- (1.) By means of instant application No.A11 dated 12th/ 29/07/1994, under Section 86(1) of the Representation of the People Act, 1951, hereinafter called the Act, the contesting respondent No.1 urges the Court to inflict upon the petitioner extreme penalty of dismissal of his election petition for the alleged non-compliance of the mandatory provisions contained in Section 81(3) of the Act.
(2.) On 28th Novermber, 1993, the respondent No.1 was declared elected as Member of the Uttar Pradesh Legislative Assembly from Dataganj Assembly constitutency No.47 in the district of Budaun.
(3.) The petitioner, one of the candidates who lost the election, has filed the present election petition calling in question the election of the respondent No.1 under Section 81 read with Section 80 of the Act on the following two grounds:- "(A) Because the result of the election of the respondent No.1 has been materially affected by non-compliance and contravention of the provisions of Representation of the People Act, 1951; Conduct of Election Rules 1961 and the Orders and Directions issued by the Election Commission of India from time to time under the Constitution read with provisions of Representation of the People Act and the Conduct of Election Rules; 1961." "(B) Because, the result of the election of the respondent No.1 has been materially affected by improper reception of the votes in his favour which votes in fact were invalid and were liable to be rejected and the improper rejection of votes cast in favour of the petitioner which in fact were valid votes and were liable to be counted in favour of the petitioner as valid votes." The concise statement of the alleged material facts in support of ground (A) is to be found in paragraph 12 of the petition which contains sub-paragraphs No.(i) to (xiv). Sub-paragraphs 12(iv), 12(v), 12(vi) and 12(ix) which have been relied upon by the respondent No.1 in support of his parayer for dismissal of the election petition are extracted below:- "(iv). That under Rule 45 of the Conduct of Election Rules 1969 the Presiding Officers at the close of the polling are required to fill up the details of the ballot papers utilised in a ballot paper account to be maintained in Form-16, Part I. At the start of counting the ballot papers found inside the ballot boxes are recorded on Form 16, Part II. In the polling held for 47-Dataganj Assembly Constituency there are discripencies in the total number of votes polled and the total number of votes found inside ballot boxes. Besides there is further discripancy in the total number of votes found inside the ballot boxes and the total number of votes as shown in the final result sheet in Form 20. Theallegations made in para under reply are based upon the figures as recorded in certified copies of Form 16, Part I, Form 16, Part II and Form 20." (Underlining by the Court) " (v) That the total of the votes polled as recorded in Form 16, Part I is 103535 while the total number of votes found inside the ballot boxes is 103459 as per Form 16, Part II. And the total number of votes as shown in Final result sheet is 103497. The discrepancies in the aforesaid figures which do not tally with each other is indicative of the fact that the counting process was not correctly Conducted. The averment in this paragraph are based on the figures shown in Form 16, Part I and Form 16, Part II and the final result sheet in form 20, the certified copies of which are being filed along with this Election Petition. (Underlining by the Court) " (vi) That on polling station 21 Naveen Primary Pathashala Deharpur Khurd, the number of votes polled was 594 as per Form 16, Part I while the total number of votes as shown to have been found inside the ballot box is 544 as per Form 16, Part II with no explanation whatesoever as regard, to 50 votes. The averments made are based upon the figures shown in certified copies of Form 16, Part I and Form 16, Part II pertaining to said polling station which are on record of this election petition." (Underlining by the Court) " (ix) That the counting supervisors similarly failed to prepare a bundle with correct number of votes of each candidate after counting and the bundles containing less than 50 votes cast in favour of respondent No.1 were also counted as having contained 50 votes. This irregularities has resulted in discrepancies in the figures set out in result sheet in Form 20. According to the information supplied by counting agents of the petitioner on table No.2 viz. Jafaruddin the counting supervisor of table No.2 viz. Anand Kumar Pal, Junior Engineer, Public Works Department, committed this irregularity in the first round of counting and the bundles of respondent No.1 containing less than 50 votes were counted as having 50 votes thereby resulting in discrepancy in the number of votes allotted and counted on the table." (Underlining by the Court);