KANHAIYA CHAND Vs. BIHAR STATE ELECTION COMMISSION

JUDGEMENT

(1.) HEARD counsel for the parties.

(2.) PETITIONER is aggrieved by the order dated 29.1.2009 (Annexure -7), which has been passed by the Learned llnd Munsif, Buxar in Election Petition No. 8/2006. By virtue of the said decision the election petition filed by the petitioner has been dismissed as being devoid of any merit. It is alleged by learned counsel for the petitioner that even the ballot papers which were called for inspection were not properly inspected and 97 ballot papers which were properly stamped in favour of the petitioner were illegally kept out or rejected by respondent no. 3, the Returning Officer -cum -Block Development Officer of Dumraon Block in the district of Buxar. The petitioner has not only sought interference with the impugned decision contained in Annexure -7 but has also prayed for a direction upon the election tribunal to inspect and count 97 ballot papers to ascertain whether the same were validly rejected or not. One of the serious challenge to the impugned order is based on the submission that the learned Munsif could not frame an issue during the course of writing the judgment and render its opinion without giving an opportunity to lead evidence on that issue. Further the reasoning assigned and the conclusion reached is perverse and erroneous and fit to be rejected.

(3.) SEVERAL issues based on the allegation made in the election petition came to be formulated by the election tribunal. From a reading of the decision it is apparent that one of the bone of contention was 97 votes which the petitioner alleges accrued in his favour but had been illegally rejected because the petitioner 'sstand is that if those 97 votes are counted in favour of the petitioner he would have been declared winner. The Court has gone through the discussion relating to issue no. 3 with regard to illegal rejection of 97 votes. After taking into consideration the various evidence and witnesses what has emerged is that those 97 votes were rejected on the ground that they did not have the Swastika mark which was mandatory. Even before the counting of votes the State Election Commission had issued clear guidelines that all those ballot papers which did not have a Swastika mark indicating the voters preference for a particular candidate would not be treated to be valid vote and had to be kept out of counting. Though there was a controversy at the relevant time that the instrument by which the marking had to be made provided by the State Election Commission were defective in quite a number of cases and, therefore, the same instrument had been used by the voter provided to them by the election authorities for casting the votes. In the present case since those 97 votes did not bear the Swastika mark, they were declared as invalid and the result was declared on the basis of valid votes. The learned Munsif, therefore, not only on that issue but on other issues also came to a conclusion that the petitioner has not succeeded in establishing any illegality in the counting and declaration of result.