G. B. PATTANAIK, J.

( 1 ) AN unsuccessful candidate from 108 - Patnagarh Assembly Constituency in the election held on 27-2-1990 for the Orissa Legislative Assembly is the petitioner invoking the jurisdiction of this Court under Section 81 read with Sections 100 and 101 of the Representation of the People Act, 1951 (hereinafter referred to as the "act") praying therein to declare the election of respondent No. 1 as void and to declare the petitioner to have been duly elected having secured a majority of the valid votes after allowing inspection of ballots and making a recount of the same. The main ground on which the petition has been filed is that the result of the election has been materially affected due to improper reception, refusal or rejection of votes.

( 2 ) THE averments made by the petitioner in the petition are that the election to the Patnagarh Constituency took place on 27-2-1990 and the counting of votes was held in Jawaharlal College Campus at Patnagarh on 28-2-1990. In course of counting of votes the counting supervisors and the counting assistants to the knowledge and with the connivance of the Returning Officer and with open support and inducement from respondent No. 1 and his election agent Shri Padmalochan Panigrahi freely and fearlessly indulged in rampant improper reception and refusal or rejection of votes. Objections raised by the Election agent of the petitioner as well as his counting agents yielded no fruitful result. On the other hand, the election agent and counting agents of the petitioner were threatened by the election agent and counting agents of respondent No. 1 with dire consequences. Though a written complaint had been lodged by the election agent of the petitioner to the Returning Officer, the same was not received. In the process of counting large number of ballots which had been cast in favour of the petitioner were improperly rejected. Similarly, large number of ballots cast in favour of the petitioner or respondent No. 3 or respondent No. 4 were improperly counted in favour of respondent No. 1 and large number of ballots which were liable to be rejected on account of double marking were improperly received and counted in favour of respondent No. 1. The counting agents of the petitioner were not given opportunity to inspect such ballot papers. After the counting was over and the announcement was made by the Returning Officer with regard to the total number of votes polled by each candidate, the petitioner had asked the Returning Officer for a recount and the Returning Officer had allowed him twenty minutes' time to make a written application, While the petitioner was busy in scribing the application, the supporters of respondent No. 1 entered inside the counting arena and prevented the petitioner from presenting the written application demanding for a recounting. Simultaneously those supporters of respondent No. 1 forced the Returning Officer to declare the results of election and the Returning Officer being so influenced hurriedly declared respondent No. 1 as duly elected and thereby prevented the petitioner from filing an application for recounting. It was further alleged that the result of the election has been materially affected by improper reception refusal or rejection of at least, 3,036 votes, inasmuch as :-" (I) Out of 1558 ballots rejected, in the marks given in at least 381 ballot papers the intention of the elector to cast his vote in favour of the petitioner is clearly indicated and the said at least 381 ballot papers containing valid votes in favour of the petitioner, instead of being received and counted in favour of the petitioner have been illegally and improperly rejected on flimsy and untenable grounds, in spite of specific objections by the counting agents of the petitioner. (II) At least 372 valid votes cast in favour of the petitioner have been illegally and improperly received and counted in favour of the respondent No. 1, instead of receiving and counting in favo