their behalves.
8.
Learned counsel for the petitioner fairly conceded during course of arguments that although
10 issues have been framed, but in order to decide this election petition on the basis of
evidences admitted by the parties, both oral and documentary, Issue Nos. (iii), (iv), (v) & (vi) only
are relevant.
9.
During course of argument, learned counsel for the petitioner submitted that Issue Nos.
(iii), (iv), (v) & (vi) are related to improper acceptance and rejection of the nomination
papers. Learned counsel for the petitioner referred to Section 100 of the Representation of the
16
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
People Act, which contemplates grounds for declaring election to be void and also referred to
provisions of Section 100 (1) (c) & (d), which read as under:-
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) …........................................
(b) …........................................
(c)
that any nomination has been improperly rejected; or
(d)
that the result of the election, insofar as it concerns a returned candidate, has been
materially affected -
(i)
by the improper acceptance of any nomination, or
(ii)
by any corrupt practice committed in the interests of the returned candidate, or
(iii)
by the improper reception, refusal or rejection of any vote or the reception of any vote
which is void, or
(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.
10.
Further learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme
Court passed in the case of Resurgence India v. Election Commission of India & Another
reported in AIR 2014 SC 344, in which para-20, 21 & 26 read as under:
20. Let us now test whether the filing of affidavit stating that the information given in the
affidavit is correct but leaving the contents blank would fulfill the objective behind filing
the same. The reply to this question is a clear denial. The ultimate purpose of filing of
affidavit along with the nomination paper is to effectuate the fundamental right of the
citizen under Article 19(1)(a) of the Constitution of India. The citizens are required to have
the necessary information at the time of filing of the nomination paper in order to make
choice of their voting. When a candidate files an affidavit with blank particulars, it renders
the affidavit itself nugatory.
21. For that purpose, the Returning Officer can very well compel a candidate to furnish
information relevant on the date of scrutiny. We were appraised that the Election
Commission already has a standard draft format for reminding the candidates to file an
affidavit as stipulated. We are of the opinion that along with the above, another clause
may be inserted for reminding the candidates to fill the blanks with the relevant
information thereby conveying the message that no affidavit with blank particulars will
be entertained. We reiterate that it is the duty of the Returning Officer to check
whatever the information required is fully furnished at the time of filing of affidavit with
the nomination paper since such information is very vital for giving effect to the 'right to
know' of the citizens. If a candidate fails to fill the blanks even after the reminder by
the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that
the power of Returning Officer to reject the nomination paper must be exercised very
sparingly but the bar should not be laid so high that the justice itself is prejudiced.
26. In succinct, if the Election Commission accepts the nomination papers in spite of
blank particulars in the affidavits, it will directly violate the fundamental right of the
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
17
citizen to know the criminal antecedents, assets and liabilities and educational qualification
of the candidate. Therefore, accepting affidavit with blank particulars from the candidate
will rescind the verdict in Association for Democratic Reforms (supra). Further, the
subsequent act of prosecuting the candidate under Section 125A(i) will bear no
significance as far as the breach of fundamental right of the citizen is concerned. For the
aforesaid reasons, we are unable to accept the contention of the Union of India.
11.
Learned counsel for the petitioner submitted that the entire evidence has to be
appreciated within the parameter of law laid down by the Hon'ble Supreme Court.
12.
In this case, altogether three witnesses have been examined on behalf of the election
petitioner. P.W.-2 Akhilesh Kumar Singh is the Returning Officer. He was examined on oath
and in examination-in-chief, he has deposed that from March, 2013 till June, 2015, he was
posted as Sub Divisional Officer, Jamtara and in 2014, during General Election of Jharkhand
Legislative Assembly, he was the Returning Officer of 09, Jamtara Legislative Assembly
Constituency and had conducted the Assembly Election of the aforesaid Constituency. From
26.11.2014 till 23.12.2014, he had maintained the order- sheet as the Returning Officer of 09,
Jamtara Legislative Assembly Constituency and had passed orders from time to time and he
has proved the entire order-sheet as Exhibit-1.
13.
P.W.-2, in his examination-in-chief, has further deposed that altogether 17 persons had
filed their nomination papers as candidates of 09, Jamtara Legislative Assembly Constituency.
Scrutiny of the nomination papers was held on 04.12.2014. He has also deposed in his
examination-in-chief that one Govindo Sen had filed the nomination papers in two sets
consisting of 14 pages each, total 28 pages including the enclosures. Both the nomination papers
are marked as Exhibit-2 & 2/A.
14.
P.W.-2 has further deposed that from perusal of order dated 04.12.2014, it appears that
he had rejected the nomination papers of 02 candidates namely, Govindo Sen and Paresh
Marandi and he also referred to order sheet dated 04.12.2014, which reveals that he had rejected
the nomination papers of Govindo Sen as the affidavits (Form-26/Wप-26) were incomplete. He
has also mentioned the word ‘rejected’ in the nomination papers of Govindo Sen. He further
deposed that in the first set of the nomination paper of Govindo Sen (Exhibit- 2), in affidavit
portion which runs from page-8, Sri Govindo Sen did not furnish information in the
information columns, rather he had put a cross mark on it. In the second set of nomination
paper (Exhibit-2/A) filed by Govindo Sen, in Page- 1 of Form-26 at Serial No. 4, Column (2) ‘Self’,
after putting his name, he has put tick mark in the said column and so, his nomination paper
was rejected. He has further deposed that in the separate order-sheet dated 04.12.2014 while
rejecting nomination paper of Govindo Sen, he had mentioned the reason that the affidavit in
support of the nomination paper is incomplete.
15.
P.W.-2 has further deposed that so far nomination paper of Paresh Marandi is concerned
which was filed in one set, was similarly rejected by him under order dated 04.12.2014. This
entire nomination paper of Paresh Marandi has been marked as Exhibit-3. The Returning
18
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
Officer has rejected the nomination paper of Paresh Marandi as in Page-8, Serial No.8(kha) (III)
(kha) of the nomination paper, which deals with assets and liability, some columns are left blank.
16.
P.W.-2 has further deposed that the nomination papers of Md. Nazrul Alam were filed in
two sets, consisting of 14 pages each. Both nomination papers have been marked as Exhibit-4 and
4/A. Under order dated 04.12.2014, he had rejected one set of nomination paper of Md. Nazrul
Alam which was submitted in Hindi. The reason for rejection of the nomination paper of Md.
Nazrul Alam was that Column-9 in Page-8 was left blank.
17.
P.W.-2 has further proved the nomination papers of Irfan Ansari, Returned Candidate, who
had filed the nomination papers in two sets consisting of 14 pages each. Both nomination
papers of Irfan Ansari have been marked as Exhibit-5 & 5/A.
18.
P.W.-2 had accepted both the sets of nomination papers of Irfan Ansari. In Page-1 of
nomination paper of Irfan Ansari under Serial No.4 at sub Serial Nos. 3, 4 & 5, it is written as
‘sunya’ in Hindi. He suo moto said that as Irfan Ansari has no dependent, he had not given any
particulars.
19.
P.W.-2 has deposed that in the first set of the nomination paper of Irfan Ansari, at Page-8
at Serial No.8 (kha), in the columns of dependent nos. 1, 2 & 3, it is written as ‘sunya’ in
Hindi and in the second set of the nomination paper, at Page-1, Serial No.4, Sub-serial Nos.3, 4 &
5, it is written as ‘sunya’ in Hindi. At Page-8 at Serial No.8(kha), in the columns of dependent
nos. 1, 2 & 3, it is written as ‘sunya’ in Hindi.
20.
P.W.-2 has also proved the nomination papers of Bishnu Prasad Bhaiya who had filed
nomination papers in two sets consisting of 14 pages each. The nomination papers of Bishnu
Prasad Bhaiya have been marked as Exhibit-6 & 6/A. In the Internal Page-8 of the nomination
paper, first set, Serial No.8 B (III) is left blank. Serial No.9 is also left blank. Suo moto said that
as Bishnu Prasad Bhaiya had already given detail descriptions in the below column, so it is
left blank and in second set, at Page-8 of the nomination paper, Serial No.8 (kha) (III) is
left blank. Serial No.9 is also left blank. Suo moto said that as Bishnu Prasad Bhaiya had
already given detail descriptions in the below column, so it is left blank.
In terms of Comment No.5 mentioned in Page-9 of the nomination paper which
contains the direction of the Hon’ble Supreme Court given in the case of Resurgence India
vs. Election Commission of India and others, he had not given any opportunity to the candidates
to remove the defects present in the nomination papers. He had accepted the nomination
papers of Irfan Ansari and Bishnu Prasad Bhaiya who had contested the election from 09,
Jamtara Legislative Assembly Constituency.
21.
P.W.-2 in his cross-examination on oath, has deposed that on the date of the scrutiny i.e. on
04.12.2014, the entire proceeding of the scrutiny was video-graphed as per the guidelines of the
Election Commission. The process of scrutiny was an open proceeding where representatives of
the candidates and the candidates were also present. He has further deposed that he had rejected
the nomination papers of three persons namely Govindo Sen, Paresh Marandi and Md. Nazrul
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
19
Alam and had informed them orally, but they had not filed any written objection.
22.
He has further deposed in para-32 that in the nomination paper of Paresh Marandi, one of
the grounds for rejection was that at Page-3, Serial No.-7, Sub-Serial No.9, where the candidate
was required to give information pertaining to the property of the candidate and his dependents,
the column was left blank. Sub-Serial No.9 of Serial No.-7 at Page-3 has been marked as
Exhibit-A.
23.
He has further deposed that in the nomination paper of Paresh Marandi at Page-8,
Serial No.8(kha) (III) (kha), four columns which pertains to the information relating to the
assets and liabilities of husband or wife, dependent nos.1, 2 & 3 have been left blank. Further,
in the nomination paper of Paresh Marandi at Page-2, Serial No.5(i) which deals with the
information to be furnished by the candidate regarding pendency of criminal cases where
punishment prescribed is 2 years and above, Sub-Serial No.(Cha) is left blank. The entire
nomination paper of Paresh Marandi has been earlier marked as Exhibit-3.
24.
He has deposed that he had passed the order dated 04.12.2014 rejecting the nomination
paper of Paresh Marandi. The entire order-sheet dated 04.12.2014 has been marked as Exhibit-
B. He has deposed that he had given the reason that in the nomination paper of Paresh
Marandi, in the affidavit (Form 26), Part-Ka, Serial No.5(i), Sub-serial No. Cha and Serial
No. 7(ix) and Part- Kha, Serial No. 8(Ka) are left blank. The candidate was informed to remove
the aforesaid defects which were not removed by the candidate, resulting to rejection of his
nomination paper.
25.
P.W.-2, in his cross-examination, has further deposed that in the first set of nomination
paper of Govindo Sen earlier marked as Exhibit-2, at Serial No. 4(1), in place of writing his
name, he has put tick [√] mark. The aforesaid column has been marked as Exhibit-C and in the
second set of nomination paper of Govindo Sen earlier marked as Exhibit-2A, at Serial No. 4(1),
in place of writing his name, he has put tick [√] mark. The aforesaid column has been marked as
Exhibit-D. In the order dated 04.12.2014 while rejecting the nomination papers of Govindo Sen,
he had given the reason, which is earlier marked as Exhibit-1/A.
The Form-26, Rule-4(Ka) of Conduct of Election Rules, 1961 is meant for providing
the PAN number and details of the income tax returns. The aforesaid column has been marked as
Exhibit-E.
26.
He has further stated in cross-examination that during the scrutiny of nomination
papers, nobody had raised any objection when the nomination papers of Irfan Ansari were
accepted and the nomination papers of Paresh Marandi and Govindo sen were rejected.
27.
P.W.-1 Birendra Mandal is the Election Petitioner. He in his examination-in-chief has
stated that he was one of the candidate from 09, Jamtara Assembly Constituency and on
04.12.2014, he along with his election agent Nilambar Mandal was present at the time of scrutiny
and during course of scrutiny when the Returning Officer (P.W.-2) had illegally rejected the
nomination papers of Govindo Sen and Paresh Marandi and had also rejected one set of
20
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
nomination paper of Nazrul Alam and had accepted the nomination paper of Irfan Ansari, he
had raised objection for accepting the nomination paper of Irfan Ansari, but objection was
overruled.
28.
In examination-in-chief, he has further stated that in the nomination paper of Irfan Ansari
in Form-26, Serial no. 4, column no. 3, 4, and 5, there was no entry and in the nomination paper
of Govindo Sen and in one set of nomination paper of Nazrul Alam, the aforesaid columns
were also left blank, but the nomination paper of Irfan Ansari was accepted and the nomination
paper of Govindo Sen and one set of nomination paper of Nazrul Alam was rejected.
29.
P.W.-1, in his cross-examination, has deposed that he had contested the Election of
Jharkhand Legislative Assembly, 2014 from 09, Jamtara Assembly Constituency on the ticket of
Bhartiya Janta Party and he has challenged the election of Irfan Ansari on the ground that his
nomination paper was improperly accepted by the Returning Officer and the Returning Officer
had rejected the nomination papers of Govindo Sen and Paresh Marandi.
30.
P.W.-1 has further deposed in para-5 that he has stated in para-42 of the election petition
that the Returning Officer has rejected the nomination papers of Md. Nazrul Alam, Govindo
Sen and Paresh Marandi, placing reliance upon the provision contained in Para 6.10.1 (xi) of the
Handbook of the Returning Officer.
31.
P.W.-1 has further deposed that Md. Nazrul Alam had contested as an independent
candidate, whereas Govindo Sen had contested on the symbol of CPI(ML) and Paresh Marandi
was an independent candidate. In para-10, he has deposed that Md. Nazrul Alam, independent
candidate had filed nomination paper in two sets, but he cannot say in how many sets Govindo
Sen, CPI(ML) candidate and Paresh Marandi, independent candidate had filed their nomination
papers.
32.
P.W.-1 has further deposed that on 04.12.2014 at 10:00 A.M., when scrutiny of the
nomination papers was going on, he was present upto 2:00 P.M. On the date of scrutiny, he along
with his election agent Nilambar Mandal was present and on behalf of Md. Nazrul Alam, his
election agent Kaleshwar Mandal was also present. Govindo Sen and Paresh Marandi, the
candidates themselves were present at the time of scrutiny.
33.
In Para-15, he has deposed that, when the nomination papers of Md. Nazrul Alam,
Govindo Sen and Paresh Marandi were rejected, they had raised oral objection before the
Returning Officer, but they had not raised any objection before the Election Commission.
However, oral objection was raised before the Observer.
34.
In para-16, he has deposed that when the nomination paper of Irfan Ansari was
accepted, he had raised oral objection before the Returning Officer and had tried to submit
written objection whereupon he had said that he has been given oral hearing and he will look
into the matter.
35.
P.W.-3 Nilambar Mandal is the election agent of Birendra Mandal (Election Petitioner).
He has stated in his examination-in-chief that he along with Birendra Mandal, who was the
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
21
candidate of Bhartiya Janta Party, was present in the office of the Returning Officer at the time of
scrutiny on 04.12.2014 and after scrutiny, the Returning Officer has illegally rejected the
nomination paper of Govindo Sen and Paresh Marandi and one set of nomination paper of
Nazrul Alam and he has further stated in para-7 that in the nomination paper of Irfan Ansari, there
was nothing mentioned in Form-26 at serial no. 4, column-3, 4 and 5, however the aforesaid
columns of nomination papers of Govindo Sen and Nazrul Alam (in one set) are also left blank.
However, the nomination paper of Irfan Ansari was accepted and the nomination papers of
Govindo Sen and one set of nomination paper of Nazrul Alam were rejected.
36.
P.W.-3, in his cross-examination, has deposed that Birendra Mandal had filed nomination
papers in four sets and further he had no knowledge that in how many sets, Govindo Sen had
filed his nomination papers as a CPI(ML) candidate. He has stated in para-15 that scrutiny of
the nomination papers was held on 04.12.2014 from 12:00 Noon till 4:00 P.M. The Scrutiny was
held in the office of the Sub-Divisional Magistrate, Jamtara and he had reached at venue of scrutiny
at 12:00 Noon on the date of scrutiny.
37.
He has deposed in para-23 that only some parts of the scrutiny procedure was video-
graphed and entire scrutiny procedure was not video-graphed.
38.
In para-24, he has deposed that when the nomination paper of Birendra Mandal was
rejected, he had made an oral protest and had tried to give written protest, but it was not
entertained at that time. He had not sent any written objection to the Election Commission of India.
I find that his evidence is contradictory to the evidence of Birendra Mandal regarding his presence
when scrutiny took place.
39.
Altogether six witnesses have been examined on behalf of the sole respondent. R.W.-1,
Irfan Ansari, is the Returned Candidate. He in his examination-in-chief has stated that he
had contested the 09, Jamtara Legislative Assembly Election, 2014. Scrutiny of the nomination
paper was held on 04.12.2014 and apart from him, 16 candidates have filed their nomination
papers, out of which two candidates namely, Dhaneshwar Mandal and Madhusudhan Tapadar
had withdrawn their nomination papers. However, the nomination papers of Govindo Sen and
Paresh Marandi were rejected after scrutiny. The entire scrutiny of the nomination paper was
video-graphed. In para-10, he has stated that he had filed nomination papers in two sets.
40.
R.W.-1, in his cross-examination, has deposed that his marriage was solemnized in
the year 2000 and he has four children. Krish Ansari is his elder son who was born on
21.05.2002 and Ishu Ansari is his youngest son who was born in the year 2013. In his nomination
paper at page-2 of 9, Column No. (i) and (ii) which seeks information regarding pending criminal
cases which are punishable for 2 years and more and he had mentioned about two criminal
cases, detail descriptions are given in para-9 of the cross-examination.
41.
He has further deposed in para-10 that in Form-26, at Column No. 4, he had
mentioned the name of his wife namely, Razia Khatoon, but he had not mentioned any other
name, so far dependents are concerned, as his children were minors and they did not have any PAN
22
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
Card or Bank account number, so at Sub-serial No. 7 (Ga) of Serial No. 11 at Page No. 7 of Part
– Kha of his nomination paper, the Column are filled up as “Shunya” in Hindi and at Serial No.8
(Kha) (III) (Ka) & (Kha) at Page No.8 of Part-Kha of nomination paper, he had mentioned the
value of self-acquired property as Rs. 86 lakhs and the value of the property received from
inheritance as “Shunya” in Hindi. He has deposed that at the time of scrutiny, he had not raised
any objection for rejecting the nomination papers of Govindo Sen and Paresh Marandi and
he has no knowledge whether his election agent had raised any objection for rejecting the
nomination papers of Govindo Sen and Paresh Marandi.
42.
R.W.-2 Imran Ansari. He is the brother of Returned Candidate. He in his
examination-in-chief has stated that he has no knowledge about filing of nomination paper
and the orders passed by Returning Officer.
43.
R.W.-3 Azharuddin. He has stated that he was present at the time of filing of
nomination paper of Irfan Ansari. He was examined on the question of irregularities committed
by EVM machine to which he has deposed that he has specific knowledge with regard to
sealing of EVM machines in his presence.
44.
R.W.-4 Abhay Kumar Pandey. He has no knowledge in how many sets Irfan Ansari had
filed his nomination papers.
45.
R.W.-5 Md. Parvez Rahman. He was the polling agent at Booth No. 264. He has no
knowledge about filing of nomination papers.
46.
R.W.-6 Ershad-ul-Haque. He was also the election agent at Booth No. 237 and he has
no knowledge about filing of nomination papers.
47.
Learned counsel for the respondent, on the other hand, during course of argument relied
on two judgments of Hon'ble Supreme Court in the case of Mangani Lal Mandal v. Bishnu Deo
Bhandari reported in (2012) 3 SCC 314. Para-11 & 12 of the aforesaid judgment read as under:
11. A mere non-compliance or breach of the Constitution or the statutory provisions
noticed above, by itself, does not result in invalidating the election of a returned
candidate under Section 100 (1)(d)(iv). The sine qua non for declaring the election of
a returned candidate to be void on the ground under clause (iv) of Section 100 (i)(d) is
further proof of the fact that such breach or non-observance has resulted in materially
affecting the result of the returned candidate. In other words, the violation or
breach or non-observation or non-compliance with the provisions of the Constitution
or the 1951 Act or the rules or the orders made thereunder, by itself, does not
render the election of a returned candidate void Section 100 (1)(d)(iv). For the
election petitioner to succeed on such ground but also that the result of the election
insofar as it concerned the returned candidate has been materially affected. The view
that we have taken finds support from the three decisions of this Court in: (1)
Jabar Singh v. Genda Lal; (2) L.R. Shivaramagowda v. T.M. Chandrashekar; and
(3) Uma Ballav Rath v. Maheshwar Mohanty.
12. Although the impugned judgment runs into 30 pages, but unfortunately it does not
reflect any consideration on the most vital aspect as to whether the non-disclosure
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
23
of the information concerning the appellant's first wife and the dependent children
born from that wedlock and their assets and liabilities has materially affected the
result of the election insofar as it concerned the returned candidate. As a matter of
fact, in the entire election petition there is no pleading at all that the suppression of the
information by the returned candidate in the affidavit filed along with the
nomination papers with regard to his first wife and dependent children from her and
non-disclosure of their assets and liabilities has materially affected the result of the
election. There is no issue framed in this regard nor is there any evidence let in by the
election petitioner. The High Court has also not formed any opinion on this aspect
48.
Learned counsel for the respondent also relied on the judgment passed in the case of
Mairembam Prithviraj v. Pukhrem Sharatchandra Singh reported in (2017) 2 SCC 487.
Para-23 & 26 of the aforesaid judgment read as under:
23. It is clear from the above judgment in Durai Muthuswami that there is a
difference between the improper acceptance of a nomination of a returned candidate
and the improper acceptance of nomination of any other candidate. There is also a
difference between cases where there are only two candidates in the fray and a
situation where there are more than two candidates contesting the election. If the
nomination of a candidate other than the returned candidate is found to have been
improperly accepted, it is essential that the election Petitioner has to plead and prove
that the votes polled in favour of such candidate would have been polled in his favour.
On the other hand, if the improper acceptance of nomination is of the returned
candidate, there is no necessity of proof that the election has been materially affected
as the returned candidate would not have been able to contest the election if his
nomination was not accepted. It is not necessary for the Respondent to prove that
result of the election in so far as it concerns the returned candidate has been
materially affected by the improper acceptance of his nomination as there were only
two candidates contesting the election and if the Appellant’s nomination is declared to
have been improperly accepted, his election would have to be set aside without any
further enquiry and the only candidate left in the fray is entitled to be declared elected.
26. Mere finding that there has been an improper acceptance of the nomination is not
sufficient for a declaration that the election is void under Section 100 (1) (d). There has
to be further pleading and proof that the result of the election of the returned
candidate was materially affected. But, there would be no necessity of any proof in the
event of the nomination of a returned candidate being declared as having been
improperly accepted, especially in a case where there are only two candidates in the
fray. If the returned candidate’s nomination is declared to have been improperly
accepted it would mean that he could not have contested the election and that the
result of the election of the returned candidate was materially affected need not be
proved further. We do not find substance in the submission of Mr. Giri that the
judgment in Durai Muthuswami (supra) is not applicable to the facts of this case.
The submission that Durai Muthuswami is a case of disqualification under Section 9-A
of the Act and, so, it is not applicable to the facts of this case is also not correct. As
stated supra, the election petition in that case was rejected on the ground of non-
24
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
compliance of Section 100(1)(d). The said judgment squarely applies to this case on all
fours. We also do not find force in the submission that the Act has to be strictly
construed and that the election cannot be declared to be void under Section 100(1)(d)
without pleading and proof that the result of the election was materially affected. There
is no requirement to prove that the result of the election of the returned candidate is
materially affected once his nomination is declared to have been improperly
accepted.
49.
Learned counsel for the respondent further submitted that the Supreme Court has held
that mere finding that there has been an improper acceptance of the nomination paper is not
sufficient for a declaration that the election is void under Section 100 (1)(d). There has to be
further pleading and proof that the result of the election of the returned candidate was
materially affected. However, there is a difference between the improper acceptance of a
nomination of a returned candidate and the improper acceptance of nomination of any other
candidate.
50.
Further, learned counsel for the respondent while referring to the evidence of P.W.-2
Akhilesh Kumar Sinha submitted that P.W.-2 in his cross-examination in para-31, has
categorically deposed that he before rejecting the nomination papers of three persons namely,
Govindo Sen, Paresh Marandi and Md. Nazrul Alam, had informed them orally, but they had not
filed any written objection. In examination-in-chief of this witness, the entire order sheet has been
marked as Exhibit-1. In Para-7, 9 & 10, he has deposed that he has given reasons that as the
affidavits were incomplete, he had rejected the nomination papers of Govindo Sen. Further, in
separate order sheet dated 04.12.2014 while rejecting nomination paper of Govindo Sen, he had
mentioned the reason that the affidavit in support of the nomination paper is incomplete and so,
he had rejected. The separate order sheet dated 04.12.2014 has been marked as Exhibit-1/A.
51.
Learned counsel for the respondent further submitted that P.W.-2 in para-13 of his
examination-in-chief, has deposed that in order sheet dated 04.12.2014, he had mentioned that
while rejecting the nomination paper of Paresh Marandi, he has given reasons that in Page-8,
Serial No. 8 (kha)(III)(kha) of the nomination paper, which deals with assets and liability,
some columns are left blank.
52.
P.W.-2 in para-14 & 15, has further deposed that one set of nomination paper of Md.
Nazrul Alam, which was submitted in Hindi was rejected and he had mentioned the reason for
rejection of the nomination paper of Md. Nazrul Alam was that Column-9 in Page-8 was left blank.
53.
P.W.-2 in para-23, has further deposed that he had accepted the nomination paper of
Bishnu Prasad Bhaiya, who had filed the nomination papers in two sets consisting of 14 pages
each, which have been marked as Exhibit-6 & 6/A and although in Internal Page-8 of the
nomination paper, first set, Serial No. 8 B (III) was left blank, but Bishnu Prasad Bhaiya had
already given detail descriptions in the below column, so it was left blank. So, his nomination paper
was accepted.
54.
P.W.-2 has further deposed that so far the Returned Candidate Irfan Ansari is concerned, he
झारखडगजट(असाधारण) मंगलवार, 6 जून, 2020
25
had filed the nomination papers in two sets consisting of 14 pages each. The nomination papers of
the Irfan Ansari has been marked as Exhibit-5 & 5/A. He has deposed that in the first set
of the nomination paper, in Page-1 of nomination paper of Irfan Ansari under Serial No. 4 at
sub Serial Nos. 3, 4 & 5, it was written as 'sunya' in Hindi and at Page-8 at Serial No. 8 (kha),
in columns of dependent nos. 1, 2 & 3, it was written as “sunya” in Hindi and in second set of the
nomination paper, in Page-1 of nomination paper of Irfan Ansari under Serial No. 4 at sub Serial
Nos. 3, 4 & 5, it was written as 'sunya' in Hindi and at Page-8 at Serial No. 8 (kha), in columns
of dependent nos. 1, 2 & 3, it was written as “sunya” in Hindi. He has deposed that as
Irfan Ansari has no dependent, so he had not given any particulars and it cannot be said that his
nomination papers have been improperly accepted.
55.
Learned counsel for the respondent submitted that on the basis of the evidences, both
oral and documentary, mainly of P.W.-2 Returning Officer, it can be said that this is not a case which
falls under Section 100 (1)(c) of the Representation of People Act and so it cannot be said that
the Returning Officer had illegally rejected the nomination papers of three candidates which has
materially affected the election.
56.
After hearing the parties, detail analysis of the evidences, oral and documentary, adduced
on behalf of the parties and after going through the judgments referred by the parties, I find
that in view of the deposition of P.W.-2 read with evidence of P.W.-1 Birendra Mandal and
evidence of P.W.-3 Nilamber Mandal, it cannot be said that the Returning Officer had improperly
rejected the nomination papers of Govindo Sen, Paresh Marandi and Md. Nazrul Alam and had
improperly accepted the nomination paper of Irfan Ansari.
57.
So, I am of the view that the election petitioner has failed to prove Issue Nos. (iii), (iv), (v)
& (vi). So, Issue Nos. (iii), (iv), (v) & (vi) are decided against the election petitioner and in
favour of the respondent.
58.
So far Issue Nos. (vii), (viii) & (ix) are concerned, learned counsel for the election petitioner
has not pressed and has not advanced any argument on these issues to prove the case and so no
finding is being recorded on these issues.
59.
Accordingly, the instant election petition is devoid of merit and is hereby dismissed. There
shall be no order as to costs.
60.
Registrar General is directed to send an authenticated copy of this judgment to Election
Commission of India and also, the substance of the decision to the Hon'ble Speaker, Jharkhand
Legislative Assembly, Ranchi.
Anant Bijay Singh, J.,
Jharkhand High Court, Ranchi
The 18th December, 2019
Sunil/AFR.
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