Phukan, J. - (1.)This appeal under Section 116A of the Representation of the People Act, 1951 (for short 'the Act') arises from the judgment dated June 29, 2001 of the High Court of Judicature at Bombay. By the impugned judgment, the High Court dismissed the election petition.
(2.)The election petition was filed challenging the election of the respondent from 255 Baramati Assembly Constituency, which was held on 11th September, 1999. The petition was filed by two persons, one was a voter of the constituency and the other was the counting agent of the defeated candidate viz. Shri Chandrakant K. Teware. In the said election the respondent Shri Ajit Anantrao Pawar defeated his immediate rival candidate, Shri Teware by a margin of 50,366 votes. The petition was filed alleging that certain mal practices were committed at the time of counting of the votes, under Section 100 (1)(d)(iii) of the Act.
(3.)The allegations, which are relevant for the present purpose, are stated below :- After the polling, the ballot boxes were to be kept in the MES High School, Baramati as per programme and when the ballot boxes arrived at the said school and was in the process of unloading, all the boxes were shifted to the Recreation Hall, MIDC area at Baramati. According to the appellants this change was made by the Returning Officer without informing the contesting candidates. As the said MIDC area is adjacent to the premises of the Vidya Pratisthan Shikshan Sansthan, which was fully controlled by the family of the respondent and in fact the respondent was one of the office bearers of the said Pratisthan, this sudden change caused an apprehension in the mind of the appellants that it was so done with the oblique motive for replacing genuine ballot papers by fake ones. We find from the counter that there was heavy rain at Baramati on 9th September, 1999 and rainwater was also collected around the said High School. Apprehending that there might be rain on subsequent days and the said High School area might be flooded, the Returning Officer changed the venue of keeping the ballot boxes for safe custody of the boxes as in the event of rain the school area might be flooded. It was also alleged that during counting of votes it was noticed that in the majority of ballot papers there were signatures on the back side of the ballot papers which were similar in nature with the same ink and character. It was, therefore, suspected that genuine ballot papers were substituted by fake ones. In the polling booth Nos. 235, 455 ballot papers were used and there was no signature of the Presiding Officer on the reverse side of the ballot papers as required under the rules, whereas according to the Presiding Officer of the said Booth he signed on all the ballot papers on the previous day of polling, suggesting that ballot papers might have been substituted. In this polling booth one ballot paper of Khed Legislative Constituency was found inside the ballot boxes which was brought to the notice of Returning Officer by filing a written complaint (Annexure P-21A) and according to the appellants the complaint was filed at 2.30 p.m. on 6th of October, 1999 i.e. while the counting process was going on but the Returning Officer refused to receive the same. It was alleged that subsequently the Returning Officer recorded a note at 3.30 a.m. on 7th October, 1999 and, thereafter, passed necessary orders. On these facts it was also alleged that the Returning Officer was influenced by the respondent in the conduct of election and counting of the votes.