Rajasthan High Court - Jaipur
Laxman Singh vs Arun Singh And Ors. on 27 January, 2003
Equivalent citations: RLW2003(3)RAJ2050, 2003(2)WLC27
JUDGMENT Sharma, J.
1. The petitioner who was defeated by a margin of 99 votes from DEEG Assembly Constituency, filed this election petition with the following prayer:
i to allow recount of all the ballots of third and fourth round of counting of the Deeg Assembly Constituency; and if the same is not possible on account of mixing of ballots of all the rounds, then all the ballots of all the four rounds be ordered to be recounted and ii to declare void and set aside the election of Respondent No. 1 and instead declare the petitioner to be elected as Member of Rajasthan Legislative Assembly from Deeg (70) Assembly Constituency of Rajasthan, for which the result was declared on 28th of November 1998 and a certificate be ordered to be granted to the petitioner of having being elected as Member of Rajasthan Legislative Assembly and a Consequential order for notifying the election of the petitioner in the official Gazette, and to award the cost of the election petition to the petitioner.
2. In the election for the Rajasthan Legislative Assembly held in November 1998, the petitioner Laxman Singh and respondents No. 1 to 10 were the contesting candidates from DEEG (70) Assembly Constituency. The polling was held on November 25, 1998 and counting of votes was conducted on November 28, 1998. The petitioner secured 23,700 votes whereas the respondent No. 1 Arun Singh secured 23,799 votes and respondent No. 1 was declared to have been duly elected. Thereafter on January 11, 1999 the petitioner has approached this court.
3. The principal grounds set up by the petitioner in support of this petition are as under -
i The space available for counting agents was very scanty and the counting agents were made to sit at a distance from counting table with a gauge wire in between and it was not possible to supervise the counting properly.
ii In the third round of counting 200 ballot papers marked in the shaded area, were wrongly counted in the valid votes of respondent No. 1 whereas they should have been rejected. A protest was made to the Returning Officer for recounting the valid votes of the respondent No. 1 in the third round.
iii In the forth round of counting the difference between the votes of the petitioner and the respondent No. 1 had become narrower. Vishvendra Singh of royal family of Bharatpur and his counting agents came to Room No. 17 and 18 and threatened the polling party that if Arun Singh is defeated, they would not be able to go alive to their respective homes. Protest was made by the petitioner of entering of Vishvendra Singh into the room. At this incident the counting parly specially on tables No. 3, 7, and 8 in Room No. 17 and on tables No. 1 1(9), 4(12), 7(15) and 9(17) in Room No. 18 started inflating the votes of respondent No. 1 artificially by proceeding with the counting with speed and mixing the ballots of petitioner and other candidates in the ballots of respondent No. 1. In this manner 100 votes of the petitioner and other candidates were mixed with the votes of respondent No. 1 and even the ballot papers of the petitioner numbering about 75 were mixed with other candidates in order to minimise the votes of the petitioner. The ballot papers about 50 which were thumb marked and should have been rejected but were counted in favour of respondent No. 1. About 150 votes were counted in favour of respondent No. 1 were marked in shaded area and the protest was not cared to. Counting agents on these tables were not allowed to see and note down the ballot paper numbers and protest made to Returning Officer and Assistant Returning officers also did not yield any fruitful result.
iv Test checking of 10% of the total bundle of votes was not performed by the Returning Officer. Even random checking of 5% of votes was also not performed.
v Written request for recounting was made by the Election Agent of the petitioner Ram Bharose Lal to the District Returning Officer but recounting was not done, result was declared and the petitioner had lost by a margin of 99 votes. Written complaint was faxed on November 28, 1998 to the Election Commission.
4. The respondent No. 1 submitted written statement denying the allegations made in the election petition. It was interalia stated that the averments made in regard to reception of 200 votes which were marked on shaded area and counted in favour of respondent No. 1 were denied. It was averred that the allegations are too vague and they are lacking in material facts as required in Section 83 of the Representation of People. Act, 1951. It was denied that one Vishvendra Singh had ever come to room Nos. 17 and 18. It was also denied that any complaint was made to the Returning officer. It was denied that 100 votes of the petitioner and other candidates were mixed with respondent No. 1. It was denied that about 50 ballot papers bearing thumb mark were counted in favour of the respondent No. 1. It was also denied that the petitioner was not allowed to note down the serial number of ballot papers and in fact no request had been made at all. The allegations in regard to 150 ballot papers were also denied. It was however admitted that the application for recounting the votes was submitted to the District Election Officer who had sent it to the Returning Officer and the said application was rejected after hearing arguments of the petitioner on November 28, 1998. The fax massage sent to the Election Commission was also denied.
5. Following issues were framed, out of the pleadings of the parties :
1. Whether in the third round of counting 200 ballots were marked or bore seal on the shaded area and have been wrongly counted in favour of respondent No. 1 and whether any such protest was made by the election agent of the petitioner for rejection of 200 valid votes, if so to what effect?
2. Whether in the 4th round, the counting agent of Vishvendra Singh visited the room Nos. 17 * 18 and threatened the members of the polling party to help respondent Arun Singh i.e. the returned candidate and in the process the ballot papers in favour of respondent No. 1 were inflated and whether any ballot paper of the petitioner and other candidates were wrongly mixed in the ballot papers of the respondent and that whether the ballot papers in favour of the petitioner were also mixed with the ballot papers of other candidates and if so to what effect as stated in para 12 of the petition?
3. Whether in the 4th round of counting about 150 ballot marked in the shaded area were illegally counted in favour of respondent No. 1 and whether any such protest was made at the time if so to what effect as stated in para 13 of the petition ?
4. Whether it is a fact that Assistant Returning Officer after completion of 4th round had declared the petitioner as returned candidate by 99 votes and whether such declaration was challenged subsequently as alleged in para 15 of the petition ?
5. Whether any application for recounting was made by the petitioner and if so to what effect as alleged in para 17 and 18 of the petition ?
6. Whether counting of ballots/votes in the 4th round were not properly conducted during the process of counting and whether such illegalities and irregularities have materially effected the result of the election?
7. Whether the petitioner is entitled to get the benefit of 3rd and 4th round of recounting and in the alternative if 4th round ballots cannot be separated then whether the petitioner is entitled to get entire ballots of all rounds recounted, if yes to what effect ?
8. Whether election of the returned candidate is likely to be set aside and if so and whether the petitioner can be declared as a elected member of the Rajasthan Legislative Assembly result of which was declared on 28.11.1998 ?
9. Any other relief ?
6. The petitioner examined himself as PW.1, and produced Ram Bharose Sharma PW.2, Prahlad Singh PW.3, Jagdish Prasad Agrawal PW.4, Durga Prasad PW.5, Bharat Bhushan PW.6, Jagveer Singh PW.7 and Bhagwan Singh PW.8 in support of election petition. Whereas the respondent No. 1 Arun Singh, examined himself as DW.1, and produced Dr. Bhagwan Das DW.2, Kanhaiya Singh DW.3, Sita Ram DW.4, Balbir Singh DW. 5, Om Prakash DW.6, Keshav Singh DW.7, Lokendra Singh DW.8, Raj Pal DW.9, Hari Mohan DW.10, Ram Lal DW.11, Khem Raj DW.12, Dalbir Singh DW.13 and Surendra Singh DW.14.
7. I have pondered over the rival submissions and closely scanned the material on record.
8. Before considering the rival submissions I deem it appropriate to analyse the circumstances under which an order for recounting of the ballot papers can be made. Their Lordships of the Supreme Court laid down principles in this regard in V.S. Achuthanandan v. P.J. Francis and Anr. (1), after considering the various judgments including the Constitution Bench decision in Ram Sewak Yadav v. Hussain Kamil Kidwai (2), and Ors. decisions rendered in Suresh Prasad Yadav v. Jai Prakash Mishra (3), Bhabhi v. Sheo Govind (4), and M.R. Gopalakrishnan v. Thachady Prabhakaran (5). The principles are as under :
"i The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only on a case being properly made out in that regard.
ii A petitioner seeking inspection and re-count of ballot-papers must contain averments which are adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.
iii The scheme of the rules prescribed in Part V of the Conduct of Election Rules, 1961 emphasises the point that the election petitioner who is a defeated candidates has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.
iv The election petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute.
v The power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.
vi By mere production of the sealed boxes of ballot papers or the documents forming part of record of the election proceedings before the court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count.
vii In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re- count and not for the purpose of fishing out materials.
9. Bearing in mind the aforesaid principles I proceed to consider the fact situation emerges from the material on record.
10. According to the petitioner Laxman Singh (PW.1) certain irregularities were committed in the III and IV round of counting. The respondent No. 1 was given the symbol of airoplane. His name was appearing at S.No. 6 in the ballot paper and opposite his name in the second column was shaded area with black lines only and it did not bear the name of any contesting candidate. When irregularities in the HI and IV round of counting was brought to his notice he contacted the Returning Officer, but was assured by the Returning officer that he would get the votes recounted if the difference would be small. This all was said and done orally. He further deposed that Vishvendra Singh along with 15-16 persons rushed to the counting room and started shouting that if Arun Singh will be defeated none will come out alive. On hearing such threats ballot papers polled in his favour and in favour of other candidates were being placed in tray meant for respondent No. 1 for the purpose of counting in his favour. This was so noticed on table Nos. 3, 7 and 8 in room No. 17 and on table Nos. 8, 12, 15 and 17 in room No. 18. As many as 100 votes were so inflated in favour of respondent No. 1 which were not polled in his favour. In IV round 150 ballot papers which were marked on shaded place and not in the column of Arun Singh were so counted in favour of Arun Singh. Around 75-80 votes polled in favour of the petitioner were counted in favour of other candidates to minimise the votes of the petitioner. There were around 50-55 ballot papers bearing thumb impression were also counted in favour of the respondent No. 1. The ballot papers number could not be noted down as the official concerned declined to give particulars. The counting agents were not in a position to see or note down the number as the number of the ballot papers were printed at the back of the ballot papers. Checking or test counting was never done by the counting officials. At the end of the counting the petitioner was told by the Assistant Returning Officer that he was winning by 99 votes but lateron the respondent No. 1 was declared elected. Thereafter the petitioner immediately put up the application for recounting to the Returning Officer, but the application was neither rejected nor accepted. The petitioner had applied for the certified copy of any order having been passed on his application but there was no order on it. On December 2, the petitioner was asked to apply for such order. Thereafter the petitioner made fresh application on December 2, and then copy of the order was given to him. The petitioner in the cross examination admitted that in the complaint made by him for recounting he had not mentioned the fact of non-accounting of result of III round and IV round. He also admitted that he was trying to visit each and every table in both the rooms to look after his interest but he had not noted down the number of votes in regard to which irregularities seen in the counting. He further admitted that he had no knowledge of any detail about the number of votes counted in favour of the respondent No. 1 on any table in regard to any type of irregularities. He had given the guess work about the number of votes illegally counted in favour of respondent No. 1.
11. Rambharose PW.2 in his deposition stated that there were many irregularities committed in the third round of counting. Irregularities were noted down by his agent. It was reported in room No. 18 on table Nos. 9, 12, 15 and 17. He was informed that certain ballot papers which were not marked in the column of respondent No. 1 but were marked in shaded area opposite to the column of respondent No. 1 were counted in favour of the returned candidate. Similar situation was in Room No. 17 on table Nos. 7, 8 and 13. He orally made complaint to the ARO and who in turn directed him to report the matter to Returning Officer, Returning Officer was informed by him orally. The Returning Officer told him that if the margin remained about 400-500 votes immediately recounting would be ordered. In the opinion of PW.2, 200 votes approximately had been illegally counted in favour of the returned candidate. In the III round he had reached to guess work of 200 votes on the basis of the report received from every table. He further deposed that during the course of IV round of counting Mr. Vishvendra Singh alongwith his counting agents entered into the counting room and gave a threat that if Arun Singh was defeated in that situation no one would leave that place alive. Police was called and the persons were removed by the police. As a result of the threat counting was disturbed. Irregularities were committed and votes cast in favour of the petitioner were put in the tray of the respondent No. 1. Even those votes which were bearing thumb impressions were counted in favour of respondent No. 1. In his cross examination he admitted that he did not note down the ballot numbers which were illegally counted in favour of the respondents No. 1.
12. Prahlad Singh PW.3, was one of the counting agent in room No. 18 at the table or Assistant Returning Officer. In his deposition he stated that there were irregularities in the III and IV rounds of counting. In the IV round group of 15-16 persons entered the Room No. 18 and started giving threats. In his cross examination he stated that fate of the doubtful votes was decided by the ARO and no written complaint was filed by him even though the Collector was also coming in the room.
13. Jagdish Prasad Agarwal PW.4, was the counting agent of the petitioner in Room No. 18 at table No. 15. He deposed that irregularities were committed in III and IV rounds but he cannot tell the serial number of the ballot papers which were counted illegally in favour of the respondent No. 1.
14. Durga Prasad Kaushal PW.5, was counting agent of the petitioner at table No. 8 in Room No. 17, He deposed that there were irregularities in III and IV rounds of counting and votes were illegally counted in favour of Arun Singh.
15. Bharat Bhushan PW.6, was the counting agent of petitioner at table No. 7 in Room No. 17. He stated that votes bearing thumb impressions and bearing seal over blank column in the shaded area were illegally counted in favour of the respondent No. 1 but he did not note down any of the irregularities on his table.
16. Jagveer Singh PW.7, was the counting agent at table No. 3 in Room 17. He stated that votes bearing thumb marks and seal over blank space shaded area were illegally counted in favour of the respondent No. 1, but he cannot narrate the serial number of such ballot papers.
17. Bhagwan Singh PW.8, was the counting agent at table No. 17 in Room No. 18. He stated that there were irregularities in the counting of III and IV rounds and votes were illegally counted in favour of the respondent No. 1 in order to give benefit to him. In his cross examination he however stated that he noted the irregularities on a piece of paper but he had not given that paper to Ram Bharose PW.2. He cannot tell the serial member of any ballot papers which were illegally counted in favour of the respondent No. 1.
18. Respondent No. 1, Arun Singh DW.1, in his deposition stated that he was throughout present in the counting till declaration of the result. The Returning Officer/Assistant Returning Officer used to take signatures on the check memos of all the tables at the end of the counting of each round. He categorically stated that there was no irregularity in counting of the votes and ballot papers bearing thumb impressions were not counted as valid votes in his favour. All the ballot papers bearing seal marked outside the compartment meant for particular candidates were rejected by the Returning Officer/Assistant Returning Officer and no such votes were counted in his favour. He has given the details of the counting procedure and categorically denied the allegation made by the petitioner in his written statement.
19. Dr. Bhagwan Das DW.2 was posted as Assistant Returning officer during the counting of Deeg Assembly Constituency in Room No. 18. In his deposition Dr. Bhagwan Das stated that the fate of the doubtful ballots was decided by him in Room No. 18 in the presence and after showing it to the counting agents of the respective candidates. Any doubtful ballots/votes on which the seal was appearing on the blank shaded area was usually rejected. The ballot papers bearing thumb impression were also rejected. There used to be random checking/verification of the votes by the officer to share and check correct counting. There was no complaint whatsoever was made to him that the votes of the petitioner had been mixed to the votes of respondent No. 1 or in any other candidate's votes. No request was made by the petitioner Laxman Singh to note down serial number of votes which were given in favour of respondent No. 1. The ARO used to get signatures of representatives of candidate after counting of the votes. During the time was present no incident of threat or entering into the room by the supporters of any person whatsoever occurred at the time of counting. The ARO had not made any such declaration oral or otherwise that after counting in IV round the petitioner had won the election.
20. Kanhaiya Singh DW.3, was the counting agent of respondent No. 1 at table No. 3 in Room No. 17. He deposed that there were no irregularities committed in counting and ballot papers bearing thumb impression, bearing seal on shaded area were kept in the tray of doubtful votes and none of such votes was mixed in the votes of the respondent No. 1. He However admitted in the cross examination that the space meant for counting was too tight and nothing could be watched in sitting position if one was required to look of the counting, that could only be done in standing position.
21. Sita Ram DW.4 was counting agent of respondent No. 1 at table No. 7 in Room No. 17. He stated that no irregularity was committed in counting. Votes polled in favour of each candidate were shown on the black board after every round of counting and each counting agent was thereafter asked to put his signature over a paper. Doubtful votes were used to be placed before the Returning Officer. Votes on which the seal was put over the shaded area used to be kept in a doubtful tray. No complaint was ever made in regard to counting of votes by the petitioner or his agent.
22. Balveer Singh DW.5 was the counting agent at table No. 15 in Room No. 18. He stated that there was no irregularity in the counting and no ballot papers on which thumb impression or seal was put in shaded area was allowed to be counted in favour of the respondent No. 1.
23. Om Prakash DW.6 was the counting agent of respondent No. 1 at table No. 12 in Room No. 18. Keshav Singh DW.7, was the counting agent of respondent No. 1 at table No. 8. Lokendra Singh DW.8 was counting agent at table No. 18 and Raj Pal Singh DW.9 was counting agent of respondent No. 1 at table No. 2. All these counting agents categorically stated that there was no irregularity in the III and IV rounds of counting and doubtful votes used to be kept in separate trays and the votes on which thumb impression were put or seals were put in shaded area were kept in a tray of doubtful votes and were not counted in favour of the respondent No. 1. They have also stated that after the end of each round votes secured by each candidate used to be noted down on black board.
24. Hari Mohan Meena DW.10 was the Returning Officer and was sitting in Room No. 17 at the time of counting. Tehsildar Deeg was sitting in Room No. 18. According to him as many as 12 trays were kept on each table, 11 trays were for candidates and one for doubtful voles. As many as four rounds of counting were held. Counting agents of the candidates used to note number of votes received and the candidates also used to visit in the counting room. Doubtful votes used to be taken to him and he decided the validity of the votes after showing the ballot papers to the satisfaction of the candidates sitting near his table. At the end of each round the counting agents of candidates used to put their signatures on the proforma kept by him as per the instructions issued by the District Election Officer. He further stated that the petitioner and his election agents never told him about the illegal or illregular counting. Facility of Video camera was also provided in each counting room and every moment of counting was captured by Video camera. He used to scan each bundle of ballot papers for his satisfaction. He never informed Laxman Singh that he obtained 99 more votes than Arun Singh. Proformas were kept in the counting hall for the satisfaction of the candidates and counting agents of the candidates put their signatures after being satisfied from counting process. He further deposed that he rejected those ballot papers on which the seals were put on shaded or blank area. He also rejected ballot papers on which the voters put his thumb impression or more than one seals were put against the names of candidates. Application for recounting was submitted to him on which he passed the order. After seeking permission from the Election Commission he declared the result and Arun Singh was declared elected by a margin of 99 votes. He further stated that Vishvendra Singh and his election agents never threatened him of dire consequences in case Arun Singh looses the election. These persons never entered in his room as the police constables were posted out side the hall.
25. Ram Lal Devendra DW.11 was Assistant Returning officer and was sitting in Room No. 18. He categoricalaly stated that no irregularity was committed by him in the counting and nobody made complaint to him regarding irregularity in the counting.
26. Khemraj DW.12 the District Election Officer stated that he did not receive any complaint from any body in respect of irregular counting. No one threatened counting party or any body at the time of counting in his presence. Application of seeking recounting of votes was handed over to him and he forwarded it to R.O. He had arranged for videography of all the assembly counting.
27. Surendra Singh DW.14 was the counting agent of Vishvendra Singh. He stated that while Deeg counting was in progress supporters of Vishvendra Singh never gave threatening to counting party.
28. Mr. N.K. Joshi, learned counsel for the petitioner canvassed that the prayer for counting of votes is bonafide, clear and cogent and is supported by good evidence. Strong prima facie circumstances to suspect the purity, propriety and legality in the counting exist and case of recount of votes is made out by definite factual statements, credible and probative material. According to Mr. Joshi, learned counsel secrecy of voting is defined in Section 94 of the Representation of People Act 1951 according to which no witness or other person can be asked as to for whom he voted at an election and if recount of votes is ordered secrecy of voting shall not be infringed. Reliance is placed on Chandra Singh v. Choudhary Shiv Ram (6), P. Malal Chami v. M. Andi Ambalam (7), Arun Kumar Bose v. Mohd. Furkan Ansari (8), Shanti Bhushan v. Balraj Madhok (9) and Brij Sunder Sharma v. Ram Dutt (10).
29. Per contra Mr. J.S, Rastogi, learned counsel for respondent No. 1 contended that prima facie case of recounting is not made out from the material on record. The petitioner, his election agents and counting agents were satisfied withe the counting process and they put their signatures, this fact is evident from the documents Ex. D.7 and Ex. D.8 that relate to rounds 2 and 4. The evidence of District Returning Officer, Returning Officer and Assistant Returning Officer is trustworthy and nothing could be elicited from their cross examination. Placing reliance on various judicial pronouncements. Mr. Rastogi learned counsel urged that allowing recounting would mean to indulge in a roving enquiry to fish out material.
30. As per Halsbury's Laws of England (Vol. 14 at page 310 paragraph 599) "A recount is not granted as of right but an evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer."
31. Their Lordships of the Supreme Court in Jitendra Bahadur Singh v. Krishna Behari (11), indicated that bald assertions of irregularities are not sufficient & material facts are required to be pleaded and proved. It was observed as under (Para 8).
"In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information ? It is hot his case that they maintained any notes or that he examined their notes, if there were any."
It was further observed that (Para 10) "Now coming to the rejection of the votes polled infavour of the congress nominee under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot papers. Thereafter it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial number of those ballot papers or whether those agents raised any objection relating the validity of those ballot papers, if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objection. These again are the material facts required to be stated."
32. Hon'ble Supreme Court in Satya Narain v. Udai Kumar (12), held that cryptic application for recount cannot be allowed. An order of recount cannot be granted as a matter of course. It was indicated in para 10 thus-
"10. It is thus obvious that neither during the counting on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner-respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have been taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that the recount can be ordered."
33. In Vadivelu v. Sundaram (13), Hon'ble Supreme Court held that recount of votes could be ordered rarely and on specific allegations in the pleadings. It was observed in para 16 thus-
"16. The result of the analysis of the above cases would show that this Court has consistently taken the view that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re- count of voters. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties.
34. In the instant case the petitioner admitted that in the complaint made by him for recounting he had not mentioned the fact of non announcing of result of third and fourth rounds. He also admitted that neither he nor his counting agents had noted down the numbers of ballot papers and that he had no knowledge about any type of irregularities and he had given the guess work about the number of votes illegally counted in favour of respondent No. 1. Election agent of the petitioner Rambharose PW.2 admitted that he did not note down the ballot numbers which had been illegally counted in favour of respondent No. 1 and on the basis of oral reports received from the counting table, he reached to the guess work. Jagdish Prasad Agrawal PW.4 admitted that he had not noted anywhere about the irregularities in the third and fourth rounds Durga Prasad Kaushal PW.5 stated that he cannot tell the number of ballot papers which were thumb marked or illegally diverted to any other tray as it was not possible to note the same. Bharat Bushan Goyal PW.6 stated that he had not noted down any of the irregularities on any table. Jagvir Singh PW.7 also stated that he did not tell any serial number of the ballot paper which were counted in favour of respondent No. 1 which bore seal/stamp on shaded black portion or subjected to any irregularity. Bhagwan Singh PW.8 although stated that he had noted irregularities on a piece of paper but he had not given the piece of paper to Rambharose PW.2. He cannot tell the serial number of any ballot paper irregularly received or irregularly diverted or irregularly diverted as stated by him including those bearing thumb impressions.
35. Hari Mohan Meena DW.10 was the Returning Officer and he in his deposition stated that counting agents of the candidates used to note number of votes received and the candidates also used to visit in the counting room. Doubtful votes used to be taken to him and he decided the validity of the same. The validity was decided by him after showing the ballot papers to the satisfaction of the candidates sitting near his table. There was a proforma kept as per the instructions of District Election Officer and at the end of each round the counting agents of candidates used to put their signatures on the said proforma. He further stated that no complaint was ever made about illegal or irregular counting. Facility of Video camera was also provided in each counting room by the District Election Officer and every moment of counting was captured by Video Camera. He never informed the petitioner that he obtained 99 more votes than Arun Singh. This witness exhibited proformas and categorically stated that election agent and counting agents put their signatures after got satisfied with the counting. Proformas Ex. D. 7 and Ex. D.8 related to third and fourth rounds of counting. They bear signatures of Babulal and Ram Bharose who were counting agent and election agent of the petitioner. This witness was cross examined at length and nothing favourable to the petitioner could be elicited from the cross examination.
36. Assistant Returning Officer Ram Lal Devendra DW.11 and District Election Officer Khem Raj DW.12 categorically stated that no irregularities were ever brought to their notice during the entire counting and counting was conducted fairly to the satisfaction of all who were present there.
37. On a close scrutiny of the material on record I find that entire election petition is based on guess work of the petitioner and his counting agents. It has not been disclosed in the petition that as to on what basis the petitioner and his witnesses arrived at those Figures which they stated orally in their statements. It was only Bhagwan Singh PW.8 who stated that he noted the irregularities on a piece of paper but the said paper was not produced before the Court. It was not even referred in the pleadings. It is established from the material on record that the doubtful votes used to be carried to the table of the Assistant Returning Officer and there was ample opportunity for the counting agent of the petitioner who was sitting at the table of ARO to note down the number of ballot papers that were illegally counted in favour of the respondent No. 1.
38. A bare look at the application submitted by the election agent of the petitioner for recounting reveals that it was a cryptic application as neither details of any kind were given nor instances showing any irregularity or illegality in the counting were brought to the notice of the Returning Officer. It was only stated in the application that earlier the petitioner was declared to have won the election by 99 votes but subsequently the respondent was declared elected on the basis of such cryptic application recount of votes was rightly declined.
39. The petitioner thus failed to establish that in the third and fourth rounds of counting 200 ballots marked or bore seal on the shaded area had been wrongly counted in favour of the respondent No. 1 and protest in this regard was made by the election agent of the petitioner for rejection of 200 valid votes. Issue No. 1 is therefore decided against the petitioner.
40. The petitioner has further failed to prove that in the fourth round the counting agents of Vishvendra Singh entered rooms No. 17 and 18 and threatened the members of the polling party to help respondent Arun Singh and in the process the ballot papers in favour of the respondent No. 1 were inflated and ballot papers of the petitioner and other candidates were wrongly mixed in the ballot papers of the respondent No. I and ballot papers in favour of the petitioner were also mixed with the ballot papers of other candidates. The petitioner has also failed to establish that in the fourth round of counting about 150 ballot papers marked in the shaded area were illegally counted in favour of respondent No. 1 and protest was ever made by or on behalf of the petitioner. Issues 2 and 3 are thus decided against the petitioner.
41. From the material on record it is also established that Assistant Returning Officer after completion of 4th round-had not declared the petitioner as returned candidate by 99 votes. Issue No. 4 is therefore decided against the petitioner.
42. The contention of the petitioner in papars 17 and 18 of the election petitioner that on his application of recount the rejection order was passed subsequently, cannot be accepted. The District Returning Officer Khemraj DW.12 was not cross examined on these lines by the petitioner. From the report under Section 66 of the Representation of People Act (Ex.D.8) it is established that application for recount was rejected then and there as no particular reason for recount was mentioned in it. Detailed report of the counting was drawn by the Returning officer H.M. Meena (Ex.D. 10) which also goes to show that application for recount was submitted but was rejected as no specific reason was assigned. Thus I find that facts in papers 17 and 18 of the election petition are not established from the evidence and issue No. 5 is decided against the petitioner.
43. The petitioner is not able to make out a case that counting of ballots/votes in the 3rd and 4th rounds was not conducted properly therefore question of counting of entire ballot papers looses its significance. Issues No. 6 and 7 are thus decided against the petitioner.
44. The election of the returned candidate respondent No. 1, under the circumstances is not liable to be set aside and no relief can be granted to the petitioner. Issues No. 8 and 9 are therefore decided against the petitioner.
45. For the reasons aforementioned I do not find any merit in the election petition, it stands dismissed with costs which is quantified as Rs. 2000/-.
46. An application was filed by the respondent No. 1 on December 19, 2002 with the prayer that the enquiry may be conducted and proper action should be taken against the District Election Officer (Collector Bharatpur) and Returning Officer, (SDO Deeg) and other order may be passed before the decision of the Election petition. Along with the application some documents have been annexed and affidavit of one Sita Ram was filed. The application was not supported by the affidavit of respondent No. 1. I find myself unable to proceed on the basis of affidavit of Sita Ram. In the absence of affidavit of respondent No. 1 I do not find a fit case for initiating the enquiry. The application stands rejected.