BIDESH SINGH Vs. MADHU SINGH

JUDGEMENT

(1.) This is an appeal against the judgment of Jharkhand High Court dismissing the election petition filed by the appellant herein.

(2.) The electors of 318 Panki Legislative assembly constituency were called upon by the Election Commission to elect a member for the then Bihar Legislative assembly 24th January, 2000 was fixed as the last date for filing nomination papers , whereas as the date fixed for scrutiny of nomination papers was 25th January, 2000. As per the programme, the polling was to take place on 12th February, 2000. As a result of counting of votes, the respondent no. 1 herein was declared elected having been polled 17095 valid votes whereas the appellant herein was shown to have secured 17058 valid votes. The appellant herein filed an election petition challenging the election of respondent no. 1 herein-returned candidate wherein prayers for setting aside the election of the returned candidate and a further relief that he may be declared elected from 318 Panki Legislative assembly constituency after inspection and scrutiny of 258 illegally rejected ballot papers in respect of booth no. 35, were made.

(3.) Respondent no. 1 instead of filing a written statement in the election petition, filed an application purported to be under sections 81, 83 and 86 (1) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act" and Rule 94a of the Conduct of Election Rules, 1961 (hereinafter referred to as "the Rules" read with order 7 Rule 11 and Order 14 Rule 2 of the code of Civil Procedure for dismissal of the election petition on the ground of maintainability. In the said application, the first respondent, inter alia, contended that the signed copy of the election petition not with the seal of the Oath Commissioner was not served upon him. It was further contended that having regard to the fact that the appellant herein having accepted that the aforesaid 258 ballot papers had been rejected on the third round of counting in respect of booth no. 35 he is estopped from questioning his election. The appellant herein filed a reply thereto. The tribunal entertained the said application and by reason of the impugned judgment it although held that the election petition does not suffer on account of any infirmity in the verification in the election petition or in the matter of service of a copy of the election petition upon the respondent with the seal of the Oath Commissioner but proceeded to allow the said application, inter alia, on the ground that the appellant himself had given a certificate to the effect that the third round of counting in booth no. 35 as regards rejection of 258 ballot papers was correct being in violation of Rule 38 (1) and Rule 56 (2) (h) of the rules. The High Court by reason of the impugned judgment held that once the error as specified in clause (h) of rule 56 (2) has been committed the returning officer had no other option but to reject the said ballot papers.