TIERATH SINGH RAWAT Vs. YASHPAL BENAM

JUDGEMENT

(1.) ELECTION for the 33rd Pauri Legislative Assembly Constituency was held on 21.02.2007. The counting was held on 27.02.2007 and the result was declared on the same day. The respondent no. 1 Yashpal Benam, an independent candidate, was declared elected defeating the petitioner, who was a BJP candidate by a margin of 11 votes. The total votes polled were 35,025 votes. The total number of votes counted were 34,869 and 156 votes were not counted as it was found to be defective. The opposite party received 10,936 votes whereas the petitioner received 10,925 votes.

(2.) THE petitioner, being aggrieved by the declaration of the result, filed an election petition under section 80/81 of the Representation of the People Act 1951, praying that the election of the respondent no. 1 should be declared void and further prayed that the petitioner should be declared elected from the said constituency. The petitioner contended in his petition that there have been bundles of irregularities and that the postal ballot papers were wrongly rejected without assigning any reason on account of which the election has been materially affected. In paragraph 12 of the petition, the petitioner contended that approximately 800 postal ballot papers were received, out of which 622 postal ballot papers were counted and 156 postal ballot papers were rejected without any cogent reason. In paragraph 12 (A) it was stated that the votes of Electronic Voting Machine (EVM) were counted first and thereafter, the postal ballot papers, which was in violation of the Rule 54 -A of the Conduct of Election Rules 1961 (hereinafter referred to as the "Rules"). In paragraph 17 of the petition, it was alleged that the petitioner made a request for recounting but no heed was given by the Returning Officer. In paragraph 21, it was alleged that the Returning Officer deliberately avoided the recounting of the votes. In paragraph 20, it was alleged that a bundle of irregularities was committed by the Returning Officer by rejecting the postal ballot papers. In paragraph 22, it was alleged that 156 valid votes were rejected without any valid reason. In paragraph 25, it was alleged that there had been an improper reception, refusal and rejection of the votes. In paragraph 16, the petitioner alleged that the postal ballot papers were rejected on the ground that there was no seal of the Attesting Officer and that there were no signature of Commandant (presumably the Station Officer) and that the ballot papers were rejected also on the ground that signature was not made at the proper place. On these allegations, the election petition was filed.

(3.) ON the basis of the pleadings led by the parties, 5 issues were framed, namely: -