Jharkhand High Court
Ramji Lal Sarda vs Gopal Sharan Nath Sahdeo & Ors on 14 July, 2011
Equivalent citations: 2012 (1) AIR JHAR R 107, (2011) 3 JCR 466 (JHA)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Election Petition No.05 of 2010
Ramji Lal Sarda. ... ... ... ... ...Petitioner
-Versus-
1. Gopal Sharan Nath Sahdeo.
2. Urmila Yadav.
3. Manohar Kumar Yadav.
4. Virendra Bhagat.
5. Awadhesh Kumar Pal.
6. Arti Behra.
7. Janak Mahto.
8. Naim Alam.
9. Nawin Jaiswal.
10. Rizwan Ahmad.
11. Ajay Kumar Dubey.
12. Arshad Ayub.
13. Arun Tiwari.
14. Jitendra Kumar Singh.
15. Bhakru Tirkey.
16. Bhim Munda.
17 Rakesh Kiran.
18. Rajan Nayak.
19. Rajendra Prasad Sahu.
20. Ram Prakash Tiwari.
21. Bashishtha Tiwari.
22. Wasim Akram Ansari.
23. Smt. Suchi Tyagi.
24. Returning Officer-cum-Sub-Divisional Officer, Ranchi.
25. Sri K.K.Sone, Deputy Commissioner, Ranchi-cum-
District Election Officer, Ranchi. ... ... ...Respondents
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CORAM: THE HON'BLE MR. JUSTICE D.K.SINHA
For the Petitioner: Mr. B.S. Lall, Sr. Advocate.
For the Respondent No.9: Mr. V. Shivnath, Sr. Advocate.
For the Respondent No.8: Mr. Shiv Kumar Sharma, Advocate.
For the Respondent No.2: Mr. Mahesh Kumar Sinha, Advocate.
For the State: Mrs. Nehala Sharmin J.C. to Standing
Counsel No.2.
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C.A.V. on 10.06.2011 : Pronounced on 14.07.2011
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I.A.No.1169 of 2011
D.K.Sinha,J. The petitioner has preferred this Election Petition under
Section 80A and 81 of the Representation of People Act, 1951 challenging
the election of the Respondent No.1 Gopal Sharan Nath Sahdeo (since died)
i.e. the returned candidate from 64, Hatia Assembly Constituency in the State
of Jharkhand requesting for an order under Section 9 of the Representation
of People Act, 1951 by holding that Respondent No.1 Gopal Sharan Nath
Sahdeo was declared as the returned candidate from the said constituency
by adopting corrupt practice and influencing the returning officer and other
Counting Staff including the Polling Staff of some of the booths. The
petitioner further requested for recounting of the entire votes polled in the
Electronic Voting Machines. By filing Interlocutory Application No.1169 of
2011 on 13.04.2011 it was stated therein that one of the prayers of the
petitioner in the Election Petition was for recounting of total votes polled on
25.11.2009in 64, Hatia Assembly Contituency on the basis of the allegations made in the main petition to which the Respondent No.9 Shri Navin Kumar Jaiswal filed a reply to the Interlocutory Application aforesaid wherein he asserted that if the Electronic Voting Machines had recorded wrong impression while counting of votes then it would be presumed that the Electronic Voting Machines were faulty and therefore, in the circumstances, recounting of votes which were polled in faulty Electronic Voting Machines would itself be faulty and therefore no useful purpose would be arrived at by recounting of votes. Moreover, it was further replied, that it was not the allegation of the petitioner that the provision of Rule 49(E) of the conduct of the Election Rules, 1961 were not complied.
2. A counter-affidavit was filed on behalf of the Respondent No.2 Urmila Yadav wherein she has given vivid description of the Counting Hall of 64, Hatia Assembly Constituency on the date of counting and stated that she had objected in complaint to the Returning Officer as to why the cell phones of the candidates and their agents were restricted at the gate of the Counting Hall but the Counting Agents and the Supervisors of the returned candidate Gopal Sharan Nath Sahdeo were permitted to take the cell phones inside, yet, no action was taken by the Returning Officer. Neither satisfactory reply was given nor the Returning Officer ever tried to stop the discrimination. During closure of the counting of votes, the candidate and their agents, who were present in the Counting Hall were informed by the Returning Officer that total votes polled were 150088 and that Gopal Sharan Nath Sahdeo was trailing by 60 votes from Ramji Lal Sarda( petitioner herein). She further narrated that in the meantime, the Returning Officer went out and returned back in the Counting Hall after about 40/45 minutes and declared that total votes polled were 150164 and that Gopal Sharan Nath Sahdeo got 75 votes more than what the petitioner Ramji Lal Sarda obtained and accordingly, the former was declared as the returned candidate to which serious objections were raised by the Counting Agents explaining that when total votes polled were 150088 then how 150164 votes were counted as the total votes entered in the Electronic Voting Machines and further, that how Gopal Sharan Nath Sahdeo got 76 more votes beyond what were polled by the voters of the said Constituency.
3. In the supplementary rejoinder the Respondent No.9 Navin Kumar Jaiswal contended that total 16 rounds of counting was held in the Counting Hall. The candidate belonging to Congress Party was shown to have obtained 393434 votes whereas B.J.P. candidate had obtained 39496 votes, as such, there was lead of 153 votes in favour of the B.J.P. candidate (i.e. the petitioner herein) but in the 16th round of Counting of Votes from the E.V.Ms collected from the Booth No.356 to 359 the congress candidate got 578 votes whereas B.J.P. candidate got only 400 votes and thereafter the congress candidate got 178 more votes in 64, Hatia Assembly Constituency as per Election Index Card prepared on 25.11.2009 and approved by the Chief Returning Officer (Annexure-A/9) and therefore the entire allegations as levelled by the petitioner for adopting corrupt practice can be set aside.
4. In the counter-affidavit filed on behalf of the Respondent S.D.O., Ranchi Dr. Dhananjay Singh i.e. the successor of the then Returning Officer of the Election, which was held on 64, Hatia Assembly Constituency stated on oath, as contained in paragraph No.6, that Shri Gopal Sharan Nath Shahdeo (Respondent No.1) was declared elected as the member of the Jharkhand Assembly from 64, Hatia Assembly Constituency on 12.12.2009 and it was admitted fact that Respondent No.1 Shri Gopal Sharan Nath Shahdeo was elected by 25 votes only. The Respondent S.D.O. being the successor of the then Returning Officer, with reference to paragraph No.15 of the counter-affidavit fairly admitted that a complaint petition was filed for counting of the total votes polled in 64, Hatia Assembly Constituency before the Returning Officer, Smt. Suchi Tyagi but the request made in such complaint was rejected in terms of the order dated 23.12.2009(Annexure-A).
5. Heard Mr. B.S. Lall, Senior Counsel for the petitioner, Mr. V. Shivnath, Senior Counsel for the Respondent No.9 and Mrs. Nehala Sharmin, J.C. to Standing Counsel No.2 on behalf of the Respondent State.
6. The learned Senior Counsel appearing for the petitioner at the outset submitted that as per 'Report of Polling' (Assembly Constituency) 64, Hatia (Annexure-16) the total electors in the said Constituency were 380463 including males and females but total vote cast were only 150088 which was calculated at 39% polling. As per status of result as on the day of counting on 23.12.2009 at 4.48 p.m. (Annexure-18) the petitioner was shown to be leading by 60 votes ahead the returned candidate Gopal Sharan Nath Shahdeo. Having been dissatisfied with the corrupt practices adopted at the fag end of counting, the petitioner on the same day at 4.30 p.m. filed a preliminary objection petition seeking two hours time to register protest before the Returning Officer (Annexure-19) but only 20 minutes time was given till 4.34 p.m. on 23.12.2009 by making endorsement.
7. The petitioner registered protest on 23.12.2009 at 4.55 p.m. before the Returning Officer by filing petition that total votes polled were only 150088 then how it were counted at 150164 and it clearly reflected mistake in counting and hence the petitioner expressed need(Annexure-20) for retotalling of votes polled which might have been caused by human error which would affect the result and it was requested for necessary orders for recounting. But the Returning Officer by making endorsement on the alleged petition did not accept such petition by endorsing time 4.52 p.m. and in that manner the request of the petitioner for recounting of votes was turned down as the petition could not be filed within 20 minutes by 18 minutes late with the consultation and in that manner the petitioner was deprived of his valuable legal rights of recounting of total votes polled as the process of recounting was found illegal.
8. As against the protest petition, the Returning Officer of 64, Hatia Assembly Constituency had drawn an order-sheet dated 23.12.2009 ( Annexure-A) of the Counter-Affidavit of S.D.O., Ranchi dated 25.06.2010) wherein it was drawn that by the end of 15th round of counting of votes the candidate of the Congress Party Gopal Sharan Nath Shahdeo had got only 39343 votes whereas the petitioner had got 39496 votes in the same round. But in the 16th being the final round of counting Gopal Sharan Nath Shahdeo got 578 votes but the petitioner received only 400 votes and thereby the candidate of Congress Shri Gopal Sharan Nath Shahdeo got 25 votes more than what was received by the petitioner and the S.D.O. was silent as to whether other candidates had received any vote in the final (16th) round of counting or not.
9. Mr. V. Shivnath, the learned Sr. Counsel opposed the contention and submitted that it would not be appropriate to order for recounting of total votes polled for the reason that the petitioner had alleged that the Electronic Voting Machines were faulty and it did not yield correct result. The learned Counsel further submitted that it was wrong assertion to say that the total votes polled were 150088 rather the total votes recorded in E.V.Ms showing 150164 was the correct figure and that the final result was announced on the basis of said figure and this fact has been substantiated by the Election Index Card.
10. The short question that has been raised in the Interlocutory Application is as to whether corrupt practices were adopted in counting of total votes polled in the 64, Hatia Assembly Constituency in view of the facts put forth?
Neither the State Respondent represented through the S.D.O., Ranchi i.e. the successor of the Returning Officer of Hatia Assembly Constituency could be able to clarify that when total votes polled in the said Constituency were only 150088 then how 150164 votes were counted as the total votes entered in the E.V.Ms and how the Congress Candidate Shri Gopal Sharan Nath Sahdeo (since died) got 76 more votes though the Respondent State represented through S.D.O., Ranchi is consistent that Shri Gopal Sharan Nath Sahdeo was declared as returned candidate by the margin of 25 votes only which he had received more than the petitioner herein.
11. I further find that the petitioner had tried to attract the attention of the then Returning Officer towards some illegality being committing during final round of counting of votes polled being the 16th round but only 20 minutes was given to him to file complaint and the complaint could be filed only beyond 18 minutes though was prescribed 20 minutes and only on this ground the complaint of the petitioner was not accepted in utter violation of natural justice as no reasonable time was given to the petitioner to file the complaint and that 20 minutes that was given to the petitioner cannot be held to be a reasonable time.
12. Under the facts and circumstances, I find prima facie that the petitioner was denied of his legal right when his request for recounting of total votes polled on the day of counting i.e. on 23.12.2009 was not accepted on the ground that he could file the complaint beyond 20 minutes. I further find that the discrepancies found in totalling or counting votes polled as discussed here-in-before at length gives ample room for suspicion. I find for the ends of justice to direct recounting of the total votes polled on all the booths in 64, Hatia Assembly Constituency with reference to Assembly election, which was held on 25.11.2009. Accordingly, the Respondent State represented through the S.D.O., Ranchi is directed to complete the entire exercise within a period of eight weeks of this order in presence of the agents/representatives of the contesting parties. This Interlocutory Application is, accordingly, allowed. Election Petition No.05 of 2010 Put up this Election Petition with the report.
[D.K.Sinha,J.] P.K.S./N.A.F.R.