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ii) Does the petitioner prove that the result of the election was materially affected as there was irregularity in the process of conducting the election by not allowing the agent of the petitioner at the time of counting the minimum number of the Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) slips?

iii) Does the petitioner prove that the election result was materially affected for not having checked at least five Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) slips of each Assembly Constituency in the presence of the Counting Agents of the candidates?

26. Issue No.2: The another ground raised by the petitioner is that his agent the PW-2 was not allowed into the Counting Center who is an authorized agent of the petitioner and at the time of counting the minimum number of Electronic Voting Machine and Voter Verifiable Paper Audit Trail (VVPAT )slips. In support of his contention, he has examined PW-2 who is the gent of the petitioner-namely Tukaram Shirabur. The petitioner has stated in his evidence that he has nominated PW-2 as his agent in the election though he was allowed by the Returning Officer during the scrutiny but not allowed him at the time of counting when it was started at 7.00am and they insisted for production of the fresh Identity card. Even though an Identity Card-Ex.P-9 has been issued by the Returning Officer for having appointed him as an agent but they refused to allow PW-2 into the Counting Center when the strong room was opened where the EVMs were kept in the sealed condition. Thereby, the Returning Officer committed irregularity in the process of conduct of election which was materially affected. In support of his contention, PW-2-Tukaram also deposed that he has been appointed as an agent for the petitioner. The election Identity Card issued as per Ex.P-9. He also speaks about the objection raised by the Congress candidate against the nomination papers of the respondent which was already discussed in issue No.1 and he further stated on the date of counting at 7.00am, he went to the Counting Center and requested the police to allow him inside the Center but they have not allowed him to go inside. They demanded to show the Election Counting Agent Card and he has not obtained any such card. Thereafter, at 10.30 am the candidate who is the petitioner came near the Counting Center, then he went along with the petitioner. Thereafter, the petitioner was checking the electronic machines. In the cross examination, the counsel for the respondent has denied that he was not allowed into the counting center as he has not shown the ID card Ex.P-9 to the police in order to allow him to go inside the Counting Center. But he has denied. In this regard, CW- 1-the Court Witness, who is the Deputy Commissioner and Returning Officer, has stated in his evidence that he has conducted the election as per the Rules and Regulations. All the duties performed by him was transparent, free and fair and he has strictly adhered to the regulation of the Election Commission of India. In the cross examination the counsel for the petitioner got admission that PW-2 was appointed as agent of the petitioner and issuance of Ex.P-9-Indentity Card for election agent and CW-1 also admits, Ex.P-9 is enough for admitting the agent at the time of scrutiny as well as allowing him to the Counting Center. There is no need for separate Identity Card for the agent for allowing to be present while counting.

29. The learned counsel for the petitioner also brought to the notice that as per Section 40 of the RP Act regarding appointing the election agent and the appointment shall be given in prescribed manner to the Returning Officer and Section 50(2) of the RP Act where the Returning Officer has power to appoint the political party can nominate any person as their agent of their candidate and Rule 53 of Conduct of Election Rules, the Returning Officer has power to allow any agent shall watch the counting at any particular counting table or group of counting tables. The appointment of PW-2 by CW- 1 on the nomination made by PW-1 and issuance of Ex.P-9 is not in dispute and from the evidence it is reveals PWs.1 and 2 were present till evening while declaring the result of the election and it is not mandatory to open the strong room without the presence of the either the candidate or his agent. Even otherwise, if PW-2 was not allowed inside while opening of the strong room, that cannot be said it was an irregularity in the process of conducting the election and to set aside the returned candidate as void. On the other hand CW-1 has stated that he has examined the five Electronic Voting Machines at the end of the counting, which will be discussed in the next Issue No.3 and I hold the petitioner has failed to prove the ground that non-allowing his agent at 7.00am or 8.00am and 10.30am which has materially affected the conduct of elections. Hence, I answer issue No.2 in the negative against the petitioner.

30. Issue No.3: The petitioner has also taken a contention that it is mandatory to check at least 5 Electronic Voting Machines and VVPAT slips of each assembly constituency in the presence of counting agents. The non-compliance of provision of the Constitution or of the RP Act or Rules as per Section 100(d)(iv) of RP Act.

31. Section 100 of RP Act provides the grounds for election to be void. Section 100(1)(d)(iv) prescribes non-compliance of the provisions of this Act or Rules, the High Court has power to declare the election of the returned candidate to be void. It is also required to be proved by the petitioner that as per the Rules, the VVPAT slips shall be checked and compared with the votes available in EVMs. CW-1 has stated that it is not mandatory to compare VVPAT slips with the votes available with all EVMs and says after completion of counting of votes, it is mandatory to check only 5 VVPAT slips boxes in every assembly segment in the presence of counting observes and 5 VVPAT were checked by the counting staff in the presence of observers. Accordingly, he has complied the procedure and he did not find any differences in votes and also contended that the petitioner has not raised any objection while counting that there were differences in the VVPAT slips boxes and Control Unit of the EVM and also denied there were several irregularities committed. And suggestion made by the counsel for the petitioner to help the BJP candidate he has conducted the process of election in unfair manner, the same was denied by the CW-1. Even on perusal of the cross-examination made by the respondent, he has stated, it is not mandatory for comparison of VVPAT slips boxes and Control Unit only in the presence of candidate or his agents.