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Kolaka Nilakanthan Vs. Sri Ananta Ram Majhi - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberElection Petn. No. 2 of 1967
Judge
Reported inAIR1968Ori75; 34(1968)CLT255
ActsRegistration of Electors Rules, 1960 - Rule 4; Representation of the People Act, 1951 - Sections 62(1); Evidence Act, 1872 - Sections 101 to 104
AppellantKolaka Nilakanthan
RespondentSri Ananta Ram Majhi
Appellant AdvocateG.S. Misra, ;L. Rath, ;B.B. Rath, ;S.N. Misra, ;B.K. Behura and ;S. Mohanty, Advs.
Respondent AdvocateD. Sahu, ;S.N. Sinha, ;R.N. Das and ;K.C.J. Roy, Advs.
DispositionPetition allowed
Cases ReferredMahadeo v. Babu Udai Partap Singh.
Excerpt:
.....the ballot paper to an elector, it is the duty of the presiding and polling officers to overlook mere clerical and printing errors in an entry in the electoral roll, if he is satisfied that such person is identical with elector to whom such entry relates. thus, in respect of booths 41 to 43, the total number of telegu voters who could not have voted with reference to oriya booth lists are 2401. 14. it is now necessary to consider whether the result of election in 10 far as it concerns the respondent has been materially affected by the aforesaid omission and discrepancy in respect of 2401 voters law is well settled that the onus is on the petitioner to establish that the result of the election has been materially affected. the petitioner's case must accordingly fail under section..........and the oriya rolls are as follows:booth no. 381. telegu voter's namewas omitted from the oriya list.booth no. 398. telegu voters' names wereomitted from the oriya list.booth no. 4033 telegu voters wereomitted from the oriya list.booth no. 41in respect of 1075 votersof telegu list, serial and holding numbers do not tally with the serial andholding numbers given to those voters in the oriya list.booth no. 42525 voters of telegulist were completely omitted from the oriya list.booth no. 43464 voters of telegulist were completely omitted from the oriya list. in respect of 314 voters(91 plus 223), serial and holding numbers were discrepant in the oriya andtelegu lists.no reference was made to booth nos. 38 and 39 in the election petition. they are, therefore, excluded from consideration......
Judgment:
ORDER

G.K. Misra, J.

1. The petition has been filed under Section 81 of the Representation of the People Act. 1951 (hereinafter to be referred to as the Act) for declaring the election of the respondent void under Section 100(1) (b) and (d)(iii) and (iv) of the Act.

2. In respect of the Rayagada Assembly Constituency in the district of Kora-put, the petitioner, the respondent and one Sri Jhiru Judia were the validly nominated candidates. Respondent was declared elected from the said constituency with a margin of 949 votes. He secured 8641 votes while the petitioner secured 7692 votes. A large number of grounds were taken in the petition, but as the case proceeded ex parte, evidence was not led in respect of some of the grounds. It is, therefore, unnecessary to state the material facts narrated in the petition in respect of the grounds on which no evidence was led. Only on two grounds mentioned in the petition evidence has been led. They are -

(i) corrupt practice was resorted to by the respondent by paying money to voters in different streets to secure their votes in his favour; and

(ii) about 2000 voters, though registered in the Telugu electoral roll in both Nos. 40, 41, 42 and 43 were not registered in the corresponding Oriya electoral roll. The Presiding Officers of the booths were issuing ballot papers with reference to the Oriya electoral rolls and refused to issue ballot papers to voters, whose names occurred in the Telugu electoral roll but did not occur in the corresponding Oriya electoral roll. These voters were not allowed to exercise their franchise both on this ground as well as on the ground that there were mistakes in serial numbers and holding numbers in both the rolls.

These allegations had been denied in the written statement.

3. On these pleadings, the following issues had been framed:--

I. (a) Is there any discrepancy between the Oriya Electoral Roll and the the Telegu Electoral Roll for the Ravagada Assembly Constituency?

(b) Was there any refusal of ballot paper to any of the electors as their names were not included in the Oriva Electoral Roll?

(c) Has the result of the election been materially affected by the improper refusal or rejection of any vote?

II. (a) Was the village Ramachandrapur included in two Constituencies -- Rayagada Assembly Constituency and Naravanpatna Assembly Constituency?

(b) If it was so included, did it cause am confusion in the mind of the electors of that village so as not to vote for any of the Constituencies?

(c) if so, did it materially affect the result of the election?

III (a) Did the respondent commit corrupt practices and take the assistance of Government servants as mentioned in paragraphs 18 to 20 of the election petition?

(b) Did the respondent resort to bribery as mentioned in paragraphs 21 and 22 of the election petition? IV. Is the election petition not maintainable for non-compliance with Section 83(1)(b) of the Representation of the People Act, 1951?

4. Issue No. II :-- No evidence was laid on this issue. It is accordingly decided against the petitioner.

5. Issue No. III (a) :-- In paragraphs Nos. 13 to 20 of the petition, the corrupt practice alleged is that the petitioner took the help of Government servants for the purpose of canvassing and influencing the voters to cast their votes in favour of the respondent. No evidence has been led on these allegations. The allegations are not substantiated and Issue No. III(a) is accordingly decided against the petitioner.

6. Issue No. IV :-- Section 83(1)(b) runs thus -

'83. (1) An election petition -

X X X X

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice;'

In the application, the particulars given are more or less full. As, however, the case proceeded ex parte, the question of the respondent being prejudiced by the absence of particulars does not arise in this case. The application is maintainable and cannot be dismissed for non-compliance with the provisions of Section 83(1)(b). This issue is answered in favour of the petitioner.

7. Issue No. III(b) :-- In paragraphs Nos. 21 and 22 of the petition, corrupt practices by payment of money have been referred to. It was averred in paragraph 21 that the respondent distributed through his agent Rs. 3000 in village Kottapada on 19th February, 1967 and paid the villagers of Vira Narayanapur a sum of Rs. 1,800 on the same day to secure their support for him in the election. No evidence has been led on this assertion The facts alleged in paragraph No. 21 have not been substantiated by the petitioner.

The averment in paragraph No 22 is that the respondent paid large sum of money to his workers and agents for distribution amongst the voters and his workers distributed Rs. 300 in each of Domb street, Dhobi street, Ghasi Street and Reli Street of Rayagada to secure the votes of the voters in his support. No evidence has been led about distribution of money in Domb street, Ghasi street and Reli Street. P W. 8 deposed that the respondent and his agent Shyam Rajguru approached him and some people of his street (Railway Gate street) and asked them to come to Dhobi street. Both o them offered Rs. 100 to them in the Dhobi street and asked them to vote for the respondent the next day. Rs. 100 was paid to P.W. 8 personally. The money was paid by Shyam Raiguru in presence of the respondent. His evidence is fully corroborated by P, W. 9. The petitioner (P.W. 11) was not present at the time of this payment but states that this matter was reported to him by PWs. 8 and 9. None of these witnesses has been cross-examined. There is no intrinsic infirmity in their evidence. When the respondent had full opportunity of demolishing their evidence in cross-examination and did not contest, there is no reason why their evidence should not be accepted. On their evidence I record a finding that Rs. 100 was paid to P.Ws. 8 and 9 for distribution amongst the voters to induce them to vote for the respondent.

8. Section 123 of the Act enumerates corrupt practices. 'Bribery' is a corrupt practice. Section 123(1)(A)(b) defines 'briber' thus:--

'Any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing -

X X X X

(b) an elector to vote or refrain from voting at an election.'

On the aforesaid finding respondent made a gift of money with the object of directly inducing P. Ws. 8 and 9 and other electors to vote for the respondent and to refrain from voting in favour of the petitioner. Thus a corrupt practice was resorted to by the respondent within the meaning of Section 123(1)(A)(b) of the Act.

Respondent's election must be declared void under Section 100(1)(b) of the Act. It says that -

'If the High Court is of opinion -

x x x x

(b) that any corrupt practice hasbeen committed by a returned candidateor his election agent or by any other person with the consent of a returned candidate or his election agent;

X X

the High Court shall declare the election of the returned candidate to be void.'

Respondent's action in resorting to corrupt practice thus comes within the mischief of Section 100(1)(b) of the Act and his election is declared void. This issue is answered in favour of the petitioner.

9. Issue No. I:-- This issue is based on Section 100, Sub-section (1)(d) (iii) and (iv) which runs thus -

'100, (1) -- Subject to the provisions of Sub-section (2) if the High Court is of opinion -

******

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -

x x x x

(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,

the High Court shall declare the election of the returned candidate to be void.'

The averments covering both these points are mentioned in paragraphs 4 to 10 of the petition. The facts stated therein are that in Rayagada constituency a large section of the people speak and read only the Telegu dialect. The electoral rolls were published both in Oriya and Telegu languages under the authority of the Electoral Registration Officer for the facilities of the electors speaking in the two dialects. There were, however, gross discrepancies between the two electoral rolls. The names of a large number of electors registered in the electoral roll published in Telegu were not registered as electors in the Oriya electoral roll The Presiding and Polling Officers of all the booths in the Rayagada constituency were using only the Oriya electoral roll and refused to allow electors registered in the Telegu electoral roll to cast their votes About 2000 electors registered in the Telegu electoral roll in booths Nos. 40 to 43 could not cast their votes as their names did not occur in the Telegu electoral roll of those booths. The refusal to such a targe number of voters in the Telegu electoral roll materially affected the result of election so far as the returned candidate is concerned and the election of the respondent is void,

10. To appreciate the aforesaid contention, it would be appropriate to refer to certain relevant sections of the Act and the rules framed thereunder. Section 25 of the Act makes provision for polling stations for constituencies. Under this section,

''the district election officer shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for every constituency the whole or greater part of which lies within his jurisdiction, and shall publish, in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas or groups of voters for which they have respectively been provided.'

Section 62 Sub-section (1) lays down -

'No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.'

Rules 4 and 22 of the Registration of Electors Rules, 1960 run thus :--

'4. Form and language of roll --The roll for each constituency shall be prepared in such form and in such language or languages as the election commission may direct.

22. Final publication of roll. -- (1) The Registration officer shall thereafter -

(a) prepare a list of amendments to carry out his decisions under Rules 18, 20 and 21 and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll; and

(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in form 16 at his office.

(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.'

Rule 33A of the Conduct of Elections Rules, 1961 is as follows :--

'Marked copy of electroal roll. Immediately before the commencement of the poll, the presiding officer shall also demonstrate to the polling agents and others present that the marked copy of the electoral roll to be used during the poll does not contain any entries other than those made in pursuance of Clause (b) of Sub-rule (2) of Rule 20 and Clause (a) of Sub-rule (2) of Rule 23 .'

Rule 35 of the Conduct Rules concerns with identification of electors. Sub-rule (4) thereof is to the effect that

'In deciding the right of a person to obtain a ballot paper the presiding officer or the polling officer, as the case may be, shall overlook merely clerical or printing errors in an entry in the electoral roll, if he is satisfied that such person is identical with the elector to whom such entry relates.'

Rule 38 of the Conduct Rules deals with issue of ballot papers to electors. Sub-rule (2) thereof lays down that -

'At the time of issuing a ballot paper to an elector, the polling officer shall record the serial number thereof against the entry relating to the elector in the marked copy of the electoral roll. '

11. The net effect of the aforesaid sections and rules may be noticed. Where electoral rolls are published in two different languages under the authority of the Election Commission, both the electoral rolls must be identical There should be no discrepancy The electors whose names are registered in the electoral roll prepared in Telegu language cannot be refused to cast their votes merely because their names did not occur in the corresponding electoral roll in Oriya language. Before refusing the ballot paper to an elector, it is the duty of the Presiding and polling Officers to overlook mere clerical and printing errors in an entry in the electoral roll, if he is satisfied that such person is identical with elector to whom such entry relates.

12. The question for consideration in this case is whether on the materials on record, the contention of the petitioner is substantiated.

In booth No. 38, Ward No. IV, serial No. 178 of the Telegu list has been omitted from the Oriya list (See Exs. 4, 4 (a) and 5).

In booth no, 29, Ward No. VI. names of serial Nos. 120, 154, 180, 181 and 182 of the Telegu list have been omitted from the corresponding Oriya list, (See Exs. 4(b), 4(c), 5(c) and 5(b)).

Ward No. I was included in booth No. 40 (Majhi Gouri Temple) (See Exs. 4(d), 4(c), 3(b), 5(c), and 5(b)). Names of 33 voters of this Ward who were valldly registered in the Telegu electoral roll were completely omitted from the corresponding Oriya electoral roll (vide serial nos. 80, 64, 71, 72, 76, 87, 192, 257, 306. 356, 877, 381 to 399, 473 and 501). P.W. 5 is serial No. 192, who by mistake said that he lived in Ward No. II. P, W. 1 is serial No. 267 and P.W. 2 is serial No. 71.

In Ward No. II, serial nos. 181 to 1378 were included in booth No. 41 (Girls M. E. School) according to both the booth lists (See Exs. 4(f) and 4(g)).

Serial numbers of the voters mentioned against serial numbers 304 to 1371 of the Telegu electoral roll are different in the Oriya electoral roll (See Exs. 3(c), 5(g) and 5 (f)).

Thus, 1075 and not 1253 voters as deposed to by P.W. 10 by mistake, had different serial numbers in the Oriya and Telegu lists. The remaining 178 voters of the Telegu list out of serial 1379 to 155ft were to cast their votes in booth No. 43 (See Exs. 4(g) and 4(k)).

Ward No. IX was included in booth No. 42 (See Ex. 4(h)). 525 voters of the Telegu list were omitted from the corresponding Oriya list (See Exs. 3(d), 5(g) and 5(h)).

In Ward No. II, serial nos. 1381 to 1978 were included in booth No. 43 according to the Telegu booth list (See Ex. 4(k)). In the Oriya booth list, the entry shows only 1338 (See Ex. 4(1)). The names against serial nos. 1381 to 1834 of the Telegu list do not find place in Oriya list (See Exs. 3(c), 5(k) and 3(J)). P. W. 10 by mistake included serial nos. 1366 to 1378 of the Telegu list in this booth. Other serial numbers have been dealt with in booth No. 41. Serial and holding numbers of 91 electors of the Telegu list do not tally with the Oriya list (See Exs. 3(c), 5(k), and (j)). It should be 91 plus 223 (See Ex. 3(c)). By mistake, P. W. 10 stated that it was with reference to 91 voters.

13. To sum up, the total number of Telegu voters in respect of which serious discrepancy occurred between the Telegu and the Oriya rolls are as follows:

Booth No. 38

1. Telegu voter's namewas omitted from the Oriya list.

Booth No. 39

8. Telegu voters' names wereomitted from the Oriya list.

Booth No. 40

33 Telegu voters wereomitted from the Oriya list.

Booth No. 41

In respect of 1075 votersof Telegu list, serial and holding numbers do not tally with the serial andholding numbers given to those voters in the Oriya list.

Booth No. 42

525 voters of Telegulist were completely omitted from the Oriya list.

Booth No. 43

464 voters of Telegulist were completely omitted from the Oriya list. In respect of 314 voters(91 plus 223), serial and holding numbers were discrepant in the Oriya andTelegu lists.

No reference was made to booth nos. 38 and 39 in the election petition. They are, therefore, excluded from consideration. Thus, in respect of booths 41 to 43, the total number of Telegu voters who could not have voted with reference to Oriya booth lists are 2401.

14. It is now necessary to consider whether the result of election in 10 far as it concerns the respondent has been materially affected by the aforesaid omission and discrepancy in respect of 2401 voters Law is well settled that the onus is on the petitioner to establish that the result of the election has been materially affected. The mere fact that the results of the election might have been affected is not enough. There must be definite proof that the result of the election has been materially affected in order to set aside the election as being void. See AIR 1954 SC 513, Vashist Narain v. Devehandra and AIR 1966 SC 824, Mahadeo v. Babu Udai Partap Singh.

15. It has already been stated that besides the petitioner and the respondent, one Jhiru Judia contested the election. There are no materials on record to show as to how many votes were cast in favour of Jhiru Judia. The total number of electors in the booth Nos. 40, 41, 42 and 43 are 1199, 1298,1102 and 1058 respectively. The total number of voters polling in the aforesaid booths are 641, 503, 331 and 415 respectively. (See marked Oriya electoral rolls Ex. 2 Series). The percentage of electors who voted in the aforesaid booths are 531/2, 38, 29 and 39 respectively. Thus, out of the total number of voters of 4657 in the four booths, 1882 voted and it comes to 40.41 per cent. 40.41 per cent of the 2401 Telegu electors whose names did not occur in the Oriya list or in respect of whose names the discrepancy occurred come to 970.

16. The evidence of P.Ws. 1 to 7 and 11 would show that in the aforesaid four booths, many voters came back without casting their votes on account of the aforesaid defects. P. W. 1 stated that most of the voters in booth No. 40 were in favour of voting for the petitioner. P.W. 6 deposed that in his area, i. e. booth No. 43, people were supporting the candidature of the petitioner. P. W. 7 stated that all the voters of his street returned without voting. P. W. 11 stated that he lost about 1500 votes. He also deposed that 1500 voters whose names occurred in the Telegu electoral rolls went to the booths but ballot papers were refused to them and they came back without casting their votes. All these statements are more or less based on conjectures and furnish no definite clue that more than 949 voters would have voted in favour of the petitioner but for the aforesaid defects. If, otherwise, only 40% votes were cast on the average, it is difficult to accept that 1500 voters came out of 2401 voters and went back.

17. As has already been stated, it can be taken that about 970 would have cast their votes if the aforesaid defects had not occurred in the electoral rolls. Even excluding the case of Jhiru Judia that some voters might have voted for him, it Is difficult to accept that all these 970 voters would have voted only for the petitioner. In the election. 8641 voted for the respondent and 7692 for the petitioner. From the total votes cast in favour of both the respondent and the petitioner, the respondent Rot more than 50 per cent. Even assuming that out of these 970 votes, the petitioner would have polled 97 per cent he could not have procured 949 votes. The result of the election so far as it concerns the respondent would not have been materially affected. The petitioner's case must accordingly fail under Section 100(1)(d) (iii) and (iv), of the Act. This issue is decided against the petitioner.

18. I have already held that the petitioner resorted to corrupt practice and bis election is to be declared void under Section 100(1)(b) of the Act. Section 8A of the Act lays down:--

'A person found guilty of a corrupt practice, by an order under Section 99, shall be disqualified for a period of six years from the date on which that order takes effect.'

19. In the result, the election petitionsucceeds. The respondent's election is declared void under Section 100(1)(b) of theAct. He is disqualified for a period of sixyears. As the petition is not contested, therewill be no order as to costs.


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