1. The above Application No. 5 of 2016 has been filed by the Respondent No. 6 to the above Election Petition who is the returned candidate for dismissal of the above Election Petition being No. 4 of 2014 filed by Rashmi Digambar Bagal the Election Petitioner, challenging his election.

2. The election in question is to the 244 Karmala Assembly Constituency. The elections to the Maharashtra Legislative Assembly were held on 15/10/2014 and the Election Petitioner and the Respondent No. 6 were the candidates who had contested the election to the said 244 Karmala Constituency amongst other candidates. The Respondent No. 6 i.e. the Applicant in Application No. 5 of 2016 was declared elected having secured 60674 votes whereas the Election Petitioner had secured 60417 votes. It is not necessary to refer to the votes secured by other candidates for the purposes of the present adjudication.

3. The election of the Respondent No. 6 has been challenged principally on the ground of violation of the Rules relating to the counting of the postal ballots and especially the postal ballots numbering 788 as also on the ground that a corrupt practice was committed in respect of the said 788 votes by the Returning Officer, colluding and conniving with the Respondent No. 6 herein. In terms of the affidavit filed in support of the allegations of corrupt practice, the averments made in respect thereof are in paragraphs 2(m), 2(n), 2(p), 3(xix) to 3(xxiii). In so far as paragraphs 2(m), 2(n) and 2(p) are concerned, they contain narration of facts. The allegations relating to the corrupt practice are more particularly comprised in paragraphs 3(xix) to 3(xxiii). The said paragraphs 3(xix) to 3(xxiii) for the sake of ready reference are reproduced hereunder:

“(xix) It is submitted that the Returning Officer Respondent No. 3 being aware of the small margin of votes which would be deciding factor has intentionally and with mala-fide motive rejected the said postal votes on arbitrary and perverse reason with a view to help the Respondent No. 6. It is submitted that as stated above out of the total 1565 postal ballots 776 ballots (+1 as NOTA) were taken up and counted as valid votes whereas 788 ballots were kept separately at 7.45 am and even though the said 776 ballots were counted yet the Returning Officer and his staff had maintained conspicuous silence as to why the said 788 postal ballots (PBs) were not being counted, inspite of an oral objection of the Petitioners counting agent that the remaining 788 postal votes ought to be counted but however the election official kept postponing the counting of said 788 PBs the counting from the electronic voting machine EVM had started. It is submitted that the such an act of delaying the result of the postal ballot and proceeding with the EVM counting itself is against the CE rules 1961, as rule 54 A clearly states:

“54A (1) The returning officer shall first deal with the postal ballot papers in the manner hereinafter provided.....................

54A(11) The returning office shall count all the valid votes given by postal ballot in favour of each candidates, record the total thereof in the result sheet in Form 20 and announce the same.”

(xx) It is therefore submitted that the entire process of counting of PB's was carried out in a manner contrary to the law and it was only by 1.45 pm that after the 21st round of counting when it was clear that the result would be a close call as the contest between the Petitioner who was leading and the respondent No. 6 was of a small margin of votes that the Returning Officer declared the said 788 PB's as invalid and rejected the same.

(xxi) It pertinent to note that the manner in which the 788 PBs were kept aside without rejected them or without even giving the result as per Rule 54 A (12) it is a definite conclusion that the said express rules were being violated to ensure that the PBs should be rejected so that the Resp. No. 6 benefits in violation of S 100 & S123 of RP Act