1993 PLP 1455 (MLD)

(3) Where the Election Commissioner/Authority orders a fresh poll under sub‑rule (2), the Returning Officer shall, with the approval of the Election Commissioner/Authority:‑‑‑ (a) appoint a day for a fresh poll and fix the place at which such fresh poll shall be taken; and (b) give public notice of the day so appointed and the place and hours so fixed. (4) At a fresh poll taken under sub‑rule (3) at a polling station, all voters entitled to vote thereat shall be allowed to vote and no vote cast at the poll stopped under sub‑rule (1), shall be counted and the provisions of these rules and orders made thereunder shall apply to such fresh poll.

13. Rule 29 suggests that the total period allotted on any one day for polling shall not be less than eight hours and shall be uninterrupted by any interval. Rule 30 conveys that if the Polling at the Polling Station at any time is interrupted or obstructed for reasons beyond the control of the Presiding Officer and it cannot be resumed during the polling hours fixed under Rule 29, e then the Presiding Officer of the polling station will stop the poll and inform the Returning Officer. The Returning Officer shall immediately report the circumstances to the Election Commissioner, who shall direct for a fresh poll on that particular polling station. In the instant case, in Writ Petition No.48 of 1992, it was proved before the Election Tribunal and the Election Tribunal reached the conclusion, that due to the firing and quarrel the interruption was caused in the polling at Polling Stations Nos.112 and 116 and the polling could not be resumed as required under rule

29. The polling staff did not comply with the rules and did not inform the Returning Officer well in time nor the Returning Officer could inform the Election Commissioner. The Election Tribunal has held that the violation of Rules 29 and 30 was committed. When the polling could not be continued on the aforesaid two polling stations as required under rule 29, then it was the duty of the Presiding Officer and the polling staff to inform the Returning Officer. It was also the duty of the Returning Officer to bring the actual position in the notice of the Election Commissioner but they have failed to do so, so the violation of Rules 29 and 30 have been committed. By non‑complying the provisions of Rules 29 and 30, the result of the election has been materially affected, because the quantity of the votes at Polling Station No 112 was 797 and at Polling Station No 116 was 896, so the total quantity of the votes on both the Polling Stations was 1693 while only 67 votes could be polled The petitioner won the election with the lead of 419 votes, so the result of the election was materially affected due to the obstruction caused in the polling hours at Polling Stations Nos.112 and 116.

14. Rule 30 clearly suggests that when the polling could not bf continued on a particular nolline station for the above stated reason then the re polling should be conducted on that particular polling station In the instant case the violation of rules 29 and 30 had been committed. Rule 29 cast a duty upon the polling staff to provide the minimum time of eight hours uninterruptedly to the voters for the right of their franchise. The basic object of rule 29 is to provide the minimum time of eight hours in peaceful atmosphere, so that the electors may use their right of franchise without any fear and pressure. Rule 29 also empowers polling staff of a polling station to extend the polling hours, whenever they found that some electors yet have to cast the votes and they are present at the polling station. The wisdom behind this rule is that no one should be returned from the Polling Station without casting the vote and this is the reason that the polling staff have been empowered to extend the time.

15. Rule 30(1) confers a duty upon the polling staff of any polling station to stop the poll and inform the Returning Officer, when they feel that the polling at the polling station could not be continued uninterruptedly and it is beyond their control to continue or resume the polling. The Returning Officer will inform the Election Commissioner and the Election Commissioner shall direct for the fresh poll at that polling station. The legislature was wise enough to enact the aforesaid rules 29 and 30 The purpose of the legislature was to safeguard the violence and provide a peaceful atmosphere to the voters so that they may exercise their right of poll without any fear and pressure This is the reason that it has been provided in the rules that where the continuing or resumption of the polling is not in the control of the polling staff, then there C will be a re‑polling, because the people cannot exercise their right freed under the shadow of the guns and stick or under the guard of the police or any other force. Where the people will apprehend any risk to their lives then why they will go to the polling stations for using their right of vote The wisdom behind both the aforesaid rules was to provide the maximum period to the electors so that none should return from the polling stations without casting the votes There should be a decent ,peaceful atmosphere on the polling stations where every one could exercise his right according to his own wishes and his own conscience without any fear and approach

16. It is most unfortunate that the society in which we are living in this society, we have been indulged so much in mundane affairs that we have left all the moral and ethical values and the practice of ping with the Klashnikov and other fire‑arms weapons on the polling stations to harass the other party is developing day by day. Only the voters of that candidate can exercise their right whose men armed with the Klashanikov and fire‑arms weapons and other weapons are present on the polling stations to safeguard his voters In such like atmosphere how an independent polling can be conducted under the shadow of the fire‑arms weapons. When the supporters of any candidate alongwith guns, Klashnikov and other fire‑arms will be present on the polling stations then how the voters of other candidate will cast their votes without any fear and pressure. If this practice will be developed then naturally no noble or gentleman would like to go even to the polling: station nor any gentleman and noble man would like to contest the election. These two aforesaid rules have been enacted_for nreyeaun&_Wgh like practice. The intention of the rules w~ that where conductin or r resumption of polling is beyond the control of the polling staff of the polling station, then there will be a re~oollinig.The polling staff cannot adopt the coercive methods to control the electors and the sunporters of the candidate, but could only advise them to remaieaceful and there should be a peaceful atmosphere at the polling station. There should ‑not be a slightest est apprehension of the use of the force or of another vandalism‑ in the mind of electors, only then they can exercise their right freely. According to rules 29 and 30, the sanctity has been conferred upon onlythe polling which have been conducted by the polling staff in a peaceful atmosphere and not on the polling conducted under the guard of the police or any other force, or any polling which have been conducted in the atmosphere of violence and vandalism.

17. In the rule 30(2), it has been clearly laid downy that the Election Commissioner authority shall direct a fresh dolling at that polling station. Here the words at that polling station mean only on that polling station on which the polling was stopped and it was beyond the control of the polling staff to continue or resume the polling. If in a constituency, there are ten polling stations and the polling could not be conducted or continue or resumed on the one polling station out of the ten due to the situation of law and order then under Rule 30(2), only the repolling will be ordered on that polling station. No repolling will be conducted on the remaining polling stations, about which no such like complaint has been made. Rule 29 provides the method of the polling and Rule 30 provides a remedy for the violation of Rule

29. In the instant case, there was only complaint about the particular polling stations that on those particular polling stations, the polling could not be continued and resumed and a bulk of voters could not exercise their right of franchise in a peaceful atmosphere due to which the result of election has been materially affected. The repolling was only to be ordered on those polling stations and there was no wisdom for declaring the election of the remaining polling stations also void and for repolling on the polling stations upon which the polling has been conducted fairly, thus the election tribunal has rightly declared the election of the particular polling stations void upon which the polling could not be continued as required under Rule 29.

18. When the polling staff of the particular polling stations stopped polling and could not continue the polling on the aforesaid polling stations and thought it, that it is beyond their control to resume or continue the polling and inform the Returning Officer, then' under rule 30, it was paramount duty of the Returning Officer to inform the Election Commissioner who has to hold the fresh election on those polling stations. So the polling staff, the Returning Officer and the Election Commissioner have failed to comply with the requirement of the rules 29 and 30 due to which the result of the election has been materially affected. The remedy for such violation as provided in tar, J) rule 30(2), was to hold the fresh elec6o i can those particular polling stations, so the Election Tribunal has rightly reached the conclusion that the violation of rule 29 has been committed and the Election Tribunal had rightly provided the D remedy to the non‑petitioners as prov ded in rule

30. Thus no illegality has been committed by the Election Tribunal.

19. The grievance of the non‑petitioners before the Election Tribunal was that it was imperative upon the staff of particular polling stations and the Returning Officer and the Election Commissioner to conduct the repolling on a particular polling station. They failed to comply with this rule and due to their failure the result has been materially affected. Now when due to the non compliance of Rules 29 and 30, the result has been materially affected due to the non‑polling or non proper polling on a particular polling station, then only in order of the repolling could be passed about those particular polling stations 4 thus the election tribunal has rightly declared the election of a particular polling station as void and has also passed an order for rcpolling on the particular pollings stations.

20. It is also pertinent to note, that rule 60(c), suggests that if due to the failure of any person to comply with the provision of rules result of the Election has been materially affected then the Election Tribunal can declare the election, void. In the instant case, the Election Tribunal reached the conclusion that due to the failure of complying with the rules 29 and 30 on the aforesaid particular polling stations, the result of election has been materially affected thus the; Election Tribunal was empowered to declare the election of a particular polling station as void.

21. As the other polling stations were concerned, `there was no allegation of any illegality or irregularity committed on those polling stations thus there was no fun for declaring the election of those polling stations void too.

22. Rule 62 contains the powers of the Election Tribunal which reads as under:‑‑‑ 62‑ Decision of the Election 'Tribunal.‑‑‑(1) At the conclusion of the trial :~r ht ` 1:o of an election petition, the Election Tribunal shall make an order:‑‑‑ (a) dismissing the election petition; of (b) declaring the election of the returnea candidate to be void, or (c) declaring the election of the' returned candidate to be void and the petitioner or any other candidate to have been 2:dy elected; or (d) declaring election as a whole to be void. (2) At the time of making an order under sub‑rule 1, the Election Tribunal‑‑‑ (a) shall also make an order where the petition alleges any corrupt pactice on electoral offence regarding (i) the finding whether any corrupt practice or an electoral offence has been committed by or with the connivance of, any candidate or his authorised agent, and if so the nature of the corrupt practice or, offence, and; (ii) the names of all persons, if any, found guilty of, any corrupt practice or an electoral offence and the nature of it together with any recommendation the Election Tribunal thinks proper to make, for the disqualification of any person; (b) fixing the costs to be paid and specifying the person by and whom such costs are to be paid. (3) No person shall be named in an order under sub‑rule (2) unless:‑‑‑ (a) he has been given notice to appear before the Election Tribunal to show cause why he should not be so named; and (b) he has appeared in pursuance of the notice and he has been given an opportunity of cross‑examining any witness who has already given evidence against him and of calling evidence in his own defence and of being heard".

23. According to the aforesaid rule the Election Tribunal can dismiss the election petition or can declare the election of returned candidate void or while declaring the election void can declare the petitioner or any other person #s to be elected or can declare the election as a whole void.

24. As clause (b) of the Rule 62 is concerned, it deals with the eventuality as arisen ini the instant case. According to clause (b) the Election Tribunal can declare the election void. It does not contain that the Election Tribunal has to declare the election as a whole void, but it conveys that the Election Tribunal can declare the election as void. If these rules shall be read alongwith the rule 60, clause (c), then it further clarifies that where any non‑compliance of rules has materially affected the result of the election the:, the election can be declared void. It does not contain that whole of the election is to be declared void. but when the Election Tribunal reached the conclusion, that on a particular polling station corrupt practice or illegalities have been committed and due to that the result of the election has been materially affected, then the Election Tribunal can of course, declare the election of that particular polling station as void and can order for repolling on that particular polling station.

25. Even otherwise, there is no wisdom behind it that if the voters of particular piffling station have been obstructed and have not been allowed to cast their votes and while the voters of the remaining polling stations have exercised their right of franchise in a peaceful atmosphere, then why they should be once again invited for the polling on the basis of the wrong perpetrated by the polling staff of a particular polling station. The Election Tribunal has the jurisdiction to declare the election of a particular polling station void on the basis of the non‑compliance of the rules. Even .otherwise, the remedy for non‑compliance. of Rule 29, has been provided in Rule 30 and in the instant case, the Election Tribunal reached the conclusion that the polling could not be continued on the aforesaid polling stations as required under Rule 29, so the Election Tribunal has rightly provided the remedy available for the non‑compliance of rule 29, as provided in rule 30.

26. According to rule 62, the Election Tribunal can declare the election as void or can declare the election as a whole to be void. It means that the G Election Tribunal can‑ declare the election of a particular polling station as void and there is no bar for declaring the election of a particular polling station as void mater: ally affecting the result of the election.

27. The case‑law referred by the learned‑ counsel for the parties has no bearing on the facts of the present case. The nutshell, of the above discussion is that finding no force in these w.‑ it petitions, these are hereby dismissed with costs. AA./6/HCA Petitions dismissed.