ORDER
D.N. Prasad, J.
1. This application (I.A. No. 595 of 2001) has been filed on behalf of respondent No. 1 under Sections 81, 83 and 86(1) of the Representation of People Act, 1951 (hereinafter referred to as ‘the Act’) and Rule 94-A of the Conduct of Election Rules. 1961 (hereinafter to be referred to as ‘the Rules’) read with Order VII Rule 11 and Order XIV, Rule 2 of the Code of Civil Procedure for dismissal of the election petition on preliminary issue on the ground that the election petition is not maintainable.
2. It is stated that from the Election Petition, it would not be evident as to what were the number of those ballot papers, what were the reasons shown by the Returning Officer for rejection of those ballot papers whereas the agents of all candidates used to be present at the Counting Counters and used to certify every round of counting, thereafter only the result of those rounds used to
be declared. These are the material facts which constitute cause of action which are lacking in the election petition. It is further stated that specific allegation about rejection of 258 ballot papers by the Returning Officer has been made in the Election Petition whereas after announcement of the result, the election agent of the election petitioner raised both written and oral protest which was rejected vide order dated 26.2,2000. It is further alleged that copy of the election petition was served on the lawyer of this respondent on 23.3.2001 which does not contain the seal of the Oath Commissioner in the verification and aaffidavit portion nor each and every page of the election petition contains the statement of the election petition of it being a true copy of its original. The affidavits are also not in accordance with Rule 94-A of the said Rules. The entire documents annexed as annexures to the election petition do not constitute a cause of action for filing the election petition as the counting agent of the election petitioner had himself filed the correctness of counting of third round in which votes of Booth No. 35 were counted and after certification of its correctness in all respects, the result of that round was announced. Thus the petitioner has no mouth to raise any objection thereafter which has already been certified by him after counting of third round and as such, this application is fit to be dismissed in limine.
3. Reply has been submitted on behalf of the election petitioner against the preliminary objection raised by respondent No. 1 stating therein that the objection raised in the application cannot be adjudicated and decided without any evidence and, therefore, the objections raised in the petition filed on behalf of respondent No. 1 should not be taken up in piecemeal. It is further stated that there is proper compliance of Sections 81, 83 and 86(1) of the Act. The petitioner has not made any allegation of corrupt practice, therefore, there is no necessity of compliance of Rule 94-A of the Rules. The respondent No. 1 made vague and incorrect objection regarding non-compliance of the Rules under Chapter XXI-E of the Patna High Court Rules. Thus the objection petition regarding its maintainability is fit to be dismissed.
4. Rejoinder has been filed on behalf of respondent No. I claiming therein that in
pursuance of Clause (v) and (vi) of the instruction contained in Circular No. 470/INST/2000/J.S. 11/172 dated 19th January. 2000, the Election Commissioner at the end of counting of each round, a certificate in the prescribed pro forma, a copy whereof has been annexed as Annexure A to the reply, is issued to be signed by the candidate and/or their election agent, and in the instant case, at the end of counting of each round, the election petitioner who was himself present in the counting area duly signed the certificate regarding his satisfaction of counting to be completed in all respects. The certificate of satisfaction of counting in all respects had been signed by the election petitioner himself at the end of third rounds in which 258 ballot papers said to be illegal were rejected. Thus the objection raised by the election petitioner at the end of 14th round of counting when he assessed that he has lost the battle by a margin of 37 votes only, cannot be allowed and the Election Commissioner has rightly rejected the prayer which was raised at the belated stage by order dated 26.2.2000 and, as such, the election petition has got no merit and it is not maintainable and, therefore, the same is fit to be dismissed.
5. Mr. A.K. Sinha, learned Senior Counsel appearing on behalf of respondent. No. 1 assailed the election petition mainly on two grounds. The first ground he pressed that copy of the election petition was served on the lawyer of respondent No. 1 on 23,3.2001 which does not contain the seal of the Oath Commissioner in the verification and affidavit portion nor each and every page of the election petition contains the statement of the election petitioner.
6. The second ground which was emphasized much that the allegation of improper rejection of 258 ballot papers by the Returning Officer which falls on its ground itself that the election petitioner signed on the pro forma at the end of the counting of third round after being satisfied in all respects and he drew the attention to Annexure-B to the rejoinder filed by the respondent over which the election petitioner himself put his signature certifying that the counting of votes in Booth No. 35 has been completed to his satisfaction in all respects. The learned Senior Advocate further submitted that though ob-
jection was raised at the belated stage at the end of 14th round of counting which was duly considered and examined by the Returning Officer and after being satisfied, rejected the objection by order dated 26.2.2000. It is further argued that the entire documents and the allegations as propounded do not. constitute a cause of action for filing the election petition and. therefore, the election petition is lit to be dismissed as it is not maintainable. Mr. A.K. Sinha, learned Senior Counsel, appearing for the respondent No. 1 relied upon the cases of the Supreme Court in Ram Autar Singh Bhadauria v. Ram Gopal Singh and others, AIR 1975 SC 2182, H.D. Revanna v. G. Puttaswamy Gowda and others, AIR 1999 SC 768 and Ram Sevak Yadav v. Hus-sain Kamil Kidwai. AIR 1964 SC 1249.
7. On the other hand. Mr. V.P. Singh, learned counsel appearing on behalf of the election petitioner contended before me that since there was no allegation of corrupt practice in the election petitioner, therefore, the compliance of Rule 94-A of the Rules was not necessary. There is a proper compliance of Sections 81, 82, 83 and 86(1) of the Act. The allegation as made in the election petition is a matter of evidence and cannot be considered and adjudicated at this stage and the determination of objection raised by respondent No. 1 will have an effect on the merits of the case and therefore, it cannot be decided on piecemeal, It is also submitted that copy of the election petition was duly served upon to the counsel for respondent No. 1 containing the signature of the election petitioner and signature and seal of the Oath Commissioner in the verification and the affidavit portions. It is further argued that the Election Commissioner rejected 258 valid ballot papers on the flimsy grounds when there was no allegation that the said ballot papers were spurious or forged. It is also submitted that the voters had also sent a protest petition on 1.3.2000 to the Chief Election Commissioner, New Delhi, claiming therein that 258 ballot papers were illegally rejected by the Returning Officer.
8. It is further argued that proviso to Rule 56 of the Rules provides if it is found that the seal and signature of the Presiding Officer could not be made by mistake, the said ballot papers shall not be rejected merely on the- ground of such defect and the Returning Officer illegally rejected 258 ballot papers
without applying his mind and, therefore, the objection petition as regards to the maintainability of the elections petition is fit to be rejected,
9. As regard to the objection that copy of the election petition was served on the Lawyer of respondent No. 1 whicn does not contain the seal of the Oath Commissioner in the verification and affidavit portions nor on each and every page of the elections petition but this objection has no substantive force for rejecting the election petition inlimine as copy of the said election petition reveals that the petitioner has signed on each and every page of the copy of the election petition. Moreover Section 86 of the Act provides for dismissal of the election petition in limine tor non-compliance of Sections 81, 82 and 117 of the Act. Defect in the verification of the election petition or the affidavit accompanying the election petition is curable and not fatal. In the case of Dr. Vijay Luxman Sadho v. Jag-dish. AIR 2001 SC 600. it was held that the election petition is not liable to be rejected in limine. Thus this ground raised by the learned counsel has got no force, moreover the election petitioner has not made any allegation of corrupt practice and therefore, there appears no need of Compliance of Rule 94-A of the Rules.
10. It is an admitted position that counting of ballot papers started on 25.2.2000 and concluded on 26.2.2000. After conclusion of counting of ballot papers, the Returning Officer declared the election in favour of respondent No. 1. The votes secured by the contesting candidates are as follows:–
Name of the Candidates Votes secured by
the candidates
1. Petitioner 17058
2. Madhu Singh (Respon- 17095
dent No. 1)
3. Ganesh Mahto 5135
(Respondent No. 2)
4. Paramdeo Singh 4622
(Respondent No. 3)
5. Bishunu Gun Singh 1419
(Respondent No. 4)
6. Sripati Singh (Respon- 2416
dent No. 5]
7. Sankteshwar Singh 7205
(Respondent No. 6)
8. Baban Manjhi (Respon- 442
dent No. 7)
9. Vishwanath Singh 6601
(Respondent No. 8)
10. Shyam Sunder Mistri 1009
(Respondent No. 9)
11. Surendra Ram 395
(Respondent No. 10)
12. Md. Alam (Respon- 4250
dent No. 11)
13. Kamal Kishore Pan- 570
dey (Respondent No. 12)
14. Gupteshwar Singh 588
[Respondent No. 13)
15- Pradeep Razak 268
(Respondent No. 14)
Number of Total Valid Votes 69071
Total Number of rejected 1860
ballot papers
11. The sole allegation has been made for setting aside the election of respondent No. 1 for improper rejection of 258 valid votes pertaining to Booth No. 35 which was admittedly rejected by the Returning Officer on the ground of non-containing signature and seal of the Presiding Officer as required under Rule 56 (2) of the Rules. It is also an admitted position that the objection raised by the election petitioner on 26.2.2000 was rejected after considering the whole facts. From the order dated 26.2.2000 it appears that the ballot papers of Both No. 35 was counted in third round. 532 votes found in the ballot box out of which 334 ballot papers were found to be valid, whereas 258 ballot papers were found to be invalid which were rejected on account of the fact that there was no signature of the Presiding Officer on the said ballot papers. There is no dispute that counting of ballot papers was made in presence of the petitioner and his representative and it was certified in the counting of third round that counting of ballot papers in respect of booth No. 35 was satisfactory. The result of the said counting of third round was also declared in presence of the petitioner which will be evident from the signature of the petitioner in the said certificate contained in Annexure-B to the rejoinder filed on behalf of respondent No. 1.
12. From going through the said Certificate (Annexure-B), it appears that as many
as fifteen persons are named as candidate/ election agent/counting agent and the election petitioner himself signed over the said certificate which reads as under:–
“This is to certify that the counting of votes in round No. 3 (three) (to be mentioned) has been completed to our satisfaction in all respects, including the counting (of doubtful votes) at the Returning Officer’s table relating to the said round”.
13. Thus it is apparent from the Certificate (Annexure-B) which has been signed at the end of third round of counting by the petitioner (Bidesh Singh) himself that he certified that counting of votes in round No. 3 (three) has been completed to his satisfaction in all respects. This much is evident that no any objection was ever raised by the petitioner at the end of counting of third round, but the petitioner has admittedly raised the objection at the end ot counting of ballot papers i.e. on 26.2.2000, on which date the result of the election was declared and objection was also raised as against 258 votes which was rejected at the third round of counting when the ballot papers of Booth No. 35 was already completed in the said round.
14. Rule 38 (1) of the Rules reads as under:–
“Every ballot papers before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer”.
Rule 56 (2) (h) deals with:–
“The Returning Officer shall reject a ballot paper:–
(h) if it does not bear (both the mark and the signature) which it should have borne under the provisions of Sub-rule (1) of Rule 38:
Provided that where the Returning Officer is satisfied that any such defect as is mentioned in Clause (g) or Clause (h) has been caused by any mistake or failure on the part of a Presiding Officer or Polling Officer, the ballot paper shall not be rejected merely on the ground of such defect;
Provided further that a ballot paper shall not be rejected on the ground that the mark indicating the vote is Indistinct or made more than once, if the intention that the vote shall be tor a particular candidate clearly appears from the way the paper is marked”.
15. The total ballot papers voted in Booth No. 35 was admittedly counted in third round and the result was declared after counting even after rejecting 258 valid ballot papers which was found to be invalid. The election petitioner himself certified by putting his signature in the certificate (Annexure- B) that the counting made in third round in respect of Booth No. 35 was completed satisfactorily in all respects and as such, the objection raised on 26.2.2000 at the end of 14th round counting was considered and rejected on the same day on the ground that there was no signature of the Presiding Officer over the said ballot papers and Returning Officer was satisfied that the objection raised was unfounded.
16. The Certificate (Annexure–B) authenticated by the election petitioner after the end of third round of counting when the counting of booth No. 35 was already concluded itself goes to establish that the petitioner was fully satisfied about the counting of third round in respect of ballot papers of Booth No. 35. The objection raised by one Dost Mohammad, an election agent of the election petitioner Bidesh Sirigh on 26.2.2000 on the day the result of the election was declared, was filed at the belated stage and after-thought that he is going to lose the election by a margin of thirty-seven votes. There is no reason why the election petitioner or his election agent has not raised any objection at the end of counting of third round when admittedly 258 ballot papers were rejected by the Returning Officer.
17. There are some undisputed facts:–(i) Ballot papers of Booth No, 35 were counted in third round.
(ii) The counting of third round was concluded in presence of the election petitioner and his counting agent.
(iii) 258 ballot papers found invalid were rejected because there was no signature of the Presiding Officer.
(iv) The result of third round was declared in presence of the election petitioner and his counting agent.
[v) The election petitioner signed over the certificate after being satisfied that the counting of third round was completed in all respects.
(vi) No any objection either oral or written was filed before the Returning Officer or Assistant Returning Officer prior to the objection filed on 26.2.2000 and the said objection was filed during the last round of counting when he assessed that he lost the battle by 37 votes.
18. The Returning Officer is empowered to reject the ballot papers having no signature of the Presiding Officer as per Rule 56 (2) (h) of the Rules. Only question has been raised by the election petitioner in the petition that such defect was due to mistake or failure on the part of the Presiding Officer but mistake or failure on the part of the Presiding Officer does not arise in such type of case and in view of the fact that the election petitioner himself signed over the certificate admitting the counting of third round satisfactorily concluded . Thus it can safely be held that rejection of 258 ballot papers was within the full knowledge of the election petitioner at the end of third round of counting but he has not raised any kind of objections at the relevant time rather he certified that counting of 3rd round has been completed to his satisfaction in all respects. There might be mistake or failure on the part of the Presiding Officer if the signature of Presiding Officer was left on few number of ballot papers, but mistake or failure on the part of the Presiding Officer cannot be said to be caused in respect of huge ballot papers i.e. 258. Moreover the election petitioner admittedly did not raise any objection whatsoever after the end of third round of counting of ballot papers of Booth No. 35 which was concluded satisfactorily in presence of the election petitioner and his counting agent which gives rise to come in definite conclusion that the election petitioner has accepted the said counting after being satisfied to be conclusive and final. The inspection and scrutiny of ballot papers cannot be ordered in a casual manner even because the margin of defeat is meagre particularly when the election petitioner himself certified the counting of votes to be conclusive. Thus the election petitioner cannot be allowed to raise same and similar objection suppressing his own certificate (Annexure-B).
19. The provisions of Rule 38(1) and 56 (2) are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in Clause (h) of Rule 56 (2) has been committed, there is no option left with the Returning Officer but to reject the faulty ballot papers.
20. Having regard to the above tacts
and circumstances coupled with the discus
sions made above, it is evident that the
election petition is not maintainable, hence it
is dismissed.