Madhya Pradesh High Court Dismisses Congress Leader Kantilal Bhuriya's Plea Against Guman Singh Damor's 2019 Election To Lok Sabha

The Madhya Pradesh High Court, Indore Bench, has dismissed Congress leader Kantilala Bhuriya's petition that had challenged BJP MP Guman Singh Damor's election to the Lok Sabha in 2019 from Ratlam constituency.

The court reiterated that the petitioner, challenging an election result, is required to prove that the result has been materially affected due to non-compliance of the provisions of the Constitution or the provisions of the R.P. Act of 1951 and the rules made thereunder.

Justice Vivek Rusia observed that merely alleging that there is non-compliance with the orders, it cannot be held that the election has materially been affected. 

"As held by the Apex Court in the case of Magani Lal Mandal [v. Bishnu Deo Bhhndari]  the petitioner is required to prove that the result of the election has been materially affected. Merely alleging that there is non-compliance of the orders it cannot be held that the election has materially been affected. In the present case, there is only a pleading about non-compliance of Section 100(1)(d) (iv) of the R.P. Act of 1951 without any material to establish that the election of returned candidates has materially been affected."

Bhuriya was the Indian National Congress party candidate and Damor was the BJP candidate. In the election, Bhuriya secured 605467 votes and Damor secured 694243 votes. Aggrieved by the result, Bhuriya filed the election petition on the ground enumerated under Section 100 (1)(d)(iv) of the R.P. Act of 1951.

The Returning Officers did not follow the instructions issued by the Election Commission of India (ECI) for mandatory counting and matching counting of the result of VVPATs and EVM from five randomly selected polling stations for auditing and testing and its record, he argued. He further alleged that the Returning Officers did not exhibit the paper cards used for the draw of lots for random selection of one polling station in each Assembly Constituency. 

He alleged a violation of the provisions contained in Section 100(1)(d)(iv) of the R.P. Act of 1951 because of non-compliance of orders or instructions issued by the ECI.

Damor in his reply pleaded that no provision of the Constitution, R.P Act, 1951 of the rules have been violated.  He submitted that the election has not materially affected the result. He also denied that the system of VVPAT and printing of paper trail is for recounting or testing of total votes recorded in the controlling unit must match with the printed paper trails in VVPAT.

It was further submitted that the instructions or orders issued by the ECI do not have any statutory force as the same has not been issued in any statute or under the provisions of the Conduct of Election Rules, 1961.

The court, after pursuing Section 100(1)(d)(iv) of the R.P. Act of 1951, observed that the provision provides the ground for declaring the election as void by the High Court if the result of the election, insofar as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution of India or the R.P. Act of 1951 or rules.

It observed one of the main contentions raised by the petitioner is that the order issued by the ECI has not been complied with. However, it added that the definition of the word  "order" as defined in Section 2(e) of the Representation of People Act, 1950  and which has also been borrowed in the R.P. Act of 1951, means an order published in the Official Gazette.

"Admittedly, orders/instructions vide Annexure P/11 and P/12 issued by the Election Commission of India have not been published in the Official Gazette of India, therefore, noncompliance of the aforesaid orders cannot be a ground for declaring the election as void by this Court u/s. 100(1)(d)(iv) of the R.P. Act of 1951," the court observed.

The court further said there is no provision under the Constitution of India, R.P Act of 1951 or the Conduct of Election Rules, 1961 in respect of verification of VVPAT paper slips. 

"Chapter II of Conduct of Election Rules, 1961 provides only for voting by EVM and in the entire Rule 49A to 49X, there is no such provision for trail or testing of the machines. Hence there cannot be any no noncompliance of any provisions of the Constitution of India, R.P. Act of 1951 as well as Conduct of Election Rules, 1961," it said.

The court also observed that there is only a pleading about non-compliance of Section 100(1)(d)(iv) of the R.P. Act of 1951 without any material to establish that the election of returned candidates has materially been affected.

"In view of the foregoing discussion, this election petition must fail and the same is hereby dismissed with costs," it said.

Case Title: Kantilal Bhuriya v. Guman Singh Damor 

Citation: 2023 LiveLaw (MP) 19

Click Here To Read/Download Order