VISHNUDEO NARAYAN, J. - (1.) THIS election petition has been filed by the above named petitioner who was one of the contesting candidates of 318 Panki Assembly constituency of Bihar Legislative Assembly held in the year 2000, to set aside the election of the Returned Candidate i.e. respondent No. 1 and further for his declaration as elected from the said constituency in place of respondent No. 1 after inspection and scrutiny of 258 illegally rejected ballot papers of booth No. 35 bearing vote in his favour.
(2.) THE Election Commission of India issued Notification No. 464, dated 17.1.2000 for the election of 318 Panki Assembly constituency. - The election programme of the Assembly election for 318 Panki Assembly constituency was as follows : (i) Last date of filing of nomination 24.1.2000 (ii) Date of scrutiny of nomination paper - 25.1.2000 (iii) Last date of withdrawal of candidature - 27.1.2000 (iv) Date of polling - 12.2.2000 (v) Date of Repolling - 24.2.2000 (vi) Date of counting - 25.2.2000 and 26.2.2000 (vii) Date of declaration of result 26.2.2000. 16 candidates had filed their nomination which was found valid on scrutiny and Ramdeo Prasad Yadav, an independent candidate, withdrew his nomination and, thereafter, 15 candidates including the petitioner and the Returned Candidate i.e. respondent No. 1 remained in the fray. The election petitioner was an independent candidate whereas respondent No. 1, the Returned Candidate, was the candidate of the Samta Party, a. recognized political party. Election symbols were allotted to the aforesaid 15 candidates for the said election and "bus" was allotted as election symbol to the election petitioner whereas "Mashal" was the election symbol allotted to respondent No. 1. As per the programme the election was conducted on 12.2.2000. On receipt of some complaints re -poll was hela on 24.2.2000 at booth Nos. 5, 8, 57 and 94 of this constituency. The counting commenced in the morning of 25.2.2000 and it came to an end in the early hours of 26.2.2000 and the result was declared on 26.2.2000 at about 10.00 hours declaring respondent No.T as a Returned Candidate. The Returned Candidate had secured in gill 17095 votes whereas the election petitioner . Secured 17058 votes. 1860 ballot papers were rejected. Since there was difference of less than 5% of Secured votes between the election petitioner and respondent No. 1, a reference was made to the Election Commission and as per the instructions of the Election Commission respondent No. 1 was declared as a winning candidate respondent No. 1 was elected by a margin of 37 votes. Certificate of election in Form 22 under Rule 66 of the Conduct of Election Rules 1961 (thereinafter referred to as the said Rules) was granted to the respondent No. 1. In the said election 70.931 votes were polled out of which 69,071 was the valid votes and 1860 wrere rejected votes. The remaining 13 candidates have got less than l/6th of the total valid votes polled and they forfeited their security.
(3.) THE case of the petitioner, in brief, is that he was one of the contesting candidates in the election of 318 Panki Assembly constituency held in the year 2000 and he in fact has secured the majority of the valid votes in the said election but the Returning Officer has illegally and contrary to law rejected 258 valid ballot papers which was polled in his favour on the flimsy ground i.e. not containing the signature of the Presiding Officer as well as distinguishing mark of the booth on these ballot papers though these ballot papers were genuine and were also marked by genuine voters in his favour and this illegality of improper rejection of 258 ballot papers are of booth No. 35 and the said improper rejection of the aforesaid ballot papers was done in the 3rd round of the counting. It is alleged that Dost Mohammad the election agent, of the petitioner raised protest orally and also in writing at the appropriate moment but the Returning Officer illegally and by ilagrant breach of law rejected the protest of the election agent of the petitioner on 26.2.2000. Respondent No. 1 was declared elected by a narrow margin of 37 votes only an if the said 258 votes cast in favour of the petitioner had not been rejected illegally, this petitioner would have been declared elected by a margin of 221 valid votes. It is also alleged that booth No. 35 is at village Pathakpagar and about 462 voters of the said booth had also sent through speed post a protest petition on 1.3.2000 to the Chief Election Commissioner, New Delhi, Chief Electoral Officer, Bihar and Human Rights Commission, New Delhi stating therein that 258 valid ballot papers bearing voting mark by the genuine voters were illegally rejected by the Returning Officer only on account of the mistake committed by the concerned Presiding Officer. It is also alleged that some of the voters who are also the resident of Pathakpagar aforesaid had filed a petition before the Returning Officer in the course of counting of the ballot papers on 26.2.2000 protesting against illegal rejection of valid ballot papers of the said booth and they had requested the Returning Officer either to accept this illegally rejected ballot papers as. valid or to hold fresh election and the said petition was received on 26.2.2000. It is alleged that the counting of the ballot papers of the said election was held boothwise and after the conclusion of the counting of ballot papers the Returning Officer did not allow the petitioner to file a petition for re -count and announced the final result declaring the respondent as Returned Candidate by a narrow margin of 37 votes. It is alleged that the election of respondent No. 1 is fit to be set aside on the sole and solitary ground of improper rejection of 258 valid ballot papers pertaining to booth No. 35 bearing vote in favour of the petitioner and these ballot papers were rejected by the Returning Officer on the filmsy ground of not containing signature of the Presiding Officer on account of his mistake and Rule 56(2)(h) of the said Rules provides that any ballot paper, on which a vote is cast by genuine voter but due to the mistake or failure on the part of the Presiding Officer, does not contain both the signature of the Presiding Officer and the distinguishing mark of the booth, such ballot paper shall not be rejected though admittedly 258 ballot papers at booth No. 35 were issued to the electorates in due course and in normal conduct of the discharge of duty by the Presiding Officer and these ballot papers are also not spurious and thus the rejection of 258 ballot papers cast in favour of the petitioner was illegal, arbitrary and contrary to law and the order of rejection of the Returning Officer in respect thereof is without consideration of the relevant provision of law and application of mind by the Returning Officer. It is also alleged that the ballot papers of booth No. 35 were opened at counting table No. 7 in the third round of counting and ultimately 258 ballot papers cast in favour of the petitioner were illegally rejected at the central table and the improper rejection of the valid ballot papers of the petitioner has materially affected the result of the election. It is further alleged that this petitioner in fact has secured the majority of valid votes in the election in question but on account of illegal rejection of 258 valid ballot papers cast in favour of the petitioner the respondent No. 1 has secured an artificial majority of 37 votes more than the petitioner and as such if 258 ballot papers cast in favour of the petitioner are added to the total votes secured by the petitioner this petitioner is bound to be declared elected by a margin of 251 votes more than respondent No. 1. It is also alleged that the petitioner does not seek inspection scrutiny and re - counting of all the ballot papers used in the election in question but he wants that this Court in the interest of justice and to arrive at the truth only the bundle of rejected votes in respect of polling booth No. 35 be inspected and on inspection of the illegally rejected 258 valid ballot papers of booth No. 35 if found to be true, said 258 ballot papers be added to the total number of the votes counted in favour of the petitioner and he be declared to be duly elected from the said constituency in place of respondent No. 1 after setting aside the election of respondent No. 1 as he has not secured the majority valid votes in the election in question. Lastly it has been submitted that the petitioner in order to protect the verdict of the electorates and also to protect the purity of the election has presented this election petition and the justice is not to be frustrated merely on technicality and the action by law is not to be equated with a game of chess and provision of law is not merely a formality to be observed like rituals but within the provisions of law there is juristic principle i.e. to do justice between the parties. It has also been alleged that the petitioner has furnished adequate statement of all the material facts including the number of the polling booth, number of the table and also the round number in which 258 valid ballot papers cast in favour of the petitioner were improperly and illegally rejected by the Returning Officer.;