Ranganath Misra, J. - (1.) This appeal under Section 116-A of the Representation of the People Act, 1951 ('Act' for short), is directed against the decision of the High Court at Patna setting aside the appellant's election to the Bihar Legislative Assembly from 115 Jamtara Assembly Constituency polling for which was held on May 31, 1980, arid the result of which was declared on June 2, 1980. Sixteen candidates being the appellant and the 15 respondents contested the election. The appellant was the candidate of the Communist. Party of India and respondent No. 1 was of the Congress (I) Party. At the poll the appellant received 13336 votes while the respondent No. 1 polled 13312 votes. The appellant was, therefore, declared elected on the footing that he had received 24 more votes than the respondent No. 1. Respondent No. 2 had polled 13285 votes. As the election dispute has been confined to the appellant and respondent No. 1 it is not necessary to refer to the other candidates or indicate particulars of their performance at the election. Respondent No. 1 filed an election petition under Section 81 of the Act asking for the appellant's election to be set aside and for a declaration that he should be declared as the successful candidate. In para 9 of the election petition he pleaded the details of the illegalities and irregularities committed in the course of counting of the ballot papers. It is not necessary to refer to the other details excepting what was pleaded in para 9(i) as respondent No. 1 did not press the election petition on those grounds. The pleading in the sub-paragraph was to the following effect:"On table No. 10 booth No. 10 (Fukbandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer. Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer. The aforesaid ballot papers were rejected by the Assistant Returning Officer in spite of the objections raised by the petitioner and his counting agents."
(2.) It is appropriate to indicate here that the High Court did not take into account the plea in regard to 31 ballot papers in the absence of particulars. The appellant in his written statement before the High Court pleaded that the statements contained in para 9 and its sub-paragraphs were vague and incorrect. In para. 16 of the written statement it was stated: "During course of counting no illegality or irregularity of any kind was committed; rather the same was held in proper, legal and orderly manner, nor any such imaginary illegality was pointed out or any objection was raised on behalf of the petitioner." In paragraph 17 it was further pleaded that "the statement contained in paragraph No. 9 (i) of the election petition is wrong. It is false to say that the ballot papers were rejected only on the ground of want of signature of the Presiding Officer. The fact is that the Assistant Returning Officer, who was duly appointed. after fully applying his mind and finding nearly 95 ballot papers of booth No. 10 to be spurious and not genuine and after giving cogent, legal and satisfactory reasons, rejected the ballot papers. The petitioner has suppressed the fact that besides his 74, 31 ballot papers of other contesting candidates including 3 of the respondent No. 1 were also rejected for not bearing signature of the Presiding Officer and the distinguishing mark of the polling station No. 10."
(3.) In paragraph 18 of the written statement the appellant pleaded that: "With reference to the contents of paragraph No. 9 (1) of the Election Petition, the respondent No. 1 further begs to submit that counting of ballot papers of booth No. 10 was completed before 12 noon in the very first round and the petitioner secured 3160 votes in that round while the respondent No. 1 could get only 484 and one Parmanand Mishra got 1172 votes. Neither the petitioner nor his election agents nor counting agents, all of whom were present in the counting hall, did raise any objection at the time of rejection of the ballot papers or for the whole day rather they accepted the position that those ballot papers were rightly rejected being spurious and not genuine. However, after announcement of the votes of last round and conclusion of counting of the votes and completion and submission of result sheet in Form 20 by the Assistant Returning Officer to the Returning Officer, the petitioner having lost the election by a small margin lost all his senses and like a drowning man catching the last straw, made out a false case of illegality in counting and thus on 2-6-1980 at 1.50 a.m. for the first time raised an objection by filing a petition which was frivolous in nature to count the rejected ballot papers in his favour.";