M.L. Visa, J.
1. By this application under Sections 80, 80A and 81 of the Representation of People Act, 1951 (hereinafter referred to as the Act) the election petitioner has called in question the election of a returned candidate named Shri Shiv Bachan Yadav (Respondent No. 1) from 243 Kurtha Assembly Constituency in the State of Bihar the election of which was held in the month of February, 2000.
2. The case of petitioner, in short, is that he was one of the contesting candidates in the election from 243 Kurtha Assembly Constituency in the State of Bihar the election of which was held in the month of February, 2000 (hereinafter referred to as the election in question). The then Additional District Magistrate, Jehanabad, namely, Shri G.L. Das was the Returning Officer in the election in question and he issued an election programme giving relevant dates for the election in question as follows:
(i) Last date for filing of nomination papers 24-1-2000
(ii) The date of scrutiny of nomination papers 25-1-2000
(iii) Last date of withdrawal of candidature 27-1-2000
(iv) The date of poll 12-2-2000
(v) The date of counting 25-2-2000
(vi) The date of declaration of final result 26-2-2000
3. The petitioner, respondents and few others filed their nomination papers before
the Returning Officer and the Returning Officer after scrutinising the nomination papers
of all candidates accepted the same for all candidates except three namely, Sardar
Girijesh Singh, Umesh Kumar and Yogendra Pd. Singh whose nomination papers
were rejected by the Returning Officer. After expiry of the period of withdrawal of
candidate the Returning Officer prepared a list of contesting candidates. According
to the petitioner, details of names of contesting candidates, their affiliation to political
parties and symbols allotted to them were as follows:
Names of candidate
Affiliation to political party or independent
Symbols allotted
1.Mundrika Singh Yadav, petitioner
Janta Dal (U)
Arrow
2.
Shiv Bachan Yadav, respondent No.1
R.J.D.
Hurricane Lamp
3.
Ajay Kumar Sinha, respondent No.2
Nationalist Congress Party
Clock
4.
Chitranjan Pd Verma, respondent No.3
C.P.I.
Ears of corn and sickle
5.
Narendra Kumar, respondent No.4
Samta Party
Flaming torch
6.
Randhir Kumar Gautam, respondent No.5
B.S.P.
Elephant
7.
Ram Singhasan Singh, respondent No.6
B.J.P.
Lotus
8.
Shyamdeo Pd Yadav, respondent No.7
Indian National Congress
Hand
9.
Ashok Kumar, respondent No.8
Ajay Bharat Party
Bell
10.
Umesh Paswan, respondent No.9
Bhartiya Momin Front
Axe
11.
Prof. Jai Ram Pd Singh, respondent No.10
Shoshit Samaj Dal
Saw
12.
Tileshwar Singh Kaushik, respondent No.11
Samajwadi Party
Bicycle
13.
Rajendra Pd Singh, respondent No.12
Bharitya Jana Congress (Rashtriya)
Handpump
14.
Ramadhar Singh, respondent No.13
CPI (ML)
Flag with three stars
15.
Md. Akberlmam, respondent No.14
Independent
Aeroplane
16.
Upendra Singh, respondent No.15
Independent
Table Lamp
17.
Jaideep Kumar, respondent No.16
Independent
Almirah
18.
Ramotar Singh, respondent No.17
Independent
Bunglow
19.
Shyam Nandan Singh, respondent No.18
Independent
Chair
4. The polling was held on 12-2-2000 and repelling was held on 9 polling booths on 14-2-2000 and counting of ballot papers commenced on 25-2-2000 and concluded on 26-2-2000 and after compilation of the counting of the ballot papers the Returning Officer prepared final result and announced the votes secured by different candidates the details of which as given by the petitioner in para-9 of his petition are as follows:--
Names of candidate
Votes procured
1.Mundrika Singh Yadav (petitioner)
50232
2.
Shiv Bachan Yadav, respondent No. 1
50888
3.
Ajay Kumar Sinha, respondent No. 2
1793
4.
Chitranjan Pd Verma, respondent No. 3
1153
5.
Narendra Kumar, respondent No. 4
323
6.
Randhir Kumar Gautam, respondent No. 5
2499
7.
Ram Singhasan Singh, respondent No. 6
364
8.
Shyamdeo Pd Yadav, respondent No. 7
281
9.
Ashok Kumar, respondent No. 8
628
10.
Umesh Paswan, respondent No. 9
312
11.
Prof. Jai Ram Pd Singh, respondent No. 10
892
12.
Tileshwar Singh Kaushik, respondent No. 11
5528
13.
Rajendra Pd Singh, respondent No. 12
185
14.
Ramadhar Singh, respondent No. 13
6198
15.
Md. Akber Imam, respondent No. 14
6634
16.
Upendra Singh, respondent No. 15
142
17.
Jaideep Kumar, respondent No. 16
42
18.
Ramotar Singh, respondent No. 17
1759
19.
Shyam Nandan Singh, respondent No. 18
55
5. According to the petitioner, total valid votes were 1,39,900 and number of invalid votes was 1323 and the Returning Officer on 26-2-2000 declared respondent No. 1 as an elected candidate by a margin of 656 votes.
6. The further case of petitioner is that the election of respondent No. 1 is fit to be declared void on the ground of gross illegality and irregularity in the counting of ballot papers as stated by him in his petition. According to the petitioner, he had highlighted the misdeeds of one Om Prakash Sah who was posted as Block Development Officer of Karpi and in the year 1999 before Parliamentary Election a meeting at Karpi was conducted in which petitioner was the chief guest and he had spoken openly against the aforesaid BDO and a resolution was also passed condemning the action of BDO and activities of petitioner made the said BDO an enemy of petitioner and he took revenge in the process of counting of ballot papers and got the petitioner defeated in the election in question. According to the petitioner, counting of ballot papers was done boothwise and counting staff were appointed much before the date of counting and advance notice was given to the staff to arrive at the counting place before start of counting but at the eleventh hour at the instance of BDO, Karpi, counting staff who were previously appointed were changed and new counting staff were replaced to suit the convenience of BDO, Karpi and besides this, generally local officers are not appointed to conduct the counting of local constituency but in the election in question the BDO, Karpi Blok and C.O., Ratni Faridpur whose areas fall within the jurisdiction of Kurtha Assembly constituency, were appointed as Assistant Returning Officers for the election in question who played vital role in the counting of the ballot papers by sitting at the Central Tables as Assistant Returning Officers and besides this, the District Election Officer cum District Magistrate, Jehanabad issued a Press Communique under his own signature prohibiting the counting agents from carrying papers with them in the counting hall though under the law there is no such bar and a counting agent can note down the serial number of the rejected ballot papers. The further case of petitioner is that counting of ballot papers was done in two rooms numbered as Room No. 3 and Room No. 4 of S.S. College, Jehanabad and counting was not done in one hall there was no adequate sitting arrangement for counting agents because only two benches were provided near each counting table out side the barricade and the place provided for sitting counting agents was not sufficient to accommodate them because there were nineteen counting agents for the contesting candidates. The petitioner has further stated that various illegalities and irregularities were committed in the counting of ballot papers and in his petition he has given some instances of illegalities and irregularities stating that these instances are illustrative and not exhaustive. According to him, in the counting of ballot papers of Booth No. 70 the counting chart indicates very clearly that 91 votes were counted in favour of petitioner but final result sheet for this booth No. 70 indicates only 9 votes in his favour. His further case is that counting of ballot papers of Booth No. 70 was held at Table No. 7 in Round No. 7. So his 82 votes were reduced. In respect of Booth No. 105 counting of ballot papers was done at Table No. 11 in Roune 4 and counting chart indicates that petitioner got 320 votes but final result sheet indicates that petitioner got only 220 votes and in this way 100 votes for the petitioner were reduced. Ballot papers of Booth No. 137 were counted at Table No. 13 in Round No. 5 and according to counting chart, petitioner got 312 votes whereas final result sheet shows 212 votes only and in this way 100 votes of petitioner were reduced. Ballot papers of Booth No. 293 were counted at Table No. 7 in Round No. 11 and counting chart indicates that petitioner got 1 vote but final result sheet indicates 'O' vote. In this way altogether 283 Votes of petitioner had been reduced in the final result sheet in respect of aforesaid booths.
7. Another serious irregularity as stated by the petitioner in the counting of ballot papers is that his 810 valid votes were mixed up with the ballot papers of respondent No. 1 and were counted in his favour and this irregularity was committed at different tables in different rounds and when objections were raised by the counting agents of petitioner, counting supervisors and counting assistants threatened them that in case they did not keep quiet they would be removed from the counting hall. The petitioner has given the details of his 810 ballot papers mixed with the ballot papers of respondent No. 1 and were counted in his favour by giving booth numbers, table numbers and round numbers which is as follows:--
Booth No.
Table No.
Round No.
Total number of ballot papers of petitioner mixed with the ballot papers of respondent No.1.
312
2
25
35
4
2
20
39
6
2
23
88
2
4
25
93
5
4
20
95
6
4
28
98
7
4
23
103
10
4
20
152
6
6
25
163
12
6
13
170
1
7
15
180
6
7
18
190
11
7
28
136
12
5
22
204
4
8
33
213
9
8
24
217
3
5
40
219
12
8
18
224
14
8
30
231
4
9
32
238
7
9
15
243
10
9
20
251
14
9
18
248
12
9
25
252
14
10
30
259
9
10
20
260
4
10
25
272
10
10
20
274
11
10
15
276
12
10
10
278
13
10
25
281
1
11
15
283
2
11
18
285
3
11
22
286
3
11
26
288
4
11
10
294
6
11
14
810
8. About another illegality case of the petitioner is that a voter under the law is required to stamp the ballot paper by the instrument supplied to him either by the Polling Officer or by Presiding Officer and if a wrong instrument is supplied to a rustic voter the fault lies with the supplier and not with the voter and in such a circumstance if any ballot paper is marked by a wrong instrument in favour of any candidate such ballot paper cannot be rejected considering the intention of the voter. In respect of certain booths namely, Booth No. 203,23 ballot papers, for Booth No. 277, 60 ballot papers and for Booth No. 71, 26 ballot papers were rejected and in this way total 109 valid ballot papers of the petitioner were wrongly rejected on account of mistake committed by the Polling Officer/Presiding Officer though it was meant for the Presiding Officers to mark on the back of the ballot papers as distinguishing mark. Besides this, a large number of ballot papers roughly 150 bearing votes in favour of respondent No. 1 did not contain signature of Presiding Officer as well as . distinguishing mark of the booth and still these ballot papers were accepted as valid ballot papers and were counted in favour of respondent No. 1. Since counting authorities were not impartial and had soft corner for respondent No. 1 who contested the election in question as a nominee of Rashtriya Janata Dal, a political party which was in power in the State of Bihar at the time of election in question and one ARO namely, BDO, Karpi was inimical to petitioner so patent illegality was committed in the process of counting. The counting authorities were required to announce through media result of each round of counting correctly and at the conclusion of 6th round of counting it was announced through loudspeaker that petitioner was leading by 1100 votes over respondent No. 1 although, in fact,, petitioner by that time was leading by 6600 votes over respondent No. 1 and this misleading announcement was made with a purpose to demoralise the petitioner and his counting agents and in respect of commission of various illegalities and irregularities in the counting of ballot papers the petitioner filed several petitions to the authorities concerned to rectify the defects but nothing was done and his petitions were ignored and at the end petitioner filed petition on 26-2-2000 much before declaration of the result before the Returning Officer to order for recount of the ballot papers in order to protect the purity of the election but nothing was done and no order for recount was passed and in spite of securing majority of valid votes the petitioner had to face the defeat by a margin of 656 votes. The petitioner sent a petition on 29-2-2000 through fax to the Chief Election Commissioner of India with a prayer to pass an order for recounting of ballot papers and a copy of such petition was also filed by him before the Chief Election Officer, Bihar, Patna. The Returning Officer being fully conscious of various illegalities and irregularities in the counting of ballot papers tried to prevent the petitioner from filing petition by not providing him certified copies of certain documents which are required to be supplied under Rule 93(2) of the Conduct of Election Rules, 1961 read with relevant directions issued by Election Commission of India and the petitioner filed a petition before the Chief Electoral Officer, Bihar, Patna, for directing the Returning. Officer to supply certified copies of documents required by him. According to the petitioner, in the election in question he secured majority of valid votes but on account of various illegalities and irregularities in the counting of ballot papers he lost the election by a narrow margin of 656 votes and he is confident that if inspection, scrutiny and recounting of the bundles of ballot papers of respondent No. 1 as well as the bundles of rejected votes are made by this Court he will be declared elected by a majority of not less than 5000 votes over respondent No. 1. The petitioner has souhgt two reliefs firstly, to declare the election of respondent No. 1 void and secondly that he (petitioner) may be declared elected in place of respondent No. 1.
9. On issuance of summons some respondents appeared and simply filed Vakalatnama while other respondents did not appear. It is only respondent No. 1 who has appeared and by filing written statement has contested the case.
10. The case of respondent No. 1 as stated in the written statement is that this election petition is not maintainable and liable to be dismissed because it does not raise any triable issue and is also bad for non-joinder of necessary parties namely, Shri O.P. Sah, Block Development Officer, Karpi, the District Election Officer, the Returning Officer and other election officials engaged in the counting of ballot papers and it is also not maintainable due to non-compliance of mandatory provisions of law contained in Sections 81, 82 and 117 of the Act. The further case of respondent No. 1 is that he was rightly declared elected in the election in question because he secured majority of valid votes and he denies the allegation in the election petition that he secured artificial majority of votes due to illegalities and irregularities committed in course of counting of ballot papers by the counting officials. According to respondent No. 1, counting of ballot papers was started and done strictly in accordance with the provisions of the Act and under the strict supervision and control of Returning Officer in presence of counting agents of contesting candidates including the petitioner and after completion of counting of ballot papers final result sheet was prepared by the Returning Officer which was signed by the counting agents of respective candidates including the counting agents of petitioner namely, Awadhesh Prasad and Manish Chandra and thereafter the Returning Officer announced the result indicating the votes obtained by each candidate as indicated in para-9 of the election petition and total number of valid votes was 129900 and not 139900 as mentioned by election petitioner and total number of rejected votes was 1323 and respondent No. 1 had secured 50888 votes while petitioner secured only 50232 votes and respondent No. 1 was, therefore, elected by a margin of 656 votes. About enmity of petitioner with the Block Development Officer, Karpi, the case of respondent No. 1 is that the statement made by petitioner in para-13 of his election petition in this regard are quite vague and misleading because there is no mention of date and time or even the month when a speech by petitioner as alleged was delivered against BDO, Karpi and petitioner has not disclosed even the gist of alleged resolution which made the BDO, Karpi inimical to him and he has vaguely stated that in the year 1999 before Parliamentary Election in a meeting at Karpi in which he was Chief Guest he had spoken openly against the then BDO, Karpi, Sri Om Prkash Sah and a resolution was also passed condemning his action and due to that Shri Sah became enemy to petitioner and got him defeated in the process of counting of ballot papers of election in question. The case of respondent No. 1 is that an Assistant Returning Officer is not sole and solitary authority of counting process because counting is done under the supervision and control of Returning Officer in presence of contesting candidates or their election agents or counting agents which now a days is done under the strict vigilance of election observers deputed by the Election Commission of India and the counting of ballot papers of election in question was done in two halls according to the instructions of Election Commission of India and the counting charts in both the halls were prepared indicating the votes obtained by conteseting candidates in presence of their counting agents including the counting agents of petitioner namely, Shri Awadhesh Prasad and Manisfi Chandra who never made any objection to any of the election authority about any illegality or irregularity alleged to have been committed by any official engaged in the counting and they signed the counting chartes finding the entries made therein to be correct. About the allegation of petitioner that respondent No. 1 had contested the election in question from Rashtriya Janta Dal the party which was in power in the State of Bihar and therefore, the officers had soft corner for respondent No. 1, the case of respondent No. 1 is that the election is conducted by the Election Commission of India and not by the State Government or by the party in power and all officers put in charge of election process are directly controlled by Election Commission of India and complaint in respect of them is entertained by the Election Commission of India and action, if any, taken against them is also taken by the Election Commission of India alone and the State Government or the party in power has no role in the conduct of election. About the allegation of petitioner that counting staff were changed just before start of counting at the instance of BDO, Karpi, the case of respondent No. 1 is that this allegation is wrong and baseless because BDO, Karpi was Assistant Returning Officer and Assistant Returning Officer has nothing to do with the appointment of counting staff who are appointed by the Chief Electoral Officer in terms of guidelines and instructions issued by the Election Commission of India and the petitioner or his election agent or counting agent never made any complaint in this regard either before the counting or in course of counting. About the allegation of petitioner that BDO, Karpi and CO, Ratni Faridpur were illegally appointed as Assistant Returning Officers ignoring the facts that they were local officers the case of respondent No. 1 is that there is no rule or law which prohibits appointment of local officers for the conduct of election or counting and BDO, Karpi and CO, Ratni Faridpur were appointed as Assistant Returning Officers by the Election Commission of India prior to election and petitioner or his agents never made any complaint or raised any dispute in this regard and both the Assistant Returning Officers acted impartially and fairly in couse of counting under the control, supervision and direction of the Returning Officer and the petitioner after his deafeat has made allegation against them including their conduct by making false and frivolous statements. About the the Press Communique issued by the District Magistrate, Jehanabad, the case of respondent No. 1 is that it was issued in respect of all the five Assembly Constituencies of the district with a view to maintain law and order inside and outside the counting premises and facilitating the counting farily and smoothly and the counting agents were not prohibited from carrying pen and paper inside the counting hall as alleged by petitioner and petitioner has wrongly stated that he had filed a written complaint to the District Election Officer in regard to Press Communique issued by the District Magistrate. About the allegation of petitioner that counting of ballot papers of election in question was done in two halls causing inconvenience, the case of respondent No. 1 is that counting of ballot papers was done in two halls of S.S. College, Jehanabad in Room Nos. 3 and 4 as per direction issued by Election Commission of India and BDO, Karpi was in-charge of Room No. 4 while C.O., Ratni Faridpur was Incharge of Room No. 3 and there was adequate sitting arrangement in front of counting tables outside the barricade and counting agents of almost all the candidates were present there who were wathing the counting and nobody made by grievance or complaint in respect of sitting arrangement. Even the counting agents of petitioner did not make any complaint in this regard.
11. About the allegation of petitioner that counting authorities reduced or decreased his number of votes, the case of respondent No. 1 is that this allegation is false, frivolous and misleading and the allegation of petitioner that for the counting of ballot papers of Booth No. 70, counting chart indicates that he secured 91 votes but final result sheet shows that he secured only 9 votes for this booth is wrong. Respondent No. 1 has admitted that for this booth election petitioner secured 91 votes but according to him in the final result sheet also in respect of this booth, petitioner is shown to have secured 91 votes. For Booth No. 105, the case of respondent No. 1 is that petitioner secured 320 votes which is also recorded in the final result sheet and allegation of election petitioner that in the final result sheet in place of 320 votes he has been shown to have secured 220 votes is not correct. Similarly about Booth No. 437 the case of respondent No, 1 is that petitioner had secured 312 votes for this booth and in final result sheet same number 312 has been shown and the allegation of petitioner that in the final result sheet only 212 votes have been shown in his favour is not correct. About Booth No. 293 the case of respondent No. 1 is that petitioner did not secure any vote at this booth so in the final result sheet 'zero1 is indicated against the name of petitioner and his allegation that he had secured 1 vote for this booth but in the final result sheet 'zero' vote has been shown against his name is not correct. According to respondent No. 1 the allegation of election petitioner that in the aforesaid booths a total number of 283 votes has been reduced against him is not correct. About another allegation that 810 valid ballot papers of petitioner were mixed up with the ballot papers of respondent No. 1 and were counted in his favour at different tables in different rounds and on objection being raised by the counting agents of petitioner the counting supervisors and counting assistants threatened them to keep quiet otherwise they would be removed from the counting hall, the case of respondent No. 1 is that this allegation is entirely false because no application in course of counting on behalf of petitioner was filed before the Assistant Returning Officer or Returning Officer which is clear from letter No. 1 dated 5-1-2001 and its enclosures sent by District Election Officer cum District Magistrate, Jehanabad to this Court while sending the documents called for on behalf of the petitioner which shows that no application in course of counting on 25-2-2000 was filed by petitioner or on his behalf. The case of respondent No. 1 is that petitioner has wrongly stated in the petition on oath that he had filed two complaints on 25-2-2000 raising objection with a request to recount the votes which is not expected from a person of his status who apart from being the legislator for two consecutive terms was also Minister in the Cabinet of State. According to respondent No. 1, in fact, no illegality or irregularity was committed in course of counting and counting was done in accordance with the provisions of the Act and Rules under the strict vigilance of election observers and votes obtained by each candidate including the petitioner were fairly and correctly indicated in the result sheets by the Returning Officer which was signed by election agents of contesting candidates including the election agent of petitioner. Further case of respondent No. 1 is that it is petitioner and his election agents or supporters who had committed considerable mischief in course of polling at polling date and due to that re-polling was ordered to be done on 9 polling stations namely, Polling Station Nos. 48, 58, 73, 214, 251, 252, 267, 281 and 288 and petitioner had also committed mischief at several polling stations namely, 132, 133, 134, 135, 137, 138, 142, 143, 146, 148, 149 etc. falling in the segment of Karpi Block but in spite of it he could not succeed in the election due to his frequent change of the constituency and 'Aya Ram and Gaya Ram' character and he was defeated in the election in question and he has filed this election petition on false and frivolous grounds. About the supply of defective vote marking instrument the case of respondent No. 1 is that the election petitioner has made vague allegation against polling officers/presiding officers in respect of supply of defective vote marking instrument to voters. According to respondent No. 1, vote marking instrument is supplied by District Election Office to the Polling Officers/Presiding Officers alongwith other polling materials and Polling Officers/Presiding Officers have nothing to do with it and no voter or contesting candidate or his election agent made any complaint to any election authority particularly in respect of polling stations Nos. 203, 227 and 71 in respect of supply of defective vote marking instruments and petitioner himself did not make any complaint in this regard either in course of polling or counting. According to respondent No. 1 the total number of rejected vote was 1323 which were of different candidates and election petitioner has wrongly stated that his 23 votes, 60 votes and 26 votes respectively relating to the polling stations Nos. 203, 277 and 71 were rejected in course of counting due to supply of wrong instrument. About allegation of election petitioner that 150 votes were illegally allowed to be counted in favour of respondent No. 1 by the Returning Officer in spite of their not bearing signature of the Presiding Officers, the case of respondent No. 1 is that not a single ballot paper was allowed to be counted in his favour which was not bearing signature of Presiding Officer or was suffering from any infirmity under Rule 26 of the Conduct of the Election Rules and result sheet was signed by the counting agents of petitioner which also falsifies the allegation in this regard. About the announcement of the result in every round of counting the case of respondent No. 1 is that announcement was made correctly and no illegality was committed and in 6th round of counting the petitioner was leading by 6635 votes and announcement to this effect was also made. It cannot be said that it was made wrongly in order to demoralise the election petitioner or his counting agents. Further case of respondent No. 1 is that no illegality or irregularity was committed in the counting of ballot papers and counting was done fairly and correctly and in course of counting no complaint was made by the petitioner or his election agent or counting agents and much after the announcement of result election petitioner filed a vague and cryptic petition on 26-2-2000 before the Returning Officer alleging wrongly that in course of counting considerable illegality had been committed and on protest no heed was paid to it and that in the first round of counting also no correct announcement was made in respect of votes and because there was a margin of only few votes in the declaration of result, therefore, ballot papers of all the polling stations be recounted. According to respondent No. 1 the petitioner has wrongly stated that he had also sent a complaint for recounting to the Chief Election Commissioner by fax on 29-2-2000 which is apparendly incorrect because the petitioner on that very date had sent such application to the Chief Election Officer, Patna, a copy of which is shown to have been forwarded to the Chief Election Commissioner, New Delhi which is apparent from Annexure-2/d of the Election Petition and petitioner has annexed Annexure-2/c alongwith the election petition addressed to the Chief Election Commissioner, New Delhi, without making any averment, therefore, no reliance can be placed on it. About the allegation of petitioner that he was not supplied clarified copy of certain documents in spite of filing requisites the case of respondent No. 1 is that the petitioner failed to deposit required tickets and folio after notification made in that regard and therefore, the certified copies of the documents had not been supplied to him arid he has wrongly made complaint to Chief Electoral Officer, Patna that required documents were not being supplied to him and as such a direction be given to the District Electoral Officer, Jehanabad. According to respondent No. 1, the petitioner has failed to make out any case of inspection, scrutiny or recounting of ballot papers because materials facts are completely wanting in the election petition and there is no document or evidence in that regard which are essential for seeking recounting of ballot papers in the election, therefore, the prayer of election petitioner for recounting is not legally tenable and it is fit to be rejected outright and respondent No. 1 in a fair and proper counting of ballot papers was found to have been secured majority of valid votes and accordingly he was declared elected and counting was done in presence of counting agents of election petition who put their signatures on the final result sheets in every round of counting and now after finding that he has not been able to secure majority of votes the petitioner has filed this election petition with false allegations. Respondent No. 1 has prayed for dismissing the election petition with exemplary cost.
12. On the pleadings of the parties the following issues have been framed:--
(i) Whether the election petition as framed as maintainable ?
(ii) Whether the petitioner has got valid cause of action to sue ?
(iii) Whether illegalities or irregularities were committed in the counting of ballot papers as alleged in the election petition and if so whether the same has materially affected the result of election ?
(iv) Whether the petitioner has made out a prima facie case for recount of votes?
(v) Whether the petitioner is entitled to the relief as claimed for ?
(vi) To what relief or reliefs, if any, the petitioner is entitled to get ?
13. Issue Nos. (iii) and (iv)
Both these issues are being taken up together first for consideration for the sake of convenience.
14. The petitioner has sought recounting of ballot papers of respondent No. 1 and also the bundles of his rejected ballot papers on the basis of irregularities committed in the counting of ballot papers as alleged by him in the election petition. He has adduced oral and documentary evidence to prove his case. As to oral evidence he has examined altogether 27 witnesses including himself. He is PW-1 and he in his evidence has said that in the election in question, in fact, he had polled maximum votes and not respondent No. 1 who has wrongly been declared elected. About the irregularities and illegalities committed during the counting he in his evidence has said that earlier appointed counting staff were changed at the instance of Shri Om Prakash San, BDO, Karpi who was annoyed with him because before election a meeting of his party Janta Dal (U) was held in protest of corruption and misbehaviour of Shri Sah against public which was attended by him and a resolution was passed in that meeting for sitting on 'Dharna' before the office of Shri Sah and he along with some workers of his party sat at 'Dharna' before the office of Shri Sah. He has not given the details of staff changed by Sri Sah. About other irregularities and illegalities he has said that in round No. 7 at table No. 7 for booth No. 70 he got 91 votes but in the final result sheet only 9 votes, in round No. 4 at table No. 11 for booth No. 105 he polled 320 votes according to counting chart but in the final result sheet only 220 votes and in round No. 5 at table No. 13 for booth No. 137 he polled 312 votes but in the final result sheet only 212 votes were shown in his favour. In round No. 11 at table No. 27 for booth No. 293 he polled 1 vote but in the final result shet it was shown nil and in this way altogether 283 votes were less shown. He has further said that 810 ballot papers in his favour were mixed up with the ballot papers of respondent No. 1 and were counted in his favour the details of which is given in the election petition and in round No. 8 at table No. 14 for booth No. 203 his 23 votes, in round No. 10 at table No. 13 for booth No. 277 his 60 votes and in round No. 3 at table No. 8 for booth No. 71 his 26 votes were wrongly rejected on the ground that voters had put mark of round seal meant for the Presiding Officers for putting on the back of ballot paper instead of Swastik Mark and besides this, 150 ballot papers which were not bearing the signature of Presiding Officer and distinguishing mark were illegally counted in favour of respondent No. 1 and in 6th round of counting there was announcement that he was-leading by 1100 votes over respondent No. 1 but in fact at that time he was leading by 6600 votes. He has added that on 25-2-2000 he filed an application before the Returning Officer alleging therein that irregularities and illegalities were committed in the counting of votes. He has also said that some persons were caught red-handed while mixing ballot papers which were polled in his favour with the ballot papers of respondent No. 1 and he made complaint by filing application before the Returning Officer for change of staff and recount of ballot papers and copy of this petition was also given to the Observer, District Election Officer and Election Commission of India but no action on this petition was taken and he applied for certified copies of certain documents concerning the election in question but he did not get the same and he sent a petition to Chief Election Officer, Patna for issuance of direction to the Returning Officer for supply of copies of certain documents for which he had applied and Chief Election Officer, Patna, passed orders for supply of copies to him. According to him, if recount, inspection and scrutiny of ballot papers are done he is sure that he will win the election by a margin of 5000 votes. He has proved two applications (Ext. 1 and 1/1) both dated 26-2-2000 addressed to Returning Officer in the pen of Manish Chandra, counting agent. In para-15 of his cross examination he has admitted that Election Observers were present at the time of counting of ballot papers in their respective chambers provided in the college building of S.S. College, Jehanabad, where counting was held in two halls and these observers were appointed by the Election Commission of India, although in para-17 he has contradicted the presence of Election Observers at the time of counting of ballot papers by saying that he did not see any of the Observers in any of the two halls of the aforesaid college where counting was going on and simply says that the Returning Officer once or twice came in the hall where counting was going on. About Shri Om Prakash Sah, the then BDO of Karpi Block he has said that he was in hall No. 4 and in hall No. 3 Circle Officer of Ratni Faridpur Anchal was the Assistant Returning Officer. In para-19 he has said that on 25-2-2000 itself he lodged oral as well as written complaint about the illegalities and irregularities committed in the counting and his written complaint was addressed to the Returning Officer and it was given to him on 25-2-2000 itself. In para-22 of his evidence he has said that he had given the complaint which was addressed to Returning Officer to the Observer and he did not address any complaint directly to the Observer. He has admitted that counting staff is not appointed by the Assistant Returning Officer and para-54 he has also admitted that he had no enmity with the Returning Officer, District Election Officer and other Assistant Returning Officer.
15. Ravindra Kumar Ravi (PW-2), Achyutanand Diwakar (PW-3), Manik Chandra Prasad (PW-4), Chhatradhari Prasad (PW-5), Dina Nath Singh (PW-6), Vijay Kumar (PW-7), Ram Dhyan Singh (PW-8), Haridwar Prasad (PW-9), Lal Bahadur Shashri (PW-10), Chuni Lal Choudhary (PW-11), Shyam Deo Singh (PW-12), Nagendra Mishra (PW-13), Kameshwar Prasad (PW-14), Umesh Prasad (PW-15), Bishundeo Singh (PW-16), Mritunjay Kumar (PW-17), Shardanand Singh (PW-18), Arjun Singh Yadav (PW-19), Devendra Prasad (PW-20), Yogendra Singh (PW-21), B,B. Singh (PW-22), Raj Kishore Kumar (PW-23), Kumar Krishna Mohan (PW-24), Awadhesh Prasad (PW-25) and Ravindra Singh (PW-26) were all counting agents of petitioner in the counting of ballot papers of election in question. Barring PWs 10, 11, 13, 25 and 26 others have deposed that at their counting tables some valid ballot papers of petitioner were mixed up with the ballot papers of respondent No. 1 and were counted in his favour. They have given the number of such ballot papers of petitioner mixed up with the ballot papers of respondent No. 1 at their tables alongwith round numbers and booth numbers. They all have said that when they raised objection the counting staff asked them to keep quiet and they on their part passed this information to the petitioner. They have further said that at the gate of College where counting was held the police posted there snatched their pen and papers. None of them has said that he lodged any complaint before any authority about the irregularity committed in the counting, snatching pen and papers by police or threatening given when objection about the irregularity was raised and on the other hand, most of them when asked in their cross-examination whether they lodged any complaint about any of the aforesaid action have totally denied it.
16. Lal Bahadur Shashtri (PW-10) in his evidence has said that a meeting of the workers of Janta Dal (U) was held on 29-5-99 at community hall of Karpi and a resolution against the acts of Shri Om Prakash San, the then BDO of Karpi was passed in that meeting which was presided by him and the proceeding of the meeting was entered in a register. He has proved the resolution said to be written by Bimal Kumar at his dictation and in his signature with signatures of workers including the petitioner who had attended the meeting. This resolution is marked Ext. 2. He has further said that in that resolution it was resolved that State Government may be moved for transfer of Shri Om Prakash Sah, the then BDO of Karpi Block and for sitting on 'Dharna' at the headquarters of Karpi Blok in protest of corruption in the office of BDO, Karpi, and as per this resolution a 'Dharna' was held on 15-6-99 in which he participated and petitioner addressed. In cross-examination he has admitted that he was one of the counting agents of petitioner in election in question and he is the Presidet of Janta Dal (U) of Karpi Prakhand and he had taken part in the election campaign of petitioner. Although the petitioner in his petition has stated about such meeting and 'Dharna' but he has not given the details of meeting as given by this witness.
17. Chuni Lal Chaudhary (PW-11) in his evidence has said that he was counting agent of petitioner in hall No. 4 at table No. 13 and in 9th round of counting 60 valid ballot papers of petitioner regarding booth No. 277 were declared doubtful and were not counted in favour of petitioner and when be raised objection he was threatened that if he did not keep quiet he would be ousted from the hall by police and then he informed this fact to the petitioner when petitioner went to him. In para-5 of his cross examination he has admitted that only one box containing ballot papers of booth No. 277 was opened at his table but he does not know the total number of votes polled at that booth and he also does not know how many votes of booth No. 277 were rejected. From his evidence it is clear that he has simply said that 60 ballot papers of petitioner which, according to him, were valid were declared doubtful and were not counted in favour of petitioner. Admittedly, a ballot paper which is doubtful in the opinion of the counting staff at any counting table is sent to the table of ARO who thereafter takes a decision of acceptance or rejection. This position has been admitted by Awadhesh Prasad (PW-25) who was counting agent of petitioner at table No. 15 in Hall No. 3 as per his evidence. He has said that his table was near the table of ARO and ARO used to take decision about doubtful ballot papers which used to come to his table from different tables, after examining the same. He has said that at the table of ARO irregularities were committed because ARO used to reject the doubtful ballot papers of petitioner and used to accept the doubtful ballot papers of respondent No. 1 and about 50 doubtful ballot papers of respondent No. 1 which otherwise should have been rejected were declared valid in his favour and when he raised objection before the ARO he was asked to keep quiet and when Returning Officer came to his hall he told him about the aforesaid irregularities committed by the ARO but he also asked him to remain silent and then he told this fact to petitioner. Admittedly, he was not at the table of ARO and he has not given the details of the doubtful ballot papers which were not treated valid in favour of petitioner or were treated valid in favour of respondent No. 1. He has given a quite vague statement that 50 doubtful ballot papers which otherwise should have been rejected and declared valid for respondent No. 1 but he has not assigned the reason why those 50 ballot papers would have been rejected and as stated above it is his own evidence that decision on doubtful ballot papers used to be taken by ARO after examining the same.
18. Similarly, Ravindra Singh (PW-26) who, according to his evidence, was counting agent of petitioner at table No. 8 in hall No. 4 has said that in his hall Sri Om Prakash Sah, the then BDO of Karpi Block was ARO who was sitting at table No. 15 and in the 3rd round of counting in respect of booth No. 71, 26 valid ballot papers of petitioner were declared doubtful by counting staff and on the other hand, invalid ballot papers of respondent No. 1 were declared valid and were counted in his favour and when he raised objection to this counting staff asked him to keep quiet. He has not said what was the fate of those 26 ballot papers of petitioner which were declared doubtful by counting staff at his table because final decision on doubtful ballot papers was taken by ARO. Likewise he has not said how many ballot papers which, in his opinion, were invalid were declared valid in favour of respondent No. 1 and were counted in his favour.
19. Manish Chandra (PW-27), as per his evidence, was counting agent of petitioner at table No. 15 in Hall No. 4. He in his evidence has said that for booth No. 105 petitioner had polled 320 votes but in the final result sheet only 220 votes, for booth No. 137 petitioner had polled 312 votes but in the final result sheet only 212 votes and for booth No. 293 petitioner had polled 1 vote but in final result sheet no vote has been shown for petitioner. According to him, in 3rd round of counting for booth No. 71 at table No. 8, 26 valid ballot papers, in 8th round of counting at table No. 14, 23 valid ballot papers for booth No. 203 and for booth No. 277, 60 valid ballot papers of petitioner were declared invalid by the ARO and 10 valid ballot papers which should have been rejected were declared valid in favour of respondent No. 1. In para-6 of his evidence he has admitted that at the table of ARO decision in respect of doubtful ballot papers used to be taken and other ballot papers were left in fact without disturbing them but he says that disposal of doubtful ballot papers was not made properly and ballot papers which should have been rejected were accepted for respondent No. 1 and ballot papers of petitioner which should have been declared valid were declared invalid. While making this general allegation he has not given other detail on the basis of which he has deposed that decision on doubtful ballot papers by ARO was not proper. Admittedly he was counting agent of petitioner who has lost the election and it is very easy for him to allege that decision of ARO on doubtful ballot papers was not proper.
20. On the part of respondent No. 1, 86 witnesses including respondent No. 1 have been examined. Gupteshwar Singh (RW-1), Jai Ram Kumar (RW-2), Subhash Prasad (RW-3), Uday Pratap (RW-5), Ramrup Yadav (RW-6), Ram Babu Singh (RW-7), Laldeo Singh (RW-8), Ram Kewal Singh (RW-9), Syed Akbar Imam (RW-15), Bishwanath Singh (RW-16), Ram Prasad Singh (RW-18), Balram Yadav (RW-28), Sumant Kumar (RW-35), Surendra Kumar (RW-36), Nawal Yadav (RW-37), Suchit Kumar(RW-40), Kapildeo Singh (RW-41), Tapeshwar Yadav (RW-42), Loha Singh (RW-44), Bindeshwari Prasad Mandal (RW-45), Ran Bijay Yadav (RW-48), Jwala Singh (RW-49), Mukteshwar Prasad Kuswaha (RW-50) and Ram Binay Singh (RW-51) were counting agents of respondent No. 1 at different tables where counting of ballot papers of most of booth numbers was held about which there is allegation of petitioner that some of ballot papers of those booths were mixed up with the ballot papers of respondent No. 1 and were counted in his favour as stated by the petitioner in para 20 of the election petition. They all have specifically said that at their tables ballot papers of petitioner were not mixed up with the ballot papers of respondent No. 1 as alleged by the petitioner.
21. Arjun Singh (RW-62), counting supervisor at table No. 14 in hall No. 4, Nagendra Mohan Singh (RW-64), counting supervisor at table No. 7 in hall No. 3, Ganga Dayal Das (RW-65), Returning Officer, Chhathilal Prasad (RW-66), ARO of Hall No. 3, Om Prakash Sah (RW-67), ARO of Hall No. 4, Sidhi Nath Chaudhary (RW-71), counting supervisor at table No. 3 in Hall No. 3, Anil Kumar Prakash (RW-73), counting supervisor at table No. 11 in Hall No. 3, Prakash Chandra Rai (RW-74). Rajeshwar Singh (RW-82), counting supervisor, Uma Shankar.Prasad (RW-83), counting supervisor at table No. 11 in Hall No. 4, Raghunath Sharan Chaudhary (RW-85), counting supervisor at table No. 1 and Vinod Shankar Jha (RW-86), counting supervisor at table No. 2 in Hall No. 3 have all said that allegation of petitioner that in counting some of his ballot papers were mixed up with the ballot papers of respondent No. 1 and were counted in his favour is not correct.
22. Tileshwar Singh Kaushik (RW-4) in his evidence has said that he was candidate from Samajwadi Party in the election in question and at the time of counting of ballot papers held in S.S. College, Jehanabad, he was present in the counting which was held in two halls. He has clearly said that counting was held properly and counting staff were not acting arbitrarily and counting was held under the supervision of Returning Officer who used to visit the counting hall during the counting of ballot papers and besides him, District Election Officer and Election Observers also used to visit the counting hall during the counting. He has also said that ballot papers of petitioners were not mixed up with the ballot papers of respondent No. 1 because, according to him, in view of arrangement there was no possibility of doing such things. Since he himself was one of the candidates who contested the election in question he is quite an independent witness.
23. Babu Lal Yadav (RW-12), a cultivator, Pramod Kumar (RW-13), a student, Baiju Yadav (RW-17), Ashok Kumar (RW-19), Ram Chandra Yadav (RW-30), Ram Pyare Yadav (RW-43), Sidhi Nath Singh (RW-46) and Binod Yadav (RW-47) have said about re-polling at Booth Nos. 73, 214, 288, 252, 267 and 251 on account of cancellation of polling because of mischief, snatching and tearing of ballot papers by petitioner and his men on the day of polling at the aforesaid booths. I do not want to go in details in the evidence of these witnesses because the matter of committing any mischief by the petitioner during the election is not an issue in this case and the respondent No. 1 has brought this evidence on record only to show that petitioner himself was not fair in the matter of election in question.
24. Vijay Kumar Mandal (RW-20), Prahlad Singh (RW-23), Md. Moin Tailor (RW-26) and Mohan Kishore Prasad (RW-27) in their evidence have said that no meeting of the workers of Janta Dal (U) was held in the month of May, 1999 and members of Janta Dal (U) never sat on any 'Dharna' in the month of June, 1999 in front of the office of the Karpi Block. This evidence has been led by respondent No. 1 in order to refute the allegation of petitioner that because he had participated in the meeting of the workers of Janta Dal (U) against the misdeeds of Om Prakash Sah, BDO, Karpi and as per resolution in the meeting he along with others sat on 'Dharna' in front of the office of the BDO, Karpi which caused annoyance to BDO, Karpi against him and for this reason BDO, Karpi acted unfairly during the counting of ballot papers causing damage to the petitioner.
25. The further case of petitioner is that his 109 valid ballot papers of different booths namely, 203, 277 and 71 were rejected on account of marking on this ballot papers by wrong seal supplied by Polling Officers or Presiding Officers of these booths to voters. Budh Lal Yadav (RW-11), Subodh Kumar (RW-22), Shiya Sharan Singh (RW-31), Jhal Singh (RW-38), Anil Kumar(RW-39), Rajeshwar Prasad Singh (RW-63), Haridwar Ram (RW-68) and Ram Nandan Sharma (RW-69) have, in their evidence, denied the allegation of petitioner that at booth Nos. 71, 203 and 277 wrong instrument for affixing seal on ballot papers was supplied to voters for the reason of which some ballot papers which were marked in favour of petitioner were rejected. Out of these witnesses Rajeshwar Prasad Singh (RW-63) has said that he worked as Presiding Officer of Booth No. 71, Haridwar Ram (RW-68) has said that he was appointed as Presiding Officer of Booth No. 203 and Ram Nandan Sharma (RW-69) has said that he was appointed to work as Presiding Officer of Booth No. 277. They all in their evidence have said that the seal which they supplied to voters for affixing mark on ballot papers was bearing Swastik Mark which was supplied to them for giving to voters and no seal of any other type was supplied to the voters at their booths. Budh Lal Yadav (RW-11) in his evidence has said that he cast his vote at Booth No. 278 which was at Primary School, Kaith Lodipur and booth No. 277 was also in that school and he was supplied seal containing Swastik Mark and no voter made any complaint for supply of wrong seal. Subodh Kumar (RW-22) was the voter to cast his vote at booth No. 269 and he has also said that he was given seal of Swastik Mark for affixing on the ballot paper. Shiya Sharan Singh (RW-31) has said that he had to cast vote at booth No. 203 where he had gone to vote and he cast his vote with a seal supplied to him which was bearing Swastik Mark and other voters were supplied the same seal and neither any voter nor any polling agent or petitioner raised any objection about the seal. Similarly, Jhal Singh (RW-38) in his evidence has said that he had gone to cast his vote at both No. 70 which was in the western side of High School, Kinjer and Booth No. 71 was in Kinjer Panchayat Bhawan. He had gone on the day of polling at booth No. 71 also along with a press reporter but no voter at that booth made any complaint about the supply of wrong seal. Anil Kumar (RW-39) who is a press reporter supporting the evidence of Jhal Singh (RW-38) has said that he had gone to booth No. 71 on the day of polling and he met some voters after casting their votes at booth No. 71 but none of them complained to him about the supply of any wrong seal.
26. One of the allegations of petitioner is that his counting agents were not allowed to carry pen and papers in the counting halls and if any counting agent had with him any pen and paper the same was snatched by the police posted at the gates of the counting hall as has been deposed by most of the counting agents examined on behalf of the petitioner. To counteract this allegation respondent No. 1 has examined some witnesses namely, Nityanand (RW-10), Kameshwar Singh (RW-14), Lalji Prasad (RW-25), Birendra Singh (RW-29), Abhay Kumar Sinha (RW-32), Ravi Prakash (RW-33), Ram Diwan Paswan (RW-34) and Balmiki Prasad (RW-35) have said that they were counting agents of respondent No. 1 and the police posted at the gates of counting hall did not snatch pen and paper from their possession.
The petitioner has put much reliance on a press note (Ext. F) issued by the District Election Officer cum District Magistrate, Jehanabad, on 23-2-2000 in which carrying of any arm, Biri, cigarette, 'Matches', tobacco or any other type of intoxicating things and paper etc. were prohibited in the counting premises. According to the petitioner, the use of the word 'paper' in this press release clearly means that counting agents were not allowed to carry pen and paper for noting down figures of counting in the counting halls. I do not find anything in this press release to show that counting agents were not allowed to carry pen and paper with them in the counting hall for noting down the figures of ballot papers. J.B. Tubid (RW-7) who at the relevant time was posted as District Magistrate, Jehanabad and acted as District Election Officer of election in question has proved the press communique issued by him and in para-5 he has clearly stated that counting agents were allowed to carry pen and paper with them in the counting hall and they were not prohibited by aforesaid press communique to carry pen and paper with them in the counting hall and no pen and paper from counting agents were taken up by checking staff at the main gate of the College where counting was held. I, therefore, find no force in the plea of the petitioner that by press communique (Ext. F) counting agents were not allowed to carry pen and paper in the counting hall.
27. Shri Shekhar (RW-72) in his evidence has said that in the month of February, 2000 he was posted as Block Education Extension Officer, Ghoshi North, in the district of Jehanabad and he was assigned the duty of counting supervisor in the counting of ballot papers of election in question. He has further said that during the counting on some ballot papers there were rival claims of some candidates and on this objection he took decision according to the procedure and in some case he referred the disputed ballot papers to ARO and he did not give chance of any complain to any counting agent at his table. Lalit Kumar (RW-75) was posted as Block Cooperative Extension Officer at Ghoshi Block and he was also assigned the duty of counting supervisor in the counting of ballot papers of election in question. He has said that he was at table No. 5 in Hall No. 4 and counting at his table was held peacefully and no irregularity was committed in the counting and officers connected with election duty used to visit the hall from time to time. Similarly Chandra Shekhar Modi (RW-76), Sushil Mishra (RW-77), Baidyanath Prasad (RW-79) and Satyendra Kumar (RW-80), in their evidence, have said that they were counting supervisors in the counting of ballot papers of election in question and counting was held peacefully and properly. They have denied the allegation of petitioner that during the counting whenever counting agents of petitioner raised any objection they were scolded and chided by them. Rajeshwar Prasad (RW-82), Uma Shankar Prasad (RW-83), R.N. Poddar alias Raghunandan Poddar (RW-84), Radhunath Sharan Choudhary (RW-85) and Vinod Shankar Jha (RW-86) were also counting supervisors at different counting tables in the counting of ballot papers of election in question and they besides denying the allegation of petitioner that some of his ballot papers were mixed up with the ballot papers of respondent No. 1 have also denied the allegation of petitioner that whenver his counting agents raised any objection about the irregularity in the counting they were scolded and threatened.
28. Moti Lal (RW-78) in his evidence has said that on 14-3-2000 he was posted in the Establishment Section of Jehanabad Collectorate and was incharge of Copying Department and applications filed in Jehanabad Collectorate for certified copies of documents used to come to his table. He has further said that he does not remember whether petitioner through Uday Kumar had applied for certified copy of election documents and at the time of issuing certified copy entries are made in the register giving the details of documents the certified copies of which are supplied and if petitioner was supplied certified copies of election documents that must have been entered in the register giving the details of the documents and the name of the person applying for those documents.
29. Ajay Mehta (RW-81) in his evidence has said that he was appointed as an observer in the election in question by Election Commission of India and besides him, two more observers were also appointed and he and those observers came to Jehanabad before filing of nomination and remained there in phases till the declaration of result. He has further said that he used to visit the hail in the area for which he was appointed as election Observer and he does not remember that any complaint written or oral was received by him in respect of counting of ballot papers of election in question.
30. Ganga Dayal Das (RW-65) was the Returning Officer of the Election in question. In his evidence he has said that his appointment as well as appointment of Shri Chhathi Lal Prasad and Shri Om Prakash Sah who were Assistant Returning Officers was made by the Election Commission of India and there is no provision that anybody can get himself appointed as Assistant Returning Officer at his own sweet will and allegation of petitioner that Shri Om Prakash Sah got himself appointed as Assistant Returning Officer is false, He has further said that counting of ballot papers of election in question was held under his supervision and he had not allowed Assistant Returning Officers and counting staff to act arbitrarily and it is not a fact that counting staff were showing favour to respondent No. 1 and they were against the petitioner. He has also denied the allegation of petitioner that at the last moment counting staff selected earlier were changed at the instance of Shri Om Prakash Sah, one of the Assistant Returning Officers. He has said that round wise result sheets were prepared at the table of AROs and he has proved these results sheets which are marked Annexures B to B/21 and about final result sheets he has said that it was prepared under his supervision on the basis of round wise result sheets prepared by both the Assistant Returning Officers. He has proved the final result sheet also in 22 pages marked Ext. E to E/21. He has further said that at the time of preparation of round wise result sheets ARO used to obtain signatrues of counting agents of candidates on the results sheets. Here it will be proper to state that Shri Om Prakash Sah (RW-67), one of the two Assistant Returning Officers, in his evidence from para 16 to 25, after perusing a number of round wise result sheets has said that counting agents of different candidates and some candidates themselves put their signatures on these round wise result sheets. These signatures are marked as Ext. A series. This witness has also said that final result sheet was prepared on the basis of round wise result sheets.
31. Adverting to the evidence of Returning Officer (RW-65) I find that he has said that the petitioner and his counting agents never complained before him that 150 ballot papers not containing the signature of Presiding Officers were counted in favour of respondent No. 1 or 109 ballot papers of petitioner were rejected on account of wrong seal on the ballot papers in respect of booth Nos. 71, 203 and 277. In para-18 he has said said he had personally received the application of petitioner. This application is marked Ext. 1/1. About another application which is marked Ext. 1 he has said that he had received this application through Election Observer. Both these applications bear the signatures of petitioner and both are dated 26-2-2000. The petitioner in para 10 and 11 of his evidence has said that the aforesaid applications are in the handwriting of his polling agent Manish Chandra and bear his signatrures and he has himself proved these applications. By both these applications the petitioner had requested for recounting of ballot papers on the ground that gross irregularity was committed during the counting of ballot papers and in the boxes of almost all booths 2 or 4 or 6 ballot papers were found short and in the ballot boxes of booth No. 175 there was shortage of 10 ballot papers and on his regular complain no action had been taken. The Returning Officer passed order on the application (Ext. 1) of the petitioner which is written on the back of the application and which has been proved by the Returning Officer which is marked Ext. C. By this order the Returning Officer rejected the prayer of recounting of petitioner on the ground that result sheets prepared by AROs of the halls were signed by the agents including the counting agents of petitioner and request of recounting was considered on verification of result sheet done with other paper. In the Election Petition the petitioner has come up with a number of grievances such as, some of his ballot papers were mixed up with the ballot papers of respondent No. 1 and were counted in his favour, his some valid ballot papers were rejected on the ground of being marked with wrong seal, some of the ballot papers without bearing signatures of Presiding Officers or distinguishing mark were counted in favour of respondent No. 1 and doubtful ballot papers which ought to have been declared valid in his favour were declared invalid and which ought to have been declared invalid for respondent No. 1 were declared valid. It is very surprising that in the earlier applications which he had filed before the Returning Officer and Election Observer for recounting he did not mention any of the aforesaid irregularities. There is no satisfactory evidence adduced on behalf of the petitioner that he made any complaint about any of the allegations which he has included in his election petition during the counting of ballot papers or immediately after counting was over in respect of his claim that he came to know about the irregularities which he has narrated in his election petition through his counting agents and he has sworn affidavit supporting this fact. In the case of Chanda Singh v. Choudhary Shiv Ram Verma and Ors., (1975) 4 SCC 393, finding that initially a vaguely worded application for recount on the spot was filed and later on a petition was filed with more specificity the Apex Court held as follows:
'5...... The passage of time often embellishes ideas and imports inspiration and petitioner, by April 26, was equal to the expensive precision of a well-grounded demand for recount according to the legal canons settled by this Court. What was a mere bud of suspicion flowered into several figures of malpractice and it was alleged with surprising accuracy that '1200 votes polled in favour of the petitioner were illegally declared invalid by the Returning Officer'.....'
The case of election petitioner under consideration is One step ahead. Here the figures of irregularities in counting mentioned in different averments of election petition have not flowered from the but which was projected at the time of filing petition before the Returning Officer for recount. That but was of a different flower. This I say so because, as stated above, in the election petition petitioner has completely abandoned his earlier grievance which he had put in applications (Ext. 1 and 1/1) which he had filed before the Returning Officer and Election Observer that in almost all the boxes there was shortage of 2 or 4 or 6 and in some boxes of even 10 ballot papers and he has come up with altogether new grounds on which he now seeks recounting of ballot papers.
32. Shri S.B.K. Mangalam, learned counsel for respondent No. 1, has argued that because none of the grounds mentioned in the election petition was raised before the Returning Officer while submitting application for recounting the petitioner is now debarred from raising the question of recounting of ballot papers. He has further argued that provision of Rule 63(2) of Conduct of Election Rules 1961 which provides that after the announcement of votes polled by each candidate, a candidate or in his absence his election agent or any of his counting agent may apply in writing to the Returning Officer for recount of votes either wholly or partly stating the grounds on which he demands such recount is similar to the provision of Rule 76 of M.P. Panchayat Election Rules, 1994 and in the case of Smt. Ram Rati v. Saroj Devi and Ors., AIR 1997 SC 3072, it has been held that application in writing to Returning Officer is essential condition precedent for recounting of votes and because in the present case election petitioner has not raised any of the grounds which he has mentioned in his election petition, therefore, for all practical purposes it would be deemed that he had not presented any application in writing to the Returning Officer for recounting of votes and, therefore, now no order for recount can be passed by this Court at this stage. Shri S.N.P. Sharma, learned counsel of petitioner has submitted that the aforesaid judgment in the case of Smt. Ram Rail v. Saroj Devi and Ors. (supra) has been overruled by the Apex Court in the case of Sohan Lal v. Babu Gandhi and Ors., (2003) 1 SCC 108 and it has now been held that that a party may not know that recount is necessary till after the result is declared. At this stage, it would not be possible for him to apply for recounting to Returning Officer. The only remedy would be to file an election petition....'. No doubt on reconsideration the Apex Court has held that ratio laid down in Ram Rati case is not correct but then the principle laid down in the case of Sohan Lal v. Babu Gandhi and Ors., is not applicable to the present case because the facts of that case and the present case are quite different. In that case the appellant was orally informed that he had won the election and he only came to know that respondent No. 1 had won the election after the results was declared and therefore, he could not have approached the Returning Officer for recounting at that stage and only remedy was to seek relief by filing an election petition. In the present case it is the own case of election petitioner that he came to know about the irregularities committed during the counting of ballot papers about which he has mentioned in his election petition through his counting agents at the time of counting of ballot papers. It is not his case that he came to know about all these irregularities only after the result was declared.
33. Sri S.N.R Sharma, learned counsel of petitioner has further argued that there are several irregularities in the final result sheet. About these irregularities he has pointed out that in round No. 7 at table No. 7 for booth No. 70 round wise result sheet shows that petitioner got 91 votes but in the final result sheet only 9 votes, in round No. 4 at table No. 11 for booth No. 105 according to round wise result sheet petitioner secured 320 votes but in the final result sheet only 220 votes and in round No. 5 at table No. 13 for booth No. 137 petitioner polled 312 votes but in the final result sheet only 212 votes have been shown in his name. In round No. 11 at table No. 7 for booth No. 293 petitioner polled one vote but in the final result sheet he has been shown to have secured note vote. He has drawn my attention towards the evidence of Returning Officer (RW-65) in para 38 where after perusing the round wise result sheet marked Ext. B/1 he has admitted that petitioner secured 312 votes for booth No. 137 but in the page of final result sheet marked Ext. E/2 he has been shown to have secured only 212 votes for this booth. It is true that on comparison of round wise result sheet and final result sheet I find that for booth No. 105 as per round wise result sheets petitioner secured 320 votes but in final result sheet he has been shown to have secured 220 votes for this booth and for booth No. 317 as per round wise result sheets petitioner secured 312 votes but in the final result sheet he has been shown to have secured only 212 votes for this booth. So far allegation for booth No. 70 that petitioner as per round wise result sheets secured 91 votes but in the final result sheet only 9 votes have been shown in his name is concerned this is not correct because in the round wise result sheets as well as in the final result sheet both petitioner has been shown to have secured 91 votes for booth No. 70. Similarly, the allegation of petitioner for booth No. 293 that as per round wise result sheets he had secured 1 vote but in the final result sheet he has been shown to have secured no vote for this booth is concerned this is also not correct because in both the result sheets petitioner has been shown to have secured no vote.
34. Shri S.N.R Sharma, learned counsel of petitioner relying upon a decision in the case of Km. Shradha Devi v. Krishna Chandra Pant and Ors., AIR 1982 SC 1569, has argued that once error in preparation of final result sheet is proved it means prima facie case for ordering recount is made out. I am unable to accept this argument because first of all decision relied upon by the learned counsel of petitioner was in respect of improper rejection of valid votes arid it was held that specific averment in respect of each ballot paper rejected as invalid was not necessary and on proof of errors in respect of some valid ballot papers furnished scrutiny and recount cannot be limited to those ballot papers only. The petitioner has not disputed the fact that final result sheet was prepared on the basis of round wise result sheets. As stated earlier this fact has been clearly stated by the Returning Officer (RW-65) who has said that under his supervision final result sheet was prepared on the basis of round wise result sheets prepared by two AROs. The round wise result sheets, marked Ext. B series, show that counting was held in two halls in different rounds and ballot papers of boxes of booths having odd number were counted in one hall and ballot papers of boxes of booths having even number in other hail and round wise result sheet was prepared in two sets, one for booths having odd number and other for booths having even number. After preparation of round wise result sheets, a final result sheet arraying the booth numbers serially was prepared on the basis of entries made in round wise result sheets. If there is some error in noting down the figures of ballot papers at some places in final result sheet that does not carry any importance if total number of ballot papers of each candidate mentioned in the round wise result sheets tallies with the figures of ballot papers mentioned in the final result sheet for those candidates. After adding the number of ballot papers secured by the petitioner at different booths as mentioned in the round wise result sheets it comes to 50229 and adding three postal votes the total votes secured by petitioner's per round wise result sheets comes to 50232. On the other hand, this figure for respondent No. 1 comes to 50888. In the final result sheet total number of votes secured by petitioner has been shown as 50232 and total number of votes secured by respondent No. 1 as 50888. So I find that so far total number of ballot papers of petitioner and respondent No. 1 as mentioned in the round wise result sheets and final result sheet there is no difference. Besides this, I further find that although learned counsel of petitioner has pointed out some clerical errors in final result sheet concerning votes secured by petitioner in respect of booth No. 137 and 105 where petitioner has been shown to have secured 212 and 220 votes against 312 and 320 votes mentioned in the round wise result sheets but at the same time for booth No. 184, according to round wise result sheets, petitioner secured 450 votes but in the final result sheet he has been shown to have secured 750 votes. I also find that for booth No. 63 respondent No. 1 secured 100 votes as per round wise result sheets but in the final result sheet he has been shown to have secured only 1 vote and for booth No. 188 respondent No. 1 as per round wise result sheets secured 387 votes but in the final result sheet he has been shown to have secured 287 votes and for booth No. 213 as per round wise result sheets respondent No. 1 secured 284 votes but in the final result sheet he has been shown to have secured no vote for this booth and figure of 284 votes entered in the final result sheet in the name of one Randhir Kumar whose name has been printed just beside the name of respondent No. 1 whereas the fact is that according to the round wise result sheet this Randhir Kumar had secured no vote for this booth. It is only for booth No. 180 that in the final result sheet respondent No. 1 has been shown to have secured 178 votes against 171 as shown in the round wise result sheets meaning thereby that only 7 votes were shown excess for this booth whereas for the other booths as mentioned above respondent No. 1 has been shown to have secured altogether 284, 384 and 484 votes less in the final result sheet compared to round wise result sheets. In respect of all these petty errors I have discussed earlier that figures of total number of votes secured by petitioner and respondent No. 1 as per round wise result sheets and final result sheet remain the same and because final result sheet was prepared on the basis of round wise result sheets, a fact which has not been disputed by the petitioner. I find that the aforesaid errors committed in the preparation of final result sheet in the process of lifting figures from round wise result sheets for incorporating the same in final result sheet have not in any way affected the result of election.
In the case of D.P. Sharma v. The Commissioner and Returning Officer and Ors., AIR 1984 SC 654, it has been held that discrepancies which are so insignificant in character that could be safely attributed to accidental slip or clerical or arithmetical mistakes do not make out a case for directing recount of votes. It has been observed in this case that 'It is well established that in order to obtain recount of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper reception of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate.' In the present case no such material has been proved by the petitioner. I, therefore, find no merit in this point also.
35. The question of recounting of ballot papers came up for consideration before the Apex Court in a catena of cases and the Apex Court has held that unless the allegations against the elected candidate are clear and specific and supported by adequate statements of material facts and the Court is prima facie satisfied on the materials produced before it regarding the truth of allegations and it comes to a conclusion that in orderto do justice between the parties it is necessary and imperative to allow the prayer for recounting of ballot papers, recounting cannot be ordered merely for a roving enquiry with a view to fish materials for declaring the election as void. I may refer one of such cases. In the case of Bhabhi v. Sheo Govind and Ors., AIR 1975 SC 2117, in which it has been held as follows:
15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection, of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
(6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the trutch of the allegations made for a recound, and not for the purpose of fishing out materials.
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.'
In the present case I find that petitioner has not been able to make out any case for recounting of ballot papers. In view of the discussions made above, these issues are decided in negative and against the election petitioner.
36. Issue No. 1
No defect in the framing of the election petition has been pointed out and therefore, this issue is decided in affirmative.
37. Issue Nos. II, V and VI
In view of my discussions as above, I find and hold that election petitioner has got no valid cause of action to sue and he is not entitled to the reliefs as claimed for or to any other relief.
38. In the result, this petition is dismissed. In the circumstances of the case, parties to bear their own costs.