HARIPRASADYADAV Vs. SURESH PRASAD YADAV

JUDGEMENT

(1.) This election petition relates to election from 176 Katoria Assembly Constituency, to be referred hereinafter only as Constituency', which was held on 27-2-1990. The election petitioner is Hari Prasad Yadav, who lost the said election, came to this Court with a prayer to declare the election of respondent No 1 as void and further to direct re-counting of votes of Booth Nos. 42, 45, 46 and some other Booths and after that to declare the election petitioner to be elected from Constituency No. 176 of Bihar Legislative Assembly.

(2.) In brief, it can be said that the petitioner was also one of the nominated candidates of Constituency No. 176 in which the last date for filing nomination was 3-2-1990 and after all the formalities of the election process, the election was held on 27-2-1990 and counting of votes were done on 1-3-1990 and the result was declared on 2 3-1990 in which respondent No. 1 Suresh Prasad Yadav was declared as elected with small margin of 378 votes only by the returning officer, i. e. the Sub-Divisional Officer, Banka. It is alleged that in all 34 nominations were found valid and about 12 candidates withdrew and thus 22 candidates remained as contesting candidates, who were allotted different symbols as per description given in the election petition. According to the returning officer, who declared the result on 2-3-1990, the petitioner secured 16859 votes whereas respondent No. 1, who was declared elected, secured 17237 votes.

(3.) It has been specifically alleged that respondent No. 1 Suresh Prasad Yadav, who was Congress candidate and at the relevant time holding the rank of Minister of State in the Congress Ministry of Bihar and thus has sufficient influence over the returning officer and also the Observer and at his instance Sri. C. M. Prasad was appointed as Election Observer so that he can secure his undue favour in getting himself elected. The returning officer at the instance of the Election Observer manipulated the matter and counting of votes in Booth Nos. 42, 45, 46 and 84 was held at about 1.00 A. M. in the night and there was occasional failure of power supply which gave excellent opportunity to the returning officer to favour respondent No. 1 Moreover, counting of votes so far Booth Nos. 42, 217, 218 and 225 were concerned, there was patent illegality because though the Ballot Papers containing the signature of the Presiding Officer, but were rejected illegally on a vague and non-existent ground there was no distinguishing mark on the back side of the Ballot Paper. The Returning Officer also ignored the prescribed procedure, Rules and Instructions in rejecting the Ballot Papers only on the ground that there was no distinguishing mark and it has been specifically alleged in the petition giving full details that if at all those Ballot Papers, which were cast in favour of the election petitioner are to be counted in favour of the petitioner, then certainly the petitioner could have got much more votes than the respondent No. 1 and he could have been declared as duly elected candidate.