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"That two polling Booths Nos. 70 and 71 were set up in Government Middle School, Ambli, for the voters of Village Ambli on 27-4-1996. The polling started at 7.00 a.m. Contrary to election rules, the polling staffillegally stopped the polling from 1.00 p.m. to 2.00 p.m. as lunch interval and closed all the doors of the polling booths and all the polling agents of all the candidates were turned out. This action of the polling staff created doubt in the minds of some of the voters and the polling agents present at the spot. Vinod Kumar, son of Shri Wazir Chand, Halwai, Bus stand, Ambli, polling agent of the petitioner, who was present at the time of polling at Booth No. 71, and few other persons, opened the door and saw that one member of the Polling Staff, Rajbir Singh, Record/Store Keeper, Market Committee, Radaur, was inserting the ballot papers in the ballot box during lunch time. On seeing this, the polling agents and other persons who witnessed this raised objections. In the meantime, Deputy Commissioner, Ambala, and Shri P.K. Sharma, Sub-Diyisional Magistrate, Naraingarh, reached Village Ambli, which is a part of the 3-Sadhaura (S/C) Assembly constituency. After having been convinced that Rajbir Singh, member of the Polling Saff, had indulged in election offences and was helping some candidate, the Deputy Commissioner passed an order there at the spot for adjourning the polling at Booth No. 70, and also passed an order that the election stood vitiated by the act and conduct of Shri Rajbir Singh, a member of the polling staff in polling Booth No. 71. An F.I.R. was also registered against the said Rajbir Singh, a member of the Polling Staff Subsequently, on 29-4-1996, the Returning Officer passed an order for repelling in Booths Nos. 70 and 71 on 30-4-1996 from 7.00 a.m. to 5.00 p.m. This is one of the numerous incidents where a member of the polling staff was caught indulging in election mal practice. Otherwise this has happened in most of polling booths in 3-Sadhaura (S/C) Assembly constituency. In this situation there polling should have been ordered in the entire constituency. This incident regarding Sadhaura (S/C) Assembly Constituency was carried on Doordarshan National news on the same night, i.e., 27th April, 1996."

9, Let us now examine what is alleged in sub-paragraph (iii) of paragraph 8. This sub-paragraph reads thus :--

"The Returning Officer, at the behest of the returned candidate, and contrary to election rules, appointed the Lecturers of the D.A.V. College, Sadhaura, as Counting Supervisors, who were at the beck and call of Shri Anil Kumar, son of Shri Ved Parkash, of Sadhaura, who was Counting Incharge of Ramji Lal, the returned candidate. Regarding the appointment of the Counting Supervisors, no notice was given to the petitioner. The lecturers appointed as Counting Supervisors were silently conniving with the returned candidate, his agents and/or other persons with the consent of the returned candidate and were helping in the furtherance of the election prospects of the returned candidate. Shri G.K. Sharma, Shri H.K. Kataria and Shri Jasmer Singh, Lecturers, D.A.V. College, Sadhaura, who were Counting Supervisors at Tables Nos. 2, 3 and 5 respectively, were wearing something in their fingers for the purpose of double-marking the ballot papers of the petitioner at the time of counting in order to make these invalid. By this novel method, they got several hundred ballot papers polled in favour of the petitioner, rejected at the time of counting. This illegal practice adopted by them is embraced by the definition of booth capturing."

The averments in this sub-paragraph apparently state the material facts which, according to the petitioner, constitute the corrupt practice of booth capturing committed at the time of counting of votes. As per the allegations the Returning Officer appointed some Lecturers of D.A.V. College, Sadhaura as Counting Sueprvisors who were at the beck and call of Anil Kumar who was the Counting Incharge of the returned candidate. The appointment is said to be contrary to Election Rules. It is also alleged that no notice was given to the petitioner regarding appointment of the Counting Supervisors. It is further alleged that the Counting Supervisors were silently conniving with the returned candidate, his agents and/or other persons with his consent and were helping in the furtherance of his election prospects. Three Counting Supervisors have been named in this sub-paragraph and they are Sarvshri G.K. Sharma, H.K. Kataria and Jasmer Singh, Lecturers, D.A.V. College, Sadhaura. According to the allegations they were at tables Nos. 2, 3 and 5 respectively and were wearing something on their fingers for the purpose of double-marking the ballot papers of the petitioner at the time of counting in order to make them invalid. It is also averred that by this novel method, these Counting Supervisors got several hundred ballot papers which were polled in favour of the petitioner rejected at the time of counting and this, according to the petitioner, amounts to booth capturing. The gravamen of the charge is that the polling supervisors who were appointed contrary to the Rules were double-marking the ballot papers polled in favour of the petitioner in order to make them invalid. Here again, the allegations are wholly incomplete and deficient in material facts. The averments in this paragraph have been verified by the petitioner on the basis of information received by him from his polling agent Shri Vinod Kumar and two others. They must have been present at the time of counting and they should have known as to what was that article which was worn by the Counting Supervisors on their fingers by which they were double-marking the ballot papers of the petitioner. On which finger of which hand was that article worn must have been known to them and could have been mentioned. Not only this, a vague allegation that several hundred ballot papers were got rejected by double-marking has been made without supplying any particulars thereof. As to how did the petitioner come to know that several hundred ballot papers polled in his favour had been rejected has not been stated. The petitioner or at least his counting agents were present at the time of counting and full particulars of the rejected ballot papers which, according to the Rules, are to be shown to the candidates or their agents should have been supplied in the petition in this sub-paragraph. As per the Rules and instructions contained in the Hand Book for Returning Officers, before any ballot paper is rejected, a reasonable opportunity of inspecting the same is given to the candidate or his Agent present at the time of counting; Not only this, if the agents or the candidates want to note down the serial number of any ballot paper on the ground that it is of doubtful validity or wrongly rejected, they are allowed to do so. This being so, it was possible for the petitioner to have supplied the particulars of his ballot papers alleged to have been double-marked by the Counting Supervisors thereby making them invalid. In the absence of such particulars the allegations cannot but be said to be vague lacking in material facts and particulars. It is interesting to note that in the complaint sent by the petitioner to the Election Commission by a fax message, the number of ballots alleged to have been rejected on the ground of double-marking has been given as 'thousands' instead of 'several hundred' as stated in the petition and the vagueness of the plea raised without any basis is, thus, writ large. It has not been alleged in para 8 that rejected ballot papers were not shown by the Counting staff. Again, if the Returning Officer appointed Counting Supervisors contrary to the Election Rules and without giving notice of appointment to the petitioner or any other candidate and if such a notice was necessary to be issued, the Returning Officer committed some irregularity/illegality and on that ground the election of the returned candidate could be set aside only under Section 100(1)(d)(ii) of the Act. The election of the returned candidate has not been challenged on this ground either nor has it been pleaded as to how any such irregularity materially affected the result of the election in so far as it concerns the returned candidate.

15. For the foregoing reasons, It must be held that the averments made in para 6(b) read with para 9 of the petition pertaining to the corrupt practice of incurring election expenditure in contravention of Section 77 of the Act are wholly deficient in malerial facts necessary to constitute the cause of action and, therefore, they do not raise any triable issue.

16. The petitioner has also challenged the election of the returned candidate on the ground of some irregularities committed during the course of counting of voles which, according to the petitioner, have materially affected the result of the election in so far as it concerns respondent 1. A prayer has been made for recounting the votes and a declaration sought under Section 101 of the Act to the effect that it is the petitioner who has been duly elected as he received a majority of the valid votes, ground is taken in para 6(c) of the petition which is further divided into four sub-paras. It is alleged that non-compliance with the provisions of the Constitution and the Act has resulted in inflating the number of votes in favour of the returned candidate and reduced the number of valid votes polled by the petitioner. It is pleaded that valid votes polled by the petitioner were" improperly rejected whereas invalid and void votes were counted in favour of the Returned candidate. It is also the case of the petitioner that votes polled in his favour were wrongly counted as the votes of the returned candidates. Material facts which, according to the petitioner, make out a case for recounting the votes have been stated in para 10. This para has been verified by the petitioner on the basis of information received by him from his agents who must have been present at the time of counting. Counting of votes for the Sadhaura (SC) Assembly constituency and the Ambala (Reserved) Parliamentary constituency (Sadhaura segmento was held simultaneously. It stated at 8.00 AM on 8-5-1996 at D. A. V. College, Sadhaura. Shri Pancham Singh, District Development and Panchayat Officer was the Returning Officer for the Assembly constituency and Assistant Returning Officer for Ambaia Lok Sabha Assembly segment. Seven tables were arranged for counting of ballot papers for the Assembly constituency and equal number for the Lok Sabha Assembly segment and they were arranged in two parallel rows. In between the two rows and on one side of the hall, there was a dais arranged for the Returning Officer. According to the petitioner, the entire area was enclosed with wire screen fencing and there were only two entrances to it. One entrance was exclusively for the counting staff, the Returning Officer and the candidates whereas the other one was for the counting agents of the candidates. It is alleged that counting agents were not allowed to be present at the table of the Returning Officer which is said to be against express provisions of law. It is further alleged that the counting agents were asked to stand beyond the partition facing the tables and it was impossible for them to watch the counting properly. It is also pleaded by the petitioner that at the time of counting it was not possible for the counting agents to see whether votes were properly counted and rightly put in the accounts of the candidates. The counting staff is said to have hidden the marking on the ballot papers and were arbitrarily putting them in the account of the candidates according to their whims. It is not in dispute that all the candidates had appointed seven counting agents each who were present inside the hall. It is further stated that some Lecturers of D.A.V. College, Sadhaura were appointed as Counting Supervisors and they, in connivance with Anil Kumar Counting Incharge of the returned candidate, helped the latter. In sub-para (v) of para 10, it is averred that Sarvshri G.K. Sharma, H.K. Kataria and Jasmar Singh were wearing some object on their fingers and while counting they double marked the ballot papers polled in favour of the petitioner in order to render them invalid and this they did with the tacit approval, connivance and consent of the returned candidate and/or his agents. The names of different persons who were at different tables have then been mentioned. It is further alleged that after six rounds of counting Shri Ram Kumar Saini, the election agent of the petitioner became apprehensive because a large umber of ballot papers polled in favour of the petitioner were being rejected. He is said to have raised an objection but the rejected ballot papers were not shown to him. Shri H.K. Kataria, the Counting Supervisor who is stated to have been double marking the ballot papers also refused to show his hand to the election agent of the petitioner. A similar objection regarding double marking is also staled to have been raised by Narender Kumar at table No. 5. The petitioner then states that on these objections being raised, the Returning Officer posted two police officials, whose names have been mentioned, to ensure that no other objection was raised by the counting agents of the petitioner or any other person. When the Returning Officer did not entertain the objections raised by the agents of the petitioner, the latter faxed a complaint to the Election Commission of India on 9-5-1996 complaining that thousands of ballot papers polled in favour of the petitioner had been spoiled by double marking during counting and that the Returning Officer was refusing to accept the objections of the candidate. The Election Commission was requested to stop the counting immediately. Again it is alleged that after the tenth round of counting the Returning Officer had announced on the public announcement system that 7784 votes had been rejected but in the final result as announced on 10-5-1996 at 5.00 AM only 5619 votes had been rejected. Since there was a difference of 2165 votes between the earlier announcement and the rejected votes and because this was more than the margin by which the petitioner was defeated, the result of the election stood materially affected. After the result was announced the petitioner is said to have made an application to the Returning Officer for recounting the votes but the same was allegedly not entertained. Some blank ballot papers are also said to have been detected which were marked in favour of the returned candidate by the counting supervisors.