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ELECTION COMMISSION OF INDIA
—————
NOTIFICATION
Nirvachan Sadan, Ashoka Road, New Delhi-110001 Dated 24th July, 2015/2 Shravana,
1937 (Saka)
No. 82/BR-LA/(1/2010)/2015:—In pursuance of Section 106 of the Representation
of the People Act, 1951 (43 of 1951), the Election Commission hereby published Order
dated the 24th June, 2015 of the High Court of Judicature at Patna in Election Petition No. 1
of 2010.
By Order,
R.K. SRIVASTAVA,
Principal Secretary,
Election Commission of India.
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!बहार गजट (असाधारण), 28 सत बर 2015
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.1 of 2010
---------------------------------------------------------------------------------------------------------------
Bijay Kumar Singh, son of Sri Mohan Singh, resident of village — Nawadah, Silfari, P.O.
— Madhopur, P.S. — Chandra Mandi, District — Jamui.
……………… Petitioner
Versus
Sumit Kumar Singh, son of Sri Narendra Singh, resident of village and P.O. — Pakari, P.S.
— Khaira, District — Jamui.
…. ………. Respondent
---------------------------------------------------------------------------------------------------------------
Appearance :
For the Petitioner
:
Mr. S.B.K.Mangalam, Advocate
For the Respondent
:
Mr. Prabhat Kumar Verma, Sr. Advocate
---------------------------------------------------------------------------------------------------------------
CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH C.A.V.
JUDGMENT
Date: 24-06-2015
By this Election Petition, the election petitioner Sri Bijay Kumar Singh has
challenged the election of Sri Sumit Kumar Singh, the sole-respondent who has been
declared elected as a member of 15th Bihar Legislative Assembly from 243, Chakai General
Assembly Constituency in the district of Jamui for which elections were held on 01.11.2010.
2. At elections, after scrutiny, 12 candidates were found validly nominated to contest
the elections .which list was published by the Returning Officer on 18.10.2010. The
elections were held on 01.11.2010 at 286 Booths. On 24.11.2010, counting was done and
result declared. The election petitioner who was the official candidate of Lok Jan Shakti
Party secured 21,618 votes and came second. The sole contesting respondent Sri Sumit
Kumar Singh who was the official candidate of Jharkhand Mukti Morcha secured 21,806
votes, and was accordingly declared the winner by a margin of only 188 votes. The third
was Sri Falguni Prasad Yadav the official candidate of Bhartiya Janta Party who secured
20,259 votes, the difference being 1,547 votes from the winning candidate. The rest of
candidates including the Congress candidate could not cross four figures total.
3. As would be seen from the above, the winning margin was a narrow 188 votes
giving cause to the election petitioner to raise all pleas that could be available to impeach
the elections, but fortunately, there has been no allegation leveled with regard to any corrupt
practices. At the very outset, it may be noticed that as the returned candidate i.e. the sole-
respondent Sri Sumit Kumar Singh happened. to be the son of a sitting minister of the
coalition government of Janta Dal United and Bhartiya Janta Party, a feeble suggestion was
made by the election petitioner that the official involved in the elections were more
favourably disposed to the returned candidate. Rightly this was not pursued by the election
petitioner seriously in any respect.
4. The election petition was filed on 07.12.2010. By order dated 20.01.2011 notices
were directed to be issued to the sole contesting respondent through two processes firstly
directly to the contesting respondent and then court made a request to the Secretary of Bihar
Legislative Assembly to serve a copy of the election petition on the sole respondent as he
had been elected a Member of the Legislative Assembly, but regrettably the Secretary of the
Legislative Assembly returned the same without service pointing out to the court that the
Secretary of the Legislative Assembly could not be made to act as an agent of the court nor
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was its job to serve notice on its members forgetting that this court had only requested the
cooperation to expedite the matter of appearance. Ultimately when all other modes to serve
notice on the elected Member could not fructify, by order dated 25.03.2011, court directed
to publish notices for substituted service through newspapers and it is only thereafter that
the sole respondent appeared through Sri Prabhat Kumar Verma, learned Senior Counsel.
Upon written statement being filed learned issues counsels agreed and eight issues were
framed by order dated 15.07.2011 which are as under: -
(i)
Whether the election petition itself is liable to be dismissed in
view of Section 86 of the Representation of People Act, 1951
inasmuch as two copies of the election petition have not been
submitted along with the election petition and served to the
respondent as required under Section 81 of the said Act ?
(ii)
Whether election petition is liable to be dismissed for not
setting forth full particulars supported by verification under
the forms (statutorily prescribed in relation to allegation)
with respect to allegation of corrupt practices even though
there is no such issue?
(iii)
Whether the election petition discloses any cause of action
and, in absence thereof, is liable to be dismissed in view of
Section .83 read with Section 87 and/or Order VI Rule 16 or
Order VII Rule 11 of the Code of Civil Procedure?
(iv)
Whether there was absence of Polling Officials or Polling
Officers at Booth Nos. 99, 100, 135 & 196 in the constituency
concerned at the relevant time deprived voters of their right
to vote and, thus, materially affected the election and results
of election, especially when the winning margin was only
about 188 votes?
(v)
Whether recovery of Electronic Voting Machines of booth
Nos. 62, 63, 64 & 65 from a private unauthorized premises is
material fact of irregularity affecting the election?
(vi)
Whether the counting of votes in respect of Booth No. 33 was
legal or not in accordance with law. If it was not in
accordance with law still that materially affect the result of
election of the sole-respondent?
(vii)
Whether there has irregularities committed during counting
of votes which has materially affected the result of election?
(viii)
Whether the election petition is not maintainable in absence
of necessary parties. In other words, it must fail for non
joinder of parties?
5. Due to typographical mistake in regards issue no. (iv) instead of booth No. 136
booth No. 196 was typed and later ordered to be corrected. Out of the issues so framed issue
no. 1, 2, 3 & 8 are at the instance of the contesting respondent in aid of dismissal of the
election petition, whereas, issue nos. 4, 5, 6 & 7 are material for election petitioner's case
and setting aside the election.
6. First, I would like to deal with issue no. 5 with regard to alleged recovery of
electronic voting machines of booth nos. 62 to 65 from a private unauthorized premises. On
behalf of election petitioner, initially, various evidences were led, both documentary and
oral, to show how, when the EVMs were being transported after voting, to the election
centres at Jamui, the Polling Officers of the said booths had deviated from the route and
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!बहार गजट (असाधारण), 28 सत बर 2015
were found in a private residence with the EVMs. It was sought to be argued that having
been recovered from unauthorized premises after. the polls, but, before collection of EVMs
and counting thereof, it should be taken a material irregularity affecting the elections and the
votes polled should either be discarded or fresh polling be ordered. But when confronted
with the proceedings of the review meeting Ext. R/3, Ext. R/3/1 & Ext. R/3/2, where note
was taken of these four EVMs and that there had been no complaints or protests at that time
by the election petitioner. Sri S.B.K. Mangalam, learned counsel for the election petitioner,
conceded that he would not seek court's finding on this issue and, as such, would not press
the issue for adjudication.
7. In fairness to Sri Mangalam, it must be noted that the Polling Officers had given
an .explanation that they had been travelling in an open tractor trolley and it had been
drizzling and, as such, when they reached Jamui, near the election centre, there being a long
line of vehicles waiting to deposit the EVMs, they got down from the tractor trailer and
went to one of the polling officer's residence nearby to dry and change. The district
authorities found them there, but upon close scrutiny of the EVMs, they were not found
tampered in any manner. It is because of this reason that the election petitioner did not raise
any grievance at the review meeting or after the counting of votes in this regards.
8. In view of the aforesaid, this court does not decide the said issue which is
dismissed as not pressed.
9. Regarding issue no. 1 as raised by the sole contesting respondent, it may be
noticed that the grievance of the respondent is that the copies of the election petition as
served did bear the signature or attestation of the election petitioner and, as such, in terms of
Section 81(3) of the Representation of People Act, 1951, the election petition should be
dismissed in terms of Section 86 thereof.
10. Suffice to say that the election petition is not defective in any manner. It has the
signature in original of the election petitioner and is duly verified and annexures attested,
but it appears that copies that are meant to be served on the contesting respondent being
singular in the present case, they were true photocopies of the election petition itself. If any,
it is a hyper-technicality and a mere irregularity. It would not vitiate the proceedings leading
to dismissal of the election petition itself. The issue is thus decided against the respondent
and in favour of the election petitioner.
11. With regard to issue no. 2 that the election petition should be dismissed as it does
not set forth full particulars supported by verification in respect of allegation of corrupt
practices. Again suffice to say as noticed in the issue itself, the election petitioner is not
made corrupt practice as a ground for invalidating the election of the returned candidate i.e.
sole contesting respondent. Thus, if there is no such issue of corrupt practice being raised
for adjudication and/or decision, the mandatory requirement of setting forth particulars
supported by verification in this regard is not required and the election petition cannot be
dismissed on this ground. It would have been a totally different matter if making an issue of
corrupt practice, the pleadings are not in accordance with the mandatory provisions in this
regards. In such an event, there being no pleadings of which cognizance could be taken by
the court in relation to corrupt practice the election petition could have been dismissed but
that is not the case. Accordingly, this issue is decided in favour of the election petitioner as
against the contesting respondent.
12. Regarding issue no. 3 that the election petition does not disclose any cause of
action and in absence thereof in view of Section 83 read with Section 87 of the Act as also
Order VI Rule 16 or Order VII Rule 9 of Code of Civil Procedure, the election petition
ought to be dismissed. This issue has been raised by the respondent to scuttle the
proceedings. Having gone through the election petition, there is sufficient pleadings and
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material facts to give cause of action to election petitioner to pursue the matter. This is not
the stage where the evidence has to be seen, because, it is well established that it is only
material facts that have to be stated and not all evidence in support thereof in the election
petition. Facts in this regard to sudden change of polling booths without intimation, non-
arrival of polling staff in polling booth in time, recovery of EVMs from unauthorized
premises have been clearly pleaded. It is another matter whether it can be substantiated by
evidence, but that is a matter of trial and not of pleading. This court finds that there are
sufficient facts which are material . facts which have' been pleaded and on that count the
election petition cannot be dismissed summarily without going through the evidence which
is brought on record in course of trial. The issue is, thus, decided against the respondent and
in favour of the election petitioner.
13. Issue no. 8 is with regard to absence of necessary parties. In fairness to Sri
Prabhat Kumar Verma, learned Senior Counsel for the respondent, he could not show as to
which necessary party was omitted to be made a party to the election petition as it was the
election of the returned candidate that was challenged. It was not challenged on the ground
of corrupt practices. The official witnesses cannot be said to be necessary parties muchless
witnesses who had conducted the election process. Necessary parties are those in whose
absence the election petition itself becomes not maintainable. Section 82 of the Act provides
for the parties who shall be joined as respondent to the election petition. This court finds
nothing in the aforesaid provision which obliged the election petitioner to make anyone else
as a party to the election petition in view of relief sought for and, thus, this issue also
decided against the respondent and in favour of the election petitioner.
14. That leaves us with issue nos. 4, 6 and 7. Regarding issue nos. 6 & 7, they are
inter-connected in the sense it relates to the EVM appertaining to booth no. 33 and what
happened at the time of counting of votes on 24.11.2010.
15. The election petitioner has pleaded in the election petition that when the EVM of
booth no. 33 was brought on the counting table it was found that one of the paper seals was
tampered, when the EVM cover was opened it was found that the EVM machine was on and
had not been switched off and the battery had exhausted and the machine was not in a
position to display the votes (paragraph 36 of the election petition). The Returning Officer
then sent for mechanic of the company who came with technical support. He operated the
machine to give the readings (paragraph nos. 39 & 40 of the election petition). The
recording showed only three votes in favour of petitioner, whereas 394 votes were shown in
favour of the contesting respondent. The margin of votes of the victim being 188 votes. This
was a material irregularity in counting of votes. This machine ought not to have been taken
into account.
16. On behalf of the sole contesting respondent, it is submitted that there is no
pleading of any specific irregularity which could vitiate the counting in respect of this
booth. It is submitted that the election petitioner is only trying to draw adverse inference
which is not sufficient.
17. Sri Subir Rajan, Returning Officer for the elections has been examined as RW
,14 (OW 14). In his deposition, he has admitted that when the EVM was brought for
counting it did not display the votes. He admits that he had called the technician to connect
the EVM with another device, and then it reflected the number of votes. He was questioned
as to what was the device he replied that he was not knowing not being a technical man.
18. If we see the pleading in the election petition, the evidence of Returning Officer
who is also the Presiding Officer, it would be abundantly clear that everyone was aware that
by mistake the EVM was left on while sealing the same. The internal seal of the EVM was
not found tampered. It is only some paper seal of the cover of the EVM that was alleged to
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be tampered. If the machine is left on, then taking into consideration the fact that the voting
was done on 01.11.2010 and counting was done on 24.11.2010, there cannot be any doubt
that the battery would have drained out. This is admitted in the election petition itself. All
that the technician did upon being called, was he connected the EVM to a fresh battery pack
and accordingly read the result contained therein. How can this be termed as any material
irregularity in counting affecting the polls? What is the material irregularity is neither
pleaded nor proved. It may further be noted that there was no written complaint made or
protest registered immediately at the time of counting by the election petitioner in this
regards.
19. In view of the aforesaid facts, it has to be held that it does not stand established
that the counting of votes in respect of booth no. 33 was wrong, illegal or not in accordance
with law and the votes polled in said booth cannot be discarded for any reason. The issue is
thus decided against the election petitioner and in favour of the respondent. These two
issues are decided accordingly.
20. That leaves us with issue no. 4, in relation to which, there has been substantial
contest. Both the parties have agreed that issue no. 4 as originally framed needs to be
reframed for clarity. With consent of the parties, the issue was reframed to bring out the real
dispute in question for adjudication as under :
"Whether the results of election in respect of polling booth nos. 96, 97, 100
and 136 were materially effected vitiating the election results because of the
change of polling booth denying the right Of voters to cast their votes."
21. Election petitioner's submission is that number of voters who were covered by
the aforesaid four booths were about 4500 and the winning margin was only 188. Because
of the sudden last minute change in the location of booths which was contrary to the
mandatory instructions of the Election Commission of India, the voters were caught
unaware and there was nil voting. Had there been free and fair elections~ and voters
permitted to cast their votes, as they were entitled to, the results would have material
changed.
22. Sri Verma, learned Senior Counsel for the contesting respondent submitted that it
was factually wrong to state and it was not supported by evidence that the booths were
changed without notice to anybody. To the contrary, booths were changed in consultation
with the candidates and with full knowledge of the candidates and it had the approval of the
Election Commission of India. Nil voting was because of the booths being hyper sensitive
and there was serious threat from the extremist. He further submitted that merely because
there was nil voting no inference can be drawn, as to how the votes could have been polled,
if they were polled. There is no evidence on record to show that the voting would have gone
in favour of the election petitioner. It is established that votes are scattered and there is no
material to predict or show as to how many people would have voted and in what manner
they would have voted.
23. In order to appreciate the contention on behalf the election petitioner, it would be
first necessary to refer to certain provisions of the Handbook of Returning Officer as issued
by the Election Commission of India (hereinafter referred to as "Commission"). This
contains the entire guideline as laid down by the Commission with regard to conduct of
election which virtually covered every aspect of the entire process and lays down the
procedures to be followed.
24. Chapter 2 of the handbook deals with polling station and has reference to Section
25 of the Representation of People Act, 1951 (hereinafter referred to as the "Act"). Clause 1
of this chapter clearly inter alia provides that once the list of polling stations are published
by the approval of the Commission and the same is proposed to be adopted, no fresh
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approval of the Commission is necessary and if any modification are proposed, the
Commission's approval be obtained well in advance at least two weeks before the last date
for the withdrawal of candidature. It is not in dispute that the list of polling booths was duly
published on 15.10.2010, whereas last date for withdrawal of candidature was 18.10.2010.
25. The next relevant part of the handbook is Clause 7.1 of this chapter which
provides that once the list of polling stations is duly notified that would be the list of polling
stations for that Constituency. Clause 7.2 thereafter provides that District Election Officer
can correct only printing or clerical mistakes, if any, after such publication. Clause 9 deals
with modification in the list. The important Clauses would be Clauses 9.3, 9.4 and 9.5 which
are quoted hereunder:
9.3
Once the lists are approved, requests from political parties and
individuals for shifting of the polling stations from one village to
Another or from one site to another should be considered, only in
extremely
exceptional
cases
where
there
are
overriding
considerations of public convenience for the change proposed. If
the district Election Officer/Returning Officer is satisfied, he should
consult other political parties and contesting candidates and then
only make his recommendations to the Commission in the matter.
9.4
District Election Officer should, on no account, make any change in
the location of polling stations already approved by the
Commission, without its prior approval, as any change may
ultimately result in the election being declared void.
9.5
Where changes become inevitable and have to be made, such
changes should be referred to the Commission for its previous
approval. The changes should be fully publicized and all contesting
candidates and political parties, etc., informed in writing.
26. These provisions must be read with Section 62 of the Representation of People
Act, 1951 which gives a statutory right to vote to every voters who is in the voters list. It is
as a consequence of this right which is exercised by the voters in a free and fair manner that
the true election results are to be declared.
27. From the reading of the aforesaid provisions as made in the Handbook by the
Commission, it is apparent that what is contemplated is that the list of polling stations must
be finalized at least two weeks before the last date of withdrawal, thereafter, only printing
and clerical mistakes can be corrected. If there is an urgent need of modification, then it can
only be done with the prior approval of the Commission and due intimation has to be given
to the persons concerned.
28. Now, let us examine the evidence which is documentary and oral in regards this
issue.
29. First, the documentary evidence —the 15th Bihar Legislative Assembly
Elections having been announced, it appears that a wireless message was sent on 02.10.2010
by the District Election Officer cum Collector, Jamui, to various Assistant Election Officers
and others seeking views with regard to change or re-location of polling station. This has
been referred to in the reports which were filed thereafter which are Exhibits — R7 and
R7/1, both being dated 04.10.2010, the letters from Chakai Sub-division and Sono Sub-
division to the District Election Officer. In the said two documents, there were
recommendations for shifting certain booths including booth no. 92, 96, 97, 99, 100, 115,
132 and 136 and the . reasons for this was that these booths were located in extremists
affected areas within dense forest where election personnel's safety would be compromised.
Then we have Exhibit — 26, the letter dated 13.10.2010 of the Superintendent of Police,
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!बहार गजट (असाधारण), 28 सत बर 2015
Jamui, to the Collection, Jamui, who happens to be the D.E.O. as well, giving the list of
booths which required to be changed in view of the difficulty of the election personnels in
extremist areas. The booths as recommended earlier for change are also included in this list.
We then have the list of booths for the Constituency as was finally published on 15.10.2010.
18.10.2010 was the last date for withdrawal of the candidature with date of poll on
01.11.2010. It appears that thereafter the District Election Officer cum Collector, Jamui,
called a meeting on 21.10.2010 of all the candidates of political parties for discussion with
regard to change of location of some polling booths. The election petitioner undisputedly
attended the said meeting as well. This would be evident from Exhibit — R8/1 and R 8.
This also incorporates the decision taken in the said meeting which is then recorded on
22.10.2010. On 22.10.2010, the District Election Officer vide Exhibit - R9 which is the
same as Exhibit — 15, makes his recommendation to the Chief Election Officer, Bihar with
regard to changes of booths. This was then immediately published as reports in the local
Newspapers which is Exhibit — O & P. The next document is letter dated 26.10.2010 of the
Election Commission of India (Exhibit — R 23) to the Chief Election Officer, Bihar,
according approval to the proposed changes in the location of the polling booths and this
letter is dated 27.10.2010 forwarded to the District Election Officer, Jamui, by Chief
Electoral Officer, Bihar. We then have Exhibit — 32, the press notification in newspapers
dated 30.10.2010, notifying the change of 10 locations of booths in respect of Chakai
Constituency.
30. Thus, from the aforesaid sequence of documentary evidence brought on record, it
would be seen that though various objections called for by the District Election Officer on
02.10.2010 with regard to change of polling booths and responses were received on
04.10.2010. Where after on 15.10.2010, the final publication of polling booths was made
which was three days prior to the last date of withdrawal of nomination which was
18.10.2010. Yet, on 21.10.2010, a fresh meeting was called for and decisions taken therein
to shift certain booths in which not only election petitioner but his local party president was
also present apart from other candidates .and political parties. This decision taken was on
22.10.2010 sent to the State Election Officer for approval. The approval from the Election
Commission, of India received on 26.10.2010 and transmitted to Jamui on 27.10.2010. This
were also published in the Newspapers on 22.10.2010 and subsequently the official
communication was also issued on 30.10.2010. Accordingly, voting was held on
01.11.2010, where as noted above, in about five booths there were no voting at all. The
election petitioner contends that this was primarily because of sudden change of location of
polling stations without information to the voters. But, the stand of the respondent is that the
change was known to everybody, but, because of the disturbed areas' and extremist
warnings people did not vote. Thus, there is no cause for re-polling on these booths.
31. Second, the oral evidence - Now, when we come to oral evidence. One has to
keep in mind that we are dealing with a election dispute. The parties and witnesses are
committed voters having allegiance to one or the other political party, therefore, it is not
safe to blindly rely upon the said evidence, because, it is likely to be prejudiced. Both the
sides have brought in evidence who are voters in respect of the said booths. Election
petitioner's witnesses state that they had no information about change of booth when they
went to the booth they found no one there, they waited and returned. On the next .date they
came to know that the location of booth had changed.. Authorities did not take any step to
publicize the change of location in the locality which are to be affected. On the other hand,
the witnesses on behalf of sole respondent being equally committed voters have said that
When they, went to vote on the new polling stations they found large number of people
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ॢबहर गजट
[सधरण 28 सत बर 2015
waiting there but out of fear of extremist they could not gather courage to vote. Had it been
peaceful time they would have voted.
32. The oral evidence that is available on this issue may now be noted. First, the
District Election Officer-cum-District Magistrate, Jamui, Sri Bipin Kumar, who was
examined as RW-17, has clearly stated that he had received a recommendation for change of
location of about ten booths in relation to this election and at his instance meeting of all
political parties was called for on 21.10.2010, and the proceedings were recorded as Ext.
R/8. He then sent the recommendation by his letter dated 22.10.2010 to the State Election
Officer as Ext. R/9 which was duly approved by the Election Commission of India. He
received the approval on 27.10.2010, which changes were then notified in the Newspapers.
In the cross-examination, he admitted that he was aware of the instructions contained in the
handbook issued in regard to change of location of polling booth as prescribed by the
Election Commission of India.
33. Election petitioner examined seven witnesses on this issue. They are voters of
booth nos. 96 and 99 only and the election petitioner himself. P.W.1, namely, Md. Nazam
Ansari, being voter of booth no. 96, has deposed that he went to the polling station did not
find any arrangement there. There were large number of voters who were there, he returned,
and on the next day, he came to know that the booth had been changed denying him right to
vote. If he had known the new location earlier he would have gone and cast his vote. Similar
is the evidence of P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6. P.W.4 admits in cross-
examination that their area was Naxal affected area. P.W.7 is the election petitioner himself.
On this issue, he admits that at booth no. 97 only eleven votes were cast, but, he asserted
that it was not by the voters but by the polling staff themselves. He does not disclose as to
how he got this information. He states that in the six polling booths, in respect of this issue,
there were 4472 voters who were his supporters and they had been deprived of right of
voting because of the change of location of booth. In his cross-examination, he states that
the change of location of booths, as made by the District Administration, was not informed
to him nor was it communicated to the people of the locality concerned. He has stated that
he had visited booth nos. 96, 97, 99, 100 several times including the date of election.
34. Now, we come to the evidence on behalf of sole contesting respondent. Twelve
witnesses have been examined on behalf of the respondent, who were voters of different
booths under consideration. They have admitted that though there was no official
communication about change of location of booths they were aware of the change but
because of Maoist/Naxal threat, though they had gone to the new booth they did not cast
their vote out of fear. They have admitted that if the elections were conducted in a peaceful
atmosphere they would have voted.
35. I may note that RW-7, namely, Md. Abbas Ansari, who was voter in respect of
booth no. 136, has categorically stated that his villages are highly affected by Maoist
activities and the villages are not connected by motorable road. He has been Mukhiya of the
Gram Panchayat since 2006, and if, the elections were held in a fearless atmosphere he
would have voted. He states that polling staff was there but none of the villagers cast their
vote and they returned.
36. Sri S.B.K. Mangalam in support of the election petitioner submits elaborating his
points that the directions issued by the Commission in the shape of the Handbook laying
down procedures are mandatorily to be complied with. They are to ensure free and fair
elections and infraction thereof must lead to invalidity of polling/voting calling for re-poll.
His submission, thereafter, would be that the mandatory guidelines as contained in the
handbook, relevant parts whereof quoted above, clearly contemplates that changes or
modification in the locations of polling booths should be made two weeks before the last
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!बहार गजट (असाधारण), 28 सत बर 2015
date of withdrawal of candidature and that too with prior approval of the Commission. He
has referred extensively to the case of Mohinder Singh Gill and Anr. Vs. Chief Election
Commissioner since reported in AIR 1978 SC 851 = 1978 (1) SCC 504; to show that
directions are mandatory and binding on the authorities and have to be scrupulously
followed.
37. With reference to documentary evidence he would plead that before finalizing
the polling stations, the District Election officer cum District Magistrate cum Collector,
Jamui, itself sent out wireless message on 02.10.2010 to the authorities seeking their views
in the matter. Responses were received from Chakai Sub-Division and Sono Sub-Division
Ext. R/7 and Ext. R 7/1 being dated 04.10.2010 as also from the Superintendent of Police,
Jamui (Exhibit – 26 dated 13.10.2010). But, on 15.10.2010, the final list of booths was
published without incorporating those changes. This was three days before the last date for
withdrawal of candidature. Once, the final list of candidates was published then on
21.10.2010, after final publication of list, as noted above, a meeting was called and then on
22.10.2010, recommendations were made for change of location of booths which was
ultimately approved by the Commission on 26.10.2010 . The official Newspaper publication
whereof was made on 30.10.2010 whereas elections were to be held on 01.11.2010. This
was in complete breach of provisions of the Handbook. That apart, with reference to the
recommendations that were received by the District Election Officer, he would argue that
the consideration for change was not for the benefit of the voters but only for the protection
of the electoral officers on duty. He would argue that if it was not safe for the electoral
officer to reach the villages then how can it be assumed that it was safe for the villagers to
leave their village and their original booths and travel to another village miles away to cast
their vote. This consideration for change was bad. Then the changes were affected too late in
the day and no official visited the village to inform about the changes. He, thus, would
submit that the polling on the aforesaid changed booths which recorded nil voting with
exception of 11 votes in booth no. 97 require re-polling. This exercise was designed to
prejudice the election petitioner who had large support in those areas. This takes greater
importance when the winning margin was only 188 of the total number of voters in this
changed booth involved were about 4500. According to him, this did not reflect the true
Will of the voters.
38. On the other hand, Sri P.K. Verma, learned senior counsel appearing for the
returned candidate being sole respondent submitted that the documentary evidence would
clearly show that not only the election petitioner participate in the meeting dated 21.10.2010
which considered the change of location of booths but he never protested. He was fully
aware of the changes. The changes were reported by the press immediately after the
meeting. Approval of the Commission having been received, it was also officially notified
in the press, thus, it was for the election petitioner to ensure that his voters were accordingly
informed and there was time enough. The true reason for nil voting was not shifting of
booths but of fear of extremist who had called for boycott of elections and threatened voters.
39. In the beginning, I would refer to the judgment of the Apex Court in the case of
Thakur Sen Negi Vs. Dev Raj Negi since reported in AIR 1994 SC 2526 wherein in
paragraph – 3 this is what their Lordships have said which read as such:
“It must be remembered that in an election dispute, the evidence is
ordinarily of partisan witnesses and rarely of independent witnesses
and, therefore, the court must be slow in accepting oral evidence
unless it is corroborated by reliable and dependable material. It must
be remembered that the decision of the ballot must not be lightly
interfered with at the behest of a defeated candidate unless the
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ॢबहर गजट
[सधरण 28 सत बर 2015
challenge is on substantial ground supported by responsible and
dependable evidence.”
40. Then, I must noted that Section 100 of the Representation of People Act, 1951 is
complete in itself with regard to grounds of challenge. Section 100(1) provides ground on
which the election of returned candidate can be held to be void, nothing can be inferred nor
anything can be omitted. If we refer to the aforesaid so far as the facts of the present case is
concerned, the case could only come under Section 100(1)(d) of the Act. But, before
invoking the same, it must be shown that the results of the election has been materially
affected as has been held in the case of Chhedi Ram Vs. Jhilmit Ram since reported in AIR
1984 SC 146; that it is by facts that has to be shown, in fact, if elections were held, the
results would be materially different. A mere probability would be speculative and not a
reliable test. This is relevant because what is said by election petitioner is that if the voting
had taken place he would have secured more votes on those booths where there was nil
voting but because of sudden change of location.
41. We must keep in mind that out of the entire electorate, it is not that everybody
would vote. Then even, if they vote, at the time of casting their vote, there are different
considerations. There is no hard and fast rule as to who would vote for whom. The votes get
scattered and who would get how many votes is then purely speculative. In this connection,
I may also refer to recent judgment of the Apex Court in the case of Kalyan Kumar Gogoi
Vs. Ashutosh Agnihotri and Anr. since reported in (2011) 2 SCC 532; wherein it was
alleged that about 200 to 300 voters could not cast their vote because of shifting of the
polling booth and thus materially affected the election. This was negative as there was no
proof of facts as to how it materially affected the elections. The Apex Court upheld the
decision of the High Court dismissing the petition challenging the election.
42. I may then refer to another recent decision of the Apex Court in the case of
Mangani Lal Mandal Vs. Bishun Deo Bhandari since reported in (2012) 3 SCC 314;
wherein the Apex Court in paragraph 11 of the reports clearly was of the opinion that
merely because there was non-observance of statutory rules election could not be set aside
unless it is shown that such non-observance resulted in materially affecting the results. It is
not only to be pleaded, but proved.
43. Keeping these principles in mind, I would now examine the evidence. First, so
far as the statutory procedure is concerned, no doubt, it is binding, but in exigency of
situation change in polling booth with approval of Election Commission of India even after
the last date of withdrawal of candidature cannot be said to be an infraction of law or
procedure necessitating intervention by courts in an election petition.
44. The documentary evidence, as noted above, it clearly shows that the election
petitioner was fully aware of the changes that were being made and he had participated in
the meeting and had raised no objection regarding the changes. He and his party were fully
aware of the changes and if his voter base was getting affected, it was expected to him to
take effective steps to secure his interest by informing his voters. Reports were there in the
Newspapers well in time, then to say that location of booths were suddenly changed and the
voters were caught unaware is not of much consequence.
45. In the facts aforesaid, the ocular evidence, as noted above, is partisan. There is
clear evidence that there were Maoist threat. Whether it was because of change of location
or Maoist threat that votes were not cast is again speculative and in absence of any concrete
fact proved no concrete opinion can be formed. But the fact remains that people did not vote
for various reasons. If people did not vote, the administration cannot be blamed nor can the
returned candidate be blamed. As noted, as per the decision of the Apex Court above, the
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!बहार गजट (असाधारण), 28 सत बर 2015
result are not to be lightly interfered with, unless cogent evidence is brought on record to
show otherwise. In the present case, the evidence is surely discrepant.
46. In the result, upon the facts as noted above, this Court is unable to come to a
finding that the results of election by virtue of change of location of booth materially
affected the results in order to avoid the elections in respect of the booths aforesaid. Thus,
this issue is decided against the election petitioner and in favour of the respondent.
47. Before closing, I would only observe that all the recommendations for change of
location of booth are based upon the safety and security of electoral officers. It cannot be
disputed that they are integral part of the process, but at the same time, the Election
Commission of India and the officers associated with election should consider that this is an
election where right of voters is the first consideration. In the present case, in an extremist
disturbed area asking the voters to leave their villages and travel through extremist affected
territories, where the officers dread to travel, to another village to cast their vote would be
unreasonable. In none of the communications, this aspect of the matter is taken into account.
It is hoped that this aspect be kept in mind by the Election Commission of India in future
before according approval for change of location of booth and that to so close to the voting
day.
48. In view of the issues as decided above, the election petition must fail and is
dismissed, accordingly.
(Navaniti Prasad Singh, J.)
Rajeev/A.F.R.
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