Orissa High Court
Kanak Vardhan Singhdeo vs Sri Bibekananda Meher And Ors. on 11 January, 1991
Equivalent citations: AIR1991ORI231, AIR 1991 ORISSA 231
Author: G.B. Patnaik
Bench: G.B. Patnaik
ORDER G.B. Patnaik, J.
1. An unsuccessful candidate from 108 -- Patnagarh Assembly Constituency in the election held on 27-2-1990 for the Orissa Legislative Assembly is the petitioner invoking the jurisdiction of this Court under Section 81 read with Sections 100 and 101 of the Representation of the People Act, 1951 (hereinafter referred to as the "Act") praying therein to declare the election of respondent No. I as void and to declare the petitioner to have been duly elected having secured a majority of the valid votes after allowing inspection of ballots and making a recount of the same. The main ground on which the petition has been filed is that the result of the election has been materially affected due to improper reception, refusal or rejection of votes.
2. The averments made by the petitioner in the petition are that the election to the Patnagarh Constituency took place on 27-2-1990 and the counting of votes was held in Jawaharlal College Campus at Patnagarh on 28-2-1990. In course of counting of votes the counting supervisors and the counting assistants to the knowledge and with the connivance of the Returning Officer and with open support and inducement from respondent No. I and his election agent Shri Padmalochan Panigrahi freely and fearlessly indulged in rampant improper reception and refusal or rejection of votes. Objections raised by the Election agent of the petitioner as well as his counting agents yielded no fruitful result. On the other hand, the election agent and counting agents of the petitioner were threatened by the election agent and counting agents of respondent No. 1 with dire consequences. Though a written complaint had been lodged by the election agent of the petitioner to the Returning Officer, the same was not received. In the process of counting large number of ballots which had been cast in favour of the petitioner were improperly rejected. Similarly, large number of ballots cast in favour of the petitioner or respondent No. 3 or respondent No. 4 were improperly counted in favour of respondent No. 1 and large number of ballots which were liable to be rejected on account of double marking were improperly received and counted in favour of respondent No. 1. The counting agents of the petitioner were not given opportunity to inspect such ballot papers. After the counting was over and the announcement was made by the Returning Officer with regard to the total number of votes polled by each candidate, the petitioner had asked the Returning Officer for a recount and the Returning Officer had allowed him twenty minutes' time to make a written application. While the petitioner was busy in scribing the application, the supporters of respondent No. 1 entered inside the counting arena and prevented the petitioner from presenting the written application demanding for a recounting. Simultaneously those supporters of respondent No. 1 forced the Returning Officer to declare the results of election and the Returning Officer being so influenced hurriedly declared respondent No. 1 as duly elected and thereby prevented the petitioner from filing an application for recounting. It was further alleged that the result of the election has been materially affected by improper reception refusal or rejection of at least, 3,036 votes, inasmuch as:--
"(i) Out of 1558 ballots rejected, in the marks given in at least 381 ballot papers the intention of the elector to cast his vote in favour of the petitioner is clearly indicated and the said at least 381 ballot papers containing valid votes in favour of the petitioner, instead of being received and counted in favour of the petitioner have been illegally and improperly rejected on flimsy and untenable grounds, in spite of specific objections by the counting agents of the petitioner.
(ii) At least 372 valid votes cast in favour of the petitioner have been illegally and improperly received and counted in favour of the respondent No. 1, instead of receiving and counting in favour of the petitioner.
(iii) At least 563 bellot papers containing valid votes and with clear marking more in the side of the respondent No. 4 which should have been received and counted in favour of the respondent No. 4 have been illegally and improperly received and counted in favour of the respondent No. 1.
(iv) At least 927 ballot papers containing valid votes with clear marking on the side of the respondent No. 3 which should have been received and counted for respondent No. 3 have been illegally and improperly received and counted in favour of respondent No. 1.
(v) At least 793 ballot papers containing no marking on the symbol of the respondent No. 1 or on his name but with marking on the reverse side of the ballot papers and ballot papers with double marking, marking not indicating the intention of the elector and ballot papers with no markings at all, though should have been rejected or refused have been illegally and improperly received and counted in favour of the respondent No. 1."
Accordingly it is averred that 2,655 votes have been improperly received and counted in favour of respondent No. 1 while 381 valid votes of the petitioner have been improperly and illegally rejected and another 372 valid votes cast in favour of the petitioner which should have been received and counted in favour of the petitioner have been illegally and improperly received and counted in favour of respondent No. 1. A statement showing improper reception, refusal or rejection of votes is enclosed as Schedule to the petition which is of five sheets. The petitioner asserts that in view of the actual votes polled by the petitioner and respondent No. 1, the election of respondent No. 1 is liable to be declared invalid and on inspection, scrutiny and recounting of the ballot papers, the petitioner would be declared to have received the majority of the valid votes and is entitled to be declared as duly elected. On these averments the petitioners has sought for the relief as already stated.
3. Respondent No. 1 filed his written statement denying the allegations made in the election petition. It has been pleaded in the written statement that the election petition does not satisfy the requirements of Sections 81, 82, 83 and 117 of the Act and the petition has not been properly presented and it' does not contain a concise statement of material facts of the allegations as required under Section 83(1)(a) of the Act. It has also been averred that non-filing of copy of the challan along with the election petition that was served on the respondent vitiates the election petition as there has been an infraction of Section 81(3) of the Act. It has been further pleaded that though the signature of the petitioner appears in every page of the copy served on the respondent, but there has been no endorsement to the effect that the copy served is a true-copy of the original election petition and, therefore, the petition is liable to be rejected under Section 86 of the Act. So far as the allegations regarding improper rejection of valid votes and improper acceptance of the same are concerned, respondent No. 1 has pleaded that the detailed particulars of the votes disclosing the exact number of the ballot paper and particulars of illegality or irregularity committed with respect to each individual ballot paper not being there, the petition is liable to be rejected. It is also contended that the Returning Officer, nor the counting staff being made parties who are necessary parties under Section 82 of the Act, the election petition is liable to be rejected. With regard to the prayer of inspection and recounting, the respondent No. 1 has pleaded that no prima facie case having been made out, much less any sufficient ground, for inspection or recounting having been made, the Court should not interfere with the secrecy of ballot paper by allowing the petitioner to have a roving enquiry. Each and every allegation of the alleged improper acceptance and improper rejection of valid votes made in the election petition has been denied. So far as the allegation of written complaint being handed over to the Returning Officer was not accepted and was refused is concerned, respondent No. 1 avers that the same is not only untrue and false, but also is scandalous and has been designedly concocted. Respondent No. 1 also denies the allegation that his supporters rushed into the counting hall and physically pushed out the petitioner, his election agent and counting agents and unlawfully prevented the petitioner from presenting the petition for recounting and also forced the Returning Officer to declare the results without awaiting further for presentation of the application for recounting. A xerox copy of the true-copy of the result-sheet declared in Form-20 under Rule 56(7) of the Conduct of Elections Rules, 1961 (hereinafter referred to as the "Rules") is annexed as Annexure-A to the written statement.
4. Respondents 2, 3 and 4 did not appear in spite of valid service of notice and were accordingly set ex parte by order dated 21-9-1990.
5. On the pleadings of the parties, following five issues were framed :--
ISSUES
1. Whether the election petition as filed is maintainable in law?
2. Whether there has been any infraction of any statutory provision which makes the petition liable to be rejected in limine ?
3. Whether the election of the returned candidate, respondent No. 1, has been materially affected due to improper reception, refusal or rejection of any valid vote and as such is void ?
4. Whether the petitioner has received majority of valid votes and is thereby entitled to be declared elected ?
5. To what relief, if any, the petitioner is entitled ?
FINDINGS
6. The petitioner in all examined 8 witnesses. Respondent No. 1 in all exmained 6 witnesses. On behalf of the petitioner 9 documents were exhibited as Exts. 1 to 9. On the basis of the materials on record, both oral and documentary and keeping the legal position in view, I shall proceed to decide the issues raised in the case.
7. Issues Nos. 1 and 2 :--
These two issues being inter-linked are discussed together. Under these two issues, respondent No. 1 challenges the maintainability of the election petition on grounds of no proper presentation; non-mention of concise statement of material facts; non-service of copy of challan on respondent No, 1; non-endorsement in each page of the election petition to the effect that the same is a true copy; and no proper verification in the eye of law. It has also been urged that the Assistant Returning Officer not having been made a party to the election petition in view of the allegations made, the petition is liable to be rejected.
8. Coming to the first objection, namely there has been no presentation in the eye of law, respondent No. 1 has averred in paragraph-2 of the written statement that the election petition has not been properly presented, as required to be presented under Section 81 of the Act. Section 81 provides 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 Seciton 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. Under the Rules framed by the Orissa High Court to regulate the proceedings under the provisions of the Act, Rule 4 enjoins that the election petition shall be presented either in person or by an advocate duly authorised by the party concerned to the Registrar or in his absence to the Deputy Registrar, Additional Deputy Registrar or the Assistant Registrar during usual office hours of any working day. The objection of respondent No. 1 is that there is no endorsement on the election petition showing that the same had been presented either in person or by an advocate duly authorised by the party concerned and the endorsement of the Registrar merely says "Presented". The question that arises for consideration, therefore, is whether there has been a proper presentation of the election petition by the candidate or by the Advocate duly authorised by the candidate. It is not the case of the petitioner that he had authorised any advocate to present the election petition. His positive case is that it is he who presented the election petition. The question of presentation within the ambit of Section 81 came up for consideration before the Supreme Court in the case of Sheodan Singh v. Mohan Lal Gautam, AIR 1969 SC 1024. In that case, the petition had been presented to the Registry by the advocate's clerk in immediate presence of the petitioner. Their Lordships of the Supreme Court held :--
"..... Therefore, in substance though not in form, it was presented by the petitioner himself. Hence the requirement of the law is fully satisfied."
A similar question came up for consideration before the Lucknow Bench of the Allahabad High Court in the case of Ram Harsh Misra v. Sukhad Raj Singh, AIR 1976 All 47, and following the decision of the Supreme Court in Sheodan Singh's case, referred to supra, it was held that where an election petition had been handed over to the Bench Secretary of the Court under the direction of the Court by the Advocate of the petitioner in the immediate presence of the petitioner, the presentation was valid. Bearing in mind the aforesaid principle, let me now examine the evidence on record.
P.W. 1 is the candidate himself. In paragraph-1 of the evidence, he has categorically stated that he appeared before the Oath Commissioner accompanied by his counsel and made the necessary affidavit and from there he proceeded to the office of the Registrar, Orissa High Court, situated on the first floor of the High Court building and personally presented the application to the said Registrar. Advocate Shri Vikram Senapati was with him both when he swore the affidavit before the Oath Commissioner as well as when he presented the application to the Registrar. During his cross-examination, 1 had called the Registrar (Administration) Shri Panigrahi to Court and asked the election petitioner as to whether he presented the application to Shri Panigrahi and the petitioner immediately answered in the affirmative, but later on said that he was not in a position to remember as to whether he had presented the application to Shri Panigrahi or not. The petition was to be presented before the Registrar (Judicial) and it bears the endorsement "presented" by the Registrar (Judicial). Though the witness has been cross-examined at great length, but there has been no cross-examination with regard to the fact whether he himself presented the election petition. Petitioner's advocate Shri Vikram Senapati has also been examined as P.W. 7. He states in his evidence that the candidate himself presented the election petition before the Registrar and the Registrar endorsed in his presence as "Presented". The endorsement of the Registrar on the election petition has been exhibited as Ext. 9. Nothing has been brought out from his cross-examination to impeach his testimony regarding presentation of the election petition. The candidate himself had filed an affidavit on I8th of May, 1990, on the advice of his counsel stating therein that he had personally presented the election petition before the Registrar. The said affidavit has been marked as Ext. 1. The affidavit of Shri Vikram Senapati, counsel for the candidate, on the same day has also been exhibited as Ext. 2. There is no manner of doubt that the candidate himself had come to the High Court on 13-4-1990 and had sworn the affidavit before the Oath Commissioner which is apparent from page 14-A of the election petition. In the premises, as aforesaid, I have no hesitation to hold that the election petition has been properly presented and the Registrar on account of lack of experience had not made the endorsement to the effect that the petition was presented by the candidate himself and merely wrote "Presented". There has been no evidence led on behalf of respondent No. I to indicate that the petitioner did not present the petition before the Registrar. In the premises, as aforesaid, I hold that the election petition had been presented by the candidate himself before the Registrar and as such there has been no infraction of any provision of the Act on that score.
9. The next question that arises for consideration is whether the election petition can be said to be vitiated as it does not contain a concise statement of the material facts on which the petitioner relies. Section 83(1)(a) of the Act enjoins that an election petition shall contain a concise statement of material facts on which the petitioner relies. Respondent No. 1 in his written statement has averred that the petition does not contain a concise statement of material facts of the allegations and the allegations regarding illegality and irregularity in counting are vague and unspecific and the detailed particulars of the votes disclosing the exact number of ballot papers and particulars of illegality or irregularity committed with respect to each individual ballot paper either in accepting it or in rejecting it have not been given and the petition is liable to be dismissed on that score alone. This question came up for consideration before the Supreme Court in the case of Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201. Hidayatullah, C.J., who delivered the judgment very lucidly brought out the distinction between "material facts" and "particulars". After considering the provisions of Sections 81, 83 and 86 as well as of Sections 100 and 101 of the Act, it was observed (at page 1212 of AIR 1969 SC) :--
"..... Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible if the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between 'material facts' and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. ....."
In the case of Manphul Singh v. Surinder Singh, AIR 1973 SC 2158, the provisions of Section 83(1) of the Act and Order 6, Rule 2, Code of Civil Procedure, came up for consideration. It has been held by their Lordships that under Section 83(1)(a) of the Act, an election petition is required to contain a concise statement of material facts on which the petitioner relies and not the full particulars, which is the requirement of Section 83(1)(b). Their Lordships have further held that to hold that an election petition should contain not only the material facts, but also the evidence on which he relies to prove those material facts would be directly contrary to the provision of Order 6, Rule 2 of the Code of Civil Procedure and the said provision applies to all election petitions.
In the case of Udhay Singh v. Madhav Rao Scindia, AIR 1976 SC 744, their Lordships of the Supreme Court have considered Sec, 83 of the Act and reiterated the distinction between "material facts" and "particulars", and have held that all the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are "material facts'. It has been further held that whether in an election petition, a particular fact is material or not and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case and, in short, all these facts which are essential to clothe the petitioner with a complete cause of action are "material facts" which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. "Particulars", on the other hand, are the details of the case set up by the party and "material particulars" within the contemplation of Clause(b) of Section 83(1) would, therefore, mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). "Particulars" serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative. In this case their Lordships have taken notice of the provisions of Rules 2,4 and 6 of Order 6 of the Code of Civil Procedure and have held that a pleading has to be read as a whole to ascertain its true import and it is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. It is the substance not merely the form that has to be looked into and the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.
The question has again been considered in the case of Arun Kumar Bose v. Mohd. Furkan Ansari. AIR 1983 SC 1311. Having examined the averments made in the election petition, their Lordships have held that where the number of ballot papers alleged to have been wrongly rejected have been furnished, the counting table number has been given, the booth number has also been disclosed and the ground for rejection has even been pleaded and it is further pleaded that the particulars of the ballot papers could not be obtained as during the counting they were not shown, it must be held that material facts in a proper way had been stated and no defect can be found out with the election petition.
10. Mr. Misra for the respondent No. 1 strongly relies upon the decision of a learned single Judge of Delhi High Court in the case of Pritpal Singh v. Ranjit Rai, AIR 1984 Delhi 198, wherein the learned Judge has held that a concise statement of material facts being a sine qua non of an election petition and where the election petitioner alleging improper rejection of certain number of valid votes cast in his favour gave only the break-up of the improperly rejected votes at each counting table but neither the serial number of the ballot papers which were, according to him, wrongly rejected by the Returning Officer was given, nor the reasons for their rejection had been given or the polling station where it was cast had been given, the pleading lacked in material particulars and the petition did not disclose any cause of action. The observations made by the learned Judge of the Delhi High Court were in relation to the prayer for recounting and not an enunciation of law of Section 83(1)(a) of the Act. As has been stated by their Lordships of the Supreme Court that whether in a given fact there has been a concise statement of material facts within the ambit of Section 83(1)(a) of the Act depends upon the nature of the allegations made in the petition and the information supplied therein. In view of the decisions of the Supreme Court, referred to earlier, the ratio of the decision of the Delhi High Court has at all no application to the facts and circumstances of the present case.
11. Bearing in mind the principles laid down by their Lordships of the Supreme Court in the aforesaid cases, I shall now examine the averments made in the election petition to find out whether the petition can be said to be defective for non-furnishing of a concise statement of material facts. The petitioner has disclosed that the election result in favour of respondent No. 1 has been materially affected by the improper reception, refusal or rejection of at least 3036 votes, inasmuch as out of 1558 ballots rejected, at least 381 ballot papers indicated the intention of the elector to cast the vote in favour of the petitioner and instead of counting the same in favour of the petitioner, the same were illegally and improperly rejected in spite of specific objection by the counting agents. It is also stated that 372 valid votes cast in favour of the petitioner have been improperly received and counted in favour of respondent No. 1. It is further contended that 563 ballot papers with clear marking more on the side of respondent No. 4 which should have been received and counted in favour of respondent No. 4 were illegally and improperly received and counted in favour of respondent No. 1 and 827 ballot papers containing valid votes with clear mark on the side of respondent No. 3 which should have been received and counted in favour of respondent No. 3 have been illegally and improperly received and counted in favour of respondent No. 1. It is further averred that at least 793 ballot papers containing no marking on the symbol of respondent No. 1 but with marking on the reverse side of the ballot paper, as well as ballot papers with double marking thereby not indicating the intention of the elector which should have been rejected were improperly received and counted in favour of respondent No. 1 and in the process, 2655 votes have been improperly received and counted in favour of respondent No. 1 while 381 valid votes of the petitioner have been illegally and improperly rejected and 372 valid votes which had been cast in favour of the petitioner were counted illegally in favour of respondent No. 1 and in the ultimate analysis, at least 2655 votes having been illegally and improperly received and accepted and counted in favour of respondent No. 1, respondent No. 1 could get elected by a margin of 1925 votes, whereas on proper counting the petitioner should have been declared to be duly elected having secured 26,800 valid votes. A statement in five sheets showing improper reception, refusal or rejection of votes is enclosed as schedule to the petition. The Schedule contains the number of votes in each table in each round which were either improperly accepted or rejected and the number of votes which were to be rejected but were counted in favour of respondent No. 1, the number of votes which were to be counted in favour of respondent No. 3 were counted in favour of respondent No. 1, the number of votes which were to be counted in favour of respondent No. 4 were illegally counted in favour of respondent No. 1; the number of votes which were to be counted in favour of the petitioner were improperly and illegally rejected and the number of votes which were to be counted in favour of the petitioner were illegally counted in favour of respondent No. 1. In the premises, as aforesaid, I am unable to accept the submission of the learned Counsel for respondent No. 1 that there has been no concise statement of material facts and in my opinion, the election petition will not fail on that score, inasmuch as the petitioner has given a concise statement of material facts on which he relies.
12. Another objection of respondent No. 1 to the maintainability of the election petition is that the copy of the challan showing deposit of Rs. 2,000/- not having been served on the respondent, there has been an infraction of Section 31(3) of the Act and, therefore, the petition is liable to be rejected. In paragraph-4 of the written statement, respondent No. 1 has averred that the challan showing deposit of Rs. 2,000/ - became a part of the election petition in view of the averment made in paragraph-12 of the election petition and since the said challan has not been served on the respondent along with the election petition, the requirements of Section 81(3) have not been fulfilled. Under Sub-section (3) of Section 81, every election petition is required to 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. Section 83(2) stipulates that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. The requirement of deposit towards security is on account of Section 117 which provides 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 Rupees 2,000 /- as security for the cost of the petition. Rule 5 of Chapter-33 of the High Court Rules which deals with election cases provides that the election petition must indicate that security for costs has been deposited as prescribed under Section 117 of the Act. There is no dispute that the said amount of Rs. 2,000/- has been deposited and in fact, the election petition contains the averment on the very page itself to the effect that Rs. 2,000/- was deposited on 12-4-1990 under Challan No. 21 dated 12-4-1990. The contention of respondent No. 1, however, is that though there has been such an averment in the election petition, but copy of the challan should have been served on the respondent and non-service of such copy of challan amounts to non-service of a copy of the complete election petition and as such it attracts the mischief of Section 86 for non-compliance of the provision of Section 81(3) of the Act. It is difficult for me to accept this contention of respondent No. 1, inasmuch as there is no requirement of Section 81 that the challan showing deposit of Rs. 2,000/- shall also be served on the respondent. That apart, the copy of the election petition that was served on respondent No. 1 has not been exhibited and respondent No. 1 who has been examined as R.W. 1 nowhere also utters a word that the challan in question has not been served upon him. In the premises, as aforesaid, not only non-service of challan on the respondent is of no consequence but also there is no material for the Court to come to a conclusion that there has been non-service of the challan in question. The election petition cannot, therefore, fail on that score.
13. The next objection of respondent No. 1 is that there has been no endorsement in each page of the election petition that the same is true copy of the original and, therefore, the election petition is liable to be rejected in limine. Section 81(3) is the relevant provision in this regard which stipulates that every copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The said provision nowhere indicates that the attestation to be true copy of the petition must be in every page of the election petition. In order to appreciate the contention raised by respondent No. 1, the respondent has not produced any material. The copy of the petition that was served on the respondent has not been marked though respondent No. 1 was examined as R.W. 1. In the examination also said R.W. 1 has not breathed a word about the alleged infirmity to the effect that every page of the copy was not attested to be true copy. Thus, there has been no material on record to know as to what was the copy that was served on the respondent and whether it contained the attestation by the petitioner under his own signature to be a true copy of the petition or not.
A similar question came up for consideration before the Supreme Court in the case of Ch. Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027, where the election petition that was filed was accompanied by the number of copies required to accompany the petition under Section 81(3) and the election petition was type-written and the copies which accompanied the petition were carbon copies of the type script. The copies also bore the signature in original of the election petitioner authenticating the contents of the election petition as well as the verification thereof, but the petitioner had not inserted the words "true copy" before or above his signature and the question arose whether there had been non-compliance of Section 81(3) of the Act. Their Lordships hold (at page SC 1033; AIR 1964):--
"If the signature of the petitioner whose name was set out in the body of the petition was appended at the end, surely it authenticated the contents of the document. If the signatures now found on the copies were intended to authenticate the document to which it was appended viz., the copy, it would only mean that the copy did not reproduce the signature in the original. There was no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances there had been substantial compliance with the requirement of Section 81(3) in the petition."
(quoted from the headnote) This decision was followed in the case of Dr. Anup Singh v. Shri Abdul Ghani, AIR 1965 SC 815. It was contended in that case that the attestation required by Section 81(3) was not there specifically on the copies that were served on the respondents and, therefore, it had been urged that there had been infraction of Section 81(3) of the Act. The Supreme Court rejected the said contention on a finding that there had been substantial compliance of the provision and the petition could not be dismissed under Sub-section (3) of Section 90. In the premises, as aforesaid, even on the question of law, there is no requirement that in every page of the copy that is accompanied with the election petition, there must be an attestation by the petitioner that the same is a true copy. It is not disputed that the copies which were filed along with the election petition were attested by the petitioner to be a true copy of the petition under his own signature, but the same was only at the end of the petition. In my considered opinion, there has been no infraction of Sub-section (3) of Section 81 even if there has been no attestation in every page but only at the end of the petition. However, since the necessary materials to adjudicate upon the afoesaid grievance are not on record, it is not necessary to further delve into the matter. The objection of respondent No. 1 on this score must accordingly be rejected.
14. The next objection of respondent No. 1 is that each of the pages of the Schedule appended to the election petition has not been separately verified and, therefore, there has been an infraction of Section 81(3) of the Act and consequently, the petition is liable to be rejected under Section 86. The necessary averments in this regard have been made in paragraph-7, of the written statement. The aforesaid objection at the outset proceeds under a misconception that each page of the Schedule is a different schedule by itself. The petitioner at the end of the Schedule has made a verification stating therein that the facts stated in the Schedule (five sheets) to the election petition are based upon informations received from the election agent and respective counting agents present at the counting of votes on 28-2-1990 for 108 Patnagarh Assembly Constituency at the Jawaharlal College which the verificant believes to be true and correct. Since it is only one Schedule which contains five sheets, there is no requirement of law that the verification must be in each page of the Schedule.
In the case of M. Kamalam v. Dr. V.A. Syed Mohammed, AIR 1978 SC 840, their Lordships of the Supreme Court considering Section 81(3) of the Act held thus (at page 844 SC; AIR 1978):--
"Now, it is true that no signature was appended by the appellant on the copy of the election petition proper and the signature was placed only at the foot of the copy of the affidavit, but that in our opinion, was sufficient compliance with the requirement of the last part of Sub-section (3) of Section 81. The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put her signature at the foot of the copy of the affidavit, it was tantamount to appending signature on the copy of the election petition. The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao's case, AIR 1964 SC 1027 (supra), that the signature ia made by the petitioner by way of authenticating the document to be a true copy of the election petition. Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition. In fact, the copy of the affidavit constituted the end portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part of Sub-section (3) of Section 81 was complied with by the appellant inasmuch as the copy of the election petition was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which formed part of the copy of the election petition. The High Court was clearly in error in dismissing the election petition under Sub-section (1) of Section 86."
In view of the aforesaid authoritative pronouncement of the Supreme Court on the law on the subject, the objection of respondent No. 1 hardly deserves any further consideration and the same must be rejected.
15. In course of hearing of the case, Mr. Mishrafor respondent No. 1 had raised a point that page 14-A of the election petition had not been served on the respondent. But there is absolutely no material before the Court to come to that conclusion and hence I refrain from delving into the matter any further.
16. So far as the objection with regard to the absence of necessary party is concerned, in paragraph-6 of the written statement, respondent No. 1 has stated that since the election petition contains allegations against the Assistant Returning Officer and against the counting staff, those officers are necessary parties within the meaning of Section 82 of the Act and in their absence the petition is liable to be rejected. Section 82 is quoted hereinbelow in extenso :--
"82. Parties to the petition.-
A petitioner shall join as respondents to the 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 any corrupt practice are made in the petition."
The aforesaid provision is explicitly clear and nowhere stipulates that the counting staff should be made parties to the petition. The question as to who would be parties to the election petition within the meaning of Section 82 came up for consideration before their Lordships of the Supreme Court in the case of Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983. After analysing the provision of Section 82 and Sub-section (4) of Section 86, it has been held by the Supreme Court that only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86 and no others. Howsoever desirable and expedient it may appear to be, none else shall be joined as respondents. The Assistant Returning Officer does not come into picture either under Section 82 or under Sub-section (4) of Section 86 of the Act and in that view of the matter, the said Assistant Returning Officer cannot be said to be a necessary party to the election petition and there is absolutely no substance in the respondent's objection that the petition would fail for non-impletion of the Assistant Returning Officer. The said objection cannot accordingly be sustained.
In the premises, as aforesaid, both the aforesaid issues are answered in favour of the petitioner and against respondent No. 1.
17. Issues Nos. 3 and 4 :--
These two issues are discussed together since both are interlinked. According to the petitioner, there has been improper reception, refusal and rejection of votes which has materially affected the result of election and on an inspection and recount being permitted and the same being done, it must be held that the petitioner has received majority of valid votes and, therefore, is entitled to be declared elected. The petitioner has averred that the counting supervisors, counting assistants with the connivance of the Returning Officer and with open support and inducement from respondent No. 1 freely and fearlessly indulged in rampant improper reception, refusal or rejection of votes and any number of objections raised by the election agent Shri Gopabandhu Metier and counting agents of the petitioner and ultimately by the petitioner himself yielded no results. A written complaint to the above effect given to the Returning Officer by the election agent of the petitioner was refused to be received and large number of ballots containing valid votes cast in favour of the petitioner were improperly rejected. Similarly, large number of ballots containing valid votes cast in favour of respondents 3 and 4 as well as in favour of the petitioner were counted in favour of respondent No. 1 and large number of ballot papers containing no marking or marking on the reverse side of the ballot without indicating the intention of the elector in whose favour the ballot has been cast and were, therefore, liable to be rejected were improperly received and counted in favour of respondent No. 1. It is also stated that the petitioner's counting agents were not given opportunity to inspect such ballot papers. It is further averred that while the petitioner was writing out an application for recounting the supporters of respondent No. 1 rushed inside the counting arena and physically pushed out the petitioner and his election agent and counting agents and unlawfully prevented the petitioner from presenting his written application demanding recount and simultaneously overpowered the Returning Officer to declare the results of election who ultimately declared respondent No. 1 to be duly elected. In paragraph-7 of the election petition a detailed accounting as to the number of votes illegally and improperly accepted and rejected has been given and a statement showing improper reception, refusal or rejection was appended in the Schedule to the election petition which indicates the table number, the number of votes in each round and the total figure. It has been finally averred that on a recounting being ordered, the petitioner would be held to have polled majority of valid votes and would be declared elected.
Respondent No. 1 in his written statement has denied all the allegations made in the election petition. It has further been stated that the petitioner is not entitled to inspection, scrutiny and recounting nor is there any reasonable ground to call for the records, documents and ballot papers as sought for by the petitioner.
18. The petitioner's witnesses have supported in their evidence the stand taken by the petitioner and similarly, the witnesses of respondent No. 1 have refuted the stand of the petitioner and, on the other hand, have indicated that there is not an iota of truth and the petitioner has merely connected the case. Admittedly, there is no written document to indicate that the petitioner had filed an application for recount. Even subsequent to the declaration of the results, the petitioner has not made any grievance before any higher authority with regard to the alleged conduct of the Returning Officer and the counting supervisors and counting assistants. In the absence of any documentary evidence, the dispute between the parties will have to he resolved on assessing the intrinsic worth of oral evidence adduced by the parties.
19. Before making an assessment of the oral evidence, it would be appropriate to notice the law on the subject and what are the conditions precedent for entitling an inspection and recount of the ballot papers. The moot question that requires adjudication is whether in the facts and circumstances of the present case, the Court would direct inspection and recount of the ballot papers. Rule 63 of the Conduct of Elections Rules, 1961, provides that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. Sub-rule (2) thereof provides that after such announcement is made, a candidate or in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount. On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Admittedly, there has been no application in writing to the Returning Officer for recounting as contemplated under Sub-rule (2) of Rule 63. But the case of the petitioner is that while he was writing an application for recounting, the supporters of respondent No. 1 entered inside the counting premises and forced the Returning Officer to declare the results and prevented the petitioner from presenting a written application. Whether this case of the petitioner has been established or not would depend upon assessment of the evidence adduced by the petitioner in that regard. But the fact remains that in terms of Rule 63, no application has been filed before the Returning Officer praying for a recount either by the petitioner or his election agent or any of his counting agents. The question whether the Court would allow recounting on a prayer being made to that effect in the election petition no longer remains res integra. The law on the subject has been dealt with in several cases of the Supreme Court, some of which will he discussed hereunder, but a conspectus of those decisions indicates that a recount could be ordered only if the election petition contains an adequate statement of all the material facts in which the counting of votes has been alleged to be irregular or illegal and such allegations are prima facie established on the basis of evidence adduced and the Court is satisfied that recount is necessary to decide the dispute and to meet the ends of justice. In the case of Iqbal Singh v. Gurdas Singh, AIR 1976 SC 27, their Lordships of the Supreme Court have observed that no hard and fast rule specifying the circumstances in which recount is to be held can be laid down and it will depend upon the circumstances of the case. But there is unanimity in all the decisions to the effect that proper foundation is required to be laid by the election petitioner indicating the precise materials on the basis of which it could be urged by him with some substance that there has been either improper reception of valid votes in favour of the elected candidate or improper rejection of valid votes which had been cast in favour of the petitioner. The Courts have indicated that where the margin of difference is minimal and there are large-number of invalid votes; there is prima facie evidence of good grounds for believing that there was a misconduct on the part of election officials; there is prima facie evidence of formal defects having been misconstrued as substantial infirmities or vice versa resulting in wrongful reception or rejection of votes are some of the grounds on which a recounting could be ordered. One of the earliest decisions on the subject is in the case of Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 : (1964 All LJ 569). It was held by their Lordships in the aforesaid case (at page SC 1252, AIR 1964): --
"An order for 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 facts 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. ........."
It was indicated in this case by their Lordships of the Supreme Court that at page SC 1252 & 1253, AIR 1964:-
"There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes and to demand a re-count. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered."
Ultimately the Supreme Court held that the allegation of the election petitioner that he was satisfied that on inspection and scrutiny of ballot papers he would be able to demonstrate that there had been wrong counting on account of improper reception, refusal or rejection of votes was wholly insufficient to justify a claim for inspection.
In the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 Supreme Court, 773, their Lordships of the Supreme Court have held that vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted would not serve the purpose which Section 83(1)(a) has in mind and an application made for the inspection of ballot boxes must give material facts which would enable the tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. Their Lordships have further indicated that 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. A word of caution was given to the effect that in considering the requirements of justice care must be taken to see that election petitioners do not get a chance to make a roving and fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. But no hard and fast rule can be laid down in this matter; for, attempt to lay down such a rule would be inexpedient and unreasonable. In the aforesaid decision, their Lordships have considered the scheme of the rules prescribed in the Conduct of Elections Rules, 1961 and indicated how the defeated candidate at an election under the rules has ample opportunity to examine the voting papers before they are counted and in case objections raised by him or his agent are overruled, he knows precisely the nature of the objections raised and the voting papers to which those objections related.
In the case of Shri Shashi Bhushan etc. v. Prof. Balraj Madhok etc., AIR 1972 Supreme Court, 1251, the election had been challenged on the ground that it had been rigged by process of chemical treatment of ballot papers and the allegation that ballot papers were chemically treated was sought to be proved by inspection of ballot papers. It was held that the petition seeking inspection was rightly allowed, as the allegations made were of such a nature that the same could be proved or disproved only by inspecting the ballot papers and even if the allegation was nothing but a propaganda stunt, it was in the public interest that falsity of that propaganda should be exposed and the confidence in the electoral machinery should not be allowed to be corroded by false propaganda. It was on the above premises, the Supreme Court held that even though the secrecy of ballot papers was of paramount importance but doing justice was undoubtedly more important and it would be more so if what was in stake was the interests of the society.
20. The question of inspection and recount and Rule 63 of the Conduct of Elections Rules came up for consideration before the Supreme Court in the case of Bhabhi v. Sheo Govind, AIR 1975 Supreme Court 2117. Fazal Ali, J. speaking for the Court laid down six conditions which according to the learned Judge are of imperative nature and must be satisfied before the Court can order inspection of ballot papers in an election petition. Those conditions are (at page SC 2123, AIR 1975):--
"(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 land 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."
It has been observed that if all these circumstances enter into the mind of the Judge and are fulfilled in a given case, then the exercise of the discretion directing recounting would undoubtedly be proper.
The same learned Judge (Fazl Ali, J.) in a later case, N. Narayanan v. S. Semmalai, AIR 1980 Supreme Court 206, also considered the self-same question and held as follows : --
"The relief of recounting cannot be accepted merely on the possibility of there being an error. It is well settled that such allegations must not only be clearly made but also proved by cogent evidence. The fact that the margin of votes by which the successful candidate was declared elected was very narrow, though undoubtedly an important factor to be considered, would not by itself vitiate the counting of votes or justify recounting by the Court at page SC 213; AIR 1980.
The Court would be justified in ordering a recount of the ballot papers only where :
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) 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 (3) 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."
(quoted from headnotes) In yet another case of the same year in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, AIR 1980 SC 1362, Justice Desai examined the question and held as follows at page SC 1374, AIR 1980:--
"..... True, recount cannot be ordered just for the asking. A petition for recount after inspection of the ballot papers must contain an adequate statement on material facts on which the petitioner relies in support of his case and secondly the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties an inspection of the ballot papers is necesssary. The discretion conferred in this behalf should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fishing out materials for declaring the election void. Only 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........"
In the case of Pokai Haokip v. Rishang, AIR 1969 SC 663, their Lordships of the Supreme Court considered the question of burden of proof and held at pages SC 665 & 666, AIR 1969:--
".......In our country, the burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected.
Therefore, what we have to see is whether this burden has been successfully discharged by the election petitioner by demonstrating to the court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of the rules had not occurred and proper poll had taken place at all the polling stations including those at which it did not."
In the very same decision, their Lordships further observed: --
"...... It is no doubt true that the burden which is placed by law is very strict; even if it is strict it is for the courts to apply it. It is for the Legislature to consider whether it should be altered."
In the case of Rahim Khan v. Khurshid Ahmed, AIR 1975 SC 290, Krishna Iyer, J. speaking for the Court observed at pages SC 294 and 295, AIR 1975 :--
"....... An election once held is not to be treated in a lighthearted manner and defeated candidates or disgruntled electors should not get away with it by filing election petitions on unsubstantial grounds and irresponsible evidence, thereby introducing a serious element of uncertainty in the verdict already rendered by the electorate. An election is a politically sacred public act, not of one person or of one official, but of the collective will of the whole constituency. Courts naturally must respect this public expression secretly written and show extreme reluctance to set aside or declare void an election which has already been held unless clear and cogent testimony compelling the Court to uphold the corrupt practice alleged against the returned candidate is adduced. ......"
In that case the election of the returned candidate had been challenged on the ground of corrupt practice.
With regard to the manner in which the oral testimony in an election case is to be dealt with, in the very case, their Lordships observed at pages SC 298 and 299, AIR 1975 :-
"We must emphasize the danger of believing at its face value oral evidence in an election case without the backing of sure circumstances or indubitable documents. It must be remembered that corrupt practices may perhaps be proved by hiring half a dozen witnesses apparently respectable and disinterested, to speak to short and simple episodes such as that a small village meeting took place where the candidate accused his rival of personal vices. There is no X-ray whereby the dishonesty of the story can be established and, if the Court were gullible enough to gulp such oral versions and invalidate elections, a new menance to our electoral system would have been invented through the judicial apparatus. We regard it as extremely unsafe, in the present climate of kilkenny cat election competitions and partisan witnesses wearing robes of veracity, to upturn a hand won eletoral victory merely because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. The Court must look for serious assurance, unlying circumstances on unimpeachable documents to uphold grave charges of corrupt practices which might not merely cancel the election result, but extinguish many a man's public life."
What has been observed by their Lordships with regard to the manner and dealing with oral testimony in an election petition where allegation of corruption had been made would apply to all other allegations. This decision has also been followed in the case of Kanhaiyalal v. Mannalal, AIR 1976 SC 1886, wherein it has been held at page SC 1899, AIR 1976:--
"Oral testimony, therefore, will have to be judged with the greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from an independent source. The matter would have been different if there had been an immediate written complaint to the Returning Officer against Kanhaiyalal as had been made in the case of his workers.
An election dispute is not a private feud between one individual and another. The whole constituency is intimately involved in such a dispute. Shaky and wavering oral testimony of a handful of witnesses cannot still the dominant voice of the majority of an electorate."
21. Bearing in mind the ratio of the aforesaid cases and the word of caution given by the Supreme Court for appreciating the oral evidence, I shall now examine the evidence on record. But the undisputed fact remains that there is no document to support the petitioner's allegation that while the counting supervisor and his assistants were overruling each and every objection raised on behalf of the petitioner's counting agents on the counting tables and the counting was made for ten rounds, but no application in writing has been made either by the candidate or by his election agent or any of the counting agents. It is further important to notice that even if the observer had the occasion to go round the counting hall as disclosed by the witnesses for respondent No. 1, yet no complaint had been made to the said observer by either the petitioner or his election agent or any of his counting agents with regard to the alleged improper acceptance or rejection of the votes. Admittedly no application for inspection had been filed though law enjoins and confers that right on the defeated candidate. The story unfolded through the petitioner's witnesses that a large number of supporters of respondent No. 1 entered inside the counting hall and forced the Returning Officer to declare the results and prevented the petitioner from writing and making an application for recount is difficult to believe as it has been brought out through the evidence of the witnesses for respondent No. 1 that there had been a barricade of police officers sufficiently large to prevent any inrush of outsiders into the counting arena. Even the petitioner has not exhibited the half-written application in support of his stand to establish his case if at all his story that while he was in the process of writing an application for recount, the outsiders entered into the counting hall and prevented him from writing and presenting the application for recount. The evidence of the petitioner's witnesses is of a more general and vague nature indicating that there has been improper acceptance and rejection of valid votes right from the beginning of the counting. If that is so, it is really difficult to believe that neither the petitioner nor his election agent nor any of his counting agents could exercise their right given to them under the rules to note down the numbers of the ballot papers in respect of which the alleged irregularities were committed. That apart, the counting process started according to the petitioner at 11 a.m. while according to the respondent's witnesses at 8.30 a.m. and continued till about 5 p.m. If really the petitioner's grievance with regard to improper acceptance and rejection was not being heeded to then in all fairness it would be expected that either the petitioner himself or his election agent would bring the matter to the notice of the higher authorities including the Chief Election Officer as well as the observer who was present in the place where the counting was going on the date of counting, but no such steps have been taken by the petitioner. These circumstances unequivocally indicate that the petitioner just to make out an election petition made some vague allegations in the petition and has tried to establish the same through oral evidence of some of the witnesses who deposed in a rather general and vague manner. The witnesses on behalf of the petitioners are the petitioner himself, his election agent and the counting agents on different tables. All of them have indicated more or less in a general manner that the counting officers were not listening to the objections raised and were either improperly accepting and rejecting the votes and votes which ought to have been counted in favour of the petitioner or other candidates were being allotted to the returned candidate and the votes which ought to have been rejected were also being counted in favour of the returned candidate which affected the election result ultimately. Except these broad allegations in a vague manner, not a single particular has been furnished in respect of a single ballot paper. No doubt, the witnesses have stated that they were not afforded opportunity to note down the number of the ballot paper in respect of the alleged improper acceptance or rejection of the same as the counting was done with utmost haste, but howsoever hasty the counting may be, if the mistakes have crept in right from the beginning, it is difficult for me to believe that none of the counting agents had the opportunity of even noting the number of a single ballot paper even though it is alleged that in all there has been improper acceptance or rejection in respect of 3036 bailot papers. While the petitioner and his witnesses have stated in a general manner with regard to the alleged improper acceptance and rejection, respondent No. 1 and his witnesses have similarly stated that there has been no irregularity in the counting and all opportunities were generally afforded to the counting agents in course of counting to inspect any ballot paper whenever they had so desired. In the premises, as aforesaid, I am unable to hold that the petitioner has prima facie established that in fact, there has been gross illegality and irregularity in the process of counting which has materially affected the election result. On the other hand, I am persuaded to believe that the petitioner had thought of filing an election petition later and for that purpose made out some allegations in the election petition and has tried to establish the same through the oral evidence of some witnesses without a scrap of paper in corroboration of the same. In my considered opinion, in the facts and circumstances of the present case, I am not at all satisfied that there is any imperative necessity to allow inspection nor the petitioner has made out a case for recounting of ballot papers. On the other hand, the prayer for recounting is nothing but a clever move to make out a roving and fishing inquiry. I am, therefore, of the ultimate conclusion that no case for recounting and inspection has been made out and the two issues were accordingly answered against the petitioner and in favour of respondent No. I.
22. Issue No. 5 :
In view of my conclusion on issues Nos. 3 and 4, the petitioner is not entitled to any relief and the election petition is liable to be dismissed.
ORDER
23. In the result, the election petition is dismissed with costs of rupees two thousand in favour of respondent No. 1.