Punjab-Haryana High Court
Mukhtiar Singh vs Shri Bal Mukand And Others on 13 August, 1993
Equivalent citations: AIR1994P&H192, AIR 1994 PUNJAB AND HARYANA 192
Author: Ashok Bhan
Bench: Ashok Bhan
ORDER
1. Petitioner a defeated candidate from 95-Ferozepur Assembly Constituency in the election held for Punjab Vidhan Sabha in February 1992, has filed the present election petition for setting aside the election of respondent No. 1 Shri Bal Mukand on the ground that mass scale irregularities and illegalities were committed during the course of counting, claiming a recount and for further declaration in favour of the petitioner as having been duly elected.
2. Elections to the Punjab Vidhan Sabha were held in January/February 1992. Polling was held on 19-2-1992 and counting was done on 20-2-1992 in R.S.D. College, Ferozepur. Petitioner contested as a candidate of Bahujan Samaj Party (B.S.P.) whereas respondent No. 1 was the candidate of Congress (I).
3. It is alleged that elections in the State of Punjab were held under a very tense atmosphere. Some of the organisations had given a call for boycotting the poll and because of the threats given by the terrorists/ militants, most of the people did not come forward to cast their votes; that the situation prevailing in the State of Punjab was exploited by Congress (I) by pressurising the officials of the administration to help them in all possible manners illegally as well as legally. As consequence thereof respondent No. 1 was declared elected by a margin of 355 votes.
4. Allegations of capturing of booth No. 73, have been made in the petition. It is alleged that respondent No. 1 tried to capture the booth but his attempt to capture the booth did not materialise and he with the help of his supporters and agents and other Congress (1) workers indulged in large scale bogus polling in spite of the objections/ protest raised by the agents of the petitioner; that the Presiding Officer did not check impersonation; that at least 300 bogus votes were cast by impersonation but the names and details of these persons have not been given in the petition.
5. Shri H. I. S. Grewal, Sub-Divisional Magistrate, was the Returning Officer for Ferozepur Assembly Constituency. It is alleged that he was close to Shri Beant Singh the present Chief Minister of Punjab who at that time was the President of Punjab Pradesh Congress (I); that Shri Beant Singh was thinking of contesting from this constituency at one time but later on he changed his mind and shifted to Jalandhar Constituency; that respondent No. 1 and Shri Beant Singh are close friends in addition to their belonging to the same party; that Shri H. I. S. Grewal was especially shifted to Ferozepur as S.D.M. a few months before the election process began; that his transfer was managed by respondent No. 1 and Shri Beant Singh to get undue benefit in the election process.
6. The counting started at 8 a.m. on 20-2-1992 in the hall of R.S.D. College, Ferozepur;
that normally the counting is done boothwise but in the present case the counting was not done boothwise which was in violation of the Conduct of Eiection Rules. The votes of all the ballot boxes were taken out on seven tables which had been laid for counting assembly votes, compared it with the actual number of votes polled and actual number of votes found in (he bailot boxes. The elections to Punjab Assembly and Lok Sabha were held simultaneously. The counting staff used to sort out both the votes separately i.e. for Vidhan Sabha and Lok Sabha. The ballot papers for Lok Sabha were of white colour and those for Vidhan Sabha were of pink colour; that after sorting out, the votes were tied down in packets of 50 each and then put in a big trunk which was kept there for Vidhan Sabha. Similar was the position for counting of votes for Lok Sabha. After the votes taken out from the polling booths were mixed up then the counting was started roundwise. On each table 1000 votes were given to the supervising officer of the table, on each table there were 4-5 officials. Counting agents of the candidates were made to sit opposite to the supervisory staff after putting iron pipes to avoid any untoward incident; that more than 250 persons were present in the counting hall.
7. That the process of sorting out of votes etc. finished at about 4.30 p.m. During the process of opening of the ballot boxes when two ballot boxes belonging to polling booth No. 73 were being brought for opening, it was found that the seals of the ballot boxes were broken. The ballot boxes were covered in gunny bags. The seals of gunny bags were also broken; that the mouth-type opening of the ballot boxes through which the ballot papers are inserted were also broken; that petitioner as well as other candidates raised an objection to the counting of votes of these ballot boxes. The Returning Officer ordered the opening of the ballot boxes in order to see as to how many votes were there in these ballot boxes; that the sealed envelope which contained the ballot papers account of that polling booth was opened. As per the entries made in the form, the Presiding Officer had shown and verified that 513 votes were polled in that polling booth. According to the ballot paper account 513 votes should have been covered from the ballot boxes from that particular booth but however, on counting it was discovered that actually 613 votes were recovered from these ballot boxes. It was also found that almost all the ballot papers of this polling booth were marked in favour of respondent No. 1; that respondent No. 1 was the only candidate who insisted that these votes be counted; that the Returning Officer did not allow the counting oft these ballot papers and did not allow the mixing up of these votes with the other votes. It was ordered by him that the votes polled in this polling booth be not counted as seals of two ballot boxes were found broken. It is further alleged that ballot papers which were recovered from these ballot boxes were of different colour and different size; that on almost all the ballot papers there were no signatures and stamps of the Presiding Officer of the booth; that.the votes of this booth were not mixed up with the votes of other boxes; that the actual counting of votes after the process of sorting out of votes etc. started at about 4.30 p.m.; that up to the third round of counting, the Returning Officer used to make announcement about the number of votes secured by each candidate round-wise but he did not do so thereafter; that after the 6th round excluding the votes of ballot boxes belonging to polling booth No, 73, the petitioner was leading by a margin.of 329 votes. The total votes were counted in rounds.
8. It is further alleged that during the night the results frqm various other Assembly Constituencies in the State started coming. By mid night, it was clear that Congress (I) was going to form Government in Punjab, that at about 3.30 a.m. on the night intervening 20/ 21-2-1992 respondent No. 1 came out of the counting hall and rang up Shri Beant Singh from the adjoining room where the telephone had been installed by election department. By that time it was clear that Shri Beant Singh was going to be the new Chief Minister of Punjab that Shri Beant Singh talked to Shri H. I. S. Orewal, Returning Officer on telephone and insisted upon him to declare respondent No. 1 as elected and give alt possible help to respondent No. 1 illegally or legally; that after talking to Shri Beant Singh on telephone, Shri H. I. S. Grewal came in the counting hall and ordered that the votes lying in the ballot boxes belonging to polling booth No. 73 be also counted. The votes of polling booth No. 73 were counted against the strong protest lodged by all the candidates and their agents except those of respondent No. 1; that petitioner gave an application in writing to the Presiding Officer protesting against this order and demanding recounting of votes; that this application of the petitioner was torn into pieces by the Returning Officer; that the Returning Officer got so much annoyed on their protest that he ordered that all the persons be shunted out of the counting hall. There were lot of security men present in the counting hall and immediately after the order of the Returning Officer, all the candidates and their agents except respondent No. 1 and his two sons and their 3-4 counting agents, were shunted out of the counting hall; that the door of the counting hall was boiled from inside and thereafter declared respondent No. I to have won the election at about 4.30 a.m.; that Shri H. I. S. Grewal committed illegalities and irregularities with a view to oblige Shri 'Beant Singh, the present Chief Minister; that Shri H. I. S. Grewal, thereafter, immediately rushed to Chandigarh and on the formation of the Ministry he was appointed as Officer on Special Duty to the Chief Minister, respondent No. 1 was also inducted as a Minister in the Council of Ministers, Punjab.
9. The other allegations regarding irregularities of counting of votes in the hall are that the votes polled in favour of the petitioner and other candidates were put in the bundles of respondent No. 1 and counted as those of the respondent No. 1 by the supervisory staff; that they put one Congress (1) vote on the top and one Congress (I) vote at the bottom and counted them as packet of 50 votes in favour of respondent No. 1; that the votes which had been polled by the petitioner were wrongly rejected on the ground that the ink of the thumb impression had got smudged on the ballot papers; that the intention of the voter was very clear and he had marked his choice in favour of the petilioner but the Returning Officer under the influence of respondent No. 1 had declared all these votes as invalid. In this manner the votes which had been cast in favour of the petitioner were wrongly declared as invalid.
10. That a written application was also filed by all the candidates except respondent No. 1 to the Returning Officer asking him not to count the votes of booth No. 73; that the counting agents of the candidates were not permitted either to inspect the ballot papers or to check the wrong counting in any manner; that the objections raised by the agents of the petitioner were not heeded to and brushed aside by the counting staff; that irregularities were also committed in filling up of Forms Nos. 16 and 20 for iniiiating the counting. On the above stated facts, the present petition has been filed.
11. Written statement has been filed on behalf of respondent No. 1 only. Other candidates who have been arrayed as respondents did not choose to contest this petition. In this first preliminary objection raised in the written statement, allegations of corrupt practice within the meaning of Sec. 123(7) of the Representation of the People Act (hereinafter referred to as the Act) have been assailed. It has been alleged that the petition was not accompanied by an affidavit in support of the allegation of corrupt practice which is the clear violation of the mandatory provisions of Section 83 of the Act read with Rule 12, Chapter IV GG, Vol. V of Rules and Orders of Punjab High Court and, therefore, the petition was liable to be dismissed. The second preliminary objection taken was that the petitioner did not file an application for recount before the Returning Officer and, therefore, he cannot claim recount by filing the present election petition as a matter of right and that no case for recount is made out.
12. On merits, allegations made were emphatically denied. It was admitted that elections in the State were held in the tense atmosphere but it was denied that Congress (1) or respondent No. 1 had exploited the situation to their advantage; that the counting of votes was done in accordance with Rules and the provisions of the Act and instructions issued by the Deputy Commissioner. The allegations regarding the commission of irregularities and illegalities in the polling of votes or counting of votes with the help of officials of the administration have been denied. The allegations regarding capturing of booth No. 73 and polling of bogus votes by impersonation being baseless and false were emphatically denied. It was admitted that respondent No. 1 and Shri Beant Singh belong to the Congress (I) party. It was denied that Shri H. I. S. Grewal was posted as S.D.M. Ferozepur at the instance of Shri Beant Singh or respondent No. 1 in order to take undue advantage at the time of elections. Allegations regarding that Shri H. I. S. Grewal was close to Shri Beant Singh was denied.
13. That the seating and counting arrangements were made strictly in accordance with the election rules and instructions; that total number of persons present in the counting hall were not more than 150 at any time. It was denied that the seals of the gunny bags containing the ballot boxes of booth No. 73 were found broken. The seals on the gunny bags were perfectly intact. It was further denied that the seals on ballot boxes were missing or broken. It was also denied that the slits of ballot boxes through which the ballot papers were inserted were open. The seals on the ballot boxes were found absolutely intact with slits duly closed and sealed; it was denied that any objections were raised by the candidates not to count the votes from polling booth No. 73. In the alternate, it was stated that objections if any made were decided by the Returning Officer. It was denied that the Returning Officer Shri H. I. S. Grewal, had ordered that opening of ballot boxes of booth No. 73 only to see the number of votes in the ballot boxes; that the boxes were opened in the normal way without any objection from the candidates. The total number of votes found in the boxes were 613; it was admitted that in the ballot paper account the number of votes were entered as 513. The explanation given in the written statement is that the same was a clerical mistake and that in fact the actual votes polled at booth No. 73 were 613. On comparison with other relevant election records, it was found to the satisfaction of all the contesting candidates that the actual number of votes polled were 613 and not 513. Thereafter, with the consent of all the candidates, counting was allowed after mixing the votes taken from ballot boxes of booth No. 73 with the ballot boxes of other booths by the Returing Officer. It was denied that all the ballot papers of polling booth No. 73 were polled in favour of respondent No. 1 as those ballot papers were mixed up with other ballot papers. The averments that ballot papers found from the ballot boxes of booth No. 73 were of different size and colour than those of batlot papers of the other segments of constituency and were of light pink colour and poor quality were denied being baseless and wrong. It was stated that all the ballot papers taken out from these disputed ballot boxes and those from other parts of the constituency were of the same size, colour and quality. It was denied that 500 ballot papers were not having stamps of the polling booth on its back. The allegations, according to respondent No. 1, are imaginary and afterthought.
14. It has been denied that respondent No. 1 talked to Shri Beant Singh asking him to request Shri H. I. S. Grewal to help him in the counting of votes. It is further denied that Shri Beant Singh ever talked to the Returning Officer. It was denied that the petitioner was leading by a margin of 132 votes after the 6th round and by a margin of 329 votes after the 7th round.
15. The allegations that the counting staff had counted the votes of the petitioner and other defeated candidates in favour of respondent No. 1 were also denied. It was denied that any of the votes polled in favour of any other candidate were transferred in the bundle of respondent No. 1 and counted as his votes. It was denied that the votes polled in favour of the petitioner were wrongly rejected-by the Returning Officer with a mala fide intention; that the petitioner or any other candidate never raised any objection orally or in writing; that the petitioner did not file any application for recount of the votes. It was denied that the petitioner or other candidates were turned out of the counting hall at about 3.30 a.m. It was further denied that the counting supervisor in any way helped the returned candidate during the counting of votes; that respondent No. 1 was duly elected and declared as such and that the petition was frivolous and deserves to be dismissed.
16. Replication to the written statement was filed denying the allegations made in the written statement and reiterating those made in the petition. On the basis of pleadings of the parties, the following issuers were framed:--
1. Whether the irregularities were committed at the time of counting'of votes? OPP
2. Whether the petitioner is entitled to a recount of votes? OPP
3. Whetherthe petitioner should have filed an affidavit in support of the petition? If so, what is the effect of non-filing of the same? OPR
4. Relief.
17. Issue No. 3 was treated to be a preliminary issue. This issue was decided in favour of the petitioner and against respondent No. 1 on 15-10-1992, and it was found that challenge to the election of respondent No. 1 was not-founded upon the commission of corrupt practice and, therefore, it could not be held that the petitioner was required to file an affidavit in support of the petition in terms of S. 83(1)(c) of the Act. Thereafter, the petition was proceeded on the remaining two issues on which the parties led evidence.
18. Petitioner Shri Mukhtiar Singh himself stepped into the witness box as PW 1 and examined PW 2 Jagir Singh counting agent of table No. 3, PW 3 Swamp Singh, Election Tehsildar, PW4 Niranjan Singh counting agent of table No. 6, PW 5 Joginder Singh counting agent of table No. 5, PW 6 Charan Dass, B.J.P. candidate, PW 7 Parmesh Grover counting agent of BJ.P. candidate, PW 8 Jasbir Singh election agent of the petitioner and PW9 Kanwar Singh polling agent of booth No. 73, in support of the allegations made in the petition.
19. Respondent No. 1 produced RW 1 Shri H. I. S. Grewal, Returning Officer, RW 2 Dara Singh polling officer of booth No. 73, RW 3 Pt. Bal Mukand respondent No. 1, RW 4 Anil Sharma alias Kaku counting agent of Congress (I), RW5 Parkash Chand, Senior Clerk, Office of Deputy Commissioner, Ferozepur, RW 6 Iqbal Singh counting agent of Independent candidate and RW7 Swaran Singh, Tehsildar, Elections.
Issues Nos. 182:
20. Both these issues being interconnected are decided together.
21. Petitioner and his witnesses have mostly reiterated the allegations made in the petition. Respondent No. 1 and his witnesses have also reiterated what has been stated in the written statement on all the basic points. The only independent witnesses in this case are Shri H. I. S. Grewal (RW 1) who was the Returning Officer, R W 5 Parkash Chand and RW7 Swaran Singh, Tehsildar, Elections who was also summoned by the petitioner and had appeared as PW3. He produced the original summoned record i.e. Form No. 20 pertaining to 95-Ferozepur Assembly Constituency. The evidence of each one of these witnesses shall be referred to at the relevant stage while discussing various contentions raised by counsel for the parties during the course of arguments.
22. The first point to be decided is as to whether respondent No. 1 made an attempt to capture booth No. 73 and as to whether bogus votes by impersonation at this booth were cast or not. In support of these allegations petitioner Mukhtiar Singh appeared as PW 1 and stated that respondent No. 1 tried to capture the booth but did not succeed; that nearly 400 votes were wrongly cast by impersonation in favour of respondent No. 1; he further stated that he reached to polling booth No. 73 along with his supporters. The only other witness who supported the petitioner on this allegation is P W 9 Kanwar Sain who was the polling agent of B. J.P. candidate at booth No. 73. He stated that he reached the polling booth at about 7.30 a.m. on the date of polling whereas the polling had started at 7 a.m.; that there was also lot of rush in the morning and polling agents of various candidates raised objections that the votes were not being polled in accordance with the rules; that bogus votes are being polled without tallying the names of voters with the names mentioned in the voters' list. This witness has stated that he came out of the polling booth at 8/8.30a.m. Thereafter, he went inside the polling booth at 11 a.m. and thereafter went to his house for taking food. Thereafter, he came back from his house at 3.30p.m. and went inside the polling booth; at about 3.45 p.m. he heard some noise. The security force were trying to disperse the public which had gathered near the outer gate of the I.T.I. building. He came out of the polling booth and thereafter, he was not allowed to enter in the polling booth. In his statement, he has nowhere stated that respondent No. 1 came to the polling booth in his presence or his agents tried to capture the booth. He also did not say in his statement that respondent No. 1 or his supporters cast bogus votes by impersonation.
23. The next point to be considered is as to whether the seals of ballot boxes of booth No. 73 were found broken and further as to whether the Returning Officer had ordered that the ballot papers of booth No. 73 be not mixed up with the votes cast at other booths before the actual counting begin and ordered them to be kept apart.
24. As against this, respondent No. 1 has stepped into the witness box as RW 3. He has denied the allegations that he tried to capture the booth or any bogus votes were cast at booth No. 73 RW 2 Dara Singh who was the polling officer at booth No. 73, stated that Piare Lal who was the Presiding Officer of booth No. 73 had died; that there was no disturbance at booth No. 73 during the polling; that respondent No. 1 or his supporters did not try or succeed in capturing the booth and the polling was done in an ordinary manner and there was no bogus voting. On the perusal of the evidence produced by the parties, I do not find any substance in the allegations made that respondent No. 1 tried to capture booth No. 73 in which he did not succeed. I do not find any substance in the other allegation that on booth No. 73 any bogus votes were polled by impersonation at the instance of respondent No. 1 or his supporters. Mukhtiar Singh PW 1 and PW9 Kanwar Sain, have not stated in their statements that they saw respondent No. 1 present on booth No. 73 on the day of polling. In the absence of any such evidence to this effect, it cannot be held that there was any attempt to capture booth No. 73 or that any bogus votes were polled by way of impersonation. The evidence of respondent No. 1 coupled with that of R W 2 Dara Singh who was the polling officer at booth No. 73 leaves no manner of doubt that there was any attempt to either capture the booth or that any bogus votes were polled by way of impersonation.
25. The pleaded case of the petitioner is that he raised the objections that the seals of the gunny bags in which the ballot boxes of booth No. 73 were stored were broken and similarly the seals of the ballot boxes were also broken; that on the protest lodged by the petitioner, the Returning Officer ordered that the ballot papers of the ballot boxes of booth No. 73 be not mixed up with the other votes, the same be kept apart and be not counted whereas the case of the respondent is that all the ballot boxes of booth No. 33 were intact. The ballot papers of the boxes of booth No. 73 were mixed up with the other votes and were ordered to be counted by the Returning Officer together with the other votes. The Returning Officer Shri H.I. S. Grewal has stepped in the witness box as RW 1 and stated that he received three complaints which were identical from Shri Mukhtiar Singh B. S. P. candidate, Shri Charan Dass Handa (B.J.P.) and Harpal Singh Bhullar an Independent candidate exhibits RW7/1; RW7/2 and RW7/3 (RW7/1 was also produced as Ex.RW1/1) alleging that the ballot boxes of booth No. 73 were not intact. He ordered that the ballot boxes of booth No. 73 be brought to him on the dias. The seals were examined in the presence of all the contesting candidates on the dias. It was found that outer seal of one of the ballot boxes was not intact. The three complaints which were received by the Returning Officer were disposed of by him after consulting the Conduct of Election Rules and the Returning Officer's Handbook. Vide Order Ex. RW1/1 (which has also been exhibited as RW7/5), the three complaints were rejected and the copy of the order was handed over to the complainant at the spot. The Returning Officer examined the ballot boxes as pen Rule 55 of the Conduct of Election Rules, which reads as under:--
"Scrutiny and opening of ballot boxes:--(1) The returning officer may have the ballot box or boxes used at more than one polling station opened and the ballot papers found in such box or boxes counted simultaneously. 2 * * * * (2) Before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact.
(3) The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with.
(4) If the returning officer is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in S. 58 in respect of that polling station."
26. A perusal of this would show that Returning Officer has to be satisfied that the ballot boxes have not been tampered with. The Returning Officer examined the ballot boxes and found that outer seal was not intact but the inner paper seals were intact. The Election Commission of India, in its Hand Book for the Returning Officer in Chapter 14, has clearly laid down that where a paper seal is used for closing a ballot box, the outer seals of the ballot box are not vital and even if these outer seals are damaged, but the inner paper seal is intact, the contents of the ballot box could not have been tampered with and any objection in this regard was to be rejected.
After reproducing Rule 55 of the Conduct of Election Rules, 1961 and referring to the instructions contained in para 14(a) of the Hand Book of the Returning Officer in the order, the Returning Officer rejected the application filed by the petitioner and ordered that the votes of these ballot boxes be counted. I have perused the statements of the petitioner PW 1, PW6 Charan Dass B.J.P. candidate, Bal Mukand respondent No. 1 (RW3) and (RW I) H. I. S. Grewal the Returning Officer. I have also perused the three applications Exs.RW7/1, RW7/2 and RW7/3 and the order passed by the Returning Officer thereon as Ex.RW1/1. On a perusal of the oral evidence and the documentary evidence adduced on the record, I am left with no doubt that the Returning Officer decided the application filed by the petitioner and other candidates immediately on their receipt; the order RW1/1 was passed immediately thereupon. The ballot papers of booth No. 73 were ordered to be mixed up with the other votes of the constituency and were counted simultaneously and were not ordered to be kept apart as alleged by the petitioner.
27. PW 1 Mukhtiar Singh petitioner in his cross-examination admitted that in his application Ex.PW1/1 he had stated that he suspected som'e irregularities had been committed because the seals on the ballot box of polling booth No.73 were not intact. In his application RW7/2 (PW1/1) he had not stated that the slit of ballol boxes from polling booth No. 73 had been ripped open. In his statement the petitioner has further admitted that objections were decided by the Returning Officer after about ten minutes of the receipt of the complaint. Thus, the statement made by PW 1 Mukhtiar Singh gives corroboration to the statement of the Returning Officer that paper seals were intact and that he had rejected the application filed by the petitioner and other candidates after some time of their receipt. The testimony of Shri H. I. S. Grewal, Returning Officer (as RW 1) is straight forward, unambiguous and consistent. There is nothing on the record which can lead me to disbelieve the testimony of this witness. Thus, I find no merit in the submission of counsel for the petitioner that the Returning Officer helped respondent No. 1 during the course of counting. The case made out by the petitioner in the pleadings is at variance with the statement made by him in the Court as PW 1. The petition filed by him is also at variance with the first application filed by him and exhibited as PW1/1 (RW7/2). Thus, the allegations contained in the petition are clearly the result of an afterthought.
28. The next point to be decided is regarding the discrepancy of the number of ballot papers taken out of the ballot boxes of booth No. 73. According to the ballot paper account sent by the Presiding Officer of booth No. 73, the total number of votes polled were 513 whereas the votes taken out of these two boxes of the booth at the time of counting were 613. A dispute was raised by the petitioner by filing application PW1/2. The dispute was also raised by Shri Charan Dass Handa a B.J.P. candidate. He also filed a separate application. These two applications were disposed of by the Returning Officer vide his order Ex. RW1/2 (equivalent to Ex. RW7/6). I have perused this order. It has been noticed in this order that the Presiding Officer wrongly and by a clerical mistake had mentioned the polled votes to be 513 instead of 613. The Returning Officer had seen the Presiding Officer's diary regarding the total number of electors who had voted. According to the Presiding Officer's diary, 613 votes had been polled out of which 339 were male and 274 female. Similarly in column No. 18 of the Presiding Officer's diary which gives the account of the votes cast after every two hours, the total number of votes cast at the end of the poll came to 613. The only discrepancy was in column No. 5 of the ballot paper account where the Presiding Officer has shown the ballot papers to be 513. Form 16 Part-I has to be filled in by the Presiding Officer of the polling booth which is the ballot paper account. Form 16 Part-I of this constituency were produced by RW 7 Swaran Singh. Form 19 was not formally exhibited but Form 16 of all the polling stations were placed on the record. The mistake committed by the Presiding Officer of this booth was that instead of subtracting 513 i.e. the unused ballot papers from the total number of ballot papers i.e. 1130, he subtracted 617 which mentioned the figure 513 to be votes polled from this booth. There is an apparent mistake on the face of the ballot paper account. The Returning Officer after consulting the Presiding Officer's diary concluded that in fact 613 votes were cast (339 male and 274 female = 613). This fact further finds corroboration from the Presiding Officer's diary which gives the account of votes after every two hours. There it is also shown that the total number of votes cast at the end of the poll was 613. On this point also I have examined the statement of the petitioner PW 1, PW6 Charan Dass Handa, respondent No. 1 RW 3 Bal Mukand and RW 1 H. I. S. Grewal, Returning Officer. The statement made by the Returning Officer as RW 1 is absolutely trustworthy. I have perused the order Ex.RW1/2 as well. It is considered ordered which has been passed in accordance with the provisions of the Act and the Rules. No exception can be taken to the order passed or the conduct of the Returning Officer.
29. In conclusion, on this point, it is held that at the time of actual counting, the outer seal of two ballot boxes of booth No. 73 were not intact. Objections were filed by the petitioner, a B.J.P. candidate and the Independent candidate. The said objections were overruled by detailed order Ex.RW1/1. When the ballot boxes of booth No. 73 were opened, 613 ballot papers were taken out whereas the Presiding Officer in the ballot paper account had shown the used ballot papers to be 513. Again an objection was raised which was overruled by a detailed order Ex.RWl/2. After overruling the objections the ballot papers of booth No. 73 were mixed up with the other ballot papers of the constituency. Only after mixing of the ballot papers, initially 50 ballot papers were tied in one bundle and thereafter 20 bundles of 50 ballot papers each were distributed at the counting tables. The submission of counsel for the petitioner that the orders Exs. RW1/1 and RW1/2 were not passed in the counting hall and that they were fabricated later on by the Returning Officer is not accepted.
30. AH the candidates filed an application RW 1/6 before the Chief Returning Officer complaining regarding the counting of votes of booth No. 73 by the Returning Officer. The Chief Returning Officer sent a copy of this application to the Returning Officer for his comments. Returning Officer sent his comments vide memo No. 623/SDA dated 24-2-1992 Ex. RW 1/7. In the order RW 1/7, the Returning Officer reiterated the facts and conclusions arrived at by him in orders Exs. RW 1/1 and RW 1/2. From 16 along with the ballot papers and the various orders passed by the Returning Officer were sent to the treasury and put in double lock. Orders Exs. RW 1/1, RW J/2and RW 1/7 along with the applications filed by the petitioner, the B.J.P. candidate and the independent candidate were produced before this Court in compliance of a special order by opening the double lock of the treasury. RW 7 Swaran Singh Election Tehsildar has stated in Court that these documents could only be procured from the treasury under the orders of this Court. The fact that orders Exs. RW 1/1, RW 1/2 and RW 1/7 were in double lock of the treasury also vindicates the statement of the Returning Officer that these orders were passed in the sequence in which it was stated to have been passed by the Returning Officer in his statement as RW 1.
31. It was argued by the counsel for the petitioner that votes should have been counted booth-wise and not after mixing the votes of whole of the constituency. I do not find any substance in this submission. It is the case of the petitioner which is admitted by respondent No. 1 that elections in Punjab were held under a very tense atmosphere. I find nothing materially wrong that the votes of whole of the contituency were ordered to be mixed up and then ordered to be counted after trying them in the bundles of 50 each. It is not alleged in the petition that any objections were raised by any of the candidates or their agents to this method being adopted at the time of counting of votes. The same pattern was adopted in other constituencies in the State at the time of counting of votes. In any case, this by itself does not make out a case of recount.
32. I do not find any substance in the allegation that Shri H.I.S, Grewal S.D.M. was not posted at Ferozepur by respondent No. I with the help of Shri Beant Singh. Shri H.I.S. Grewal Returning Officer was appointed as S.D.M. Ferozpur on June 11, 1991 i.e. eight months before the elections in Punjab were held. The elections in Punjab were not under contemplation at that point of time. It was not sure as to when the elections in Punjab were to be held. Otherwise also, there is nothing on the record to conclude that Shri H.I.S. Grewal was got posted at Ferozepur at the instance of Shri Beant Singh or respondent No. 1.
33. I do not find any substance in the submission that the votes of other candidates were put in the bundles of respondent No. I and thereafter counted as his votes. In either of the applications filed before the Returning Officer, no allegation in this respect has been made by any of the candidates. The allegations seem to be the result of afterthought. The evidence of the counting agents of the petitioner in this regard cannot be accepted which is absolutely vague and without any substance. Similarly, the allegations regarding wrongful rejection of votes which had been polled in favour of the petitioner cannot be accepted. No such allegation is made in any of the applications filed by the petitioner before the Returning Officer during the course of counting. This also is a result of afterthought. The allegations made in the petition and the statements made by various counting agents of the petitioner who have appeared in the witness box are absolutely general in nature without'being specific and cannot be accepted. This also gets strength from the document Ex. RW 1 / 6 which is an application filed by all the candidates jointly before the Returning Officer claiming re-poll in booth No. 73 and the recount in the constituency. This application was filed after the declaration of result on 21-2-1992. In this application, it has not been mentioned by the candidates that the votes polled in their favour were wrongly rejected or that the votes polled in their favour were counted as that of respondent No. 1.
34. The allegation of the petitioner that he along with other candidates and their counting agents were turned out of the counting hall cannot be accepted in view of the statement made by Shri H.I.S. Grewal, Returning Officer (RW 1). Simply because the petitioner or other defeated candidates have not signed Form 20, it cannot be concluded that they were turned out of the counting hall or that the result was not declared in their presence. Inferentially, his finding also gets support from my findings recorded in the earlier part of this judgment regarding the counting of votes of booth No. 73 and the conduct of the Returning Officer in the counting of votes.
34A. Bhabhi v. Sheo Govind, AIR 1975 SC 2117, is the basic authority in which it has been laid down as to under what circumstances a recount can be granted. It has been held that the Court may be prima facie satisfied 6n the materials produced before the Court regarding the truth of the allegations made for a recount and the recount can be granted only if the Court comes to the conclusion that in order to grant permission for inspection it is necessary and imperative to do full justice between the parties; 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 revoing inquiry with a view to fish out materials for seeking declaration of the election be void. In this case, I have concluded on facts that I am not satisfied prima facie on the material produced before the Court that a case is made out for recount of votes. The other authorities cited at the bar were: Shri Mahender Singh v. Shri Hukum Singh, AIR 1993 Punj and Har 172, Ram Sarup v. Peer Chand, AIR 1993 Punj and Har 180, Ch. Prabhu Ram v. Bhag Mal, 75 ELR 70 and (Mrs.) Kamla Varma v. Rajesh Kumar, 71 ELR 218.
35. I have perused these authorities but I find that they are not applicable to the facts of the present case. In Ch. Prabhu Ram's case (75 ELR 70) (supra), the Court had ordered recount because the Returning Officer had consulted (who was not put on any particular duty) and thereby allowed his discretion to be influenced by his opinion while accepting or rejecting doubtful votes. On this finding, the learned single Judge came to the conclusion that acase for recount was made out. Similarly in Mrs. Kamla Varma's case (71 ELR 218) (supra), the Assistant Returning Officer granted recount by oral order which was replaced by him by passing a fresh order rejecting the application for recount. On these facts, it was concluded by the learned single Judge that the Assistant Returning Officer had acted illegally in substituting the oral order by a fresh order rejecting the application for a recount and, therefore, a case for. recount was made out. In Shri Mahender Singh's (AIR 1993 Punj and Har 172) and Ram Sarup's case (AIR 1993 Punj and Har 180) (supra), it was held that mere vague allegations in the petition does not constitute cause of action for trying the petition. In this case the petition was dismissed at the initial stage and enquiry by trial was not made because the learned sinle Judge came to the conclusion that the allegations made therein were vague and did not constitute a cause of action. In this petition, after the trial of the petition, I have come to the conclusion that no case for recount is made out. Ram Sarup's case (supra) also does not help the petitioner on the contrary, it may be said to be somewhat relevant to the case of respondent. In Mahender Singh's case (supra) parties themselves were agreed for a test check of certain booths and tables and accordingly recount of certain booths was ordered in which certain irregularities and illegalities were detected on the basis of which recount was ordered by the learned single Judge of this Court. Again this authority is not applicable and cannot be of any avail to the petitioner.
36. Although the petitioner has stated that he. had claimed a recount immediately after the conclusion of the counting but no such application was produced. This fact has been denied by the respondent as well as the Returning Officer. Case of the petitioner was that the application filed by him was torn into pieces by the Returning Officer. I do not find any substance in this submission either because in the application filed by all the candidates Ex. RW 1/6 to the Chief Returning Officer, it has not been mentioned that a recount was claimed by the petitioner or any other candidate. This was the earliest point of time where the petitioner should have made a complaint that in spite of his demand for a recount, the Returning Officer had failed o grant the same. Non mentioning of this fact in the application Ex. RW 1/6 indicates that the plea of the petitioner that the recount was claimed by filing an application and that the application had been torn into pioeces and recount declined orally by the Returning Officer canot be accepted.
37. In view of the discussion above, both the issues are decided against the petitioner and in favour of respondent No. 1. Consequently, the election petition fails and is dismissed with costs which are quantified at Rs. 5000/-.
38. Petition dismissed.