RAMANAND YADAV Vs. VIJAY SINGH YADAV

JUDGEMENT

(1.) This election petition under Sections 80A and 81 of the Representation of the People Act, 1951 (hereinafter to be mentioned as 'the Act') has been presented and filed on behalf of Sri Ramanand Yadav, a losing candidate in the election held in 1996 for Bihar Legislative Assembly from 209, Danapur Assembly Constituency.

(2.) It appears that there were altogether 12 candidates contesting the election and the petitioner has impleaded the rest 11 candidates including the winning candidate as respondents in this case. The elected candidate Sri Vijay Singh Yadav has been impleaded as respondent No. 1 and he has filed a written statement and has contested the election petition. It has been stated on behalf of the petitioner that he was one of the contesting candidates in the bye-election of 209 - Danapur Assembly Constituency during the election held in May, 1996. He has challenged the election of the returned candidate, respondent No. 1 (Vijay Singh Yadav). According to the petitioner, he had secured majority of valid votes castduring the election, but on account of miscounting of ballot papers he was not declared elected and respondent No. 1 was declared elected and the petitioner was defeated by a margin of 588 votes. The petitioner apart from seeking declaration for setting aside the election of respondent No. 1 has also sought relief under Section 101 of the Act to be declared as returned candidate in place of respondent No. 1. According to the petitioner, in the general election held in the year 1995 Shri Laloo Prasad was elected from the Constituency in question. However, Sri Laloo Prasad, who subsequently became the Chief Minister of Bihar, was also been declared elected from another Constituency, namely, Raghopur Assembly Constituency, and, so, Sri Laloo Prasad resigned from Raghopur Assembly Constituency due to which holding of bye-election was necessitated. Accordingly, the Election Commission of India decided to hold bye-election along with the general election of the Parliament. A notification for holding general election of Parliament as also bye-election of 209-Danapur Assembly Constituency was issued by the Election Commission of India on 27-3-1996 giving detailed programme. The programme was as the date of nomination 27-3-1996 to 3-4-1996, the date of Scrutiny- 4-4-1996, date of withdrawal - 6-4-1996, date of Poll - 7-5-1996, date of counting - 9-5-1996. It is further stated that at the relevant time Sri Nawal Kishore Upadhyaya ("Madhup") happened to be the S.D.O. of Danapur and, accordingly, he was appointed as the Returning Officer by the Election Commission of India. Altogether 20 candidates had filed their nomination papers for contesting the election, but the nomination papers of two of the candidates were rejected by the Returning Officer. Thereafter 18 nomination papers were found valid during scrutiny by the Returning Officer and the same were accepted on the date of withdrawal, i.e. on 6-4-1996. Six candidates withdrew their nominations and only 12 candidates remained in the field. The different symbols were also attached to the aforesaid 12 candidates. The election petitioner Sri Ramanand Yadav of Janta Dal was allotted the symbol of Chakra; while Sri Vijay Singh Yadav (respondent No. 1) was allotted the symbol of lotus (Kamal) being a candidate of B.J.P. Thereafter election was held on 7-5-1996 as per the programme. It was held along with 35-Patna Parliamentary Constituency. 209-Danapur Assembly Constituency constituted a segment of 35-Patna Parliamentary Constituency. It is further stated that on 8-5-1996 a message was received by the Returning Officer of 35-Patna Parliamentary Constituency not to proceed with the counting of votes of the said Parliamentary Constituency. It is also stated that the boxes for Assembly as well as Parliamentary Constituency were common during polling. However, the ballot papers of Assembly Constituency were pink in colour whereas the ballot papers of Parliamentary Constituency were white. Each voter was supplied two ballot papers at a time; one for Assembly Constituency and another for Parliamentary Constituency. Two ballot papers were required to be put in the same ballot boxes. Further, it is stated that a declaration was made by the Election Commission of India on 10-5-1996 under the purported exercise of power under Sections 58 (2) (a) and 58-A (2) of the Act cancelling the entire poll of Assembly Constituency held on 7-5-1996 and 16th May, 1996 was the date fixed for repoll in the Constituency. It is also further stated that in pursuance of the said declaration of the Election Commission of India the Sub-divisional Officer-cum-Returning Officer of the Assembly Constituency issued a Memo on 11-5-1996. The petitioner further stated that the Election petitioner learnt that the Returning Officer had submitted a report regarding only one booth out of 2nd booths and excepting for the said report the Returning Officer did not submit any report to the Election Commission of India regarding the poll held on 7-5-1996, but the election of the entire Constituency was countermanded by the Election Commission which was illegal and not in confirmity with the provisions of the Act.

(3.) It is also further stated that the Returning Officer of the Constituency was also changed in the night of 15-5-1996, and in place of Sri Nawal Kishore Upadhyay "Madhup", the S.D.O. of Danapur, Smt. Nirja was made S.D.O.-cum-Returning Officer of this Assembly Constituency. It is further stated that the Circle Officer of Danapur happened to be the Assistant Returning Officer of the Assembly Constituency, but on the date of counting the aforesaid Assistant Returning Officer was replaced by one Sanjay Singh, Executive Magistrate, Danapur. However, repoll took place on 16th of May, 1996. After the repoll in the Constituency, counting of votes started. As the poll held on the first occasion was cancelled, both in respect of the Assembly Constituency as well as Patna West Assembly Constituency, the poll for Parliamentary Constituency in that segment was also held again. The venue of counting of the Parliamentary Constituency as well as Assembly Constituency was A. N. College, Patna. The counting started on 17-5-1996 at 8 A.M.. It is stated that as per the programme of previous counting, the counting was to take place in one hall on 14 tables apart from the Central table, but on 17-5-1996 the venue of the counting was in two rooms, each room having 14 tables for the purpose of counting. It is also further stated that at the initial counting the ballot papers were separated between ballot papers of Assembly Constituency and that of the Parliamentary Constituency, which was done on 28 tables and thereafter bundles of 25 ballot papers each were prepared. It is also further stated that neither the petitioner nor any other contesting candidate than respondent No. 1 and one Ranbir Singh, an independent candidate, was informed that the initial counting was to take place on 28 tables and therefore, the petitioner could appoint only 15 counting agents, i.e. 14 for counting tables and one for central table. It is also further stated that on the day of counting the Returning Officer was sitting in the hall situated at the first floor; whereas the A.R.O. was sitting in the hall situated on the ground floor. It is further stated that as per schedule, the counting was done for the booth Nos. 1 to 140 on the first floor and the counting of remaining booths was done on the ground floor in the first phase. It is also further stated that the election petitioner and the contesting candidates submitted a list of 15 counting agents each for the purpose of counting before 6-5-1996, but no information was given to the election petitioner that the counting tables would be increased to 28 on 17-5-96 and accordingly, on 17-5-1996 only 15 counting agents of the petitioner were allowed; whereas respondent No. 1 was allowed 15 more counting agents. It is further stated that due to partial and collusive attitude of the Returning Officer 14 tables at the initial counting remained unrepresented on behalf of the election petitioner while respondent No. 1 had counting agents on all the tables. It is also stated that one Lallan Prasad was the election agent of the petitioner. He was present all along in the counting hall and he orally protested to the Returning Officer about his partial and collusive attitude pointing out that 14 tables remained unrepresented on behalf of the petitioner as no information was given to him. In spite of oral protest nothing was done by the Returning Officer in this regard.