- (1.) This Election Petition has been filed to challenge the parliamentary election in respect of the Balurghat Parliamentary Constituency.
(2.) PETITIONERS CASE 2.1 The case of the petitioner is that the election in respect of the said Constituency was held on 30th April, 2009 and result declared on 16th May, 2009. The petitioner lost by 5005 votes. Although the Election Commission was made a party to the said petition its name has been deleted. The written statement filed by the respondent No.1 can be split into denials and assertions. The respondent no. 1 was neither examined nor cross-examined therefore the averments made has not been proved. The procedure to be followed in holding of election is laid down in the rules and is mandatory in nature. The crossexamination has been mainly based on no complaint made at the relevant point of time. Documents 1 to 15 have been admitted by consent. The Rules specifically provides for the layout of the Counting Hall, which in the instant case has not been strictly followed. The first grievance is that Form 17C Part-II was defective and it is only when the defect was brought to the notice of the officer that the same was rectified. There has been manipulation with the Election Voting Machine (EVM). The EVM was to be checked by a mock poll and certificate issued. Such mock poll was not conducted on the date of election at the polling booth. The black board which was to display the result after counting was also not present. There was no announcement of the result over the microphone or public address system and no computer for preparation of the Excel sheet by the Assistant Returning Officer. No Additional Staff of the Observer was deployed, in fact the Observer left mid way. No gazetted officer was deployed and although the proforma of the result sheet is to be signed by the Observer and the Returning Officer no proforma was declared. There was no cross checking nor any random check by the Observer's staff of any two EVM. These exercises were to be undertaken as per the Rules to be followed. In the counting hall in fact after the 8th round a complaint was made to the Returning Officer and a request for recounting was also made but there was no response. 2.2 After preparation of Form 17C Part-I on the polling day and Form 17C Part-II on the counting date Form 20 Part-I is prepared. The said Form 20 Part-I is to be signed by the candidate before the result is declared but such form was not received or signed by the petitioner. In fact postal ballots which had been received were also wrongly rejected. 2.3 The grounds for challenge have been proved by evidence in examination and cross-examination. The Counting Supervisor, the Assistant Returning Officer and the Observer are to follow specific instructions. For lapse of following such specific instructions the election in respect of the said constituency has been vitiated. 2.4 In the written statement besides denial it has been specifically pleaded that the procedure which was to be followed were followed, therefore, the question of accepting the allegation did not arise. Assertions have also been made with regard to the instructions followed but none of the assertions have been proved by evidence. The first complaint was lodged with the Returning Officer on 16th May, 2009 i.e. on the date of counting. On the same date a complaint was also lodged with the Observer and on 17th May, 2009 a complaint was lodged with the Election Commission who did not personally receive such complaint. 2.5 There has been infraction of election rules, in preparation of Form 17C Part-I and Part-II. The noting in Form 20 Part-I is not a correct reproduction of Form 17C Part-II. In Form 20 Part-I the polling station wise counting is recorded. The role of the Observer and the functions of the Returning Officer and the Assistant Returning Officer has been specifically spelt out by the plaintiff in evidence. Volume-II of the Hand book relating to Returning Officers and in particular Rule 23.3 envisages announcement of votes or writing of such votes on a black board. Rules 18.20 and 18.22 of Volume I of the Handbook for Candidates contemplates installation of computer in the counting hall and announcement of results table wise round wise counting of votes through the public address system. As there was no microphone, there has been noncompliance as no announcement could be made over the public address system. The counting process is to monitored and supervised by the Observer on the report of the Assistant Returning Officer, Returning Officer and Additional Staff of the Observer till the final result is announced. Form 17C Part-II though signed does not assume finality and is prepared on counting day. It is by Form 20 PartII that the final result is declared. Form 17C Part-II is prepared on the basis of EVM display and the display on the Black Board. The Black Board was nowhere in the counting hall and did not display round wise table wise counting of votes. From Exhibit 19 of the Judges brief of documents it will be evident that only round wise display was noted. No display was made polling station wise or constituency wise. The layout of the counting hall has been provided in the Handbook for Returning Officers and the blackboard has been specifically mentioned therein. In Rule 23.3 of the same Handbook mention has also been made regarding announcement and noting of entries in the blackboard, to enable cross-check of the entries made by the agents or to enable noting by them. In the absence of the aforesaid the said election is vitiated. A mock poll is held on the election day and certificate issued by the Election Commissioner to inform all that the mock poll was satisfactory or not. 2.6 The presence of microphone will be evidenced from the requisition slips. Provisions for cross-checking have been made in Rules 24.2 and 24.3 of the Handbook for Returning Officers so also Rules 18.20 and 2.25 and 2.26 of the Candidates Handbook all of which call for cross-checking. Rule 18.20 of the Candidates Handbook provides for double checking by computers. In the crossexamination the cross-checking and double cross-checking procedure has been explained by the plaintiff in questions 357,358,363 and 367. He is the only witness examined. Rule 18.22 provides for tallying the figures of votes and declaration of result. None of the procedures laid down nor the rules have been followed. Therefore, the entire process has been vitiated. 2.7 The manipulative conduct of the respondent is also evident as initially an incorrect Form 17C Part-I was prepared and it is only after an objection was raised that the same was corrected and defective EVM replaced only at 1 p.m. although the polling had started at 8 a.m. and the said cannot be disputed by any of the parties. No separate room was provided to the Returning Officer and entry to the polling room was restricted. The Rules have been violated and as provided in Section 100 (d)(iii) and (iv) the inaction mentioned above will materially affect the result and calls for setting aside of the election process. For the said proposition reliance is placed on Ram Sukh v. Dinesh aggarwal, 2009 10 SCC 541 and AIR 1975 SC 91. Neither the Returning Officer nor the Observer has been called as a witness as they would have deposed against the respondent. Section 98, so also Section 100 (d)(iv) and Section 101 be considered. Reliance is placed on RAM SEWAK YADAV v. HUSSAIN KAMIL KIDWAI, 1964 AIR(SC) 1249. 2.8 Out of a total of 1287 postal ballots, 596 have been rejected. Such rejection was wrong as Rule 14.5 of the Handbook of Returning Officers specifically states that while rejecting ballot papers, the Returning Officers must not be too technical. The cross-examination was restricted to date of complaint and as the complaint was made on the date of counting i.e. 16th May, 2009 no importance should be given to it. This can be no reason for allowing an incorrect process to be upheld. For all the said reasons, therefore, this election petition be allowed and election held for the concerned parliamentary constituency be set aside.
(3.) RESPONDENTS CASE 3.1 Counsel for the respondent in opposing the said petition submits that a case must be made out in the election petition. As the election procedure is participatory in nature the area of difference has been minimized. The layout of the counting hall was made strictly as directed and therefore no complaint could have been made in respect thereof. The name of Counting Supervisors and Assistants for secrecy purpose was not disclosed. 3.2 It has been averred by the petitioner that neither the candidates nor their representatives were allowed to check the control unit of the EVM. Such check or recheck was rightly not allowed. Rule 2.23 of the Candidates Handbook provides for the presence of the Observers at the time of counting. Counting took place on 16th May, 2009. The first complaint was written and made after the 8th round and not prior thereto. The complaint on 17th May, 2010 is after the election result was declared on 16th May, 2009. Recounting is only done after the entire counting is over and although according to the petitioner rigging occurred on 16th May, 2009 no complaint was made then nor any allegation levelled against the Observer. The complaint was only against the Returning Officer and the Assistant Returning Officer. There is no complaint to initiate disciplinary action against the said officers. In fact in the procedure of counting strictness was observed and Clause 26.1 deals with recounting of votes. In the event the petitioner was in any way aggrieved a complaint ought to have been made for recounting at the correct time as at this stage no recounting can be called for. In his representation to the Chief Election Commission on 17th May, 2009, the petitioner did not mention that recounting had been sought for from the Returning Officer and that the said had not been considered. The allegation with regard to EVM and black board are not relevant as Form 17C Part-II has been accepted by the petitioner as will appear from the answer to question 255. The procedure was known to the petitioner but no objection was raised at the relevant time. As held in H D REVANNA v. G PUTTASWAMY GOWDA, 1999 2 SCC 217 recounting is not as a matter of right. In the case of Uday Chand Suraj Singh reported in UDEY CHAND v. SURAT SINGH, 2009 10 SCC 170 the scope of Rule 63 of the 1961 Rules has been considered. Therefore, no order be passed.;