Y. K. Sabharwal, J. - (1.) The appellant was elected as a member of Karnataka Legislative Assembly. His election has been called in question by respondent No. 1 who was defeated by a margin of 138 votes. In the petition filed by respondent No. 1 in the High Court under Section 81 of the Representation of the People Act, 1951 (for short, the, Act), a declaration was sought that the election of the appellant was void on the grounds of improper reception, refusal or rejection of votes as also for non-compliance of the provisions of the Act, the Rules and the Orders made thereunder as set out in sub-clauses (iii) and (iv) of Clause (d) of sub- section ( 1) of Section l00 of the Act.
(2.) In all, 88,353 votes were polled. At the final counting, it was found that the appellant had secured 40,418 votes and the election petitioner (respondent No.1 herein) had secured 40,280 votes. The ballot papers rejected as invalid were 3,872. According to respondent No. 1, 59 ballot papers were also found to be missing.
(3.) The counting of the votes was con- ducted in two halls which were adjacent to each other. The Returning Officer T. B. Koli was in charge of Hall No.1 whereas Additional Assistant Returning Officer, N .P. Patil was incharge of Hal1 No.2. They have been examined by the High Court as PW -7 and PW -8 respectively. One of the allegations of respondent No.1 in the election petition is that the number of ballot papers rejected could have been counted in his favour and that his counting agents were not provided with appropriate opportunity to inspect the ballot papers that had been rejected by the Returning Officer. The following issues were framed : "(I) Whether the Returning Officer had failed to make entries of the total number of ballot papers found in the boxes brought from the polling stations in Part II of Form No.16 before the counting was commenced, under Rule 55-B of the Conduct of Elections Rules, 1961, and the entries were straightway made in Form No.20, declaring the elections result (II) Whether it is a fact that in total, 59 votes were found to be missing at the final counting without any cogent explanation for the same (III) Whether, the petitioner proves that the Returning Officer had rejected 3,872 ballot papers without affording a reasonable opportunity of inspection to the counting agents of the petitioner as provided under Rule 56-B of the Conduct of Election Rules, 1961 (IV) If the answer to Issue No. III is found to be in the affirmative, then whether the rejected ballot papers are permitted to be inspected by the petitioner and the respondents for determinations as to whether rejection was proper, and if not, then the ballot papers found to be in order have to be taken into account and for whose benefit (V) Whether the petitioner proves that the counting of the votes was not done in the accordance with the Rules (VI) Whether any of the grounds pleaded by the petitioner, if proved, can be held to have materially affected the impugned elections so as to declare the election of the 1st respondent to be void - ;