JUDGMENT

K. JAGANNATHA SHETTY, J.:— This. appeal under Section 116-A of the Representation of the People Act, 1951, is from the judgment and order of the High Court of Judicature at Patna (Ranchi Bench) dated 26th May, 1988, in the Election Petition No. 2 of 1985 (R). The High Court has set aside the election of appellant to the State Legislature and instead declared respondent as the successful candidate.

2. The facts of the case have been neatly summarised in the judgment of the High Court to which we refer to the extent relevant for our purpose. Shri N. E. Horo, the appellant before us belongs to Jharkhand party. Shri Leander Tiru, the respondent belongs to Congress (1) party. In the general election held in 1985, they were rival candidates for election from 302-Torpa St. Assembly constituency. There were also three other contesting candidates from the same constituency. The appellant secured 19,159 votes as against 19,120 by the respondent. The appellant was thus elected by a narrow margin of 39 votes. The respondent filed an election petition under section 80-A and section 81 of the Representation of the People Act alleging various and varied irregularities in the process of counting. That it was claimed that Hans Raj Singh, the then B.D.O. was on inimical terms with the respondent and had manoeuvred the entire process of counting to his prejudice. The specific instances of illegalities committed by Hans Raj Singh were also highlighted in the petition. He demanded recounting and setting aside the appellants election. He sought a declaration under section 98(c) as the duly elected candidate. The respondent resisted the election petition and denied all the allegations. He asserted that there was proper scrutiny and counting. He even denied the presence of Hans Raj Singh in the counting hall.

3. Upon the pleadings, the issues I to 5 framed in the case relate to the irregularities in counting and scrutiny of ballot papers. The burden was on the respondent to prove that the counting was not in accordance with law.

4. The respondent filed an application under Order 11 Rule 15 of the Code of Civil Procedure read with rule 93(l) of the Conduct of Election Rules, 1961 for inspection of ballot papers counted in favour of the appellant and other contesting candidates. He also produced some evidence in proof of the prima facie case required for inspection. The appellant objected to inspection and alternatively contended that the votes counted in favour of the respondent should also be inspected. The High Court by order dated November 17, 1987 allowed the request of respondent but not that of the appellant. The High Court said that the respondent in his written statement has not alleged any irregularity in the counting of votes in favour of the respondent and, therefore, votes secured by the latter need not be inspected. It was also observed that the election petition itself could be disposed of by the result of inspection and no additional evidence would be necessary. The relevant portion of the order of the High Court runs as follows :

"It has been shown that Part II of form 16 of 90 booths out of 120 have been kept blank by the Supervisor and the Returning Officer. This, prima facie, shows that the result was manoeuvred which is also supported by Exts. 7 and 9. On scrutiny and examination of Form No. 20, Ext. 2 which has been brought on record,- it will be seen that there are lot of irregularities, especially with regard to totalling of the valid votes. There are also differences in the accounting of ballot papers, vide Exhibit 2 and 11 series, of 53 votes, 10 votes and 3 votes respectively in the figures of voting of booth Nos. 22, 101, 43, 48 and 111.

"On the basis of the evidence of the three PWs and documents brought on the record, it can be conveniently said that the petitioner has succeeded in making out a prima facie case for getting an order for inspection of the counted ballot papers. The material facts have been stated in the