Jai Nandan Singh Vs Shankar Dayal Singh and ors - Citation 137301 - Court Judgment

Judgment:

G.S. Chaube, J.

1. By this petition under Sections 80 and 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act'), the election of respondent No. 1 (Shankar Dayal Singh) to the South Chotanagpur Teachers' Constituency has been called in question by one of the losing candidates to the election to the Constituency, which had been held in 1996.

2. Brief facts of the case, as stated in the election petition, are that to fill in the vacancy to the South Chotanagpur Teachers' Constituency of Bihar Legislative Council (hereinafter to be referred to as 'the Council'), biennial election was held in 1996. At the said election, besides the petitioner Jai Nandan Singh and respondent No. 1 Shankar Dayal Singh, there were 15 other candidates who contested the election. Respondent No. 2 Saryu Prasad Singh was also among those contestants. Nominations were filed between 26-3-96 and 2-4-96 and after scrutiny and withdrawal held on 3-4-96 and 6-4-96 respectively, 17 candidates had remained in the fray. The election was held on 28-4-96 and counting of the ballots was done on 30-4-96. On conclusion of the counting of ballots in accordance with the system of proportional representation by means of single transferable vote, respondent No. 1 Shankar Dayal Singh was found to have secured the highest number of votes. Consequently, the Returning Officer who has been impleaded in this petition as respondent No. 3, declared him duly elected. According to the petitioner, such declaration was made on 9-5-1996. Not satisfied with the result of the election so declared by respondent No. 3, the present petition calling in question the election of the returned candidate (R. No. 1) was presented in this Court on 24-6-96.

3. It has been alleged in the election petition that when the ballot boxes brought from the polling stations were opened at the time of the counting, 10 ballot papers were found short when the actual number of ballots found in those boxes was compared with the ballot paper accounts submitted by the Presiding Officers of the polling stations. Thus, 10 ballots were not counted at all in course of the counting of the ballot papers. Besides, counting of ballots was not done properly inasmuch several first preference votes marked in favour of the petitioner and respondent No. 2 were rejected on flimsy grounds and many first preference votes marked in favour of respondent No. 1 were counted in his favour even though they should have been rejected as invalid or void. The petitioner further alleged, as an instance of improper counting, that second preference votes were not properly transferred as they were marked by the electors on the first preference ballots of the candidates eliminated in course of the counting. More specifically the petitioner has alleged that 15 ballots of his and 10 of respondent No. 2 were rejected as invalid simply because on those ballot papers figure 1 indicating first preference in their favour was encircled or enclosed in brackets by electors. On the contrary, 50 ballots on which the electors had recorded their first preference in favour of respondent No. 1 with article other than that supplied for the purpose by the election authorities, were illegally counted in his favour, although all such ballots should have been rejected as invalid. Apart from improperly rejecting 25 first preference ballots of the petitioner and respondent No. 2 and illegally counting 50 first preference ballots in favour of respondent No. 1, the Returning Officer committed further irregularity by miscounting while transferring second preference votes of one Anil Kumar, a contesting candidate eliminated after 15th round of counting. It is stated that when said Anil Kumar was eliminated in course of the 15th round of counting, out of his 588 first preference ballots, 100 were transferred to respondent No. 1 and 60 in favour of respondent No. 2 on the ground of 2nd preference marked by the electors on them, although on 85 of those ballots only the electors had put their second preference in favour of respondent No. 1 and on 75 in favour of respondent No. 2. As a consequence of such miscounting after 15th round of the counting, respondent No. 1 was shown to have secured 1198 votes instead of 1183 and respondent No. 2 was shown to have secured 1177 only, although 1192 votes were cast in his favour. It has been contended that but for such miscount respecting transfer of second preference votes of the ballots of Anil Kumar, respondent No. 1 would have been eliminated from the fray and not respondent No. 2 (as has been done) leaving the petitioner and respondent No. 2 in the final run for the seat. It has been alleged that such miscount in respect of the transfer of second preference votes of Anil Kumar could be possible because of the absence of the counting Agents as after the counting of the first preference votes, all the counting Agents of all the contesting candidates were ordered by the Returning Officer to go out of the counting hall. Protests by the petitioner and other candidates against such action was not heeded by the Returning Officer.

4. The petitioner has further alleged that he requested the Returning Officer to re-examine and recount the rejected ballot papers as also the exhausted ballot papers. He also made a similar request respecting ballot papers of Anil Kumar at the time of the 15th round of counting itself. However, his such requests were turned down by the Returning Officer in clear breach of the mandatory provisions of law. Even respondent No. 2 had made a written request to the Returning Officer for re-examination and recounting of votes alleging that 8 of his second preference votes were wrongly counted in favour of respondent No. 1. Inspite of being supported by the petitioner and other candidates in this behalf, respondent No. 2 was not obliged.

5. In the election petition the petitioner has also alleged that two teachers named Bhulendra Pandey and Smt. Veena Jena of Peoples' Academy High School at Jamshadpur were registered twice over at two different places within the same Constituency and, as a matter of fact, they had cast their votes at both the places in course of the polling. Both of them were staunch supporters of respondent No. 1 and had, in fact, canvassed for him and they themselves admitted having voted for respondent No. 1 at both the places for which they had been registered. In other wards, four votes cast by Bhulendra Pandey and Smt. Veena Jena in favour of respondent No. 1 were void and should have been excluded from the ballots of respondent No. 1.

6. In view of the irregularities, illegalities and impropriety committed in course of counting ballots, the result of the election insofar as it concerns respondent No. 1, the returned candidate, was materially affected. Therefore, the election of respondent No. I which is otherwise void in view of improper reception of votes in his favour, illegal rejection of votes of the petitioner and respondent No. 2 and miscount of second preference votes of Anil Kumar, counting of void votes in favour of respondent No. 1 and not-counting of' 10 ballots which were cast at the time of polling, is fit to be set aside.

7. On notice of the petition, respondent Nos. 1 and 2 have appeared and put in their respective written statements. Respondent No. 3 has neither appeared nor filed any written statement. In his written statement, respondent No. 2 has supported the allegations made by the petitioner. He has also averred in his written statement that if the counting of ballots was properly done, respondent No. 1 could not have been found securing highest number of votes in comparison to him and the petitioner. Besides supporting the allegations as contained in the election petition, respondent No. 2 has also taken the plea that the electoral rolls had not been prepared in accordance with law inasmuch as the names of several persons (teachers) were included therein even though they were not eligible for it due to lack of teaching experience for a minimum period of three years and that respondent No. 1 was guilty of violating the model code of conduct in publishing in daily newspaper that he was the authorised candidate of the Communist Party of India, which had, in fact, sponsored respondent No. 2 as its candidate for the Constituency at the said election.

8. As is expected, in his written statement respondent No. 1 has denied all the allegations respecting wrong reception of votes in his favour; improper rejection of votes of the petitioner and respondent No. 2; miscounting second preference votes of Anil Kumar; shortage of 10 ballots and double registration of and voting in his favour by two teachers named Bhulendra Pandey and Smt. Veena Jena. He has also taken the plea that the petition was liable to be dismissed in limine in terms of Section 86(1) of the Act in consequence of non-compliance with the mandatory provisions of Sections 81, 82 and 117 of the Act. According to him, the result was actually declared on 1-5-1996 and a certificate to this effect issued by respondent No. 3 in his favour on the same day. Therefore, the prescribed period of 45 days for presenting the election petition expired on 15-6-1996 and the same having been presented in Court on 24-6-1996 is barred by limitation. Respondent No. 1 further stated in his written statement that the provision of Sub-section (3) of Section 81 of the Act was not complied with inasmuch as three copies of the election petition duly attested by the petitioner under his own signature to be the true copy, did not accompany the election petition when it was presented in the Court. It was also stated that on reading of the contents of the election petition as a whole, the relief that respondent No. 2 be declared elected in place of R. No. 1 is implicit therein. Therefore, all the contesting candidates were required to be joined in the election petition as mandated under Section 82 of the Act. However, the petitioner has joined in the election petition, besides him, only two oi the remaining 16 contesting candidates. Therefore, due to non-compliance with the provision of Section 82 of the Act the election petition is fit to be dismissed summarily.

9. Respondent No. 1 has further pleaded in his written statement that the material facts and particulars respecting the allegations on the basis of which recounting has been sought were not furnished in the election petition as required under Section 83 of the Act. As a matter of fact, the petitioner is seeking a recount on the basis of bald and vague allegations.

10. On the basis of the respective pleadings of the parties, the following issues have been settled for consideration in this case :--

(1) Whether the election petition, as framed, is maintainable?

(2) Whether the election petition is required to be dismissed for non-compliance of the provisions of Sections 81, 82 and 117 of the Act?

(3) Whether the election petition is barred by limitation?

(4) Whether the election of respondent No. 1 is vitiated by illegal and irregular counting of ballots and receipt of void votes?

(5) What relief, if any, is the petitioner entitled to?

Issue No. 3 :

11. It appears that after the issues were settled in this proceeding, an application was filed on behalf of respondent No. 1 to decide the question of maintainability of the election petition and dismiss the same in limine in accordance with the provision of Sub-section (1) of Section 86 of the Act. Consequently, with the consent of both the parties, issue No. 3 respecting limitation was heard and order was made by a learned Judge of this Court on 11 -1-1997 holding that the result of the election of respondent No. 1 was, in fact, declared on 1 -5-1996. However, since the period of limitation of 45 days as prescribed in subsection (1) of Section 81 of the Act expired during Vacation of this Court, the petition was permissible to be presented on the opening day after Vacation in accordance with the provision of Section 10(1) of the General Clauses Act. Therefore, the election petition was not barred by limitation. Against that order R. No. 1 went to the Apex Court and filed Special Leave Petition (S.L.P. (Civil) No. 686/98). However, the petition for special leave to appeal stood dismissed by the Apex Court on 27-1-1998 with liberty to R. No. 1 that grounds taken therein shall be available to him in the event the election petition is decided against him and he prefers an appeal against that decision. Thus, the earlier finding of this Court on issue No. 3 that the election petition is not barred by limitation has become final and conclusive insofar as the present proceeding is concerned.

lssue_Np. 2 :

12. This issue relates to the question whether this election petition is liable to be dismissed underSub-section (1) of Section 86 of the Act due to non-complication with the mandatory provisions of Sections 81, 82 and 117 of the Act. Subsection (1) of Section 86 of the Act mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. Sub-section (1) of Section 81 of the Act enjoins that an election petition calling in-question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within 45 days from but not earlier than the date of election of the returned candidate, or if there are more than one returned candidates at the election and the dates of their election are different, the latter of those two dates. Sub-section (3) thereof provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. As indicated above, the question of limitation as provided under subsection (1) of Section 81 has already been decided by this Court and become final and conclusive. Regarding non-compliance with the provision of Sub-section (3) of course, there is an averment in para 3 of the written statement of R. N. I that true copies of election petition duly attested by the petitioner under his own signature to be true copy of the election petition were not filed in the Court along with the election petition. Apart from the fact that the first order dated 24-6-1996 discloses that the election petition was filed with true copies thereof and the petitioner was present in person, no attempt appears to have been made by and on behalf of R. No. 1 to substantiate the allegation that the copies so filed by the petitioner in compliance with the provision of Sub-section (3) of Section 81 did not bear any endorsement under the signature of the petitioner that those copies were true copies of the election petition. It may be mentioned that in the election petition only three persons have been arrayed as respondents. Therefore, three such copies were required to accompany the election petition and that was done. Therefore, rightly the learned counsel for R. No. 1 did not press non-compliance with the requirement of Sub-section (3) of Section 81 of the Act.

13. Section 117 of the Act mandates that at the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of Rs. 2000/- as security for the cost of the petition. In para 23 of the election petition the petitioner has specifically averred that he was 'depositing therewith a sum of Rs. 2000.00 (Rupees two thousand) in cash as security for cost of this petition.' In his written statement, R. No. 1 has replied that averment in the manner that 'the statements made in para 23 is a matter of record and the heavy burden lies on the petitioner to prove the same'. On the back of the first page of the petition is the report of the Stamp Reporter to the effect that challan showing deposit of Rs. 2000/- has also been filed vide challan No. J/43, dt. 21-6-96. Therefore, it is manifest that the provision of Section 117 of the Act was also fully and strictly complied with by the petitioner.

14. Now remains the question of non-compliance with the provisions of Section 82 of the Act so as to entail dismissal of the election petition even at the threshold. When evidence on both sides was concluded on 13-10-1998 and the hearing was adjourned, on 28-10-1998 an application was filed on behalf of R. No. 1 for hearing the question of maintainability of the application for non-compliance with the provisions of Section 82 of the Act and dismissal of the election petition at that very stage without considering the merits of the allegation on which the election of the said respondent had been sought to be nullified. However, after hearing both sides, the said application was directed to be heard and question raised therein decided at the time of final decision along with the merit of the case.

15. Section 82 of the Act lays down that a petitioner shall join as respondent to his petition : (a) where the petitioner in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner; and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of corrupt practices are made in the petition. Thus, according to the mandate of Section 82, if a petitioner seeks a declaration that the election of a returned candidate or candidates is void, and also claims a further declaration that in place of returned candidate or candidates he himself or any other candidate is duly elected, all the contesting candidates other than the petitioner himself are to be joined in the petition as respondents. Similarly, if there is allegation of corrupt practice against any candidate, he is also to be joined as a respondent. In the present case, the petitioner has joined only two other contesting candidates as respondent Nos. 1 and 2; one of whom is the returned candidate whose election is sought to be declared void and the other is the one who is said to have been eliminated from the contest due to miscount of some of the second preference votes marked in his favour as also wrong rejection of 10 of his first preference votes.

16. Mr. S. N. Sharma, learned Sr. counsel for R. No. 1 submitted that on reading of the election petition as a whole, it becomes manifest that by implication the petitioner has also sought the relief that he himself or for that matter R. No. 2, be declared elected to the Constituency in place of R. No. 1, even though such relief has not been sought in the petition specifically. He has also contended that all the contesting candidates other than the petitioner and R. Nos. 1 and 2 not having been joined as respondents, this petition has seriously breached the mandatory provisions of Section 82 and, therefore, liable to be dismissed summarily. For this he has sought reliance in the averments made in paragraphs 9, 17 and 18 of election petition and para 10 of the written statement of R. No. 2. In paragraph 9 the petitioner has stated after setting out the manner in which 15 second preference votes marked in favour of R. No. 2 on the ballots of Anil Kumar were included in the ballots of R. No. 1 and counted in his favour, that thus the total number of votes in favour of R. No. 1 after elimination of the said Anil Kumar would be reduced by 15 and total would be 1183 votes and the total number of votes in favour of R. No. 2 would be 1192 and accordingly after this 15th round of counting, R. No. 1 should have been excluded from further counting. In para 17 also it has been averred that had the Returning Officer allowed the re-examination and recounting, the result of the election would not have gone in favour of R. No. 1. Similarly in para 18, what the petitioner has averred is that if the rejected ballot papers as a whole and the ballot papers of Anil Kumar, a contesting candidate and of the R. No. 1 were re-examined and recounted, the R. No. 1 'cannot secure the highest number of votes' and he should have been excluded from the counting at the end of 15th round of counting. In para 10 of his written statement, R. No. 2 has reiterated the same stand as taken by the petitioner in para 18 of the election petition and concluded thus-- 'If counting of votes was done in accordance with law and all preferential votes which have been cast in favour of the respondent No. 2, this respondent would get highest vote in comparison to other contesting candidates'. Similarly, in para 13 of his written statement, R. No. 2 has stated that 'in fact the respondent No. 2 cannot secure highest number of votes in comparison to the respondent No, 2 and the petitioner'. In para 14 in reply to para 24 of the election petition respecting the relief sought, R. No. 2 has stated that the reliefs are legitimate and proper and that he (R. No. 2) is also entitled to get the same relief and for this reason he had joined he contest in that Court.

17. Paragraph 24 of the election petition contains the relief (s) sought by the petitioner. The reliefs sought are : (i) That on re-examination and recounting of the ballot papers, the election of respondent No. 1 be declared to he void; (ii) That any other or further reliever reliefs to which the petitioner may be found entitled; (iii) Cost of this petition may be awarded to the petitioner. It is manifest from para 24 of the election petition that the petitioner has not sought a further declaration specifically that after declaring the election of R. No. 1 as void, he ' (petitioner) or any other contesting candidate, much less R. No. 2 be declared as elected. On going through the averments made in the election petition and written statement of R. No. 2, it is difficult to agree with the learned senior counsel for R. No. 1 that further relief as suggested by him is lacking in the petition. Indeed, to ascertain the true spirit of a pleading, it is required to be read as whole and construed accordingly. In AIR 1976 SC 744 (Udhav Singh v. Madhav Rao Scindia), the Apex Court has held that a pleading has to be read as whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or substraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.

18. The question whether 'the further relief of declaration of the petitioner himself or any other contesting candidate including R. No. 2 as duly elected in place of R. No. 1, is or is not implicit in the petition, rests entirely on the question whether the petitioner or any other contesting candidate can be declared elected in case of the petition succeeding, even if no such relief has been specifically sought in the petition. Section 84 of the Act is respecting the relief that may be claimed by the petitioner. According to this section, the petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. Section 101 of the Act also enjoins that if any person who has lodged a petition has, in addition to calling in question the election of 'he returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion that, in tact, the petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the returned candidates by corrupt practices, the petitioner or other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected. Thus, from the plain reading of the twin provisions of Sections 84 and 101 of the Act, it is manifest that unless the additional relief of declaration of the petitioner himself or any other candidate in place of the returned candidate has been specifically sought by the petitioner in the election petition, that additional relief shall not be permissible, even though on recount or otherwise it is found that the petitioner himself or any other contesting candidate had received a majority of the valid votes. In any petition calling in question election of a returned candidate, the main relief which must necessarily be claimed is that the election of the returned candidate be declared void. In addition to such relief, declaration that the petitioner himself or for that matter any other contesting candidate is duly elected, may be sought in terms of Section 84 of the Act.

19. Learned senior counsel for R. No. 1 has submitted that the provisions of the Code of Civil Procedure are applicable to the trial of election petitions by the High Court in view of Section 87(1) of the Act. Therefore, the rule of construction of the pleading is very much applicable to the election petition and even if a particular relief is not claimed in the pleading, but is implicit therein and established on evidence, the same is permissible. Rule 7 of Order VII of the Code of Civil Procedure relates to the relief claimed by a plaintiff in a suit. Even though the heading of the Rule is 'Relief to be specifically stated', Rule 7 runs as under:--

'Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement.'

Thus, according to Rule 7 of Order VII of the Code of Civil Procedure, general or other reliefs need not be asked for in the plaint and if those reliefs flow from the tenor of the pleading, and evidence adduced establishes them, the same may be granted by the Court. However, this rule of the Code of Civil Procedure cannot be invoked for inferring a relief in the election petition which is not there. Indeed, the provisions of the Code of Civil Procedure apply to the trial of the election petitions 'but only as far as may be and subject to the provisions of the Representation of the People Act, 1951 and the Rules made thereunder'. As has been held by the Apex Court in AIR 1982 SC 983 (Jyoti Basu v. Debi Ghosal, the provisions of the Code of Civil Procedure cannot be invoked to permit that which the Representation of the People Act does not. Even if Rule 7 of Order VII of the Code of Civil Procedure provides that in the plaint it shall not be necessary to ask for general and other relief which may always be given as the Court may think just to the same extent as if it had been asked for, there is no corresponding provision in Section 84 of the Act or in any other provision of the said Act. Therefore, unless additional relief for declaration that the petitioner himself or any other contesting candidates is duly elected, is specifically asked for in terms of Section 84 of the Act, the said relief cannot be granted by the Court even in exercise of its inherent jurisdiction. Of course in para 24 of the election petition, the petitioner has also sought 'any other or further relief or reliefs' to which he may be found to be entitled, this does not encompass the additional relief that he or any other contesting candidate be declared as duly elected in place of R. No. 1. In order to dismiss the petition summarily in accordance with the provision of Section 86(1) of the Act, it shall not be permissible for this Court either to import, or smuggle in, that additional relief, to maintain which atone all the candidates other than the petitioner are required to be joined as respondents in the election petition calling in question the election of a returned candidate. As has been held by the Apex Court in Jagannath v. Jaswant Singh, AIR 1954 SC 210 general rule is well settled that the statutory requirements of election law must be strictly observed and that election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the courts possess no common law power. In the result issue No. 2 is answered in favour of the petitioner and against R.No. 1.

Issue Nos. 4 and 5 :

20. These issues are taken up together as they are interrelated. The petitioner has called in question the election of R. No. 1 on grounds, inter alia, that 25 ballots bearing first preference marks in favour of the petitioner and R. No. 2 were rejected simply because the figure 1 indicating first preference were found to have been encircled by the electors; that 50 ballots on which first preference had been marked in favour of R. No. 1 by the electors using their own pen and not the material supplied by the election authorities for the purpose, were received as valid and counted in his favour in spite of objection raised by them; that in course of the 15th round of counting on elimination of one Anil Kumar, one of the contesting candidates, 15 ballots bearing second preference marks in favour of R. No. 2 were improperly included in, and counted in favour of, R. No. 1; and lastly, that two electors named Bhulendra Pandey and Smt. Veena Jena were registered as electors in the same Constituency twice over and both of them had cast the their first preference ballots in favour of R. No. 1 and, thus, 4 votes cast by those two electors were void and wrongly included in the ballots of R. No. 1 and counted in his favour. It has been also staled by the petitioner that an application had been filed by him before the Returning Officer for examination of those ballot papers and recounting as provided under Rule 82 of me Conduct of Election Rules, 1961 (hereinafter to be referred to as 'the Rules'), but most arbitrarily that prayer was not entertained and election of R. No. 1 was declared. Therefore, in the election petition it has been prayed that ballot papers be re-examined and recounted to straighten the matter and do complete justice between the parties.

21. After the recording of evidence of the parties was over, but before arguments could begin on 18-11-98, an application under Order 11, Rule 15 of the Code of Civil Procedure and Rule 93 of the Rules was filed on behalf of the petitioner for inspection of ballots and recounting. However, as evidence had already been led by both the parities and the case was ready for argument, the said application was directed to be kept on record for passing appropriate order thereon after hearing arguments on behalf of the parties on merits of the case.

22. In course of argument, Mr. Arbind Kumar Lal, learned counsel for the petitioner submitted that in order to do justice in the case, inspection and recount of the rejected ballot papers, ballot papers of the first preference counted in favour of respondent No. 1 and Anil Kumar only will be necessary. However, Mr. Sharma, learned counsel for R. No. 1 vehemently opposed the prayer for inspection and recount of ballot papers as suggested by Mr. Lal. He submitted that order of inspection, scrutiny and recounting of ballots should sparingly be made and not in a routine manner simply because someone seeks it on mere allegation of some irregularity or impropriety in counting of ballot papers. According to him, inspection and recounting can be allowed by a Court only if specific instances of illegality substantially affecting the result of the election so far as it concerns the returned candidate are pleaded in the petition and prima facie evidence adduced to substantiate them. He further submitted that in the petition the petitioner has failed to furnish such material facts and particulars respecting those irregularities or illegalities. Even in the application filed on 18-11-98 for inspection of ballots and recount thereof no specific instance of such illegality or irregularity has been cited. According to the learned counsel if the prayer for inspection and recount is acceded to, the entire exercise shall amount to fishing out evidence for nullifying the election of R. No. I which should not be permitted and such exercise is also likely to impinge upon the salutary principles of secrecy of ballots in our Parliamentary system. Therefore, in order to succeed in his prayer for inspection and recount of ballots, the petitioner must make out a cast-iron case for it.

23. In support of his contention, learned senior counsel for R. No. 1 placed reliance on a number of decisions of the Apex Court. They are : AIR 1964 SC 1249; AIR 1966 SC 773; AIR 1970 SC 276; AIR 1973 SC 215; AIR 1975 SC 283; AIR 1975 SC 376; AIR 1975 SC 403; AIR 1975 SC 2117; AIR 1980 SC 206; AIR 1984 SC 396; (1992) 2 SCC 612 : (AIR 1992 SC 1163); and AIR 1993 SC 367.

24. On the other hand, the learned counsel for the petitioner and R. No. 2 have submitted that in the scheme of things, in our Parliamentary system, the purity of election must always be maintained and if it is found by the Court in course of trial of an election petition that the successful candidate got elected by securing majority of votes due to improper reception of votes in his favour which were either void or invalid and/or improper rejection of votes of any or all other candidates in the fray, the election of that candidate must be set aside. Reliance has been placed on decisions of the Apex Court in 1994 Supp (2) SCC619: (1994 AIR SCW2198)and 1995 Supp (2) SCC 101 corresponding to 1995 AIR SCW 156.

25. In the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, the facts were that the first respondent having lost the election to Parliament from Barabanki (UP) Parliamentary constituency had challenged the election of the appellant, the returned candidates, by filing an election petition before the Election Tribunal on the grounds, inter alia, that there had been an improper reception, refusal and rejection of votes at the time of counting and in consequence thereof, the election was materially affected; and that on a true count of the ballots he would have received a majority of valid votes; and that he was entitled to be declared duly elected. The Tribunal rejected the prayer of the first respondent for inspection of ballot papers. On appeal to Allahabad High Court, the order of the Election Tribunal was reversed and order of inspection of ballot papers was made. When the matter went to the Apex Court, a five Judge Bench of this Court held that in a proper case where the interests demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers; that power is clearly implicit in Sections 100(l)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from 0.11 Code of Civil Procedure, may be exercised subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1). The Apex Court has further observed that an order of inspection may not be granted as a matter of course, having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled : (i) that the petition for setting aside an election contains an adequate statement of the material tacts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.

26. In the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, the appellant Dr. Jagjit Singh had contested the 1962 Assembly election to the Punjab Legislative Assembly in which the first respondent Giani Kartar Singh was declared duly elected by a majority of 397 votes. The appellant called in question the election of the returned candidate by filing an election petition before the Election Tribunal on the grounds, inter alia, of corrupt practice on the part of R. No. 1 and improper reception of votes in his favour which were void and improper rejection of valid votes cast in favour of the appellant. He also made a prayer for inspection of ballot boxes (sic) and recount of the votes cast. The Tribunal allowed the inspection and recount. On recount the appellant was found to have secured majority of votes cast and the Tribunal declared him elected after setting aside the election of R. No. 1. The latter appealed to the Punjab High Court. An appeal against the order of the Punjab High Court was taken to the Supreme Court which dismissed it. While dismissing the appeal, the Apex Court observed in para 30 of the judgment at page 783 as under :--

'Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 82( I )(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(l)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable.'

27. In the case of Jitendra- Bahadur Singh v. Krishna Behari, AIR 1970 SC 276, the Apex Court has reiterated the principle laid down in Ram Sewak Yadav v. Hussain Kamil Kidwai, (AIR 1964 SC 1249) (supra) and Dr. Jagjit Singh v. Giani Kartar Singh (AIR 1966 SC 773) (supra) in the following terms :--

'(1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case; and

(2) the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.'

28. In Smt. Sumitra Devi v. Shri Sheo Shanker Prasad Yadav, AIR 1973 SC 215, also the Apex Court has held that a recount will not be granted as a matter of right, but only on the basis of evidence of good grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.

29. In Beliram Bhalaik v. Jai Behari Lal Khachi, AIR 1975 SC 283, the appellant had unsuccessfully contested the election to Himachal Pradesh Legislative Assembly held in 1972 in which R. No. 1 was declared elected by a margin of only 118 votes. Therefore, he challenged the election of the latter by filing an election petition alleging corrupt practice on the part of R. No. 1 as also commission of some irregularities and illegalities in counting of votes and on that basis prayed for recounting. The irregularities alleged in the petition were that on a particular table the counting agent of the appellant noticed that in one bundle of 50 votes, only the top one was marked in favour of R. No. 1 and the remaining 49 were marked in favour of the appellant and the bundle was counted in favour of R. No. 1 as if all the 50 votes were cast in his favour. He was also informed by his other counting Agents of such wrong deeds at other counting tables also. Therefore, he believed that he was deprived of at least 500 ballots being cast in his favour. He also stated that quite a large number of votes cast in his favour were declared invalid; whereas a large number of invalid votes which deserved to be rejected were counted in favour of R. No. 1. Thirdly, although no votes were declared invalid at table No. 8 in course of the second round of counting, the result-sheet disclosed that 15 ballots were so declared. On such facts, the Apex Court dismissed the appeal observing that although no cast-iron rule of universal application can be, or has been laid down, yet, from a bead-roll of the decisions of this Court, two broad guidelines are discernible : that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition. and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

30. In Suresh Prasad Yadav v. Jai Prakash Mishra, AIR 1975 SC 376, also the Apex Court has held that an order of inspection and recount of the ballot papers cannot be made as a matter of course. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provided an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost foolproof. Although no hard and fast rule can be laid down, yet the broad guidelines as discernible from the decisions of this Court may be indicated thus :--

'The Court would be justified in ordering recount of the ballot papers only where :--

(i) The election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;

(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and

(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.'

31. In Chanda Singh v. Ch. Shiv Ram Varma, AIR 1975 SC 403, it has been held that certain amount of stability in the electoral process is essential. If the counting of the ballots are interfered with by too frequent and flippant recounts by Courts, a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The Apex Court has further observed in that case at page 408:--

'On all hands, it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, material facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. We would only like to stress that in the whole process, the secrecy is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting is made out by definite factual averments, credible probative material and good faith in the very prayer.'

32. In the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117, the Apex Court has summarised broadly the principles and guidelines which must be followed by a Court or Election Tribunal in granting an order for inspection and recount. Those guidelines are contained in para 15 of the judgment at page 2123 of the report which is as under:--

'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 truth of the allegations made for a recount, and not for the purpose of fishing out materials.

If all these circumstances enter to 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.'

33. The same principle has been followed in subsequent cases reported in AIR 1980 SC 206 (N. Narayanan v. S. Semmalai) and AIR 1984 SC 396 (Hariram v. Hira Singh).

34. In Basanagouda v. Dr. S. B. Amarkhed, (1992) 2 SCC 612 : (AIR 1992 SC 1163), it has been held that 'to maintain the secrecy of ballot papers unless adequate material facts are on record which alone would afford adequate basis to exercise the discretion by the Court; the packets of the used ballot papers with counterfoils attached thereto or the packets of used ballot papers whether valid, tendered or rejected cannot be opened.' It has been further held that 'the Court shall not permit a roving enquiry to enable the defeated candidate/election petitioner to have access thereto to fish out the grounds. The High Court would, therefore, be circumspect to order summoning the records covered under Rule 93(1).'

35. In Satyanarain Dudhani v. Uday Kumar Singh, AIR 1993 SC 367, the Supreme Court has held that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered.

36. In 1994 Supp (2) SCC 619 : (1994 AIR SCW 2198) (A. Neelalohithadasan Nadar v. George Mascrene), the election of the appellant who was declared by a margin of 21 votes, was challenged on the allegation of double voting in contravention of Section 62 of the Act. In the election petition, names and other necessary details of identification of 19 persons who were registered twice within the same Assembly Constituency were furnished with allegation' that all of them had voted for the appellant in course of the election. The allegation was supported by affidavit under Rule 94-A. By subsequent amendments, the number of such voters was raised to 52. There was also a recrimination petition by the appellant who was R. No. 1. In the petition, the appellant pleaded that there were several other cases of double voting also -- all in favour of the election petitioner. On oral prayer for inspection of marked copies of electoral rolls and counterfoils of used ballot papers, to which counsel for the other side consented, the order for inspection was granted. On such inspection 52 ballot papers of double voting were sorted out out of which 48 were cast in favour of the appellant (the returned candidate) and 4 in favour of the election petitioner himself. As those votes were found void in terms of Section 62 of the Act, they were excluded from their respective votes with the result that the election petitioner was found having secured 23 more votes than the appellant/returned candidate. Consequently, he was declared elected. The order was challenged before the Apex Court, primarily, on the ground that it was not based on cogent materials and was violative of the principle of secrecy of ballot. While disposing of the appeal, the Apex Court held that 'since the names of the voters who were alleged to have double voted, had specifically been pleaded in the election petition (as amended from time to time) and the recrimination petition, it was necessary to correlate their names with the electoral rolls and the counterfoils of the ballot papers so that in case of double voting or impersonated voting the impure element in the election process could be identified and retrieved from the election package. The primary purpose thus was to purify the electoral process and not to hunt or hound the voter's choice, when exercised validly and freely. It is for that purpose that the Court, in the interest of justice, to facilitate a quick trial permitted the parties to inspect before hand the records but after the framing of the requisite issues arising from the pleadings of the parties and not earlier. This approach could not be termed as permitting a 'roving or fishing' enquiry, as it is sometimes described in cases of a claim for recount.' After discussing the various provisions of the Act as contained in Section 62, the Apex Court has observed that: 'It is on the strength of Section 62(4) of the Act that the High Court allowed the election petition on the principle of 'purity of elections' by undertaking the exercise to cull out void votes irrespective of the choice of voting. The evident thrust thus has been to put such purity in a dominating position even if the secrecy of ballot got some bruises incidentally.' It shall be appropriate to reproduce the following observations of the Apex Court:--

'10. The existence of the principle of 'secrecy of ballot' cannot be denied. It undoubtedly is an indispensable adjunct of free and fair elections. The Act statutorily assures a voter that he would not be compelled by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and free from any apprehension of its disclosure against his will from his own lips........ But this right of the voter is not absolute. It must yield to the principle of 'purity of election' in larger public interest. The exercise of extrication of void votes under Section 62(4) of the Act would not in any manner impinge on the secrecy of ballot especially when void votes are those which have to be treated as no votes at all. 'Secrecy of ballot' principle presupposes a validly cast vote, the sanctity and sacrosanctity of which must in all events be preserved. When it is talked of ensuring free and fair elections it is meant elections held on the fundamental foundation of purity and the 'secrecy of ballot' as an allied vital principle. It was observed by this Court in Raghbir Singh case, 1980 Supp SCC 53 : (1980) 3 SCR 1302: (AIR 1980 SC 1362) as follows :--

'Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof, or in isolation and in confrontation to the foundation of free and fair elections, viz., purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play.'

'11. In view of the above it is the settled position that out of the two competing principles, the purity of election principle must have its way. Section 94 of the Act cannot be pressed into service to suppress a wrong coming to light and to protect a fraud on the election process......'

37. In M.R. Gopalakrishnan v. Thachady Prabhakaran, (1995 AIR SCW 156 corresponding to 1995 Supp (2) SCC 101) it has been held :

that the Tribunal or the Court trying an election petition has power to direct inspection and recount of votes if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such re-count in the interest of justice is now well settled. While doing so, however, the provisions contained in Section 94 of the Act may not be ignored but the same be given due weight and consideration before directing inspection and re-count. The Apex Court has further observed that 'this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. The demand of a defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the re-count, no Tribunal or Court would be justified in directing the recount.'

38. As early as in 1954, the Apex Court had observed in the case of Jagannath v. Jaswant Singh (AIR 1954 SC 210) (supra) that 'it is a sound principle of natural justice that the success of a candidate who has won at an election, should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.' The Apex Court further observed that 'it is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.'

39. From the above decisions cited at the Bar, it becomes manifest that whenever a Court is required to set aside the election of a returned candidate by ordering inspection and recount of the ballots on the ground of corrupt practice or improper reception, refusal or rejection of any vote or reception of any vote which is void, three principles must be kept in mind before making the order for inspection and recount. These principles are : (i) that the election of a returned candidate should not be interfered with and set aside lightly simply because someone, may be an elector or a defeated candidate chooses to challenge it; (ii) that the secrecy of the ballot which is sacrosanct in the scheme of our election process is not violated; and (iii) that purity of the election has to be maintained at all costs. However, the first two principles that election of a returned candidate should not be lightly interfered with and secrecy of the ballot should not be violated must always give way to the predominant principle of our election law that purity of the election must be maintained even if in maintaining such purity of election, the remaining two principles are affected, because in no cause a candidate who has got himself elected at the election either by adopting corrupt practice or practices or in flagrant violation of the provisions of the Act and the Rules made thereunder respecting reception or rejection of ballots must not be allowed to represent the electorate. Consequently, in order to maintain purity of election in proper cases, inspection and recounting of ballots may be permitted. However, such inspection and recount should not be granted as a matter of course or by way of roving enquiry for fishing out materials to set aside the election of a returned candidate. Therefore, it is necessary that in order that inspection and recount of ballots is granted by the Court, election petitioner should not only state in the election petition the material facts which he intends to rely respecting the allegation of improper or illegal reception of votes in favour of a returned candidate or wrongful rejection of votes of any other candidate or reception of votes which were void and such reception or rejection materially influenced the election of the returned candidate, but he must also prove those facts by adducing strong, cogent, convincing and proof evidence in support thereof.

40. In support of such allegation in the election petition, the Court must also insist in proper cases some antecedent or contemporaneous documents to avoid granting order for inspection and recount on altogether concocted, imaginary and fanciful grounds stated for the first time in the election petition. Therefore, it is in the light of these principles that the allegation as contained in the present election petition and evidence adduced in support thereof by the petitioner and R. No. 2 have to be considered before making any order for inspection and recount of the ballots sought by the petitioner in the election petition as well as in his application dt. 5-11-98 presented in the Court on 18-11-98.

41. As indicated earlier, the election of R.No. 1 to South Chotanagpur Teachers' Constituency has been called in question by the petitioner, broadly speaking, on four grounds : first, that when the ballot boxes were opened in course of the counting of votes, 10 ballots were found short in comparison to the number of voles polled at different polling stations; secondly, that two electors were registered twice in the same constituency and both of them had cast their votes at both the polling stations and that too in favour of R.No. 1; thirdly, that 15 first preference ballots in favour of the petitioner and 10 in favour of R. No. 2 were wrongly rejected as invalid on the sole ground that figure of the preference had been encircled by the electors even though with, the material supplied by the election authorities for the purpose; 4thly that 50 ballot papers of first preference marked in favour of R. No. 1 which ought to have been rejected as invalid on the ground that the preference had been marked with instrument other than provided by the election authorities, were wrongly counted in favour of the said respondent; and fifthly; that when the second preference votes of one Anil Kumar were being transferred on his elimination from the fray, 15 ballots bearing second preference in favour of R. No. 2 were wrongly counted in favour of R. No. 1, so that instead of 85, 100 second preference votes of Anil Kumar were transferred to and counted in his favour and only 60 instead of 75 were transferred to and counted in favour of R. No. 2 with the result that instead of R.No. 1, R. No. 2 was eliminated after such transfer. According to the petitioner, all these illegalities and irregularities materially affected the election of R. No. 1.

42. However, when it came the turn of proving those allegations, the petitioner, or for that matter even R.No. 2, failed to adduce any evidence that when the counting of ballots polled on the day of the election were taken out from the ballot boxes, 10 ballot papers were found short and, therefore, could not be counted. There is not even a whisper by the petitioner (P.W. 2), his witness (P.W. 1) and R. No. 2 (D.W. 1) when they came to the witness stand in course of trial. On the contrary, in course of his evidence, R.No. 1 (D. W. 2) has stated that at the time of counting no ballot paper was found short, likewise, in course of evidence there has been no whisper either by the petitioner or R.No. 2 that two electors named Bhulendra Pandey and Smt. Veena Jena had been registered twice in the same constituency and both of them had cast their ballots at both the polling stations and that too in favour of R.No. 1. On the other hand, in course of his evidence, D.W. 2 (R.No. 1) has categorically denied that those two electors were his supporters and that they had cast their votes twice over in the same constituency in his favour. No attempt has been made by the petitioner either for calling for the marked copies of the electoral rolls and counterfoils of the ballot papers and inspection thereof to bring home his allegation that Bhulendra Pandey and Smt. Veena Jena were twice registered in the Constituency and both of them had cast their votes twice in favour of R.No. 1, so that 4 ballot papers which were otherwise void being cast in violation of the provision of Section 62 of the Act, were wrongly counted in favour of the said respondent.

43. Attempt on the part of the petitioner in making allegation of missing of 10 ballot papers from the ballot boxes when they were opened in the counting hall and casting of votes by two electors at two different polling stations within the same constituency in favour of R.No. 1 and failure to even whisper about that, let alone adducing any evidence to prove that, in some measure, if not conclusively, indicate imaginary nature of the allegations for setting aside the election of R. No. 1.

44. Even though the petitioner and R.No. 2 have led some evidence in support of the remaining allegations respecting wrongful rejection of their votes and wrongful reception of votes in favour of R.No. I, their such evidence is not worth credence for the reasons to be stated hereinafter. In para 6 of the petition, it has been stated that many ballot papers recording first preference votes in favour of the petitioner and R. No. 2 were improperly rejected on the ground that figure 1 had been rounded by bracketing it like (1). To be more specific, the number of such rejected ballot papers in favour of the petitioner was 15 and that in favour of R.No. 2 only 10. In the petition no source for arriving at those numbers has been stated. When the petitioner came to the witness box as P.W. 2, he stated that his 15 first preference votes had been wrongly rejected because figure 1 thereon had been encircled by the electors. According to him, for similar reason, some first preference votes of R. No. 2 were also wrongly rejected at the time of counting. Even though he had given the exact figure of 10 in para 6 of the petition, when in the witness stand he failed to disclose the number of such first preference votes of R.No. 2 as were wrongly rejected according to him. P.W. 1 Yaswant Singh Bijay the sole counting agent of the petitioner examined in this proceeding has stated that about 15 to 20 ballots cast in favour of the petitioner were illegally rejected on the sole ground that the electors had encircled the figure of preference put against his name. He also stated that he objected to it at first before the counting official and then to the Returning Officer, but his objection was turned down. On being informed by him, the petitioner had also raised objection but with the same result. Respecting ballot papers of R. No. 2 which were, likewise, rejected, the witness has stated that their number was also about 15 to 20.

45. In reply to the averments made in para 6 of the petition respecting the number of ballots of the petitioner and R. No. 2 wrongly rejected in the manner aforesaid, R. No. 2 has stated in para 8 of his written statement that many ballot papers regarding first preference votes in his favour were improperly rejected on flimsy grounds and 'such number of rejection would be about 25 and mostly were in favour of R.No. 2'. According to the version of the petitioner as contained in the election petition, in all 25 first preference votes marked in his favour as well as in favour of R. No. 2 were wrongly rejected on the ground that figure 1 was either encircled or bracketed like (1). When he came to the witness box eventhough he stated the number of such ballot papers marked in his favour as 15, he failed to give the number of such ballots marked in favour of R.No. 2. His counting agent at table No. 2 (P.W. 1) has, however, stated that 15 to 20 ballot papers of the petitioner and equal number of ballot papers of R. No. 2 were rejected in the manner stated above. It may be mentioned that coincidentally or otherwise all the illegalities or irregularities respecting rejection or reception of votes occurred at table No. 2 only if any credence has to be placed on the evidence adduced by the petitioner.

46. When it came the turn of R. No. 2 he stated in his pleading that in all 25 such ballot papers were rejected and further that most of those 25 ballot papers had been marked in his favour. When R. No. 2 came to the witness stand as D.W. 1, he stated, he had noticed 'mass-scale bunglings' in counting of the ballots. According to him, when the ballots- were being scrutinised at the initial stage of counting, he had found that many ballots marked in his favour as well as that of the petitioner and other candidates were being wrongly included in the ballots and counted in favour of R. No. 1. This statement of this witness that ballot papers marked in favour of candidates other than himself and the petitioner were also being wrongly counted for R. No. 1 at the time of counting, altogether a new fact and an innovation of R. No. 2, is neither pleaded in the pleading nor stated either by the petitioner or his witness. The witness further stated that ballot papers bearing first preference mark in his favour as well as in favour of the petitioner were rejected as invalid in spite of protests raised by him simply because such figure had been encircled by the voters. Curiously, the witness did not give the number of ballots as well as those of the petitioner which were wrongly rejected on the ground that figure of preference marked thereon had been encircled. However, in reply to a question put on behalf of the petitioner in course of his cross-examination, he stated that number of such ballots on which figure of preference was encircled, could be approximately 60 to 75 and all of them were rejected.

47. Thus, it is manifest that figure 25 which was initially given in the election petition as number of the ballots of the petitioner and R. No. 2 which were wrongly rejected, swelled gradually in the course of trial. According to P.W. 1 the number could be 30-40 and then the figure rose to 60-75 when R. No. 2 came to the witness stand. Of course, petitioner could give the figure of his own such votes and failed to give any figure respecting the ballots of R. No. 2 which were allegedly rejected improperly.

48. According to the witnesses examined on behalf of R. No. 1 including the respondent (D.W. 2) himself no sort of bungling was committed in counting of the votes and no vote, much less of the petitioner or R. No. 2, had been wrongly rejected. In course of his cross-examination, D.W. 16 Ganga Prasad Yadav, a counting Agent of another candidate Sri Dhirendra Kanth has slated that eventhough at table No. 3 on which he was present in course of the counting of first preference votes, no ballot paper was rejected on the ground that the number of preference noted thereon was encircled, subsequently he came to know that on this ground also ballot papers were rejected as invalid. He, however, could not give the exact number of those ballot papers. In course of his further cross-examination, he stated that on the ballot papers which were taken to the central table he had noticed that the preference had been encircled by voters and that those ballot papers had been rejected. However, he could not say in whose favour those ballot papers had been marked. The statement of the witness docs not inspire credence in view of the admitted fact that the counting agents who were present at the counting tables in course of the counting of first preference votes, were not allowed to go to the central table where final decision respecting doubtful ballots was being taken by the Returning Officer and/or Asstt. Returning Officer in presence of the contesting candidates or their election Agents. The witness has himself stated that no such ballot papers on which the figure of preference had been encircled had been noticed on table No. 3 on which alone his presence in course of counting was possible. According to him as also the version of other witnesses including the Returning Officer (D.W. 7), after completion of the counting of first preference votes there had been a request by the Returning Officer that only one counting Agent of each contesting candidate should remain in the counting hall in course of the counting of second preference votes and onwards. Therefore, the very presence of D.W. 6 at the central table to notice figure of first preference having been encircled and rejected on that ground, does not appear to be true. Moreover, the witness does not disclose the source from which he subsequently learnt that some such ballot papers had been rejected as invalid. It is worth mentioning that eventhough the Returning Officer was brought to the witness box on behalf of R. No. 1, not even a suggestion was given to him either on behalf of the petitioner or R.No. 2 that ballot papers with encircled figure of preference put in favour of the petitioner and R. No. 2 had been noticed and rejected as invalid on that ground alone, in spite of objections raised in course of the counting.

49. According to Clause (d) of Sub-rule (2) of Rule 73 of the Rules, a ballot paper shall be invalid on which there is any mark or writing by which the elector can be identified. As has been held by the Apex Court in AIR 1982 SC 1569, Kumari Shradha Devi v. Krishna Chandra Panth any mark or writing of an innocuous nature or meaningless import cannot be raised to the level of such suggestive mark or writing as to reveal the identity of the voter. The mark of writing which would invalidate the ballot paper must be such as to unerringly point in the direction of identity of the voter. In absence of such suggested mark or writing the ballot paper cannot be rejected merely because there is some mark or writing on the ground that by the mark or writing the voter may be identified. Therefore, in absence of any cogent evidence on behalf of R. No. 1 that electors had encircled the figure of preference on the ballot papers of the petitioner and R. No. 2 only with a view to establish their identity that they had, in fact, voted in their favour, if any such figure of preference on their ballot papers' had been found encircled or bracketed, they should not have been rejected. Except the statement of D.W. 6 which I do not find to be reliable, there is absolutely no material to establish that ballot papers of the petitioner and R. No. 2 were, in fact, rejected in course of counting as invalid on that ground alone. Had the ballot papers of the petitioner and R. No. 2 been rejected on the ground as stated above, naturally, they would have protested vehemently at the time of the rejection itself and insisted on scrutiny and recounting as provided under Rule 82 of the Rules. Sub-rule (1) of the said Rule provides that any ' candidate or, in his absence, his election Agent or counting Agent may, at any time during the counting of the votes either before the commencement or after the completion of any transfer of votes (whether surplus or otherwise) request the Returning Officer to re-examine and recount the papers of all or any candidates (not being papers set aside at any previous transfer as finally dealt with) and the Returning Officer shall forthwith re-examine and re-count the same accordingly.

50. D.W. 7 has stated that no illegality or irregularity respecting rejection or reception of votes had been brought to his notice nor was there any request for recount on any such ground. It appears that only after the result of the election was known that one petition for recounting had been filed on behalf of the petitioner and another on behalf of R. No. 2. Ext. 2 is the petition which purports to have been filed by the petitioner after the counting of the ballots was over at about 1.30 a.m. What was stated in the petition was that 268 ballots of different candidates had been rejected as invalid without being shown to the Agents of the candidates and further that in course of the counting of the second and downward preference votes, the ballots were not shown to the candidates or their Agents. On that ground there was a prayer for withholding the declaration of result and inspection of those rejected ballot papers. Ext. A is letter dt. 1-5-96 addressed to Sri T. N. Seshan, the then Chief Election Commissioner. Copy of that letter was handed over to the Returning Officer on 2-5-95. In that letter also it was stated for the first time that out of 5244 ballots cast, 286 had been rejected without any reason or rhyme and that those ballot papers were not shown to any candidate or his counting Agent after the completion of the counting of first preference votes. There is no contemporaneous document to show that the ballot papers of the petitioner and R. No. 2, may be 25 or even more, were rejected as invalid on the ground of the figure of preference being encircled or rounded and any written protest had been made or there was any prayer for re-examination and recount of the same either in course of the counting of such votes or soon thereafter but before the commencement of transfer of votes. Therefore, on consideration of the evidence on record and attending circumstances, there is no doubt in my mind that allegation that 25 ballots bearing first preference in favour of the petitioner and R. No. 2 were rejected in course of counting on the ground that the figure of preference had been either rounded or bracketed by the respective electors, does not appear to be true.

51. The allegation and evidence regarding improper reception of votes in favour of R. No. 1 is also not a better pedestal. In para 13 of the petition, it has been stated that about 50 ballot papers regarding first preference votes in favour of R. No. 1 which were not marked with article supplied for the purpose, that is, a violet colour ink sketch pen, had been improperly accepted as valid votes. As R. No. 2 has supported the petitioner, he has stated in para 13 of his written statement that the statement is correct. When it came the time for proving the allegation, the petitioner, R. No. 2 and P.W. 1, the counting Agent of the petitioner again fumbled. P.W. 1 stated that on table No. 2 where he had been deputed by the petitioner as his counting Agent, he had noticed that ballots on which first preference in favour of R.No. 1 had been marked in the own pen of the electors, and not with pen of violet ink supplied by the election authorities, were being treated valid and counted in his favour. He raised objection but was hushed up. When put to cross-examination he has stated that there were in all 17 candidates in the fray. He had not noted the figure of preference put against the names of the petitioner R. No. 1 and R. No. 2 having been encircled. He had also not noted the ballot papers in respect of which the irregularities stated by him were committed. He has stated that he had taken no notes in respect of those ballot papers. Consequently he handed over no note to the petitioner. However, when the petitioner came to the witness stand, he stated that counting Agents had made notes of the discrepancies and used to inform him on the basis thereof. On such information he himself compiled his noting on the basts of which the election petition was prepared. But none was produced in course of trial. It may be noticed that eventhough according to P.W. 2 the irregularities mentioned above were committed on table No. 2 only, he has failed to give the number, even approximately, of the ballots which were counted in favour of R. No. 1 in spite of the fact that the first preference thereon was marked by the electors using their own pen. Likewise, P.W. 2 has also not stated in course of evidence what number of ballot papers which ought to have been rejected as invalid were accepted and counted in favour of R. No. 1, although he has stated that some ballot papers on which preference had been noted in favour of R. No, 1 with the pen of the elector himself had been accepted as valid and counted in his favour.

52. In course of his evidence, D. W. 1 has stated that there were about 286/288 'rejected votes' and on scrutiny of those rejected votes he could find that mark of first preference put in favour of R. No. 1 by the voters in their own pen were treated valid and counted in his favour. The statement of (his witness is not only vague but absurd. If the ballots had already been rejected as invalid on one ground or the other as specified in Rule 73 of the Rules, occasion for ballot papers marked in favour of R. No. 1 with the material other than supplied by the election authorities being treated as valid and counted in his favour, could not have arisen. From this statement of the witness (R. No. 2) this much is clear that all such ballot papers which were not marked by the electors with the material supplied by the election authorities for the purpose were not accepted as valid irrespective of the fact whether they were cast in favour of R. No. 1 or any other candidate. There is nothing on the record to show that on the request made by R. No. 1 or otherwise, those ballot papers marked in his favour were taken out from the bunch of rejected ballot papers and accepted as valid and counted in his favour. Like P.Ws. 1 and 2, this witness also has failed to disclose the number of ballot papers which ought to have been rejected as invalid on the ground that figure of preference had been put by the electors in their own pen, but were accepted as valid and counted in favour of R. No. 1. Neither in Ext, 2 filed by the petitioner on 1-5-96 nor in Ext. A filed by R. No. 2 on 2-5-96, there is any such allegation that ballot papers, muchless 50, which ought to have been rejected as invalid, were wrongly received and counted in favour of R.No. 1. Therefore, I find that like allegation of wrongful rejection of 25 ballot papers of first preference of the petitioner and R.No. 2, the allegation of wrongful reception of 50 ballot papers in favour of R.No. 1 so as to materially affect his election to the Constituency is out and out a concoction and no ear need be given to it.

53. The fifth and the last allegation pleaded in the election petition is that after the elimination of one of the candidates named Anil Kumar, some mistake, deliberate or otherwise, was made in transfer of his second preference votes. It has been stated that there was a mistake in respect of 15 such votes. Even though only 85 ballot papers bore second preference in favour of R. No. 1, exactly 100 were transferred to him and counted in his favour. 15 votes actually belonged to R. No. 2 and should have been transferred to him and counted in his favour. If those 15 second preference votes of Anil Kumar were not wrongly transferred to R. No. 1 and counted in his favour, and instead transferred to R. No. 2 and counted in his favour, the second preference votes of Anil Kumar in favour of R. No. 2 would have risen to 75 instead of 60 only as were transferred and counted in his favour. And this would have made a lot of difference and the difference would have been that after the transfer of second preference votes of Anil Kumar to the remaining three continuing candidates, namely, the petitioner, R. No. 1 and R. No. 2, the total number of their votes would have been 1210, 1183 and 1192 respectively with the result that in course of the penultimate round of counting, R. No. 1 would have been eliminated from the contest and not R. No. 2 as happened due to wrong transfer of second preference votes of Anil Kumar. In his written statement as also in course of trial, R. No. 1 has categorically denied the allegation. Of course, the evidence of D.W. 2 on this point is not consistent. At one place he stated that he had received 100 second preference votes of Anil Kumar and at another place in course of cross-examination he stated that all the surplus votes of the said Anil Kumar had been transferred to him and nobody else and then again said that he had received 100 such votes. In course of his evidence, P.W. 1 has stated that after 15th round of counting, he learnt from the petitioner himself that about 15-20 second preference votes marked in favour of R. No. 2 had been counted as such in favour of R. No. 1. It may be mentioned that this witness has himself admitted that at the time of counting of second preference votes, he was not present inside the counting hall.

54. Allegation has been made by the petitioner as also R. No. 2 that after the counting of the first preference votes, the Returning Officer arbitrarily drove away all the counting Agents of the candidates from the counting hall. On the other hand, the Returning Officer (D.W. 7) has stated that after counting of the first preference votes, he had made a request that thereafter only the candidates and/or their Election Agents and only one of their counting Agents should remain in the counting hall because it was not possible to accommodate all the counting Agents of all the contesting candidates on the single table on which the counting of second preference votes had to start. It is undisputed a fact that counting of first preference votes was done on as many as 8 tables. Naturally, each of the contesting candidates was entitled to appoint as many counting Agents. Provision for sitting of 8 counting Agents against each counting table had been made. It is also undisputed that after completion of the counting of first preference votes, the counting was confined to a single table called Central table for counting of second preference votes. It was not possible to accommodate at that lone table all the counting Agents of all the contesting candidates. Therefore when the Returning Officer made a request that except one counting Agent on behalf of each of the contesting candidates, all others should go out of the counting hall and on that ground others had to go out, such act of the Returning Officer can neither be said to be unreasonable nor arbitrary and that too calculated to do favour to some candidate and dis-favour to other or others.

55. Therefore, the statement of P. W. 1 that he learnt from the petitioner that 15 second preference votes of Anil Kumar were wrongly transferred to R. No. 1 instead of R. No. 2 in whose favour they had been marked depends on the reliability or otherwise of the evidence of the petitioner himself. P.W. 2 has stated that in course of counting of second preference votes of Anil Kumar, 15 ballots marked in favour of R. No. 2 were wrongly transferred to, and counted in favour of R. No. 1. He has stated that but for such miscount in favour of R. No. 1 and prejudicial to R. No. 2, the former would not have got elected. He has stated that he objected to it and requested for recount, but his request was turned down. At first he made oral request and when it was not accepted he made a written request for recount. Ext. 2 is that written request or whatever it may be called. This document nowhere mentions wrong transfer of second preference votes of Anil Kumar and miscount in favour of R. No. 1 vis-a-vis R. No. 2. Ext. 1 is the result-sheet prepared respecting the election which has been called in question and Ext. 1/1 is a carbon copy thereof. This document shows that after the elimination of Anil Kumar in course of 15th round, 30 of the second preference votes were transferred to the petitioner, 100 to R. No. 1 and 60 to R. No. 2 taking the total number of votes received by them at the end of 15th round to 1210, 1198 and 1177 respectively. Naturally, R. No. 2 standing third in the row was eliminated and his second preference votes transferred to the petitioner and R. No. 1 in the figures of 89 and 205 respectively. In para 10 of the petition the petitioner has stated that R. No. 2 had made a written request to the Returning Officer that 8 of the second preference votes of Anil Kumar which were actually cast in his favour, were improperly counted in favour of R. No. 1. Therefore, he made a request to re-examine and re-count. In spite of the fact that the petitioner and all other candidates also supported R. No. 2 in this behalf, the Returning Officer turned a deaf ear to the request.

56. As indicated earlier, the earliest written request made by R. No. 2 in this regard is Ext. A. It was presented before the Returning Officer on 2-5-96. Apart from airing his grievance for rejection of 286 ballots out of 5244 on fanciful grounds in course of the first round of counting, R. No. 2 had alleged that 8 of the second preference votes on the ballots of Anil Kumar which were marked in his (R. No. 2) favour, were wrongly counted with the second preference votes marked in favour of R. No. 1. When he lodged a protest, he was forced out of the counting hall. Naturally, the result having already been declared, the recount requested by R. No. 2 was not acceded to. Similarly, earlier request made by the petitioner as per Annexure-2 had also been turned down by the Reluming Officer at 3.30 a.m. on 1 -5-96 with the reasons stated hereunder, which has been marked Ext. D :--

'The candidate and his Agents were all along present at the time of counting and got the opportunity to see the ballot papers. The ballot papers were rejected after careful examination as per Guidelines given by the Election Commission. The candidate has filed this petition after he has been eliminated from the contest.

The petition is, therefore, rejected.

Sd/-1-5-96 3.30 a.m. Returning Officer and Commissioner......'

57. Admittedly, the request for re-examination and/or recount of ballots was made both by the petitioner and R.No. 2 after the result was announced even if not declared as contended by them. The election was for a Council Constituency and not for Parliamentary/Assembly Constituency so as to attract the provision of Rule 63 of the Rules respecting recount of votes, according to which any prayer for recounting can be made by any candidate after preparation of the result-sheet in Form 20 showing total number of votes polled by each candidate and announcement thereof, but before the declaration of the result. Respecting Council Constituency, a distinct provision for recount has been made and that is contained in Rule 82 of Part VII of the Rules. I have already reproduced the provisions of Sub-rule (1) of Rule 82 and, therefore, need not reproduce the same over again. Suffice it to say, that if any request for re-examination and recount is made, it is to be made in course of the counting of votes either before the commencement or soon after the completion of the transfer of votes. From this it follows that if any illegality, irregularity, mistake, etc., was noticed in course of the counting of the first preference votes, the prayer for re-examination and re-count should have been made either in course of that round of counting itself or soon after completion thereof. Similarly, if any discrepancy was noticed respecting transfer of votes, the request for re-examination and re-counting should have been made either in course, or soon after the completion, of that round of transfer. Therefore, if any discrepancy as alleged was noticed respecting transfer of 15 votes of Anil Kumar in favour of R. No. 1 instead of R. No. 2, a request for re-examination and re-count of votes of Anil Kumar should have been made then and there and not only after completion of the counting of all the votes. It may be mentioned that after elimination of R. No. 2, his second preference votes were transferred to the petitioner and R. No. 1. There is no allegation of any discrepancy in respect thereof. After such transfer, R No. 1 secured the majority of the votes and the petitioner ranked second. Naturally, he was eliminated. There being no other continuing candidate R. No. 1 was declared elected as he had secured majority of valid votes polled and counted. It was only thereafter that the petitioner thought to make a written request for recount. Even in that written request there was absolutely no mention that 15 second preference votes of Anil Kumar which ought to have been transferred to R. No. 2, were wrongly transferred to R. No. 1.

58. As noted earlier, the earliest grievance in this regard is to be found in Ext. A, according to which 8 second preference votes of Anil Kumar marked in favour of R. No. 2 were transferred to R. No. 1 and counted in his favour. From time to time, the number of such transferred votes has been increased not without any reason. If actually there was some mistake or miscount respecting only 8 of the second preference votes of Anil Kumar, the result would not be affected in any manner whatsoever. According to Ext. 1 series, before elimination of Anil Kumar, the number of votes in favour of the petitioner, (R. No. 1) and R. No. 2 were 1180, 1098 and 1117. After elimination of the said Anil Kumar, 30 of second preference votes were transferred to the petitioner, 100 to R. No. 1 and only 60 to R. No. 2 bringing the total of their votes to 1210, 1198 and 1177 respectively. If 8 of the second preference votes which were wrongly transferred to R. No. 1 instead of R. No. 2, as stated in Ext. A and para 10 of the election petition were to be excluded from the total votes of R. No. 1, his figure would come to 1190 and on addition of the figure of 8 to the total number of the votes R. No. 2 is shown to have secured on elimination of Anil Kumar, his figure could come to 1185 only. In other words, the total number of votes counted in favour of the petitioner, R. No. 1 and R. No. 2 would have been 1210, 1190 and 1185 respectively. These Figures clearly show that being third in the row of contest, R. No. 2 was to be eliminated according to the rules of counting as per Rule 75 of the Rules. Realising that number of 8 could not have served the purpose of the petitioner, he appears to have embarked upon manufacturing some other grounds and raising the number of second preference votes of Anil Kumar which were wrongly transferred to R. No. 1 instead of R. No. 2. The provision of Section 100 which is to the following effect was coming into way of the petitioner in getting the election of R. No. 1 challenged by accepting the figure 8.

59. Second 100(1) provides, inter alia, that subject to the provisions of Sub-section (2) if the High Court is of opinion--

(d) that the result of the election insofar as it concerns a returned candidate, has been materially affected--

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.'

Unless improper acceptance/rejection of votes or reception of void votes materially affects the election of the returned candidate, no election can be set at naught by the Court. If there was an occurrence of miscount in respect of only 8 of second preference votes of Anil Kumar and no improper reception or rejection of votes or acceptance of void votes as subsequently included in the election petition, no prayer for recount can be granted because it was not going to materially affect the result of the returned candidates in any manner whatsoever because in that event R. No. 2 ought to have been eliminated and his second preference votes transferred to the petitioner and R. No. 1 in the manner it was done. Relying on a decision of the Apex Court in Birad Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796, the learned counsel for the petitioner has canvassed that an election proceeding not in the nature of appeal against an order of Returning Officer rejecting the prayer of recount on the ground stated in his order; therefore, even if there was no contemporaneous document containing allegation of improper reception or illegal rejection of votes in course of counting, the petitioner's election has to be decided independently on the basis of fresh materials pleaded before this Court. There can be no two opinion regarding the law that an election petition is to be decided on the merits of its own and evidence adduced in support of the allegations made therein. But there is the rule of appreciation of evidence and allegations contained in the pleading.

60. In the Election Rules elaborate provisions have been made to ensure that no mistake or bungling occurs or is allowed to be committed. The counting is to be done in presence of the candidate, his election Agent; and on each counting table a counting Agent to keep an eye on the counting process. If any mistake occurs or bungling is done by the counting personnel, the counting Agent is expected to protest and point out to the candidate or his election Agent. On his part, the latter is expected to make protest to the Returning Officer to set right the mistake. If he is not obliged, he is expected to make a written complaint, handing over a copy to the election authorities and retaining a copy thereof to be produced at appropriate time while presenting an election petition and adducing evidence in Court. If nothing of the sort appears to have been done, the natural inference, if not presumption, would be that the counting of the votes was done properly and correctly and passed off peacefully. If at a much later stage a petition is filed to call in question the election of the returned candidate. the Court cannot accept the allegations at their face value. Some sort of corroboration is required from antecedent and/or contemporaneous document(s) of the nature indicated above. As D. W. 2 has stated, since the petitioner and R. No. 2 had received more votes of first preference than others, they were satisfied with the counting and gleefully accepted it until the table suddenly turned against them because of second preference ballots of Anil Kumar. It was then that the mechanisation for recounting began. Hence, no antecedent or contemporaneous document regarding the alleged illegalities etc. If no such document is produced and there are contradictions and discrepancies in the oral evidence adduced in course of trial, such allegations become doubtful and on the basis of such doubtful allegations, no Court should grant an order of inspection and recount of the ballots.

61. In the present case, apart from the fact that the witnesses examined by the petitioner and R. No. 2 have fumbled on figures of improper rejection of the votes of petitioner and R. No. 2 and wrongful reception of votes in favour of R. No. 1, one finds that they have also failed to give required details respecting those numbers. As indicated above, the total number of ballots cast and counted was around 5244 as per Annexure-A. The first preference votes were being counted on as many as 8 tables with a counting Agent of each candidate thereat to keep an eye. If any ballot paper of petitioner and R. No. 2 was wrongly rejected, it was expected of their counting Agents to note down the serial numbers of those ballot papers keeping in view the small number of votes being counted at a time. Similarly, it was expected of them to note down the serial numbers of ballot papers which were wrongly received and counted in favour of R. No. 1 eventhough the preference thereon had been marked by the electors with their own pen. P.W. 1 says that he had made no such notes at all. Such omission only leads to conclusion that, in fact, no such mistake or wrongful act in course of counting had been committed. Eventhough in course of his evidence P. W. 2 has stated contrary to the evidence of his own witness (P.W. 1) that he had compiled informations regarding those mistakes or irregularities and the election petition was drafted on the basis thereof, no such averment had been made in the election petition. Therefore, source of information about serial number of ballot papers not having been disclosed in the election petition itself make it very clear that only imaginary and bald assertions in respect of the figures mentioned therein have been made and this, certainly, did not amount to stating of material facts respecting those allegations. As has been observed by the Apex Court in Jitendra Bahadur Singh v. Krishna Behari (AIR 1970 SC 276) (supra) the material facts required to be stated are those facts which are to be considered as materials supporting the allegations made. In other words, they must be such facts as to be the overall basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule E are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the election petition the material facts was referring to a point of substance and not of mere form.'

62. An attempt has been made on behalf of the petitioner as if the ballot papers, were wrongly rejected by the counting personnel themselves and not by the Returning Officer or Asstt. Returning Officer. The evidence of D. W. 4 and D.W. 5 is to the effect that whenever a dispute respecting genuineness of a particular ballot arose on a particular table, the counting personnel used to decide their nature in consultation with the counting Agent of the contesting candidates. D.W. 4 has stated that two counting personnel in consultation with the counting agents used to decide the fate of doubtful ballots. He further stated that he did not remember if any doubtful ballot paper had been referred to the central table for decision by the Returning Officer. When further pursued in cross-examination, he stated that at first the rejected ballot papers were assembled at each counting table and thereafter they were all taken to the central table. The doubtful ballot papers used to be rejected on the counting table itself. This witness was the election Agent, and full brother, of R. No. 1. In this connection it may be mentioned that there is no whisper in course of evidence of any witness of R. No. 1 that this witness was also present inside the counting hall. Be that as it may, the fact remains thathe has asserted that he was present in the counting hall. Another contesting candidate Brajendra Mishra (D. W. 5) whose presence in course of counting is not disputed, has stated that though all the disputes of ballot papers used to be decided on the counting tables themselves, ballot papers in respect of which no decision could be arrived at on the counting tables, used to be sent to the Returning Officer for decision. D. W. 7 has also stated that whenever any dispute arose respecting genuineness of a ballot paper, such ballot papers used to be brought to the Central table for his perusal and after due consultation with the two observers of the Election Commission who were, admittedly, present there throughout the counting process, the fate of that ballot paper used to be decided. If respecting a ballot paper all the counting Agents were unanimous on the point of its invalidity on any of the grounds stated in Sub-rule (2) of Rule 73, there was absolutely no occasion to obtain the opinion of the Returning Officer or any other superior authority. If such ballot paper or papers were treated as rejected, it cannot be said that they were rejected as invalid by authority not competent to do so. After all, the formality respecting rejection was performed by the Returning Officer or Assistant Returning Officer while endorsing on each of them the word 'rejected' and ground of rejection in accordance with the provision of Sub-rule (1) of Rule 73 of the Rules.

63. Therefore, from the above discussions, it becomes manifest that the petitioner has singularly failed to establish by cogent evidence that there was any irregularity in counting of the ballots of the biennial election to the South Chotanagpur Teachers' Constituency for the Council held in 1996. He has failed to prove that any of his first preference votes or for that matter even of R. No. 2 had been wrongly rejected by the Returning Officer. Similarly, he has failed to establish that 50 first preference ballots of R. No. 1 which ought to have been rejected were wrongly received and counted in his favour. The petitioner could not further prove that 15 second preference votes of Anil Kumar, which were actually marked in favour of R. No. 2, were transferred to R. No. 1 and counted in his favour so as to get R. No. 2 instead of R. No. 1 eliminated in course of the 16th round of counting. Respecting the allegations that 10 ballot papers were found short and, therefore, could not be counted, and that two electors had twice cast their votes in favour of R. No. 1, less said the better. In other words, the petitioner has failed to make out a case for inspection and recounting of the ballots. Therefore, both the issues are decided in favour of R. No. 1 and against the petitioner.

Issue No. 1:

64. While disposing of issue No. 2 it has been found that no further relief for declaration that the petitioner or any other contesting candidates is duly elected, having been sought, all the contesting candidates were not required to be impleaded as respondents in the present election petition, Any other defect in the frame of the election petition as pointed out by the learned counsel for R. No. 1 is that it does not contain a concise statement of material facts on which the petitioner has sought reliance inasmuch the details of the ballots which were either wrongly rejected or wrongly received and counted in favour of R. No. 1 is entirely lacking. Subsection (1) of Section 83 of the Act provides, inter alia, that an election petition shall contain a concise statement of the material facts on which the petitioner relies. I have already pointed out that keeping in view the small number of ballots which were counted and even smaller number of ballots which were allegedly improperly rejected and counted in favour of R. No. 1, it was imperative on the part of the petitioner to state in the election petition their serial numbers, if no other detail. Similarly in the election petition, the petitioner ought to have disclosed the source or sources from which he came to gather information regarding the said irregularities/illegalities being committed at the time of the counting. Therefore, in absence of such details, the election petition certainly lacks in concise statement of the facts respecting the allegations relied upon for calling in question the election of R. No. 1. Therefore, I find that the election petition in its present form is not maintainable. This issue is also decided against the petitioner.

65. In the result, the election petition fails and the same is hereby dismissed with costs. The application for inspection and recount of the ballots filed on 18-11-98 on behalf of the petitioner is also dismissed. The petitioner shall pay to R. No. 1 a consolidated sum of Rs. 5,000/- only by way of cost. However R. No, 2 shall bear his own costs.

Subject	;Election
Court	Patna High Court
Decided On	Feb-09-1999
Case Number	Election Petn. No. 1 of 1996 (R)
Judge	G.S. Chaube, J.
Acts	Representation of the People Act, 1951 - Sections 82, 83(1), 84, 86, 100 and 100(1); Code of Civil Procedure (CPC) , 1908 - Order 7, Rule 7; Conduct of Election Rules, 1961 - Rule 73(2)
Appellant	Jai Nandan Singh
Respondent	Shankar Dayal Singh and ors.
Appellant Advocate	Arvind Kumar Lall, Adv.
Respondent Advocate	S.N.P. Sharma, V.P. Singh, Sat Prakash and A.K. Rashidi v. Shivnath, Advs.

Jai Nandan Singh Vs. Shankar Dayal Singh and ors. - Court Judgment