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1. This election petition under Sections 80A and 81 of the Representation of the People Act, 1951 (hereinafter to be mentioned as 'the Act') has been presented and filed on behalf of Sri Ramanand Yadav, a losing candidate in the election held in 1996 for Bihar Legislative Assembly from 209, Danapur Assembly Constituency.

2. It appears that there were altogether 12 candidates contesting the election and the petitioner has impleaded the rest 11 candidates including the winning candidate as respondents in this case. The elected candidate Sri Vijay Singh Yadav has been impleaded as respondent No. 1 and he has filed a written statement and has contested the election petition. It has been stated on behalf of the petitioner that he was one of the contesting candidates in the bye-election of 209 -- Danapur Assembly Constituency during the election held in May, 1996. He has challenged the election of the returned candidate, respondent No. 1 (Vijay Singh Yadav). According to the petitioner, he had secured majority of valid votes cast during the election, but on account of miscounting of ballot papers he was not declared elected and respondent No. 1 was declared elected and the petitioner was defeated by a margin of 588 votes. The petitioner apart from seeking declaration for setting aside the election of respondent No. 1 has also sought relief under Section 101 of the Act to be declared as returned candidate in place of respondent No. 1. According to the petitioner, in the general election held in the year 1995 Shri Laloo Prasad was elected from the Constituency in question. However, Sri Laloo Prasad, who subsequently became the Chief Minister of Bihar, was also been declared elected from another Constituency, namely, Raghopur Assembly Constituency, and, so, Sri Laloo Prasad resigned from Raghopur Assembly Constituency due to which holding of bye-election was necessitated. Accordingly, the Election Commission of India decided to hold bye-election along with the general election of the Parliament. A notification for holding general election of Parliament as also bye-election of 209-Danapur Assembly Constituency was issued by the Election Commission of India on 27-3-1996 giving detailed programme. The programme was as the date of nomination 27-3-1996 to 3-4-1996, the date of Scrutiny- 4-4-1996, date of withdrawal -- 6-4-1996, date of Poll -- 7-5-1996, date of counting -- 9-5-1996. It is further stated that at the relevant time Sri Nawal Kishore Upadhyaya ("Madhup") happened to be the S.D.O. of Danapur and, accordingly, he was appointed as the Returning Officer by the Election Commission of India. Altogether 20 candidates had filed their nomination papers for contesting the election, but the nomination papers of two of the candidates were rejected by the Returning Officer. Thereafter 18 nomination papers were found valid during scrutiny by the Returning Officer and the same were accepted on the date of withdrawal, i.e. on 6-4-1996. Six candidates withdrew their nominations and only 12 candidates remained in the field. The different symbols were also attached to the aforesaid 12 candidates. The election petitioner Sri Ramanand Yadav of Janta Dal was allotted the symbol of Chakra;

6. Respondent No. 1 appeared and filed written statement in which apart from challenging the maintainability of the election petitioner for non-compliance of the provisions of Sections 81, 82 and 117 of the Act, it has been stated that the petition in question has been filed without any supporting material and only in order to disturb the election of respondent No. 1. According to respondent No. 1, he had received a maximum valid votes in counting and the counting was done in proper and fair manner and no illegality or irregularity was committed by the counting personnel. All the allegations have been denied on behalf of respondent No. 1. It has been stated that so far as poll held on 7-5-1996 in this Constituency is concerned, the same was not free and fair as it was not conducted in accordance with law and the polling on 7-5-1996 was farce and it was a rigged polling and in such circumstance the Returning Officer was not justified to make a report to the Election Commissioner for repoll at only one polling booth, namely, Booth No. 268. Therefore, on the basis of other materials and reports produced before the Election Commission of India, The Election Commission passed an order in accordance with law exercising its power under Sections 58 (2) (a) and 58-A (2) (a) for holding a fresh poll in the Constituency. The decision of the Election Commission regarding holding of fresh poll in the Constituency cannot be challenged by the petitioner in the present petition. It is further stated that in fact regarding poll held on 7-5-1996 it was widely reported in the national media that the manner in which the voters were threatened and prevented from casting votes and the magnitude of booth capturing by the anti-social elements had made the election farce. It has also been further stated that the counting of ballot papers started on 17-5-1996 no doubt, but in fact seven counting tables were arranged for the counting of ballot papers in respect of the election in question and it is totally incorrect to say that there were tables in each counting hall. It is stated that the Assembly Election from Danapur Assembly Constituency had nothing to do with the Parliamentary Election from Patna Parliamentary Constituency which consists of six Assembly segment including Danapur Assembly Constituency. So, counting of ballot papers regarding Patna Parliamentary Constituency in respect of its Constituent Assembly Constituency was done separately at separate counting tables and the said counting had nothing to do with the election in question. So, it has been stated that the petitioner has unnecessarily mixed the counting of ballot papers of Patna Parliamentary Constituency and the counting of ballot papers of the Assembly Constituency in question. It is also further stated that all the candidates were fully aware of the fact that each contesting candidate had to appoint only 14 counting agents for counting tables. It is further stated that many of the allegations made in the election petition are incorrect and motivated and had been prepared only for the purpose of filing the election petition. In fact counting was done only at 14 counting tables and 15th table was assigned to Assistant Returning Officer or the Returning Officer.

14. So far as the documents are concerned, Ext. 1 is a petition said to have been filed by the election agent of the petitioner before the Returning Officer on 18-5-1996. Ext. 1/A is another petition filed by election agent of the petitioner Sri Lalan Prasad Singh on some unknown date. The petition is not dated. Ext. 1/B is also a petition purported to have been filed by P.W. 1, the election agent of the petitioner, on 18-5-1996. Ext. 1 on commission is the order. sheet of the Returning Officer relating to counting. Ext. Sis the proceeding of a meeting of the candidates of all the parties held. Ext. 2 is the order of the Returning Officer. Ext. 4 is the pro forma for seeking permission for declaration of result under the signature of the Returning Officer (P.W. 9) and the result is attached with the same. Apart from the documents some other documents have also been filed, but the same have not been admitted into evidence and are on the record. Ext. 'A' for the respondent is a copy produced on behalf of the petitioner which was claimed by P.W. 1, election agent of the petitioner, to have been maintained in course of counting. From the entry made in this copy (Ext. 'A') it appears that there were 14 tables each in both the counting halls on the ground floor as well as on the upper floor and the counting agents of the petitioner were present on 7 tables in each of the rooms, it has been endorsed by P.W. 1 in this copy that on table Nos. 1 to 7 on the upper hall the counting of Parliamentary Constituency was done, whereas on table Nos. 8 to 14 counting of votes of the Assembly Constituency was done and his agents were present on table Nos. 8 to 14. Similarly, according to him on table Nos. 1 to 7 in the lower hall the counting of Parliamentary Constituency was done and on table Nos. 8 to 14 the counting of Assembly Election was done and his agents were present on counting table Nos. 8 to 14 and as the 7 tables each were reserved in both the halls the counting agents in some cases was transferred from one table to another which was so because the counting agents of the petitioner or any candidate contesting the Assembly election were required to be present only on those tables on which the counting of Assembly Constituency was being done.

28. It is also significant to note in this connection that P.W. 1 himself has admitted that the petitioner was a candidate of Janta Dal which was a ruling party in the State at the relevant time. It is obvious as stated in the election petition Itself that from this very Constituency the then Chief Minister of Bihar Sri Lalu Prasad had contested and was declared elected in the general election for Assembly, but as Sri Lalu Prasad had won election from Raghopur Constituency in the District of Vaishali also and he had to vacate his one seat, he decided to vacate his seat of Danapur Constituency, this is the background in which the bye-election for Danapur Constituency was held along with the general election of Parliament. As the seat was vacated by Sri Lalu Prasad for which bye-election was held, it has been submitted that there was possibility that the electorate had some reaction and did not like to vote for his candidate, the petitioner, and that may be a reason for his getting lessor number of votes. Moreover, as the petitioner happened to be a candidate of the ruling party, in ordinary course the Officers might have had some concerned or weakness for him, but as the respondent was a candidate of B.J.P., there was no question of the authorities having election has been affected by this countermanding. So far as the countermanding of the election is concerned, it was the decision of the Election Commission which has discretion in the matter. This power is vested in the constitutional authority of the Election Commission of India under Article 324 of the Constitution and the Election Commission has power under Section 58 and 64-A of the Representation of the People Act also. In this case, the detailed reasons behind countermanding of the election by the Election Commission are not known. The petitioner realises that the then Returning Officer had made a recommendation regarding cancellation of Policies on a particular polling booth and without report of the Returning Officer the election of entire Constituency had been countermanded which is improper and illegal.