JAI NANDAN SINGH Vs. SHANKAR DAYAL SINGH

JUDGEMENT

(1.) By this petition under Sections 80 and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as 'the Act'), the election of respondent No. 1 (Shankar Dayal Singh) to the South Chotanagpur Teachers' Constituency has been called in question by one of the losing candidates to the election to the Constituency, which had been held in 1996.

(2.) Brief facts of the case, as stated in the election petition, are that to fill in the vacancy to the South Chotanagpur Teachers' Constituency of Bihar Legislative Council (hereinafter to be referred to as 'the Council'), biennial election was held in 1996. At the said election, besides the petitioner Jai Nandan Singh and respondent No. 1 Shankar Dayal Singh, there were 15 other candidates who contested the election. Respondent No. 2 Saryu Prasad Singh was also among those contestants. Nominations were filed between 26-3-96 and 2-4-96 and after scrutiny and withdrawal held on 3-4-96 and 6-4-96 respectively, 17 candidates had remained in the fray. The election was held on 28-4-96 and counting of the ballots was done on 30-4-96. On conclusion of the counting of ballots in accordance with the system of proportional representation by means of single transferable vote, respondent No. 1 Shankar Dayal Singh was found to have secured the highest number of votes. Consequently, the Returning Officer who has been impleaded in this petition as respondent No. 3, declared him duly elected. According to the petitioner, such declaration was made on 9-5-1996. Not satisfied with the result of the election so declared by respondent No. 3, the present petition calling in question the election of the returned candidate (R. No. 1) was presented in this Court on 24-6-96.

(3.) It has been alleged in the election petition that when the ballot boxes brought from the polling stations were opened at the time of the counting, 10 ballot papers were found short when the actual number of ballots found in those boxes was compared with the ballot paper accounts submitted by the Presiding Officers of the polling stations. Thus, 10 ballots were not counted at all in course of the counting of the ballot papers. Besides, counting of ballots was not done properly inasmuch several first preference votes marked in favour of the petitioner and respondent No. 2 were rejected on flimsy grounds and many first preference votes marked in favour of respondent No. 1 were counted in his favour even though they should have been rejected as invalid or void. The petitioner further alleged, as an instance of improper counting, that second preference votes were not properly transferred as they were marked by the electors on the first preference ballots of the candidates eliminated in course of the counting. More specifically the petitioner has alleged that 15 ballots of his and 10 of respondent No. 2 were rejected as invalid simply because on those ballot papers figure 1 indicating first preference in their favour was encircled or enclosed in brackets by electors. On the contrary, 50 ballots on which the electors had recorded their first preference in favour of respondent No. 1 with article other than that supplied for the purpose by the election authorities, were illegally counted in his favour, although all such ballots should have been rejected as invalid. Apart from improperly rejecting 25 first preference ballots of the petitioner and respondent No. 2 and illegally counting 50 first preference ballots in favour of respondent No. 1, the Returning Officer committed further irregularity by miscounting while transferring second preference votes of one Anil Kumar, a contesting candidate eliminated after 15th round of counting. It is stated that when said Anil Kumar was eliminated in course of the 15th round of counting, out of his 588 first preference ballots, 100 were transferred to respondent No. 1 and 60 in favour of respondent No. 2 on the ground of 2nd preference marked by the electors on them, although on 85 of those ballots only the electors had put their second preference in favour of respondent No. 1 and on 75 in favour of respondent No. 2. As a consequence of such miscounting after 15th round of the counting, respondent No. 1 was shown to have secured 1198 votes instead of 1183 and respondent No. 2 was shown to have secured 1177 only, although 1192 votes were cast in his favour. It has been contended that but for such miscount respecting transfer of second preference votes of the ballots of Anil Kumar, respondent No. 1 would have been eliminated from the fray and not respondent No. 2 (as has been done) leaving the petitioner and respondent No. 2 in the final run for the seat. It has been alleged that such miscount in respect of the transfer of second preference votes of Anil Kumar could be possible because of the absence of the counting Agents as after the counting of the first preference votes, all the counting Agents of all the contesting candidates were ordered by the Returning Officer to go out of the counting hall. Protests by the petitioner and other candidates against such action was not heeded by the Returning Officer.