Patna High Court
Ramanand Yadav vs Vijay Singh Yadav And Ors. on 21 January, 2000
Equivalent citations: AIR2000PAT244, AIR 2000 PATNA 244, (2000) 2 BLJ 152
Author: Bharat Prasad Sharma
Bench: Bharat Prasad Sharma
JUDGMENT Bharat Prasad Sharma, J.
1. This election petition under Sections 80A and 81 of the Representation of the People Act, 1951 (hereinafter to be mentioned as 'the Act') has been presented and filed on behalf of Sri Ramanand Yadav, a losing candidate in the election held in 1996 for Bihar Legislative Assembly from 209, Danapur Assembly Constituency.
2. It appears that there were altogether 12 candidates contesting the election and the petitioner has impleaded the rest 11 candidates including the winning candidate as respondents in this case. The elected candidate Sri Vijay Singh Yadav has been impleaded as respondent No. 1 and he has filed a written statement and has contested the election petition. It has been stated on behalf of the petitioner that he was one of the contesting candidates in the bye-election of 209 -- Danapur Assembly Constituency during the election held in May, 1996. He has challenged the election of the returned candidate, respondent No. 1 (Vijay Singh Yadav). According to the petitioner, he had secured majority of valid votes cast during the election, but on account of miscounting of ballot papers he was not declared elected and respondent No. 1 was declared elected and the petitioner was defeated by a margin of 588 votes. The petitioner apart from seeking declaration for setting aside the election of respondent No. 1 has also sought relief under Section 101 of the Act to be declared as returned candidate in place of respondent No. 1. According to the petitioner, in the general election held in the year 1995 Shri Laloo Prasad was elected from the Constituency in question. However, Sri Laloo Prasad, who subsequently became the Chief Minister of Bihar, was also been declared elected from another Constituency, namely, Raghopur Assembly Constituency, and, so, Sri Laloo Prasad resigned from Raghopur Assembly Constituency due to which holding of bye-election was necessitated. Accordingly, the Election Commission of India decided to hold bye-election along with the general election of the Parliament. A notification for holding general election of Parliament as also bye-election of 209-Danapur Assembly Constituency was issued by the Election Commission of India on 27-3-1996 giving detailed programme. The programme was as the date of nomination 27-3-1996 to 3-4-1996, the date of Scrutiny- 4-4-1996, date of withdrawal -- 6-4-1996, date of Poll -- 7-5-1996, date of counting -- 9-5-1996. It is further stated that at the relevant time Sri Nawal Kishore Upadhyaya ("Madhup") happened to be the S.D.O. of Danapur and, accordingly, he was appointed as the Returning Officer by the Election Commission of India. Altogether 20 candidates had filed their nomination papers for contesting the election, but the nomination papers of two of the candidates were rejected by the Returning Officer. Thereafter 18 nomination papers were found valid during scrutiny by the Returning Officer and the same were accepted on the date of withdrawal, i.e. on 6-4-1996. Six candidates withdrew their nominations and only 12 candidates remained in the field. The different symbols were also attached to the aforesaid 12 candidates. The election petitioner Sri Ramanand Yadav of Janta Dal was allotted the symbol of Chakra;
while Sri Vijay Singh Yadav (respondent No. 1) was allotted the symbol of lotus (Kamal) being a candidate of B.J.P. Thereafter election was held on 7-5-1996 as per the programme. It was held along with 35-Patna Parliamentary Constituency. 209-Danapur Assembly Constituency constituted a segment of 35-Patna Parliamentary Constituency. It is further stated that on 8-5-1996 a message was received by the Returning Officer of 35-Patna Parliamentary Constituency not to proceed with the counting of votes of the said Parliamentary Constituency. It is also stated that the boxes for Assembly as well as Parliamentary Constituency were common during polling. However, the ballot papers of Assembly Constituency were pink in colour whereas the ballot papers of Parliamentary Constituency were white. Each voter was supplied two ballot papers at a time; one for Assembly Constituency and another for Parliamentary Constituency. Two ballot papers were required to be put in the same ballot boxes. Further, it is stated that a declaration was made by the Election Commission of India on 10-5-1996 under the purported exercise of power under Sections 58 (2) (a) and 58-A (2) of the Act cancelling the entire poll of Assembly Constituency held on 7-5-1996 and 16th May, 1996 was the date fixed for repoll in the Constituency. It is also further stated that in pursuance of the said declaration of the Election Commission of India the Sub-divisional Officer-cum-Returning Officer of the Assembly Constituency issued a Memo on 11-5-1996. The petitioner further stated that the Election petitioner learnt that the Returning Officer had submitted a report regarding only one booth out of 2nd booths and excepting for the said report the Return-Ing Officer did not submit any report to the Election Commission of India regarding the poll held on 7-5-1996, but the election of the entire Constituency was countermanded by the Election Commission which was illegal and not in confirmity with the provisions of the Act.
3. It is also further stated that the Returning Officer of the Constituency was also changed in the night of 15-5-1996, and in place of Sri Nawal Kishore Upadhyay "Madhup". the S.D.O. of Danapur, Smt. Nirja was made S.D.O.-cum-Returning Officer of this Assembly Constituency. It is further stated that the Circle Officer of Danapur happened to be the Assistant Returning Officer of the Assembly Constituency, but on the date of counting the aforesaid Assistant Returning Officer was replaced by one Sanjay Singh, Executive Magistrate, Danapur. However, repoll took place on 16 th of May, 1996. After the repoll in the Constituency, counting of votes started, As the poll held on the first occasion was cancelled, both in respect of the Assembly Constituency as well as Patna West Assembly Constituency, the poll for Parliamentary Constituency in that segment was also held again. The venue of counting of the Parliamentary Constituency as well as Assembly Constituency was A. N. College, Patna. The counting started on 17-5-1996 at 8 A.M., It is stated that as per the programme of previous counting, the counting was to take place in one hall on 14 tables apart from the Central table, but on 17-5-1996 the venue of the counting was in two rooms, each room having 14 tables for the purpose of counting. It is also further stated that at the initial counting the ballot papers were separated between ballot papers of Assembly Constituency and that of the Parliamentary Constituency, which was done on 28 tables and thereafter bundles of 25 ballot papers each were prepared. It is also further stated that neither the petitioner nor any other contesting candidate than respondent No. 1 and one Ranbir Singh, an independent candidate, was informed that the Initial counting was to take place on 28 tables and therefore, the petitioner could appoint only 15 counting agents, i.e. 14 for counting tables and one for central table. It is also further stated that on the day of counting the Returning Officer was sitting in the hall situated at the first floor; whereas the A.R.O. was sitting in the hall situated on the ground floor. It is further stated that as per schedule, the counting was done for the booth Nos. 1 to 140 on the first floor and the counting of remaining booths was done on the ground floor in the first phase. It is also further stated that the election petitioner and the contesting candidates submitted a list of 15 counting agents each for the purpose of counting before 6-5-1996, but no Information was given to the election petitioner that the counting tables would be increased to 28 on 17-5-96 and accordingly, on 17-5-1996 only 15 counting agents of the petitioner were allowed; whereas respondent No, 1 was allowed 15 more counting agents. It is further stated that due to partial and collusive attitude of the Returning Officer 14 tables at the initial counting remained unrepresented on behalf of the election petitioner while respondent No. 1 had counting agents on all the tables. It is also stated that one Lallan Prasad was the election agent of the petitioner. He was present all along in the counting hall and he orally protested to the Returning Officer about his partial and collusive attitude pointing out that 14 tables remained unrepresented on behalf of the petitioner as no Information was given to him. In spite of oral protest nothing was done by the Returning Officer in this regard.
4. It is also stated that the election agent of the petitioner also filed a written complaint slating the above mentioned facts and also other illegalities committed during the course of counting. It is also further stated that no announcement was being made by the Returning Officer at the completion of each round in respect of the votes secured by each contesting candidate. According to the petitioner, the total votes counted in the Assembly Constituency was 76,335, out of which 1735 votes were rejected as invalid, On the other hand 74,600 votes were declared valid. On the other hand, so far as the Parliamentary Constituency is concerned, the total votes counted were 76,258, out of which 1596 were rejected and 74,662 were found valid. The tabular chart of the votes polled by each candidate during counting has been given showing that the petitioner had received 36.116 votes while the respondent No. 1 had secured 36,704 votes. It is also further alleged that the illegalities and irregularities were committed during the course of counting of voles and the same have been enumerated in paragraph 35 of the petition. In sub-paragraph (vi) of paragraph 35 the tabular chart has been given giving out the details of the votes counted with the votes shown as polled in Form No. 16 Part I. The irregularities committed have been detailed in paragraph 36 of the election petition.
5. It is also further stated that the counting staff were appointed by the District Magistrate and not by the Returning Officer which is violative of the instruction issued by the Election Commission of India. According to the petitioner, the attitude of the Returning Officer was hostile to the election petitioner and in favour of respondent No. 1 and therefore, the fact stated by the election agent of the petitioner was never correctly incorporated in the order sheet and the election agent of the petitioner had noted down his protest in the order sheet. According to the petitioner, his election agent had filed three petitions on 18-5-1996 regarding illegalities being committed and prayed for recount of the ballot papers as required under Rule 63 of the Conduct of Election Rules, 1961, but the prayer for recount was turned down. Accordingly, it has been stated on behalf of the petitioner that the election result has been materially affected because of this partial attitude of the Returning Officer and therefore, a prayer has been made to declare the election as void and illegal, and it has been prayed that the petitioner be declared elected from the Constituency.
6. Respondent No. 1 appeared and filed written statement in which apart from challenging the maintainability of the election petitioner for non-compliance of the provisions of Sections 81, 82 and 117 of the Act, it has been stated that the petition in question has been filed without any supporting material and only in order to disturb the election of respondent No. 1. According to respondent No. 1, he had received a maximum valid votes in counting and the counting was done in proper and fair manner and no illegality or irregularity was committed by the counting personnel. All the allegations have been denied on behalf of respondent No. 1. It has been stated that so far as poll held on 7-5-1996 in this Constituency is concerned, the same was not free and fair as it was not conducted in accordance with law and the polling on 7-5-1996 was farce and it was a rigged polling and in such circumstance the Returning Officer was not justified to make a report to the Election Commissioner for repoll at only one polling booth, namely, Booth No. 268. Therefore, on the basis of other materials and reports produced before the Election Commission of India, The Election Commission passed an order in accordance with law exercising its power under Sections 58 (2) (a) and 58-A (2) (a) for holding a fresh poll in the Constituency. The decision of the Election Commission regarding holding of fresh poll in the Constituency cannot be challenged by the petitioner in the present petition. It is further stated that in fact regarding poll held on 7-5-1996 it was widely reported in the national media that the manner in which the voters were threatened and prevented from casting votes and the magnitude of booth capturing by the anti-social elements had made the election farce. It has also been further stated that the counting of ballot papers started on 17-5-1996 no doubt, but in fact seven counting tables were arranged for the counting of ballot papers in respect of the election in question and it is totally incorrect to say that there were tables in each counting hall. It is stated that the Assembly Election from Danapur Assembly Constituency had nothing to do with the Parliamentary Election from Patna Parliamentary Constituency which consists of six Assembly segment including Danapur Assembly Constituency. So, counting of ballot papers regarding Patna Parliamentary Constituency in respect of its Constituent Assembly Constituency was done separately at separate counting tables and the said counting had nothing to do with the election in question. So, it has been stated that the petitioner has unnecessarily mixed the counting of ballot papers of Patna Parliamentary Constituency and the counting of ballot papers of the Assembly Constituency in question. It is also further stated that all the candidates were fully aware of the fact that each contesting candidate had to appoint only 14 counting agents for counting tables. It is further stated that many of the allegations made in the election petition are incorrect and motivated and had been prepared only for the purpose of filing the election petition. In fact counting was done only at 14 counting tables and 15th table was assigned to Assistant Returning Officer or the Returning Officer.
7. It is denied that the number of counting tables were increased at any time or stage of counting. Therefore, it was neither necessary nor proper to give information to the petitioner that the number of counting tables will be increased and the entire allegation is a fabrication and concoction. Respondent No. 1 has emphatically denied that more than 14 counting agents were appointed by him. In fact only 14 counting agents were appointed and above present on 7 tables each in two counting halls on which counting for Assembly Constituency was done and the rest 14 tables, 7 tables each in both the halls, related to Parliamentary Constituency. Accordingly, while the counting was going on in two halls, respondent No, 1 was present near the central table in the counting hall on the upper floor and his election agent was present near the central table in the counting hall on the lower floor. It has been stated that actually in course of counting in the first phase ballot papers are not counted candidatewise; rather the total number of ballot paper is counted and the bundles of 25 each, are prepared and thereafter in the second phase of counting, the counting is done candidatewise. So, according to the respondent, while in the first phase the ballot papers for both Parliamentary and Assembly Constituencies were separated and then bundles were prepared; in the second phase counting for the Assembly Constituency was done on 14 tables and 7 tables each in both the halls were meant for counting of the ballot papers of Parliamentary Constituency. It has been stated that no one including the petitioner or his election agent made any complaint regarding any kind of irregularity in the initial counting of ballot papers and the claim of the petitioner is not correct that any kind of complaint was made. It was, accordingly, stated that if it was so that the election agent of the petitioner had filed any protest petition in course of counting, the same should have been annexed with the election petition.
8. It is also denied that the announcements were not being made roundwise: rather it has been stated that after completion of each round of counting, the result was announced on public address system and was also written on the blackboard in the hall. It is also further stated that the allegation regarding discrepancy in the votes counted for Parliamentary Constituency and the Assembly Constituency is a matter of record. Similarly the statement made in paragraph 34 of the petition is also termed as a matter of record. So far as the assertions and the allegations made in paragraphs Nos. 35 and 36 are concerned, the same have been specifically and emphatically denied by respondent No. 1 in the written statement. It is denied that there was any irregularity being committed by the counting staff in course of counting or that any personnel of paramilitary force was present inside the hall and it is also denied that any counting staff was caught committing any irregularity and all the allegations are denied and the petitioner is put a strict proof of the allegations. It is denied that any other unauthorised person had any hand in conducting and supervising the counting process or that the counting staff was appointed by the District Magistrate; rather it is stated that all the counting staff were appointed by the Returning Officer. It has been stated that as there was no complain to the Returning Officer regarding any irregularity, the question of his mentioning this fact in his order sheet did not arise. Accordingly, it has been stated that the petitioner has no complete cause of action and the petition is fit to be dismissed with cost.
9. After the written statement was filed, the parties were allowed to call for the documents and when the documents were received and the election petition was ready for hearing a petition filed on behalf of respondent No. 1 regarding maintainability of the petition was pressed and the parties were heard and an order was passed on 24-2-1998 by which the petition of respondent No. 1 was dismissed and it was held that neither there was any non-compliance of the provisions of Sections 81, 82 or 117 of the Act nor the petition was fit to be summarily dismissed under Order 7, CPC. Prior to this date the issues were settled on 17-3-1997. The issues as framed were as follows :
1. Whether the election petition as framed is maintainable?
2. Whether the election petition is fit to be dismissed for non-compliance of the mandatory provisions of Sections 81, 82 and 117 of the Representation of the People Act?
3. Whether the election petition is fit to be dismissed for non-compliance of Section 83 of the Representation of the People Act, Inasmuch as the material particulars and material facts have not been disclosed in the election petition and, therefore, there is no complete cause of action?
4. Whether the election of respondent No. 1 Vijay Singh Yadav, who has been declared elected in the bye-election of 209-Danapur Assembly Constituency held in the month of May, 1996 has been materially affected by illegality and irregularity committed during the course of counting?
5. Whether the election petitioner has received majority of valid votes during the polls and as such, he is entitled to be declared as elected candidate from 209-Danapur Assembly Constituency in respect to the election held in May, 1996?
6. To what relief or reliefs, if any, the election petitioner is entitled?
10. It is, therefore, obvious that in view of the order passed on 24-2-1998 the Issue Nos. 1, 2 and 3, which were taken up as preliminary issue, stand disposed of. The remaining issues, i.e. Issue Nos. 4, 5 and 6 are to be considered.
11. Both the parties have adduced evidence in support of their respective claims and the documents have also been admitted Into evidence on behalf of both the parties.
12. On behalf of the petitioner altogether 14 witnesses have been examined. Out of them P.W. 1 Lalan Prasad Singh was the election agent of the petitioner and in this capacity he was present in course of counting. He has been put to a lengthy cross-examination. P.W. 2 Rameshwar Rai happened to be a counting agent of the petitioner in one of the counting halls. P.W. 3 Manoj Kumar was also a counting agent of the petitioner deputed on table No. 2 which was subsequently shifted to table No. 9. P.W. 4 Kameshwar Prasad was also a counting agent of the petitioner deputed in the counting hall on the ground floor on table No. 5 in the first phase and in the second phase it was on table No. 12. P.W. 5 Nitya Nand Singh was also a counting agent of the petitioner on table No. 3 on the ground floor which was treated as table No. 10 in the second phase of counting. P.W. 6 Nandu Kumar was a counting agent of the petitioner on table No. 10 on the upper floor of the building. P.W. 7 Naudip Prasad was also a counting agent of the petitioner on table No. 1 in the counting hall on the lower floor. P.W. 8 Md. Arnar Khan was present on the upper floor counting hall on behalf of the petitioner and was on table No. 14. P.W. 9 Ragho Prasad was also a counting agent of the petitioner on table No. 6 in the first phase and on table No. 13 in the second phase of counting. P.W. 10 Ajay Singh Yadav was present on table No. 11 in the hall on the upper floor. P.W. 11 was on table No. 12 on behalf of the petitioner on the upper floor. P,W. 12 Manindar Prasad Singh was also a counting agent of the petitioner on table No. 13 on the upper floor. P.W. 13 Ramanand Yadav is the petitioner himself.
13. On the other hand, altogether 9 witnesses have been examined on behalf of the respondents including the then Returning Officer of the Constituency, Smt. Neerja, who was examined on commission. D.W. 1 Satya Narayan Rai was an election agent of the respondent and therefore, was present in the counting hall and knew the facts. D.W. 2 Umeshwar Singh was a counting agent of the respondent on table No. 6 in the lower floor. D.W. 3 Raj Kishore Singh was also a counting agent of the respondent and in this capacity he was present in the counting hall all along on table No. 13 in the lower floor, D.W. 4 Arun Kumar Yadav was also a counting agent of respondent No. 1. He was on table No. 8 on the upper floor. D.W. 5 Jagdish Singh was also a counting agent of respondent No. 1 on table No. 9 on the upper floor. D.W. 6 Vijay Singh Yadav is the respondent No. 1 himself. D,W, 7 Sanjay Kumar Singh happened to be the Executive Magistrate at Danapur at the relevant time and during election in question he was appointed as Assistant Returning Officer for the Constituency. He had conducted the countingin the election and he has stated about the procedure being followed in course of counting. D.W. 8 Ajay Kumar happened to be the District Magistrate of Patna at the relevant time and in the capacity as the District Magistrate he happened to be the District Election Officer and was also Returning Officer of the Parliamentary Constituency. According to him, the counting of votes of the Parliamentary Constituency and Assembly Constituency were done simultaneously. The next witness whose deposition has been recorded on commission under special circumstance is Smt. Neerja, who was the Returning Officer of the Constituency in question in the election. She has stated as to under what circumstance the election was countermanded in the Constituency and she was appointed as the Returning Officer. She has given the details of the manner and process of counting and she has denied that there was any illegality or irregularity committed in course of counting. She has also produced the relevant paper marked Ext. 1 and she also testified that Ext. 3 was in her handwriting,
14. So far as the documents are concerned, Ext. 1 is a petition said to have been filed by the election agent of the petitioner before the Returning Officer on 18-5-1996. Ext. 1/A is another petition filed by election agent of the petitioner Sri Lalan Prasad Singh on some unknown date. The petition is not dated. Ext. 1/B is also a petition purported to have been filed by P.W. 1, the election agent of the petitioner, on 18-5-1996. Ext. 1 on commission is the order. sheet of the Returning Officer relating to counting. Ext. Sis the proceeding of a meeting of the candidates of all the parties held. Ext. 2 is the order of the Returning Officer. Ext. 4 is the pro forma for seeking permission for declaration of result under the signature of the Returning Officer (P.W. 9) and the result is attached with the same. Apart from the documents some other documents have also been filed, but the same have not been admitted into evidence and are on the record. Ext. 'A' for the respondent is a copy produced on behalf of the petitioner which was claimed by P.W. 1, election agent of the petitioner, to have been maintained in course of counting. From the entry made in this copy (Ext. 'A') it appears that there were 14 tables each in both the counting halls on the ground floor as well as on the upper floor and the counting agents of the petitioner were present on 7 tables in each of the rooms, it has been endorsed by P.W. 1 in this copy that on table Nos. 1 to 7 on the upper hall the counting of Parliamentary Constituency was done, whereas on table Nos. 8 to 14 counting of votes of the Assembly Constituency was done and his agents were present on table Nos. 8 to 14. Similarly, according to him on table Nos. 1 to 7 in the lower hall the counting of Parliamentary Constituency was done and on table Nos. 8 to 14 the counting of Assembly Election was done and his agents were present on counting table Nos. 8 to 14 and as the 7 tables each were reserved in both the halls the counting agents in some cases was transferred from one table to another which was so because the counting agents of the petitioner or any candidate contesting the Assembly election were required to be present only on those tables on which the counting of Assembly Constituency was being done.
15. Thus, from the pleadings and the evidence of the parties the allegations made on behalf of the petitioner in the election petition can be summarised like thus :
(i) That there was discrepancy between the votes counted for the said Assembly Constituency and for the Parliamentary Constituency in the segment, though both the polls took place together.
(ii) There were discrepancies between the number of ballot papers shown as cast in the ballot paper accounts of the Presiding Officers in Form No. 16 (1) and actual number of ballot papers recovered from the ballot boxes in Form 16 (2) and thus, there was difference of 554 votes detected during the initial stage of counting. It is also further stated that in the lower floor of the counting hall 312 ballot papers of Assembly Constituency were found Inserted in the ballot papers of Danapur Segment of Parliamentary Constituency and it also transpired that 173 ballot papers were discovered lost, but total number of 312 ballot papers were illegally and improperly added in the ballot papers counts.
(iii) That the counting agents of the petitioner were not allowed to approach the central table for making complaint and for scrutinising the decision of the doubtful ballot papers.
(iv) The Security Personnel deployed for the purpose of maintaining law and order were interfering with the process of counting.
(v) That one of the counting assistants was found Indulging in illegal counting and he was caught and produced before the Returning Officer, but he was let off with mere warning and no action was taken against him.
(vi) The counting agents of the petitioner were asked to leave the counting hall after initial counting.
(vii) That the votes cast in favour of the petitioner were illegally rejected. Further that the doubtful ballot papers were taken up by the Returning Officer and the Assistant Returning Officer and also by the Circle Officer of Maner who was not authorised to do so and the petitioner was not allowed to inspect the bundles of ballot papers in case of doubt. Accordingly, it had been submitted on behalf of the petitioner that these irregularities, as pointed out, have materially affected the result of the election. FINDINGS
16. Issue Nos. 4 and 5 : These are the only two main issues to be decided in this case, because the result of the case depends on the decision of these two issues. However, in order to decide the issues it is proper to deal with the points raised and the grounds taken by and on behalf of the petitioner in paragraph Nos. 35 and 36 of the petition.
17. So far as point No. 1 that there was discrepancy between the votes counted for the said Assembly Constituency and for the said Assembly Constituency segment of Patna Parliamentary Constituency is concerned, it appears that there were some differences between the total votes cast and counted for the Assembly Constituency and also for the Parliamentary Constituency. In this regard, it has been contended on behalf of the respondent that though a particular voter in the present circumstance is provided with (wo ballot papers and he is supposed to cast his vote in both the ballot papers and put the same in the ballot box, it is not either possible nor necessary to verify whether the ballot papers issued to the voter have been put in the ballot box or not. Even if both the ballot papers are simultaneously supplied to the voter, in his discretion a particular voter may like to cast his vote in the Assembly Constituency but not in the Parliamentary Constituency. Similarly, a voter may like to cast his vote in the Parliamentary Constituency and not for the Assembly Constituency. Therefore, there may be difference between the number of votes cast at a particular booth for the Parliamentary Constituency and for Assembly Constituency. And what is required is that both the ballot papers which had distinct colour in this case had to be separated from each other in the initial stage of counting and where it has come in evidence that actually some of the ballot papers meant for Assembly Constituency were found in the bunch of the votes sorted out for the Parliamentary Constituency as the colour of'such ballot papers were different and those ballot papers were taken into account. Therefore, merely because there was some difference between the ballot papers counted for the Assembly Constituency vis-a-vis Parliamentary Constituency, it cannot be said that there was irregularity committed in the counting. It has been made clear in her evidence by the Returning Officer concerned, who was examined on commission, and also by the Assisiant Returning Officer (P.W. 7).
18. The next point is that there is allegation on behalf of the petitioner that so far as votes shown to have been polled according to the Presiding Officer's diary and the votes actually recovered and counted from the ballot box is concerned, there was discrepancy. However, so far as the allegation of discrepancy is concerned, the entire bunch of statement in Form 16 has been produced and on perusal of the bunch (form 16) will reveal that there was some negligible difference between Part I and Part II of Form 16. It is important to note that Part I as filled up on the basis of figures shown in the Presiding Officer's diary and the ballot paper accounts of the Presiding Officer of the booth is concerned regarding number of ballot papers issued and Part-II is prepared on the basis of ballot papers actually recovered from the ballot boxes. It may be noted in this connection that according to the A.R.O. (D.W. 7) and R.O. (D.W. 9) it is clear that some of the ballot papers belonging to Assembly Constituency were subsequently found kept with the ballot papers of the Parliamentary Constituency and therefore, the discrepancies might have occurred but the same was subsequently reconciled. It may also be due to faulty calculation and arithmetical mistake committed by the Presiding Officer in mentioning the number of ballot papers issued and the number of ballot papers remaining unused. Therefore, such minor discrepancy cannot lead to a conclusion that there was irregularity and illegality committed in course of counting.
19. The next point is that the counting agents of the petitioner were not allowed to approach the central table for making complaint and for scrutinising the decision on the doubtful ballot papers. In this connection, it has been stated by the Returning Officer examined on commission that all the disputed ballot papers were brought to the central table for decision and she used to take decision in this regard in presence of the candidates or their election agents. For this purpose general announcement was made, but it was not incumbent upon the Returning Officer to call anyone to remain present. It was option of the election agent or the counting agent to remain present. In this connection, it is also important to note that according to the petitioner and his election agent P.W. 1 also 15 counting agents were appointed on their behalf. 14 of them were meant for manning the counting tables, 7 each in two counting halls and one for the central table. The election agent of the petitioner (P.W. 1) has also claimed that he was all along present in the hall. The procedure as laid down in the Conduct of Election Rules lays down that any ballot paper which is sorted out as disputed on the counting table has to be brought to the central table for final decision and on the central table the R.O. and A.R.O. concerned has to take a decision after consulting the candidate or their election agent present there. According to the A.R.O. (D.W. 7) and R.O., examined on commission, the same procedure was being followed and the decision was finally being taken. In such a circumstance, if the petitioner or his election agent or counting agent was not present on the central table at the time when such decision was taken, it was not on account of the fault of the authorities, because the authorities were proceeding according to Rules. Therefore, this point also cannot be considered to lead to the conclusion that bunglings and irregularities were being committed in course of counting.
20. The 4th point is that the security personnel deployed for the purpose of maintaining law and order were interfering with the process of counting. It has been alleged by the election agent of the petitioner, P.W. 1, as also by some counting agents, the other P.Ws., that the security personnel were present inside the counting hall against Rules and they were threatening and terrorising the counting agents when they wanted to somehow interfere in the matter. This allegation has been denied not only by the respondent, but also by the witnesses; rather the independent witnesses. The authorities concerned including D.W. 7, A.R.O., (D.W. 8), the District Magistrate-cum-District Election Officer who also happened to be the Returning Officer of the Parliamentary Constituency and the R.O. examined on commission have categorically denied it, it has been stated by them that the police force and para-military forces were deployed for maintaining law and order during counting, no doubt, but it was for the purpose of maintaining law and order and they were deputed outside the halls. However, some personel were deputed on the gate of the counting halls also, but they were not supposed to be present inside the hall and in fact no police personel or paramilitary force was present in the hall during the counting. It has, however, been slated by the District Magistrate (D.W. 8) that probably in order to pacify and bring under the control the situation arising in the hall some police personnel or paramilitary personnel were called inside the hall by the Returning Officer. The Returning Officer examined on commission has also stated in her evidence that at one point of time when on table No. 10 the counting agent of the petitioner was not being controlled by the counting authorities, the police personnel were called to pacify him. The R.O. has also clearly stated that Videography of the entire counting process was being taken. If it was so that the paramilitary forces were unnecessarily present in an unauthorised manner in the counting hall, the petitioner should have made a prayer for calling for and exhibiting the videograph in order to prove his point which has not been done. Therefore, this point also is not worth any consideration.
21. Point No, 5 relates to the matter of one of the counting assistants found indulging in mal practice, it is stated on behalf of the petitioner that at one point of time when one person was found indulging in mal practice amounting to illegal counting, he was caught and was produced before the Returning Officer, but he was let off with mere warning and no action was taken. By saying so, the petitioner and his witnesses wanted to show that the instance of illegalities and irregularities being committed are there. However, in this connection it has been stated by the Assistant Returning Officer (D.W. 7) that there was an incident in which it was brought to his notice that some staff on a counting table was committing some bungling in the matter of preparation of handed in favour of individual candidates and then he went to the table concerned, looked into the matter and found the allegation to be not true and therefore, according to D.W. 7 there was no necessity of taking any action against the staff. The Returning Officer examined on commission has also stated in her cross-examination that during the course of counting of the Assembly Constituency some complaint was made against one counting assistant before the A.R.O. In-charge. Sri Sanjay Singh (D.W. 7) who took appropriate action against him about which she was satisfied and she referred to this fact in the proceeding of hearing of objection (Ext. 3). So far as Ext. 3 is concerned, it is proceeding of a meeting attended by the candidates and their election agents called on 18-5-1996 between 10.30 to 11.20 and when it was pointed out by the petitioner that a counting personnel in Hall No. 2 was found making some illegal counting, he was brought before the Assistant Returning Officer, but he did not punish him. In this regard the Assistant Returning Officer is said to have stated that in round No. 3 or 4 one staff had committed some mistake and when the matter was brought to his notice he was removed from that place and was warned to be careful in future, but subsequently no complaint was receive against him. Therefore, the question of taking any action against him did not arise. It is, therefore, obvious that on all the tables on which counting for the Assembly Constituency was going on the counting agents of the petitioner were present and it also shows that they were vigilant and, therefore, this instance was detected. In the circumstance, if no complaint other than this instance was made to the Returning Officer or the Assistant Returning Officer, (sic) will be deemed that everything was being done in proper manner and therefore, this solitary instance cannot be treated as a proof of fact that the irregularities and illegalities were committed in course of counting.
22. On the next point which relates to counting agents being asked to leave the counting hall after initial counting, the Returning Officer examined on commission has clearly stated that it is totally incorrect to say that any counting agent who was validly appointed and who had been issued pass was ever asked to leave the counting hall. It is also not supported by any document that such an incident had taken place.
23. On the next point it has been alleged that the votes cast in favour of the petitioner were being illegally rejected and doubtful ballot papers were being rejected by one Circle Officer, Maner and not by the Returning Officer or Assistant Returning Officer. In the first phase it has been stated by the Assistant Returning Officer (D.W. 7) that actually apart from him two other persons, namely, B.D.O. and C.O., Danapur also happened to be the A.R.O. and he has further stated that during the second phase of counting candidatewise bundles of valid ballot papers in favour of different candidates along with bundel of disputed ballot papers were brought to the central table and the disputed ballot papers were dealt with and decided in accordance with the instructions of the Election Commission. He has further stated that the decision was taken in presence of the election agents of the candidates concerned and then accordingly, the stamp was put on it for rejection. He has further stated that if particular ballot papers was accepted as valid it was counted in favour of the candidate concerned and the reasons for rejection of a particular ballot paper was also assigned, for example; it has been stated by him that in some cases there was mark on more than one symbol; in other cases the voters have signed the ballot papers; in some other case it was mutilated and some stamp was put on it and on some ballot papers there was no signature of the Presiding Officer and therefore, such ballot papers were being rejected. In this regard, it is necessary to note down the provisions of the Conduct of Election Rules, 1961 amended vide Rule 59-A. According to amended Rule 56 it has been clearly laid down that:
"56 (2) The returning officer shall reject a ballot paper -
(a) if it bears any mark or writing by which the elector can be identified, or
(b) if it bears no mark at all or, to indicate the vote, it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or
(c) if votes are given on it in favour of more than one candidate, or
(d) if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the votes has been given, or
(e) if it is a spurious ballot paper, or
(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or
(g) if it bears a serial number, or is of a design, different from the serial numbers, or, as the case may be, design, of the ballot papers authorised for use at the particular polling station, or
(h) if it does not bear both the mark and the signature which it should have borne under the provisions of Sub-rule (1) of Rule 38:"
Sub-rule (3) further lays down that :
"Before rejecting any ballot paper under Sub-rule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper."
Sub-rule (4) also further lays down that:
'The returning officer shall endorse on every ballot paper which he rejects the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement."
According to Sub-rule (6) every ballot paper which is not rejected under this rule shall be counted as one valid vote. According to sub-rule (7) it has been laid down that "After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed -
(a) the counting supervisor shall fill in and sign Part II - Result of counting, in Form 16, which shall also be signed by the returning officer; and
(b) the returning officer shall make the entries in a result sheet in Form 20 and account the particulars."
24. The Returning Officer and Assistant Returning Officer have clearly stated that they were following the rules and instructions of the Election Commission in dealing with the ballot papers which were marked as doubtful and it is never incumbent upon the authorities to call and seek assistance of a particular candidate or his agent to attend the proceeding. It is for the candidate or his election agent or counting agent, as the case may be, to attend and be satisfied about the decision. Therefore, it cannot be said that the procedure being followed by the authorities in the counting was either improper or irregular or illegal. It is necessary that even if such irregularity has been committed it becomes necessary for the petitioner to prove that such irregularity has materially affected the result of the election which does not appear to have been done in this case as it appears from the evidence.
25. So far as the case of the petitioner is concerned, the most important witness is P.W. 1, who happened to be the election agent of the petitioner. According to him, he had been present in the counting hall all along and according to him the sitting arrangements were not proper, it has been denied on behalf of the respondent and the A.R.O. (D.W. 7) and the R.O., examined on commission, have denied this fact and have stated that the arrangements were made as per the Rules and Instructions of the Election Commission. Moreover, according to the authorities no such complaint was earlier made and such point was raised only in course of the meeting of the candidates after conclusion of the counting and therefore, there does not appear to be any substance in this allegation. Admittedly the counting tables were surrounded by a barricade as provided under the Rules and the counting agents were to remain outside the barricade where benches were provided for the counting agents. The same process was followed here, may be that there was some difficulty in properly witnessing each and every ballot papers by the counting agents, but there was no alternative. Moreover, in this case the counting agents do not appear to have been incapable of watching the proceeding and from the circumstance, it appears that they were quite vigilant. Therefore, raising such a point for rejecting election cannot be entertained. The law is that any allegation claimed to be of importance so as to materially affect the result of the election has to be substantiated and supported by the evidence and contemporaneous document in order to justify the objections. P.W. 1 at a later stage in his cross-examination produced a copy book which according to him was maintained by him in course of counting. It has been marked Ext. 'A' on behalf of the respondent. This copy does not bear the signature of the Returning Officer or the Assistant Returning Officer and the witness has also admitted that he could not produce this copy on account of the fact that he had doubts about its admissibility in absence of the signature of the Returning Officer or the Assistant Returning Officer. In this copy book the details of the results in each round on each table has been mentioned. The witness was election agent and he was not supposed to be present on a particular table and there was no question of his remaining present on each and every table simultaneously so as to note down the results unless he noted down the same from the result sheet or while sitting on the central table when the announcements were being made, but it is stated that no such announcement was made. Then the register (Ext. 'A') which has been prepared is doubtful. Accordingly, it is alleged on behalf of the respondent that this copy book has been subsequently prepared by P.W. 1 with a view to lend support to the allegation in the election petition. It has been stated that had it been a genuine register or copy maintained by P.W. 1 in course of counting, this fact would have been mentioned in the election petition and the copy book would have also been filed along with the election petition which has not been done. Not only this other witnesses appearing for the petitioner claiming to be counting agents of the petitioner in course of counting also started claiming that they were maintaining copies in course of counting and all such copies were produced by the witnesses in Court for the first time. The copies were not filed earlier and there was no mention of this fact in the election petition. Therefore, it has been contended on behalf of the respondent that these copies are fabrication and outcome of after-thought only in order to make out a case in support of the petitioner. There appears to be much substance in this contention.
26. So far as the allegations are concerned, it appears that for the first time some kind of allegation were made before the Returning Officer by the election agent of the petitioner, P.W, 1. According to the Returning Officer, examined on commission, a meeting of the candidates and their election agents was held in the night between 18th and 19th attended by the contesting candidates and their election agents. The three petitions said to have been filed by P.W. 1 marked Exts. 1, 1-A and 1-B were looked into and the Returning Officer thereafter passed an order on 18-5-1996 as per the order sheet (Ext. 1 on commission), it appears that by mistake a page of the proceeding of the meeting (Ext. 3) has been separated as Ext. 2, but in fact it formed part of the same minutes of the proceeding as it has been pointed out by the Returning Officer examined on commission.
27. So far as the election petitioner is concerned, as P.W. 13 he has clearly stated that he had visited the counting hall only twice; once at the initial stage of the counting and secondly in order to attend the meeting at 8.30 P.M. on 18th May, 1996 and he has also stated that whatever he learnt he learnt from Lalan Singh (P.W, 1), who was election agent and therefore, he had no personal knowledge of the matter. All other witnesses examined on his behalf are interested witnesses being his counting agents. Therefore, what material is to be considered is the evidence of the independent witnesses, D.Ws. 7, 8 and 9. So far as the question of bias attitude of the Returning Officer against the petitioner is concerned, it has been stated by P.W. 1 that she had no reason to have any bias against the petitioner, but he further added that at the beginning of the counting there was some hot exchange between the petitioner and the Returning Officer and therefore, she appears to have acted in bias manner. Firstly, the election petitioner himself, while examined as P.W. 13, did not say so in his evidence and there is also no averment to this effect in the election petition also. Therefore, it appears to be absurd that the Returning Officer being an I.A.S, Officer and also being an outsider had any reason to bear any grudge and malice against the petitioner to have acted in prejudicial manner as alleged. Therefore, there does not appear to be any substance in the allegation on behalf of the petitioner that the Returning Officer or the authorities concerned were biased and prejudiced against him and therefore, the counting was not done in proper manner,
28. It is also significant to note in this connection that P.W. 1 himself has admitted that the petitioner was a candidate of Janta Dal which was a ruling party in the State at the relevant time. It is obvious as stated in the election petition Itself that from this very Constituency the then Chief Minister of Bihar Sri Lalu Prasad had contested and was declared elected in the general election for Assembly, but as Sri Lalu Prasad had won election from Raghopur Constituency in the District of Vaishali also and he had to vacate his one seat, he decided to vacate his seat of Danapur Constituency, this is the background in which the bye-election for Danapur Constituency was held along with the general election of Parliament. As the seat was vacated by Sri Lalu Prasad for which bye-election was held, it has been submitted that there was possibility that the electorate had some reaction and did not like to vote for his candidate, the petitioner, and that may be a reason for his getting lessor number of votes. Moreover, as the petitioner happened to be a candidate of the ruling party, in ordinary course the Officers might have had some concerned or weakness for him, but as the respondent was a candidate of B.J.P., there was no question of the authorities having election has been affected by this countermanding. So far as the countermanding of the election is concerned, it was the decision of the Election Commission which has discretion in the matter. This power is vested in the constitutional authority of the Election Commission of India under Article 324 of the Constitution and the Election Commission has power under Section 58 and 64-A of the Representation of the People Act also. In this case, the detailed reasons behind countermanding of the election by the Election Commission are not known. The petitioner realises that the then Returning Officer had made a recommendation regarding cancellation of Policies on a particular polling booth and without report of the Returning Officer the election of entire Constituency had been countermanded which is improper and illegal.
30. On the other hand, it has been contended on behalf of the respondent that the Returning Officer was removed only on account of the fact that he did not bring the entire matter to the notice of the Election Commission as was required of him and because the media of the Country had covered the illegalities committed by the other party and booth capturing on large scale, the Election Commission was convinced about unfair election and the election was countermanded. The petitioner neither impleaded the Election Commission as party nor called for those documents which could be scrutinised for coming to any conclusion regarding any finding. In absence of the Election Commission being a party to the proceeding and the documents being present before the Court it is not possible to scrutinise the decision of the Election Commission which happens to be the Constitutional authority. In this regard, it has been held by their Lordships in the case of Mohinder Singh Gill v. The Chief Election Commissioner, reported in AIR 1978 SC 851 that (at Page 858) :
"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out."
So far as the power of the Election Commission is concerned, it has been observed in the aforesaid decision that :
"Whether an order passed is wrong, arbitrary or is otherwise invalid, relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Representation of the People Act or the rules made in that behalf, or, under Article 324(1). The Commission is entitled to exercise certain powers under Article 324 itself on its own right, in an area not covered by Representation of the People Acts and the rules."
Further, it has been observed by their Lordships that :
"It is clear even from Section 58 and Section 64-A of the Representation of the People Act that the legislature envisaged the necessity for the cancellation of poll and ordering of repoll in particular polling stations where situation may warrant such a course. When provision is made in the Act do deal with situations arising in a particular polling station, it cannot be said that if a general situation arises whereby numerous polling stations may witness serious malpractices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision. The fact that a Particular Chief Election Commissioner may take certain decisions unlawfully, arbitrarily or with ulterior motive or in mala fide exercise of power, is not the test in such a case. The question always relates to the existence of power and not the mode of exercise of power."
It has further been observed in this connection that :
"But after the notification has been issued by the President, the entire electoral process is in the charge of the Election Commission and the Commission is exclusively responsible for the conduct of the election without reference to any outside agency. There is no limitation in Article 324(1) from which it can be held that where the law made under Article 327 or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. The Election Commission is competent in an appropriate case to order repoll of an entire constituency where necessary."
Therefore, this point also cannot be taken into consideration for declaring countermanding of the poll in the Constituency concerned to be Illegal and there is no material to support that the countermanding of the election in the Constituency concerned had materially affected the result of the election. Therefore, this point is dismissed.
31. Some decisions have also been referred to by the learned counsel for the respondent. In this connection the first decision is the case of Ram Sewak Yadav v. Hussaln Kamil Kidwai, reported in AIR 1964 SC 1249, in which it was observed by their Lordships that (at Page 1252-1253) :
'The rules for the conduct of elections clearly show 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 recount. It is in the light of the provisions of Section 83(1) which requires 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."
In the present case there is no material to show to the satisfaction of the Court that the situation demands inspection of the ballot papers and the same also, therefore, cannot be ordered.
32. In another case Dr. Jagjit Singh v. Giani Kartar Singh, reported in AIR 1966 SC 773 it has been observed by their Lordships that (at Page 783) :
"Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Clause (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83(1) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were Improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material fact which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the Improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. 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."
33. In another case Jitendra Bahadur Singh v. Krishna Behari, reported in AIR 1970 SC 276 it has been observed that (at Page 279) :
"When the petitioner does not state in the election petition that any of the counting agents appointed by the unsuccessful candidate or his election agent in accordance with the rules had been refused admission to the place of counting, mere allegation that the returning officer did not permit enough number of counting agents to be appointed is an extremely vague allegation. Under Section 47 of the Representation of the People Act, 1951, a contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may be prescribed by the rules, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the returning officer. Rules framed under that Act prescribe the number of counting agents that a candidate may appoint."
In the present case, however, a plea has been taken on behalf of the petitioner that whereas counting took place on 28 tables', the petitioner could appoint only 14 counting agents for 14 tables and therefore, he appears to have felt that he was prejudiced in this regard. It should be made clear that admittedly the counting of Parliamentary Constituency relating to segment of Danapur Assembly Constituency and of the Assembly Constituency of Danapur were taking place together and for this purpose two halls in a building were earmarked. It has come in evidence that there were 14 tables each in both the halls; one on the ground floor and one on the upper floor of the building. It has come in evidence that at the initial stage when the ballot papers were searched out and the bundles were prepared the work was going on all the 28 tables, but in the second phase of counting when the counting began candidatewise only 7 tables on the ground floor and 7 other tables on the upper floor were earmarked and rest 14 tables 7 tables on each floor were earmarked for the counting of the ballot papers of the Parliamentary Constituency. Therefore, in the first phase of counting the candidatewise counting was not being done and there was every likelihood that the Parliamentary candidates had get their counting agents on rest of the 14 tables whereas 14 tables were managed by the counting agents of the petitioner and other contesting parties. There is no evidence to show that 15 counting agents were appointed for any other candidate including respondent No. 1. Therefore, when the counting of votes candidatewise was taking place, all 14 tables were looked after by the counting agents of the petitioner and there does not appear to be any reason to come to a conclusion that counting of all the tables was not being managed by his counting agents. In this circumstance, there is no point to show that because only 14 counting agents were appointed on behalf of the petitioner, the result has been affected or that there has been irregularity which the petitioner or his agents could not mark and see. This point is accordingly dismissed.
34. In the case of Smt. Sumitra Devi v. Sri Sheo Shanker Prasad Yadav, reported in AIR 1973 SC 215 it has been held by their Lordships that (at Page 217-218) :
"Where the allegations in the election petition are vague and the petition does not contain an adequate statement of the material facts and the evidence adduced by the petitioner is found unreliable and no definite particulars are also given in the application as to the Illegalities alleged to have been committed in the counting of the ballot papers, the application' for inspection of ballot papers cannot be allowed. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds or believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection."
35. In the case of Beliram Bhalaik v. Jai Behari Lal Khachi, reported in AIR 1975 SC 283 it has been held by their Lordships that (at Page 289} :
"A whimsical and bald statement of the candidate that he is not satisfied with the counting is not tantamount to a statement of the "grounds" within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under Sub-rule (3) of Rule 63, also."
36. In the case of Suresh Prasad Yadav v. Jai Prakash Mishra, reported in AIR 1975 SC 376 it has been held by their Lordships that (at Page 377-378) :
"An order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is two fold, Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguard against trickery mistakes and fraud in counting that it can be called almost foolproof. Although no hard and fast rule can be laid down, 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 effectful justice between the parties."
37. In the case of Chanda Singh v. Ch. Shiv Ram Varma, reported in AIR 1975 SC 403 it has been observed by their Lordships that:
"Rule 63 of the Conduct of Elections Rules, 1961 obligates the candidate to state 'the grounds on which he demands such recount'. It is plain that a mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of the said rule. Under the rule the demand for recount may be rejected if it appears to the Returning Officer to be frivolous or unreasonable. What is not reasonably grounded or seriously supported is unreasonable or frivolous. Suspicions of possible miscounting in the process or likely errors in counting always linger in the mind of the defeated candidate when he is shocked by an unexpected result. The Returning Officer has to be careful, objective and sensitive in assessing the legitimacy of the plea for re-running the course of counting, Victory by a very few votes may certainly be a ground to fear unwriting error in count given other circumstances tending that way. If the counting of the ballots are interfered with by too frequent and flippant recounts by Courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious praying if recount of voles is made easy. The best surmise, if it be nothing more than surmise, cannot and should not induce the Judge to break open ballot boxes. If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper not otherwise. In short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting. Of course, even if the difference be more than microscopic, if there is a serious flaw or travesty of the rules or gross interference, a liberal repeat or recount exercise, to check on possible mistake is a fair exercise of power. To tarnish the counting staff with bias is easy for any party who divorces means from ends, when the challenger belongs to the party in power a heavy strain is thrown on the strength of the moral fibre of the election staff whose fearless integrity is a guarantee of purity of the whole process but whose fortunes, before and after elections, may be cast with a political Government whose key men may sometimes take disturbingly keen interest in the outcome of elections and election petitions. The Court should be reluctant to lend quick credence to, the mud of partiality slung at counting officials by desperate and defeated candidates although what is more important is the survival of the very democratic institutions on which our way of life depends."
38. In the case of Bhabhi v. Sheo Govind, reported in AIR 1975 SC 2117 their Lordships have laid down certain conditions imperative for ordering inspection of ballot papers (at Page 2117) :
"(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 allegation made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
(4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials."
39. In the case of Hari Ram v. Hira Singh, reported in AIR 1984 SC 396, it has been held by their Lordships that (Paras 4 and 7) :
"Inspection of a ballot papers and counter foils should be allowed very sparingly and only when it is absolutely essential to determine the Issue. In the garb of seeking inspection the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court was fully satisfied that a cast-iron case was made out for the same; whereas documents mentioned in Clauses (a) and (b) of Sub-rule (2) of Rule 93 could be liberally allowed to be inspected."
40. In the case of M.R. Gopalakrishnan v. Thachady Prabhakaran, reported in 1995 Supp (2) SCC 101 : (1995 AIR SCW 156) their Lordships have held that (at Page 166-167; of AIR SCW) :
"The Tribunal or the Court trying an election petition has power to direct inspection and re-count of votes if the material facts and particulars are pleaded and adequate grounds are found to exist for directing such re-count in the interest of justice. While doing so, however, the provisions contained in Section 94 of the Act may not be ignored but the same be given due weight and consideration before directing inspection and re-count. Section 94 directs that no witness or other person shall be required to disclose for whom he has voted at an election particularly in view of the statutory rules which provide adequate safeguard for proper conduct of the counting and for testing of the validity or invalidity of the ballot papers. The rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agents are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material facts in the election petition in relation thereto. Therefore, the secrecy of the vote has to be maintained and a demand of recount should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. The demand of a defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the re-count, no Tribunal or Court would be justified in directing the re-count."
41. Thus, on consideration of the abovenamed decisions and the observations of their Lordships of the Supreme Court it becomes clear that the present case is not a fit case in which the petitioner has been able to make out a case for recount and the question of setting aside the election of respondent No. 1 does not arise. Both the issues are, accordingly, decided and are answered in negative.
42. Issue No. 6 : in view of the findings recorded above, there is no scope for any relief being granted to the petitioner in this case. Accordingly, this issue is answered in negative and the election petition is, hereby, dismissed on contest with cost against respondent No. 1.