Orissa High Court
Sayed Mustafiz Ahmed vs Samir Dey And Ors. on 15 October, 1996
Equivalent citations: AIR 1997 ORISSA 151
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. In this election petition filed under Section 81 of the Representation of the People Act, 1951 (hereinafter called the 'Act') the petitioner has prayed for inspection and recounting of all used ballots and to declare the election of the returned candidate, respondent No. 1 to be void and to declare the petitioner to have been elected. This petition relates to election to No. 44 Cuttack City Assembly Constituency which took place on 9-3-1995 and the counting took place on 11-3-1995 and 12-3-1995. Respondent No. 1, who was contesting as a candidate of Bharatiya Janata Party was declared elected having secured 61,299 votes, the petitioner who was contesting on behalf of Janata Dal, secured 40,496 votes, whereas the respondent No. 2 contesting as a candidate of Indian National Congress (I), secured 37,155 votes. The Eleven other candidates had contested but except respondent No. I, all other respondents have been set ex parte, some after filing the written statement and others at the threshold.
2. The main ground of attack of the petitioner is on the basis that the result of the election has been materially affected due to improper acceptance of invalid rejected votes in favour of respondent No. 1 and improper rejection of valid votes in favour of the petitioner. The petitioner has asserted that at the place of counting the instruction regarding lay out of the counting hall as per the provisions contained in Annexure-XXXIV of the Hand Book has not been followed while placing the counting tables and because of irregular placing of tables the counting was not properly done and the counting agents of the petitioner faced difficulty in watching counting of votes. It is specifically alleged that barricades had not been provided around the counting tables, as a result of which counting agents of respondents Nos. 1 and 2 were very often handling the ballot papers which substantially affected fair and accurance process of counting. It is further alleged that in violation of Rule 53, many outsiders mostly the supporters of Bharatiya Janata Party and Indian National Congress (I) unauthorisedly entered inside the counting hall between 9 a.m. to 10 p.m. on 11-3-1995 and created chaotic situation which caused hindrance at the time of counting of votes. The counting started at 8 a.m. on 11-3-1995 and continued till 11.30 a.m. on 12-3-1995 and during such long hours of counting, the counting officials were overworked and tired and all of them carried on counting hastily and rapidly resulting is wrong counting of votes and the votes which should have been counted in favour of the petitioner were erroneously counted in favour of respondent No. 1 and the votes which should not have been counted in favour of respondent No. 1 were counted in his favour, materially affecting the result of the election. It is further alleged that on 12-3-1995 at about 6 a.m. the Assistant Returning Officer announced suspension of counting for two hours to enable the counting staff and counting agents to refresh themselves and though the counting was suspended, the Returning Officer did not comply with Rule 60 and did not keep the ballot paper boxes and other papers sealed and did not take sufficient precaution for safe custody. Moreover, though the counting was to recommence at 8 a.m., but when the counting agents come to the counting hall they found that the counting had been resumed one hour earlier at 7 a.m. and such counting of votes in the absence of the counting agents of the petitioner is improper and erroneous and has materially affected the result of the election. It is further stated that though Sri Pratap Satpathy, one of the counting agents of the petitioner is got written protest, the Assistant Returning Officer refused to receive the same. It is further alleged that as 261 polling booths had been established, ordinarily 261 ballot boxes were to be utilised, but it was found on the counting tables that in fact 267 ballot boxes were brought for the purpose of counting. The Asstt. Returning Officer told that six additional ballot boxes had been used. It is claimed that the provisions in Chapters VIII and XXII of the Hand Book containing the instructions and guidelines regarding the use of additional ballot boxes had not been followed, and while the additional boxes were opened, the ballot paper account in Form 16 in support of the additional boxes were not available. It is further claimed that the Presiding Officers of the respective booths where additional boxes had been used did not give the polling agents of the petitioner, the copies of Form 16 in respect of such additional boxes and in the absence of such Form 16, the details regarding the number of ballot papers received and used in those ballot boxes could not be ascertained and the ballot papers found from such additional boxes could not be checked up to find out the correctness and accuracy of the number of votes really polled. This has marked the process of election. It is further asserted that in none of the additional boxes, genuine electors have voted and the additional boxes in fact contained spurious ballot papers which were improperly counted as valid votes, materially affecting the result of the election. It is further asserted that in respect of booths Nos. 42, 79 and 124, the, corresponding ballot papers account contained in Form 16 were not found and the ballot papers found from the three boxes were improperly and illegally counted despite the protest of the counting agents of the petitioner. It is claimed that the copies of the ballot paper account in Form 16 relating to the aforesaid three polling booths had not been given by the respective Presiding Officers to the counting agents of the petitioner. In the absence of Form 16 it was not possible to ascertain about the genuineness of the ballot papers and ultimately the result of the election has been materially affected. It is further alleged that though an application was filed, the certified copies of the Diaries of the Presiding Officers were not granted, thus preventing the petitioner from ascertaining about the truth or otherwise of the use of additional ballot boxes and details relating to polling booths of 47, 79 and 124. The petitioner was also riot supplied with the certified copy of Form 16 relating to the booths Nos. 47, 79 and 124, but he was supplied with the xerox certified copies of the notings of the Counting Supervisor in respect of the three polling booths. It is further claimed that on the date of polling the respective Presiding Officers did not give copies of Form 16 to any polling agents. It is claimed that counting of votes on the basis of the report of the Counting Supervisor which was subsequently prepared was illegal, improper and has materially affected the result of the election. It is claimed that at the time of actual counting of ballots, candidate-wise, in many of the bundles of the petitioner instead of keeping 25 ballots in a bundle as per the instruction, in fact one or two ballots were kept and such illegality has occurred in 790 bundles of the petitioner wherein one or two extra ballots had been kept as a result of which the petitioner has lost 1099 votes and if such votes are counted in his favour, the petitioner would secure more votes than respondent No. I. It is claimed that in spite of oral report of the agents of the petitioner, the counting officials did not rectify the mistakes and in the petition for recounting filed before the Returning Officer on 14-3-1995, such illegality was highlighted. It is further claimed that in order to make up the short fall which would have otherwise occurred by the aforesaid illegal counting, one or two less votes were kept in the bundles meant for respondent No. 1 and by such process the respondent No. 1 has been credited with 1099 extra votes. It is claimed that if recounting is done, 1099 votes should be credited to the petitioner and 1099 votes should be debited from the number counted in favour of respondent No. 1. It is further asserted that except in Table Nos. 6, 9 and 13, the trend of counting was in favour of the petitioner but due to manipulation and interference in the process of counting by the counting agents of respondent No. 1, there was improper, irregular and incorrect counting in Table Nos. 8, 9 and 13, materially affecting the result of the election. It is claimed that during 8th round of counting in Table No. 7, it was detected that one bundle of ballot papers containing 25 votes in favour of the petitioner was missing. When the matter was brought to the notice, the counting was stopped for sometime but the missing ballots could not be traced out and only the remaining 975 ballots in the said round of counting were counted. It is claimed that in view of such illegal and improper counting, the petitioner has lost 25 valid votes. It is claimed that counting agets of the petitioner offered a written application 12-3-1995 at about 8 p.m. before the result of election had been duly declared indicating some of the irregularities and illegalities, committed during the counting. The Asstt. Returning Officer who was present, refused to accept the same. Subsequently, on 12-3-1995 the counting agents of the petitioner went to the office of the Returning Officer-cum-Sub-Collector at 10 a.m. and handed over the petition to the Returning Officer when the latter arrived at 12.20 p.m. It is claimed that without giving an opportunity of hearing, the said application was rejected. It is claimed that after the completion of polling, as per the opinion collected from the Presiding Officers by the Returning Officer, it was calculated and found that 1,20.340 voters had cast their vote and the said figure was released to the press by ' the Reluming Officer and was published in local newspapers, but mysteriously after the completion of counting and declaration of result it was found that the total number of votes polled was 1,29,690 and not 1,28,148 as earlier reported. It is claimed that this anomalous position in the number of votes polled, clearly indicates about the illegal and improper counting. It is further claimed that the total number of ballot papers found in the ballot boxes did not tally with the total numbers as indicated in the ballot paper account is Form 16 thus vitiating the counting process. In view of all the aforesaid illegalities in the process of counting, it is claimed that the result of election has been materially affected.
3. Respondent No. 1, the successful candidate has filed written statement, denying the allegations made in the election petition. He has denied the allegations regarding the violation of the provisions relating to counting. His stand is that there was no error or illegality at the time of counting and the allegations in the election petition are after thoughts. He had also filed a recrimination petition under Section 97 of the Act which has been rejected by Hon'ble Mr. Justice D. P. Mohapatra (as his Lordship then was) by order dated 25-9-1995. It is no longer necessary to refer to the allegations made in the recrimination petition.
Respondent No. 3 though filed written statement, has been set ex parte subsequently. It is unnecessary to refer to the averments made in the written statement. As already indicated all other respondents were set ex parte.
4. On the aforesaid allegations, the following issues were framed by Hon"ble Mr. Justice D. P. Mohapatra by order dated 10- 10-1995:-
(1) Whether the election petition filed by the petitioner is maintainable?
(2) Whether the election petition has been , presented in compliance with the provision of Section 81 of the Representation of the People Act? (3) Whether the election of the returned candidate i.e. respondent No. 1 is void? (4) Whether the election of the returned candidate has been materially affected due to improper reception, refusal or rejection of any vote of rccetion of any vote which is void? (5) Whether the counting of ballot papers was made in accordance with the provisions of sales 55-B, 56-B and 57-B of the conduct of Election Rules, 1961?
(6) Whether counting of ballot papers is the six additional ballot boxes used during the polls and in respect of booth Nos. 42, 79 and 124 is legal and valid in the absence or non-use of Form No. 16? (7) Whether the election has been materially affected due to wrong bundling of ballot papers of the petitioner and the respondents? (8) Whether the petitioner shall be declared to have been duly elected?
After closure of evidence on either side, a memo was filed on behalf of the petitioner on 9-3-1995 to frame an additional Issue to the following effect :--
"Whether all the ballot papers contained in all the ballot boxes used in the constituency were counted and the result was entered in the result sheet in form No. 20?
Issues Nos. 1 and 2 :--
5. These two issues being inter-related, are taken up together, Section 81 of the, Act provides for prosecution of an election petition on the grounds specified in Section 100(1) and Section 101 within 45 days from the date of election of the returned candidate. The petitioner has prayed for declaring the election of respondent No. 1 as void on the allegation that the result of election has been materially affected by improper reception, refusal or rejection of any vote. This assertion is relatable to Section 100(1)(d). He has also prayed that he should be declared to have been elected on the ground that he has received majority of the valid votes as envisaged in Section 101 of the Act. Section 86(1) provides for dismissal of an election petition which does not comply with Section 81 or Section 82 or Section 117 of the Act. There is no allegation that the provisions of Section 82 which relate to the question of joinder of parties and Section 117 which relate to deposit of security for cost at the time of presenting the election petition, have been violated in any manner. There is no dispute that the election petition has been filed within , the prescribed period on the grounds specified in Section 100(1) and Section 101 of the Act. Though such an issue has been raised as to whether the election petition has been presented in compliance with the provision of Section 81 of the Act, nothing has been indicated on behalf of respondent No. 1 to show that the election petition has not been as presented is accordance with the provision of Section 81 of the Act. Accordingly, 1 hold that the election petition is maintainable and has been presented in compliance with the provision of Section 81 of the Act. These two issues are answered accordingly.
Issues Nos. 3 and 4 :--
6. These two issues being inter-related are taken up together. Admittedly, the countings took place in accordance with Rule 59A of the Conduct of Election Rules, 1961 (hereinafter called the "Rules"). Under Rule 59A, it is provided that where the election Commission apprehends intimidation and victimisation of electors in any constituency and is of the opinion that it is absolutely necessary that ballot papers taken out of all boxes used in the constituency should be mixed before counting, or notification may be issued specifying such constituency and upon Issuing of such notification in the Official Gazette, in lieu of Rules 55, 56, 57 and 59, the provisions contained in Rules 55-B, 56-B and 57-B are to apply.
As per the provisions contained in the relevant rules applicable, there are two phases in the counting. In the first phase of counting, all the ballot boxes are brought to the counting tables, the ballot boxes are opened in presence of the counting agents and the number of ballot papers found inside the box is tallied with the entries made in the ballot paper account in Form 16 and the discrepancies, if any, arc noted is Part-II of the said Form 14, without verifying the vote given in respect of any of the candidates, the ballots are kept in bundles of 25 each and thereafter all the ballots found from all the ballot boxes are mixed up. After completing this process of mixing of ballot papers, the second phase of counting which is the actual counting of ballots, candidate-wise, begins. At the time of such counting, one thousand ballots (40 bundles each consisting, of 25 ballots) are brought to each table in each round of counting and after verifying the various ballot papers candidate-wise, the ballots are sorted out and bundled into bundles consisting of 25 ballots each and kept in the respective pigeon holes meant for each candidate. After completion of each round of counting in such manner, a fresh lot of thousand ballot papers in forty bundles each consisting of twentyfive ballots is again brought to each of the counting tables for the next round of counting.
7. The learned counsel for the petitioner contended that as observed in the decision reported in AIR 1982 SC 983, Jyoti Basu v. Debi Ghosal, the election dispute is a statutory proceeding subject to the provisions of the statute to which the principles of common law and equity remain strangers. In the trial of election dispute, the Court is put in a strait-jacket, Relying upon the aforesaid observation of the Supreme Court, it has been contended that when the procedure has been elaborately laid down in the relevant rules, and the instructions issued thereunder, any infraction of the rules should be viewed seriously. Relying upon the decisions reported in AIR 1961 SC 358, State of Uttar Pradesh v. Binghara Singh, AIR 1975 SC 915, Ramchandra Keshav Adke v. Govind Joti Chavare and AIR 1976 SC 789, Hukam Chand Shyam Lal v. Union of India, it has been contended that when a statute provides that a particular Act has to be done in a particular manner, it has to be done in the manner prescribed, or not at all. Banking upon the aforesaid decisions, it has been vehemently contended that in view of the several infractions of the rules at the time of counting, the election of respondent No. I should be declared void.
I am afraid, the decisions cited by the learned counsel for the petitioner do not go to the extent of laying down that in the process of counting if there is any infraction of the statutory rules regarding manner of counting, the result of the counting has to be nullified in each and every case. This is not to suggest that the various rules laying down the procedure for counting should be violated with impunity. The rules are required to be followed substantially. However, if there is some infractions of some rule, or statute, that would not ipso facto nullify the result of counting. As indicated in Section 140(1)(d) of the Act, the election of a returned candidate can be declared void only if the infraction of the provisions of the Act or the Rules has materially affected the result of election relating to the returned candidate.
8. Rule 45 prescribes that the Presiding Officer after the close of polling should prepare a ballot paper account in Form-16. It has been submitted that since ballot paper account in Form-16 was not available in respect of three polling booths as well as in respect of additional ballot boxes used in six other polling booths, there was non-compliance of this provision as the ballot papers found inside the ballot boxes could not be compared with the statements required to be incorporated in Part I of form 16.
From the evidence of P.W. I, the Returning Officer, it is evident that the ballot paper accounts to be maintained in Form 16 were not available in respect of booth Nos. 42, 79 and 124. He has clarified by stating that the relevant information relating to number of votes to be found in the ballot boxes could be gathered from the respective Presiding Officers' Diary which is required to be maintained by the Presiding Officers of the respective booths. He has deposed that as per the entries made in the Diaries of the Presiding Officers of those booths, necessary note-sheets were prepared and the number of ballots found inside the ballot boxes could be tallied. There is no allegation, nor any proof that the ballots found in the ballot boxes relating to three booths in question were, in fact, spurious ballots. Rule 45(2) prescribes that the Presiding Officers shall furnish a true copy of the entries made in the ballot paper account to every polling agent present at the close of the poll. Though it has been alleged by the petitioner that such copies of the entries made in the ballot paper account had not been furnished to the polling agents of the petitioner, no polling agent has been examined to bolster such a stand. In the absence of any evidence to the contrary, it may be presmed that the official act must have been performed regularly. Though non-sending of ballot paper account in Form 16 by the concerned Presiding Officers is not a very happy situation, it cannot be said that merely because such form had not been sent by the presiding Officers in some of the booths, the result of the election has been materially affected.
9. Counting of ballot papers in six additional ballot boxes used during the polls has been similarly challenged on the ground of absence of form 16. It is claimed that since 261 polling booths had been admittedly established and 267 ballot boxes containing used ballots were counted at the time of counting, admittedly at least six additional ballot boxes had been used. It is admitted by P.W. 2 that only 258 number of ballot paper accounts in Form 16 had been sent. It is contended that apart from booth Nos. 42, 79 and 124, Mere admittedly ballot paper accounts in Form 16 were not available, six such ballot paper accounts in respect of six additional used ballot boxes were also unavailable. Of course, there is some controversy as to whether apart from 267 ballot boxes containing used ballot papers which had been counted, there was another ballot box, containing used ballot papers which had not been counted at all. Keeping aside, for the time being, the question as to whether, in fact, there was a missing ballot box containing used ballot papers which had not been counted, the contention of the petitioner regarding non-availability of Form 16 in respect of six additional ballot . boxes can be considered new. The inference of the petitioner that since only 256 members of ballot paper accounts in Form. 16 were available, there were six missing ballot paper accounts in respect of the booths where additional ballot boxes had been used, may not be correct. The use of second ballot box in a polling booth is envisaged in Rule 14(3) which envisages that where the first ballot box gets full, the same shall be closed, sealed and secured as provided in Sub-rules (1) and (2) whereafter another ballot box has to be used. Rule 45(2) envisages preparation of ballot paper account in Form 16 at the close of the poll. It is nowhere envisaged that a separate ballot paper account in Form 16 is to be prepared in respect of each used ballot box.
P.W. 2, the Returning Officer, in his evidence stated that in all 256 ballot paper accounts in Form 16 has been received from the various Presiding Officer and three ballot paper accounts in Form 16 were not available. No suggestion was made to him that ballot paper accounts in Form 16 in respect of six or seven ballot boxes (if the total number of used ballot boxes is taken to be 248) were also missing. Nothing has been elicited from him to indicate that the ballot paper account has to be prepared in respect of each used ballot box rather than in respect of each polling booth. In fact, in Ext. 11, the Presiding Officer's Diary is respect of polling booth No. 32, it had been indicated that two ballot boxes had been utilised. In the said Diary, it was also indicated that total number of votes was 371. I checked the correspending ballot paper account in Form 16 relating to polling booth No. 32 (though not formally marked as an exhibit) and verified that there also it was indicated that the total number of ballots to be found was 371. This rather indicates that the ballot paper account was prepared in respect of a booth and not in respect of each ballot box. Any way, in the absence of any categorical suggestion to P.W. 2 and any other clinching evidence to the effect that ballot paper account in Form 16 is also to be prepared in respect of each additional ballots box used, I negative the contention on behalf of the petitioner that ballot paper accounts in Form 16 were not found in respect of the additional ballot boxes used, as according to no such relevant entries had been made in the ballot paper account in Form 16 in respect of the booth itself.
Even assuming that such ballot paper account in Form 16 was not available in respect of the booths where the additional ballot boxes had been used, for the reasons already indicated, it cannot be said that such absence of ballot paper account in Form 16 has materially affected the result of the election, so far as it relates to the returned candidate.
10. It has also been pointed out that the evidence discloses that, in fact, additional ballot boxes had been used in seven booths and as such, in all 169 ballot boxes had been used for receiving the ballot papers, whereas only 267 ballot boxes have been brought to the counting hall for the purpose of counting. There is no dispute that, in fact, 267 ballot boxes had been brought to the counting hall. It is contended that since one ballot box containing used ballot papers was never counted, the result of election has been materially affected, imphasis has been laid on the provisions contained in Rule 56B(1) which provides that ballot papers should be taken out of all boxes used at the polling station and shall be mixed together and ascertained. Attention has been drawn to the provisions contained in Rule 56B(7) which emphasises that after the completion of counting of all ballot papers contained in all the ballot boxes used in a constituency, the Returning Officer shall make entries in the result sheet in Form 20. It is contended that since all the ballot papers contained in all the ballot boxes had not been counted, there has been infraction of Rule 58B(1) and (7) vitiating the result of the election.
The learned counsel appearing on behalf of the respondent No. I has vehemently opposed this submission. He has contended that in the absence of any whisper in the election petition regarding non-counting of ballots in another ballot box, this contention raised for the first time in course of hearing of the election petition should not be entertained. While objecting to the consideration of the question relating to "the missing ballot box" the learned counsel for respondent No. 1 has placed reliance upon the decision reported in AIR 1995 SC 1284; Gajanan Krishnaji Bapat v. Datlaji Gaghobaji Meeha. He has contended that the High Court should not consider any evidence which is beyond the pleadings of the parties. It is contended that in the absence of any pleading regarding the so-called missing ballot box, the stray evidence on record in the form of evidence of P.W. 3 and P.W. 14 and the entries in the Presiding Officer's Diary, should not be considered specially when no such contention had been raised during the counting, after counting when application for accounting was made before the Returning Officer and in the election petition. Alternatively, he submits that even assuming that a ballot box containing some ballot papers had not been counted, in the absence of any material regarding the number of ballot papers contained in such missing ballot box, it cannot be said that the result of the election has been materially affected.
11. I doubt if the mystery of the so-called missing ballot box deserves to be unravelled in this case in the absence of necessary pleadings. In the election petition, there is no whisper that, in fact, 269 ballot boxes had been used for receiving ballot papers out of which one ballot box was never counted. As provided under Section 33(1)(a) of the Act, an election petition must contain a concise statement of material facts on which the petitioner relies. The petitioner has urged that since it is evident from the documentary evidence, namely the Presiding Officer's Diary that seven additional ballot boxes had been used in seven booths and admittedly only 267 ballot boxes had been counted, the said fact should be taken into consideration. The learned counsel has further submitted that the election petition, in fact, contains a concise statement of material facts relating to non-compliance of the provisions of the Election Rules. Such contention of the learned counsel for the petitioner is not acceptable. In the absence of any averment in the election petition, the question as to whether, in fact, such a ballot box was used and had not been opened for the purpose of counting cannot be considered and even assuming that any evidence is there, the same cannot be looked into.
12. Even on the state of evidence on record, it cannot be said with certainty that a ballot box containing used ballot papers was, in fact, missing. No doubt, P.W. 3 in his evidence stated that there were 260 used ballot boxes, which statement he claimed to have made on the basis of official record. The Returning Officer (P.W. 2) has categorically stated that only 267 used ballot boxes has been received for which appropriate receipt had been granted. In the petition for recounting filed on behalf of the petitioner just one day after the declaration of the result, no allegation had been made about any missing ballot box. It cannot be said that if, in fact, an additional ballot box had been used in a polling booth and was not accounted for, the same was not within the knowledge of the petitioner, so evidently the use of additional ballot box must have been done in the presence of polling Agents. Absence of any allegation in the petition for recounting filed before the Returning Officer as well as in the election petition itself coupled with the categorical evidence of P.W. 2, raises enough doubt regarding the veracity of such a contention raised in course of hearing only on the basis of the entries made in the Presiding Officers Diaries and some stray statements in the oral evidence of P.W. 3. Merely proving the concerned Diaries through the mouth of P.W. 3, an official witness, who neither had made the entries nor even was acquinted with the handwriting of the maker of the entries, does not vouchsafe for the correctness of the entries and the possibility of a mistake cannot be ruled out specially when it is found that is Ext. 15, the number "660" has been mentioned against the column meant for indicating the number of ballot boxes used.
13. Even assuming that, in fact, such a ballot box containing used ballot papers was missing and was not counted at the time of declaration of result, the effect of such non-counting may be considered. There cannot be any doubt that all the ballot papers received in the ballot box must be counted and non-counting of all ballot papers is definitely an illegality. Even then, merely because there is such illegality, the election of a returned candidate cannot be declared to be void. As has been repeatedly held in a series of decisions of the Supreme Court, the right to challenge the election of a candidate flows only from the provisions contained in the Act and the Rules and not from any principle of common law. Section 100 of the Act envisages the grounds on which election of a returned candidate can be declared as void. The contention now urged should be decided with the touch-stone of the principles unvisaged under Section 100(1)(a) (iii) and (iv) of the Act. The relevant provisions are extracted hereunder:--
" 100. Grounds for declaring election to be void.
(1) Subject to the provisions of sub-section (2) if the High Court is of opinion-
(a) to (c) *****
(d) that the result of the election, in so far as it concerns a returned candidate, has been categorially affected-
(i) to (ii) *****
(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 ruled or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
Not counting any vole may amount to refusal of any vote as envisaged in Clause (iii). At any rate, non-counting of a vote definitely amounts to non-compliance with the provisions of the Rules. Even then, unless it is shown that the result of the election so far as it concerns the returned candidate has been materially affected, mere non-compliance of the provisions of the Act or the Rules cannot be a ground to declare the election of the returned candidate to be void. From the evidence on record, it is not established as to which particular booth the so-called missing ballot box relates. It is not established as to how many ballots were, in fact, put inside the so-called missing ballot box. It was open to the petitioner to ascertain and prove such facts by taking steps to examine the concerned Presiding Officers as well as the Electoral Roll used by the Presiding Officers. It is contended that a ballot box can contain 1400 ballots, as has been stated by P.W. 2, the returning officer. From this it cannot be assumed that the missing ballot box most have contained 1400 ballots. The number of such ballots in the so-called missing ballot box could have been anything from 1 to 1400. In the absence of any allegation in the election petition and in the absence of any concrete evidence, it cannot be assumed that the election so far as it concerns the returned candidate has been materially affected for the so-called non-counting of the missing ballot box. In view of the aforesaid discussion, I hold that the petitioner has failed to prove that the election of the returned candidate has been materially affected by the non-compliance of the provisions of Rules 55B, 56B and 57B of the Rules and by non-availability of the ballot paper accounts in Form 16 and by the so-called omission to count all the ballot boxes.
14. It has been contended that the Returning Officer has not signed on Para II of the ballot paper account in Form 16 and as such there is an infraction of the mandatory rules, P.W. 2, the Returning Officer has admitted in his evidence that he has not signed on Part II of Form 16. It is, of course, true that the non-signing of Part II of Form 16 amounts to an irregularity. However in my considered opinion, since there is no evidence on record to indicate that such infraction of the rule has materially affected the result of the election so far as the returned candidate is concerned, the election cannot be set aside on this ground. Issues Nos. 4 and 7:--
15. These two issues relate to illegalities and errors allegedly committed in course of counting and being inter-related are taken up together. The petitioner has alleged that in course of counting 26 or 27 ballot papers in favour of the petitioner were being kept in four bundle of 25 and in the process, the petitioner was losing one or two ballot papers. Similarly, it has been alleged that 23 or 24 ballot papers in favour of respondent No. 1 were being kept in a bundle supposed to be containing 29 number of ballot papers, and as such, respondent No. 1 was gaining one or two votes in the process, this assertion of the petitioner has been denied by respondent No, 1 in his written statement. In the election petition, it has been asserted that such irregular counting has taken place in respect of 790 bundles. This assertion has been sought to be proved through the mauth of P. Ws. 7, 8, 9, 11, 12 and 13 who were the counting agents of the petitioner in Table Nos. 11, 13, 15, 5, 6 and 12 respectively. It is contened that since the evidence of the aforesaid witnesses has not been taken in cross-examination and has not been rebutted, such evidence should be accepted and it should be concluded that such mistake occurred in about 143 to 149 bundles of petitioner where 26 or 27 ballots had been kept. It is, therefore, contended that in the process the petitioner has lost about 699 valid votes which should have been counted in his favour. Similarly, it is contended that there should be corresponding decrees in the ballot papers counted in favour of respondent No. 1 as 21 or 24 ballot papers in favour of respon- dent No. 1 were being counted as 25. The aforesaid submission of the learned counsel for the petitioner has been countered by the counsel for respondent No. 1. It is contended that such bald, uncorroborated assertion of the witnesses, who being the counting agents of the petitioner were admittedly interested witnesses, should not be accepted. It is further submitted that if, in fact, such wrong counting was being done, in ordinary course the counting agents would have protested in writing before the counting Supervisor and, at any rate, the counting agent at the central table should have protested before the officials. The evidence of oral protest is very shaky and in the absence of any contemporaneous protest in writing it is hard to accept such oral evidence that, in fact, 26 or 27 ballot papers in favour or the petitioner were being kept in bundles supposed to contain 24 ballot papers and similarly, 23 or 24 ballot papers in favour of respondent No. 1 were, in fact, being counted as 25. If, in fact, less number of ballots is favour of respondent No. 1 were being counted as 25, in ordinary course, the agents of the other candidates specially that of Congress candidate who was running neck to neck with the petitioner and respondent No. 1. would have also protested. In the absence of any acceptable evidence of contemporaneous protest, it is not possible to accept such contention of the petitioner. Moreover, there is discrepancy in such evidence, in the sense that while some of the counting, agents examined as witnesses have stated that they could not disclose about such irregularity before the counting agent at Central Table as they could not leave their respective counting tables, whereas P.W. 14 the counting agent of the petitioner, at the Central Table, has claimed that he was told about such irregular counting by the various counting agents. If actually, he knew about such irregular counting while the counting was going on, it was expected of him to file written protest immediately. In view of the aforesaid discussion, the contention raised on behalf of the petitioner regarding irregularity in counting cannot be accepted.
16. It has been next contended that admittedly during the second phase of counting, that is to say at the time of actual counting of ballots candidate-wise, a bundle containing 25 ballots was found missing in Table No. 7 in the eighth round of counting. It is claimed that this bundle of 75 ballot papers was in favour of the petitioner in fact, from the evidence of P.W. 2, the Returning Officer, it is apparent that one bundle containing 25 ballots was found to be missing. Though it is not possible to come to a definite conclusion that, in fact, the bundle contating 35 ballots was in faovur of the petitioner, even assuming it to be so, it does not materially affect the result of the election, keeping in view the marging of 803 votes by which the respondent No. 1 was declared elected. In other words, even if the aforesaid 25 ballots are counted in favour of the petitioner, the same will not make any difference in the ultimate result, keeping in view the margin of difference between the votes secured by the petitioner and the successful candidate, i.e. respondent No. 1.
17. It is claimed by the petition that though P.W. 14, the counting agent of the petitioner at the Central Table, has filed an application for recounting, the same was not accepted by the Assistant Returning Officer and ultimately the same was filed before the Returning Officer on the next day. The oral evidence of P.W. 14 to the effect that though he offered to file a petition for recounting, the same was not accepted by the Assistant Returning Officer, does not receive corroboration from any other source. The official witnesses examined on behalf of the petitioner was P.Ws. 2 and 3 have not supported this stand. The petition for recounting was filed on the next day after the election result has been declared. The said petition for recounting was rejected by P.W. 2, the Returning Officer.
A prayer has been made in this Court for recounting of the ballot papers. Relying upon the decision of this Court reported in AIR 1993 Orissa 223 (Smt. Nokka Bhihyaman v. Sri Aurvindo Dhali) which has taken note of several decisions of the Supreme Court, it has been contended on behalf of respondent NO. 1 that inspection of ballot boxes and recounting should not be ordered for the mere asking. It is submitted that before directing for inspection of ballot boxes and recounting, the Court must be satisfied that the election petition contains adequate statement of all material facts on which the allegations of irregularity or illegality in counting are founded and the Court should be further satisfied on the basis of evidence adduced that the allegations regarding irregularity or illegality in counting have been prima facie established. Combating this position, the learned counsel for the petitioner shas submitted that concise statement of facts as required under Section 81 of the Act has been made in the petition and in view of the various irregularities in the process of counting as evident from the fact that there were discrepancies in the ballots found by comparing with entires in Form-16, 25 ballots were missing and number of errors have been committed while actual counting took place, it is a fit case where recounting should be ordered. The missing of one ballot box which is very much disputed and the missing of 25 ballots which is not disputed, cannot be a ground for recounting as things will not improve why even if recounting is ordered, since it is not the case of the petitioner, nor is there anything on record to indicate that in the meantime, in fact, the so-called missing ballot box has been re-discovered or the missing ballot papers, 25 in number, have been found out. Since I am not prima facie satisfied about the veracity of the allegation that, in fact, one or two more ballot papers in favour of the petitioner were being kept in a bundle supposed to contain 25 ballots and correspondingly 23 or 24 ballot papers in favour of respondent NO. 1 were counted as 25, keeping in view the principle of law enunciated by the Supreme Court as well as by this Court. I do not consider that a strong case has been made out for directing recounting of ballots. Accordingly, these two issues are decided against the petitioner.
Issues Nos. 3 and 8:--
18. In view of the conclusions reached above the election of respondent No. 1 cannot be therefore void and the prayer of the petitioner that he should be declared duly elected cannot be accepted. These two issues are accordingly (replied) against the petitioner.
19. In the net result, I find no merit in this election petition which is accordingly dismissed with token cost of Re. 1/- to respondent No. 1 alone.