KANAK VARDHAN SINGHDEO Vs. BIBEKANANDA MEHER

JUDGEMENT

(1.) An unsuccessful candidate from 108 - Patnagarh Assembly Constituency in the election held on 27-2-1990 for the Orissa Legislative Assembly is the petitioner invoking the jurisdiction of this Court under Section 81 read with Sections 100 and 101 of the Representation of the People Act, 1951 (hereinafter referred to as the "Act") praying therein to declare the election of respondent No. 1 as void and to declare the petitioner to have been duly elected having secured a majority of the valid votes after allowing inspection of ballots and making a recount of the same. The main ground on which the petition has been filed is that the result of the election has been materially affected due to improper reception, refusal or rejection of votes.

(2.) The averments made by the petitioner in the petition are that the election to the Patnagarh Constituency took place on 27-2-1990 and the counting of votes was held in Jawaharlal College Campus at Patnagarh on 28-2-1990. In course of counting of votes the counting supervisors and the counting assistants to the knowledge and with the connivance of the Returning Officer and with open support and inducement from respondent No. 1 and his election agent Shri Padmalochan Panigrahi freely and fearlessly indulged in rampant improper reception and refusal or rejection of votes. Objections raised by the Election agent of the petitioner as well as his counting agents yielded no fruitful result. On the other hand, the election agent and counting agents of the petitioner were threatened by the election agent and counting agents of respondent No. 1 with dire consequences. Though a written complaint had been lodged by the election agent of the petitioner to the Returning Officer, the same was not received. In the process of counting large number of ballots which had been cast in favour of the petitioner were improperly rejected. Similarly, large number of ballots cast in favour of the petitioner or respondent No. 3 or respondent No. 4 were improperly counted in favour of respondent No. 1 and large number of ballots which were liable to be rejected on account of double marking were improperly received and counted in favour of respondent No. 1. The counting agents of the petitioner were not given opportunity to inspect such ballot papers. After the counting was over and the announcement was made by the Returning Officer with regard to the total number of votes polled by each candidate, the petitioner had asked the Returning Officer for a recount and the Returning Officer had allowed him twenty minutes' time to make a written application, While the petitioner was busy in scribing the application, the supporters of respondent No. 1 entered inside the counting arena and prevented the petitioner from presenting the written application demanding for a recounting. Simultaneously those supporters of respondent No. 1 forced the Returning Officer to declare the results of election and the Returning Officer being so influenced hurriedly declared respondent No. 1 as duly elected and thereby prevented the petitioner from filing an application for recounting. It was further alleged that the result of the election has been materially affected by improper reception refusal or rejection of at least, 3,036 votes, inasmuch as :-

(3.) Respondent No. 1 filed his written statement denying the allegations made in the election petition. It has been pleaded in the written statement that the election petition does not satisfy the requirements of Sections 81, 82, 83 and 117 of the Act and the petition has not been properly presented and it does not contain a concise statement of material facts of the allegations as required under Section 83(1)(a) of the Act. It has also been averred that non-filing of copy of the challan along with the election petition that was served on the respondent vitiates the election petition as there has been an infraction of Section 81(3) of the Act. It has been further pleaded that though the signature of the petitioner appears in every page of the copy served on the respondent, but there has been no endorsement to the effect that the copy served is a true-copy of the original election petition and, therefore, the petition is liable to be rejected under Section 86 of the Act. So far as the allegations regarding improper rejection of valid votes and improper acceptance of the same are concerned, respondent No. 1 has pleaded that the detailed particulars of the votes disclosing the exact number of the ballot paper and particulars of illegality or irregularity committed with respect to each individual ballot paper not being there, the petition is liable to be rejected. It is also contended that the Returning Officer, nor the counting staff being made parties who are necessary parties under Section 82 of the Act, the election petition is liable to be rejected. With regard to the prayer of inspection and recounting, the respondent No. 1 has pleaded that no prima facie case having been made out, much less any sufficient ground, for inspection or recounting having been made, the Court should not interfere with the secrecy of ballot paper by allowing the petitioner to have a roving enquiry. Each and every allegation of the alleged improper acceptance and improper rejection of valid votes made in the election petition has been denied. So far as the allegation of written complaint being handed votes to the Returning Officer was not accepted and was refused is concerned, respondent No. 1 avers that the same is not only untrue and false, but also is scandalous and has been designedly concocted. Respondent No. 1 also denies the allegation that his supporters rushed into the counting hall and physically pushed out the petitioner, his election agent and counting agents and unlawfully prevented the petitioner from presenting the petition for recounting and also forced the Returning Officer to declare the results without awaiting further for presentation of the application for recounting. A xerox copy of the true-copy of the result-sheet declared in Form-20 under Rule 56(7) of the Conduct of Elections Rules, 1961 (hereinafter referred to as the "Rules") is annexed as Annexure-A to the written statement.