Ghanshyam Prasad, J.
1. The petitioner has called in question the election of Respondent No. 1 as a member of Bihar Legislative Council from Purnea- cum- ArariaCum- Kishanganj local authorty and has sought relief that he be declared as duly elected member of Bihar Legislative Council in place of Respondent 1.
2. The District Magistrate, Prunea in capacity as returning officer, on direction of Election Commission, on 4.6.2003 notified programme for holding election for a member of Bihar Legislative Council from the aforesaid local authority. According to the programme the petitioner, respondent 1 to 23 and six others filed their nomination on 24.6.2002. The Returning Officer scrutinised nomination papers and except two all other nomination papers were found valid. Later on four candidates withdrew their nom pominations leaving twenty four candidates in field including the petitioner and Respondent No. 1. The election was held on 10.7.2003 and after counting the result was announced on 13.7.3003. As per result the Respondent No. 1 received 2469 valid votes whereas the petitioner received only 2463 valid votes. Accordingly Respondent No. 1 was declared elected by margin of only six votes over the petitioner.
3. The petitioner has challenged the election of Respondent No. 1 mainly on two grounds. It is averred that the election in question was materially affected due to wrong and improper acceptance of nomination paper of Respondent No. 1. There was substantial defect in filling nomination paper of Respondent No. 1 inasmuch as he furnished serial number and part number of voter list of the year 2003 and also filed certified copy of voter list of 2003 instead of voter list of 2002 which was effective at that point of time. At that point of time the voter list of 2003 was pending for final publication. Therefore, the nomination paper of Respondent No. 1 being not properly filled up and suffered from incurable defect was fit to be rejected. The Returning Officer illegally and improperly and against the provision of the Representation of the People Act accepted his nomination paper. It has material the election and hence the election of Respondent No. 1 is fit to be declaed as void under Section 100 of the Representation of the People Act, 1951 (hereinafter referred to as 'R.P. Act').
4. It is further averred that the result of election was also materially affected due to improper and illegal rejection of sixty votes polled in favour of the petitioner on mere flimsy and technical grounds which is not tenable in law. All sixty ballot papers bearing first preference mark in favour of the petitioner were rejected as those were marked by dot pen instead of violet sketch pen. It is further averred that actually it was mistake on the part of the Polling Officer who supplied dot pen to the voters for marking and therefore it does not invalidate the ballot papers. Improper rejection to sixty ballot papers by Retutrning Officer materially affected the result of the election which rendered the election of Respondent No. 1 as void and illegal. It has further been averred that the petitioner also filed a petition before the Returning Officer for recounting of rejected ballot papers but the same was illegally and arbitrarily rejected by him. It has also been stated that the entire counting was also vitiated as it was done by mixing of the ballot papers and not boothwise. In fact, the petitioner secured majority of valid votes but on account of commission of irregularities and illegalities in counting the Respondent No. 1 was declared elected in place of the petitioner.
5. There are as many as twenty four Respondents but actually only Respondent No. 1 filed written statement and contested the case. Respondent Nos. 7, 12, 16 and 22 also have filed written statement but supporting the case of Respondent No. 1. They did not contest the case.
6. Apart from formal plea of non-compliance of mandatory provision of Sections 81, 82, 87 and 117 of the R.P. Act, 1951, the Respondent No. 1 has denied all allegations levelled in the election petition. It is denied that there was any substantial error or defect in filing the nomination paper or that the Returning Officer improperly or wrongly accepted the nomination paper of Respondent No. 1 and has stated that he filed proper and duly filled up nomination paper and the Returning Officer also rightly accepted the same.
7. It has also been stated that it is incorrect to say that actually the petitioner secured majority valid votes and due to illegal, improper and arbitrary rejection of large number of ballot papers polled in favour of the petitioner the Respondent No. 1 was declared elected. In fact the Respondent No. 1 secured majority of valid polled votes as such he was declared elected by the Returning Officer. It is also denied that any valid vote polled in favour of the petitioner was rejected by the Returning Officer. The petitioner has failed to bring on record any specific case of illegality or irregularity and has also failed to state as to on what booth the dot pens were supplied instead of violet sketch pen. It is also denied that the petitioner filed any genuine protest petition at the time of counting for recounting of invalid ballots. In fact after the result of election the petitioner manufactured petition for the purpose of filing this election petition. Accordingly, Respondent No. 1 has prayed for dismissal of election petition with costs.
8. In support of his case the petitioner has examined altogether nine witnesses including himself as P.W.1 Trilok Chand Jain. On the other hand, the respondent No. 1 has examined altogether thirteen witnesses including himself as D.W.11 and the Returning Officer as D.W.13, Pankaj Kumar. No document has been filed on behalf of the respondent whereas the petitioner has filed so many documents which have been marked as Exts 1 to 4. Ext.1 is the petition dated 13.7.2003 filed on behalf of the petitioner before the Returning Officer for recounting. Ext.2 is endorsement of the Returning Officer on Ext.1. Exts.3 to 3D are counting agents forms of diffetent counting agents of the petitioner.Ext.4 is the Election agent's forms of Md. Javed.
9. Following issues are re-cast for decision of this Election Petition.
(i) whether the Election Petition is bad for non-compliance of the provisions of Sections 81,82,83,87 and 117 of R.P. Act, 1951;
(ii) whether the nomination paper of Respondent No. 1 was illegally and improperlly accepted by the Returning Officer;
(iii) whether any irregularity or illegality was committed by the Returning Officer in counting of the ballot papers and thereby materially affected the result of the election;
(iv) whether the election of Respondent No. 1 is fit to be declared as void, illegal and bad in law and whether the petitioner is entitled to be declared as duly elected member of the Bihar State Legislative Council;
(v) whether the petitioner is entitled to any other relief or reliefs?
10. Issue No. (ii): The admitted fact is that on the relevant date the Respondent No. 1 was the voter in the constituency in question. He filed his nomination paper furnishing serial number and part number of voter list of the year 2003 which was not in force on that very date as it was still pending for final publication. He also filed certified copy of the voter list of the year 2003 along with nomination paper instead of voter list of 2002 which was in force on the relevant date. This fact has also been admitted by the Respondent No. 1, (D.W.11) in his examination-in-chief as well as by the Returning Officer, D.W.13, in his cross examination.
11. The submission of learned Counsel for the petitioner is that the Respondent No. 1 committed substantial and incurable defect/error in filling his nomination paper inasmuch as he furnished incorrect srial number and part number and also furnished wrong certified copy of the voter list i.e. of the year 2003 which was not in force at that point of time and, therefore, the Respondent No. 1 was not deemed to be elector as defined under Section 2(e) of the R.P. Act, 1951, It. has further been submitted that the above defect amounts to non-compliance of Section 33(4) of the R.P. Act and therefore the Returning Officer had no option but to reject the nomination paper in accordance with Section 36(2)(b) of the R.P. Act. It has further been submitted that the improper and illegal acceptance of nomination paper of the Respondent No. 1 has materially affected the election and, therefore, the election of the Respondent No. 1 is deemed to be void and illegal under Section 100(d) of the R.P. Act. In support of his contention learned Counsel for the petitioner has relied upon two decisions of the Apex Court reported in AIR 1985 SC 847 (Brij Mohan v. Sat Pal) and : AIR1985SC1073 (Lila Krishan v. Mani Ram Godara and Ors.).
12. On the other hand, learned Counsel for the Respondent has submitted that it is wrong to say that the nomination paper of the Respondent No. 1 was illegally and improperly accepted by the Returning Officer. Referring to Proviso to Section 33(4) of the R.P. Act it is submitted that the Returning Officer has wide power to get such error either corrected or overlooked and accordingly in view of the power vested under the R.P. Act the Returning Officer got such defect removed and thereafter accepted the nomination paper of the Respondent No. 1.
13. As said above, the admitted position is that the original nomination paper of the Respondent No. 1 contained serial number and part number of voter list of the year 2003 which was not in force at that point of time time. The certified copy of the voter list of the year 2003 was also filed along with the nomination paper as required instead of voter list which was in force for the time being.
14. However, rigour of Sub-section (4) of Section 33 of the R.P. Act has been substantially diluted by inserting proviso through amendment in the year 1966. Sub-section (4) of Section 33 runs as follows;
On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls;
provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
15. This proviso provides wide power to the Returning Officer either to permit the candidate or his agent to correct inaccurate description or clerical, technical or printing errors or overlook those defects after inquiry. The Apex Court in para-15 of the decision reported in AIR 1985 SC 1073 (Supra) while dealing with proviso to Section 33 of the R.P. Act has held as follows;
The contents of the aforesaid proviso and the provisions of Sub-section (4) of Section 36 when read together make it clear that the mistake with reference to the serial number was such an error in this case which could be corrected. Under Section 36(1) of the Act, on the date fixed for scrutiny of nominations election agent, one proposer of each candidate and one other person duly authorised in writing by each candidate are entitled to appear before the Returning Officer, and such persons are entitled to reasonable facilities for examining the nomination paper. The purpose of making such provision is to facilitates scrutiny. The presence of candidate, his election agent and another person acquinted with the constituency would certainly facilitate the process of scrutiny. Defects covered by provision to Section 33(4) could easily be resolved if people authorised under Section 36(1) of the Act are present at the time of scrutiny....
16. D.W.11 Md. Azimuddin is Respondent No. 1. His evidence goes to show that the Returning Officer overlooked the errors after satisfying hinmself with the voter list of the year 1995. He has stated that at the time of scrutiny of nomination papers the Returning Officer demanded a copy of the voter list of the year 1995 which he filed. In cross examination it is only suggested that the voter list of the year 1995 was actually annexed after verbal rejection of the nomination paper by the Returning Officer to which this witness has denied.
17. D.W.7, Naushad Alam is another witness on this point. He was one of the candidates in the election. He had also attached voter list of the year 2003 along with his nomination paper. He has stated in his evidence that three candidates including the Respondent No. 1, himself and one other had attached voter list of the year 2003. Objections were raised against their nomination papers upon which the Returning Officer directed them to file certified copy of voter list of the year 1995. He has further stated that in his presence certified copy of the voter list of the year 1995 was given to the Returning Officer and thereafter all the three nomination papers were declared valid.
18. D.W.6, Gulam Haider, is another witness on this point. He was also one of the candidates who contested the election. He in his evidence has proved this fact and has stated that on the order of the Returning Officer the voter list of the year 2003 was replaced by the voter list of the year 1995.
19. The Returning Officer, Pankaj Kumar, has also been examined as D.W.13 on behalf of the Respondent. He has stated that the nomination papers of the Respondent Nos. 1 to 6 were also accepted as those were valid and in accordance with law. In his cross examination he has stated that the Respondent No. 1 filed his nomination paper on the basis of voter list of the year 2003 as well as 1995.
20. Thus, from the above evidence it is quite clear that the Returning Officer accepted the nomination paper after getting the defect or error removed. It is not a case that the Respondent No. 1 was not a elector on the relevant date. The only objection of the petitioner is that the Respondent No. 1 cited/quoted serial number and part number and also filed voter list of the year 2003 which was still pending for final publication.
21. On careful perusal of Section 33(4) of the R.P. Act it appears to me that the dominant purpose of the provision is that the Returning Officer must be satisfied about the genuineness of the candidate and his proposer as voter and once he is satisfied after enquiry he may either overlook the error of the nature mentioned in the proviso or may allow the candidate to get the same corrected. Therefore, once the nomination paper is accepted after getting the error removed as permitted in proviso it cannot be called in question as being improperly accepted.
22. The learned Counsel for the petitioner cited two decisions of the Apex Court both repoted in AIR 1985 SC (Supra). In both the decisions the rejection of nomination papers were called in question. In the judgment reported in the case of Brij Mohan (Supra) at page 847 the part number of electoral roll was wrongly mentioned whereas in another judgment reported in the case of Lila Krishan at page 1073 (Supra) the serial number of the proposer was wrongly mentioned. In both the cases the nomination papers were rejected by the Returning Officer. In both the cases the Apex Court upheld the rejection of nomination papers. In the case of Brij Mohan (Supra) no-one was present on behalf of the candidate to correct the error. Even in spite of information given to the candidate he did not turn up. As a result, the nomination paper was rejected by the Returning Officer. In the case of Lila Krishan (Supra) also no-one was present on behalf of the candidate at the time of scrutiny to correct the error and, therefore, the nomination paper was rejected. But in the instant case, the fact is entirely different, Here I would like to refer the relevant findings of the Apex Court made in paragraph 20 of the decision reported in Brij Mohan (Supra) at page 853, in order to understand as to when the defects of such nature amount to constitute defects of substantial nature and when they would not be a defects of substantial character. The relevant findings of the Court run as follows;
It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character. They would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the material placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the correct part number of the electoral roll. If that is not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency.
23. In view of the above decisions as well as the facts of the case it is quite clear that the defects pointed out by the petitioner in nomination paper of the Respondent No. 1 do not amount to be defects of substantial character and, therefore, it is of no consquence. Accordingly, this issue is decided against the petitioner and in favour of Respondent No. 1.
24. Issue No. (iii); According to the petitioner's case sixty ballot papers bearing preferential mark in his favour were illegally and improperly rejected by the Returning Officer which materially affected the result of the election. Those ballot papers were marked by dot pen instead of violet sketch pen as the instrument for marking i.e. dot pen was provided by polling officers to the voters. The admitted fact is that the Respondent No. 1 was declared elected by a margin of six votes only over the petitioner. It is also admitted that sixty ballot papers bearing first preferential votes in favour of the petitioner were rejected by the Returning Officer as those were marked by dot pen instead of violet sketch pen.
25. Both the parties have adduced oral evidence on this point. First of all I would like to deal with the evidence of the petitioner. P.W.1, Trilok Chand Jain is the petitioner himself. He is an important witness, However, his evidence on this point is very vague and uncertain. He has only stated that sixty preferential votes polled in his vaour were illegally and arbitrarily rejected by the Returning Officer for which he filed an application (Ext.1) before the Returning Officer for recounting. He has not uttered even a single word against non-providing of violet sketch pen to the voters by the Returning Officer, Ext.1 filed by the petitioner before the Returning Officer also does not support the allegation. It goes to show that the petitioner simply filed a petition for recounting of all rejected ballot papers numbeing 752 without making any allegation of illegal and arbitrary rejection of ballot papers on the ground of marking by an instrument other than the instrument provided by the Polling Officer. Thus, it is quite clear that the petitioner himself was not clear about the illegal or arbitrary rejection of any ballot paper marked in his favour. The plea of illegal or arbitrary rejection of ballot papers has been taken for the first time in the election petition only for the purpose of fishing inquiry which is not permissible under the law. (1993 SC page 1178 M. Budha Prasad v. Simhadri Satyanarayana Rao and Ors.).
26. Apart from the petitioner, some other witnesses have also been examined to support the allegation. P.W.3 Md. Javed Akhtar, P.S.4 Manmohan Rashid, P.S.7 Md. Safia Alam and P.S.9 Pikesh Kumar Saha were counting agents on behalf of the petitioner. All these four witnesses have stated that on their respective counting tables some votes bearing first preferential mark by dot pen in favour of the petitioner were rejected against which they made protest. However, in cross-examination they all admitted that they did not file any written complaint against that rejection. P.W.4 in his cross- examination has even admitted that the ballot papers marked by dot pen in favour of other candidates were also rejected by the official. Thus, according to him, there is no case of arbitrary rejection of any vote polled in favour of the petitioner.
27. P.W.5, Deban Yadav, claims himself to be a voter and has stated that he had cast vote with the help of dot pen provided by the Polling Officer. He has also stated that he was election agent of the petitioner and on table No. 6 twenty two ballot papers marked in favour of the petitioner were rejected on that ground. However, he admitted that he did not file any protest petition. According to him Md. Jamil Akhtar, a candidate in the election, was also present on that table. Md. Jamil Akhtar has been examined on behalf of the petitioner as P.W.2 but he has not uttered a single word that any ballot paper was rejected arbitrarily on that table.
28. P.W.6, Md. Abdullah, has claimed himself to be the voter and has stated that he cast his vote through dot pen provided by the Polling Officer, However, no document has been filed to show that he was actually a voter and. he cast vote as claimed. P.W.7, Md. Safia Alam claimed himself to be a counting agent of the petitioner on table No. 7 and has stated that nine votes were rejected bearing first preferential mark in favour of the petitioner. He has stated that he told about illegal rejection of ballot papers to the candidate as well as election agent but surprisinly no such petition, was filed either by the candidate or his election agent. In cross - examination he has admitted, that he had no knowledge about the type of instrument by which the ballot papers were to be marked in that very election. Similar ignorance has also been shown by P.W.8 in his cross-examination.
29. On the other hand, a large number of witnesses have also been examined on behallf of the Respondent to show that no irregularity was committed in counting of the ballot papers. D.W.1 Md. Jahid Hassan, D.W.2 Md. Amminuddin, D.W.3 Md. Ashique, D.W.4 Md. Arif Azad and D.W.5 Jawahar Yadav have claimed themselves to be the counting agents of the Respondent No. 1. They all have stated that no irregularity was done in counting. All objections raised by the different candidates were properly dealt and in case of any doubt those ballot papers were sent to the central table where the decisions were taken. D.W.4 was also one of the voters. He has stated in his evidence that violet sketch pen was given to him for marking of ballot paper. D.W.5 in his evidence has clearly stated that all ballot papers marked by sketch pen were okayed in counting and all such ballot papers marked by dot pen were rejected in the counting.
30. D.W.6 Gulam Haider was also one of the candidates in the election. He was present at the time of counting. He has stated in his evidence that no irregularity was done in counting. D.W.7 Naushad Alam and D.W.8 Maya Nand Chaudhary were also candidates in the election. They have also stated in their evidence that no irregularity was committed in counting.
31. D.W.9 Gullam Nabi claims himself to be the counting agent. He has clearly stated in his evidence that all ballot papers which were not marked by violet sketch pen were sent to central table and ultimately those were rejected. D.Ws.10 and 12 Sakil Azam and Saqib Neyaz were voters. They have stated in their evidence that the violet sketch pen was provided by the Polling Officer by which they marked on the ballot papers.
32. D.W.11 Md. Azimuddin is the Respondent No. 1 himself. He has fully supported his case and denied the allegation of irregularity and illegality in counting. D.W.13 Pankaj Kumar is the Returning Officer. He has also denied all the allegations. In his cross- examination the petitioner has not given any specific suggestion with regard to illegal or arbitrary rejection of ballot papers. Only vague suggestion has been given. However, in course of argument emphasis was given on the last paragraph of the crossexamination in which this witness has stated that the voters but preferential tick mark on the ballot papers with instrument supplied by the polling staff. This statement is said to be admission with regard to supply of dot pen to the voters. In my view, this statement is not an admission in favour of the petitioner. This is general statement with regard to procedure of election.
33. The submission of the petitioner on this issue is twofold; It is submitted that the voters put preferential mark on the ballot papers with dot pen as he same was supplied to them by the Polling Officer. It was the fault on the part of the Polling Officer and, therefore, rejection of those ballot papers is apparently illegal and bad in law. The second submission of the learned Counsel for the petitioner is that marking of ballot papers by an instrument other than one which is required is not a serious lapse. Rejection of ballot papers on such flimsy ground is inmproper and illegal. Learned Counsel for the petitioner has relied upon two decisions of the Supreme Court reported in : AIR2000SC153 (T.H. Musthaffa v. M.P. Varghese and Ors.) and : [2003]2SCR1113 (Hari Shankar Prasad v. Shahid Ali Khan and Ors.).
34. However on perusal of the above decisions of the Apex Court it would appear that none of them is applicable in the instant case. In both the cases there was admission on the part of the election officials that wrong instrument was actually supplied by the Polling Officer for putting mark on the ballot papers. Therefore, in both the cases the Apex Court held that rejection of such ballot papers is improper and illegal. To make it more clear I would like to refer paragraph 17 of the judgment reported in Hari Shankar Prasad (Supra) which is as follows;
On consideration of all the material available on the record, we find that the wrong stamp was made available to the voters by the polling officer. That being the position, such of the ballot papers marked by the stamp supplied have been wrongly rejected by the Returning Officer and they are to be counted in favour of the petitioner.
35. Similarly in paragraph 14 of the decision reported in the case of T.H. Musthaffa (Supra) the Supreme Court has held as follows;
If we read the relevant Rules 39 and 56(2)(b) of the Rules with the instructions given at Clause 10F in the Handbook for the Candidates it will be clear that the voter will record his vote by stamping a mark on the ballot paper with the rubber stamp supplied to him by one of the Polling Officers. In this case, admittedly, it is the Polling Officer who had supplied the instrument for marking the ballot paper. It is thus clear that the appellant cannot take advantage of the mistake, if any, in supplying the instrument for marking the ballot papers.
36. On the other hand, learned Counsel for the Respondent submitted that no specific plea of violation of the Rules 39(2) and 56(2)(b) of the Election Conduct Rules, 1961 with regard to wrong supply of instrument has either been taken in the petition for recounting (Ext.1) or in the pleading or in evidence of the petitioner. Even no such suggestion has been given to the Returning Officer (D.W.13). It has further been submitted that the evidence adduced on behalf of the petitioner also does not prove such violation by the Polling Officer. On the other hand, the evidence adduced on behalf of the Respondent is consistent that the instrument for marking was violet sketch pen and not the dot pen. Therefore, the rejection of ballot papers bearing marks by different instrument is legal and justified. For that he has referred to Rule 56(3)(b) of the Conduct of Election Rules, 1961 as well as the judgment of the Supreme Court reported in 1990 (Suppl) SCC 322 (Era Sezhiyan v. T.R. Balu and Ors.).
37. Rule 56(2)(b) of the Conduct of Elections Rules, 1961 runs as follows;
56(2) The returning officer shall reject a ballot paper-
(a) ...
(b) If it bears no mark at all or, to indicate the vote, it bears a mark elsewhere than on or near the synbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose.
38. This Rule clearly provides that the ballot paper bearing mark made otherwise than with the instrument supplied for the purpose is bound to be rejected. This Rule is in conformity with the principle of maintaining secrecy of voting as laid down in Rule 39(a) of the Conduct of Elections Rules, 1961.
39. The decision relied upon by the Respondent is appropriate decision which is fully applicable in this case. In that very decision the difference in nature of election to Lok Sabha/State Assembly and Rajya Sabha/Legislative Council has been spelt out and taken in account for observance of provisions of Conduct of Elections Rules, 1961, particularly, Rules 39(a) and 56(2)(b) and it has been held in paragraphs 10 and 15 of the judgment that in case of election to Rajya Sabha/Legislative Council the number of voters is limited and, therefore, one can assume that they are reasonably familiar with the procedure of voting. In paragraph 10 of the judgment it has been held as follows-
it must also be borne in mind that there is no express rule or instruction in connection with election to the Rajya Sabha by members of the State Assemblies or election to the Legislative Council of the States which specifically requires that the article for marking the preference should be handed over to each voter personally. In these circumstances, in our view, the High Court was right in interpreting the expression 'article supplied for the purpose' in Rule 39-A (2)(b) and Rule 73(2)(e) of the Election Rule's as meaning 'made available for tghe purpose' or 'provided for the purpose.
In paragraph 15 of the judgment in concluding portion it has been held as follows;
The possibility that in a given case a breach of the rules may be difficult to detect cannot lead to the conclusion that the mandatory requirement that preference on the ballot paper must be marked with the article supplied for the purpose should be regarded as not binding in law. We are, therefore, of the view that the said ballot paper was rightly rejected by the Returning Officer and the arguments urged by learned Counsel for the appellant in that contention must be rejected.
40. Thus, from the above discussions of Rule, Evidence as well as various decisions referred to above it is quite clear that the petitioner has failed to show any illegality or impropriety in counting of votes. Accordingly, this issue is also decided against the petitioner and in favour of the Respondent,
41. Issue No. (i)- Not pressed.
42. Issue Nos. (iv) and (v) - from the above discussions it is quite clear that the election of Respondent No. 1 is neither void nor fit to be set aside on any of the grounds taken by the petitioner. It is also clear that this petitioner is not entitled to get any relief or reliefs as sought for including the relief for declaration in his favour as duly elected member of the Bihar State Legislative Council in place of the Respondent No. 1.
43. Accordingly, this election petition is dismissed on contest with costs.