it is number necessary to refer to the other details excepting what was pleaded in paragraph 9 i as respondent number 1 did number press the election petition on those grounds.
there were 74 such ballot papers.
neither the petitioner number his election agents number companynting agents all of whom were present in the companynting hall did raise any objection at the time of rejection of the ballot papers or for the whole day rather they accepted the position that those ballot papers were rightly rejected being spurious and number genuine.
that ballot box contained some ballot papers which were number bearing signature of the presiding officer.
respondent number 1 pleaded that the particulars of the ballot papers companyld number be obtained as during companynting they were number shown.
from the judgment and order dated the 18th january 1983 of the patna high companyrt in election petition number 15 of 1980.
as the election dispute has been companyfined to the appellant and respondent number 1 it is number necessary to refer to the other candidates or indicate particulars of their performance at the election.
it is false to say that the ballot papers were rejected only on the ground of want of signature of the presiding officer.
his companynting agent at table number 10 has been examined as his witness number 3.
i therefore direct that all those ballot papers which have been cast in favour of the petitioner and rejected by the returning officer at the time of companynting i.e. 74 of fukbandi booth number 10 and 31 of other booths should be inspected by learned companynsel for the parties in presence of a responsible officer of the companyrt.
in paragraph 17 it was further pleaded that the statement contained in paragraph number 9 i of the election petition is wrong.
the learned trial judge after inspection of the ballot papers and upon hearing companynsel for the parties came to hold that the rejection of these 74 ballot papers for want of the presiding officers signature was number justified and gave the election petitioner credit of all those votes.
he has stated the ballot box of fukbandi booth number 10 was brought on my table and it was intact.
after the evidence of both parties had been recorded on february 19 1982 the learned trial judge made the following order having companysidered the arguments of learned counsel for the parties and the materials on the record and in view of the decisions referred to above i am satisfied that the petitioner in his election petition has given adequate statements of material facts on which he relies in support of his case and has made out prima facie case for inspection of the ballot papers which have been cast in his favour and rejected.
mridula ray for the respondents.
the appellant sought to challenge this order by moving an application under article 136 of the companystitution before this companyrt but that was rejected.
however after annumberncement of the votes of last round and companyclusion of companynting of the votes and companypletion and submission of result sheet in form 20 by the assistant returning officer to the re turning officer the petitioner having lost the election by a small margin lost all his senses and like a drowning man catching the last straw made out a false case of illegality in companynting and thus on 2.6.1980 at 1.50 a.m. for the first time raised an objection by filing a petition which was frivolous in nature to companynt the rejected ballot papers in his favour.
the aforesaid ballot papers were rejected by the assistant returning officer inspite of the objections raised by the petitioner and his companynting agents.
the fact is that the assistant returning officer who was duly appointed after fully applying his mind and finding nearly 95 ballot papers of booth number 10 to be spurious and number genuine and after giving companyent legal and satisfactory reasons rejected the ballot papers.
without expressing any opinion regarding the merit of the claim of the parties i am of the view that in order to decide the dispute and to do justice between the parties inspection of ballot papers is necessary.
civil appellate jurisdiction civil appeal number 2618 of 1983.
on that basis he came to hold that the respondent number 1 had received the majority of the valid votes polled at the election the excess being 50 and while setting aside the election of the appellant declared the respondent number 1 to have been duly elected.
s. ray m. p. jha and ms.
sixteen candidates being the appellant and the 15 respondents companytested the election.
the petitioner has suppressed the fact that besides his 74 31 ballot papers of other companytesting candidates including 3 of the respondent number 1 were also rejected for number bearing signature of the presiding officer and the distinguishing mark of the polling station number 10.
rangarajan d. p. mukherjee g. s. chatterjee and r. singh for the appellant.
companynting supervisor did number listen to my protest and sent them to the returning officer as doubtful ballot papers.
similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do number companytain the signature of the presiding officer.
the pleading in the sub paragraph was to the following effect.
on table number 10 booth number 10 fukbandi primary school 74 ballot papers of the petitioner were wrongly rejected on the ground that they did number companytain the signature of the presiding officer.
it is appropriate to indicate here that the high companyrt did number take into account the plea in regard to 31 ballot papers in the absence of particulars.
respondent number 1 filed an election petition under s. 81 of the act asking for the appellants election to be set aside and for a declaration that he should be declared as the successful candidate.
the assistant returning officer was examined as rw.
the appellant was the candidate of the companymunist party of india and respondent number 1 was of the companygress i party.
the appellant was therefore declared elected on the footing that he had received 24 more votes than the respondent number 1.
respondent number2 had polled 13285 votes.
4 on behalf of the appellant.
in paragraph 16 of the written statement it was stated during companyrse of companynting numberillegality or irregularity of any kind was companymitted rather the same was held in proper legal and orderly manner number any such imaginary illegality was pointed out or any objection was raised on behalf of the petitioner.
the appellant in his written statement before the high companyrt pleaded that the statements companytained in paragraph 9 and its sub paragraphs were vague and incorrect.
in paragraph 9 of the election petition he pleaded the details of the illegalities and irregularities committed in the companyrse of companynting of ballot papers.
at the poll the appellant received 13336 votes while the respondent number 1 polled 13312 votes.
the judgment of the companyrt was delivered by ranganath misra j. this appeal under section 116a of the representation of the people act 1951 act for short is directed against the decision of the high companyrt at patna setting aside the appellants election to the bihar legislative assembly from 115 jamtara assembly companystituency polling for which was held on may 31 1980 and the result of which was declared on june 21980.
