Patna High Court Dismisses Plea Challenging Election Of JDU MLA Dilip Ray

The Patna High Court has rejected the petition of Syed Abu Dojana challenging the election of JDU's Dilip Ray as a Member of Bihar Legislative Assembly.

The assembly elections from Sursand constituency were held on November 07, 2020.

Syed Abu Dojana (election petitioner) had contested the said election from Rashtriya Janda Dal (RJD) party and was the runner-up in the election. He challenged Dilip Ray's (respondent no.1) election under Sections 80, 80-A, 81 and 100 of the Representation of the People's Act, 1951 (RPA).

The petitioner claimed that Ray was disqualified on the following grounds: (i) suppression of information as to his and his wife's assets (ii) failure to publish criminal antecedents (iii) improper counting of votes.

A single bench of Justice Sunil Kumar Panwar noted that though failure of a candidate to fully disclose information regarding their assets and liabilities in an affidavit filed under Section 33A of RPA is a ground for disqualification, however, it added that “…it is necessary that, such suppression must materially affect the election result.”

It stated that the burden of proof was on the petitioner to show that the non-disclosure of assets by Ray resulted in the election being materially affected.

The Court noted that the petitioner gave a description of immovable assets belonging to Ray and his wife and claimed that the details of the assets were not furnished by him in his affidavit. Assessing the details, the Court observed that certain properties purchased by Ray's wife was already sold through different sale-deeds before filing the nomination to contest the Election and certain properties owned by Ray were already mentioned in Form-26.

It thus held that that Ray had not suppressed the details of immovable properties belonging to him or his wife.

Failure to publish criminal antecedents

The petitioner contended that Ray did not publish the details of his criminal antecedent electronically. Further, he did not publish the details on three different dates as prescribed by the Election Commission of India (ECI) and as per directions of the Supreme Court.

The Court observed that under Section 33A of RPA, candidates must disclose their criminal antecedents and that non-disclosure is a ground for disqualification.

It stated that the onus is on Ray to prove that he has published his criminal antecedents. Examining the evidence submitted by him, the Court noted that he had published details of his criminal antecedents in a Hindi Newspaper on three different occasions. He also published it in an electronic newspaper. It noted Ray made lawful publication as per the directions of the Supreme Court and the ECI.

The Court thus held that the evidence submitted by Ray shows that he has published about his criminal antecedents as provided under Section 33A RPA .

Improper counting of votes

The petitioner contended that the postal ballots were counted away from the main counting hall, there was improper reception of ballots from door to door and votes were rejected without proper reasons.

The Court observed that in the petitioner's claim of manipulation in counting votes, he has referred to the revised instruction issued by the ECI. The instructions provided for verification of rejected ballot papers when the margin of victory was less than the number of rejected ballot papers. The Court noted that such instruction issued by ECI was not applicable in the present case as the margin of victory was more than ten times of total votes polled through the postal ballot papers.

“To set aside election on the ground of counting of votes, it must be seen that such counting has materially affected the election result. Whether counting of votes has materially affected the election result, is a question of fact. It has to be decided on the basis of cogent evidence. But the election petitioner has failed to adduce such evidence” the Court said.

The Court remarked that procedural irregularities which cannot be the basis to presume that the election result has been materially affected, if there was no violation of statutory provisions in relation to counting of votes.

“The law as to the disqualification of a candidate demands that there must be substantial noncompliance of statuary provisions. Mere procedural regularities are not sufficient to declare an election void. However, if such irregularities lead to corruption, an election may be declared void.”

In the present case, it stated that there were procedural irregularities, but since there was no violation of statutory provisions in relation to counting of votes, it could not declare the election void.

The High Court thus held that there were no grounds for disqualification of Dilip Ray under RPA.

Case title: Syed Abu Dojana vs. Dilip Ray & Ors. (E.P. No.20 of 2020)

Citation: 2024 LiveLaw (Pat) 57

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