NAKKA BHIKHYAMANA Vs. AUROVINDO DHALI

JUDGEMENT

(1.) The petitioner has contested in the bye-election to 86-Malkanagiri (S.C.) Assembly Constituency along with respondents 1, 2 and 3. The vacancy having been caused on account of the death of Nakka Kanaya, the bye-election had been held on 8th of June, 1992. The petitioner contested the election on Janata Dal ticket with symbol 'Chakra'; respondent No. 1 contested as the candidate of Bharatiya Janata Party with symbol "Lotus"; respondent No. 2 contested as the candidate of Indian National Congress with symbol "Hand" and respondent No. 3 contested as an Independent candidate with the symbol "Bow and arrow". Respondent No. 1 was declared elected by the Returning Officer having polled a total number of votes of 27,156, whereas the petitioner had polled the second highest having polled 27,109; respondent No. 8 polled 13,588, whereas respondent No. 3 polled 827 votes. In this application filed under S. 101 of the Representation of the People Act, 1951, the petitioner has prayed for inspection and recounting of votes and for declaring the election of the returned candidate (respondent No. 1) to be void and to declare the petitioner to have been duly elected. A concise statement of material facts on which the petitioner relies has been given in the petition as follows :

(2.) Respondents 2 and 3 have been set ex parte by order dated 18-9-1992 as there was no appearance on their behalf notwithstanding valid service of notice personally.

(3.) Respondent No. 1 filed his written statement denying the allegations made in the application. The allegation of bias of the Returning Officer towards him was denied and it was also denied that he ever led any procession in support of the stand that Shri Gupta should not be transferred. It was also alleged that the petitioner never rejected to the appointment of Shri Gupta as the Returning Officer and had never made any complaint to the Election Commissioner. The allegation that ballot papers which ought not to have been counted for respondent No. 1 were counted in his favour was denied and it has been further averred that the counting agents of the petitioner had never raised any objection on the counting table. The assertion of the petitioner that Shri Parida prayed for a test check also has been denied. It has been specifically averred that the particulars of ballot papers given in Schedule-A are imaginary and were manufactured subsequent to the election with a view to using the same in the election case. Those particulars had never been submitted before the Returning Officer either in course of counting or in course of recounting. It has similarly been alleged that the particulars given in Schedule-B are also imaginary and concocted after the publication of the result only for the purpose of being used in the election case. Respondent No. 1 contended that though in law Returning Officer should have disallowed the prayer for recount, since no complaint whatsoever had been made to him earlier, but yet he allowed recounting of rejected votes. The allegation that the Returning Officer did not allow any inspection of rejected votes of 111 booths was also denied. It has been averred in the written statement that though Shri G. B. Mukherjee had been appointed as an Observer, but no complaint had been made either to the Observer, or to the Returning Officer or to any other competent authority and, therefore, the allegations are mere afterthoughts. The assertion in the election petition that the Returning Officer hurriedly completed the counting is false and has been denied. Respondent No. 1 further stated that no irregularity having been committed in course of counting and recounting, small majority is no ground for directing recount or for inspection of ballot papers. Therefore, the application is liable to be rejected.